Penabur's Disregard of Indonesia's Manpower Law - 1

Comments on Process of Termination of Employment JP and TC by BPK-Penabur.
(NB. All Articles quoted are taken from Act No.13, 2003, concerning Manpower)

Article 46.1
No worker of foreign citizenship is allowed to occupy positions that deal with personnel …..
- David Nesbit, the Teacher Co-ordinator who signed the letters of termination, is British.

Article 57
(1) A work agreement for a specified period of time shall be made in writing and must be written in the Indonesian language with Latin alphabets.
- Employment contracts were in English only.

(2) A work agreement for a specified period of time, if made against what is prescribed under subsection (1), shall be regarded as a work agreement for an unspecified period of time.
- NO contracts were issued to NETs by BPK-Penabur from January 2005 until June 2006.

Article 59.7
Any work agreement for a specified period of time that does not fulfill the requirements referred to
under subsections (1), (2), (4), (5) and (6) shall, by law, become a work agreement for an
unspecified period of time.
- Ergo: the initial employment agreements signed in August 2004 by Sonny Hartono, as the representative of BPK-Penabur (the First Party) and JP and TC (the Second Parties) remain valid for an unspecified period, or until the termination is agreed by both parties.

Article 151
(1)The entrepreneur, the worker and or the trade/labour union, and the government must make all efforts to prevent termination of employment from taking place.
- The termination of the employments of JP and TC were arbitrary, with no reasons given, nor were the procedures set out in August 2004 followed.

(2) If despite all efforts made termination of employment remains inevitable, then, the intention to carry out the termination of employment must be negotiated between the entrepreneur and the trade/labour union to which the affected worker belongs as member, or between the entrepreneur and the worker to be dismissed if the worker in question is not a union member.
- There was no discussion or recognized procedure, let alone ‘negotiation’. (cf. Article 161)

If the negotiation as referred to under subsection (2) fails to result in any agreement, the entrepreneur may only terminate the employment of the worker/ after receiving a decision [a permission to do so] from the institute for the settlement of industrial relation disputes.
- A statement reinforced in Articles 153.2 and 155.

Article 153.2
Any termination of employment that takes place for reasons referred to under subsection (1) (none of which apply to JP or TC) shall be declared null and void by law. The entrepreneur shall then be obliged to reemploy the affected worker.
- Or is obliged to continue paying the salaries and entitlements cf. Article 155.

Article 155
Any termination of employment without the decision of the institute for the settlement of industrial relation disputes as referred to under subsection (3) of Article 151 shall be declared null and void by law.

(2) As long as there is no decision from the institute for the settlement of industrial relation disputes, both the entrepreneur and the worker/ labourer must keep on performing their obligations.

The entrepreneur may violate what is stipulated under subsection (2) above by suspending the worker/ labourer who is still in the process of having his/her employment terminated provided that the entrepreneur continues to pay the worker’s wages and other entitlements that he/she normally receives.
- NO payment has been made to either Second Party, not even that promised by BPK-Penabur in its letter of termination. Furthemore, BPK-Penabur has refused - in writing - to process the documentation necessary for residence and employment in Indonesia.

Article 161
In case the worker violates the provisions that are specified under his or her individual work agreement, the enterprise’s rules and regulations, or the enterprise’s collective work agreement, the entrepreneur may terminate his or her employment after the entrepreneur precedes it with the issuance of the first, second and third warning letters consecutively.
- No such letters were ever issued, nor were discussions held.

Respect for Employees by Employers and Legal Protection

Article 32.2
Job placement shall be directed to place people available for work in the right job or position which best suits their skills, trade, capability, talents, interest and ability by observing their dignity and rights as human beings as well as [providing them with] legal protection.
- BPK-Penabur has long had a reputation for treating its teaching staff, both local Indonesian and expatriate staff, with disrespect and intimidation. The summary dismissals within UPI are but one example.

Article 35.3
In employing people who are available for a job, the employers are under an obligation to provide [them with] protection, which shall include protection for their welfare, safety and health, both mental and physical.
- No health insurance was made available to expatriate staff in BPK-Penabur’s UPI programme from August 2004 - July 2006. During this period, at least one employee of UPI was summarily dismissed because of his ill health.

Article 86
Every worker has the right to receive:

• Occupational safety and health protection;
• Protection against immorality and indecency;
• Treatment that shows respect to human dignity and religious values.

- TC was fired during the Muslim fasting month, just prior to Idul Fitri. It was known that his family are Muslim.

Repatriation

Article 48
Employers who employ workers of foreign citizenship are under an obligation to repatriate the workers of foreign citizenship to their countries of origin after their employment comes to an end.
- At no time has BPK-Penabur complied with this Article, not even for three teachers recruited in Australia.