Male and Female Employees must be treated with equality at the workplace. Pursuant to the role of women in society, as well as specific biological needs, the Manpower Laws in Indonesia ensures that female Employees are provided certain rights and benefits, to ensure the well-being of the Employees.
In general, the prevailing laws and regulations concerning Manpower in Indonesia, spear-headed by the Law No. 13 of 2003 concerning Manpower (“Manpower Laws”) determine equal rights and obligations for male and female Employees. The equality is seen in the provisions in Manpower Law concerning working hours and overtime regulations; rest and leave period and procedure; annual leave period and procedure; social security rights, as well as the policy for wages are the same for both genders.
However, there are additional benefits and rights allowed for female Employees pursuant to their expected role in society, as well as different biological needs. In total, the Manpower Law stipulates 7 (seven) provisions which specifically apply only for female Employees, such as:
Article 76 of Manpower Law provides protections for female Employees concerning night work (kerja malam), as follows:
Article 81 of Manpower Law stipulates that female Employees who feel pain during their menstruation period and notify their Employer of such are not obliged to come to work on the first and second day of their period.
The implementation of this provision shall be regulated in Employment Agreement, the Company Regulations, or Collective Labor Agreements. Even so, Employers are still obliged to pay their wages even if they take leave for menstrual pain.
The Manpower Law gives the right for female Employees to take 1.5 months off before the estimate time at which they are expected to give birth and additional 1.5 months thereafter (subject to doctor’s certificate). During the maternity leave both pre-birth and post-birth, Employers are still obliged to fully pay the Employee’s wages.
Female Employees are provided special opportunity to breast-feed their babies if that must be performed during working hours according to Article 83 of the Manpower Law.
Article 153 of Manpower Law stipulates that Employers are prohibited to terminate the employment of female Employees under the reason that they are absent from work due to pregnancy, baby delivery, miscarriage, or breast-feeding. Termination of employment for such reasons shall be declared null and void by the law and the entrepreneurs are obliged to reemploy the affected Employee.
Employers are not allowed to force female Employees to resign because they are pregnant. This is due to the fact that pregnancy is not a valid reason under the law to terminate employment of female Employees, even though it has been agreed beforehand.
In addition, resignation must be based on the Employee’s own will with no indication of being pressurized or intimidated by the Employer. Therefore, an agreement which contains provision that Employees will be dismissed if they are pregnant does not have legal ground and must be considered null and void.
Consequently, although it is written on the agreement that female Employees to get pregnant during a certain period of time, Employers are not allowed to fire pregnant Employees during that specific period because it is inconsistent the law and the rights of women.
Based on Article 6 of the Manpower Law, every worker/laborer has the right to receive equal treatment without discrimination from their employer. Hence, enterprises are prohibited to do any kind of discrimination between male and female Employees, such as in the terms of retirement age.
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To ensure a smooth investment and business operation from the legal perspective, but also still focus on maintaining your business in Indonesia and reach your revenue target, it is advised for you to find capable and trusted lawyers or legal consultants for advice and assistance in ensuring your legal compliance with prevailing laws and regulations.
SMART Consulting is an Indonesian Corporate Legal Services firm. SMART has assisted Clients in dealing with matters related to Manpower Law, such as drafting, reviewing and registering the Employee Toolkit, including Employment Agreement, Collective Labor Agreement, and Company Regulations. We also provide advisory services regarding Employment matters, as well as assistance in conducting termination of employment and manpower dispute resolutions.
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