Overview of Settlement of Employment Termination Disputes
Between Fishing Companies and Crew
By: Andress Deny Bakarbessy
Abstract
The settlement of employment termination disputes between fishing companies and crew members can be hampered by the dualism of the laws that regulate it, namely: Law Number 2 of 2004 concerning the settlement of industrial relations disputes, which gives authority to the Manpower Office as a third party, and the Commercial Code which gives authority to the Harbor Master as a third party. In this regard, a legal principle is needed to avoid conflicts between the two provisions.
Keywords: Termination of employment, Crew members, Fishing companies
A. Background
Indonesia is an archipelagic nation. This is because its maritime territory is larger than its land area. Indonesia's maritime territory possesses significant natural resources with significant potential for economic growth and national prosperity, one of which is fisheries. This has led to the establishment of numerous fishing companies in Indonesia, which has led to the creation of employment opportunities for Indonesians, both as employees and as crew members.
Along with the development of fishing companies in Indonesia, various disputes/conflicts have also emerged between employers and their workforce, especially crew members, which are referred to as industrial relations disputes.
The government in this case has established a guideline for resolving disputes between workers and employers based on Law No. 2 of 2004 concerning the Settlement of Industrial Relations Disputes, this law gives authority to the Department of Manpower and Transmigration as a third party at the mediation level in the process of resolving disputes between workers and employers. However, in relation to the employment relationship between employers and ABK, it can be seen that the basis of the employment relationship made between ABK and fishing companies is PKL (Sea Work Agreement) which is regulated in the KUHD, and gives authority to the Harbor Master as a third party in the process of resolving disputes between ABK and employers.
This shows that there are two arrangements in the process of resolving layoffs carried out by fishing companies against ABK, as well as the existence of 2 (two) parties as third parties in the process of resolving layoffs carried out by fishing companies against workers (ABK).
B. Problems
Based on the above explanation, the quite fundamental problems related to the process of resolving the layoffs of fishing companies against ABK are: what is the authority in resolving the issue of layoffs between fishing companies and ABK, as well as the legal basis in the process of resolving disputes/disputes on layoffs between fishing companies and ABK.
C. Authority to settle disputes regarding layoffs between fishing companies and crew members
1. Authority of the Department of Manpower and Transmigration
Article 1 number (15) of Law No. 13 of 2003 concerning Manpower states that an employment relationship is a relationship between an employer and a worker/laborer based on an employment agreement, which has elements of work, wages, and orders. So, an employment agreement is the basis for creating a legal relationship between workers and employers. The relationship between workers and employers can be disrupted and has the potential to cause disputes, if one party does not carry out their rights and obligations in accordance with what has been agreed in the employment agreement.
Article 1 number (1) of Law No. 2 of 2004 states that industrial relations disputes are differences of opinion that result in conflict between employers or associations of employers and workers/labor unions (labor unions) due to disputes regarding rights, interests, termination of employment and disputes between labor unions within one company. Furthermore, Article 2 states that the types of industrial relations disputes include; disputes over rights, disputes over interests, disputes over termination of employment and disputes between labor unions within one company.
The process of resolving industrial relations disputes can be carried out through bipartite mechanisms, mediation, conciliation, and arbitration. Furthermore, Article 8 of Law No. 2 of 2004 states that dispute resolution through mediation is carried out by mediators at each district/city office responsible for labor affairs. Therefore, it can be seen that the Department of Manpower and Transmigration is the third party in the dispute resolution process between workers and employers at the mediation level.
Meanwhile, the basis of the employment relationship created between fishing companies and crew members is the PKL (Sea Work Agreement) which is regulated in the KUHD (Commercial Law Code). Article 395 of the KUHD states that the PKL (Sea Work Agreement) is an agreement made between a ship owner on one side and a worker on the other side, whereby the latter party agrees to acting under orders the businessman doing work with get paid, as captain or crew member. Thus, it can be seen that a PKL also fulfills the elements of a general employment agreement, namely: work, orders, and wages. Based on this, it can be concluded that the Department of Manpower and Transmigration also has the authority to resolve disputes between fishing companies and crew members, based on Law Number 2 of 2004.
2. Authority of the Harbor Master
a. The Influence of ABK Special Characteristics
The authority of the Harbor Master is based on the working relationship created between the Company and ABK based on PKL. According to Kunthoro et al., (1999:20) ABK and PKL have special characteristics, so that regulations regarding ABK and PKL are separate from regulations regarding workers or work agreements in general.
The special characteristics of an ABK in carrying out work on a ship is that they must fulfill certain requirements, including:
1). Minimum Age, in Article 17 b of PP Number 7 of 2000 concerning maritime affairs, it is stated that to be able to work as a ship's crew member you must be at least 18 years old.
2). Health Checks, in PP No. 7 of 2000 concerning Maritime Affairs in Article 17 c, it is stated that a ship's crew member must fulfill the requirements, be physically and mentally healthy based on the results of a health check specifically conducted for that purpose.
3). Maritime Certification, in articles 4, 5, 6 and 14 of PP Number 7 of 2000 concerning Maritime Affairs, it is stated that maritime certification consists of a seafarer's expertise certificate and a seafarer's skills certificate.
These are the things that differentiate workers in general from someone who works on a ship (ABK).
b. The influence of the specific characteristics of PKL (sea work agreement)
Meanwhile, the special characteristics of PKL are:
First: The PKL made by ABK with the company is a PKL made in writing, and must be made with an authentic deed in front of an authorized government official, in this case the Harbor Master (Article 400 paragraph (1) of the Commercial Code). Meanwhile, the PKL for the captain or officer is sufficient to be made in writing between the person concerned and the ship's operator (Article 399 of the Commercial Code).
Secondly,: is about the regulation of the workplace and the place where the dispute occurs. In PKL, the workplace is regulated, which is on a ship and is always moving, it cannot be ascertained where the destination area is, and where the dispute occurs cannot be determined (Djumadi, 2006: 83, 85). This greatly influences the provisions used as the basis for resolving disputes that occur. For example, if the PKL is made in Ambon, while the dispute occurs in Surabaya, then the parties cannot bring this issue to the Ambon City Manpower and Transmigration Office to resolve it.
Thus, it can be concluded that the Harbor Master has the authority as a third party in the dispute resolution process between ABK and fishing companies, due to the special characteristics possessed by ABK and PKL.
3. Review of the Authority of the Manpower and Transmigration Office and Harbor Master
Regarding the dualism of regulations regarding the dispute resolution process between fishing companies and crew members, as well as the dualism of authority as a third party in the settlement process, according to Mertokusumo (2006: 25), in a legal system there is interaction between elements or parts, this interaction allows for conflict to occur. However, the legal system does not want conflict to occur between elements or parts, but if a conflict occurs, it is consistently resolved by the legal system by providing legal principles. Thus, regarding the existence of two regulations regarding the dispute resolution mechanism between fishing companies and crew members, the solution is to use legal principles.
It has been explained that ABK and PKL have special characteristics compared to workers and employment agreements in general. Furthermore, Article 1 of the Commercial Code states that the Commercial Code is a special provision to the Civil Code. Meanwhile, Article 396 of the Commercial Code places the regulation of PKL in the Commercial Code as a special provision compared to the provisions in Book III of the Civil Code in Chapter VII A, which regulates agreements to carry out work. This shows that the provisions of PKL in the Commercial Code have a special nature.
Meanwhile, the provisions regarding disputes referred to in Law No. 2 of 2004 are general in nature, where it does not explain a dispute related to a specific job. This also shows that Law No. 2 of 2004 is a general provision. Thus, it can be seen that the Commercial Code and Law No. 2 of 2004 are equal provisions, regulating the same object, namely the process of resolving layoffs between companies and workers, but the provisions in the Commercial Code are specific because they specifically regulate layoff disputes between fishing companies and crew members. Meanwhile, Law No. 2 of 2004 is more general in nature, because it regulates layoff disputes between companies and workers in general.
On this basis, to resolve the conflict between the Commercial Code and Law No. 2 of 2004, the legal principle is used. lex specialis derogat legi generalis (specific regulations override general regulations). Thus, the provisions that should be used as a basis in the process of resolving the PHK between PT Nusantara Fishery and ABK are the provisions in the KUHD, because the KUHD has a special nature while Law No. 2 of 2004 has a general nature.
Meanwhile, according to Manan (2004:57-58), one of the principles that must also be considered in implementing the principles of lex specialis derogat legi generalis is, the provisions lex specialis must be in a legal environment (regime) which is the same as lex generalis. Thus, it is also necessary to determine whether the Commercial Code and Law No. 2 of 2004 are in the same context. Law No. 2 of 2004 is part of the provisions in the field of labor law that regulates the mechanism for resolving industrial relations disputes. Initially, labor law was part of private law (regulated in the Civil Code), but due to the existence of socializing process That is, the process by which public law evolves into private law, which limits individual freedom. This has resulted in labor law, which was originally part of private law, no longer being purely private (civil) law due to the government's intervention in labor law regulations to provide protection for workers as the weaker party (Supriyanto, 2004: 4). Thus, labor law is a mixture of private law and public law.
Meanwhile, it can be seen that the Commercial Code (KUHD) is included in the private (civil) legal environment. However, a more in-depth study of the KUHD, especially those regulating street vendors, also shows government intervention in the creation of street vendors, as well as supervision of their implementation, to protect the rights of ABK (workers). Therefore, according to the author, street vendors are not purely private/civil regulations. Thus, according to the author, the provisions regarding street vendors regulated in the KUHD are also a mixture of private and public provisions.
Furthermore, with the enactment of Law No. 21 of 1992 concerning Shipping and Government Regulation No. 7 of 2000 concerning Maritime Affairs, the position of provisions in the Commercial Code relating to shipping has increasingly shifted towards public law. In the general explanation of the Shipping Law, it is explained that the provisions contained in other laws relating to shipping, such as the Commercial Code, are laws that have a very close relationship with this law.
Furthermore, in Article 18 paragraph (2) of PP No. 7 of 2000 concerning Maritime Affairs, it is stated that the maritime work agreement (PKL) must contain the rights and obligations of each party and be in accordance with the provisions of applicable laws and regulations. Where the PKL made between the fishing company and ABK, contains the rights and obligations of the entrepreneur and ABK as regulated in the Commercial Code. This shows that there is a correlation between the Commercial Code and Law No. 21 of 1992 and PP No. 7 of 2000.
Thus, it can be seen that the provisions regarding street vendors are a mixture of public law and private (civil) law. Based on this, according to the author, the legal principle lex specialis derogat legi generalis can be used to resolve conflicts between the Commercial Code and Law No. 2 of 2004, because both provisions have a public nature.. Thus, the provisions that should be used as the basis for resolving disputes between ABK and fishing companies are the KUHD, which are provisions (in this case the law) that are special in nature, and the authority as a third party is the Harbor Master.
4. Review of the Specific Characteristics of Street Vendors and Crew Working in Fishing Companies
Meanwhile, if a more in-depth review is carried out on the special characteristics possessed by ABK and PKL who work in fishing companies, it turns out that ABK and PKL who are created by fishing companies do not have the special characteristics of ABK or PKL in general.
a. Review of the Special Characteristics of ABK
Article 41 paragraph (1 and 2) of Government Regulation Number 7 of 2000 concerning Maritime Affairs states that, a captain and several ship officers Fishing must have certification of basic skills and expertise for seafarers, and there are no regulations regarding certification for ABK.
Thus, it can be seen that, for fishing vessels, only the captain and certain ship officers are required to have maritime certifications, while the crew are not required to have maritime certifications.
Meanwhile, in today's employment landscape, it is known that to occupy a strategic position in a company, such as a manager, a person must possess certain qualifications. Working as a regular employee in a company does not require as many qualifications as a manager. This demonstrates the similarities between the recruitment process for officers on ships and leaders in a company, as well as for ordinary workers and crew members. To become a regular crew member on a ship, or a regular worker in a company, no specific certification is required. While certification is required to become an officer on a ship, similarly, to occupy a managerial position in a company, certain qualifications are also required. Therefore, the uniqueness of a crew member, in terms of qualifications and requirements, can no longer be considered unique to crew members working in fishing companies.
b. Review of the Special Characteristics of PKL
1) PKL must be written and made in the presence of a government official.
The specificity of a PKL is that the PKL must be written. For ABK, it must be made with an authentic deed before an authorized government official (Article 400 paragraph (1) of the Commercial Code). According to the author, this is a positive benefit of PKL, namely to ensure that the rights and obligations of the parties can be known and understood and implemented by the parties. In addition, the author assumes that it would be good if this specificity was not only applied to PKL, but also applied to the creation of work agreements in general.
2) Related to the Workplace.
Another specificity of PKL is that, in PKL, the workplace is regulated, which is on a ship and is always moving, it cannot be ascertained where the destination area is, and where the dispute occurs cannot be determined. For example, ABK who work for a shipping company, where the destination of the shipping company is always moving from one place to another, so when and where a dispute occurs between ABK and the company is uncertain, so that if a dispute occurs in an area other than where the PKL was made, then the KUHD is used as the legal basis and the harbormaster as the mediator. For example, if the PKL was made in Ambon, while the dispute occurred in Surabaya, then the parties cannot bring this issue to the Ambon City Manpower and Transmigration Office to resolve the dispute.
Meanwhile, in fishing companies, this specificity is not apparent, where the fishing company's purpose in sailing is known to be to catch fish in fishing areas located in Indonesian waters. For example, the fishing company - PT Nusantara Fihery, which has an office in Ambon City, its destination is clearly known, namely from its base in Ambon City to fishing areas (for example, in the Banda waters), after which it returns to its base in Ambon City. So if a dispute arises between the crew and the captain or the company, the location of the dispute can be determined. If a dispute arises while the vessel is conducting fishing operations at sea, the resolution process can be carried out after the vessel returns to its base or office in Ambon City.
Thus, regarding crew members working for fishing companies like PT Nusantara Fishery, the specific characteristics of street vendors are not apparent. Based on this, the author believes that the specific characteristics of crew members and street vendors in general are not inherent in crew members working for fishing companies, or in street vendors established between fishing companies and crew members. Instead, what is apparent in crew members and street vendors established with fishing companies is that they more closely demonstrate the characteristics of a typical worker.
Regarding this reality, according to Soekanto, the implementation of the principle lex specialis derogat general laws not only limited to special provisions that override general provisions (of the same level), where for special events the law that mentions the event must also be applied, even though for the special event a law can also be applied that mentions a broader or more general event, which can also include the special event (1983:12). While still based on the principle lex specialis derogat general laws related to the dualism of regulations regarding the process of layoffs by fishing companies against ABK, then general provisions (Law No. 2 of 2004) and specific provisions (KUHD) can be used together to fill the legal gap in resolving what occurs between ABK and the Company, by involving the Harbor Master and the Manpower and Transmigration Office together as a third party or mediator at the mediation level.
D. CONCLUSION:
Based on the discussion above, the following conclusions can be drawn:
There are two parties who feel they have the authority to resolve disputes between fishing companies and crew members: the Department of Manpower and Transmigration, authorized by Law No. 2 of 2004, and the Harbor Master, authorized by the Commercial Code. In this case, the legal basis for resolving this issue is: lex Spesialis derogal legi generali (specific provisions override general provisions), which is not only limited to specific provisions overriding general provisions, but for special events, laws can also be applied that mention broader or more general events, which can also include the special events. Thus, in the process of resolving the layoffs of fishing companies with ABK, the settlement can be based on the Commercial Code with Law No. 2 of 2004 together, by involving the Harbor Master and the Department of Manpower and Transmigration as third parties in the settlement process.
SUGGESTION :
The government needs to create separate provisions that regulate issues related to maritime affairs and employment, outside the provisions in the Commercial Code and Law No. 2 of 2004, which specifically regulate the working relationship created between fishing companies and crew members, and include clarity on the relationship between the Harbor Master and the Department of Manpower and Transmigration.
BIBLIOGRAPHY
A. Book
Djumadi. 2006, Labor Law – Employment Agreement, PT Raja Grafindo Persada, Jakarta
Kunthoro et al. 1999, Analysis and Evaluation of the Law on the Protection of Crew Members (ABK), National Legal Development Agency - Department of Justice and Human Rights
Manan, Bagir. 2004, Indonesian Positive Law (A Theoretical Study), FH UII Press, Yogyakarta
Mertokusumo, Sudikno. 2006, The Discovery of Law an Introduction, second edition, fourth printing, liberty, Yogyakarta
Soedjono, Wiwoho.1983, Supporting Facilities for Maritime Transportation, PT Bina Aksara, Jakarta
1987 Maritime Labor Agreement Law, PT Bina Aksara Jakarta
Soekanto. Soerjono, 1983, Factors Influencing Law Enforcement, PT Raja Grafindo Persada, Jakarta
Supriyanto, Hari. 2004, Changes from Private Law to Public Law, Study of Labor Law in Indonesia, Atmajaya University, Yogyakarta
Subekti and Tjitrosodibio, 2003, Civil Code, thirty-second printing, Revised Edition, Pradnya Paramita, Jakarta
2003 Commercial Law Book, twenty-eighth printing, PT Pradnya Paramita, Jakarta
Triyanto, Djoko. 2005, Working on a Ship, Mandar Maju, Bandung
B. Legislation
Law No. 21 of 1992 concerning Shipping
Law No. 13 of 2003 concerning Manpower
Law No. 2 of 2004 concerning Settlement of Industrial Relations Disputes
Government Regulation No. 7 of 2000 concerning Maritime Affairs
