QUESTION: Was the Union
(of Labor) need to take any Power of Attorney (PoA) from its member to sign the
Collateral Agreement about layoff?
BRIEF OF ANSWER: Unfortunately, no
definite answer, very dependently which Industrial Labor Court (PHI)
jurisdiction domain of the company/factory. PHI Jakarta requires such PoA, but
PHI Bandung (West Java) didn’t requires such a thing. There is grey
area in labor law. Technical institution usually derogate the general
provision that regulated by government.
EXPLANATION:
- Law number 13 of
2003, Art 104 is about Union, but didn’t clarified anything.
- Law number 21
of 2000 about Union, in Art 17 noted that the employee could
terminate his/her members of Union in written consent. Art 25à Union have rights to represent the employee in industrial
dispute settlement.
- Law Number 2 of
2004 about Industrial Dispute Settlement, Art 87 noted that Union could act as
authority in law before the PHI, as representative of its member. Art 2à one of industrial dispute settlement were about layoff.
If the object of Collateral Agreement is about layoff, it means Union have the
right to sign and registering it to PHI. Art 7 regulated that the Collateral
Agreement signed by both parties have to be register to PHI, but in the
implementation, even just by one party could be accept by
PHI. There is no provision about time period to register after the
signed of the Collateral Agreement. So, if the company didn’t fulfill that
agreement, the Union still can registering it and request for the execution. By
that way of mind, PHI didn’t required both of the parties registering it.
- According/based
on my experience and survey, there is variety discretion doing by the technical
institution such as PHI. Minister of Employment said there is need not any
PoA for the Union to sign Collateral Agreement, but PHI Jakarta make PoA as one
of the requirements to register the agreement. But, PHI Bandung in the
same time said, the Union didn’t required to get any PoA from its member.
Technical institution usually breach the general institution regulation.
- In the
practice to implement that knowledge, if the factory locate in West Java (even
the law number 2/2004 Article 7 paragraf (3) said that the jurisdiction of PHI
is where the Collateral Agreement sign by both parties, because the
company could be different city than the factory, but the implementation is the
factory location determines which PHI have it jurisdiction) it means the Union
didn’t have to take any PoA from its member, except the Union also
represent the non-member employees—in this case, the judge in the cout if the
dispute going into before the judges, will asked the PoA from the non-member
employees. But, if the factory located in Jakarta, without any PoA, the Union
cann’t register the Collateral Agreement.
- By the way, the
regulation didn’t mention about Letter of Application to submit that Collateral
Agreement. But, in the practice, it is one of another requirements to submit
the applicaton of Collateral Agreement. So, if you are the representatif
of the company domicile in Jakarta, and than the factory in Bandung (West Java
province), it means you have to go back after making that Letter of
Application. PHI didn’t made any form, because that Letter of Application have
to sign by the director of the company; or if you as a legal concultant, you have
to show the PoA from the company beside that Letter of Application (without
sign by director anymore in that Letter of Application).
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