Indonesia: Briefing to the UN Committee on the Elimination of Discrimination against Women: Women and girl domestic workers

Report
January 1, 2011

Indonesia: Briefing to the UN Committee on the Elimination of Discrimination against Women: Women and girl domestic workers

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In 2003 the Indonesian government passed the Act Concerning Manpower (Manpower Act, Law 13/2003) to protect the rights and interests of both employers and employees. The Act contains provisions for key workers’ rights including minimum wage and equal remuneration, limitations on working hours, leave, and the right to join a trade union. It also contains provisions for the specific needs of women, including maternity leave, and the regulation of child labour. It enunciates arrangements for termination of employment and for industrial dispute resolution, and specifies criminal and administrative sanctions for the violation of provisions in the Act. However, despite the welcome expansiveness of the sentiments in the preamble,(24) the rights provided for in the Act are not extended to all workers in Indonesia, and domestic workers are among those excluded from its protections. Similarly, the provisions in the Manpower Act relating to dispute resolution mechanisms do not apply to domestic workers.

The Manpower Act makes a distinction between two entities that employ people – "employers" (pemberi kerja) and "entrepreneurs" (pengusaha). An "employer" is defined as "individual, entrepreneur, legal entities or other entity that employ manpower by paying them wages or other forms of remuneration." This definition clearly would include employers of domestic workers. An "entrepreneur" is then defined as "an individual, a partnership or a legal entity that operates a self-owned enterprise… [or] a non-self-owned enterprise," and an enterprise is "every form of business" or "social or other undertakings with officials in charge."(25) A domestic household would not fall into the definition of an enterprise, and therefore domestic workers do not qualify as being employed by entrepreneurs.

All protections of key workers’ rights in the Manpower Act, such as the rights listed above, are specified to apply only to the employees of "entrepreneurs". Therefore, domestic workers, and other workers whose manner of employment does not fall within the definition of employment by "entrepreneurs", are excluded from the protections of fundamental workers rights which are extended to other workers in Indonesia. Domestic workers - of which the overwhelming majority are women and girls - are consequently left with little or no legal protections of their employment rights.(26)

The Manpower Act does contain a small number of provisions relating to the obligations of "employers", but most of these do not provide for the rights of any worker they employ. Only one sub-section of one provision, Article 35(3), describes the obligations of an "employer" vis-a-vis an employee, stipulating that in employing people, the employers are "under an obligation to provide protection which shall include protection for their welfare, safety and health, both mental and physical." Violation of this provision does carry a specified penalty of "a criminal sanction in jail for a minimum of one month and a maximum of four years and/or a fine of a minimum of Rp10,000,000 and a maximum of Rp400,000,000."(27) However, without any clear benchmarks or details, these vague concepts are open to varying interpretations and signify a huge and discriminatory divide from the wide range of specific provisions protecting the rights of the employees of "entrepreneurs" under other articles of the Act. Furthermore, in practice this provision has meant little to the daily reality of Indonesia’s domestic workers. Amnesty International is concerned that the limitations and vagueness of article 35(3) do not provide domestic workers with a solid legal basis on which to claim minimum wage, reasonable working hours and other benefits and conditions guaranteed to other workers in Indonesia under the Manpower Act.

Draft law on domestic workers