By
Ratno Cahyadi Sembodo
&
Hesti R. Wijaya

Indonesian women homebased workers

 

I.  Introduction

For more than 15 years advocacy empirically effort to protect home-based workers officially has been done in Indonesia to no success

This leads Homenet Indonesia to analyze the existing labor Laws that normatively covers and protect this workers. It is important to note that home-based workers are invisible yet reality they are there. Home-workers have established a working relation with their employers between workers and workers and between workers and their superiors the major problem is whether they are recognized by law and obtain their rights as workers stated by Soepomo (1985). The latter stated that labor laws is a set of rules and regulation, verbal on written, related to evidence where by a person works for other person and receive some pay in return.

Refer to the 1996 ILO convention on Home-workers that is equivalent to international treaty defines home-workers as follows :

This article explores this issue particularly related to the latest Indonesian Labor Law (Law No 13/2003) organized as follows. Characteristics of home-workers is describe in part II. Part three analyzes Home-workers Law protection within the Indonesian labor laws. Conclusion is descript at the end of this article.

 

II. Characteristics of Home-workers

Home-workers show specific characteristics, which is different remarkably from workers in the factory of a manufacturing industry whose establishment belongs to the factory owners.

In Indonesia however, we notice threes type of home-based worker :

To mention several characteristics similarity of the three type of workers are :

The differences between then are as follows

Within the above mentioned characteristic, we can only pursue how the existing lows can accommodate the home-workers particularly in POS

 

 

Protection to home-based worker within the Indonesian Law for workers.

Taking into can of its characteristics, the working relation pattern between home-based workers and their immediate employer is specific. It features are distinct from employer-employee relation in the industrial sector or formally registered companies, such as :

 

We learn that this characteristics turn out to be not easily be fitted in the new Indonesian labor law. The main question is whether rights as workers are met and that a working relation pattern of the labor law and the expectation that home-workers are protected are provided, is in that the same time. Or, the working relation pattern fall outside the existing Labor law.

At glance, reading the definition only, it seems that the latest Indonesian Law (Law No. 13/2003) regarding Manpower covers the home-workers. Chapter 3, bullet 3 that reads :

“A worker a laborer is a person who work and receiving a wage or a return in other forms”

Applies to home-workers since they work for pay. This definition is consistent with other law which is ……………. For example, number 9 of chapter 1 Law 2/2004 regarding the Industrial Relation Dispute solving similarly read in the Law No. 21/2000, chapter 1, number 9 concerning Labor Union/Workers Union.

The consistency of this definition also applies within Law No. 3/2003 it self. In chapter 1 no. 4 it is define that :

Work provider is an individual or entrepreneur, corporate body or other type of institution that employ worker and pay by wage or other form of return.
Again, it fits with the home-workers intention to work for a pay.

Further definition is put forth regarding entrepreneur (chapter 1, number 5, Law No. 13/2003) which read :
“An Entrepreneur is :

An enterprise is also defined (chapter 6, number 6, Law No. 13/2003) :
“An enterprise is :

It seems that generally these definition should cover not only the employers, but also the middle person employing women home-workers.

In addition, those definition also consistent with other laws, such as :

It implies that entrepreneurs/employers who employ home-workers are included in the above mentioned definition. Because it applies to both type of employers, registered and or non-registered as one long as they employ other people in the production process.

However, at the empirical level, usually the entrepreneurs do not admit transparently that they employ home-workers. This is very much possible since the production process is not done in the factory establishment, but in the house of the home-workers away from the entrepreneur  establishment . In the mean time, the working contract supposedly is covered within the real of Law No. 13/2003 that states :

“Working Contract is an agreement between workers/laborers with employer or work provider that covers work conditions, rights and responsibilities of all parties.” (Chapter 1, no. 14)

It can be perceived more over that this definition is broader than the coverage of labor laws in the past. In particular it explicitly it state that working contract is not only applies to laborers/workers with employer, but also between the workers/labors with work provider which in the case of POS it is the middle person. The main difference between the two lies on enterprise ownership. Entrepreneurs may own the enterprises, while the work providers are not necessarily enterprise owners.

Unfortunately, it seems this chapter is nullified by chapter 1, no. 15, Law 13/2003 which reads :

“Working relation is relation between entrepreneurs and the workers/laborers, based on working contract that spells out items of work, wage and order,”

Coupled further with that of chapter 50 :

“Working relations occur because the existence of working agreement between entrepreneurs and workers/laborers.”

Taking this definition in to consideration, the value of protection to home-workers comes to nothing, because this is precisely home-workers are not accounted for. Based on the above mentioned definitions within Law 13/2003, that working relations only exist before the law when there is a working agreement between employer and employee.

Based on the empirical evidence of common practice, whether home-workers have working agreement leading to working relation between employer and home-workers as employees is perplexing. Normatively, Soepomo (1985 and Djumialdji, 2002) for many school of thought believes that working agreement exists when worker/laborers has agreed to work for employers who agree to provide job and receives pay upon job performance. It is not necessarily a written contract (chapter 51, verse 1, Law 13/2003 along this thought reads : “Work agreement maybe a written agreement or a verbal agreement”

The elements of work agreements are :

Exploring further, the working relations within the homework system is a contractual work system. This system cannot be classified as working relations. Rather, it seems fit better with the category of working-contract agreement-relation as reads within chapter 1601b, Book of Civil Rule of Laws as follows :

“Work-contract-agreement is an agreement in which first party, namely the contractor, binding it self to conduct certain kind of work with the second party, namely the contract provider and receive particular payment. It is characterize with coordination between the employer on one side and the contractor on the other side.”

This contract definition at case with the home-workers-employers relations due to the following characteristics :

By  contrast , when the contractor usually have bargaining power it is not the case with the home-worker.

The home-workers have no bargaining power when it comes to in the terms of the contract agreement. Thus home-working relation cannot be purely classified as a work contract agreement. Perhaps, it is close to than work contract agreement is the element of work agreement which provides a base for a working relation.

Another feature that characterized home-work relation is that the work is very much short term, and replicable continuously. Within long span time, it seems that home-work relation maybe better included in the working relation category. Particular reference is chapter 1601c, verse 2 KUHP (Book of Rule of Civil Law a) which states :

“When a work-contract-agreement is followed with other agreement in which there is with a time gap in between or if during the time of the drafting work-contract-agreement both parties clearly meant to materialize further a number of agreements, such that all work-contract-agreement all together is considered as one work agreement, thus, the one that applies is stipulation regarding all of those agreements similarly applied to each agreement. However if in that case the first agreement is put forth as an experiment, this agreement is considered remain intact as a work contract agreement.”

It is clear that such relation may be categorized as work relation, because it involves leadership element or authority to instruct by employers to workers such as home-workers.

 

Law No. 13/2003 mentions the following definition of wage or pay.

“Wage is the workers/laborers rights in the form of many as return from employers or work provider to the workers/laborers which is determined and paid according to a work agreement, join agreement, or rules of laws, including bonus for workers/laborers and their families upon a job and/or tendered service.”

Definition on wage as such points out work provider as the party who are capable to pay the workers/laborers, this is truly meaningful to cover the case of home-workers in the putting out system (POS). It is quite convincing that home-workers in the POS shall be covered in the protection structure of Indonesian labor laws.  Automatically, we may claim that home-workers in the POS are eligible to assume all rights as workers as stipulated in the current labor laws. Consequently, employers denial so far that home-workers in POS shall no longer true. In other works it is now invalid before the law.

In the case of workers in the Putting Out System employ other home-workers, as long as the word laborers is applied, the law remain works to them. This has been already proven empirically during advocacy in the real world.
For the home-workers in the putting out system in particular has district feature, that  it is different from the self-employed workers. The earlier is better suited category of laborers, because they work for the “employer” to obtain payment or wage. The pay is one among other things which is paramount important in the set of workers rights. Luckily, pay is the only element regulated by the Ministry of Manpower :

“for the laborers with contract system on piece rated payment, for over and above month, the minimum monthly wage should be equivalent the minimum wage rate at the said company” (Minister of Labor Regulation No. Per. 01/MEN/1999) Chapter 15, verse 1.

We believe that price rate has become explicitly mention in this derivative is the …of our .. of advocacy on hand workers to the ministry of manpower. Although the term of home workers is neither specifically nor explicitly mentioned, this verse means a lot for the home-workers.. Although it is not an end but only one of a means to an end.
Consequently, other rights as workers should be applied to the home laborers including social security. This has been seriously under taken with the promulgation of implementing regulation No. Kep.150/Men/1999, a Decision Letter of the manpower Minister regarding operation of Social Security Program for Daily Paid Workers, contract laborers and certain time agreement.

Homenet Indonesia will work based on these derivatives, as these are not annulified by Workers Law No. 13/2003. As for the self-employed workers, although it does not fit within the structure of workers law, they are supposed to be covered for social security using (Law No. 3/1992, regarding Workers Social Security, Chapter 3 verse 2 says:

“Every worker has rights to obtain worker social rights.”

Its mechanism for the implementation is organized by and under the responsibility of PT Jamsostek (Workers’ Social Security Limited Enterprise). However, it is not readily available to them because, the same Law, that is Law No. 3/1992, Chapter 4, verse 2 states :

“Workers Social Security Program for workers who do works outside working relations will be regulated further under a Government Regulation.”

So far, there has not been any regulation as such stipulated by the Government yet. For Homenet Indonesia this is also area to continue for advocacy work.

 

Conclusion

Although empirically it has not been observed in practice, and technically Home-workers is not specifically mentioned by the laws, we claim that the workers (or laborers/in the putting-out system they existing laws is opened to cover their protection. It implies that a lot still has to be done to make social protection in general, and Social security in particular be materialized for the home-workers, particularly advocacy to the stake holders.

Important also to be noted is the question of : “Who is the employer?” as they the employer invisible for the home-workers, and in the case “immediate employer”, denying the responsibility.

For the self-employed workers the advocacy should be directed to the drafting and stipulation of social security program for workers outside working relation in compliance with Law No. 3/1992, chapter 4, verse 2. In the meantime, to fill the gap indigenous social protection may should be continued.