LEGAL PROTECTION FOR WORKERS CONTRACT AG
LEGAL PROTECTION FOR WORKERS CONTRACT AGREEMENT IN PARTICULAR
TIME BY LAW NUMBER 13 OF 2003 CONCERNING EMPLOYMENT
by
Suwarsit, S.H., M.H., C.L.A
PRELIMINARY
A. Background
The construction work force is one part of the national development undertaken in the
development of Indonesia fully human and the development of Indonesian society to realize a
society that is prosperous, just, prosperous, equitable material and spiritual, based on Pancasila
and the Constitution of the Republic of Indonesia Year 1945 . development of the employment
sector as part of the development of human resources is one part that is integral to national
development as the Pancasila, and the implementation of the Act of 1945, aimed at improving
the dignity, dignity, and human capabilities, as well as self-confidence in order to realize a
society prosperous, just, and prosperous both materially and spiritually. In the implementation of
national development, labor has a role and a very important position as actors and development
objectives. In accordance with the role and position of labor, manpower development is required
to improve the quality of employment and participation in the development and improvement of
the protection of workers and their families in accordance with human dignity.
The protection of labor is intended to guarantee the basic rights of workers / laborers and
ensure equality of opportunity and treatment without discrimination on any ground for the
welfare of workers / laborers and their families with regard to the progress of the business world.
One of the manifestations of the increase in value and dignity to the workers / laborers are
protection of the rights of workers / laborers either agreed in the Employment Agreement and set
forth in the Company Regulations or Collective Labor Agreement.
Especially with regard to employment agreements, rights and obligations of workers /
laborers with employers on a reciprocal basis is already detailed in the Employment Agreement
and Collective Labor Agreement. Despite clear and detailed and explicit, but sometimes they
often lead towards an industrial dispute.
Industrial relations is a system of relationships formed between the actors in the production
process of goods and / or services consisting of elements of the employer, workers and
governments that are based on the values of Pancasila and the 1945 Constitution of industrial
relations is a balance between the objectives and the interests of workers and employers in the
process of production of goods and services in an enterprise. This means that workers and
employers individually and collectively have a purpose and a common responsibility, because
the success of industrial relations, both workers and employers would benefit both individually
and within the organization.
From the point of legal history, the nation entered a phase marked by the development of the
welfare state laws that protect the weaker party. At this time the state started to pay attention to
include labor protection, consumer protection, protection of small businesses and environmental
protection. Act relating to the protection of the various parties to correct for industrialization
which is not always a benefit to all segments of society. Besides, the intense competition in the
labor market and a severe economic crisis makes the workers did not have the courage to fight
for the improvement of their fate. Capital always move to where there is cheap labor and
enforcement of labor laws are lenient. This is the need to reform labor law.
According to Zainal Asikin, the legal protection of workers from the employer's ability
fulfilled if the regulations in the areas of labor that require or compel employers to act like in the
legislation is properly applied all parties for the enforceability of the law can not be measured by
juridical alone but measured sosilogis and philosophical , The significance of the legal
enforceability sociologically can be interpreted that the law always keep pace with changes in
society (law in action), while the legal enforceability of the philosophical meaning that the law
should be able to provide fairness, certainty and benefits for society in accordance with the
purpose of the law itself.
Implementation of industrial relations in the company are always influenced by the
dynamics of the community so that the implementation is always facing challenges and obstacles
and the effect on conditions of employment which changes from time to time. Broadly speaking,
the problems that occur in the employment relationship affected the industrial relations, among
others, include technical understanding of legislation in the area of industrial relations on the
nature of the employment relationship, the problems of labor agreements on which the issuance
of a working relationship that is set on the rights and obligations of the parties, the use of a
particular time work agreement for all kinds of jobs and the trend of using contract workers, and
remediation efforts working requirements set forth in the normative provisions.
In Article 50 of Law Number 13 Year 2003 on Manpower (hereinafter Labor Law) explained
that the employment relationship occurs because of the labor agreements between employers and
workers. Both workers and employers alike have an important role in working relationships with
each other and can not be separated. Workers as owners of power, skill, and expertise needed
work to make ends meet, while the entrepreneur as the owner of capital requires manpower to
run the production process. In this case the necessary reciprocity in harmony in order to create
synergies to drive the economy.
Furthermore, in Article 56 of the Labor Law states that agreements made for a certain time
or for an unspecified time. A work agreement for a specified time (hereinafter referred to PKWT)
is based on the time period or the completion of a particular job. A work agreement for a
specified time can only be made for specific jobs by type and nature of the job will be completed
within a specified time. However, based on the facts on the ground show there are still many
companies that do not implement the provisions contained in the Labor Law.
In the field of employment concerning the subject of labor relations, there are still many conflicts
of interest among workers / laborers with employers mutually defend their own opinion as the
system of contract labor (PKWT), determining the amount of the minimum wage, social security,
which until now the classic problem can not be solved properly.
That's necessary role for government to address the issue of labor / employment through
various legislations. It is intended to provide legal protection of the rights and obligations of
employers and employees / workers. If the relationship between workers and employers is still
left entirely to the parties (workers and employers), then the purpose of labor law to create social
justice in the field of labor will be very difficult to achieve, because of the strong will always
want to dominate the weaker side (homo homoni lupus ).
In this dissertation the author will examine and analyze the terms and implementation of the
Employment Agreement Specific Time (PKWT) pursuant to Act No. 13 of 2003 on Labour in
Arta Boga Cemerlang PT Jakarta, a company engaged in the distribution of consumer goods.
Arta Boga Cemerlang PT Jakarta held a work agreement for a specified time by the workers who
will be hired as Sales Promo / Merchandiser (mode) which will care for and displaying items in
the outlet area of Jakarta, Bogor, Depok, Tangerang and Serang. The working relationship with
PKWT this has caused harm to workers, because the position of workers (mode) were weak and
simply resigned themselves accept the terms and conditions that have been created by the
company as stipulated in the standard contract. This resulted in a weak legal protection against
contract workers.
Based on the description of the background, the writers gave the title of this dissertation with the
title "LEGAL PROTECTION FOR WORKERS CONTRACT AGREEMENT IN PARTICULAR
TIME BY LAW NUMBER 13 OF 2003 CONCERNING EMPLOYMENT".
B. Problem Formulation
Based on this background, the problem will be formulated as follows:
1. How does the function of Law No. 13 of 2003 on Labour in the implementation of the
Employment Agreement Specific Time to contract workers?
2. What are the obstacles in the implementation of the Employment Agreement for specific time
periods based on Law No. 13 of 2003 on Labor?
3. How does the government efforts to provide legal protection to contract workers?
C. Scope of Writing
The scope of this thesis is about the rule of law and the implementation of the employment
agreement certain time based on Law Number 13 Year 2003 on Manpower related to legal
protection for contract workers.
D. Objectives and Benefits of Writing
1. Purpose
Based on the above mentioned problems, the objectives to be achieved in the writing of this
dissertation is:
a. To determine the function of Law No. 13 of 2003 on Labour in the implementation of the
Employment Agreement Specific Time to contract workers.
b. To find obstacles in the implementation of the Employment Agreement for specific time
periods based on Law No. 13 Year 2003 on Manpower.
c. To determine the government's efforts in providing legal protection for contract workers.
2. Benefits of Writing
Through this research can benefit both theoretically and practically in the development of legal
science in general.
a. Theoretically, the results of this research may give false advice in the development of
knowledge of labor law in general, and in particular on industrial relations.
b. By Practically, this research is expected to provide input to the public in general and PT Arta
Boga Cemerlang in particular, to be able to provide solutions to employment issues.
E. Theoretical Framework and Conceptual Framework
1. Theoretical Framework
The word theory comes from the word theoria, which means the views or insights. The word
theory has various meanings. In general, the theory is defined as the knowledge that exists only
in the mind, not connected with the activities that are practical to do something. In addition, the
theory can mean the opinion expressed as a description of the event or events. The theory can be
used as general legal principles and the basis on which to base a science.
The theory is scientific knowledge that includes an explanation of something specific factors
of a scientific discipline. In the world of science, theory occupies an important position, because
the theory gives a means to be able to summarize and understand the issues better discussed.
Things that initially seemed scattered and stand-alone can be put together and shown in relation
to one another in a more meaningful.
The theoretical framework is a framework or a grain opinion, a theory, a thesis on something
of cases or issues are the subject of comparative theoretical grip.
a. Theory of Legal Protection
Beginning of the rise of the theory of legal protection is derived from the theory of natural
law or natural law school. This stream was pioneered by Plato, Aristotle (a student of Plato), and
Zeno (the founder of the Stoic). According to the flow of natural law states that the law comes
from God is universal and timeless, as well as between law and morality should not be separated.
The adherents of this view that the moral law and is a reflection and rules internally and
externally of human life which is realized through legal and moral.
According to Thomas Aquinas says that natural law is a reasonable provision which comes
from the Lord that aims to favor and made by people who take care of the community to be
disseminated.
The existence and the concept of natural law over the years, there are still many disputed and
rejected by most philosophers of law, but in fact kanyataann writings of experts who reject it,
many use to understand natural laws that may not be realized. One of the reasons underlying the
rejection of a number of philosophers of law to the laws of nature, because they still considers
the search for an absolute matter of natural law, only an act of futile and not helpful.
Occurs different views of the philosophers of acknowlege the laws of nature, but on other
aspects also raises some expectations that the search for the "absolute" is the human desire to be
the essence of justice. Natural law as the rule that is "universal, eternal and absolute force", turns
in modern life would still exist even if proven by the increasing number of people talking about
human rights issues (rights).
According to Von Thomas Aquinas says that natural law is a reflection of the eternal law (lex
naturalist). Long before the birth of the flow of legal history, turns the flow of natural law not
only served as a science, but also accepted as the basic principles of the legislation. The
seriousness of the human race will be longing for justice, it is the essence of the hope that there is
a law higher than positive law. The law of nature has shown, that the real nature of truth and
justice is a concept that includes many theories. Various assumptions and opinions of the
philosophers of law emerge from time to time. In the 17th century, the substance of the law of
nature has placed a universal principle which could be called human rights.
Law serves as the protection of human interests. In order for human interests are protected,
the law should be implemented. Implementation of the law can take place as normal, peaceful,
but can occur also because of a violation of law. In this case the law has been breached it should
be enforced. Through law enforcement is becoming a reality. In upholding the law, there are
three elements that must always be considered, namely the rule of law (Rechtssicherheit), utility
(Zweckmassigkeit), and justice (Gerechtigkeit).
Society as a collection of people who interact based on their individual interests so as to
result in a contact-dimensional dual or avoid each other and closer to each other.
Contact mutually distanced happens when those interests collide (conflict) and vice versa
when the interests of the mutual benefits that arise then are the contacts closer together
(cooperation). So it is easy to understand when every individual in society on the one hand trying
to protect the interests of each of the dangers that may arise, while on the other hand, each person
trying to help each other in the teaching of mutual interest.
Efforts to protect and promote the interests it can be achieved because previously been held
rules that can be sized for any behavior. The regulations require that person to act in society in a
way that the interests of others as much as possible preserved and protected and shared interests
can be developed. The rules are so-called rules or norms.
With so without laws there would be no order and no human order gets messed up because
they do not know where they are going and do not know anyway what will they do. An orderly
system of relations that is the main condition for human life at every level.
To be able to act as a regulator of an authoritative instrument so that it can function
effectively, then the law must be capable of goal-oriented law, which provides fairness, certainty
and expediency.
By adhering to these three elements, the members of the public will voluntarily comply with
the law as the law without being forced by their perceived can protect all members of society and
not just to protect the interests of a handful of people who happen to have a better social status.
Legal protection is very important for the Legal Protection is an element that must exist in a
country. Each state formation in which there is definitely a law to regulate its citizens. Within a
country, the inevitable relationship between state and citizens. A relationship which gives rise to
rights and obligations. Legal protection will be the rights of citizens. On the other hand the legal
protection of a liability of the state. The state must provide legal protection for its citizens.
Especially if we are talking about countries like Indonesia law. Indonesia established itself as a
state of law contained in the Act of 1945, article 1, paragraph 3, which reads: "Indonesia is a
country of law". This means that Indonesia is a state based on law. By itself become an essential
element of legal protection as well as a consequence of the state of law. The State shall guarantee
the legal rights of its citizens. The legal protection is an acknowledgment of the dignity of
citizens as a human being.
According Satjipto Rahardjo, Legal Protection is giving shelter to human rights are harmed
others and the protection given to the people so they can enjoy all the rights granted by law.
The purpose of law version shelter (shelter as a symbol of justice symbolized by the banyan
tree), was found by the Minister of Justice to replace the symbol of justice Sahardjo western
country dirupakan by the Goddess Themis (daughter Quaranos and Gala). According to the
theory aegis of interest law is to protect humans either actively or passively. Actively intended as
an attempt to create a humane social conditions in the process that takes place naturally. While
the definition of passively is to strive for prevention of arbitrary action and abuse of rights.
Enterprises realize the aegis including the a). embody law and order, 2). realize true peace, 3).
justice, 4). justice and social welfare.
Legal protection is the protection of the dignity and worth going to, and recognition of
human rights that are owned by subjects of law based on the provisions of the law of tyranny. In
formulating the principle of legal protection for the people of Indonesia, grounding berpijaknya
is Pancasila as the state ideology and basic philosophy. Recognition and protection of human
dignity is said to be based on Pancasila, because of the recognition and protection against
intrinsically attached to Pancasila. In addition based on Pancasila principles of legal protection is
also rooted in the rule of law.
State law adopted by the State of Indonesia is not in a formal sense, but rather in the sense of
material that is also termed the Welfare State (Welfare State) or "Welfare State".
According Muktie A. Fadjar in his book entitled Type of State of Law, which is a
constitutional state is the state that aims to organize legal order, the order is generally based on
the law contained in the people. State laws to maintain law and order so as not disrupted so that
everything runs according to law. State of Law is subject to state law, the legal regulations are
also applicable to all agencies and state scientific equipment. State law guarantees legal order in
a society that means to give legal protection to the public, between law and power there is a
reciprocal relationship.
When viewed from the ingredients of the legal protection is divided into two, namely the
means of legal protection preventive and repressive means of legal protection. By DR. Philip M
Hadjon, SH with his book entitled Protection Law of the People For preventive means of legal
protection especially closely related to the principle Freis ermessen as a form of legal protection
in general. In this preventive legal protection, legal subjects are given the opportunity to file an
objection or opinion before a government decision received definitive form. The aim is to
prevent disputes. Preventive legal protection is of great significance for the acts of government
based on freedom of action due to the absence of legal protection that is preventive compelled
the government to be cautious in making decisions based on discretion. While repressive means
of legal protection in Indonesia is handled by agencies: Courts in the General Courts,
Government Agencies are an administrative appeal institutions and specialized agencies. This
means that the legal protection was only given when problems or disputes have occurred, so that
the legal protection given by the General Court aims to resolve the dispute. Likewise with other
theories pertaining to legal protection also discussed means of legal protection that are
repressive.
Another embodiment of the means of legal protection that is preventive also can be seen in
the economic field, namely in making the agreement or contract. In civil law we know what is
called the principle of freedom of contract, which is contained in article 1338 Book of the Law of
Civil Law (Civil Code). There it is said that both parties entered into an agreement, can
determine for themselves what the contents of the agreement, and what is contained in the
agreement will be legislation to the parties concerned with the agreement. Therefore an
agreement or contract must be made by mutual agreement of both parties and must represent the
interests of both parties, should not be one-sided. When making the agreement clause should also
be included about the events that are not suspected in the future that may occur, including the
settlement of disputes in the event of a dispute in the future, as well as about the legal options
backfire along both sides. This shows that there is a manifestation of preventive legal protection.
The principle of contractual binding force presupposes the existence of freedom in the
community to participate in the juridical traffic and at the same time it implies the principle of
freedom of contract. If between the parties closed a treaty, would be presupposed the existence of
free will of the parties. In the context of freedom of will also implied equality minimal. In fact,
the equality of economic power from the parties often do not exist. Conversely, if the equality
between the parties is not possible, one can not say their freedom of contract.
The existence of common interests of society require and also define the limits of freedom to
make and close the contract. Having the freedom to agree on anything and with anyone is a very
important thing. Because it is also the principle of freedom of contract are included as part of the
rights of human freedom. Freedom of contract so important, both for the individual, in the
context of the possibility of self-development in their personal lives, as well as in traffic social
life, as well as for controlling or possessing wealth, as well as for society as a totality, so that by
some authors regarded as a fundamental right human.
Bregstein stated that the concept of the contract since 1838 has not changed fundamentally.
This view is advanced in that time is no longer tenable. Freedom of contract in the Netherlands
since the second half of the last century has been restricted by the authorities. The starting point
of the development of legal rules in force can be found in the Wet op het Arbeidscontract (Law
on Employment Contracts) Act 1907. It provides legal protection to workers (employees) by
limiting the freedom of contract enjoyed by the parties through the setting of wages, the manner
and time of payment of wages and compensation in case of breach of contract against the law.
Benneditty (1934) studied the evolution of the symptoms of their contract "autonomous" towards
a more "heteronomous", from defining "own" the content and the sound of a contract to the
"made or the enactment of the" contract of the above by the authorities. There is increasing
interference ruler into the realm of private law, and the reason we can find more and more
elements of public law in private law. This trend was observed on the development of labor law
and administrative law, scour over property rights, restrictions on freedom of contract, and the
inclusion of ethical considerations into law.
Restrictions on freedom of contract may also arise such that the charge content of the
contract is no longer determined by the will or interest (one of the) parties, such as contracts in
the raw. The parties are no longer able to set their own reciprocal rights and their obligations to
each other. Many agreements that turned out to contain standard terms or an agreement that its
terms are set by the party that is economically more powerful position. Only little is left of the
principle that an agreement will be based encounter. Actually, little can be found agreement that
includes the achievements of the parties fully formed through negotiations. Bargaining is getting
little done. In contrast settings more precisely the content payload. As stated Pitlo with respect to
symptoms that: freedom of contract is a fiction.
Albeit in a more limited form, also in doctrine can we look tends to restrict the freedom of
contract. The trend is mainly manifested in the provision of a more important role to the notion
of appropriateness and feasibility (redelijkheid en bijlijkheid), the moral good (geodes zeden),
public order (openbare orde), and therefore when the agreement was made notions above must
also be were taken into account. From a formal standpoint, the freedom of contract remains in
effect, but the charge content (or jangakauan) of the contractual relationship is determined by a
combination of rules that have been mentioned above. Law developed into more public contracts
by changing the feel of private interests into public interests. Can be observed recedes elements
of private law and otherwise increasing elements of public law. Real effect of this development is
the reduction of individual freedom.
Because this is a legal protection for the rights of citizens, the state is obligated to socialize
if any new legislation, so that people will be aware of the law, be aware of their rights protected
by the state. If the community is growing awareness of the law, then the legal protection in this
country will go well.
b. theory of Justice
According to the ethical theory of law solely for the purposes of justice. Legal content is
determined by our ethical beliefs about the fair and did not. In other words, according to this
theory the law aims to realize or justice. The essence of justice is an assessment of the conduct or
actions by evaluating them with a norm according to subjective views (subjectively to those of
the group, their group, and so on) exceeds other norms. In this case there are two parties
involved, namely those who perform and those who receive treatment: parents and children,
employers and workers, judges and yustiabel, the government and its citizens as well as creditors
and debtors.
In general, a justice who votes only from the party receiving the treatment would only ..
Justice must not only be seen from one side alone, but must be viewed from two sides.
Aristotle distinguishes two kinds of justice, namely justitia distibutiva (distributive justice,
verdelende or begevende gerechtigheid) and justitia commutativa (remedial justice, vergeldende
or ruilgerechtigheid).
Justitia distributiva demanded that everyone gets what is right or quota: suum cuique
tribuere (to each his own). This quota was not the same for each person, depending on the
property, birth, education, ability etc; its nature is proportionate. Were rated fair here is that if
everyone gets the rights or quota in proportion to remember education, position, capabilities and
so on. Distributiva Justitia is the task of the government against its citizens, to determine what
can be demanded by citizens. So justitia distributiva proportional nature.
Justitia commutativa give to anyone as much. In the association in the community justitia
commutativa the obligation of every man against his neighbor. Here demanded is common. Fair
if everyone is treated equally regardless of position, and so on. If justitia distributiva the
proportional nature, then justitia commutativa, due attention to the similarities, it is absolute.
Aristotle states that the measure of justice is that:
1. A person does not violate any applicable law, so that justice means "lawful" that the law
should not be violated and the rule of law must be followed; and
2. A person should not take more than their rights, so that justice means equality (equal)
(Aristotle, 1970: 140).
Aristotle defines justice in the narrow sense, almost like a sense of justice in the modern
meaning. In this case justice can be interpreted by treatment similarity (equality) as well as
"lawful". Equality is the correct proportion, midpoint, or the same distance between "too much"
and "too little". Therefore, Aristotle defines justice as something pertaining to people, jutice is
somethig the pertains to persons (Julo Stone, 1965: 14). Aristotle trigger the doctrine of justice
that comes from the ethics and moral values. Justice sourced from ethical values are intended as
a value by which people assess the attitude of humans, while the justice that comes from
assessing the social value of human behavior in interpersonal relationships.
Distributive justice as stated by Aristotle, similar to the principle of justice of the King
Roman Justinian, which is to give everyone seseuai rights (to give each man his due). This
means that justice provide the same thing for people or groups of people are the same, but
provide different things for different people or groups, with a note that not all differences
between humans may be used as the basis for differentiating. Racial, color, national origin,
gender, religion, and belief, should not be used as the basis dibedakannya law or their rights.
Because things like that constitute "discrimination". Thus, differentiation of law does not mean
discrimination.
Justice and equality have a very close relationship, all that tightly so that in case of unequal
treatment, it is a serious injustice. Even jurist HLA Hart stated that justice is nothing other than
putting every individual is entitled in relationship with one another. They are entitled to a relative
position of each common or otherwise, of each are not the same. So, postulatnya is equal
treatment of the same things, equal treatment of equals.
But justice is not just a matter of equal treatment, or in other words, justice is not only
concerned with the problem of discrimination, but it is much broader than that of justice as
fairness also concerned with other things. For instance justice is also related to problems in
recognition of basic human rights.
Justice is the primary virtue of social institutions, as truth in a system of thought. One theory,
however elegant and economical must be rejected or revised if it is not true; likewise laws and
institutions no matter how efficient and neat, should be reformed and abolished if it is not fair.
Justice must not let the sacrifices imposed on a few people which is exacerbated by the majority
of the advantage enjoyed by many people. Therefore, in a just society the freedom of citizens is
considered a well-established; the rights secured by justice are not subject to political bargaining
or the calculus of social interests. As the main virtues of humanity, truth and justice can not be
contested. Justice is the main focus of every system of law and justice can not be sacrificed.
Socrates stated that the essence of law is justice. Legal function to serve justice in society.
Law refers to a rule of life that is in accordance with the ideals of living together, namely justice.
Plato (427-347 BC), Greek philosopher said that in order to create peace and prosperity in a
country, let justice reign in the country. Responding to Plato, John Rawls says, a well-ordered
society when the society effectively regulated by a public conception of justice and when it is
designed to improve the welfare of its members.
Munir Fuady in his book Dynamics of Legal Theory John Rawls cites the opinion that
justice can not negotiable and must be incorporated into the community without having to
sacrifice the interests of other communities. An injustice can only be justified if it is necessary to
avoid a greater injustice, because it is the most important virtue in human life, then against truth
and justice no compromise.
Principles of Justice by John Rawls can be broken down as follows:
1. Fulfillment of equal rights to basic freedoms (equal liberties)
2. Economic and social differences must be set so that there will be a positive condition, namely:
a. The creation of maximum reasonable profit for everyone, including the weaker party
(maximum minimorium)
b. The creation of opportunities for everyone.
That the constitution of the Republic of Indonesia which includes the state's objective laws
of Indonesia, includes the concept of justice is different from the concept of justice which
developed in European countries. The philosophy of justice implied in the Preamble of the 1945
Constitution is social justice that is rooted in collectivity. While the concept of justice based on
the "rule of law" in the European countries, are rooted in individual protection.
c. Theory of Human Rights
Human rights in principle is a set of rights attached to nature and human existence as a
creature of Almighty God and the grace that must be respected, upheld and protected by the state,
law, government, and everyone for the respect and protection of human dignity ,
The recognition that every person wherever he lived in this world has a natural dignity and
the same rights and can not be deprived of all members of the human family is the foundation of
freedom, justice, and peace in the world.
One of the principles of human rights is non-discrimination. The principle of nondiscrimination means that all human rights principles should apply to all human beings without
distinction, whether differences in ethnicity, race, religion, nationality, skin color, sex, language
political conviction, property, birth, and others.
Human rights and human obligation to contain traits that are complementary, which actually
increases the dimensions of a state of law / rechtstaat is the kind of country that is very opposed
to state power / machtstaat. Basic thoughts that support it is the people's freedom (liberte du
citoyen) is not the greatness of the country (gloire de l'etat).
The principle of legal protection against government action rests and comes from the
concept of the recognition and protection of the rights of man because, according to the history
of the west, the birth of concepts about the recognition and protection of the rights of man are
directed to such limitations and laying down the obligations of society and government.
In formulating prinsi-protection principles of law in Indonesia, is the foundation of Pancasila
as the state ideology and philosophy. Conception of legal protection for people in the West rooted
in concepts rechtstaat and "The Rule of Law". By using the Western conception as a framework
of thinking with a foundation on Pancasila, the principle of legal protection in Indonesia is the
principle of the recognition and protection of human dignity based on Pancasila. The principle of
legal protection against acts of government rests and comes from the concept of the recognition
and protection of the rights of human rights because according to the history of the West, the
birth of concepts about the recognition and protection of the rights of Man is directed to such
limitations and laying down the obligations of society and government.
The dominant aspect of the western concept of human rights emphasizes the existence of
rights and freedoms inherent in human nature and status as individuals, such rights are above
state and above all the political organizations and absolute that can not be contested. Because of
this concept, it is often leveled criticism that the western concept of human rights is an
individualistic concept. Then, with the inclusion of social rights and economic rights and cultural
rights, there is a tendency began melunturnya indivudualistik nature of the concept of the West.
The close connection between the justice and human rights on the legal protection of
temporary workers, suggesting that some of the above theory becomes very relevant to be a knife
analysis in order to describe a condition that occurs towards the implementation of Law No. 13
Year 2003 on Manpower, particularly in terms of the Agreement Specific Work time is often not
implemented properly so that the resulting legal protection to contract workers to become weak
and detrimental to workers.
2. Conceptual Framework
Conception is meant here is the conceptual framework is the part that explains things related
to the concept used by the author. This conceptual Kerangaka includes operational definitions
used in the writing and explanation of the concepts used.
In this study, formulated a series of frameworks of conception or operational definitions as
follows:
a. Employment is everything related to the workforce at a time before, during, and after the work
period.
b. Labor is any person who is able to work in order to produce goods and / or services to meet
the needs of both themselves and the community.
c. Worker / laborer is someone who works for a wage or other forms of remuneration.
d. Employers are:
1) An individual, association, or legal entity that operates a self-owned enterprise
2) An individual, association, or a legal entity that independently run company was not hers
3) An individual, association, or a legal entity located in Indonesia representing the company
referred to in paragraphs a and b domiciled outside the territory of Indonesia.
e. The company is:
1) any form of a legal entity or not, owned by an individual, a partnership or a legal entity, either
private or state-owned, employing workers / laborers by paying salary or compensation in other
forms
2) social enterprises and other businesses with officials and hire someone else to pay wages or
other forms of remuneration.
f. The employment agreement is an agreement between the workers / laborers denganpengusaha
ataupemberi work containing the terms of work requirements, rights and obligations of the
parties.
g. A work agreement for a certain period of time referred to in paragraph (1) shall be based upon:
1) The time period; or
2) the completion of a particular job.
h. Certain Time Employment Agreement, hereinafter referred PKWT is working agreement
between the workers / laborers with employers to hold a working relationship within a certain
time or for a particular worker.
i. Time Indefinite Employment Agreement, hereinafter referred PKWTT is working agreement
between the workers / laborers with employers to hold a permanent employment relationship.
j. The working relationship is the relationship between employers and workers / laborers by
employment agreement, which has elements of jobs, wages, and commands.
k. Wages are workers' rights were received and expressed in terms of money as a reward from
the employer to the worker / laborer assigned and paid by an employment agreement, agreement
or legislation, including allowances for workers / laborers and their families for a job and or
services have been or will be made.
l. Workers' Social Security is a protection for workers in the form of compensation in the form of
money as a partial replacement of lost income or reduced and services as a result of events or
circumstances experienced by workers in the form of a work accident, illness, pregnancy,
maternity, old age, and die.
F. Methods
The research method that will be used in writing this dissertation is a method of Normative
Legal Research (normative juridical) and Empirical. Normative Legal research is research which
refers to the legal norms contained in the legislation applicable as normative footing. The
approach used is the approach document for this study is a literature research or research
documents directed or carried out by viewing and examining the various provisions of laws and
regulations pertinent and relevant to the employment agreement certain time which is the object
of this study or in other words see the law of the normative aspects focused on the Employment
Act (statute approach).
Next is to use empirical research methods of conducting research by looking at the facts on
the ground through interviews with several informants that serves to strengthen the normative
research results.
As for the collection of data in this paper using the technique:
1. A literature study (library research) is a way of research by collecting and studying books,
articles in newspapers, magazines, and the internet, including legislation relating to the
Application Specific Time Employment Agreement. Library research was conducted by studying
legal materials, namely:
a. Primary legal materials, ie materials legally binding:
1) of the Constitution of the Republic of Indonesia Year 1945.
2) Act No. 13 of 2003 on Manpower.
3) Act No. 24 of 2011 About BPJS
4) Act No. 39 of 1999 concerning Human Rights
5) of the Civil Law Act.
6) the Indonesian Government Regulation No. 86 Year 2013 About the Procedure for Imposing
Administrative Sanctions To Employer addition to State Officials And Everyone, In addition to
the Employer, Worker, And Beneficiaries contribution in the Implementation of Social Security
7) Government Regulation No. 53 of 2012 on the Eighth Amendment to Government Regulation
Number 14 of 1993 on the Implementation of Social Security Workers Program
8) the Indonesian Government Regulation No. 84 Year 2013 About the Ninth Amendment to
Government Regulation Number 14 of 1993 on the Implementation of Social Security Workers
Program.
9) the President of the Republic of Indonesia Regulation No. 111 of 2013 on Amendment to
Presidential Regulation No. 12 Year 2013 About Health Insurance
10) Decree of the Minister of Manpower and Transmigration THE REPUBLIC No.KEP 100 /
MEN / VI / 2004 on the Implementation of the Provisions Certain Time Employment Agreement.
b. Secondary law, namely the legal materials that explain the primary legal materials, such as, the
results of research and the work of the law, relating to the title of this essay.
c. Tertiary legal materials, ie materials that provide instructions and an explanation of the
primary and secondary legal materials, which are used are:
1) Law Dictionary
2) Big Indonesian Dictionary
2. The field research (field research), which are research by conducting research directly to the
object of research by direct interview with Mr. Portomuan Nababan (Regional Human Resource
Manager of PT Arta Boga Cemerlang Jakarta), Mr. Wahono, Supervisor mode Merchandising
Merchandising division PT Arta Boga Cemerlang Bekasi and Bogor, Mr. Warsono (Mediator
Industrial Relations DKI) and Mrs. Rani Apriyanti (Supervisor Merchandising division
Merchandising PT Arta Boga Cemerlang Jakarta and Serang. as for the role of Mr. Portomuan
Nababan, Mr. Warsono, Mr. Wahono and Mrs. Rani Apriyanti is as informant against the
implementation of the Employment Agreement for specific time periods in the company.
G. Systematics Writing
To facilitate understanding of this dissertation, the systematic writing is divided into several
chapters that consist of several sub-chapters. Dissertation titled "LEGAL PROTECTION FOR
WORKERS CONTRACT AGREEMENT IN PARTICULAR TIME BY LAW NUMBER 13 OF
2003 CONCERNING EMPLOYMENT", the discussion is divided into five (5) chapters, as
described below:
CHAPTER I INTRODUCTION
In this chapter describes the background of the problem, formulation of the problem, scope,
objectives and benefits of writing, the theoretical framework and conceptual frameworks,
research methods, and the systematic writing.
CHAPTER II LEGAL PROTECTION LAW REVIEW OF CONTRACT WORKERS
In this chapter will discuss the legal protection according to some experts, the nature of
employment law on workers 'legal protection, legal protection of contract workers in PKWT,
legal protection against contract workers' wages and social security protection for workers.
CHAPTER III AGREEMENT IN PARTICULAR TIME PT ARTA BOGA CEMERLANG
JAKARTA
In this chapter will discuss the Employment Agreement Specific Time (PKWT) that run in the
division Merchandising PT Arta Boga Cemerlang Jakarta consisting of the parties involved in
PKWT, period PKWT, terms PKWT, rights and obligations of the parties, termination PKWT, as
well as the procedures for the extension and renewal PKWT.
CHAPTER IV ANALYSIS OF CERTAIN TIME AGREEMENT IN PT ARTA BOGA
CEMERLANG JAKARTA BY LAW NUMBER 13 OF 2003 CONCERNING EMPLOYMENT
In this chapter will discuss the analysis of the employment agreement certain time based on Law
Number 13 Year 2003 on Employment and extent of these rules in its application to provide legal
protection for contract workers division. It also discussed about the government efforts to
provide legal protection to contract workers.
CHAPTER V CLOSING
In this chapter consists of two (2) sub-chapters are conclusions which contains summaries of the
object being examined and the advice which is the input from the author to the object of the
problems studied.
TIME BY LAW NUMBER 13 OF 2003 CONCERNING EMPLOYMENT
by
Suwarsit, S.H., M.H., C.L.A
PRELIMINARY
A. Background
The construction work force is one part of the national development undertaken in the
development of Indonesia fully human and the development of Indonesian society to realize a
society that is prosperous, just, prosperous, equitable material and spiritual, based on Pancasila
and the Constitution of the Republic of Indonesia Year 1945 . development of the employment
sector as part of the development of human resources is one part that is integral to national
development as the Pancasila, and the implementation of the Act of 1945, aimed at improving
the dignity, dignity, and human capabilities, as well as self-confidence in order to realize a
society prosperous, just, and prosperous both materially and spiritually. In the implementation of
national development, labor has a role and a very important position as actors and development
objectives. In accordance with the role and position of labor, manpower development is required
to improve the quality of employment and participation in the development and improvement of
the protection of workers and their families in accordance with human dignity.
The protection of labor is intended to guarantee the basic rights of workers / laborers and
ensure equality of opportunity and treatment without discrimination on any ground for the
welfare of workers / laborers and their families with regard to the progress of the business world.
One of the manifestations of the increase in value and dignity to the workers / laborers are
protection of the rights of workers / laborers either agreed in the Employment Agreement and set
forth in the Company Regulations or Collective Labor Agreement.
Especially with regard to employment agreements, rights and obligations of workers /
laborers with employers on a reciprocal basis is already detailed in the Employment Agreement
and Collective Labor Agreement. Despite clear and detailed and explicit, but sometimes they
often lead towards an industrial dispute.
Industrial relations is a system of relationships formed between the actors in the production
process of goods and / or services consisting of elements of the employer, workers and
governments that are based on the values of Pancasila and the 1945 Constitution of industrial
relations is a balance between the objectives and the interests of workers and employers in the
process of production of goods and services in an enterprise. This means that workers and
employers individually and collectively have a purpose and a common responsibility, because
the success of industrial relations, both workers and employers would benefit both individually
and within the organization.
From the point of legal history, the nation entered a phase marked by the development of the
welfare state laws that protect the weaker party. At this time the state started to pay attention to
include labor protection, consumer protection, protection of small businesses and environmental
protection. Act relating to the protection of the various parties to correct for industrialization
which is not always a benefit to all segments of society. Besides, the intense competition in the
labor market and a severe economic crisis makes the workers did not have the courage to fight
for the improvement of their fate. Capital always move to where there is cheap labor and
enforcement of labor laws are lenient. This is the need to reform labor law.
According to Zainal Asikin, the legal protection of workers from the employer's ability
fulfilled if the regulations in the areas of labor that require or compel employers to act like in the
legislation is properly applied all parties for the enforceability of the law can not be measured by
juridical alone but measured sosilogis and philosophical , The significance of the legal
enforceability sociologically can be interpreted that the law always keep pace with changes in
society (law in action), while the legal enforceability of the philosophical meaning that the law
should be able to provide fairness, certainty and benefits for society in accordance with the
purpose of the law itself.
Implementation of industrial relations in the company are always influenced by the
dynamics of the community so that the implementation is always facing challenges and obstacles
and the effect on conditions of employment which changes from time to time. Broadly speaking,
the problems that occur in the employment relationship affected the industrial relations, among
others, include technical understanding of legislation in the area of industrial relations on the
nature of the employment relationship, the problems of labor agreements on which the issuance
of a working relationship that is set on the rights and obligations of the parties, the use of a
particular time work agreement for all kinds of jobs and the trend of using contract workers, and
remediation efforts working requirements set forth in the normative provisions.
In Article 50 of Law Number 13 Year 2003 on Manpower (hereinafter Labor Law) explained
that the employment relationship occurs because of the labor agreements between employers and
workers. Both workers and employers alike have an important role in working relationships with
each other and can not be separated. Workers as owners of power, skill, and expertise needed
work to make ends meet, while the entrepreneur as the owner of capital requires manpower to
run the production process. In this case the necessary reciprocity in harmony in order to create
synergies to drive the economy.
Furthermore, in Article 56 of the Labor Law states that agreements made for a certain time
or for an unspecified time. A work agreement for a specified time (hereinafter referred to PKWT)
is based on the time period or the completion of a particular job. A work agreement for a
specified time can only be made for specific jobs by type and nature of the job will be completed
within a specified time. However, based on the facts on the ground show there are still many
companies that do not implement the provisions contained in the Labor Law.
In the field of employment concerning the subject of labor relations, there are still many conflicts
of interest among workers / laborers with employers mutually defend their own opinion as the
system of contract labor (PKWT), determining the amount of the minimum wage, social security,
which until now the classic problem can not be solved properly.
That's necessary role for government to address the issue of labor / employment through
various legislations. It is intended to provide legal protection of the rights and obligations of
employers and employees / workers. If the relationship between workers and employers is still
left entirely to the parties (workers and employers), then the purpose of labor law to create social
justice in the field of labor will be very difficult to achieve, because of the strong will always
want to dominate the weaker side (homo homoni lupus ).
In this dissertation the author will examine and analyze the terms and implementation of the
Employment Agreement Specific Time (PKWT) pursuant to Act No. 13 of 2003 on Labour in
Arta Boga Cemerlang PT Jakarta, a company engaged in the distribution of consumer goods.
Arta Boga Cemerlang PT Jakarta held a work agreement for a specified time by the workers who
will be hired as Sales Promo / Merchandiser (mode) which will care for and displaying items in
the outlet area of Jakarta, Bogor, Depok, Tangerang and Serang. The working relationship with
PKWT this has caused harm to workers, because the position of workers (mode) were weak and
simply resigned themselves accept the terms and conditions that have been created by the
company as stipulated in the standard contract. This resulted in a weak legal protection against
contract workers.
Based on the description of the background, the writers gave the title of this dissertation with the
title "LEGAL PROTECTION FOR WORKERS CONTRACT AGREEMENT IN PARTICULAR
TIME BY LAW NUMBER 13 OF 2003 CONCERNING EMPLOYMENT".
B. Problem Formulation
Based on this background, the problem will be formulated as follows:
1. How does the function of Law No. 13 of 2003 on Labour in the implementation of the
Employment Agreement Specific Time to contract workers?
2. What are the obstacles in the implementation of the Employment Agreement for specific time
periods based on Law No. 13 of 2003 on Labor?
3. How does the government efforts to provide legal protection to contract workers?
C. Scope of Writing
The scope of this thesis is about the rule of law and the implementation of the employment
agreement certain time based on Law Number 13 Year 2003 on Manpower related to legal
protection for contract workers.
D. Objectives and Benefits of Writing
1. Purpose
Based on the above mentioned problems, the objectives to be achieved in the writing of this
dissertation is:
a. To determine the function of Law No. 13 of 2003 on Labour in the implementation of the
Employment Agreement Specific Time to contract workers.
b. To find obstacles in the implementation of the Employment Agreement for specific time
periods based on Law No. 13 Year 2003 on Manpower.
c. To determine the government's efforts in providing legal protection for contract workers.
2. Benefits of Writing
Through this research can benefit both theoretically and practically in the development of legal
science in general.
a. Theoretically, the results of this research may give false advice in the development of
knowledge of labor law in general, and in particular on industrial relations.
b. By Practically, this research is expected to provide input to the public in general and PT Arta
Boga Cemerlang in particular, to be able to provide solutions to employment issues.
E. Theoretical Framework and Conceptual Framework
1. Theoretical Framework
The word theory comes from the word theoria, which means the views or insights. The word
theory has various meanings. In general, the theory is defined as the knowledge that exists only
in the mind, not connected with the activities that are practical to do something. In addition, the
theory can mean the opinion expressed as a description of the event or events. The theory can be
used as general legal principles and the basis on which to base a science.
The theory is scientific knowledge that includes an explanation of something specific factors
of a scientific discipline. In the world of science, theory occupies an important position, because
the theory gives a means to be able to summarize and understand the issues better discussed.
Things that initially seemed scattered and stand-alone can be put together and shown in relation
to one another in a more meaningful.
The theoretical framework is a framework or a grain opinion, a theory, a thesis on something
of cases or issues are the subject of comparative theoretical grip.
a. Theory of Legal Protection
Beginning of the rise of the theory of legal protection is derived from the theory of natural
law or natural law school. This stream was pioneered by Plato, Aristotle (a student of Plato), and
Zeno (the founder of the Stoic). According to the flow of natural law states that the law comes
from God is universal and timeless, as well as between law and morality should not be separated.
The adherents of this view that the moral law and is a reflection and rules internally and
externally of human life which is realized through legal and moral.
According to Thomas Aquinas says that natural law is a reasonable provision which comes
from the Lord that aims to favor and made by people who take care of the community to be
disseminated.
The existence and the concept of natural law over the years, there are still many disputed and
rejected by most philosophers of law, but in fact kanyataann writings of experts who reject it,
many use to understand natural laws that may not be realized. One of the reasons underlying the
rejection of a number of philosophers of law to the laws of nature, because they still considers
the search for an absolute matter of natural law, only an act of futile and not helpful.
Occurs different views of the philosophers of acknowlege the laws of nature, but on other
aspects also raises some expectations that the search for the "absolute" is the human desire to be
the essence of justice. Natural law as the rule that is "universal, eternal and absolute force", turns
in modern life would still exist even if proven by the increasing number of people talking about
human rights issues (rights).
According to Von Thomas Aquinas says that natural law is a reflection of the eternal law (lex
naturalist). Long before the birth of the flow of legal history, turns the flow of natural law not
only served as a science, but also accepted as the basic principles of the legislation. The
seriousness of the human race will be longing for justice, it is the essence of the hope that there is
a law higher than positive law. The law of nature has shown, that the real nature of truth and
justice is a concept that includes many theories. Various assumptions and opinions of the
philosophers of law emerge from time to time. In the 17th century, the substance of the law of
nature has placed a universal principle which could be called human rights.
Law serves as the protection of human interests. In order for human interests are protected,
the law should be implemented. Implementation of the law can take place as normal, peaceful,
but can occur also because of a violation of law. In this case the law has been breached it should
be enforced. Through law enforcement is becoming a reality. In upholding the law, there are
three elements that must always be considered, namely the rule of law (Rechtssicherheit), utility
(Zweckmassigkeit), and justice (Gerechtigkeit).
Society as a collection of people who interact based on their individual interests so as to
result in a contact-dimensional dual or avoid each other and closer to each other.
Contact mutually distanced happens when those interests collide (conflict) and vice versa
when the interests of the mutual benefits that arise then are the contacts closer together
(cooperation). So it is easy to understand when every individual in society on the one hand trying
to protect the interests of each of the dangers that may arise, while on the other hand, each person
trying to help each other in the teaching of mutual interest.
Efforts to protect and promote the interests it can be achieved because previously been held
rules that can be sized for any behavior. The regulations require that person to act in society in a
way that the interests of others as much as possible preserved and protected and shared interests
can be developed. The rules are so-called rules or norms.
With so without laws there would be no order and no human order gets messed up because
they do not know where they are going and do not know anyway what will they do. An orderly
system of relations that is the main condition for human life at every level.
To be able to act as a regulator of an authoritative instrument so that it can function
effectively, then the law must be capable of goal-oriented law, which provides fairness, certainty
and expediency.
By adhering to these three elements, the members of the public will voluntarily comply with
the law as the law without being forced by their perceived can protect all members of society and
not just to protect the interests of a handful of people who happen to have a better social status.
Legal protection is very important for the Legal Protection is an element that must exist in a
country. Each state formation in which there is definitely a law to regulate its citizens. Within a
country, the inevitable relationship between state and citizens. A relationship which gives rise to
rights and obligations. Legal protection will be the rights of citizens. On the other hand the legal
protection of a liability of the state. The state must provide legal protection for its citizens.
Especially if we are talking about countries like Indonesia law. Indonesia established itself as a
state of law contained in the Act of 1945, article 1, paragraph 3, which reads: "Indonesia is a
country of law". This means that Indonesia is a state based on law. By itself become an essential
element of legal protection as well as a consequence of the state of law. The State shall guarantee
the legal rights of its citizens. The legal protection is an acknowledgment of the dignity of
citizens as a human being.
According Satjipto Rahardjo, Legal Protection is giving shelter to human rights are harmed
others and the protection given to the people so they can enjoy all the rights granted by law.
The purpose of law version shelter (shelter as a symbol of justice symbolized by the banyan
tree), was found by the Minister of Justice to replace the symbol of justice Sahardjo western
country dirupakan by the Goddess Themis (daughter Quaranos and Gala). According to the
theory aegis of interest law is to protect humans either actively or passively. Actively intended as
an attempt to create a humane social conditions in the process that takes place naturally. While
the definition of passively is to strive for prevention of arbitrary action and abuse of rights.
Enterprises realize the aegis including the a). embody law and order, 2). realize true peace, 3).
justice, 4). justice and social welfare.
Legal protection is the protection of the dignity and worth going to, and recognition of
human rights that are owned by subjects of law based on the provisions of the law of tyranny. In
formulating the principle of legal protection for the people of Indonesia, grounding berpijaknya
is Pancasila as the state ideology and basic philosophy. Recognition and protection of human
dignity is said to be based on Pancasila, because of the recognition and protection against
intrinsically attached to Pancasila. In addition based on Pancasila principles of legal protection is
also rooted in the rule of law.
State law adopted by the State of Indonesia is not in a formal sense, but rather in the sense of
material that is also termed the Welfare State (Welfare State) or "Welfare State".
According Muktie A. Fadjar in his book entitled Type of State of Law, which is a
constitutional state is the state that aims to organize legal order, the order is generally based on
the law contained in the people. State laws to maintain law and order so as not disrupted so that
everything runs according to law. State of Law is subject to state law, the legal regulations are
also applicable to all agencies and state scientific equipment. State law guarantees legal order in
a society that means to give legal protection to the public, between law and power there is a
reciprocal relationship.
When viewed from the ingredients of the legal protection is divided into two, namely the
means of legal protection preventive and repressive means of legal protection. By DR. Philip M
Hadjon, SH with his book entitled Protection Law of the People For preventive means of legal
protection especially closely related to the principle Freis ermessen as a form of legal protection
in general. In this preventive legal protection, legal subjects are given the opportunity to file an
objection or opinion before a government decision received definitive form. The aim is to
prevent disputes. Preventive legal protection is of great significance for the acts of government
based on freedom of action due to the absence of legal protection that is preventive compelled
the government to be cautious in making decisions based on discretion. While repressive means
of legal protection in Indonesia is handled by agencies: Courts in the General Courts,
Government Agencies are an administrative appeal institutions and specialized agencies. This
means that the legal protection was only given when problems or disputes have occurred, so that
the legal protection given by the General Court aims to resolve the dispute. Likewise with other
theories pertaining to legal protection also discussed means of legal protection that are
repressive.
Another embodiment of the means of legal protection that is preventive also can be seen in
the economic field, namely in making the agreement or contract. In civil law we know what is
called the principle of freedom of contract, which is contained in article 1338 Book of the Law of
Civil Law (Civil Code). There it is said that both parties entered into an agreement, can
determine for themselves what the contents of the agreement, and what is contained in the
agreement will be legislation to the parties concerned with the agreement. Therefore an
agreement or contract must be made by mutual agreement of both parties and must represent the
interests of both parties, should not be one-sided. When making the agreement clause should also
be included about the events that are not suspected in the future that may occur, including the
settlement of disputes in the event of a dispute in the future, as well as about the legal options
backfire along both sides. This shows that there is a manifestation of preventive legal protection.
The principle of contractual binding force presupposes the existence of freedom in the
community to participate in the juridical traffic and at the same time it implies the principle of
freedom of contract. If between the parties closed a treaty, would be presupposed the existence of
free will of the parties. In the context of freedom of will also implied equality minimal. In fact,
the equality of economic power from the parties often do not exist. Conversely, if the equality
between the parties is not possible, one can not say their freedom of contract.
The existence of common interests of society require and also define the limits of freedom to
make and close the contract. Having the freedom to agree on anything and with anyone is a very
important thing. Because it is also the principle of freedom of contract are included as part of the
rights of human freedom. Freedom of contract so important, both for the individual, in the
context of the possibility of self-development in their personal lives, as well as in traffic social
life, as well as for controlling or possessing wealth, as well as for society as a totality, so that by
some authors regarded as a fundamental right human.
Bregstein stated that the concept of the contract since 1838 has not changed fundamentally.
This view is advanced in that time is no longer tenable. Freedom of contract in the Netherlands
since the second half of the last century has been restricted by the authorities. The starting point
of the development of legal rules in force can be found in the Wet op het Arbeidscontract (Law
on Employment Contracts) Act 1907. It provides legal protection to workers (employees) by
limiting the freedom of contract enjoyed by the parties through the setting of wages, the manner
and time of payment of wages and compensation in case of breach of contract against the law.
Benneditty (1934) studied the evolution of the symptoms of their contract "autonomous" towards
a more "heteronomous", from defining "own" the content and the sound of a contract to the
"made or the enactment of the" contract of the above by the authorities. There is increasing
interference ruler into the realm of private law, and the reason we can find more and more
elements of public law in private law. This trend was observed on the development of labor law
and administrative law, scour over property rights, restrictions on freedom of contract, and the
inclusion of ethical considerations into law.
Restrictions on freedom of contract may also arise such that the charge content of the
contract is no longer determined by the will or interest (one of the) parties, such as contracts in
the raw. The parties are no longer able to set their own reciprocal rights and their obligations to
each other. Many agreements that turned out to contain standard terms or an agreement that its
terms are set by the party that is economically more powerful position. Only little is left of the
principle that an agreement will be based encounter. Actually, little can be found agreement that
includes the achievements of the parties fully formed through negotiations. Bargaining is getting
little done. In contrast settings more precisely the content payload. As stated Pitlo with respect to
symptoms that: freedom of contract is a fiction.
Albeit in a more limited form, also in doctrine can we look tends to restrict the freedom of
contract. The trend is mainly manifested in the provision of a more important role to the notion
of appropriateness and feasibility (redelijkheid en bijlijkheid), the moral good (geodes zeden),
public order (openbare orde), and therefore when the agreement was made notions above must
also be were taken into account. From a formal standpoint, the freedom of contract remains in
effect, but the charge content (or jangakauan) of the contractual relationship is determined by a
combination of rules that have been mentioned above. Law developed into more public contracts
by changing the feel of private interests into public interests. Can be observed recedes elements
of private law and otherwise increasing elements of public law. Real effect of this development is
the reduction of individual freedom.
Because this is a legal protection for the rights of citizens, the state is obligated to socialize
if any new legislation, so that people will be aware of the law, be aware of their rights protected
by the state. If the community is growing awareness of the law, then the legal protection in this
country will go well.
b. theory of Justice
According to the ethical theory of law solely for the purposes of justice. Legal content is
determined by our ethical beliefs about the fair and did not. In other words, according to this
theory the law aims to realize or justice. The essence of justice is an assessment of the conduct or
actions by evaluating them with a norm according to subjective views (subjectively to those of
the group, their group, and so on) exceeds other norms. In this case there are two parties
involved, namely those who perform and those who receive treatment: parents and children,
employers and workers, judges and yustiabel, the government and its citizens as well as creditors
and debtors.
In general, a justice who votes only from the party receiving the treatment would only ..
Justice must not only be seen from one side alone, but must be viewed from two sides.
Aristotle distinguishes two kinds of justice, namely justitia distibutiva (distributive justice,
verdelende or begevende gerechtigheid) and justitia commutativa (remedial justice, vergeldende
or ruilgerechtigheid).
Justitia distributiva demanded that everyone gets what is right or quota: suum cuique
tribuere (to each his own). This quota was not the same for each person, depending on the
property, birth, education, ability etc; its nature is proportionate. Were rated fair here is that if
everyone gets the rights or quota in proportion to remember education, position, capabilities and
so on. Distributiva Justitia is the task of the government against its citizens, to determine what
can be demanded by citizens. So justitia distributiva proportional nature.
Justitia commutativa give to anyone as much. In the association in the community justitia
commutativa the obligation of every man against his neighbor. Here demanded is common. Fair
if everyone is treated equally regardless of position, and so on. If justitia distributiva the
proportional nature, then justitia commutativa, due attention to the similarities, it is absolute.
Aristotle states that the measure of justice is that:
1. A person does not violate any applicable law, so that justice means "lawful" that the law
should not be violated and the rule of law must be followed; and
2. A person should not take more than their rights, so that justice means equality (equal)
(Aristotle, 1970: 140).
Aristotle defines justice in the narrow sense, almost like a sense of justice in the modern
meaning. In this case justice can be interpreted by treatment similarity (equality) as well as
"lawful". Equality is the correct proportion, midpoint, or the same distance between "too much"
and "too little". Therefore, Aristotle defines justice as something pertaining to people, jutice is
somethig the pertains to persons (Julo Stone, 1965: 14). Aristotle trigger the doctrine of justice
that comes from the ethics and moral values. Justice sourced from ethical values are intended as
a value by which people assess the attitude of humans, while the justice that comes from
assessing the social value of human behavior in interpersonal relationships.
Distributive justice as stated by Aristotle, similar to the principle of justice of the King
Roman Justinian, which is to give everyone seseuai rights (to give each man his due). This
means that justice provide the same thing for people or groups of people are the same, but
provide different things for different people or groups, with a note that not all differences
between humans may be used as the basis for differentiating. Racial, color, national origin,
gender, religion, and belief, should not be used as the basis dibedakannya law or their rights.
Because things like that constitute "discrimination". Thus, differentiation of law does not mean
discrimination.
Justice and equality have a very close relationship, all that tightly so that in case of unequal
treatment, it is a serious injustice. Even jurist HLA Hart stated that justice is nothing other than
putting every individual is entitled in relationship with one another. They are entitled to a relative
position of each common or otherwise, of each are not the same. So, postulatnya is equal
treatment of the same things, equal treatment of equals.
But justice is not just a matter of equal treatment, or in other words, justice is not only
concerned with the problem of discrimination, but it is much broader than that of justice as
fairness also concerned with other things. For instance justice is also related to problems in
recognition of basic human rights.
Justice is the primary virtue of social institutions, as truth in a system of thought. One theory,
however elegant and economical must be rejected or revised if it is not true; likewise laws and
institutions no matter how efficient and neat, should be reformed and abolished if it is not fair.
Justice must not let the sacrifices imposed on a few people which is exacerbated by the majority
of the advantage enjoyed by many people. Therefore, in a just society the freedom of citizens is
considered a well-established; the rights secured by justice are not subject to political bargaining
or the calculus of social interests. As the main virtues of humanity, truth and justice can not be
contested. Justice is the main focus of every system of law and justice can not be sacrificed.
Socrates stated that the essence of law is justice. Legal function to serve justice in society.
Law refers to a rule of life that is in accordance with the ideals of living together, namely justice.
Plato (427-347 BC), Greek philosopher said that in order to create peace and prosperity in a
country, let justice reign in the country. Responding to Plato, John Rawls says, a well-ordered
society when the society effectively regulated by a public conception of justice and when it is
designed to improve the welfare of its members.
Munir Fuady in his book Dynamics of Legal Theory John Rawls cites the opinion that
justice can not negotiable and must be incorporated into the community without having to
sacrifice the interests of other communities. An injustice can only be justified if it is necessary to
avoid a greater injustice, because it is the most important virtue in human life, then against truth
and justice no compromise.
Principles of Justice by John Rawls can be broken down as follows:
1. Fulfillment of equal rights to basic freedoms (equal liberties)
2. Economic and social differences must be set so that there will be a positive condition, namely:
a. The creation of maximum reasonable profit for everyone, including the weaker party
(maximum minimorium)
b. The creation of opportunities for everyone.
That the constitution of the Republic of Indonesia which includes the state's objective laws
of Indonesia, includes the concept of justice is different from the concept of justice which
developed in European countries. The philosophy of justice implied in the Preamble of the 1945
Constitution is social justice that is rooted in collectivity. While the concept of justice based on
the "rule of law" in the European countries, are rooted in individual protection.
c. Theory of Human Rights
Human rights in principle is a set of rights attached to nature and human existence as a
creature of Almighty God and the grace that must be respected, upheld and protected by the state,
law, government, and everyone for the respect and protection of human dignity ,
The recognition that every person wherever he lived in this world has a natural dignity and
the same rights and can not be deprived of all members of the human family is the foundation of
freedom, justice, and peace in the world.
One of the principles of human rights is non-discrimination. The principle of nondiscrimination means that all human rights principles should apply to all human beings without
distinction, whether differences in ethnicity, race, religion, nationality, skin color, sex, language
political conviction, property, birth, and others.
Human rights and human obligation to contain traits that are complementary, which actually
increases the dimensions of a state of law / rechtstaat is the kind of country that is very opposed
to state power / machtstaat. Basic thoughts that support it is the people's freedom (liberte du
citoyen) is not the greatness of the country (gloire de l'etat).
The principle of legal protection against government action rests and comes from the
concept of the recognition and protection of the rights of man because, according to the history
of the west, the birth of concepts about the recognition and protection of the rights of man are
directed to such limitations and laying down the obligations of society and government.
In formulating prinsi-protection principles of law in Indonesia, is the foundation of Pancasila
as the state ideology and philosophy. Conception of legal protection for people in the West rooted
in concepts rechtstaat and "The Rule of Law". By using the Western conception as a framework
of thinking with a foundation on Pancasila, the principle of legal protection in Indonesia is the
principle of the recognition and protection of human dignity based on Pancasila. The principle of
legal protection against acts of government rests and comes from the concept of the recognition
and protection of the rights of human rights because according to the history of the West, the
birth of concepts about the recognition and protection of the rights of Man is directed to such
limitations and laying down the obligations of society and government.
The dominant aspect of the western concept of human rights emphasizes the existence of
rights and freedoms inherent in human nature and status as individuals, such rights are above
state and above all the political organizations and absolute that can not be contested. Because of
this concept, it is often leveled criticism that the western concept of human rights is an
individualistic concept. Then, with the inclusion of social rights and economic rights and cultural
rights, there is a tendency began melunturnya indivudualistik nature of the concept of the West.
The close connection between the justice and human rights on the legal protection of
temporary workers, suggesting that some of the above theory becomes very relevant to be a knife
analysis in order to describe a condition that occurs towards the implementation of Law No. 13
Year 2003 on Manpower, particularly in terms of the Agreement Specific Work time is often not
implemented properly so that the resulting legal protection to contract workers to become weak
and detrimental to workers.
2. Conceptual Framework
Conception is meant here is the conceptual framework is the part that explains things related
to the concept used by the author. This conceptual Kerangaka includes operational definitions
used in the writing and explanation of the concepts used.
In this study, formulated a series of frameworks of conception or operational definitions as
follows:
a. Employment is everything related to the workforce at a time before, during, and after the work
period.
b. Labor is any person who is able to work in order to produce goods and / or services to meet
the needs of both themselves and the community.
c. Worker / laborer is someone who works for a wage or other forms of remuneration.
d. Employers are:
1) An individual, association, or legal entity that operates a self-owned enterprise
2) An individual, association, or a legal entity that independently run company was not hers
3) An individual, association, or a legal entity located in Indonesia representing the company
referred to in paragraphs a and b domiciled outside the territory of Indonesia.
e. The company is:
1) any form of a legal entity or not, owned by an individual, a partnership or a legal entity, either
private or state-owned, employing workers / laborers by paying salary or compensation in other
forms
2) social enterprises and other businesses with officials and hire someone else to pay wages or
other forms of remuneration.
f. The employment agreement is an agreement between the workers / laborers denganpengusaha
ataupemberi work containing the terms of work requirements, rights and obligations of the
parties.
g. A work agreement for a certain period of time referred to in paragraph (1) shall be based upon:
1) The time period; or
2) the completion of a particular job.
h. Certain Time Employment Agreement, hereinafter referred PKWT is working agreement
between the workers / laborers with employers to hold a working relationship within a certain
time or for a particular worker.
i. Time Indefinite Employment Agreement, hereinafter referred PKWTT is working agreement
between the workers / laborers with employers to hold a permanent employment relationship.
j. The working relationship is the relationship between employers and workers / laborers by
employment agreement, which has elements of jobs, wages, and commands.
k. Wages are workers' rights were received and expressed in terms of money as a reward from
the employer to the worker / laborer assigned and paid by an employment agreement, agreement
or legislation, including allowances for workers / laborers and their families for a job and or
services have been or will be made.
l. Workers' Social Security is a protection for workers in the form of compensation in the form of
money as a partial replacement of lost income or reduced and services as a result of events or
circumstances experienced by workers in the form of a work accident, illness, pregnancy,
maternity, old age, and die.
F. Methods
The research method that will be used in writing this dissertation is a method of Normative
Legal Research (normative juridical) and Empirical. Normative Legal research is research which
refers to the legal norms contained in the legislation applicable as normative footing. The
approach used is the approach document for this study is a literature research or research
documents directed or carried out by viewing and examining the various provisions of laws and
regulations pertinent and relevant to the employment agreement certain time which is the object
of this study or in other words see the law of the normative aspects focused on the Employment
Act (statute approach).
Next is to use empirical research methods of conducting research by looking at the facts on
the ground through interviews with several informants that serves to strengthen the normative
research results.
As for the collection of data in this paper using the technique:
1. A literature study (library research) is a way of research by collecting and studying books,
articles in newspapers, magazines, and the internet, including legislation relating to the
Application Specific Time Employment Agreement. Library research was conducted by studying
legal materials, namely:
a. Primary legal materials, ie materials legally binding:
1) of the Constitution of the Republic of Indonesia Year 1945.
2) Act No. 13 of 2003 on Manpower.
3) Act No. 24 of 2011 About BPJS
4) Act No. 39 of 1999 concerning Human Rights
5) of the Civil Law Act.
6) the Indonesian Government Regulation No. 86 Year 2013 About the Procedure for Imposing
Administrative Sanctions To Employer addition to State Officials And Everyone, In addition to
the Employer, Worker, And Beneficiaries contribution in the Implementation of Social Security
7) Government Regulation No. 53 of 2012 on the Eighth Amendment to Government Regulation
Number 14 of 1993 on the Implementation of Social Security Workers Program
8) the Indonesian Government Regulation No. 84 Year 2013 About the Ninth Amendment to
Government Regulation Number 14 of 1993 on the Implementation of Social Security Workers
Program.
9) the President of the Republic of Indonesia Regulation No. 111 of 2013 on Amendment to
Presidential Regulation No. 12 Year 2013 About Health Insurance
10) Decree of the Minister of Manpower and Transmigration THE REPUBLIC No.KEP 100 /
MEN / VI / 2004 on the Implementation of the Provisions Certain Time Employment Agreement.
b. Secondary law, namely the legal materials that explain the primary legal materials, such as, the
results of research and the work of the law, relating to the title of this essay.
c. Tertiary legal materials, ie materials that provide instructions and an explanation of the
primary and secondary legal materials, which are used are:
1) Law Dictionary
2) Big Indonesian Dictionary
2. The field research (field research), which are research by conducting research directly to the
object of research by direct interview with Mr. Portomuan Nababan (Regional Human Resource
Manager of PT Arta Boga Cemerlang Jakarta), Mr. Wahono, Supervisor mode Merchandising
Merchandising division PT Arta Boga Cemerlang Bekasi and Bogor, Mr. Warsono (Mediator
Industrial Relations DKI) and Mrs. Rani Apriyanti (Supervisor Merchandising division
Merchandising PT Arta Boga Cemerlang Jakarta and Serang. as for the role of Mr. Portomuan
Nababan, Mr. Warsono, Mr. Wahono and Mrs. Rani Apriyanti is as informant against the
implementation of the Employment Agreement for specific time periods in the company.
G. Systematics Writing
To facilitate understanding of this dissertation, the systematic writing is divided into several
chapters that consist of several sub-chapters. Dissertation titled "LEGAL PROTECTION FOR
WORKERS CONTRACT AGREEMENT IN PARTICULAR TIME BY LAW NUMBER 13 OF
2003 CONCERNING EMPLOYMENT", the discussion is divided into five (5) chapters, as
described below:
CHAPTER I INTRODUCTION
In this chapter describes the background of the problem, formulation of the problem, scope,
objectives and benefits of writing, the theoretical framework and conceptual frameworks,
research methods, and the systematic writing.
CHAPTER II LEGAL PROTECTION LAW REVIEW OF CONTRACT WORKERS
In this chapter will discuss the legal protection according to some experts, the nature of
employment law on workers 'legal protection, legal protection of contract workers in PKWT,
legal protection against contract workers' wages and social security protection for workers.
CHAPTER III AGREEMENT IN PARTICULAR TIME PT ARTA BOGA CEMERLANG
JAKARTA
In this chapter will discuss the Employment Agreement Specific Time (PKWT) that run in the
division Merchandising PT Arta Boga Cemerlang Jakarta consisting of the parties involved in
PKWT, period PKWT, terms PKWT, rights and obligations of the parties, termination PKWT, as
well as the procedures for the extension and renewal PKWT.
CHAPTER IV ANALYSIS OF CERTAIN TIME AGREEMENT IN PT ARTA BOGA
CEMERLANG JAKARTA BY LAW NUMBER 13 OF 2003 CONCERNING EMPLOYMENT
In this chapter will discuss the analysis of the employment agreement certain time based on Law
Number 13 Year 2003 on Employment and extent of these rules in its application to provide legal
protection for contract workers division. It also discussed about the government efforts to
provide legal protection to contract workers.
CHAPTER V CLOSING
In this chapter consists of two (2) sub-chapters are conclusions which contains summaries of the
object being examined and the advice which is the input from the author to the object of the
problems studied.