Economic Approach To Law In Tourism Industry.
Economic Rights of Foreign Workers
in Tourism Industry in Bali:
A Human Rights Law Perspective
I Made Budi Arsika
Sagung Putri M.E. Purwani
Made Maharta Yasa
International Seminar
“Economic Approach to Law in Tourism Industry”
Bali, 28 August 2015
OUTLINE
Background
Facts and Figures
Legal Issues
Methodology
Scope of Analysis
Relevant Concept
Analysis on relevant instruments
Case Laws
Some Notes
Conclusion
Recommendation
BACKGROUND
Tourism industry in Bali
The coming of foreign workers to Bali
Medias mostly make reports on the negative impacts of the
foreign workers, especially for the local workers
Most issues are dealing with the readiness of local workers to
compete with foreign workers
Some violations of law and administrative procedure by
illegal foreign workers
The recognition of economic rights of foreign workers?
Measures should be taken by the National and Local
Governments?
http://www.balidiscovery.com/messages/message.asp?id=7744
Facts and Figures
Minister of Manpower and Transmigration: It is estimated 68.000-
70.000 foreign workers are working in Indonesia until August 2015.
Director General Immigration: Some 6.236 foreigners have been
deported between January-June 2015, including illegal foreign workers.
Most of them are nationals of Bangladesh, Myanmar, PRC, Thailand,
Vietnam, Malaysia, and Cambodia.
Head of Manpower and Transmigration Office of the Bali
Province: Government has issued 1.019 License to Employ Foreign
Worker (Ijin Mempekerjakan Tenaga Kerja Asing/IMTA) between January-June
2015. Most of them are Malaysian, Singaporean, American, and Japanese
who predominantly work in tourism sector (hotel, travel, and other
accommodation service) and hold “top” manager position.
Foreign workers have to pay US$ 100 per month to Provincial Government
of Bali. The Government of Bali Province targeted IDR 21 Billion revenue in
2015 getting from this license.
Legal Issues
What are the obligations of the governments to protect the
economic rights of foreign workers in tourism industry?
Should government consider human rights perspective to
ensure the enjoyment of economic rights of foreign workers
in tourism industry in Bali?
METHODS
Legal Research methods:
- Conceptual approach : Explore and define the legal concept
- Statutory approach: Inquiries on relevant international,
regional, national, and local instruments
- Case approach
Methods of Human Rights Research
Scope of Analysis
Exploring and analyzing the existing laws and regulations
(lex lata)
Proposing what the law should be(lex ferenda)
Relevant Concepts
Human Rights: Second generation rights
Economic Rights: the right to work, the right to the free
choice of employment and to just and favourable conditions
of work; the right to form and join trade unions; the right to
own property. etc
Rights of Nationals and Non-nationals
Workers and Foreign Workers
Tourism and tourism industry
Relevant Instruments
International
Regional
National
Local
International Instruments
ILO Conventions No 111 concerning Discrimination in Respect
of Employment and Occupation (ratified by Act of the Republic
of Indonesia No. 21 Year 1999)
International Convention on the Protection of the Rights of All
Migrant Workers and Members of their Families (ratified by Act
of the Republic of Indonesia No. 6 Year 2012)
International Covenant on Economic, Social, and Cultural Rights
(ratified by Act of the Republic of Indonesia No. 12 Year 2005)
Global Code of Ethics for Tourism (The principles were adopted
in Act of the Republic of Indonesia No. 10 Year 2009)
ILO Conventions No 111 concerning Discrimination
in Respect of Employment and Occupation
• Article 1 (1) (a)
For the purpose of this Convention the term discrimination
includes-- any distinction, exclusion or preference made on the
basis of race, colour, sex, religion, political opinion, national
extraction or social origin, which has the effect of nullifying
or impairing equality of opportunity or treatment in employment
or occupation;
• Article 2
Each Member for which this Convention is in force undertakes to
declare and pursue a national policy designed to promote, by
methods appropriate to national conditions and practice, equality
of opportunity and treatment in respect of employment and
occupation, with a view to eliminating any discrimination in
respect thereof.
International Convention on the Protection of the Rights
of All Migrant Workers and Members of their Families
Article 25
1. Migrant workers shall enjoy treatment not less favourable than that which
applies to nationals of the State of employment in respect of remuneration and:
(a) Other conditions of work, that is to say, overtime, hours of work, weekly rest,
holidays with pay, safety, health, termination of the employment relationship
and any other conditions of work which, according to national law and
practice, are covered by these terms;
(b) Other terms of employment, that is to say, minimum age of employment,
restriction on home work and any other matters which, according to national
law and practice, are considered a term of employment.
2. It shall not be lawful to derogate in private contracts of employment from the
principle of equality of treatment referred to in paragraph 1 of the present
article.
3. States Parties shall take all appropriate measures to ensure that migrant
workers are not deprived of any rights derived from this principle by reason of
any irregularity in their stay or employment. In particular, employers shall not
be relieved of any legal or contractual obligations, nor shall their obligations be
limited in any manner by reason of such irregularity.
International Covenant on Economic,
Social, and Cultural Rights
Article 2
1. Each State Party to the present Covenant undertakes to take steps,
individually and through international assistance and co-operation, especially
economic and technical, to the maximum of its available resources, with a
view to achieving progressively the full realization of the rights recognized in the
present Covenant by all appropriate means, including particularly the
adoption of legislative measures.
2. The States Parties to the present Covenant undertake to guarantee that the
rights enunciated in the present Covenant will be exercised without
discrimination of any kind as to race, colour, sex, language, religion, political or
other opinion, national or social origin, property, birth or other status.
3. Developing countries, with due regard to human rights and their
national economy, may determine to what extent they would
guarantee the economic rights recognized in the present Covenant to
non-nationals.
Global Code of Ethics for Tourism
Article 9 Rights of the workers and entrepreneurs in the tourism
industry
(1) The fundamental rights of salaried and self-employed workers in the tourism industry
and related activities, should be guaranteed under the supervision of the national and
local administrations, both of their States of origin and of the host countries with
particular care, given the specific constraints linked in particular to the seasonality of
their activity, the global dimension of their industry and the flexibility often required
of them by the nature of their work;
(2) Salaried and self-employed workers in the tourism industry and related activities
have the right and the duty to acquire appropriate initial and continuous training; they
should be given adequate social protection; job insecurity should be limited so far as
possible; and a specific status, with particular regard to their social welfare, should be
offered to seasonal workers in the sector;
(4) Exchanges of experience offered to executives and workers, whether salaried or not,
from different countries, contributes to foster the development of the world tourism
industry; these movements should be facilitated so far as possible in compliance with
the applicable national laws and international conventions;
Regional
ASEAN Human Rights Declaration
Article 27.
(1) Every person has the right to work, to the free choice of employment, to enjoy just,
decent and favourable conditions of work and to have access to assistance schemes
for the unemployed.
(2) Every person has the right to form trade unions and join the trade union of his or her
choice for the protection of his or her interests, in accordance with national laws and
regulations.
ASEAN Declaration on the Protection and Promotion of the Rights of Migrant
Workers
Obligations of Receiving States:
-
Intensify efforts to protect the fundamental human rights, promote the welfare and
uphold human dignity of migrant workers (Article 5)
-
Promote fair and appropriate employment protection, payment of wages, and adequate
access to decent working and living conditions for migrant workers (Article 8)
National
Act of the Republic of Indonesia No. 103Year 2003
concerning Manpower: Chapter VIII concerning Employment
of Foreign Worker
Act of the Republic of Indonesia No. 10 Year 2009
concerning Tourism
Article 56
(1) Tourism enterprises may employ foreign expert worker in
accordance with the provisions in the statutory regulation
(2) The foreign expert worker referred to paragraph (1) shall
have prior recommendation from tourism professional
workers association
Local Regulation
Provincial Regulation of Bali Province No. 2 Year 2012
concerning Bali’s Cultural Tourism: determines that every
person has right to work in tourism industry
Provincial Regulation of Bali Province No. 5 Year 2013:
includes provision on the extension of License to Employ
Foreign Worker (Ijin Mempekerjakan Tenaga KerjaAsing/IMTA)
in Bali
The Nature of State Obligation
in Economic Rights
The Maastricht Guidelines On Violations Of Economic,
Social And Cultural Rights mentions the following obligations on
ecosoc rights
Obligation to respect
Obligation to protect
Obligation to fulfil
Obligations of conduct
Obligation of result
Main Issue: Obligation to Protect:
Government must protect the enjoyment of economic
rights of the foreign workers by continuously monitoring
the proper job and responsible payment scheme --including
the compliance of minimum wage-- are provided by
business entities that employed foreign workers
2. Government must protect foreign workers from any
economic discrimination based on segregation between
nationals and non-nationals (discrimination based on
national extraction)
1.
Case Laws
Decision of the Indonesian Supreme Court No. 777
K/Pdt.Sus/2011 , Case between PT. Royal Bali Leisure
(Peninsula Beach Resort) vs. Gavin Michael David Wilson
(UK); Issues covered: Dismissal, Job Contract, KITAS,
Illegal working relationship; The Supreme Court annulled the
decision of Industrial Relation Court of Denpasar.
Decision of the Indonesian Supreme Court Nomor 286
K/Pdt.Sus-PHI/2013 ,Case between PT. Siemens Indonesia
vs. Stephen Michael Young: Judges consider constitutional
rights of equality legal treatment applied to national and nonnationals.
Some Notes
Most foreign workers in Bali occupied high-rank job (“top”
manager position) and have status as foreign expert worker.
As the employers need their expertise, economic rights of
this kind of foreign workers seems not violated.
Potential Case: Dismissal and Interpretation of Contract.
Link between public and private dimensions
CONCLUSION
Government must protect the exercise of economic rights
of the foreign workers and must also protect foreign
workers from any economic discrimination based on
national extraction.
2. The government should use a human rights-based
approach to ensure the enjoyment of economic rights of
foreign workers in tourism industry in Bali.
1.
RECOMENDATION
National government should ensure that the rights of fair
trial of the foreign workers in defending their economic
rights on litigation proceedings, are protected.
Local Government should identify some potential cases
arising from the violation of economic rights of foreign
workers who work in tourism industry in Bali. The results
should be used as a basis to create anticipative policies and
regulations.
THANK YOU VERY MUCH
in Tourism Industry in Bali:
A Human Rights Law Perspective
I Made Budi Arsika
Sagung Putri M.E. Purwani
Made Maharta Yasa
International Seminar
“Economic Approach to Law in Tourism Industry”
Bali, 28 August 2015
OUTLINE
Background
Facts and Figures
Legal Issues
Methodology
Scope of Analysis
Relevant Concept
Analysis on relevant instruments
Case Laws
Some Notes
Conclusion
Recommendation
BACKGROUND
Tourism industry in Bali
The coming of foreign workers to Bali
Medias mostly make reports on the negative impacts of the
foreign workers, especially for the local workers
Most issues are dealing with the readiness of local workers to
compete with foreign workers
Some violations of law and administrative procedure by
illegal foreign workers
The recognition of economic rights of foreign workers?
Measures should be taken by the National and Local
Governments?
http://www.balidiscovery.com/messages/message.asp?id=7744
Facts and Figures
Minister of Manpower and Transmigration: It is estimated 68.000-
70.000 foreign workers are working in Indonesia until August 2015.
Director General Immigration: Some 6.236 foreigners have been
deported between January-June 2015, including illegal foreign workers.
Most of them are nationals of Bangladesh, Myanmar, PRC, Thailand,
Vietnam, Malaysia, and Cambodia.
Head of Manpower and Transmigration Office of the Bali
Province: Government has issued 1.019 License to Employ Foreign
Worker (Ijin Mempekerjakan Tenaga Kerja Asing/IMTA) between January-June
2015. Most of them are Malaysian, Singaporean, American, and Japanese
who predominantly work in tourism sector (hotel, travel, and other
accommodation service) and hold “top” manager position.
Foreign workers have to pay US$ 100 per month to Provincial Government
of Bali. The Government of Bali Province targeted IDR 21 Billion revenue in
2015 getting from this license.
Legal Issues
What are the obligations of the governments to protect the
economic rights of foreign workers in tourism industry?
Should government consider human rights perspective to
ensure the enjoyment of economic rights of foreign workers
in tourism industry in Bali?
METHODS
Legal Research methods:
- Conceptual approach : Explore and define the legal concept
- Statutory approach: Inquiries on relevant international,
regional, national, and local instruments
- Case approach
Methods of Human Rights Research
Scope of Analysis
Exploring and analyzing the existing laws and regulations
(lex lata)
Proposing what the law should be(lex ferenda)
Relevant Concepts
Human Rights: Second generation rights
Economic Rights: the right to work, the right to the free
choice of employment and to just and favourable conditions
of work; the right to form and join trade unions; the right to
own property. etc
Rights of Nationals and Non-nationals
Workers and Foreign Workers
Tourism and tourism industry
Relevant Instruments
International
Regional
National
Local
International Instruments
ILO Conventions No 111 concerning Discrimination in Respect
of Employment and Occupation (ratified by Act of the Republic
of Indonesia No. 21 Year 1999)
International Convention on the Protection of the Rights of All
Migrant Workers and Members of their Families (ratified by Act
of the Republic of Indonesia No. 6 Year 2012)
International Covenant on Economic, Social, and Cultural Rights
(ratified by Act of the Republic of Indonesia No. 12 Year 2005)
Global Code of Ethics for Tourism (The principles were adopted
in Act of the Republic of Indonesia No. 10 Year 2009)
ILO Conventions No 111 concerning Discrimination
in Respect of Employment and Occupation
• Article 1 (1) (a)
For the purpose of this Convention the term discrimination
includes-- any distinction, exclusion or preference made on the
basis of race, colour, sex, religion, political opinion, national
extraction or social origin, which has the effect of nullifying
or impairing equality of opportunity or treatment in employment
or occupation;
• Article 2
Each Member for which this Convention is in force undertakes to
declare and pursue a national policy designed to promote, by
methods appropriate to national conditions and practice, equality
of opportunity and treatment in respect of employment and
occupation, with a view to eliminating any discrimination in
respect thereof.
International Convention on the Protection of the Rights
of All Migrant Workers and Members of their Families
Article 25
1. Migrant workers shall enjoy treatment not less favourable than that which
applies to nationals of the State of employment in respect of remuneration and:
(a) Other conditions of work, that is to say, overtime, hours of work, weekly rest,
holidays with pay, safety, health, termination of the employment relationship
and any other conditions of work which, according to national law and
practice, are covered by these terms;
(b) Other terms of employment, that is to say, minimum age of employment,
restriction on home work and any other matters which, according to national
law and practice, are considered a term of employment.
2. It shall not be lawful to derogate in private contracts of employment from the
principle of equality of treatment referred to in paragraph 1 of the present
article.
3. States Parties shall take all appropriate measures to ensure that migrant
workers are not deprived of any rights derived from this principle by reason of
any irregularity in their stay or employment. In particular, employers shall not
be relieved of any legal or contractual obligations, nor shall their obligations be
limited in any manner by reason of such irregularity.
International Covenant on Economic,
Social, and Cultural Rights
Article 2
1. Each State Party to the present Covenant undertakes to take steps,
individually and through international assistance and co-operation, especially
economic and technical, to the maximum of its available resources, with a
view to achieving progressively the full realization of the rights recognized in the
present Covenant by all appropriate means, including particularly the
adoption of legislative measures.
2. The States Parties to the present Covenant undertake to guarantee that the
rights enunciated in the present Covenant will be exercised without
discrimination of any kind as to race, colour, sex, language, religion, political or
other opinion, national or social origin, property, birth or other status.
3. Developing countries, with due regard to human rights and their
national economy, may determine to what extent they would
guarantee the economic rights recognized in the present Covenant to
non-nationals.
Global Code of Ethics for Tourism
Article 9 Rights of the workers and entrepreneurs in the tourism
industry
(1) The fundamental rights of salaried and self-employed workers in the tourism industry
and related activities, should be guaranteed under the supervision of the national and
local administrations, both of their States of origin and of the host countries with
particular care, given the specific constraints linked in particular to the seasonality of
their activity, the global dimension of their industry and the flexibility often required
of them by the nature of their work;
(2) Salaried and self-employed workers in the tourism industry and related activities
have the right and the duty to acquire appropriate initial and continuous training; they
should be given adequate social protection; job insecurity should be limited so far as
possible; and a specific status, with particular regard to their social welfare, should be
offered to seasonal workers in the sector;
(4) Exchanges of experience offered to executives and workers, whether salaried or not,
from different countries, contributes to foster the development of the world tourism
industry; these movements should be facilitated so far as possible in compliance with
the applicable national laws and international conventions;
Regional
ASEAN Human Rights Declaration
Article 27.
(1) Every person has the right to work, to the free choice of employment, to enjoy just,
decent and favourable conditions of work and to have access to assistance schemes
for the unemployed.
(2) Every person has the right to form trade unions and join the trade union of his or her
choice for the protection of his or her interests, in accordance with national laws and
regulations.
ASEAN Declaration on the Protection and Promotion of the Rights of Migrant
Workers
Obligations of Receiving States:
-
Intensify efforts to protect the fundamental human rights, promote the welfare and
uphold human dignity of migrant workers (Article 5)
-
Promote fair and appropriate employment protection, payment of wages, and adequate
access to decent working and living conditions for migrant workers (Article 8)
National
Act of the Republic of Indonesia No. 103Year 2003
concerning Manpower: Chapter VIII concerning Employment
of Foreign Worker
Act of the Republic of Indonesia No. 10 Year 2009
concerning Tourism
Article 56
(1) Tourism enterprises may employ foreign expert worker in
accordance with the provisions in the statutory regulation
(2) The foreign expert worker referred to paragraph (1) shall
have prior recommendation from tourism professional
workers association
Local Regulation
Provincial Regulation of Bali Province No. 2 Year 2012
concerning Bali’s Cultural Tourism: determines that every
person has right to work in tourism industry
Provincial Regulation of Bali Province No. 5 Year 2013:
includes provision on the extension of License to Employ
Foreign Worker (Ijin Mempekerjakan Tenaga KerjaAsing/IMTA)
in Bali
The Nature of State Obligation
in Economic Rights
The Maastricht Guidelines On Violations Of Economic,
Social And Cultural Rights mentions the following obligations on
ecosoc rights
Obligation to respect
Obligation to protect
Obligation to fulfil
Obligations of conduct
Obligation of result
Main Issue: Obligation to Protect:
Government must protect the enjoyment of economic
rights of the foreign workers by continuously monitoring
the proper job and responsible payment scheme --including
the compliance of minimum wage-- are provided by
business entities that employed foreign workers
2. Government must protect foreign workers from any
economic discrimination based on segregation between
nationals and non-nationals (discrimination based on
national extraction)
1.
Case Laws
Decision of the Indonesian Supreme Court No. 777
K/Pdt.Sus/2011 , Case between PT. Royal Bali Leisure
(Peninsula Beach Resort) vs. Gavin Michael David Wilson
(UK); Issues covered: Dismissal, Job Contract, KITAS,
Illegal working relationship; The Supreme Court annulled the
decision of Industrial Relation Court of Denpasar.
Decision of the Indonesian Supreme Court Nomor 286
K/Pdt.Sus-PHI/2013 ,Case between PT. Siemens Indonesia
vs. Stephen Michael Young: Judges consider constitutional
rights of equality legal treatment applied to national and nonnationals.
Some Notes
Most foreign workers in Bali occupied high-rank job (“top”
manager position) and have status as foreign expert worker.
As the employers need their expertise, economic rights of
this kind of foreign workers seems not violated.
Potential Case: Dismissal and Interpretation of Contract.
Link between public and private dimensions
CONCLUSION
Government must protect the exercise of economic rights
of the foreign workers and must also protect foreign
workers from any economic discrimination based on
national extraction.
2. The government should use a human rights-based
approach to ensure the enjoyment of economic rights of
foreign workers in tourism industry in Bali.
1.
RECOMENDATION
National government should ensure that the rights of fair
trial of the foreign workers in defending their economic
rights on litigation proceedings, are protected.
Local Government should identify some potential cases
arising from the violation of economic rights of foreign
workers who work in tourism industry in Bali. The results
should be used as a basis to create anticipative policies and
regulations.
THANK YOU VERY MUCH