On Nov. 25, 2021, the Constitutional Court declared Law No. 11/2020 on job creation conditionally unconstitutional. In its verdict, the court said that although the law would remain in effect temporarily, the government must remedy the procedural flaws of the law within two years, or else.

The law, since its initial draft, has created a public uproar and ignited legal controversy in the public sphere in particular with regard to its labor-related issues, such as types of employment contract, social security as well as issues related to labor migration including on how the placement of Indonesian migrant fishers would be regulated amid the challenge of coordinating the role of various ministries.

In its legal considerations, the court explained that, among others, the law failed to follow the principles of legislation, namely, clarity of purposes and openness. With regard to openness, the court stressed in its consideration the lawmakers did not give enough space for public participation during its deliberation despite the fact that there were meetings held to familiarize the draft of the law.

A year after that verdict, on Dec. 30, 2022, President Joko “Jokowi” Widodo suddenly signed the Regulation in Liew of Law (Perppu) No. 2/2022. As stated by Airlangga Hartarto, the coordinating economic minister, the regulation was prepared by the government to implement the Constitutional Court’s decision of Nov. 25, 2021.

The court’s verdict is definitely important to follow. And yet, as one of the member states of the International Labor Organization (ILO), which has ratified both ILO Convention No. 87 ( 1948 ) on Freedom of Association and Protection of the Right to Organize and ILO Convention No. 98 ( 1949 ) on the Rights to Organize and Collective Bargaining, it is equally important to review the importance of the openness, public participation or the “consultation” phase in the ILO term.

This can be done by referring to the available and relevant international labor standards with regard to freedom of association. The exercise will help Indonesia get an additional authoritative perspective to determine if the issuance of the Perppu is a proper implementation of the Court’s verdict.

Freedom of association has been seen and treated for the entire period of the existence of the ILO as the conditio sine qua non of the tripartism as emphasized by ILO Constitution, without which the tripartism would be meaningless.

There is a special procedure that shows how the ILO values freedom of association. Under this special procedure, government or organizations of workers and of employers can submit complaints concerning violations of trade unions rights by the ILO member states. They can also submit complaints even if the state allegedly violates the trade union rights is a member of the United Nations without being a member of the ILO. Furthermore, the procedure can also be applied even if the member state does not ratify ILO Convention Nos. 87 and 98.

In order to monitor the application of the freedom of association, the ILO has a specific committee called the Committee of the Freedom of Association. This committee is a tripartite body, which consist of nine members and nine deputies from the government, workers’ and employers’ groups of the governing body and led by an independent chairperson.

Referring to the ILO web for the Information System on the International Labor Standards (NORMLEX, Compilation of decisions of the CFA content [ilo.org]),as well as the ILO Publication, Freedom of Association, Digest and Principles of Decisions of the Freedom of Associations Committee of the Governing Body of the ILO, 5th edition 2006 (untitled [ilo.org]), which was quoted by respective decisions, Indonesia can learn how the organization highly values the consultation process with the organizations or workers and employers.

In the Report No. 359, March 2011, Case No. 2799 regarding Pakistan, paragraph 986, the Committee of Freedom of Association emphasized the value of consulting organizations of employers and workers during the preparation and application of legislation, which affects their interests.

The committee provided the same advice to South Korea, in the Report No.365, November 2012, Case No. 2829 regarding the Republic of Korea, paragraph 572, despite of the fact that South Korea is actually an ILO member state that does not ratify both the Freedom of Association and Protection of the Right to Organize Convention, 1948 (No. 87), nor the Right to Organize and Collective Bargaining Convention, 1949 (No. 98).

Moreover, in the Report No. 375, June 2015, Case No. 3054 concerning El Salvador, the committee underlined the principle whereby tripartite consultation, a consultation between government, workers’ and employers’ groups, should take place even before the government submits a draft to the Legislative Assembly or establishes a labor, social or economic policy. The committee also highlighted the importance of prior consultation of employers’ and workers’ organizations before the adoption of any legislation in the field of labor law.

Both the Indonesian Constitutional Court decision on the Job Creation Law and some decisions made by the ILO Committee of Freedom of Association emphasized the same essential principle in developing public policy and legislation, namely, the public participation or consultation. This principle cannot be simply ignored as it is the very fundament that needs to be preserved should Indonesia wants to keep its democracy, as well as its tripartism in order to develop a healthy industrial relation.

Bearing these in mind, we can see that making sure that labor-related public policies and legislation shall be developed through a proper tripartite consultation mechanism is a quintessential route that Indonesia needs to take.

The views expressed are those of the author alone and do not necessarily reflect the position of the ILO or any of its members or constituents, or constitute any kind of endorsement.