Husband and Wife within the Same Company
Leonardus Agatha P., S.H., M.H.
(Advokat, Mediator, Kurator & Pengurus)
The Constitution 1945 of the Republic of Indonesia as fundamental of constitution secured the implementation of human rights towards all Indonesia citizens. Marriage and rights to get a job and decent income are part of human rights that guaranteed in the constitution. However, in fact of daily life we often find employee who prohibited marrying their co-worker within the same company.
Prohibition of marrying co-worker in the same company reflected through Article 153 paragraph (1) letter f Law No. 13 of 2003 concerning Manpower (“Law 13/2003”) which states as follows:
“The entrepreneur is prohibited from terminating the employment due to the the following reasons:
f. The worker/labourer is related by blood and/or through marriage to another worker within the enterprise unless so required in the collective labour agreement or the company regulations.”
That regulation gives space to company to prohibit marriage between their employee which may cause termination if that prohibition has stipulated in work agreement, company regulation or collective work agreement.
Prohibition of marriage between co-worker in the same company as explained above significantly changes through Decision of Constitutional Court No. 13/PUU-XV/2017 which states that:
“Phrase unless has regulated in work agreement, company regulation, or collective work agreement in Article 153 paragraph (1) letter f Law 13/2003 contradict with the Constitution 1945 of the Republic of Indonesia and has no legal force”.
With the existence of Decision of Constitutional Court No. 13/PUU-XV/2017, then Article 153 paragraph (1) letter f Law 13/2003 must be interpreted:
“The entrepreneur is prohibited from terminating the employment relationshop due to the following reasons:
f. The worker/labourer is related by blood and/or through marriage to another worker within the enterprise.”
Whereas the consideration of that Constitutional Court Decision was termination of employment with marriage relation basis between employee/worker is not in line with norms of Article 28D paragraph (2) Constitution 1945 of the Republic of Indonesia or Article 38 paragraph (1) and paragraph (2) Law No. 39 of 1999 concerning Human Rights, Article 6 paragraph (1) International Covenant on Economic, Social, and Cultural Rights which has ratified by Law No. 11 of 2005, and Article 23 paragraph (1) United Nation Human Rights Declaration. Other than that, Constitutional Court Decision No. 13/PUU-XV/2017 states that restriction as stated in Article 153 paragraph (1) letter f Law 13/2003 not eligible for honouring rights and freedom of a certain person because there is no rights or other people’s freedom disturbed by the marriage bond. Besides, in fact of consideration of enforcement of provision in Article 153 paragraph (1) letter f Law 13/2003 is in order to prevent negative things which may occur in the company and establish a well work condition, professional and fairness, and prevent potential conflict of interest. However, Constitutional Court in consideration states that, that matter can be prevented by formulating strict company regulation so that possible to built worker/labour high integrity which may reach a well work condition, professional and fairness.
With the Decision of Constitutional Court No. 13/PUU-XV/2017 then worker in the same company may get married without worrying the risk of termination of employment from company. However, company can also formulate strict regulations to maintain integrity and professionalism of husband and wife in order to not to arise conflict of interest, such as prohibition of husband and wife to be in the same division/department/section or having work relation either directly or indirectly or sub-or relation or mutually examine or evaluate towards each other. The consequence is company may conduct mutation one of intended worker to other division/department/section. Mutation must be done by paying attention to skill, capability, and worker’s education background.
Then, how if there is no suitable position with their skill, capability and education background? Or even after the worker transferred, turn out they are not suitable with their capacity and decreased performance which results in disadvantages for company? This matter arises industrial relations disharmony that could be effected to termination of employment, either done based on Collective Termination of Employment Agreement pursuant to mandate of Article 151 paragraph (2) Law 13/2003 or even practice of “worker forced to resign by company”. To avoid that issue, both company and worker must enter into regulation to maintain conflict of interest as alternative if mutation cannot be done to worker. Conflict of interest maintenance include prevention of potential conflict of interest, definition of conflict of interest, disclosure of conflict of interest, prohibited actions, authority restriction, solution of conflict of interest handling, risk mitigation of conflict of interest, to sanction to worker if conflict of interest does not well maintained so that arise disadvantages to company.
Truthfully, Constitutional Court Decision No. 13/PUU-XV/2017 provide guarantee towards worker’s rights in the same company to get married without any consequence of termination of employment relationship. However, that Constitutional Court Decision righteously shall followed by the enforcement of regulation that could maintain integrity and professionalism between husband and wife to avoid conflict. Without any strict and transparent regulation regarding the maintenance of conflict of interest, then the consequence in the form of employment termination will haunt the worker who marrying their co-worker within the same company.