Senin, 15 April 2013

SHORT LEGAL OPINION Sans Prejudice


SHORT LEGAL OPINION
Sans Prejudice

QUESTION:   Was the Union (of Labor) need to take any Power of Attorney (PoA) from its member to sign the Collateral Agreement about layoff?

BRIEF OF ANSWER: no definite answer, very dependently which Industrial Labor Court (PHI) jurisdiction domain of the company/factory. PHI Jakarta requires such PoA, but PHI Bandung (West Java) didn’t requires such a thing. There is grey area in labor law. Technical institution usually derogate the general provision that regulated by government.

EXPLANATION:
Ø  Law number 13 of 2003, Art 104 is about Union, but didn’t clarified anything.
Ø  Law number 21 of 2000 about Union, in Art 17 noted that the employee could terminate his/her members of Union in written consent. Art 25à Union have rights to represent the employee in industrial dispute settlement.
Ø  Law Number 2 of 2004 about Industrial Dispute Settlement, Art 87 noted that Union could act as authority in law before the PHI, as representative of its member. Art 2à one of industrial dispute settlement were about layoff. If the object of Collateral Agreement is about layoff, it means Union have the right to sign and registering it to PHI. Art 7 regulated that the Collateral Agreement signed by both parties have to be register to PHI, but in the implementation, even just by one party could be accept by PHI. There is no provision about time period to register after the signed of the Collateral Agreement. So, if the company didn’t fulfill that agreement, the Union still can registering it and request for the execution. By that way of mind, PHI didn’t required both of the parties registering it.
Ø  According/based on my experience and survey, there is variety discretion doing by the technical institution such as PHI. Minister of Employment said there is need not any PoA for the Union to sign Collateral Agreement, but PHI Jakarta make PoA as one of the requirements to register the agreement. But, PHI Bandung in the same time said, the Union didn’t required to get any PoA from its member. Technical institution usually breach the general institution regulation.
Ø  In the practice to implement that knowledge, if the factory locate in West Java (even the law number 2/2004 Article 7 paragraf (3) said that the jurisdiction of PHI is where the Collateral Agreement sign by both parties, because the company could be different city than the factory, but the implementation is the factory location determines which PHI have it jurisdiction) it means the Union didn’t have to take any PoA from its member, except the Union also represent the non-member employees—in this case, the judge in the cout if the dispute going into before the judges, will asked the PoA from the non-member employees. But, if the factory located in Jakarta, without any PoA, the Union cann’t register the Collateral Agreement.
Ø  By the way, the regulation didn’t mention about Letter of Application to submit that Collateral Agreement. But, in the practice, it is one of another requirements to submit the applicaton of Collateral Agreement. So, if you are the representatif of the company domicile in Jakarta, and than the factory in Bandung (West Java province), it means you have to go back after making that Letter of Application. PHI didn’t made any form, because that Letter of Application have to sign by the director of the company; or if you as a legal concultant, you have to show the PoA from the company beside that Letter of Application (without sign by director anymore in that Letter of Application).
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