An insurance company's Collective Working Contract (Perjanjian Kerja Bersama) states that if an employee is married to a fellow employee within the same company, then one of the workers is required to resign. I wanted to ask what the legal basis for this policy since Law No. 13 of 2003 on Labor (Labor Law) does not seem to regulate this issue. Thank you.
Answer:
Article 153 (1) (f) of the Labor Law prohibits employers from terminating employees on the grounds that workers are related by blood and/or marital ties with work colleagues within the same company, unless such prohibition has been agreed to be put aside in the company’s Internal Regulation, Working Contract, and Collective Working Contract.
Based on the abovementioned provision, if a Collective Working Contract has include a provision that prohibits an employee to marry his or her college, that contract is binding (known as the principle of pacta sunt servanda) and will be the reason to exempt the application of certain regulations (see Article 1338 of the Civil Code and Article 153 (1) (f) of the Labor Law). Therefore, the employer is not barred from terminating the employee who marries his or her college from the same company that he or she is working, as long as such matter has been agreed or regulated in the company’s Internal Regulation, Working Contract, and / or Collective Working Contract.
However, the prohibition does not apply to workers who were married before the existence of the company’s Internal Regulation, Working Contract, and / or Collective Working Contract. In other words, workers who were married prior to the existence of the company’s Internal Regulation, Working Contract, and Collective Working Contract cannot be laid-off for reasons of marriage in one company.
Legal basis:
1. Civil Code (Burgerlijk Wetboek Voor Indonesie or BW, Staatsblad 1847 No. 23)
2. Law No. 13 of 2003 on Labor
Umar Kasim (LWS Law Firm)
