MIGRANT WORKERS’ ACCESS TO JUSTICE SERIES
Migrant Workers’
Access to Justice
at Home: Indonesia
Bassina Farbenblum l Eleanor Taylor-Nicholson l Sarah Paoletti
Migrant Workers’ Access to Justice
at Home: Indonesia
Migrant Workers’ Access to Justice
at Home: Indonesia
Bassina Farbenblum
University of New South Wales
Eleanor Taylor-Nicholson
University of New South Wales
Sarah Paoletti
University of Pennsylvania
Copyright © 2013 by Bassina Farbenblum, Eleanor Taylor-Nicholson, and Sarah H.
Paoletti.
This publication is licensed under a Creative Commons Attribution-NonCommercialNoDerivs 3.0 license. You may copy and distribute the document, only in its entirety,
as long as it is attributed to the authors and used for noncommercial, educational, or
public policy purposes.Photographs may not be used separately from the publication.
ISBN: 978-1-936133-94-9
Published by
Open Society Foundations
224 West 57th Street
New York, NY 10019, USA
www.soros.org
For more information contact:
This publication is available as a pdf on the websites of the Open Society Foundations
(www.opensocietyfoundations.org) and the Migrant Worker Access to Justice Project
(www.migrantworkerjustice.org)
For more about the Open Society International Migration Initiative, contact
Elizabeth Frantz at: elizabeth.frantz@opensocietyfoundations.org
For more about the Migrant Worker Access to Justice Project, contact
Bassina Farbenblum at: b.farbenblum@unsw.edu.au
Cover photo: After a 10-hour drive, Sugiyani Waryomiharjo arrives at a migrant training
center in Jakarta on February 26, 2007, and tries to contact her mother and her husband
before she has to surrender her mobile phone so she won’t be “distracted” by calls from
family members. ©Sim Chi Yin/VII Mentor Program
Text layout and printing by Createch Ltd.
4
Table of Contents
Terminology and Glossary of Terms
9
List of Tables and Figures
Tables
Figures
11
11
11
Acknowledgments
13
Executive Summary
15
1.
Introduction
23
1.A Origin Countries and Access to Justice for Migrant Workers
23
1.B Overview of Report and Research Method
Report Overview
Research Methodology
25
25
26
1.C International Law and a Rights-Based Approach to Labor Migration
International Human Rights Instruments and Labor Migration
Origin Country Obligations Regarding Access to Justice and Related Rights
28
28
29
1.D Defining and Assessing Access to Justice
31
5
2. Indonesian Workers to The Middle East: A Case Study
3.
33
2.A Indonesian Labor Migration
33
2.B Indonesian Labor Migration to the Middle East
34
2.C Migrant Workers’ Access to Justice in Indonesia
36
Legal & Institutional Frameworks Governing Indonesian Labor Migration
39
3.A Legal Framework
39
3.B Institutional Framework: Responsibilities of Relevant Government
and Private Entities
Government Agencies
Recruitment Agencies and Other Private Actors
42
42
45
3.C Procedural Framework and Institutional Responsibilities Pre-Departure
47
4. Harms Experienced by Migrant Workers
53
4.A Harms in Destination Country
53
4.B Harms in Indonesia
56
Migrant Workers’ Rights Under Indonesian Legislation, Contract,
and International Law
57
5.A Domestic Laws
The Constitution
Statute
Rights in Regional Legislation
58
58
59
60
5.B International Law And Bilateral Agreements
61
5.C Contractual Rights
Placement Agreement
Employment Agreement
Fulfillment of Rights in Placement and Employment Agreements
62
62
65
65
5.D Summary of Rights under Law and Contract
67
5.
6. Mechanisms for Enforcing Rights and Seeking Redress
69
6.A Negotiation and Informal Dispute Resolution
71
6.B Administrative Dispute Resolution
Government Agencies’ Dispute Resolution Functions
74
75
6 TABLE OF CONTENTS
Dispute Resolution Procedure
“Mediation”
Remedies, Sanctions, and Appeals
Perceived Effectiveness of Administrative Dispute Resolution
6.C The Migrant Worker Insurance Program
Legal Framework and Institutions for Insurance
Purchasing Insurance and Claims Procedures
Perceived Effectiveness of the Insurance Program
78
79
81
81
85
87
92
95
6.D Seeking Redress in the Courts
Overview of Indonesian Courts and Tribunals
Redress through the Criminal Justice System
Redress through the Civil Courts
99
99
101
106
6.E Protection Abroad and Embassy Assistance
Legal and Institutional Framework
Perceived Effectiveness of Embassy Dispute Resolution
Beyond Claims Assistance: Other Protective Services
107
108
112
119
7. Challenges to Enforcing Migrant Workers’ Rights and Obtaining Redress
123
7.A Centralization and Distance
124
7.B Documentation Requirements that Workers Struggle to Meet
124
7.C Workers’ Concerns and Cases Not Taken Seriously
126
7.D Lack of Awareness and Understanding of Legal Rights and
Redress Options
127
7.E Lack of Legal Aid and Legal Advice
128
7.F Inadequate Regulation of The Private Sector, which Is Not Held
Accountable for Worker Harms
129
7.G Overlaps and Gaps in Migrant Worker Protection
130
7.H Time, Resources, and Emotional Cost
130
7.I
Corruption and Perceptions of Corruption
131
7.J
Summary—Despondency and Frustration
132
8. Conclusion and Recommendations
135
8.A Summary of General Findings
136
8.B Recommendations
149
MIGRANT WORKERS’ ACCESS TO JUSTICE AT HOME: INDONESIA 7
Annexures
Annexure 1: International Law Ratifications by Indonesia
161
Annexure 2: Interviews and Focus Groups
163
Annexure 3: List of Organizations/Persons Interviewed
165
Notes
8 TABLE OF CONTENTS
167
Terminology and
Glossary of Terms
Abbreviation
or Acronym
English Translation
Bahasa Indonesia
ASEAN
Association of Southeast Asian
Nations
BAP
Examination Report
Berita Acara Pemeriksaan
BNP2TKI
National Body for the Placement
and Protection of Indonesian
Migrant Workers
Badan Nasional Penempatan
dan Perlindungan Tenaga
Kerja Indonesia
BP3TKI
Agency for the Service,
Placement and Protection of
Indonesian Migrant Workers
Balai Pelayanan, Penempatan
dan Perlindungan Tenaga
Kerja Indonesia
CMW
United Nations Convention on
the Rights of Migrant Workers
and Members of their Families
DPR
People’s Representative
Assembly
Dewan Perwakilan Rakyat
DPRD
Regional People’s Representative
Assembly
Dewan Perwakilan Rakyat
Daerah
9
Abbreviation
or Acronym
English Translation
Bahasa Indonesia
KPA
Insurance Membership Card
Kartu Peserta Asuransi
KTKLN
Overseas Workers Card
Kartu Tenaga Kerja Luar Negeri
KUHAP
Criminal Procedure Code
Kode Undang Undang Hukum
Acara Pidana
KUHP
Criminal Code
Kode Undang Undang Hukum
Pidana
MoFA
Ministry of Foreign Affairs
Kementerian Luar Negeri
MoM
Ministry of Manpower and
Transmigration
Kementerian Tenaga Kerja dan
Transmigrasi
PAP
Pre-Departure Briefing
Pembekalan Akhir
Pemberangkatan
Perda
Regional Regulation
Peraturan Daerah
SATGAS TKI
Special Taskforce on the
Handling of Cases of Migrant
Workers and Citizens Abroad
Threatened with the Death
Sentence
Satuan Tugas Penanganan
Kasus Warga Negara
Indonesia/ Tenaga Kerja
Indonesia di Luar Negeri yang
Terancam Hukuman Mati
SOP
Standard Operating Procedure
TKI
Indonesian Migrant Worker/
Overseas Worker
Tenaga Kerja Indonesia
Unless otherwise stated, all references in this report to statutory provisions refer
to articles of Law 39/2004.
The term “recruitment agency” refers to private migrant labour recruitment companies, commonly described elsewhere as manpower agencies, placement agencies or
private employment agencies, among other terms.
The term “country of origin” refers to a migrant worker’s home country (described
elsewhere as “sending country,” a term regarded by some as reflecting the commodification of migrant workers). The terms “destination country” and “country of work” refer
to the country in which a migrant worker is placed as a temporary migrant worker,
instead of “receiving country.”
10 TERMINOLOGY AND GLOSSARY OF TERMS
List of Tables and Figures
Tables
Table 1:
Information and Training Requirements
Table 2: Problems Reported by Migrant Workers Arriving through Jakarta
Terminal 4, 2008–2011
Table 3:
Complaints by Type Received by BNP2TKI Crisis Center,
July 2011–June 2012
49
54
55
Table 4: Laws and Regulations Governing to Migrant Worker Insurance
87
Table 5:
90
Periods of Migrant Worker Insurance Coverage
Table 6: Enhanced Protection Role for Embassies after 2006
108
Table 7: Rights Protection Obligations of Indonesian Foreign Missions
110
Figures
Figure 1: Approvals by Ministry of Manpower for Indonesians to Work
Abroad 2006–2011, Total and to Middle East
35
Figure 2: Middle East Destinations for Indonesian Migrant Workers, 2006–2011
35
11
Acknowledgments
This report was generously funded by the Open Society Foundations International
Migration Initiative, TIFA Foundation, the University of New South Wales Law School,
and the University of Pennsylvania Law School.
The authors are indebted to Dina Nuriyati without whose passionate dedication to
this project the report would not have been possible. Dina collected the field data, liaised
with government and civil society on behalf of the research team, and provided significant input into the content of the report. We are also thankful to Ms. Salma Safitri for
providing advice on Indonesian law.
We are grateful to staff at the organizations who enabled us to convene focus group
discussions with migrant workers in four provinces, and who supported the migrant
workers who participated: Lembaga Advokasi Buruh Migran Indonesia (ADBMI), Lombok Timur, NTB, Paguyuban Jinggo Putri ( PJP), Malang East Java, SBMI DPC Brebes,
Central Java, SBMI DPC Indramayu, and SBMI DPC Sukabumi, West Java.
We greatly appreciate the thoughtful feedback provided by numerous experts in
Indonesia and abroad, who gave generously of their time to review drafts of the report:
Agustinus Supriyanto of the National Commission on Violence Against Women (Komnas Perempuan), Restaria Hutabarat from Jakarta Legal Aid, Jamaluddin from Serikat
Buruh Migran Indonesia (SBMI), Umu Hilmy from Brawijaya University, Anis Hidayah
at Migrant Care, Renata Arianingtyas and Sri Aryani at the Tifa Foundation, Simon Cox
at the Open Society Justice Initiative, and Maria Teresa Rojas and Elizabeth Frantz at
the Open Society Foundations.
13
We would also like to thank Lola Amelia for transcribing the interviews and focus
groups, Leni Achnas for her translation of the report into Bahasa Indonesia and Benjamin Meltzer and Smita Gosh at the University of Pennsylvania for assistance with
citations and copy-editing.
Staff at the Open Society Foundations International Migration Initiative and the
TIFA Foundation in Indonesia provided valuable support throughout the research and
publication of this report.
And finally, we are deeply grateful to all of the migrant workers and their families
and other participants in this study who generously shared their time and experiences
with us.
14 ACKNOWLEDGMENTS
Executive Summary
I.
Overview
This report is the first comprehensive study of migrant workers’ access to justice in their
country of origin. Using the case study of Indonesian migrant workers who travel to
work in the Middle East, it analyses the mechanisms through which those workers may
access justice in Indonesia, and the systemic barriers that prevent most workers from
receiving full redress for harms that they suffer before, during, and after their work
abroad. It also outlines the laws, policies and procedures that govern the operation of
each redress mechanism, and analyzes the legal frameworks that govern migrant workers’ relationships with Indonesian private and public actors more generally. Finally, the
report sets out detailed findings on migrant workers’ access to justice overall, as well as
findings specific to each redress mechanism. It concludes with recommendations for
improving access to justice in 11 key areas, addressed to government, parliament, civil
society, donors, and others.
The findings and recommendations made in this report are based on interviews
and focus groups conducted in Indonesia in 2012, involving 75 returned migrant workers and their families, as well as representatives from civil society organizations, government ministries and departments, and migrant worker recruitment and insurance
companies, as well as legal academics.
The report is the first in a two part series on migrant workers’ access to justice in
their countries of origin, with a forthcoming report on Nepal in 2014.
15
II. Indonesian Workers to the Middle East
Each year, more than half a million Indonesians travel abroad to work for foreign
employers on two-year labor contracts. Around half go to the Middle East. They are
typically women, from small cities or villages, with primary school education and limited prior work experience, and most are hired for domestic work in private households.
Migrants from all countries performing low-wage work in the Middle East suffer particularly high levels of abuse and exploitation, in part due to the kafala system which
bonds a worker to her employer in many Gulf States. Routine harms include unpaid
wages, unsafe work conditions, inadequate rest, inhumane housing conditions, fundamental changes in the nature or conditions of work, the employers’ confiscation of
the worker’s identity documents, or in some cases, confinement to the home and/or
physical or sexual abuse.
When migrant workers’ rights are violated, their access to redress in local courts
or other institutions in the Middle East is extremely limited. To the extent that an Indonesian worker can access justice at all, it generally depends on (1) access to assistance
from Indonesian consulates in the destination country, and/or (2) access to redress
upon return home. Access to justice in countries of origin is also independently important. Many of the harms workers experience abroad can be linked to lack of transparency
and accountability in the privatized recruitment process in the country of origin, as
well as to failure to provide adequate training and rights-based information to migrants
pre-departure. Home-based government and private actors therefore often bear or share
responsibility for worker harms, alongside destination country actors. Indeed, many
common harms, such as wages or work conditions different to what was promised by
recruitment agencies in Indonesia, are often violations of the contract signed between
workers and those agencies.
III. Migrant Workers’ Access to Justice in Indonesia:
Key Findings
Over the past decade the Indonesian government has sought actively to regulate recruitment and placement of workers overseas, and has developed processes and programs to
enable migrant workers to access redress in Indonesia. During this time the Indonesian
government has expanded its protection responsibilities for migrant workers, including
those made available through its consulates. Further domestic law reform efforts are
under way, and 2012 saw Indonesia’s historic ratification of the UN Migrant Worker
Convention.1
16 EXECUTIVE SUMMARY
Despite these promising efforts, significant challenges persist. Most migrant
workers and civil society participants in this study expressed frustration, disappointment, and a general view that the vast majority of migrant workers cannot access justice
in Indonesia. Some of the study’s specific findings are summarized below.
A. Findings on the Four Indonesia-based Redress Mechanisms:
1.
Administrative Dispute Resolution : non-enforceable government-facilitated negotiation with a recruitment agency or insurer, culminating in “mediation.” Although
this is the most accessible mechanism, redress is undermined by lack of standardized procedures and unclear agency functions, lack of transparency, an unremedied power imbalance between workers and recruiters/insurers, untrained
government mediators, and no appeals, complaints or enforcement procedures.
2.
Migrant Worker Insurance Scheme: a mandatory scheme, run by private insurance
consortiums, intended to compensate workers for harms prior to departure and
while abroad. In practice, the insurance system provides very limited redress to
the majority of workers because of low worker awareness of their insured status,
claims procedures that are unfamiliar and inaccessible to most migrant workers,
and coverage exclusions and documentation requirements inappropriate to the
realities of migrant work.
3.
Indonesian Judicial System: civil (e.g., contract disputes) and criminal (e.g., fraud,
trafficking) cases against private individuals and agencies involved in recruitment.
Very few cases have been brought (including strategic litigation), due to systemic
barriers such as the costs, time, expertise and evidence required, as well as perceived judicial bias/corruption.
4.
Embassy and Consulate Assistance: assistance to access redress or obtain evidence
while the worker is abroad, and upon return home. The mechanism most familiar
to workers, but also most criticized for inadequate resourcing, lack of expertise
in relevant Indonesian and destination country laws and processes, and lack of
standardized transparent procedures.
B. Overall Findings on Migrant Workers’ Access to Justice in Indonesia
•
Indonesia’s labor migration laws do not enable workers to access justice. Most
statutory rights and obligations lack accountable actors and enforcement mechanisms, and laws do not focus on worker redress or recruiter accountability for
preventing and redressing worker harms.
MIGRANT WORKERS’ ACCESS TO JUSTICE AT HOME: INDONESIA 17
•
Migrant workers should, by law, have substantial contractual rights within their
agreements with private recruitment agencies, employers and insurers. However,
those rights are not always included in contracts, and are in any case underrecognized by all actors (including by migrant workers and their representatives),
and are under-enforced.
•
The most frequently used redress mechanisms often yield unsatisfactory or unfair
outcomes for workers, in part because the mechanisms lack standardized procedures, transparency and meaningful oversight.
•
Implementation and accountability gaps exist due to overlapping responsibilities
between the Ministry of Manpower, the labor migration agency under the President (BNP2TKI), and private sector actors, as well as between different levels of
government (national and local).
•
Migrant workers face numerous barriers to accessing justice common to all mechanisms:
– Inadequate information regarding their rights and the procedures for accessing redress in the destination country and upon return to Indonesia.
– Challenging evidentiary and documentation requirements for claims, made
worse by inappropriate hurdles to obtaining replacement documents.
– Centralization of redress mechanisms, recruitment agencies, insurers and
government agencies in Jakarta, resulting in practical, financial, and psychological obstacles to access.
– Necessity of legal assistance for most redress mechanisms, and its limited
availability.
– Inadequate and non-transparent regulation of recruitment agencies, and lack
of government oversight of village-level brokers.
– Perceptions that government, insurers, and recruiters do not value worker
concerns.
– Corruption, or perceptions of corruption, associated with mechanisms and
documentation.
18 EXECUTIVE SUMMARY
IV. Recommendations
Improving access to justice for migrant workers requires reforming the specific redress
mechanisms available to migrant workers, and considering new mechanisms. It also
requires changes to the labor migration system overall, including increased transparency and more effective oversight and regulation to hold all public and private actors
within the system to greater account. This is primarily a task for Indonesia’s parliament and government, but other actors, including non-government organizations, the
legal and academic community, and the donor community, can play important roles in
advocating, guiding, and supporting needed reforms and providing direct assistance to
migrant workers seeking to access these systems.
Accordingly, the report makes the following recommendations to Indonesia’s
government:
•
In the current labor migration law reform process, emphasize transparency across
the labor migration system and private sector accountability (of recruitment agencies, brokers, insurers, and others), and ensure that effective pathways exist for
Indonesian migrant workers to access justice. This includes clarifying legal rights
and responsibilities of all actors, and establishing clearly defined enforcement and
redress procedures for breaches of existing statutory and contractual obligations.
•
Decentralize key mechanisms including the insurance claims process and government-facilitated administrative dispute resolution in a manner that enables
workers to effectively access redress throughout Indonesia.
•
Administrative Dispute Resolution. Standardize procedures and make them transparent. Task mediators with facilitating fair outcomes in light of the parties’
contractual and statutory responsibilities, and train mediators accordingly. Also
establish a complaints mechanism and appeals process, and require Ministry of
Manpower investigations and sanctions for serious or repeat recruitment agency
violations identified in administrative dispute resolution claims.
•
Migrant Worker Insurance Program. Reform both the structure and operation of
the program based on quality empirical data and expert analysis. Make the claims
process simpler and more transparent, and require the insurer to meet a pay-out
ratio that reflects appropriate coverage of the most common risks to migrant
workers at all stages of the migration process. The new consortiums should have
stricter compliance requirements for their ongoing appointment.
•
Embassies and Consulates. Increase resources and training to: provide competent
legal assistance to workers in the destination country; conduct more rigorous
MIGRANT WORKERS’ ACCESS TO JUSTICE AT HOME: INDONESIA 19
evaluations of destination-country recruitment agencies and employers, and make
information available to workers pre-departure; and advise workers on redress
processes in Indonesia, and advise and assist them to obtain necessary evidence
while still abroad. Embassy complaint-handling processes should also be more
standardized, transparent, responsive, and geographically accessible.
•
Regulate recruitment agencies more effectively, including through more rigorous
government oversight and transparent licensing procedures that require ongoing compliance with worker protection and redress responsibilities. In addition,
establish procedures for migrant workers and civil society to lodge complaints
that trigger investigations and sanctions.
•
Regulate village-level brokers, either through recruitment agencies or independently.
•
In collaboration with the private sector, establish a process for migrant workers to
easily obtain copies of their placement agreement, employment contract, insurance card, and other documents needed to pursue claims for redress, and eliminate opportunities for corruption or obstruction by recruiters, brokers or insurers.
Government, law schools, the legal profession, civil society organizations and
donors should work together to expand the availability of competent and affordable legal
assistance to migrant workers. This includes enabling access to government-funded
legal aid and developing law school clinical programs and labor migration courses, as
well as improving training and capacity of lawyers and paralegals to advise and represent migrant workers within Indonesian redress mechanisms, and possibly to advise
on basic destination country law.
Civil society, legal academics, and government should also partner to develop
high-quality, accessible resources and training for migrant workers, the private sector
and government. This should include resources on legal rights and responsibilities of
migrant workers, recruiters, insurers, and each government ministry/agency, as well
as resources on procedures and documents required to seek redress through insurance
or other Indonesia-based mechanisms.
Finally, donors should support academics and civil society to engage in further
empirical and legal research to fill critical data gaps, as well as to develop strategic litigation to test and enforce migrant workers’ contractual rights, and to enforce Indonesia’s
international human rights obligations.
All reform initiatives should be developed in close consultation with civil society
representatives and migrant workers, and implemented with the goals of furthering
transparency and accountability and ameliorating barriers to accessing justice.
20 EXECUTIVE SUMMARY
V.
Conclusion
Many of the challenges to migrant workers’ access to redress detailed in this report
are not unique to Indonesia, or to migrants travelling to the Middle East. Countries of
origin, and the various stakeholders within them, have much to learn from each other’s
efforts (and failures) to address these challenges. It is hoped that this report provides
an empirical foundation for those discussions, as well as providing an evidence-based
foundation for advocacy and law reform within Indonesia. It may also function as a
manual of sorts, to enable Indonesian civil society to better understand, use, and test
existing justice mechanisms.
MIGRANT WORKERS’ ACCESS TO JUSTICE AT HOME: INDONESIA 21
1. Introduction
1.A Origin Countries and Access to Justice
for Migrant Workers
Global labor migration has increased exponentially during the past 20 years. Approximately 90 million migrant workers now provide essential services in domestic work,
care-giving, construction, agriculture, fisheries, manufacturing, and the service industry.2 Some of these workers travel through official government-sanctioned channels,
some travel without the requisite immigration and labor permits (i.e., irregularly), and
others move between statuses as their work or visa situation changes. Throughout the
world, private commercial agencies, private brokers, and employers in origin and destination countries perform the vast majority of recruitment and placement of low-wage
migrant workers.
Low-wage labor migration raises complex human rights and labor rights concerns, including treatment of noncitizens; equality and nondiscrimination based on
race, ethnicity, and gender; rights to decent work and to a decent standard of living; and
corporate human rights responsibilities. Low-wage migrant workers routinely encounter harms such as unpaid wages, unsafe work conditions, inadequate rest, inhumane
housing conditions, or employers’ confiscation of their identity documents.3 Accounts
of exploitation, abuse, human trafficking, debt bondage, and other severe human rights
problems are not uncommon.
23
To date, international advocacy efforts to seek redress for low-wage labor migrants
have primarily focused on destination countries and actors within those countries: it is
in the countries of work that temporary workers often experience direct and egregious
human rights violations at the hands of unscrupulous employers. As a result, however,
policy makers, human rights advocates, and donors at the international level have paid
less attention to the critical role that countries of origin may play in enabling migrant
workers’ access to justice.
The special vulnerability of migrant workers stems not only from their circumstances in destination countries. The conditions that give rise to the exploitation, labor
rights violations, and other problems that migrant workers encounter often begin at
the point of recruitment and persist through their return home as they are frustrated
in their attempts to secure access to justice, accountability, and a remedy for the harms
they suffered.4 Indeed, many of these harms can be linked to the lack of transparency
and accountability in the privatized recruitment process, and the inadequacy of predeparture training and rights-based education that migrants receive. Many harms that
occur abroad also breach the contracts that workers sign with recruitment agencies at
home, and are also covered by private insurance policies that workers must purchase
before departing abroad. Workers’ access to affordable and efficient redress mechanisms within countries of origin is therefore especially important, appropriate, and
often required by international law.
In many destination countries, particularly in the Middle East, opportunities to
seek redress and to systemically improve access to justice are limited. The supply of
migrant labor is greater than the demand, and many destination countries see little
incentive to better regulate and enforce regulations protecting migrant workers, particularly those with limited social and political capital.
Countries of origin and the private actors operating within them profit significantly from workers’ remittances, recruitment, and insurance costs. Indeed, in 2012,
global remittances from migrant workers to their origin countries amounted to $534
billion—triple the amount of global development aid.5 This has positive and negative
consequences. On the one hand, it incentivises income maximization at the expense of
worker protection. On the other, it creates longer-term incentives to ensure that labor
migration is effectively regulated and that workers can access justice, for example to
receive wages to which they are entitled or compensation for injuries.
For all of these reasons, there is now a pressing need to examine migrant workers’
access to justice within their countries of origin and to identify paths to improvement,
alongside efforts to strengthen access to redress in destination countries.
Indonesia provides an ideal case study for understanding the challenges that
migrant workers face in obtaining access to justice in their origin country, and the
24 INTRODUCTION
promising opportunities for improvement. Indonesia is one of the largest migrantsending countries in Southeast Asia. It is currently reforming its domestic labor migration regulatory framework, and recently ratified the UN Migrant Worker Convention,6
becoming one of only three countries in Southeast Asia to do so.7 Its civil society
organizations are becoming increasingly engaged in the protection of migrant worker
rights, and have formed coalitions to jointly advocate for better protection of Indonesian
migrant workers under domestic and international law. Indonesia’s efforts to increase
transparency and accountability within the private sector, and to address corruption,
may also offer valuable lessons for improving regulation of the privatized recruitment
and insurance industries that serve migrant workers. And the demonstrated interest
of international organizations and donors in supporting these efforts by government
and civil society creates possibilities for trials and innovation to systemically improve
migrant workers’ access to justice at home. Finally, many of the challenges to migrant
workers’ access to redress in Indonesia, and the conditions that give rise to them, are
not unique. Countries of origin, and civil society within them, have much to learn from
each other’s efforts (and failures) to address these challenges, and it is hoped that this
report provides a foundation for those discussions.
1.B Overview of Report and Research Method
This report is one of two case studies within a larger study–the first of its kind–that comprehensively examines migrant workers’ access to redress within countries of origin. A
second report will focus on Nepal, the country in Asia that receives the largest volume
of remittances in proportion to GDP.
Report Overview
The report provides an in-depth examination of the mechanisms available to migrant
workers seeking redress in Indonesia. It identifies migrant workers’ key legal rights
under domestic laws, private contracts, and international law. It also clarifies the legal
obligations of government, recruitment agencies, private insurers, and others, to redress
the harms that workers suffer. And it provides an overview of the legal and institutional
framework that governs labor migration in Indonesia, as relevant to the enforcement of
worker rights and accessing justice.
The case studies of both Indonesia and Nepal focus on migrant workers who
travel to the Middle East. The “Asia-Middle East corridor” is one of today’s most-travelled
and fastest-growing migration corridors. Labor migration to the region, particularly to
the Gulf countries, is almost all temporary contractual migration, in which workers
MIGRANT WORKERS’ ACCESS TO JUSTICE AT HOME: INDONESIA 25
are bonded to their employers through the kafala system. As a result, workers in the
region suffer particularly high levels of abuse and exploitation, and a number of Middle
Eastern countries have received considerable criticism for failing to protect the rights of
their significant migrant worker populations. Migrant workers’ access to redress in local
courts or other institutions is generally extremely limited. Because of these challenges,
the ability to access justice in one’s home country is particularly important for migrants
to the Gulf and wider Middle East.
Drawing on documentary sources and interviews, focus groups, and roundtables
with migrant workers and a range of other stakeholders, both reports aim to fill critical
information gaps pertaining to access to justice within countries of origin, while also
highlighting areas for further study. They examine in detail the means by which labor
migrants from specific origin countries access informal, administrative, commercial,
and court-based justice mechanisms, against an overlay of the current domestic and
international legal frameworks that regulate migrant laborers and establish legal rights
and obligations.
This first report demonstrates that Indonesia, like other countries of origin in
Asia, has made some efforts to improve protections for its nationals who travel abroad
for low-wage work, including establishing specific redress mechanisms for migrant
workers who experience problems in Indonesia or abroad. However, it also reveals a
lack of clarity and knowledge across all sectors, both among implementers and users
of these mechanisms, regarding the operation of the legal framework, the rights of
migrant workers, and available avenues for accessing justice.
This report works to fill that knowledge gap, in order to inform medium and
long-term systemic change in Indonesia and beyond. Taken together, the two reports
also aim to catalyze dialogue among stakeholders across countries of origin and globally about ways to strengthen migrant workers’ access to justice. Ultimately, the detailed
case studies contained in these two reports will contribute to the development of new
transnational strategies for protecting and fulfilling the human rights of the more than
one million migrant workers who leave their homes in South and Southeast Asia every
year for work in the Middle East, at all stages of the migratory process.8
Research Method
The findings of this study are based on field research in Indonesia, as well as analysis
of laws, regulations, academic literature, and other secondary sources in both English
and Bahasa Indonesia.9 The field research took place between January and July 2012.10
It began with a roundtable in Jakarta in January 2012 on key pathways and obstacles to
migrant workers’ access to redress.11 Twenty-three individuals participated, including
scholars of law and women’s rights, civil society organizations, and private lawyers.
The chairperson of the National Commission on Violence Against Women chaired
26 INTRODUCTION
the roundtable. During this visit, researchers also met government representatives in
Jakarta who were not formally involved in the study, but who provided background
information about the migration process for Indonesian migrant workers.
The roundtable was followed by in-depth interviews and focus groups with 75
returned migrant men and women and their families. Thirty-nine experts and stakeholders were also interviewed about the structure, operation, and effectiveness of specific mechanisms for obtaining justice. These experts included government officials at
both national and regional offices, migrant workers,12 and representatives of civil society
organizations ranging from national advocacy organizations to small local groups that
provided “case handling” assistance to workers (see Annexure 2 for participant breakdown, and Annexure 3 for a full list of interviewees).
Focus groups provided the views of migrants and their families on their efforts
to seek justice, and perceptions of the system. Discussion was wide-ranging, and data
collected was qualitative (personal experiences, opinions) rather than quantitative (such
as numbers of persons who tried a certain mechanism). The focus groups were held at
five locations across four provinces—West, Central and East Java, and West Nusa Tenggara—that are responsible for sending three-quarters of all migrants who travel abroad
each year.13 The towns selected were known by local organizations to send workers specifically to the Middle East. Seven focus groups were held in total: two groups in Sukabumi and East Lombok sub-districts and one in each other district (see Annexure 2).
Focus group participants were either:
•
Former migrant workers who had experienced problems during the process of
migrating (or applying to migrate) to the Middle East for work—including before,
during or after work abroad—and who had returned since 2009; or
•
Family members of migrant workers who met the above conditions or who were
still abroad at the time of the focus group.
Local civil society organizations in the district capitals played a central role,
including identifying suitable participants and inviting them to the focus groups. Many
workers felt somewhat reluctant to join a focus group and share details about their experiences with others, and the organizations supported workers to feel safe in this environment. In many cases, the organizations had helped these women and men migrant
workers, and those migrant workers recommended other people to join (snowball sampling). On these organizations’ recommendation, the focus groups also included family
members; in many cases it was family members who had used various mechanisms in
Indonesia on behalf of a migrant worker abroad, or had assisted the worker after return.
This report is qualitative in nature and therefore rich in detail and experience,
but does not purport to be representative of all migrant workers or other participants. It
MIGRANT WORKERS’ ACCESS TO JUSTICE AT HOME: INDONESIA 27
also takes a broad approach to access to justice, looking at all mechanisms and users of
the system. While this is useful in identifying key issues and barriers, further detailed
research on particular mechanisms would be useful. Similarly, the study could not, for
reasons of time and space, investigate the experiences of particular groups of migrants
such as women or irregular migrants, and the impact of gender and status on the
migrants’ experiences and ability to access justice. These would be valuable follow-up
studies.
1.C International law and a Rights-Based Approach
to Labor Migration
In considering access to justice for migrant workers, this report first takes a human
rights approach: it looks not just at the laws and mechanisms in place to provide redress
to migrant workers, but also examines how those laws and mechanisms ultimately serve
the individual migrant worker’s realization and enjoyment of rights. It views migrant
workers as rights-holders, and seeks to identify the specific entities that are responsible
for fulfilling those rights—be they government agencies and ministries, private recruitment agencies, insurers or others. Finally, the report draws on human rights established
in the international treaties to which Indonesia is a party, alongside other statutory and
contractual sources of migrant worker rights.
International Human Rights Instruments and Labor Migration
As the international community has grown increasingly aware of the special vulnerabilities of migrant workers, it has developed new instruments for protecting and promoting migrant worker rights, such as the U.N. Convention on the Protection of the
Rights of all Migrant Workers and Members of their Families (the CMW).14 The CMW
provides guidance on the applicability to migrant workers of existing human rights
treaty provisions, aimed at protecting and promoting the free and equal enjoyment
of rights and dignity. The committee overseeing the Convention on the Elimination
of All Forms of Discrimination Against Women (the CEDAW Committee) has also
specifically addressed the human rights concerns of women migrants through General Recommendation 26 on Women Migrant Workers, noting that women experience
human rights violations during all stages of migration. Other international treaties place
specific responsibilities on origin countries to protect migrants from illegal practices of
discrimination, exploitation, and abuse.
Regional organizations have also created their own normative frameworks.
Within South East Asia, for example, ASEAN adopted the ASEAN Declaration on the
28 INTRODUCTION
Protection and Promotion of the Rights of Migrant Workers at the 12th ASEAN Summit
(Jan. 2007).15 Efforts are underway among the South East Asia National Human Rights
Institutions Forum to support and develop an ASEAN Instrument on Protection and
Promotion of the Rights of Migrant Workers, in furtherance of this Declaration.16 And
the “Dhaka Declaration” focused on migration with dignity was adopted in 2011 by the
Colombo Process, a regional ministerial consultation process on labor migration for
countries of origins in Asia.17
Origin Country Obligations Regarding Access to Justice and Related
Rights
Indonesia has ratified a number of international conventions pertaining to the rights of
migrants and workers (Annexure 1). International human rights law imposes on states
the obligations to respect, protect, and fulfil the human rights of all persons within their
jurisdiction. With regard to countries of origin vis-à-vis their obligations to their citizens
traveling abroad for work, this requires taking affirmative measures at the outset to protect the rights of their migrant workers. This includes, for example, effectively regulating the recruitment process, and ensuring redress when the rights of migrant workers
are violated. Access to justice thus becomes a critical component of ensuring not just
transparency and accountability in the labor migration system, but also the ultimate
fulfilment of the rights of the individual worker and her family members.
The CMW identifies a specific obligation on origin countries to provide access to
justice to migrant workers whose rights have been violated (Article 83). Indeed, access
to justice, or access to redress, is a basic human right across all of the core international human rights treaties. Victims of human rights violations have an explicit right
to equal access to the courts and to an effective remedy, determined by a competent and
independent tribunal, for rights violations. Furthermore, those rights must be enjoyed
equally among all people without discrimination. This right is also reflected or implied
in many national constitutions. For example, Indonesia’s Constitution states in Article
28D(1): “each person has a right to recognition, security, protection and certainty under
the law.”18
In addition to the specific obligation to ensure access to redress, origin countries
have relevant obligations regarding the provision of information and documentation
to migrant workers. As this study of Indonesia reveals, lack of information and lack of
documents are frequent barriers to migrant workers accessing justice, and are also a
contributing factor to other rights violations. The CMW provides that origin country
governments have an obligation to inform prospective migrant workers of:
•
All working conditions and requirements they must satisfy in the state of employment before their departure (Article 37).
MIGRANT WORKERS’ ACCESS TO JUSTICE AT HOME: INDONESIA 29
•
Their rights arising out of the CMW (Article 33(a)); and,
•
The conditions of their admission and their rights and obligations under the law
and practice of the state of employment (Article 33(b)).
It further requires origin country governments to adopt measures against the dissemination of misleading information relating to emigration and immigration (Article
68). Among other things, this means that a state-party to the CMW such as Indonesia
has an affirmative obligation to guard against migrants being placed in positions in
which the terms and conditions of their work differ significantly from what they had
been promised at the time of recruitment. Migrant workers must also be protected from
the confiscation of their documents (Article 21). Finally, the CMW aims to create international and inter-state cooperation, consultation, and information sharing regarding
the flow of migration, and calls upon state parties to collaborate.19
The CEDAW Committee has critiqued practices common in origin countries
including detention of women by recruitment agencies during training, failure to provide information on migration, exploitative fees, and bans or restrictions on women’s
out-migration which contribute to the abuses endured by migrant women.20 It specifically recommends that countries of origin:
•
Provide comprehensive education on the migration process, including education
specific to the contents of the labor contracts, legal rights, and entitlements within
the countries of work, and procedures for accessing formal and informal justice
mechanisms;
•
Require recruitment agencies to participate in training programs on women
migrant workers’ rights and recruitment agency obligations toward women
migrant workers;
•
Provide a list of reliable recruitment agencies, and implement accreditation programs to ensure good practices among recruitment agencies;
•
Establish clear regulations and monitoring systems to protect female migrants,
including to ensure that recruitment agencies protect women migrant workers’
rights, including legal sanctions for breaches of the law by recruitment agencies;
•
Safeguard the remittances of women migrant workers; and,
•
Facilitate and ensure the right to return, services to women upon return, and
other protections.21
30 INTRODUCTION
1.D Defining and Assessing Access to Justice
As well as being a fundamental human right guaranteed to all people, access to justice
serves several important legal, normative, and practical functions. It is essential for
enforcement of contractual rights, particularly relevant to migrant workers who enter
into private contracts with recruitment agencies, insurers, and sometimes employers
over the course of the migration process. It strengthens the rule of law by increasing transparency and ensuring accountability of private and government actors, often
addressing systemic gaps in rights protections. It can encourage future good behavior
by state and private actors, and increase individuals’ faith and participation in public life
and institutions. Financial redress can enable workers to escape the cycle of debt and
poverty that makes them vulnerable to further exploitation and abuse. And of course, it
achieves the ultimate aim of providing justice to individuals who have been wronged.
“Access to justice” is a large field of inquiry, with numerous competing definitions
and frameworks. The American Bar Association Rule of Law Initiative, for example,
emphasizes the importance of institutions:
Access to justice means that citizens are able to use justice institutions to obtain solutions
to their common justice problems. For access to justice to exist, justice institutions must
function effectively to provide fair solutions to citizens’ justice problems.22
The World Bank takes a broader development-based view that recognizes social
and economic injustice. It considers equality, access to decision-makers, and both formal and informal “systems” (rather than institutions) for accessing justice. It defines
access to justice as:
Access by people, in particular from poor and disadvantaged groups to fair, effective and
accountable mechanisms for the protection of rights, control of abuse of power and resolution of conflicts. This includes the ability of people to seek and obtain a remedy through
formal and informal justice systems, and the ability to seek and exercise influence on lawmaking and law-implementing processes and institutions.23
This report takes an intermediate position. It reviews both formal and informal
avenues for accessing justice but pays particular attention to the laws and institutions
that enable and implement these pathways, as well as to their place in the overall legal
and institutional frameworks governing migrant labor in Indonesia. In addition, it considers perceptions regarding the implementation of the mechanisms or processes.
To assess the effectiveness of these mechanisms, the study draws on lists of indicators created by various international institutions to identify a set of core indicators.24
MIGRANT WORKERS’ ACCESS TO JUSTICE AT HOME: INDONESIA 31
It then assesses the legal framework and the perspectives of users of each mechanism
against these indicators. These indicators include:
1.
The clarity of the legal framework;
2.
Citizen and institutional actors’ awareness of the mechanism(s) and its procedures;
3.
The accessibility of those mechanisms, in terms of geography, cost, language,
duration, complexity, need for representation, and other potential barriers;
4.
The fairness of procedures governing access to those mechanisms and due process; and,
5.
The perceived justness of outcomes that the mechanism provides.
As UNDP has outlined, efforts to increase access to justice should focus on
removing impediments to access, with clear identification of “claims holders” or beneficiaries, and “duty bearers,” as well as an assessment of capacity gaps. It also notes,
though, that access to justice is, “much more than improving an individual’s access to
courts, or guaranteeing legal representation. It must be defined in terms of ensuring
that legal and judicial outcomes are just and equitable.”25 As far as possible, this report
also highlights the duty bearers of particular rights, the extent to which those actors are
held accountable by particular mechanisms, and ultimately whether just and equitable
outcomes are achieved.
32 INTRODUCTION
2. Indonesian Workers to the
Middle East: A Case Study
2.A Indonesian Labor Migration
Indonesia established a government-sponsored overseas migrant labor program in 1970
under the Suharto New Order Regime as a way to reduce domestic unemployment and
attract foreign exchange. Today, the country sends more laborers abroad than any other
Southeast Asian nation apart from the Philippines, with over half a million workers
officially departing each year. As of May 2012, 2.4 million Indonesians were officially
recorded as migrant workers abroad, with an unknown number working unofficially.26
The vast majority of these workers are women who work in the domestic sector as
cooks, cleaners, childcare providers, or eldercare workers in private households. Experiences at work and access to justice for Indonesian migrant workers are also, therefore,
strongly gendered issues. They are shaped by the treatment of women both in Indonesia
and abroad, including for example women’s differential access to education and labor
markets, and the (lack of) social respect and legal protection given to “women’s work”
in the home.
Like workers from other countries of origin, many Indonesian migrant workers
experience problems while working abroad, and cases of severe abuse are frequently
reported by the Indonesian media. Arrivals records maintained by the Indonesian government reveal that each year tens of thousands of returnees report having “experienced
33
a problem”—14.5 percent of all returnees in 2011 and 18 percent in 2010 (the numbers
of unreported problems are likely far higher). This equates to tens of thousands of
problems reported per year, a significant challenge to any institutional redress mechanisms in Indonesia or abroad, and does not include those who experience problems in
Indonesia pre-departure and post-return.
2.B Indonesian Labor Migration to the Middle East
The Middle East, particularly Saudi Arabia, has been a significant destination for Indonesian migrant workers since Indonesia began its labor migration program. The first
workers left for Saudi Arabia following the oil boom in the Gulf in the 1970s to meet
sky-rocketing demand for low-wage labor. Today workers continue to travel to the region
for a variety of reasons. Returned migrant workers in this study spoke of the pre-departure procedures being faster and more affordable for Middle East countries than other
destinations in East and Southeast Asia. They also noted the region’s cultural and spiritual significance for Indonesian Muslims. Expert interviewees in the study believed that
Muslim women continue to choose Saudi Arabia above geographically closer countries
in the hope that they will have the opportunity to see the holy city of Mecca and complete the Haj. Indonesian scholars note a common perception that the Middle East is
a “Land of Hope,” but add that workers have very little understanding of the social and
cultural context before departure, and so are surprised by the “heavy work and long
hours that are the reality they must face” on arrival.27
Around a third to a half of Indonesian migrant workers departing abroad each
year travel to the Middle East (see Figure 1). The official numbers have declined since
the introduction of moratoriums on labor migration to several Middle East countries
in 2009 and 2010 (discussed below) but remain significant. In May 2012, the Ministry
of Foreign Affairs reported that 861,000 Indonesian migrant workers were registered
as living in the Middle East region.28 Many others are believed to be working in the
Middle East unofficially.
34 INDONESIAN WORKERS TO THE MIDDLE EAST: A CASE STUDY
FIGURE 1: Approvals by the Ministry of Manpower for Indonesians to Work Abroad 2006–2011,
Total and to Middle East
Number of Placements Approved
800,000
600,000
400,000
200,000
2006
2007
2008
2009
Middle East
2010
2011
Total Approvals
Source: Indonesia Ministry of Manpower and Transmigration
Saudi Arabia remains by far the most popular destination for Indonesian migrant
workers in the Middle East (see Figure 2). However, other destinations in the region
have opened up in recent years and many migrant workers travel to more than one
country.29
FIGURE 2: Middle East Destinations for Indonesian Migrant Workers, 2006–2011
1,400,000
1,200,000
1,000,000
800,000
600,000
400,000
en
m
Ye
t
yp
Eg
ria
Sy
n
ai
hr
Ba
O
m
an
an
rd
Jo
ar
at
Q
wa
Ku
UA
E
it
200,000
Ar Sau
ab di
ia
Number of Placements Approved
1,600,000
Country of Placement
Source: Indonesia Ministry of Manpower and Transmigration
MIGRANT WORKERS’ ACCESS TO JUSTICE AT HOME: INDONESIA 35
There is limited data on the specific demographics of Indonesian workers in
the Middle East, but government data suggests migrant workers to the region are
overwhelmingly female (95 percent on average across countries in the region) and are
mostly employed as domestic workers in private households.30
A small study of workers who returned from the Gulf found that most were young
(51 percent were under 21 the first time they migrated for work), had very low levels of
education and literacy (56 percent had elementary school or lower), and had no previous work experience outside the home.31 Anecdotal evidence from migrant workers
and civil society organizations that participated in this study was consistent with these
findings, indicating that the women who travel abroad generally, and to the Middle East
specifically, are invariably from rural areas and have little or no formal work experience
before departure. Muslim women may speak basic Arabic before departure, but usually the learning curve upon arrival is steep.32 Civil society groups generally expressed
the view in this study that less educated workers chose to go to the Middle East, where
education was not required by overseas recruiters, whereas workers with higher levels
of education (junior high school and above) went to Hong Kong, Singapore, or Taiwan.
These intersecting vulnerabilities—gender, youth, little formal work experience,
and low levels of education—make the barriers to accessing justice even greater for
workers who travel to the Middle East. Indeed, this study shows that Indonesian migrant
workers in the Middle East face more difficulties generally than migrant workers traveling to other regions. Experts perceived this group as encountering more frequent problems, and problems of a more serious nature, than workers to the Asia Pacific region
(see section 4.B below for discussion of these harms). In addition, the structure and
procedures for the recruitment of Indonesian migrant workers make obtaining redress
for harms more challenging. Because recruitment and processing of workers to the
Middle East is highly centralized in Jakarta, workers are often connected directly with
recruiters in the capital via brokers, thus circumventing local checks and protections
and requiring workers to travel farther from their homes for pre-departure preparations. Circumvention of local checks can result in inadequate training, information,
and documentation for workers. Workers to the Middle East are thus more vulnerable
abroad and more likely to have negative experiences. Upon workers’ return, the location
of recruiters in the capital creates even greater challenges to seeking redress.
2.C Migrant Workers’ Access to Justice in Indonesia
Although the challenges faced by Indonesian migrant workers are well known to many
Indonesians, the strategies that workers use, or could use, to resolve these challenges
36 INDONESIAN WORKERS TO THE MIDDLE EAST: A CASE STUDY
are less understood. A common perception, demonstrated in at least one localized study,
is that most migrant workers do not try to access justice at all. Rather, they rely on
informal advice from fellow migrants, particularly those who are known to have been
successful in confronting a recruiter or other party directly.33
This reflects the situation for Indonesians generally. Indonesia’s justice system
presents many challenges to access, particularly for poorer segments of society. Large
studies of access to justice across Indonesia have shown that awareness of legal rights
among the general population (not just migrant workers) is generally low; and that
most people prefer informal mechanisms or traditional dispute resolution to the overburdened judicial and courts system.34 Women in particular have been found to, “face
serious constraints accessing the formal justice system,” including trouble meeting
financial costs and potentially social exclusion.35 Less is known, however, about how the
international and highly regulated nature of migrant work interacts with these broader
challenges in Indonesia.
Given this, the Indonesia-based research combined various data sources to assess
migrant workers’ access to justice, beginning with identifying the key mechanisms
available, their basis in law and policy, and their operation in practice. This study shows
that Indonesia has several semi-formal mechanisms through which migrant workers
might seek redress, in addition to the judicial system. These mechanisms include
administrative dispute resolution and an insurance scheme in Indonesia, as well as
assistance through Indonesia’s embassies and consulates abroad. Indonesia does not
have a specialized tribunal for resolving disputes between migrant workers and recruiters, brokers, or employers.
Almost uniformly, the many participants in this study were pessimistic about
migrant workers’ prospects of redress for harms suffered in Indonesia or abroad.
Participants from outside of government were highly critical of the existing legal and
institutional frameworks governing overseas labor migration, and frustrated with their
application. Some civil society representatives viewed the system as corrupt and extortionate. Participants within government had more faith in the system but appeared constrained in their ability to assist migrants by bureaucracy and institutional in-fighting.
Nevertheless, several recent developments in Indonesia may give rise to new possibilities for innovation and improvement in the resolution of migrant worker problems
in Indonesia. For example, the government recently introduced the National Strategy
on Access to Justice, which recognizes the importance of access to justice for poverty
reduction and has been incorporated into the country’s 2010–2014 development plan.36
The Indonesian legislative body is also in the process of reviewing the national laws on
labor migration, in the wake of the country’s historic ratification of the Migrant Worker
Convention.
MIGRANT WORKERS’ ACCESS TO JUSTICE AT HOME: INDONESIA 37
3. Legal & Institutional
Frameworks Governing
Indonesian Labor Migration
3.A Legal Framework
Indonesia has regulated labor migration for almost 40 years. Early regulations governing labor recruitment and placement were adopted by Ministerial decree in the
1970s, during the Suharto Era.37 These decrees were aimed primarily at maximizing
the number of workers sent abroad, and included very few protections for workers. In
1999, soon after the fall of President Suharto, the minister of manpower passed the
first reformation-era decree on overseas migrant workers.38 The decree established the
broad framework for migrant labor that exists today, i.e., an essentially private enterprise
overseen by the state. The legal framework has expanded considerably since the 1999
decree (itself no longer in force).
In 2004, the Indonesian Parliament (DPR) enacted the first national labor migration law. Law 39/2004 on the Placement and Protection of Indonesian Migrant Workers
Abroad is now the central governing instrument of the labor migration system. It focuses
on governance and administration; institutional powers and responsibilities; licensing
requirements for recruitment agencies; administrative requirements to travel abroad;
and pre-departure processes. It also establishes a small set of migrant worker rights.
39
The minister of manpower has passed numerous implementing regulations
related to Law 39/2004. These include:
•
Regulation 7/2010 on Insurance for Migrant Workers;39
•
Regulation 14/2010 on the Implementation of Placement and Protection of
Migrant Workers, expanding on recruitment procedures for recruitment companies and pre-departure documentation and preparation of workers;40 and,
•
Regulation 12/2011 on Labor Attachés Overseas, which places ministry staff in
embassies abroad to assist migrant workers.41
In early 2013, the president also adopted a whole-of-government regulation,
Government Regulation 3/2013, regarding Protection of Indonesian Migrant Workers
Abroad. This regulation sets out a protection framework for migrant workers, clarifying
the role of each government department prior to departure, during overseas placement,
and upon return.
As well as national-level laws and regulations, Indonesia has 33 provinces and 402
districts (regencies) that may pass regional regulations (Peraturan Daerah, known as
Perda) to regulate matters within their jurisdiction. A number of local jurisdictions have
passed Perda relating to labor migration, particularly regulating pre-departure activities
in their district or province. Three district-level Perda from West Nusa Tenggara Province are reviewed in this study.42 Perda are subordinate to any national legislation on
the same topic.43 And they are only practically useful for migrant workers if the relevant
recruitment agency is headquartered in that jurisdiction (the head office is responsible
for the activities of its branches).44 For migrants to the Middle East, Perda do not generally provide additional protections because, as noted above, the recruitment agencies
that send workers to the Middle East are all centralized in Jakarta and are presumed to
be outside the jurisdictional reach of the district level Perda.
Jurisdiction over recruitment agencies might be achieved through local brokers,
but brokers are not currently recognized in the law or given independent legal status,
and are not mentioned in the local regulations that this study examined. Regulation of
local brokers and the nature of their legal relationship with recruitment agencies warrants further study (see discussion of brokers below).
40 LEGAL & INSTITUTIONAL FRAMEWORKS GOVERNING INDONESIAN LABOR MIGRATION
Who can be a Migrant Worker?
Anyone in Indonesia can apply to be a migrant worker, free of charge, provided they meet the following conditions:45
•
Are at least 18 years of age, proven by birth certificate and national identity card;
•
Have a letter from a medical practitioner stating that the prospective
worker is in good health, and not pregnant (for female migrant workers);
•
Have a letter of permission from the prospective worker’s husband or
wife if married, and parent or guardian if not, witnessed by the local village head;
•
Have a job-seeker card obtained after registering at a local manpower
office as a job seeker; and,
•
Possess the qualifications or have the education level required by the
employer.46
Manpower offices at the local level are responsible for ensuring applicants
meet these criteria,47 and recruitment agencies may impose their own additional criteria such as literacy,48 based on specific employers’ needs.
After satisfying these criteria and being accepted for a position by a recruitment agency, the worker must then fulfill further requirements, including:
•
Pass a competency examination demonstrating work-related skills;49
•
Pass a physical and mental health examination;50
•
Obtain an Indonesian passport, and a visa and work permit for destination country;
•
Attend a pre-departure briefing;51
•
Sign an employment agreement;
•
Obtain Migrant Worker Insurance (see Migrant Worker Insurance
Program below);
•
Pay the migrant worker fee to an authorized bank; and,
•
Obtain an Overseas Migrant Worker Card, a “smart-card” containing all
of the migrant worker’s information on a micro-chip.52
MIGRANT WORKERS’ ACCESS TO JUSTICE AT HOME: INDONESIA 41
3.B Institutional Framework: Responsibilities of
Relevant Government and Private Entities
As in many other countries of origin, the vast majority of low-wage Indonesian migrant
workers are placed overseas by private recruitment agencies and other related organizations, regulated by the Indonesian government.53 The following section outlines the
roles of the main government agencies and private actors involved.
Government Agencies
The Indonesian government is responsible for overseeing the operation of private
recruitment agencies, providing workers with information, and performing the screenings and approvals for workers travelling abroad. Key government functions are carried
out by the national-level Manpower and Transmigration Ministry (MoM), the Ministry
of Foreign Affairs, and a specialized national body, BNP2TKI. Because of the large geographic size and population of Indonesia, provincial and local governments also have
management and oversight responsibilities.
This section sets out the functions of the principle government agencies and ministries. These functions often overlap, particularly between the MoM and BNP2TKI and
their local counterparts. For example, provincial MoM officials do much of the document verification and approval of recruitment in their area, but a BP3TKI official may
then reapprove the documents or ask for additional material. When interviewed for this
study, local MoM and BP3TKI officials described a lack of clarity about their respective
roles. Civil society organization representatives and workers themselves were equally
unclear about the precise delineation of responsibilities between MoM and BP3TKI
offices—a problem that results in both inefficiencies and accountability gaps.
National Institutions (Jakarta)
•
Ministry of Manpower and Transmigration (Ministry of Manpower or MoM)
The Ministry of Manpower has principle responsibility for managing overseas
labor migration in Indonesia, pursuant to Law 39/2004. MoM’s roles are to
set standards and develop rules and regulations for implementation of the
law, and to enforce the law. Its specific responsibilities under Law 39/2004
include licensing and oversight of private recruitment agencies and insurance
companies (Articles 12–26, 68), approving specific “job orders” from abroad
(Articles 28–40), setting standards for all pre-departure processes and documents
(Articles 41–47, 62–63), and supervising the placement of migrant worker applicants (Articles 92–93). It is also in charge of developing international coopera-
42 LEGAL & INSTITUTIONAL FRAMEWORKS GOVERNING INDONESIAN LABOR MIGRATION
tion regarding migrant workers, for example negotiating bilateral agreements,
and determining which countries can receive Indonesian migrant workers
(Article 90).
•
National Body for Placement and Protection of Migrant Workers (BNP2TKI)
To support the Ministry of Manpower, which has responsibility for overseeing domestic employment concerns as well as migrant labor, the Indonesian
president established the National Body on the Placement and Protection of
Migrant Workers (BNP2TKI) in 2006.54 The National Body answers directly to
the president (not the MoM) and is comprised of representatives of all departments, agencies, and institutions relevant to migrant work, who are tasked
with coordinating their labor migration functions through BNP2TKI.55
BNP2TKI is responsible for “implementing policy regarding placement and
protection of migrant workers abroad in a coordinated and integrated manner,”
including reviewing documents, providing pre-departure briefings to workers,
providing information to would-be and current migrant workers, managing
the departure and return of migrant workers through Indonesian ports, and
ensuring “the resolution of problems.”56 BNP2TKI also places migrant workers recruited through government-to-government recruitment programs. In
contrast to MoM, BNP2TKI does not have any enforcement authority over
recruitment agencies or other actors. However, other differences are not as
clear. In interviews, experts repeatedly emphasized the overlap between the
functions of MoM and BNP2TKI in Jakarta, and the lack of clarity regarding
their respective roles and responsibilities.
•
Ministry of Foreign Affairs (MoFA)
The MoFA is responsible for Indonesian citizens abroad, primarily implemented through embassies and consulates in destination countries. Under
Law 39/2004, embassies’ specific responsibilities for migrant workers include:
–
Assessing the quality of employers and partner recruitment agencies in
the destination country who are seeking Indonesian workers, and accrediting partner agencies;
–
Based on this assessment, approving placement documents (including the
placement agreement and the employment agreement) before giving the
worker permission to travel to the destination country (Article 25(2)).
–
Recording a migrant worker’s arrival in the destination country, her
address, and her date of departure, following the worker’s reporting of
her presence in the country to embassy staff (Article 9(d)).
MIGRANT WORKERS’ ACCESS TO JUSTICE AT HOME: INDONESIA 43
The “quality” assessment of recruitment agency partners is based on whether
the recruitment agency is legally constituted and operating according to the law
of the destination country (Articles 24–25(1)). The foreign mission must compile and publish a list of problematic recruitment agencies every three months
(Article 25(3)–(4)). According to Government Regulation 3/2013, in order to
obtain accreditation, the agency must also demonstrate adequate facilities and
human resources, a minimum two-year work plan, and present its latest balance sheet. It must also have a clear track record concerning the placement of
migrant workers in the destination country—namely not appearing on the list
of problematic agencies.57 Without further investigation or criteria for inclusion in the list it may not adequately reflect the agencies’ treatment of migrant
workers, but this might be addressed in the implementation of the 2013
regulation.
Regional Institutions and Agencies
A number of different offices work at the regional level across Indonesia. In
order of authority:
•
–
The provincial MoM office, under the authority of the governor;
–
BP3TKI (Agency for the Service, Placement and Protection of Migrant
Workers);
–
District/City MoM offices, under the authority of the equivalent of a mayor.
Provincial Manpower Offices and BP3TKI
Both the MoM and BP3TKI (the provincial office of BNP2TKI) operate at the
provincial level and their respective functions are not clearly delineated in
regulations (see Section 6.B on Government Agencies’ Dispute Resolution
Functions below for further discussion). The MoM is generally responsible
for coordinating within the province all activity and actors related to the placement and protection of migrant workers from the province, including coordinating the work of the BP3TKI.58 It also grants permission to recruitment
agencies to recruit labor in the province.59
The BP3TKI is tasked with implementation, namely “simplifying the document preparation and processing for migrant workers” in the province.60 After
the recruitment agency and local MoM office select workers for placement,
copies of all signed placement agreements are sent to the BP3TKI (Article
19(3)) and BP3TKI “undertakes all placement-related services for those workers” (Article 20). These services are not defined in the regulation. The BP3TKI
44 LEGAL & INSTITUTIONAL FRAMEWORKS GOVERNING INDONESIAN LABOR MIGRATION
also provides the worker pre-departure briefings (Pembekalan Akhir Pemberangkatan, or “PAP”), facilitated by the MoM provincial office.
•
District/ City (Local) Manpower Offices
The MoM has labor offices within local government administration. These
offices are invariably geographically closest to migrant workers and thus the
first port of call for individuals seeking information (as detailed under Administrative Dispute Resolution below).
Under the law, the local MoM labor migration staff are responsible for handling all government interactions with an aspiring migrant worker until the
person is officially selected by a recruitment agency. They first screen candidates, (see Box on “Who Can be a Migrant Worker”) and provide job-seeker
cards.61 They are then tasked with carrying out selection of workers with
recruitment agencies in their jurisdiction.62 After the workers are selected,
the local MoM provides approval for a passport to be prepared, and BP3TKI
will then prepare the relevant documents at the province level.63 In practice,
however, it is unclear whether all of these steps happen for all migrant workers; they generally do not happen for workers to the Middle East for whom
local brokers handle the initial stages of migration and connect the worker
directly with a recruitment agency in Jakarta.
BNP2TKI also has a local presence in a handful of locations through Service
Posts (P4TKI offices), created to smooth the departure and return of migrant
workers from major ports.64 Until recently, P4TKI offices were solely located
in transit points, rather than in workers’ small home communities, although
a handful have opened recently in sending regions.65 None of the focus group
communities had a service post in the area, and future study is warranted
to understand P4TKI’s potential for facilitating dispute resolution between
migrant workers and recruitment agencies.
Recruitment Agencies and Other Private Actors
Private Recruitment Agencies
The vast majority of migrant workers are recruited and placed overseas by private agencies. As of January 2013, the Ministry of Manpower reported 559 private recruitment
agencies currently licensed to operate in Indonesia.66 These agencies handle the selection, training, departure, placement, and return of migrant workers from overseas.
Regulation of private recruitment agencies is primarily conducted through licensing. An agency may receive a license from the Ministry of Manpower after submitting
MIGRANT WORKERS’ ACCESS TO JUSTICE AT HOME: INDONESIA 45
its documents of incorporation and paying a license fee. The conditions for obtaining a
license are not onerous.67 The applicant is not obliged, for example, to demonstrate that
he or she is a fit and proper person or to provide character references, and there is no
provision for the ministry to seek additional information from the applicant or to place
conditions on a license. Further, the licensing process is highly opaque—applicants are
not required to publish their application, and the regulations do not provide for the filing of an objection to an applicant receiving a license. The MoM does have the power
to cancel a license in certain cases, after providing written notice to an agency, and can
temporarily suspend its operation (Article 100).68
The Ministry of Manpower is responsible for oversight of recruiters at national,
provincial, and local levels, and the Ministry of Foreign Affairs is responsible for overseas branches of an agency (Article 92). However, Law 39/2004 and regulations do
not specify what “oversight” entails, or establish a mechanism for inspection of agency
premises or records. Furthermore, neither the act nor regulations prohibit individuals
involved in deregistered agencies from involvement in new agencies seeking registration. The limited regulation and oversight of recruitment agencies in Indonesia makes
it extremely difficult for migrant workers to hold recruiters accountable for rights violations, ultimately undermining their access to justice.
Recruitment Agency “Partners” Abroad
Indonesia-based recruiters frequently partner with destination country agencies that
place workers with specific employers.69 The employment agreement that migrant
workers sign in Indonesia must be made with either the employer or the partner agency
abroad.70 As discussed earlier in this section (see Ministry of Foreign Affairs, above),
the MoFA, through its foreign missions, is tasked with assessing partners and reporting
problematic agencies to Jakarta.71
In early 2013, the Minister of Human Rights adopted a government regulation,
signed by the president, to further clarify the responsibilities of business partners. The
regulation recognizes the importance of agency partners as protectors of migrant workers from cruel employers, and as responsible for resolving conflicts between employers
and migrant workers.72
Brokers/Agents
Individual brokers (commonly called “sponsors” in Indonesia) operate at the local
level, identifying potential workers and connecting them with recruitment agencies.
Although brokers are a common part of many migrants’ experiences, their activities are
not directly regulated. They are not subject to any independent licensing scheme and
are not mentioned in Law 39/2004. Under some circumstances they might be considered “agents” of recruitment agencies and thus indirectly subject to regulation, though
46 LEGAL & INSTITUTIONAL FRAMEWORKS GOVERNING INDONESIAN LABOR MIGRATION
this relationship does not appear to have been tested in court. Indeed, if brokers are not
acting for recruitment agencies some of their activities could be prohibited by Article 4
of Law 39/2004, which criminalizes recruitment by individuals of Indonesian citizens
for work abroad. As discussed later in this report, the lack of government oversight of
brokers has led to frequent fraud and other systemic problems for which workers have
limited, if any, avenues for redress. As discussed earlier, this is a particularly significant
problem for workers to the Middle East because the recruitment agencies are all Jakartabased, and workers rely on brokers to connect them with an agency.
Insurance Companies, Training Centers, and Related Organizations
A number of other private actors are involved in the labor migration process. Insurance companies (discussed in section 6.C., The Migrant Worker Insurance Program)
provide financial redress to migrant workers who suffer covered losses. Other private
entities include training centers paid to provide job and language training to migrants,
health centers that conduct pre-departure examinations, certification organizations that
certify a worker as qualified to work abroad, and professional associations of recruitment agencies, such as APJATI (Indonesian Migrant Worker Companies Association)
and Himsataki (Indonesian Migrant Workers Employers Association). Finally, banks are
involved in the transmission of remittances, and transportation companies are involved
in transporting workers from the airport in Jakarta back to their home communities.
Besides insurance companies, these actors were not specifically involved in disputes described by civil society interviewees or workers in this study. However there is
no reason to believe that they are better regulated—or more protective of workers—than
private recruitment agencies and brokers operating within the labor migration system.
The operation and oversight of these entities would benefit from further study.
3.C Procedural Framework and Institutional
Responsibilities Pre-Departure
Migrant workers’ experience throughout the pre-departure phase has a significant
impact on whether they experience harm before or during the placement abroad,
and whether and how they seek redress following this harm. Under Article 31 of Law
39/2004, once the recruitment agency has received permission from MoM to recruit
for a job order and then conducted recruitment and selection, the agency must arrange
for all selected migrant workers:
•
Education and training;
•
Physical and mental health examinations;
MIGRANT WORKERS’ ACCESS TO JUSTICE AT HOME: INDONESIA 47
•
Personal and travel documents;
•
A competency exam;
•
A pre-departure briefing;
•
Departure.
Following sustained criticism of the government’s oversight of this process, in
January 2013, the president signed new regulations that attempt to clarify the state’s role
in protecting workers during pre-departure preparations.73 These include both standardsetting (“administrative”) responsibilities, and service delivery (“technical”) responsibilities as follows:
•
Standard-setting (“administrative”) responsibilities:
– Determining placement document requirements, and preparing workers’
documents;
– Setting placement fees, based on the country of destination and work sector;
– Setting conditions and terms of work abroad, including hours of work, wages
and method of payment, leave and rest time, and social security.
•
Service delivery (“technical”) responsibilities:
– Public awareness campaigns and information dissemination about working
abroad, both through direct provision of information and through the media;
– Improving the “quality” of migrant workers through trainings, pre-departure
briefings, and a competency exam;
– Defending the fulfillment of the rights of migrant workers who have died, have
been seriously injured, become unwell or whose placement has not occurred
through no fault of the worker;
– Monitoring and oversight of placement agencies.
How these will be defined and implemented in practice remains to be seen.
Education and Training
Recruitment agencies and the government have three phases of pre-departure information, education, and training obligations toward prospective migrant workers (see
Table 1). Article 31 of Law 39/2004 requires recruitment agencies to provide: education
and training as part of the initial recruitment process with MoM’s oversight; additional
training as part of pre-departure preparations; and a final briefing session immediately
48 LEGAL & INSTITUTIONAL FRAMEWORKS GOVERNING INDONESIAN LABOR MIGRATION
pre-departure. The government is also required to provide workers with information
before they decide to apply to work abroad.
TABLE 1: Information and Training Requirements
Timing
Prior to
application
Method of
Delivery
Information Provided
Responsible
Party
Location
In-person oneday “counseling
and guidance”
session.74
– Recruitment process
– Documents required
– Rights and
responsibilities of
prospective/current
migrant workers
– Situation, conditions,
and risks in destination
country;
– Methods for protecting
migrant workers. 75
Recruitment
agency
together
with the
local office
of the
MoM.77 The
local office
must also
approve
the content
of the
briefing.78
Local office
of MoM in
region where
recruitment
will take
place.
Regulation also requires
that the information
include fees and details
of the position, including
wages, leave, etc.76
Pre-departure
preparations
Education,
training and/
or work
experience,
culminating in
“competency
exam.”79
– Work skills relevant to
job
– Situation, conditions,
culture and traditions
of country of work.
– Communication in
language of country of
work.
– Rights and
responsibilities.80
Recruitment
agency
In Jakarta, at
an institution
licensed
to provide
training,
either
independent
or owned by
recruitment
agency.81
Pre-departure
“PAP” briefing
session in
the several
days before
departure (not
necessary
for workers
who returned
from abroad
within past two
years).82
– Laws and regulations
(immigration, labor and
relevant criminal laws)
of destination country.
– Employment contract,
including type of work,
conditions and wages,
rights and methods for
resolving disputes.83
Government
(BP3TKI).84
Recruitment
agency
responsible
for enrolling
worker.85
At BP3TKI
at the
provincial
level. In
Jakarta
for those
traveling to
Middle East.
MIGRANT WORKERS’ ACCESS TO JUSTICE AT HOME: INDONESIA 49
At each pre-departure stage the worker is to be informed of certain rights and
obligations. The PAP also includes discussion of how to resolve disputes. However,
neither Law 39/2004 nor the subsidiary regulations detail the specific rights of which
workers should be made aware, or even the source of those rights. Nor do they specify
which dispute resolution methods workers should be instructed on or the kind of information they should receive.
Evidence from the focus groups and expert interviews indicates that few (if any)
workers receive all of the required information. The pre-application sessions were not
mentioned by any returned workers—all described a broker putting them in contact
with a recruitment agency directly. The study did not determine when or how these
sessions might take place for other workers recruited through locally-based agencies.
Most migrants described receiving some competency training, however the level
and depth of the training varied considerably. In some cases the workers learned how to
clean and iron. Others said they learned a little about the language and culture of their
country of destination. Some described several weeks of training and others just a few
days. A recruitment agency reported that some training centers gave the competency
certificate for a fee without workers ever having to step through the door, apart from
having their photographs taken.
The most consistently available of the pre-departure information sessions is the
government-run PAP: almost all workers reported attending a PAP, in which they
signed the employment agreement and received information about what to expect and
how to behave abroad. It was in the PAP that many workers learned to contact the
Indonesian embassy if they have problems.
Former migrant workers participating in focus groups frequently described the
manner of delivery of information and training as disempowering. They recounted
being held in crowded placement centers with little opportunity to leave or visit their
families, sometimes for several months, while they waited for their documents to be
prepared.86 The authors observed recruitment agencies referring to the women as “children,” and both government and recruiters displayed a paternalistic attitude toward the
women who were leaving abroad, even though some had traveled several times previously. For example, civil society organization experts attributed migrant workers’ low
awareness to the failure of recruitment agencies to inform workers about the contents
and importance of the insurance policy, considering it unnecessary or too complicated
for them.
Practices appear to have improved somewhat over the past 10 years, as the recruitment industry has received increased scrutiny. But the provision of pre-departure information and training remains inadequate, and likely contributes to the problems that
workers encounter abroad. It also limits workers’ ability to seek redress for those prob-
50 LEGAL & INSTITUTIONAL FRAMEWORKS GOVERNING INDONESIAN LABOR MIGRATION
lems. As detailed in the sections that follow, many workers do not seek redress because
they are unaware of their legal rights, the mechanisms that exist to enforce them, or
they do not know how to access the relevant mechanisms.
MIGRANT WORKERS’ ACCESS TO JUSTICE AT HOME: INDONESIA 51
4. Harms Experienced by Migrant
Workers
4.A Harms in Destination Country
Indonesian migrant workers encounter problems in all destination countries. On average, BNP2TKI reports that around 14 percent of returnees report a problem, and this
does not include the many more who decline to describe their experiences to officials at
ports.87 For those who travel through Jakarta’s Terminal 4 Selapajang, the main gateway
into Indonesia, workers describe problems such as early termination, work-related illness, non-payment of wages, physical mistreatment, and sexual assault. In 2011 alone,
2,137 returned workers reported physical abuse and 2,186 workers reported sexual
assault during their time abroad.
BNP2TKI reports that the Middle East, and specifically Saudi Arabia, is responsible for the majority of problems reported by returnees. In the four years between 2008
and 2011, workers arriving at Terminal 4 reported a total of 194,967 problems. Around
half of these were made by workers coming from Saudi Arabia, and almost 75 percent
were made by workers returning from the Middle East as a whole (see Table 2).88
53
TABLE 2: Problems reported by migrant workers returning through Jakarta Terminal 4, 2008–2011
Country of work
Number of workers who
reported problems upon return
Percentage of all workers who
reported problems upon return
Saudi Arabia
96,448
49%
UAE
21,146
11%
Qatar
10,312
5%
Kuwait
7,930
4%
Oman
6,611
3%
Bahrain
2,214
1%
Syria
1,181
1%
145,842
75%
Middle East Total
Source:
BNP2TKI Returns Statistics
Records of complaints made directly to BNP2TKI’s Crisis Center also reflect this
pattern. Between July 2011 and June 2012, three quarters of the 7,615 formal complaints
made by migrants or their families related to work experiences in the Middle East (74
percent), even though only around one third to one half of workers are placed in that
region.89 Almost 60 percent of the complaints related to Saudi Arabia, far higher than
the next highest country, Malaysia, which accounted for just 9 percent of complaints.90
Interviewees and focus group participants generally held the view that most problems experienced by Middle East migrant workers occur overseas in the home of the
employer, rather than pre-departure or post return. Official figures supported this observation. Of all complaints to BNP2TKI’s crisis center that identified a particular problem
(a total of 7607), almost half were based on one of two issues: non-payment of wages, or
“loss of contact” between the family and the worker abroad, i.e., when the family loses
all contact with the worker abroad and contacts BNP2TKI for assistance in finding her.
(See Table 3). It is possible that some complaints raised multiple issues, but this is not
recorded in the data.
54 HARMS EXPERIENCED BY MIGRANT WORKERS
TABLE 3: Complaints By Type Received by BNP2TKI Crisis Center, July 2011–June 2012
Type of Complaint
Number of Complaints
Received and Verified
% Of All Complaints
Non-Payment of wages
1,639
22%
Loss of contact
1,520
20%
Employment different to contract
811
11%
Worker wishes to be brought home
782
10%
Worker dies while abroad
472
6%
Violence at the hands of employer
358
5%
5,582
73%
Total
Source: BNP2TKI, Reports per Case, July 2011–June 2012.
BNP2TKI does not disaggregate the types of complaints by country or region,
so it is unclear whether this distribution applies equally across destination countries.
Government and civil society interviewees suggested that families of migrants working in the Middle East bring most “loss of contact” cases. Interviewees believed the
increased prevalence in the Middle East was because homes are less connected to the
internet for Skype communication or social media like Facebook (frequently used by
workers to communicate with their family), and because employers in the Middle East
take workers’ phones from them as a matter of course (unlike those in destinations such
as Hong Kong and Singapore). As well as making it difficult for workers to maintain
relationships with family and friends and causing workers and family much emotional
hardship, “loss of contact” also prevents workers from seeking help when problems
arise. Experts also noted a perception that cases of physical abuse and workplace injury
were qualitatively more severe in Middle East destinations, particularly in Saudi Arabia.
Almost all of the harms that focus group participants reported had occurred
abroad; most were contract-related. The most common contractual problems related
to non-payment of wages, sometimes for several months, sometimes for several years.
Some workers reported that the work differed from what had been promised—one had
agreed to domestic work, for example, but was made to work outside tending goats. Others said the hours or nature of the work was excessive and they were not able to rest or
provided with enough food or time to eat. In some cases workers were hit or threatened
when they asked for their wages. In a handful of cases, workers reported that members
of their employer’s family had hit and kicked them for making mistakes.
MIGRANT WORKERS’ ACCESS TO JUSTICE AT HOME: INDONESIA 55
In the late 2000s, public outcry about reports of ill-treatment of Indonesians
working in the Middle East caused the Ministry of Manpower to impose moratoriums
on recruitment of domestic workers to a number of Middle East countries. At the time
of writing, moratoriums were in place on Kuwait (since 2009), Jordan (since 2010), and
Saudi Arabia (since 2011).91 In 2011, the ministry also imposed moratoria on recruitment to Yemen and Syria due to internal armed conflict. While the official number of
domestic workers departing to these destinations has dropped considerably, hundreds
of thousands remain in the region under current or expired contracts, and some continue to travel through irregular channels. BNP2TKI has been assisting Indonesian
migrants in those countries to return.92
4.B Harms in Indonesia
Even though workers mainly described harms they suffered abroad, many of these
problems were likely connected to problems in the pre-departure phase. Inadequate
documentation, information and training, for example, make workers more vulnerable
to abuse, and less able to seek help should problems arise.
In addition, a handful of focus group participants had experienced harms in
Indonesia that were unrelated to what occurred abroad. For example, one worker paid
a recruitment agency but the promised job did not materialize (this is referred to as
a “failed departure”). Others described lost luggage and savings on the journey home.
Studies by others have noted that in fact harms occur at every stage of the journey.93
Interestingly, when pressed about efforts to seek redress, workers and civil society
lawyers revealed other challenges not initially described as “problems” associated with
the migration process. For example, interviewees described recruitment agencies that
refused to return crucial personal documents submitted during the application process
(such as a birth certificate or diploma) without payment of a fee. The fee was purportedly to compensate the agency for the worker having broken the contract by returning
early. In other cases, agencies reportedly took a cut of insurance payments, or demanded
the worker travel abroad again to repay debts incurred through a previous trip that
ended early. Recruiters appeared to see these as commercial solutions to a broken contract, regardless of the terms of the placement agreement (if one was provided). These
actions do not appear to be permitted by law.
56 HARMS EXPERIENCED BY MIGRANT WORKERS
5. Migrant Workers’ Rights
Under Indonesian Legislation,
Contract, and International
Law
Many of the government officials and others interviewed in this study underscored
the importance of educating workers about their rights, and fulfilling workers’ rights.
However discussion of rights was always non-specific; neither government nor civil
society representatives referred to a specific right or set of rights. No interviewees, government documents, or even legislation identified the source of the rights about which
migrants ought to be educated, and it is unclear whether they were referring to rights
under the Indonesian Constitution, legislation, contractual agreements, international
law, or rights in some broader moral sense. Indeed, a review of the law, literature, and
advocacy materials in Indonesia did not reveal any document that comprehensively sets
out the legal rights of Indonesian migrant workers.
An important task of this research was therefore to begin identifying some of the
specific legal rights that migrant workers possess under public, private, and international law, that they might later be able to enforce in various forums to seek redress for
harms that they have suffered—and about which they ought to be informed as part of
government and recruitment agencies’ worker-education obligations (see Section 3.C).
57
This is not intended to be a comprehensive list, and it should be noted that the vast
majority of the rights identified below have not been tested in Indonesia’s courts or elsewhere. Their scope therefore remains undetermined, as does their enforceability and
any causes of action or remedies that might be associated with them. Further rights will
also likely be implicitly drawn from these sources as they are developed in the future.
Needless to say, there remains a significant gap between the existence and the
enforcement of protective rights contained in the Indonesian Constitution and domestic laws, as well as in private contracts between workers and recruitment agencies and
insurers, and international treaties that Indonesia has ratified. This is an area ripe for
further research, policy development, strategic litigation, and law reform.
5.A Domestic Laws
The Constitution
Indonesia’s constitution is the supreme law of the land in Indonesia. In the period
known commonly as reformasi (reformation), which followed the fall of the Suharto
dictatorship, the constitution was amended four times to create stronger checks and
balances on government power, and to strengthen rights protection. The second amendment of August 2000 created a bill of rights in Article 28 that includes rights to earn
a livelihood, to healthcare, to information, and to social security. These rights may
implicitly create significant protections for migrant workers, though they have not, to
date, been tested in this context. Article 27 (2) also guarantees that each person has a
right to decent and humane work.
Rights and State Obligations under the Constitution of the
Republic of Indonesia Potentially Relevant to Migrant Worker
Protection and Access to Redress
•
Every person shall have the right to decent and humane work (Article
27(2)).
•
Every person shall have the right of recognition, guarantees, protection
and certainty before a just law, and of equal treatment before the law
(Article 28D(1)).
•
Every person shall have the right to work and to receive fair and proper
remuneration and treatment in employment (Article 28D(2)).
58 MIGRANT WORKERS’ RIGHTS UNDER INDONESIAN LEGISLATION, CONTRACT, AND INTERNATIONAL LAW
•
Every person shall have the right to communicate and to obtain information for the purpose of the development of his/herself and social
environment, and shall have the right to seek, obtain, possess, store
and convey information by employing all available types of channels
(Article 28F).
•
Every person shall have the right to protection of his/herself, family,
honor, dignity, and property (Article 28G(1)).
•
Every person shall have the right to live in physical and spiritual prosperity … and shall have the right to obtain medical care (Article 28H).
•
The protection, advancement, upholding and fulfillment of human rights
are the responsibility of the state, especially the government (Article
28I(4)).
Statute
Law 39/2004 establishes a small set of migrant worker rights within a statute primarily focused on administration of the labor migration program (see Section 3.A). This
includes the right to:
a)
Work abroad;
b)
Correct information about the labor market and the placement procedures for
migrant workers abroad;
c)
Equal service and treatment in overseas placement;
d)
Freedom of religion and belief and to have the opportunity to worship according
to one’s beliefs;
e)
Payment according to the standard wage in the destination country;
f)
The same rights, opportunities and treatment as other foreign workers according
to the rules and laws in the destination country;
g)
A guarantee of protection of the law according to the rules and laws in respect
to dehumanizing treatment, or violation of one’s rights set out in the law for the
duration of the placement abroad;
h)
A guarantee of protection and safe return to the place of origin; and,
i)
Access to a draft of the original work contract.94
MIGRANT WORKERS’ ACCESS TO JUSTICE AT HOME: INDONESIA 59
Though limited, these rights offer some potentially significant protections for
workers. For example, the right to “[r]eceive a guarantee of protection of the law … in
respect to … violation of one’s rights set out in the law for the duration of the placement
abroad” might form the basis of a right to redress. However the law does not identify
the party or parties responsible for fulfilling and enforcing any of these rights. Nor does
it impose any penalty if the right is not fulfilled: If, for example, the worker is not paid
according to the standard wage in the destination country. Without means for enforcing
these rights against particular actors, or consequences for non-fulfillment, workers do
not find these rights especially valuable in practice.
In contrast, the law establishes serious consequences for migrant workers if they
do not uphold their obligations, namely that the worker will be considered “illegal” and
potentially unable to obtain redress. The obligations of workers include:
a)
Complying with the law both internally and in the country of destination;
b)
Complying with and undertaking the work according to the work contract;
c)
Paying the service fee for overseas placement; and,
d)
Notifying or reporting arrival, presence and return to the representative of the
Indonesian Republic in the destination country.95
Other national laws also provide some rights to migrant workers indirectly. These
include Law 21/2007 against the Trafficking of Migrant Workers, and the Criminal and
Civil Codes (see Judicial Remedies under Mechanisms below.) Although not framed as
rights as such, the criminal law also theoretically protects migrant workers from crimes
committed by recruitment agencies or individual brokers, including fraud.
Rights in Regional Legislation
Perda, described in the Legal Framework section above, can potentially provide greater
protections and support to migrant workers in a local context. For example, the Perda
adopted by the governor of Sumbawa District, an island in West Nusa Tenggara Province, requires that recruitment agencies provide the community with simple and clear
information about their recruitment processes and positions available, and holds
agencies responsible for the security and safety of all migrant workers during the predeparture process.96 However, one study found that over 80 percent of Perda addressing migrant workers are “extractive” rather than protective; in that they levy additional
charges on recruitment agencies and workers as part of regulating recruitment in their
jurisdictions.97
Three of the five focus groups in this study were held in regions that have a Perda
in place. There was no observable difference between the experience of those workers
60 MIGRANT WORKERS’ RIGHTS UNDER INDONESIAN LEGISLATION, CONTRACT, AND INTERNATIONAL LAW
and workers from regions without a Perda. Expert interviewees observed that Perda are
only useful if the relevant recruitment agency has a branch at the local level. As noted
above, the agencies that send workers to the Middle East are located in Jakarta, and are
perceived as beyond the reach of local Perda because they do not have a local office.
Brokers who arrange overseas employment for migrant workers might potentially be
subject to local regulation if they could be recognized under the law as agents of recruiters, however they are not specifically mentioned in the Perda examined in this study.
5.B International Law and Bilateral Agreements
Indonesia has ratified all of the major international human rights conventions, including the International Convention on the Rights of All Migrant Workers and Members
of their Families 1990, which it ratified in early 2012. This latest ratification was a milestone in Indonesia’s commitment to protect migrant workers, and had been demanded
by civil society for many years (see Annexure 1 for a list of the treaties that Indonesia
has ratified). Indonesia has also ratified the core ILO agreements on migrant workers
and labor protections. For a discussion of Indonesia’s relevant obligations under international human rights treaties see Section 1.C above.
Although Indonesia’s Constitution requires that international treaties be incorporated into domestic legislation before becoming law, Law 39/1999 concerning Human
Rights effectively incorporates all of Indonesia’s international human rights obligations.
It also makes them directly enforceable in Indonesian courts and via other “effective
national legal means.” Article 7 of Law 39/1999 states:
(1) Everyone has the right to use all effective national legal means and international forums
against all violations of human rights guaranteed under Indonesian law, and under international law concerning human rights which has been ratified by Indonesia.
(2) Provisions set forth in international law concerning human rights ratified by the Republic
of Indonesia, are recognized under this Act as legally binding in Indonesia.98
According to civil society experts, few Indonesian judges are familiar with Article
7 of Law 39/1999, and it has not yet been used in Indonesian courts to enforce migrant
workers’ human rights (and has generally been used infrequently, with limited success).
This provision may form the basis of future strategic litigation to enforce Indonesia’s
human rights obligations to migrant workers, drawing also on the general principle
under Indonesia’s Constitution that: “The protection, advancement, upholding and fulfillment of human rights are the responsibility of the state, especially the government”
(Constitution, Article 28I(4)).
MIGRANT WORKERS’ ACCESS TO JUSTICE AT HOME: INDONESIA 61
In addition to Indonesia’s international legal obligations, the Indonesian government has entered into non-binding, and non-enforceable, memorandums of understanding (MOUs) with a handful of destination countries.99 Only the MOUs with
Malaysia and Qatar cover Indonesian migrant workers in the informal or “unskilled”’
sectors. The signing of these agreements has been highly publicized but they have not
generally increased protections for migrant workers, and have been criticized from
many quarters. Among other things, they have been negotiated in a non-transparent
manner, and it remains difficult or impossible to obtain copies of most MOUs.100
5.C Contractual Rights
The strongest and most clearly stated legal rights of migrant workers derive from the
commercial contracts they sign prior to departure: the placement agreement (perjanjian
penempatan) between the migrant worker and the recruitment agency, and the employment agreement (perjanjian kerja) between the migrant worker and employer or partner
recruitment agency in the destination country.
Both agreements are prepared by the prospective worker’s recruitment agency,
and are signed prior to departure. Though requirements of these agreements are set
out in law, Indonesia does not have standard versions of the agreements. Rather, each
agency develops its own version of each agreement in collaboration with its partner
agency in the destination country. Various government agencies must see the draft
documents before they are provided to workers: the Indonesian Embassy in the destination country must view both documents before approving a placement in the country,
and the MoM views the documents when the recruiter seeks permission to fill a job
order.101 However the regulations do not require that the government ministries do any
more than merely view a draft or sample version of the document. Indeed, they do not
require or even encourage ministry staff to assess the agreements for compliance with
the law or any other standards. As a result there is effectively no oversight of the content
of the agreements. And in practice, as detailed in the following section, agreements are
frequently inconsistent with statutory requirements.
Placement Agreement
The placement agreement is central in the Indonesian migrant labor system. Law
39/2004 mentions the agreement frequently, including setting out requirements for
content and delivery to the worker. Not only is it intended to protect workers during predeparture preparations and potentially while abroad, the mandatory delivery of signed
agreements to government agencies is intended to ensure that local governments are
62 MIGRANT WORKERS’ RIGHTS UNDER INDONESIAN LEGISLATION, CONTRACT, AND INTERNATIONAL LAW
aware of who is preparing to travel from their district, with which agencies and to which
countries. This information may be valuable later in the event the worker needs copies
of documents or assistance from government to resolve a dispute (see Section 6 on
Enforcement Mechanisms below).
According to the regulations, the draft placement agreement, once viewed by
the embassy in the destination country and the MoM in Jakarta, must be presented
to the local MoM office in the district where recruitment is to take place.102 A recent
Government Regulation of January 2013 clarifies that the head of the local office must
“research” (presumably read and evaluate) the placement agreement before approving
the production of a passport for the worker.103
Both the worker and the recruitment agency must sign the agreement before the
worker commences training, document preparation, and other pre-departure requirements. The law states that the worker and the recruitment agency must hold identical
copies of the signed placement agreement, and it cannot be changed or retracted without mutual consent.104 The recruitment agency must then submit a copy of every signed
placement agreement to the local city or provincial authority (the local MoM office that
assisted with recruitment, and BP3TKI).
These safeguards do not include procedures for invalidating or correcting deficient placement agreements, or for redress if an agency fails to comply with its obligations. And because migrants to the Middle East use brokers to connect directly with
Jakarta-based recruiters who are generally viewed as outside the local regulatory ambit,105
these locally-based safeguards generally do not help migrants to the Middle East at all.
Content of the Placement Agreement
The placement agreement must set out the details of the position that the worker will
fill, as well as obligations during the pre-departure process, including any fees the
worker must pay, and the prospective date of departure abroad.
Most significantly, Law 39/2004 requires that the agreement include a provision
that the agency will compensate the worker in the event that the employer in the destination country does not fulfill all of the terms of the related employment agreement (such
as payment of wages) (Article 52(2)). The explanatory notes to Law 39/2004 state that,
The guarantee referred to is a statement of the ability of the private recruitment agency to
fulfill the promises made to the prospective migrant worker being placed by the agency.
For example, if the Placement Agreement promises that the worker will be paid a certain
amount by the employer, and this amount is not paid, the private recruitment agency must
compensate the worker for the loss.106
MIGRANT WORKERS’ ACCESS TO JUSTICE AT HOME: INDONESIA 63
Two Sample Placement Agreements
Placement agreements for migrants to the Middle East were surprisingly difficult to obtain during the completion of this study. Indeed, nobody interviewed
in this study had heard of a placement agreement being signed by a migrant
worker to the Middle East. Eventually the research team obtained one sample
agreement for workers to Qatar from a recruitment agency. In contrast, sample
placement agreements for workers to the Asia Pacific were relatively easy to
locate, and the research team viewed a sample from a recruitment agency
website for workers to Malaysia.107
Both agreements were several pages long but the second agreement (for workers to Malaysia) was considerably more comprehensive. It included detailed
rights for the worker including to refuse a specific placement that does not
accord with what was promised, to worship during the placement, and to receive
insurance and 200 hours of training. By contrast the sample agreement for a
worker to Qatar contained no specific rights at all. Both agreements obligate
the recruitment agency to protect the welfare of the worker, but for a worker to
Qatar, the agency must only ensure the worker’s “safety, security and protection” until the placement “is in accordance with the applicable conditions”—
presumably until the placement is found to be in accordance with the contract.
With respect to disputes and compensation, the Qatar agreement makes no
mention of disputes related to performance of the employment agreement. It
addresses only the situation where a placement does not go ahead: the worker
has a right to return of the fees paid to the agency if he or she withdraws
from the placement or is found to be medically unfit, but the costs of procedures carried out to that point would be deducted before the fees are returned.
In addition, the worker can receive a refund if the placement does not occur
within three months from the signature of the agreement, if both parties attend
mediation at the MoM and the recruitment agency is found to be at fault. These
protections are very limited, onerous to enforce, and substantially beneath
legal requirements. On this point, the Malaysia agreement is similar in that it
requires repayment of costs if the worker leaves the training or placement. Both
agreements fail to incorporate the provisions of Article 52(2).
This is clearly a small sample, and many more contracts should be viewed to
determine the protections given or not given by placement agreements. Nevertheless, the differences between these two documents (both of which have
been viewed and approved by the government) suggest at minimum a need for
a more comprehensive legal vetting process.
64 MIGRANT WORKERS’ RIGHTS UNDER INDONESIAN LEGISLATION, CONTRACT, AND INTERNATIONAL LAW
This provision is critical, because it imposes direct responsibility on recruitment
agencies for the treatment of workers abroad, as well as accountability for the promises
made to workers during the hiring process. It is unclear from the law and from the
documents themselves how the recruitment agency’s compensation obligations under
the placement agreement interact with insurance coverage provided to the worker, or
the obligations of the employer to fulfill the terms of the employment agreement. As
the agreements have not been tested in court, this is an area that would benefit from
further analysis and potentially from strategic litigation.
Employment Agreement
The employment agreement must be given to the worker after training is completed
and the worker is approved for departure, usually in the few days prior to leaving the
country. At this stage a worker going to the Middle East is in Jakarta, far from home,
having invested much time and effort in the pre-departure process, and with much
to lose if she changes her mind once she sees the employment agreement (including
reputational consequences of returning to the village instead of going abroad).
Indonesia has not developed a standard employment agreement, but Law 39/2004
sets out minimum required provisions including: the names and addresses of the parties, the type of work and conditions including hours, wages, and holidays, and the
duration of the contract period (two years, with a possibility to extend).108 The law does
not require the contract to be in a language the worker understands. For migrants to the
Middle East (the majority of whom have primary school education or less—see Section
2.B) the contract may be in English or Arabic. The three sample contracts obtained from
civil society organizations for this study were in Arabic and Bahasa Indonesia.
The employment agreement raises a host of transnational legal issues, given that
one party (the employer/partner agency) is in the destination country; the majority of
the contract is performed in the destination country; and the contract is prepared by
the Indonesian recruitment agency and partner agency, and signed by the worker in
Indonesia. Although the content of the agreements are governed, at least in part, by
requirements under Indonesian law, the role of the destination country’s law and legal
system in the content and enforcement of the agreement is unclear. These issues warrant further study.
Fulfillment of Rights in Placement and Employment Agreements
Taken together, the placement and employment agreements ought to contain legal
rights that provide workers with significant protections from bad faith dealings by
recruiters and employers. This is not the case in practice. First, despite the many layers
of government checks and approvals, it appears that many migrant workers, particularly
those traveling to the Middle East, do not receive a placement agreement at all (see
MIGRANT WORKERS’ ACCESS TO JUSTICE AT HOME: INDONESIA 65
Text Box above). Civil society organizations said they rarely saw placement agreements,
and a recruitment agency representative intimated that the document is rarely given to
the worker. According to legal experts, recruitment agencies commonly place workers
in a boarding house for training before a job order has even been received, making it
impossible for her to receive a placement agreement with details of the position at the
time of recruitment; instead the agreement is given at the airport, if ever. In contrast,
most focus group participants received and were aware of the employment agreement.
Second, even if the placement agreement is given, the agency does not have an
obligation to explain it to the worker. This is in contrast to the employment agreement,
which must be explained by public officials during the pre-departure briefing. Civil
society organizations suggested that even when the agreement is given to workers, the
recruitment agency takes it back after the worker has signed it, and migrant workers
are not encouraged to read it or take steps to understand its terms, or the rights that it
contains.
Third, as described in the box, the majority of placement and employment agreements may be out of compliance with the law in any case. Neither of the two documents reviewed for this study included a guarantee by the recruiter, required under
Law 39, article 52(f), to compensate the worker in the case that the employer violates
the agreement. Furthermore, the agreements do not contain mechanisms for enforcing
contractual rights or resolving disputes, though workers may try to do this in practice
through negotiation and mediation (see Section 6.A on Administrative Dispute Resolution below).
The law does not impose any sanction if the agreements provided by the recruiter
are not in accordance with the law, and neither the statute nor the agreements themselves establish consequences for recruiters if they fail to comply with their obligations.
As a result of all of these legal and implementation failures, the migrant workers who
took part in the study were unaware of their rights under the placement and employment agreements, beyond the promised wage and country of work.
Experts interviewed for the study were unable to identify case law exploring the
enforceability of contractual rights, or explaining the relationship between the placement agreement and employment agreement. This raises further questions for research,
and potentially fertile ground for strategic litigation to enforce statutory requirements
and contractual rights.
66 MIGRANT WORKERS’ RIGHTS UNDER INDONESIAN LEGISLATION, CONTRACT, AND INTERNATIONAL LAW
5.D Summary of Rights under Law and Contract
Migrant workers in Indonesia have legal rights deriving from the constitution, statute, regulations, and private commercial agreements with recruitment agencies and
employers (and insurers—see below), as well as under international law. Statutory
rights include specific rights to work abroad, to be treated equally to other prospective
workers, to be paid the prevailing wage, receive a copy of the work contract, and to not
be mistreated or exploited. Workers also have a right to training and information suitable to the type of work they will undertake.
In practice, migrant workers’ statutory rights provide little protection because
most rights are difficult (if not impossible) for workers to enforce; they rarely identify
the party responsible for fulfilling particular rights; and they do not clearly delineate
between the obligations of government and recruitment agencies. Nor do they establish
enforcement mechanisms. For example Law 39/2004 does not set out any method by
which a worker may complain if he or she is not treated equally, or does not receive the
prevailing wage, or does not receive a copy of the contract. It also provides no mechanism for filing or resolving a complaint if a government official does not do the required
checks, or if the placement agreement does not contain the required worker rights.
Rights under the employment agreement include rights to specific wages, to a certain type of work, to leave days, and other details of the relationship with the employer.
Rights under the placement agreement include a guaranteed placement if a fee was
paid (or have the money returned), and compensation by the recruitment agency if the
employer does not pay the agreed wages or does not comply with other terms of the
placement and employment agreements. Similarly, the placement agreement (which
Middle East workers rarely receive, in any event) contains no mechanism for obtaining
the compensation that the agency must pay if the worker’s employment agreement is
not fulfilled. The employment agreement is difficult, if not impossible, to enforce after
a worker returns to Indonesia.
Workers are generally left with verbal agreements made with brokers, and various
sources of legal rights in need of accountable actors and effective enforcement mechanisms. The following section examines current redress mechanisms in Indonesia and
the extent to which they do, or might, provide avenues for enforcement of these rights.
MIGRANT WORKERS’ ACCESS TO JUSTICE AT HOME: INDONESIA 67
6. Mechanisms for Enforcing
Rights and Seeking Redress
Throughout the migration process, migrant workers interact with numerous government agencies and private parties in Indonesia and abroad, in relation to whom they
have legal rights (see previous section). These private parties include recruitment agencies, insurance companies, overseas employers, and potentially private local brokers
who make verbal promises to workers. They may also include transport workers (who
extort returning migrant workers), training center staff, and other parties based in
Indonesia.
Workers have several avenues through which they might attempt to seek redress
in the event of a dispute with, or rights violation by, one of these parties. Apart from the
courts, these avenues were typically viewed by the various stakeholders in this study as
paths to problem-solving rather than mechanisms for legal rights enforcement. They
include:
•
In person negotiation/“peaceable resolution;”
•
Filing of a claim with a government agency and attending mediation (Administrative Dispute Resolution);
•
Filing of a claim for insurance;
•
Use of the court system.
69
This section reviews each of these mechanisms, identifying: the relevant legal
framework where applicable, the various actors involved, the procedures for filing and
resolving a complaint, and perceptions of the efficacy (or otherwise) of the mechanism.
It draws on the experiences of migrant workers, the perceptions of lawyers and civil
society “case-handlers” who assist migrants, and the views of government officials who
implement and oversee the mechanisms.
By far the most popular method for a worker seeking redress against a private
party in Indonesia, according to study participants, is informal in-person negotiation,
whether with the broker, the recruitment agency or the employer. And very few migrant
workers take their problems any further because of lack of information and a lack of
faith in the efficacy of available mechanisms. This perception was borne out by focus
group participants, among whom only a handful had taken any action beyond communicating with the broker or the agency.
In addition to the mechanisms above, workers also use the services of the Indonesian embassy to resolve problems directly with employers while they are still abroad.
Foreign missions may also support cases in Indonesia by providing documents or
other evidence of harms that occurred abroad. The role of the Indonesian embassy in
resolving disputes between workers and their employers in the Middle East is the final
“mechanism” discussed in this section.
Legal Aid in Indonesia
While abroad, migrants can potentially access legal aid services through
the Indonesian embassy and consulates (see section on Embassy Protection below). In Indonesia, however, state-funded legal aid is generally only
provided to criminal defendants.
Nongovernment options are available to migrant workers, but they are limited. Private legal aid services have a long and respected history in Indonesia; the first official organization, Lembaga Bantuan Hukum (LBH) Jakarta,
opened in 1970, under the military-led regime of President Suharto, and was
a vital outlet for the pro-democracy movement.109 Today, alongside other
issue-mandated civil society groups with lawyers on staff, such as women’s
organizations, branches of the LBH Foundation operate in 15 provinces of
Indonesia.110 However, legal aid organizations still operate largely in cities.
Though they take up a great variety of cases, from corruption to gender
equality and land claims, lawyers at Legal Aid Jakarta who were interviewed
70 MECHANISMS FOR ENFORCING RIGHTS AND SEEKING REDRESS
for this study said that migrant worker cases were “extremely rare” and fell
generally within labor cases.111 And while some private lawyers specialize in
migrant worker cases, one lawyer interviewed suggested this was also rare
because the cases are complex, and migrant workers can rarely pay legal
fees.112
Instead, when seeking redress migrant workers rely on local non-legal civil
society organizations , usually staffed by returned migrant workers who are
personally invested in improving the system. All the migrant workers who
participated in focus groups in this study had received such assistance;
none had received professional legal advice. These organizations play a
vital function in advocating for individual migrant workers in claims against
government or private parties and assisting with gathering documents and
evidence. Nevertheless, several experts lamented the scarcity of trained legal
advisors in regional areas who could advise workers on their rights under
statute and contract.
This situation may change in light of the new 2011 Legal Aid Law (16 of
2011).113 Significantly, the law recognizes a “right to access justice” in Indonesia, and reaffirms the constitutional right of all Indonesians to equality
before the law.114 It also provides state funding for legal aid services provided
by private lawyers and organizations. It is not yet clear how the law will be
implemented. For migrant workers, a central question is whether they will
be included within the definition of “the poor,” the target population of the
law. Migrant workers may come home with some earnings, but still face
structural barriers to seeking redress for valid claims. Agustinus Supriyanto,
an expert on international law and migrant workers, suggests that a broad
interpretation of the law could provide a vital service to the thousands of
migrant workers seeking redress each year.115
6.A Negotiation and Informal Dispute Resolution
Informal negotiation is the first, and often only, dispute resolution method used by
migrant workers and their families, if they take any action at all. Law 39/2004 in fact
requires workers and recruitment agencies to negotiate their disputes before taking
further action:
MIGRANT WORKERS’ ACCESS TO JUSTICE AT HOME: INDONESIA 71
85(1): In the event of a dispute between a migrant worker and a private recruitment agency
regarding the implementation of the Placement Agreement, the two parties must endeavor
to resolve the matter peacefully and through informal discussion.
Participants described negotiation as useful for a range of disputes with recruitment agencies, including: repayment of lost fees if the placement fails; return of personal documents; repayment of lost wages if the worker was not paid according to the
placement agreement; an insurance payment (see Migrant Worker Insurance Program
below); and to improve working conditions or obtain back-wages from an employer.
Such negotiation is also usually the only option for workers in disputes with local brokers, who are not subject to direct regulation and receive little government oversight
(unless the matter is reported to the police for criminal fraud).
Who is Responsible? Recruiters vs. Insurers
Indonesia’s migrant worker insurance scheme covers workers for many categories of harm in Indonesia and abroad—including harms that are the
fault of the recruitment agency, directly or indirectly. Further, Law 39/2004
requires that migrant workers’ placement agreements contain a guarantee
that the recruitment agency will compensate the worker for violations of the
employment contract (including, for example, non-payment of wages). The
insurance policy covers some losses that are also breaches of the employment contract (including non-payment of wages).
As a result of these overlaps, in practice civil society organizations often
approach both for compensation. One former case-handler explained that
in cases of non-payment of wages, for example, civil society organizations
would generally go to the recruitment agency, which would rarely compensate the worker directly, but might also “help” the worker to make an insurance claim. Because this adds significant time to the claims process, many
civil society organizations now go straight to the insurer with such claims. It
would appear from Law 39/2004 that the recruiter retains ultimate responsibility for compensating contractual breaches if the insurer improperly fails
to do so, but this issue was not explored by participants in this study.
The BNP2TKI 2011 Standard Operating Procedure Manual instructs staff
that the recruitment agency and the insurance company may both be parties to a mediation, but that each deals with different harms. According to
the manual the insurer deals with work-related harms, whereas the recruitment agency is responsible for problems associated with the pre-departure
72 MECHANISMS FOR ENFORCING RIGHTS AND SEEKING REDRESS
process, i.e.: the worker was unable to do the work, could not communicate with the employer, was not in good health, or returned home with a
child.116 It is not clear whether this reflects standard practice or BNP2TKI’s
assessment of the legal obligations of each party. In any case, a clearer
statement in legislation or regulation about the respective responsibilities of
recruitment agencies and insurers would aid civil society organizations and
migrant workers and their families to make successful claims.
Law 39/2004 does not establish a procedure for negotiation/informal discussion.
Previous studies have demonstrated that migrant workers and their families learn strategies from each other.117
Participants explained that in most cases, the migrant worker or family member
attempts to locate the other party, explains the situation, and asks for some relief. In
some cases a local authority or civil society organization assists the worker to gather
necessary documents or to retrieve documents from recruitment agencies—such as a
copy of the employment agreement if the worker did not receive or keep a copy.
Negotiations may range from highly informal conversations to more formal meetings in which civil society organization representatives present documents and evidence
of loss to the other party, and request specific redress. Civil society organization representatives noted that these discussions are sometimes heated, with each side making
demands of the other.
Parties may discuss the dispute by letter or phone, but civil society representatives
emphasized that in-person meetings were usually required to achieve a result. A representative of SBMI Brebes noted: “We have to be very careful in our case handling and
negotiation—we do it all in person. As soon as we need to involve the sponsor/broker
or even the placement agency, we go straight to the placement agency office.” Participants described the considerable time and work involved in every negotiation, including
sending letters, making calls, and driving or taking transport to numerous meetings.
In-person meetings present several challenges. Meeting with brokers can be difficult because some disappear after arranging recruitment, although others may be
known to the community and can eventually be contacted.118 Brokers who are contacted
often deny any responsibility and blame the agency. An in-person meeting at an agency
can be highly intimidating for a worker or her family, as it involves travel to Jakarta (for
Middle East recruiters), and agencies are often located in secure private complexes protected by high walls. Travel to Jakarta may also be expensive (though direct negotiation
may still be cheaper than other pathways to redress).
One mother in Central Java described attempting to negotiate with the recruitment agency after her daughter, who was working in Saudi Arabia, had not been paid
for two years and was being prevented from returning home. She told the focus group:
MIGRANT WORKERS’ ACCESS TO JUSTICE AT HOME: INDONESIA 73
I have been going back and forth, back and forth, to the recruitment agency for the last year.
But nothing happens. There is no one there except the outsourcing agent and he just says,
“yes, yes” but gives me no answer. Really it is the broker’s responsibility, but he has disappeared.119
Although Law 39/2004 refers to negotiation between the recruitment agent and
the worker, workers also negotiate with other parties, such as insurers (see Migrant
Worker Insurance Program below) and employers. In the latter case, civil society groups
described workers enlisting the help of friends, family, civil society organizations and
even the recruitment agency to speak to an employer. An organization in Lombok
explained their process as follows:
In a case of a salary not being paid, we sometimes contact someone who has worked in that
country before and ask her to telephone the employer. This is actually a new technique for
us. It turns out that the employers can also be approached. A woman who helped us in one
recent case had worked there a long time and knew the language and the culture of people
there to help smooth our path [in the negotiation]. The return flight was arranged and the
salary paid.120
In this way, negotiation may also prevent problems from escalating, or help to
resolve misunderstandings before a worker needs to seek formal redress. And despite
the inherent power imbalances that can make a fair negotiation difficult to achieve,
negotiation appeared to be a familiar method for resolving disputes. Indeed, participants described negotiation as an ongoing component of all dispute resolution mechanisms, even after a worker has filed an official complaint.
6.B Administrative Dispute Resolution
Beyond direct negotiation, the principal mechanism for resolving disputes between
migrant workers and Indonesia-based actors is administrative dispute resolution services provided by government agencies. Services range from assisting workers to obtain
documents from recruitment agencies and other government departments, to writing
letters to various parties such as the recruitment agency or embassy abroad, or speaking
to the other party on the worker’s behalf.121 The final stage in administrative dispute
resolution is a “mediation” in which the government agency brings together the parties
to a dispute to negotiate.
It is unclear which government agency is ultimately responsible for resolving
migrant worker disputes, the procedures they should follow, the potential claims that
can be made, the remedies available, and possible appeal mechanisms. Although not an
74 MECHANISMS FOR ENFORCING RIGHTS AND SEEKING REDRESS
official term used by government in Indonesia, this report uses the term “administrative dispute resolution” to broadly encompass all of the dispute resolution activities that
government agencies perform, described in as much detail as could be obtained from
stakeholder interviews and government documents.
Government Agencies’ Dispute Resolution Functions
Indonesian law does not clearly distinguish which government ministries and agencies
can receive migrant worker’s complaints and assist in their resolution. Indeed, participants in this study generally viewed MoM and BNP2TKI’s dispute resolution functions
as interchangeable. As one lawyer noted, “The more formal mechanism we use to
resolve disputes is filing a complaint with the government, in this case either BNP2TKI
or the Ministry of Manpower, the main thing is that it is government.”122
Law 39/2004 authorizes the MoM to assist to resolve disputes. Article 85(2) states:
If a resolution through informal discussion is not reached, one or both of the parties can
request the assistance of an agency with responsibility for labour [the MoM] in the District/
City, Province or National Government.
However, BNP2TKI in Jakarta and provincial BP3TKI offices also receive migrant
worker complaints, as does the Ministry of Foreign Affairs in Jakarta. They may be
authorized to do so under Article 90 of Law 39/2004, a provision that broadly requires
the national government to, “facilitate the resolution of disputes or conflicts between
the migrant or prospective migrant workers and the employer and/or the placement
agency.”
In practice, responsibility for receiving complaints appears to have been increasingly delegated, to BNP2TKI.123 The involvement of the MoM was in fact described as
a source of frustration by the MoM head of protection in Jakarta, who emphasized that
all cases should go to BNP2TKI. This has not occurred in practice because manpower
offices in cities and districts are better known to the community than BNP2TKI, which
does not have many local offices.
The specific dispute resolution functions by agency were described by study participants as follows:
Ministry of Manpower. Because of the lack of implementing regulations, most
of the eight local and provincial MoM offices interviewed in this study124 were unsure
of their responsibility for resolving disputes. Nevertheless, most MoM administrators
expressed great concern about the situation of migrant workers, and were reluctant to
refuse people.125 They noted that they receive complaints and assist workers or their
families in compiling their documents, but felt their powers to actually resolve disputes
were limited, and that they “do facilitation only.” As one explained:
MIGRANT WORKERS’ ACCESS TO JUSTICE AT HOME: INDONESIA 75
We provide all services but are limited in resolving problems—we just forward them on. But
we do try our best to help. We write down the story from the beginning—who invited you
to work abroad, which recruitment company did you use? We can give people options and
help them make contact with other offices.126
The MoM in Jakarta and some local offices also facilitate resolution of disputes
that occur within their jurisdiction. For example, officials in Lombok and Sukabumi
stated that they call in local recruitment agencies if a migrant worker files a complaint.
In practice, because all Middle East recruitment agencies are in Jakarta, the mediation
must be conducted in Jakarta or it is unlikely the recruitment agency will attend.
BNP2TKI Crisis Center. BNP2TKI’s dispute resolution service is provided by its
crisis center in Jakarta, created in November 2008. In June 2011 the center established
“Hello TKI,” a toll-free hotline for migrant workers and their families within Indonesia.
Workers abroad can also call an international number (although not toll-free), or send
an e-mail or SMS.127
In its first year of operation the crisis center hotline received 243,799 calls or
emails from migrant workers, family members, or persons interested in working
abroad—suggesting considerable awareness of the service. Only 3 percent (7,601) of
calls were registered as complaints (other calls were requests for information or other
matters). After officials verified the documents in these cases, half (4,097) were accepted
as formal complaints. By the end of the first year (June 2012) 2,729 cases had been
resolved.128 By November 2012 these figures had almost doubled: 9,764 complaints
had been received from migrant workers and their families, and 4,577 of those cases
had been resolved—primarily cases involving non-payment of wages (22 percent) and
‘loss of contact’ (21 percent).129 Data is not available on the nature of the resolution of
these cases, as compared with the amounts or actions that workers and their families
demanded.
Ministry of Foreign Affairs. When the worker is still abroad, the family members
(or civil society organizations contacted by family) can file a complaint with the MoFA.
In most cases this is done through the local MoM office, which forwards the complaint
to staff in the MoFA’s Citizen Protection Division (see Section 4: Protection of Citizens
Abroad). Citizen Protection then, “coordinates the provision of protective measures
for citizens abroad with foreign Indonesian Representatives and the relevant agencies
in the country.”130 Individuals may also submit complaints directly to the Ministry of
Foreign Affairs in Jakarta, without going through a local government office. Complaints
may be submitted in person, or through an online complaint service.131
Some organizations described contacting all agencies at many levels at once in
order to get a response, for example:
76 MECHANISMS FOR ENFORCING RIGHTS AND SEEKING REDRESS
[W]e usually send a letter to the village head, the local government head, the district head, the
recruitment agency, to BNP2TKI and to the Ministry of Foreign Affairs—everyone who could
be involved. The village office will help us in drafting these letters, and so will the local Ministry
of Manpower office. Everyone plays a role. Without their support nothing will happen.132
Some perceived the MoM to be more effective or authoritative than BNP2TKI
because only the ministry has the ability to sanction recruitment agencies. As Legal
Aid Jakarta explained:
The choice of whether to go to BNP2TKI or the Ministry of Manpower is completely up to
us. In practice, we usually request a meeting with the Ministry of Foreign Affairs if the case
is for a migrant worker, and then at the Ministry of Manpower, not to BNP2TKI. Because
we think of BNP2TKI as below the Ministry of Manpower and it is the Ministry that has the
authority—that is the most important thing in resolving disputes.133
Holding Government Accountable—the Ombudsman of Indonesia
The Ombudsman of the Republic of Indonesia was established in the early
days of “reformasi,” following the fall of the Suharto regime. It is composed
of nine members, who are selected by the legislature. In 2008, the office was
significantly reformed and its powers expanded by Law 37/2008 regarding
the Ombudsman of the Republic of Indonesia.134
The Ombudsman is charged with overseeing all government institutions,
or private entities contracted by the government, that provide services to
the community. These functions are particularly relevant to Indonesia’s
migrant labor system, which relies heavily on bureaucratic administration,
oversight, and enforcement. Members of the community may make a complaint (including through an online complaints service) or request an investigation, or the staff of the Ombudsman may commence an investigation
independently. The investigation results in a report. The Ombudsman does
not have enforcement capability.135
During the Roundtable held in Jakarta in January 2012, participants spoke
highly of the Ombudsman as a promising new tool for addressing the concerns of migrant workers. At least one organization, Migrant Care, reported
using the Ombudsman’s Office as part of their advocacy and case-handling
work. Further research is needed to understand how the Ombudsman complaints procedures work in practice, and the ways in which investigations or
reports may enable workers to compel action or obtain redress.
MIGRANT WORKERS’ ACCESS TO JUSTICE AT HOME: INDONESIA 77
Dispute Resolution Procedure
The implementation of Articles 85 and 90 of Law 39/2004 is not yet governed by comprehensive regulation. Indeed Law 39/2004 does not direct the Minister of Manpower
to pass regulations establishing operational details for dispute resolution, in contrast to
other areas such as recruitment and placement.
BNP2TKI has several guiding documents for resolving migrant worker disputes,
including a 2011 Standard Operating Procedure Manual and a 2012 internal regulation
on Service Standards for Migrant Worker Protection.136 According to the service standards, the agency will receive complaints against recruitment agencies and insurers that
are filed at any related agency, including an MoM office. BNP2TKI officials are then
instructed to gather all relevant documents, including the worker’s personal documents,
contracts, and other pre-departure documents such as the medical exam and insurance
card. Although MoM does not have documented procedures, interviewees from MoM
and BNP2TKI described a similar procedure followed by both institutions.
The BNP2TKI Dispute Resolution Process137
The Standard Operating Procedure manual sets out complaints-handling
procedures as follows:
A) Procedure for Handling/Resolving Problems
a) Prospective Migrant Worker/Migrant Worker/Family Member
[“complainant” or their legal representative] submits a complaint
in person or indirectly to relevant agency (i.e., to BNP2TKI (Deputy
of Protection), BP3TKI, or MoM at the provincial, district or city
Levels) and completes a complaint form.
b) Recording of the complaint, and researching the complainant’s personal documents and other related documents in support of the
complaint (passport, KPA, placement and employment agreements,
medical report).
c) Verification of the type and character of the case, to determine the
appropriate person to handle the case.
d) Scheduling a mediation (calling the recruitment company/insurer
and complainant) to resolve any case arising from overseas placement, not including criminal cases.
e) If the case involves criminal matters, urge and guide the complainant to file a complaint with the relevant authorities.
f ) Prepare a summary of a concluded case including notes of the
agreement.
78 MECHANISMS FOR ENFORCING RIGHTS AND SEEKING REDRESS
As the MoM official in Jakarta noted, migrant workers rarely have all of their
documents, particularly if they left the place of employment in distress: “The documents
are usually not compiled properly—they will just know they were in Saudi Arabia, but
often won’t even know their passport number.”
An MoM representative explained that in such a case, it would contact the recruitment agency to verify the facts claimed by the worker, request additional documents
(such as the employment or placement agreement) and the details of the agency in the
destination country. The official further explained that recruitment agencies are usually
given two weeks to comply with these requests, and if they did not comply a further
letter would be sent.138 It was not possible to determine the extent to which recruiters
and insurers comply with government requests for documents, and the steps the government can take if faced with non-cooperation.
Once all of the documents are gathered, the staff of BNP2TKI and/or the MoM
in Jakarta will register the complaint formally and start the resolution process. Unless
the complaint involves criminal conduct, the service standards require that the case go
to “mediation.” Officials interviewed said that in practice, prior to scheduling a mediation they would often try to negotiate directly with the recruitment agency or insurance
representative, and encourage the party to respond to the migrant worker’s complaint.
“Mediation”
The final stage of administrative dispute resolution is a meeting between all parties
at BNP2TKI’s offices, or the MoM offices in Jakarta, where insurance companies and
Middle East recruitment agencies are located. Study participants commonly used the
term “mediation” to describe this meeting, although the meetings are not presided over
by a professional mediator, and are not governed by the rules on mediations that apply
to court-based alternative dispute resolution.139 In essence, these “mediations” are meetings between the parties organized and presided over by a bureaucrat, who assists the
parties to come to a negotiated settlement. As an interviewee from Legal Aid Jakarta
explained, “the mediator is just someone who we believe has the authority and who
understands the problem and it is hoped will help us resolve the case.”
Not all cases are suited to mediation. As a practical matter, mediation is only
possible with parties who are based in Indonesia and who are recognized under the
law—overseas employers and brokers/agents, for example, are not subject to mediation.
Legal experts interviewed in this study agreed that mediation works best for insurance
claims for unpaid wages, or in cases of “failed departure”—where the worker has not
departed Indonesia but has paid pre-departure fees (e.g., for insurance and medical
examinations). In both cases, the other party is located in Indonesia, and the claims are
for easily quantifiable financial loss.
MIGRANT WORKERS’ ACCESS TO JUSTICE AT HOME: INDONESIA 79
The MoM does not have a standard procedure for mediating disputes, and rather
“does it as we have always done it.” Based on the description provided by officials, the
procedure appears identical to that set out in BNP2TKI’s Service Standards (see box
below). It involves contacting the parties in dispute, trying to achieve some negotiated
resolution over the phone or by letter, and if this fails, calling all parties into a meeting.
The BNP2TKI Mediation Process
Following section “A” concerning pre-mediation case handling (see previous
box) BNP2TKI Regulation 13/2012 then sets out the procedures for mediation
as follows:140
B) Pre-Mediation Stage
a) The mediator must suggest to both parties that they negotiate their
dispute directly.
b) The mediator must give the parties a negotiation period and must
explain the mediation process to both parties.
c) Any decision made by an attorney [on behalf of a client] must be
approved in writing by both parties.
C) Mediation Stage
a) The mediator must determine a time to hold the mediation.
b) During the mediation, either party may be accompanied by an attorney.
c) The mediator must encourage the parties to explore their individual
interests and to find a solution that is best for both parties.
d) The resulting agreement from the mediation must be completed
within 14 working days.
e) The agreement must be stated in the minutes of the meeting, signed
by both parties.
f ) When the parties cannot reach agreement, the failure to agree is noted,
and the mediator must suggest the parties seek legal recourse.
g) In the event the recruitment company does not respond to calls to
attend three times or is not proactive in resolving the case, BNP2TKI
may delay placement processing services.
h) In the event that the recruitment agency does not fulfill its obligations, it will be suggested that the Ministry of Manpower impose a
sanction in line with the law.
i)
If the parties fail to reach an agreement, any information or admission made by the other party during the mediation cannot be used as
evidence in a court of law.
80 MECHANISMS FOR ENFORCING RIGHTS AND SEEKING REDRESS
Neither BNP2TKI Service Standards Regulation nor Law 39/2004 provides any
guidance about appropriate redress for particular harms, except in insurance claims (as
described in the next section).
Remedies, Sanctions, and Appeals
BNP2TKI does not have an internal appeal or grievance procedure if a migrant worker
is dissatisfied with the conduct or outcome of mediation or if the recruitment agency
has refused to attend. BNP2TKI explained that the worker’s principal option is to appeal
through the courts. None of the legal experts interviewed had experience appealing a
mediation and recourse to the courts for the filing of a civil claim was not viewed as a
realistic option (see Section 6.D on the courts). In some criminal cases the violation
may be reported to the police if mediation fails, and an MoM official believed that the
courts have resolved a handful of such criminal cases.
The MoM has power to sanction, or even de-register, a recruitment agency if it
believes the agency has violated the law.141 BNP2TKI does not have power to compel or
sanction a recruitment agency but it may report the agency to the MoM. The BNP2TKI
deputy of protection explained:
For example we call the recruitment agency because there is a problem with a migrant
worker, her salary has not been paid or other problem. We call the agency and ask them to
come here, but often they won’t want to resolve the case or they don’t have any information.
We then deem the agency as negligent, and as violating the law. So we send a recommendation to the Manpower Ministry that the agency be sanctioned.142
The deputy knew of one or two agencies that had been sanctioned by MoM, but
to his knowledge none had been sanctioned as a result of BNP2TKI’s recommendation.
In general, lawyers and civil society groups did not consider MoM sanctions to be an
effective tool for holding agencies accountable for violations committed against migrant
workers in individual cases.
Perceived Effectiveness of Administrative Dispute Resolution
Awareness of Administrative Dispute Resolution among Migrant Workers
Civil society organizations and legal experts were highly familiar with administrative
dispute resolution services and spoke of them as the routine first step if direct negotiations fail. In contrast, although migrant worker focus group participants mentioned
visiting a local government office for advice or assistance in resolving a case, they did
not view this as a mechanism or pathway to justice as such. Rather their use of local
government was framed as seeking the intervention of a more powerful local figure in
a dispute, usually with a local broker or agent.
MIGRANT WORKERS’ ACCESS TO JUSTICE AT HOME: INDONESIA 81
Workers were not familiar with the more formal mediation procedure, possibly
because BNP2TKI’s Crisis Centre is new. None of the workers described being informed
pre-departure about the dispute resolution role of the MoM or BNP2TKI. Instead, as
detailed in later sections, they were advised to simply go to their embassy if they had
a problem. The large number of calls to the crisis center in its first year of operation
suggests that awareness of the center is growing, though the very small percentage (3
percent ) of those calls that involved a claim suggests that awareness of the agency’s
dispute resolution function may still be relatively low.
Accessibility to Migrant Workers and their Families
Legal experts and civil society groups were generally positive about administrative procedures. They perceived them as relatively accessible options, and far cheaper than
litigation. These procedures also enable the civil society group to confront the other
party directly and present the worker’s case. As Umu Hilmy of Brawijaya University
explained: “For non-litigation methods, we have more hope because we can argue
against the denials from the recruitment agency lawyers directly.” Because workers
were unfamiliar with mediation, they did not have a view on its accessibility.
Administrative dispute resolution can also be relatively fast and affordable—apart
from potentially substantial travel costs—because neither MoM nor BNP2TKI charge a
fee for the filing of a complaint. The informal or quasi-formal negotiation process was
also described as a familiar dispute resolution method for local conflicts.
At the same time, geographic distance is a significant barrier for many migrant
workers. Although Article 85(2) of Law 39/2004 requires that a complaint against a
recruitment agency be filed at a local manpower office, in practice this was usually ineffective because of the limitations of local manpower offices generally (see discussion in
Government Agencies’ Dispute Resolution Functions above) and because Middle East
recruiters are located in Jakarta.143 As a result, a migrant worker or family member must
travel to the MoM or BNP2TKI in Jakarta, which is expensive, intimidating, and takes
the complainant away from his or her family responsibilities. Until the role of local
manpower offices is strengthened, or BNP2TKI has greater reach to the district level,
accessibility will remain an obstacle, particularly for migrant workers to the Middle East.
Fairness of Procedures
All officials and civil society groups interviewed for the study were clear about the procedures for administrative dispute resolution, including mediation. Their perceptions
accorded with the BNP2TKI SOP and its service standards, suggesting a measure of
clarity and transparency. However, the service standards themselves note that implementation is not “optimal,” and that technical implementers in the field have found the
numerous changes in the law and procedures “confusing.”144
82 MECHANISMS FOR ENFORCING RIGHTS AND SEEKING REDRESS
A number of organizations believed that the process of negotiation and mediation could be empowering for workers. It gives organizations an opportunity to spend
time with the worker and provide counseling or other moral support, and also provides
an opportunity for organizations to educate and train workers about the process. Jihun
from SBMI explained, “When we accompany a case, the family or the migrant worker
herself experiences the case along with us. We invite them to Jakarta so that they can
learn and we hope they could do on their own next time if they face a similar situation,
and they also get to know the different government buildings.”
This learning-by-doing approach may also benefit communities. Eddy Purwanto,
who was previously a private lawyer representing migrant workers, explained that he
demonstrated to workers that they have rights by bringing them through the process,
and that, “there is a transformation, there is a learning for the whole community so
that if their case finishes and they go home to their village, they can help others who
have similar problems.”
Nevertheless, most migrant workers still confront significant challenges when
using these quasi-formal administrative mechanisms. These include difficulties in
gathering all of the required documents, and the need for some skilled representation,
especially for mediation. The recruitment agency is not required to provide copies of
documents that the worker has lost (such as the contract), and there is no mechanism
to compel the agency’s attendance or to enforce promises made or agreements reached.
The procedural standards do not establish appropriate remedies or set monetary benchmarks. And because the format is more akin to a facilitated negotiation rather than a
true mediation, the presence of the “mediator” does little to ameliorate the significant
power imbalance between the two parties. The procedures also lack general worker
protections such as a guarantee of confidentiality.
Compounded by the lack of an appeals process, the administrative dispute resolution procedure is thus relatively weak: recruiters have little incentive, and cannot be
compelled, to reach an outcome that is truly fair to the worker, and neither the process
nor the government “mediators” structurally correct the barriers that workers face in
seeking justice.
MIGRANT WORKERS’ ACCESS TO JUSTICE AT HOME: INDONESIA 83
Yuni’s Experience
Yuni is a mother of two who works with her husband selling snacks on the
street in Sukabumi West Java. To supplement the family income, she went to
Qatar in 2008–2009 to work as a domestic worker, using a local broker and
a Jakarta-based recruitment agency. In Qatar, she was responsible for caring
for a young baby, cleaning the house, and cooking for the family, which left
her only around three hours per day to sleep. For the first eight months, her
employers did not pay her wages and forbade her from calling her family or
receiving calls from home. She was finally paid after eight months, but only
for three months of work. This pattern continued for the next nine months,
and after one year and five months, she was still missing seven months of
wages. Finally, Yuni went on strike for a day in protest and in response, her
employers returned her to Indonesia without paying any of what they owed.
She explained the process when she returned:
When I came back I didn’t know where to file a complaint. I just
thought that this is my fortune, and I was resigned to my situation.
I did go to my sponsor [broker] and he said he would fix it, he even
took my documents with him, but after more than a year I never
heard anything. Finally, I spoke to my older sister who had had a
similar problem and she introduced me to Mrs. Jejen [Coordinator
of SBMI in Sukabumi]. I asked her if she could get my wages for me,
but she said it was not possible now, but that I could put in a claim
for insurance. Mrs. Jejen handled everything for me. She took me to
Jakarta one time—to BNP2TKI and then to the recruitment agency.
Thanks to God, they agreed to handle it, to help me.
After that I don’t know what the process was as I didn’t go along.
But three months later Mrs. Jejen called me and said the recruitment
agency wanted to meet with us in Jakarta. They had arranged the
insurance for me—I received 3 million rupiah (around US$315). This
was not the full amount I was owed though—for seven months work
I should have received 15 million ($1560). However, we only had the
documents to prove early termination—I couldn’t prove the unpaid
wages so I couldn’t submit the full claim. That was in early 2011.
The reason they gave for the low payment was that I didn’t have my
passport, only my contract. But the broker had taken my passport
and when we asked him he said he gave it to the recruitment agency.
84 MECHANISMS FOR ENFORCING RIGHTS AND SEEKING REDRESS
The agency refused to give it to me, even after they had paid me the
money. They just said that if I wanted to travel abroad again, I would
have to use them. They are still holding it today.
The whole process was really hard for me. The hardest thing was
going back and forth to Jakarta, and I just went two times, Mrs. Jejen
went many times. This cost money each time—around 300,000
($30) per person. Many people explained to me the process along
the way: Mrs. Jejen, another person in Jakarta, a researcher and also
someone at the woman’s human rights commission. But I have
forgotten most of it now. In the end, the amount was not enough,
but satisfied or not satisfied, I just had to accept it.
Justness of Outcomes
As the Crisis Centre figures indicate (see discussion in Government Agencies’ Dispute
Resolution Functions above), BNP2TKI has a relatively high clearance rate, resolving
more than half of complaints within a year. It does not, however, provide information
about the outcome of the cases, the kind of redress achieved, or the extent to which the
redress obtained is comparable to the losses sustained and/or the amounts claimed.
In general, participants indicated that all amounts and claims were subject to
some negotiation, and that as a result workers would never get the full amount, but
they would always get something. As a staff member at one civil society group stated:
We have never had true satisfaction in a case. Because we see that in almost all cases the
worker loses something. For example from any claim, the worker will only receive 75 percent
or 80 percent at most of what she deserves—whether salary or concrete demands. And more
serious claims such as sexual harassment are never even discussed—there is no compensation for them.145
As the Crisis Center refines its procedures, it would be valuable to gather detailed
outcome data as well as data on migrant workers’ satisfaction with the procedure and
result in their cases.
6.C The Migrant Worker Insurance Program
The Indonesian Migrant Worker Insurance Program is a specialized scheme established
under Law 39/2004 as:
MIGRANT WORKERS’ ACCESS TO JUSTICE AT HOME: INDONESIA 85
A form of protection for migrant workers in the form of financial compensation for losses
suffered by the migrant worker before, during and after working abroad.146
The Insurance Program is regulated and monitored by the Minister of Manpower,
and serves as the ministry’s key strategy for providing redress to, and protecting the
financial wellbeing of, Indonesian migrant workers.147 The scheme is broad in scope
and could, if it functioned effectively, provide meaningful financial redress for many of
the problems commonly experienced by workers.
Pursuant to Law 39/2004, all migrant workers are required to participate in the
Insurance Program, thereby spreading the risks of traveling abroad across migrant
workers, similar to national health insurance or workers’ compensation. Protection of
migrant workers through insurance began in 1998 through a foundation run by recruitment agencies, and the current scheme was established in 2006.148
Although lawyers, civil society groups , and workers believe that migrant workers
should be insured, they expressed frustration and cynicism about this particular program. Many described the program as essentially extortionate, in that migrant workers
are required to pay money to the insurance companies in order to receive approval to
travel, but receive little benefit in return because they rarely receive pay-outs for losses.
The World Bank in Indonesia has also been critical of the scheme, identifying problems
in both its structure and implementation.149 In interviews, The Ministry of Manpower
rejected such assessments and described them as “misperceptions,” as did the insurance consortium at the time, Proteksi.150
At the time of publication of this study, the fate of the Migrant Worker Insurance
Program was uncertain. On 16 July 2013, the Supreme Court reportedly invalidated the
key implementing regulation for the scheme on the basis that it was inconsistent with
the broader law on insurance and with anti-monopoly legislation, however the decision
has not yet been made public.151 Further, the previous day (15 July 2013) the Indonesian
Financial Services Authority (Otoritas Jasa Keuangan, OJK) froze the operations of the
consortium of insurers appointed to provide insurance to migrant workers under the program. It noted that, “several things needed improvement in the current migrant worker
insurance scheme,” and announced that some consortium members would be audited.152
On 30 July, 2013 the Ministry of Manpower appointed three new consortiums comprising
32 insurance companies, none of which had participated in the previous scheme.153 However the reported Supreme Court invalidation of the 2010 regulation raises questions as
to the validity of the appointments and the continuing operation of the program.
Despite these uncertainties, the analysis of the Insurance Program below, based
on research conducted in 2012, remains relevant to any efforts to reform the program.
The review of the structure and the operation of the program revealed systemic problems that went beyond the specific consortium members. These included inappropriate
86 MECHANISMS FOR ENFORCING RIGHTS AND SEEKING REDRESS
gaps in the insurance policy, a failure of recruiters to meaningfully inform migrant
workers about their insurance coverage and procedures for making claims, and a need
for greater procedural clarity, transparency and accountability within the claims process,
among other problems.
In the discussion that follows, the term “Proteksi” or the “Proteksi Consortium”
refers to that specific previous insurance consortium. Whenever the discussion refers
to the general role and functions of a consortium appointed to provide insurance to
migrant workers, the term “consortium” is used. The discussion below also refers to
regulation 7/2010 which established the contours of the Insurance Program during the
period of this study.
Legal Framework and Institutions for Insurance
Licensing and Regulation of Insurance Providers
Law 39/2004 makes the purchasing of comprehensive insurance mandatory before
departure. It places the onus on recruitment agencies to arrange insurance for workers
they place (Article 68(1)), although regulations allow recruiters to recoup insurance costs
from the worker.154 The law assigns responsibility for establishing and overseeing the
scheme to the Ministry of Manpower (Article 68(2)). In contrast to the largely unregulated
administrative redress mechanisms for migrant workers, the MoM has adopted numerous regulations governing the insurance program (see Table 4, below). It has established
a licensing scheme for insurers that provide migrant worker insurance (see Institutional
Actors later in this section), and has set out insurance coverage and claims requirements.
TABLE 4: Laws and Regulations Governing Migrant Worker Insurance
Law/Regulation
Content
Law 39/2004
Governs the recruitment, placement and protection of Indonesian migrant
workers; establishes insurance requirement and MoM and recruitment
agency responsibilities.
MoM Regulation
23/2006
The original regulation governing insurance for migrant workers; since
amended by later regulations.
MoM Regulation
7/2010
The current regulation on the insurance system for migrant workers when
research for this study was conducted. Reportedly invalidated by the
Supreme Court on 16 July 2013.
MoM Regulation
14/2010
The current regulation on the recruitment and training process for migrant
workers, including the obligation to purchase insurance.
MoM Regulation
1/2012
Amended evidentiary requirements in Regulation 7/2010 for insurance
claims. Potentially invalidated by the Supreme Court decision of 16 July 2013.
MIGRANT WORKERS’ ACCESS TO JUSTICE AT HOME: INDONESIA 87
National insurance legislation also sets out a framework for the insurance industry as a whole, presumably including migrant worker insurance, with oversight from the
Minister of Finance.155 The relationship between the migrant worker insurance scheme
and the general insurance regulatory framework is gaining increasing attention, and
was reportedly the basis of the July 2013 decision of the Supreme Court.156
The Insurance Consortium
Migrant worker insurance is provided by a consortium of insurers appointed by the
minister of manpower. In 2010, the minister appointed the Proteksi Consortium as
the sole provider of migrant worker insurance for a four-year term.157 Each consortium draws on a pool of ten insurance companies: three life insurance companies and
seven general insurance companies.158 Proteksi was based in Jakarta but purportedly
had branches in major cities across Indonesia.159 It was responsible under Regulation
7/2010 for all insurance services for migrant workers, including selling the policies,
extending coverage, providing insurance documents, and paying claims.160 Between
October 2010 and February 2012, BNP2TKI reported that 1,028,243 individuals had
purchased insurance policies from Proteksi.161
For a number of reasons, including the low pay-out rate (see discussion below),
the work of the Proteksi Consortium has been controversial in Indonesia. In 2012, Parliamentary Committee IX established a working group to review Proteksi, and found
that it, “had failed to carry out its tasks as the provider of insurance in guaranteeing
protection to migrant workers working abroad against risks arising prior to, during,
and post placement.”162 The committee recommended that the Proteksi consortium
be disbanded and replaced by a “more competent” consortium within three months.163
The MoM rejected this recommendation, noting that Proteksi had already been twice
sanctioned. The Financial Services Authority (OJK) froze the operations of Proteksi in
July 2013, and it was replaced by three new consortiums.
88 MECHANISMS FOR ENFORCING RIGHTS AND SEEKING REDRESS
Insurance Brokers—An Important Role in Need of Reform
Like recruitment brokers, insurance brokers are “middle-men” between
migrant workers and the insurance company. Unlike recruitment brokers,
insurance brokers are independently regulated—both by general insurance
law and by Ministry of Manpower regulation. The Ministry of Manpower
appoints brokers (s. 20) and the broker selected by the consortium must
sign a collaboration agreement to be able to handle cases (s. 21). The brokerage firm engaged by the Proteksi consortium was PT Paladin International
Insurance Brokers.
If this system worked effectively, brokers could be powerful allies for workers. Brokers are tasked with helping insurance purchasers—in this case the
workers—with two key tasks: “to find appropriate coverage and to make
claims.”164 The regulations clearly intend for brokers to act in the best interests of the worker.
However, the structure of the Migrant Worker Insurance Program complicates the role of brokers. First, the program is essentially a regulated
monopoly offering only one product, so the services of a broker to identify
an appropriate product for the worker are redundant. Further, the only fee
that brokers receive is for selling the insurance policy (from the insurer) and
brokers, therefore, have little incentive to assist a worker in the filing of a
claim or any other activities beyond the sale of the policy.
Second, although the broker is only entitled to receive 15 percent of the
insurance premium for the sale of each policy, the media has reported that
Paladin in fact received up to 50 percent of the worker’s premium.165 The
insurance industry suggested this amount was to cover Paladin’s costs in
setting up representatives across Indonesia and abroad. The insurance regulating body within Indonesia’s Ministry of Finance (BAPEPAM) was highly
critical of the high commission received by PT Paladin, noting: “[The brokers’] loyalty is unclear at present. Based on insurance law the brokers must
function as representatives of their customers, but in practice here they
work for the consortium.” He also noted that the high commission reduces
the pool of insurance funds held by the consortium, in effect limiting the
amounts that may be paid out in claims.166 In July 2013 the Financial Services
Authority (OJK) ordered a stop to PT Paladin’s marketing of migrant worker
insurance, on the basis that the broker’s commission constituted a misappropriation of funds.167
MIGRANT WORKERS’ ACCESS TO JUSTICE AT HOME: INDONESIA 89
The Standard Insurance Policy
Under a standard Proteksi insurance policy, identical coverage was provided to all
migrant workers, regardless of where they were travelling to work or individual risk
factors.168 The policy was based on the requirements of Regulation 7/2010, which sets
the premiums that a consortium can charge, the risks it must cover, the amount of coverage for different risks, and the duration of coverage.169 Insurance coverage is divided
into three periods, each with separate premiums: pre-departure (IDR 50,000), during
placement (IDR 300,000), and post-placement and return (IDR 50,000) (Table 5). The
total premium for these three periods for all migrant workers is IDR 400,000 (approximately US $40).
TABLE 5: Periods of Migrant Worker Insurance Coverage
Period
Duration of
coverage
Premiums
(IDR)
5 months
50,000
Death
Illness or Injury
Accident
Failure to depart for no fault of the worker
Physical or sexual assault/harassment
During
placement
24 months
300,000
Death
Illness and Injury
Accident either during or outside of work
hours
Unemployment, either individual or en
mass, before the contract has expired
Legal problems
Wages not paid
Returned home early
Physical and sexual assault/harassment
Mental illness
Failure to be placed for no fault of the
worker
Moved to another worksite or place against
the wishes of the worker
Postplacement
and return
1 month
50,000
Death
Illness
Accident
Loss due to actions of a third party during
the journey home, including loss of luggage,
physical /sexual assault
Pre-departure
Risks covered
Source: Minister of Manpower Regulation 7/2010.
90 MECHANISMS FOR ENFORCING RIGHTS AND SEEKING REDRESS
This scheme has the benefits of simplicity (a single standard policy) and breadth
of coverage (combining life, health, employment, and general insurance). However it
has several significant shortcomings that have been the subject of criticism from many
quarters.
The primary criticism is that more complex claims are simply not paid out, in
part because of the overly-broad and ill-defined coverage under the policy. The World
Bank and International Finance Corporation in Indonesia analyzed limited figures from
2010. Their study, conducted at the request of the Indonesian government, found that
the vast majority of insurance payments are for simple, quantifiable and easily documented losses—early termination/worker sent home (43 percent ) and the cost of a
return flight home (49 percent ). Because of a lack of reliable public data, it is unclear
whether the scheme is currently an effective redress mechanism for other contractual
breaches such as non-payment of wages, changes in the nature of work against the
worker’s wishes, or other breaches of labor conditions such as excessive hours or unsafe
work conditions. It is also unclear whether it is effective for accidents and injuries that
migrant workers sustain while working abroad.
What is clear is that claims for serious harms such as physical or sexual violence
were not paid.170 The Ministry of Finance Insurance Bureau has criticized the scope of
coverage and suggested that such harms should be covered by the government, and are
not appropriate for an insurance scheme. A spokesperson noted in September 2012
that new regulations are needed to, “explicitly state what is insured and what is not”
and to delineate the different responsibilities of the private and public sectors.171 The
World Bank has similarly argued that serious risks that are not traditionally “insurable”
(such as physical and sexual assault or torture) should be covered by a public protection
scheme, such as a welfare fund.172
The World Bank also critiqued the policy for placing responsibility for all possible
risk on the migrant worker, as opposed to the recruitment agency or other party. It has
argued, for example, that only some of the risks covered above should be borne by the
worker, such as death or illness. Other risks should be borne by the recruitment agency as
a cost of doing business—for example, early termination of the employment agreement.
Finally, the standard insurance policy contains a number of significant exclusions
to coverage such as pre-existing health conditions, war, and losses due to the migrant
worker being charged with a crime. The policy also excludes coverage if the worker
undertakes work in the destination country that differs from the placement agreement,
without taking into account that this frequent practice is rarely the worker’s fault. Further, workers are not covered for loss of employment if they leave their employer, regardless of the grounds for departure. This is particularly problematic as departure from
employment is often one of the only options that workers have to escape abusive situations, particularly in the context of domestic work (see Section 6.E below, on Protection
MIGRANT WORKERS’ ACCESS TO JUSTICE AT HOME: INDONESIA 91
of Workers Abroad). Although these may be standard exclusions for employment insurance contracts, they do not recognize the particular circumstances of migrant workers
and may unfairly exclude coverage when workers need it most, leaving them without
redress for significant harms.
The regulations do, however, provide the insurer with discretion, “as part of [the
insurer’s] social function,” to compensate a migrant worker for harms that are not covered by the insurance policy.173 There are no guidelines on when and how this discretion
should be exercised; it appears to be exercised in an entirely ad hoc and non-transparent
manner in the awarding of “charity” payments that are a fraction of the amount claimed
by workers whose claims are otherwise denied (discussed below).
Purchasing Insurance and Claims Procedures
Compounding the structural shortcomings of the Migrant Worker Insurance Program,
the mechanics of the system have made it particularly challenging for workers to file
claims and obtain compensation. Study participants underscored the inaccessibility
of the system including the particularly complicated procedures for filing claims, and
expressed deep dissatisfaction with the small number of claims approved and amounts
paid.
Obtaining Insurance
Under Law 39/2004, the obligation to enroll a prospective migrant worker in an insurance program rests exclusively on the head office of the recruitment agency placing
the worker (Article 68). Insurance is a prerequisite for obtaining the KTKLN Card
(migrant worker identity card) (Article 63) and must be obtained before the worker
departs abroad.174 Placement of a worker abroad without insurance coverage is a crime
with severe penalties175 (Article 103).
Under MoM Regulation 7/2010, recruitment agencies are obligated to pay the
premium on behalf of the worker.176 The pre-placement insurance must be paid before
the worker signs the placement agreement with the agency, and the insurance to cover
the period of employment and post-employment must be paid as part of the pre-departure preparations. The recruiter may then recover the costs of the premium from the
worker.
Following payment of the premium, the consortium must issue to the recruitment agency a receipt for payment and a copy of the insurance policy in the worker’s
name, as well as the participant insurance card (“KPA”), for the agency to then provide
to the worker.177 The insurance company must also give a copy of the insurance policy
to the director-general of the MoM, the head of the Provincial MoM Office, the head of
the District or Municipal MoM Executive, and the chair of the recruitment agency.178
92 MECHANISMS FOR ENFORCING RIGHTS AND SEEKING REDRESS
Key Insurance Documents
The migrant worker’s ability to make an insurance claim is dependent on her
possession of two key insurance documents: the policy and the insurance
participation card (KPA):
Insurance Policy: An insurance agreement between the insurer and the insured,
printed by the insurer and based on the list of participants provided by the private
placement agency.
Regulation 7/2010 states that the consortium must give the policy to the
worker after the premium is paid. All workers receive the same insurance
policy, a copy of which is available on the Proteksi website.179 The coverage
and the premium do not change regardless of where the migrant worker is
travelling. The only unique information on the policy is the policy number.
It does not contain the migrant worker’s name.
Insurance Participation Card (KPA): A card printed by the insurer in the name
of the migrant worker/prospective migrant worker as proof of being insured. The
card is linked to and cannot be separate from an insurance policy.
The KPA is required for making an insurance claim. Regulation 7/2010 states
that every worker has the right to a KPA (Article 18), and mandates that the
consortium print and provide the KPA (Article 14(1)) through the recruitment agency (Article 16(5)) together with the policy after the premium is
paid (Article 16(2)).
The regulations do not specify procedures for supplying a worker with a
replacement KPA, nor an obligation to provide one, which is particularly
significant for the many workers unable to make claims because they either
lost or never received their KPA.
The Ministry of Manpower can impose administrative sanctions on the consortium if it fails to print and provide the KPA and insurance policy to the worker or
distribute copies to other relevant government offices. The sanctions include written
reminders, temporary stoppage of some functions, and finally removal of the license
to participate in the program. The ministry is required to publish neither the details
of sanctions imposed, nor any remedial action taken by the consortium in response.
Moreover, it is not clear how sanctions are triggered, and the law does not provide a
MIGRANT WORKERS’ ACCESS TO JUSTICE AT HOME: INDONESIA 93
mechanism through which a migrant worker can complain to the ministry about not
having received her KPA or policy.
It is also not clear whether the consortium’s obligations to give the worker her
KPA and policy are satisfied by giving the documents to the recruitment agency. In fact,
there is no accompanying obligation on the part of the recruitment agency to deliver
the documents to the worker or ensure that he or she understands them, and there are
no sanctions for failure to do so. As a result, many workers do not receive the policy
and KPA, and do not understand their contents or implications, substantially limiting
their ability to pursue claims.
Submitting a Claim
The procedure for submitting a claim is set out in MoM Regulation 7/2010, as well as in
the standard insurance policy. A migrant worker, or her rightful heir, must file an insurance claim with the consortium180 within 12 months after the harm occurred or loss
was sustained, regardless of whether it was in Indonesia or abroad.181 This requirement
is particularly onerous in light of the standard two year duration of migrant worker
contracts, and the significant practical barriers faced by a worker filing a claim from
abroad (or by family members in Indonesia collecting the required original documents
while the worker is abroad).
To submit a claim, the migrant worker or family member must present the original KPA, together with supporting documents, to the consortium.182 These documents
may include receipts for medical expenses such as hospital bills, the employment agreement, or a letter from the embassy supporting the basis of the claim. Evidence of harm
abroad invariably requires documentation from abroad, which is significantly easier to
obtain while in the country, rather than after returning home.
Disputing a Claim Decision
If a worker’s claim is rejected or the worker is unsatisfied with the payment, he or she
may submit a complaint to the Ministry of Manpower (at local or national levels) or
BNP2TKI, and request a facilitated dispute resolution identical to the process for disputes with recruitment agencies183 (see Section 6.A above). Regulation 7/2010 does not
set out any detail about this process.
The standard insurance policy has its own conflict resolution clause, which is
not consistent with the regulation, and was not mentioned by any participant in this
study. It provides workers with the options to either seek arbitration of a dispute, with
each side appointing their choice of arbiter, or file a claim in the district court. None of
the interviewees in this study knew of a case being arbitrated, or brought in court, and
all were cynical about its prospects of success (see Section 6.D on Redress through the
Courts below).
94 MECHANISMS FOR ENFORCING RIGHTS AND SEEKING REDRESS
Perceived Effectiveness of the Insurance Program
Awareness of the Program
Although the Migrant Worker Insurance Program is a mandatory program for migrant
workers, awareness of the program among focus group participants was very low.
Almost none of the focus group participants mentioned insurance coverage when asked
about documents or steps they took to access redress. Five participants, when asked
directly, simply said that they were not insured and did not receive any insurance card.
Another from Indramayu recalled, “I didn’t receive any insurance, but I wasn’t even
told my passport number, let alone receive an insurance card.”
Participants who mentioned insurance expressed limited understanding of its
operation. One returned worker in Malang noted: “When I left the second time I heard
someone at the [recruitment] office say: ‘You have insurance.’ But the insurance documents weren’t given to me. [The agency] just said, ‘Later, if anything happens, telephone
the office and the office will arrange everything’.” Only two participants stated that they
knew they were insured and had a KPA. While this sample is not representative, and
the interviewed workers left at different times, these reports suggest a general lack of
awareness and understanding of the insurance program among migrant workers.
A lack of awareness about insurance and claims procedures was generally accepted
by all interviewees, although they gave different explanations. A former insurance broker interviewed blamed the lack of awareness on workers, commenting that migrant
workers would just throw the policies they received on the floor, not understanding
them. In the end, he explained, his company stopped providing the policies to save on
paper.184 Other experts attributed the lack of awareness to bad faith dealings. The director of the BNP2TKI’ Crisis Center said:
In this area, a lot of games are played. I get very upset, because for example they give out policies, but the worker is not required to sign the policy. So how would the worker understand
what the content says, especially the fine print? This is how I see it and so I get very upset,
not against the individuals but the institutions … they are sneaky.185
Experts from civil society groups invariably attributed migrant workers’ low
awareness to the failure of recruitment agencies to inform workers about the contents
and importance of the insurance policy, which may explain migrant workers not wishing to keep a copy. Lack of information, however, means that workers often do not
know to gather evidentiary documents before returning, or to submit a claim within
the 12-month period.
MIGRANT WORKERS’ ACCESS TO JUSTICE AT HOME: INDONESIA 95
Accessibility
Migrant workers face substantial barriers to accessing the insurance claims process,
despite the accessibility of insurance coverage itself, which is arranged by recruitment
agencies. Empirical data confirms that the number of claims submitted is very small
compared to the workers who likely have valid claims.186 The parliamentary working
group cited that, in 2010-2011, 113,910 returning workers reported experiencing problems when interviewed at the airport, but only 15,874 (or 14 percent) of those workers
submitted insurance claims. Given the breadth of the policy, it is likely many returning
workers with valid claims are not filing them.
As noted above, the greatest hurdle that migrant workers confront is their lack
of awareness and understanding of their insurance coverage and related claims procedures. A second major hurdle is geography. Proteksi was based in Jakarta, and although
it reportedly had representatives across the country, interviewees were sceptical that
these representatives could effectively receive and process claims. Further, Proteksi’s
presence in major destination countries was limited, and thus workers were not able
to submit their claims abroad.
Combined with the one-year deadline for filing claims, this excluded significant
numbers of workers from accessing insurance benefits to which they would otherwise
be entitled. Proteksi had a desk at the airport for returning migrant workers to file
claims immediately upon return, although filing at the airport was not required. This
ameliorated the problem somewhat for workers able to return home within a year of
the harm occurring, but was of no avail to those for whom the harm or loss occurred
during the earlier part of their time abroad. And the statistics cited by the parliamentary
working group (see above) revealed that even with this facility, only 14 percent of workers with problems filed claims.
In June 2012, the Indonesian Lawyers Association (AAI) and BNP2TKI launched
a three-month (June to September 2012) joint project to provide legal assistance to
migrant workers seeking to file insurance claims at the airport. The head of AAI reported
that lawyers accompanied 5,889 workers during interviews with the insurance claims
handlers at Terminal 4, and that 2,750 persons (47 percent) received a payout.187 This is
not significantly greater than the proportion of successful claims reported by Proteksi
more generally. It is likely, however, that more claims were filed than would have been
filed had the lawyers not been present, and that the payouts were higher. More research
should be undertaken to determine the impact of legal aid on migrant workers’ ability
to access compensation through the insurance program.
In addition to barriers to filing a claim, migrant workers and their families also
confront the obstacle of travel to Jakarta to negotiate the rejection of a claim. As one
SBMI case handler from Brebes explained:
96 MECHANISMS FOR ENFORCING RIGHTS AND SEEKING REDRESS
In Brebes, there is no bargaining directly with the insurer. At most, the government will
bargain on our behalf, it is the way [the system] is structured. And [the local official] also has
to coordinate with the provincial level—that is the bureaucracy. So the best path is to take it
to the center [Jakarta] directly. Then the case is mediated.188
Fairness and Transparency of Procedures
Study participants were highly critical of the insurance claims procedure. Almost all civil
society group case-handlers who assist workers to submit insurance claims described
the process as unnecessarily complicated, noting that workers could rarely fulfill the
claim requirements. For example, many migrants could not submit a claim because
they did not hold their original KPA, either because they never received it, or they had
to leave it behind when they fled their employer’s home. The regulation does not require
replacement of a lost KPA.
Organizations also complained of a lack of transparency in the insurance claims
process. Roma Hidayat from ADBMI, stated that, “the way to make a claim and the
mechanism for deciding a claim is not public information—there is a serious lack of
transparency and accountability in the system.” She noted that, “If we ever ask … what is
happening to a claim they will still say it is ‘in process’ but what process we don’t know,
we never receive an answer.”189 Workers are often unable to establish the status of their
claim, or the timeframe in which it will be decided, making it difficult for them to make
financial and other key decisions about their future. There is a similar lack of transparency and due process in the rejection of claims, with no reasons provided to the worker.
Outcomes
According to case handlers and lawyers, because of evidentiary and other challenges,
almost all claims submitted are either rejected outright or not paid out in full. Data from
BNP2TKI revealed that in both 2010 and 2011 just under half of claims (45 percent and
48 percent respectively) were rejected.190 Civil society groups suggested that this was
sometimes attributable to incomplete documents, but at other times the claims were
simply refused. The consortium explained that claims are usually rejected because the
worker was sent home due to poor physical or mental health, due to not having the
required skills, or because the worker wished to return, none of which are covered by
the policy.191 Because the regulations do not require reasons to be provided to the claimant when rejecting a claim, and because there is no publicly available data on the types
of claims made, it is difficult to assess the accuracy of this explanation.
Data on the amounts paid out, including whether accepted claims were paid in
full or in part, is similarly unavailable. However, the perception among civil society
organizations was that claimants rarely received the full amount claimed due to documentation difficulties. As one advocate explained:
MIGRANT WORKERS’ ACCESS TO JUSTICE AT HOME: INDONESIA 97
One weakness in the insurance system is when … if you don’t have one thing, like the
Employment Agreement, the company won’t pay out 100 percent on the basis that the documents aren’t complete. So there are some that only receive 25 percent of what they are due,
after much negotiation, and this really harms migrant workers.192
One returned worker, for example, had submitted a claim for unpaid wages of
IDR 15 million ($1560), but received only IDR 3 million (US $312) from the consortium.
The consortium determined she did not have evidence of non-payment of wages, so
gave her compensation for a claim of early termination, which provides a smaller payment. Payments in such cases were often described as “ex gratia payments” or “charity
cases,” in which the insurer declared that the full claim was invalid, but paid a reduced
amount as a form of charity. Although technically legal since early 2012 (see Legal
Framework, above) worker representatives believed the practice was used to stop workers challenging the refusal of their entire claim.
Mimi’s Case
My sponsor took me to the recruitment agency and I stayed at the boarding
house for 1.5 months. They taught me how to sew. I had no problems there, but
when I got to Jeddah, Saudi Arabia, the placement wasn’t the same as what was
written onto my visa, the employer was different. I was put on the top floor of the
house, and I wasn’t allowed to eat or drink while I was working, not allowed to
go out. They didn’t pay me for five months, they said because I couldn’t speak
Arabic. They were angry with me all the time because I couldn’t understand
them. I asked the agent if I could change, but the agent said no. I asked my
employers if I could go home, but they refused. Eventually I just refused to work,
and they took me to the embassy. There was a big argument at the embassy,
and finally the employer agreed to pay my trip home, thanks to God. But they
held onto my wages.
The recruitment agency helped me file the insurance claim, but I didn’t get all
of my wages back. The claim was for two million rupiah, but they paid out 1.5
million. Even then, the sponsor only gave me 500,000 … It was all divided up—
the sponsor received 500,000, the agency 500,000, and 500,000 to me. It was
hard for me to accept this. But it was complicated because I didn’t hold onto
the policy … There were policies but the recruitment agency didn’t want to give
them to us—if we held them and arranged everything ourselves, then of course
the payment couldn’t be divided up.
98 MECHANISMS FOR ENFORCING RIGHTS AND SEEKING REDRESS
In some cases, delays in assessing insurance claims result in justice denied.
Indeed, participants reported instances in which the government reportedly stepped
in to provide assistance when insurance claims were delayed or rejected. ADBMI in
Lombok provided an example of such a case:
We had a case that when we claimed insurance, we asked [BP3TKI] to put forward the claim,
and the staff of [BNP2TKI], a person from Jakarta answered us that they were finding it
difficult to communicate with the recruitment agency. So at that time, because the victim
had broken her leg and needed money for treatment, BNP2TKI gave money from their own
budget for the treatment, although it should have been covered by insurance.193
6.D Seeking Redress in the Courts
Indonesia has a national network of courts overseen by the Supreme Court in Jakarta.
In labor-related cases such as claims of unpaid wages, migrants have the right to bring
suit against another party under civil law. Indeed, the BNP2TKI Regulation 13/2012
requires BNP2TKI officials to direct parties to the courts if they cannot resolve their
insurance claim or their case against a recruitment company at mediation. In cases of
serious abuse and exploitation of migrant workers, police may file charges against the
recruiter, resulting in a criminal trial.
The universal opinion of the lawyers and civil society groups interviewed in this
study was that the court system is not a viable option for the vast majority of migrant
workers seeking redress. Criminal cases are hamstrung by lack of evidence of what
occurred abroad, among other challenges, and civil litigation is expensive, slow, and
time-consuming. Migrants appearing before the courts require sophisticated legal representation and extensive documentary evidence—generally insurmountable barriers
to access. As a result, very few cases involving migrant workers have gone to court, and
none of the migrant workers interviewed for this study had used the Indonesian court
system to resolve their cases.
This section provides a brief overview of the court system and describes stakeholders’ perceptions of both the civil and criminal jurisdictions of the court, with the
aim of identifying specific barriers to entry, and potential areas for further exploration
and action.
Overview of Indonesian Courts and Tribunals
Indonesia has a civil law system based on the Roman-Dutch model, modified by customary and Islamic law.194 Judges are trained specifically for their positions and appointed
for life. The highest court in Indonesia is the Mahkmah Agung (the Supreme Court).
MIGRANT WORKERS’ ACCESS TO JUSTICE AT HOME: INDONESIA 99
It has the authority “to hear a trial at the highest level, [and] to review ordinances and
regulations made under any law against such law.” For example, the Supreme Court
may review regulations made by the Minister of Manpower for compliance with the
minister’s authority under Law 39/2004.195
Beneath the Supreme Court, the constitution provides196 for public courts of general jurisdiction, a constitutional court based in Jakarta,197 and other specialized courts
and tribunals.198 The public courts (also known as ordinary courts) would hear the vast
majority of potential migrant worker cases, whether civil or criminal in nature, because
they apply the law contained in civil, criminal and commercial codes. They include
courts of first instance (district courts) as well as appeals courts (high courts).
The Industrial Relations Court
In 2004, Indonesia revised its system for resolving industrial or workplace
disputes by passing Law 2/2004 on Industrial Relations Disputes Settlement. The law sets out a framework for the settlement of disputes that
is intended to be “prompt, fair, and inexpensive.” “Disputes” include, “a
disagreement on rights, conflicting interests, a dispute over termination of
employment, or a dispute among trade unions within one company” (Article
1).199 The law was intended to resolve workplace disputes between companies and workers within Indonesia.
Law 2/2004 establishes a process that initially mirrors the process in the
migrant labor system—bipartite deliberations and negotiations, followed by
conciliation (in the case of an unfair dismissal challenge) or mediation by
a civil servant at the Ministry of Manpower. However, if the case fails to
resolve through mediation, the parties can bring the case to the Industrial
Relations Court.
The Industrial Relations Court is created within the public courts of general
jurisdiction, and has jurisdiction over “the workplace of the worker” (Article
81). Cases must be brought at the district court level. On each case sits a
panel of three judges—a regular district court judge and two ad-hoc judges
whose appointments are proposed by the employer organization and the
worker/union respectively (Article 88). Decisions of the Industrial Relations
Court can only be appealed directly to the Supreme Court (there is no right
to appeal to the intermediate high court level).
The Industrial Relations Court is generally viewed as foreclosed to migrant
workers. The law limits parties to the dispute to a worker/worker’s organi-
100 MECHANISMS FOR ENFORCING RIGHTS AND SEEKING REDRESS
zation and an employer/employer’s organization (Article 1), and does not
extend to parties involved in the recruitment of workers. Although the law
does not mention recruitment agencies, there may be scope to examine and
test joint liability or agency theories that could allow workers to bring industrial relations claims against recruitment agencies within Indonesia, though
it should be noted that this court has also been criticized for its inaccessibility and failure to provide workers with timely just outcomes. Regardless, the
structure of the Industrial Relations Court, and the lessons learned from its
operation, may provide a useful basis for considering a specialized tribunal
for migrant workers.
Like other branches of government, the judicial branch has undergone significant
structural reform in the past 15 years, including a shift in responsibility for judicial
appointments200 and organizational, administrative, and financial functions away from
the executive branch.201
However, perhaps due to the relatively closed nature of court work and deliberations, the judicial branch in Indonesia is viewed as having been slower to reform than
other branches of government. Numerous critical reports have highlighted the perception or reality of nepotism, collusion, and corruption in the judicial branch. For example, Transparency International’s Global Corruption Barometer found that Indonesians
in 2010–2011 perceived the judiciary to be among the most corrupt institutions (after
the legislature, political parties, and police) in the country.202 There is a widespread perception, even among lawyers and others within the system, that the outcomes of cases
can be bought by the wealthy, and thus litigation is a losing battle for people from poorer
and disadvantaged communities.203 This was reflected in the views of participants in
this study, although the challenges in civil and criminal cases may differ.
Redress through the Criminal Justice System
Criminal offenses in Indonesia are predominantly set out in the Indonesian Penal
Code204 (Kitab Undang-Undang Hukum Pidana, or KUHP), although some other regulations, including those related to immigration and anti-trafficking, contain criminal
offenses relevant to migrant workers.205
Indonesian Penal Code
The KUHP contains a number of offenses relevant to migrant workers.206 These include
fraud, abduction of children, child labor, and deprivation of liberty. Private recruiters
could potentially be criminally liable if, for example, their negligence results in the
“deprivation of [the migrant worker’s] freedom by illegal means, or caus[ing] the persis-
MIGRANT WORKERS’ ACCESS TO JUSTICE AT HOME: INDONESIA 101
tence of such deprivation of freedom,” punishable by up to three months imprisonment
(KUHP, Article 334).
Migrant workers face numerous obstacles to bringing charges under the code,
most notably the statute of limitations for bringing claims. Under the KUHP, the complaint must be filed within six months after the complainant “has knowledge of the
committed act,” if domiciled in Indonesia, or within nine months if the complainant is
abroad (KUHP, Article 73). Family members and civil society organizations cannot file
while the worker is overseas because the KUHP only permits the individual to make
the complaint, unless she is a minor below the age of 16, in which case a guardian can
bring the complaint (KUHP, Article 72). For migrant workers who are often abroad for
two years or more, these are significant constraints, unless the offense occurs in the
pre-departure phase and the complaint is filed in this period.
Immigration Violations and Trafficking in Persons
In 2009, Indonesia ratified the United Nations Convention on Transnational Organized
Crime 2000 and its two related protocols on the trafficking and smuggling of human
beings. Related domestic legislation has resulted in the creation of potential avenues of
redress for migrant workers, as well as potential liabilities.
The recently passed Law on Immigration 6/2011, for example, established more
severe penalties for possessing or using a false Indonesian passport for one’s own use
or the use of another.207 The same penalty applies for providing false information to the
government in an application for a passport.208 Such offenses must be prosecuted by
the Ministry of Immigration and so may be double-edged swords for migrant workers:
although they could be used to prosecute a broker or recruitment company that arranges
a falsified passport for a worker, the worker who unwittingly uses the falsified passport
could also be prosecuted.
The Indonesian legislature also passed the national Law on Trafficking in Persons
(Anti-Trafficking Law) in 2007, which came into force in 2009. The Anti-Trafficking Law
addresses more serious cases of abuse and exploitation of migrant workers.209 It defines
trafficking210 in line with the international definition of trafficking in persons under
the UN Convention. This includes the recruitment of an individual by the use of fraud,
deception, or abuse of power, by a person having control over that individual, for the
purpose of exploitation. “Exploitation” includes “forced labor or services, and slavery or
slavery-like practices … or the use of the labor or ability of a person by another to obtain
a material or a non-material benefit.” These provisions may be relevant in many migrant
labor cases, particularly those involving deceit, abuse, force, or other forms of coercion.
The procedures for investigation and prosecution of the Anti-Trafficking Law follow the KUHP, though specific provisions intended to protect victims are included. For
example, victims of trafficking have a right to confidentiality and witness protection
102 MECHANISMS FOR ENFORCING RIGHTS AND SEEKING REDRESS
throughout the legal process (Article 44), as well as a right to restitution (Article 48).
Restitution in this context refers to compensation for financial loss or loss of earnings,
pain and suffering, medical and psychological treatment, and other losses sustained as
a result of being trafficked. The restitution must be ordered at the same time as other
orders of the court in a criminal matter, and must be paid within 14 days from the day
the defendant is informed of the order and will be held by the court until all appeals, if
any, are decided (Article 48).
Importantly, the Anti-Trafficking Law establishes liability for corporations found
guilty of trafficking in persons. If a corporation, such as a recruitment company, is
found guilty of a trafficking offense, the managers of the corporation will be held liable
for the offense (Article 13). In addition, the corporation can be levied substantial fines
of three times the amount imposed on individuals, and may also have its license or
legal status revoked, the proceeds of the crime confiscated, its management dismissed,
and its board prohibited from establishing another corporation to conduct the same
business (Article 15).
Civil society groups and lawyers interviewed in Indonesia were highly familiar
with the Anti-Trafficking Law, perhaps because of a strong anti-trafficking movement
that led to the law’s enactment. Nevertheless, according to the experts at the January
2012 roundtable and interviewees, the law is still not widely used. Some attributed this
to the penalties in the Anti-Trafficking Law being too high, as a result of which police
are unwilling to bring charges. Others suggested that because the Anti-Trafficking Law
only came into force in 2009, justice actors are less confident about using it.
It is hard—the courts and other parts of the justice system don’t really understand the Antitrafficking law, they just know the Criminal Code (KUHP). And in fact this is an advantage to
the recruitment agencies that lobby the justice system actors not to process the case according to law.211
Perceptions of the Criminal Justice Framework
In general, the experts interviewed for this study or who participated in the Roundtable
were more critical of the criminal procedure and its implementation than they were
about underlying laws and criminal offenses.
Criminal prosecution has the benefit of highlighting egregious cases of abuse, and
bringing some justice to victims and their families. It may also hold recruitment agencies
and individuals accountable for abuses suffered by workers. In some cases, a guilty verdict
in a criminal case may also support a civil claim for redress, or may support a claim for
restitution from the defendant as part of sentencing (for example in trafficking cases).
However numerous procedural barriers obstruct migrant workers’ access to
the criminal justice system. Indonesian criminal procedure is set out in the Criminal
MIGRANT WORKERS’ ACCESS TO JUSTICE AT HOME: INDONESIA 103
Procedure Code or KUHAP.212 Under the KUHAP, police officers are responsible for
receiving and investigating complaints brought to their attention. The police then provide a file of evidence to the public prosecutor, who may also be involved in the investigation phase. According to the Ministry of Manpower in Jakarta, cases may also be
brought to court if the migrant workers are unable to resolve their claims through
mediation within the ministry or BNP2TKI. In those cases, migrant workers will then
report their cases to the police, and staff from the ministry may act as witnesses.213
Experts interviewed during this study indicated that migrant workers frequently
go to the police to file complaints, for example if the broker defrauded them of fees or
documents, but they knew of very few cases resulting in prosecution before the court.
Unlike informal mechanisms or a civil case, the victim and his or her representatives’
play no role in criminal cases beyond reporting the matter and then appearing at trial.
The ultimate decision-making authority as to whether or not to proceed with a case rests
with the police and prosecutors.
Prosecutorial review was described as difficult in many cases, because migrant
workers usually have little documentary evidence of the crime. A representative of
Migrant Care, a large case-handling organization in Jakarta, said that he almost always
receives a letter of termination of investigation because the evidence is not strong
enough. He described the high-profile case of Ermawati, a minor (under 15) who died
while working in Saudi Arabia. After two years, her case had still not been processed
and the prosecutor had sent it back to the police for more evidence.
Several lawyers and civil society staff noted the difficulty in having cases taken
seriously by the police. As the coordinator of ADBMI in Lombok explained, “We have
reported cases to the police a number of times but the police always say they can’t find
anything to charge the defendant with.” A lawyer experienced in migrant worker cases
noted that police seem to be “less than vigilant” in cases involving migrant workers.
He explained:
What is needed from the lawyer or CSO in these cases is to push the [police and prosecutors]
and remind them to go forward with the case. If not, the case will simply disappear as we
have experienced. It is extraordinary.214
Finally, even if a case is prosecuted, it may still fail if the victims decide not to
testify. Eddy Purwanto of TIFA and Jihun of SBMI described a case in which the recruitment company essentially bribed victims to not testify at a trial for trafficking-related
offenses.215 In that case, eight workers were sent to Hong Kong but when they arrived,
the agency partner collected them and sent them on to Macau. Most of the workers were
minors sent abroad illegally, and their employer in Macau did not pay them for their
work. After hearing of the case, SBMI and the TIFA lawyer believed the action of the
104 MECHANISMS FOR ENFORCING RIGHTS AND SEEKING REDRESS
agency could constitute trafficking. They secured the return of the girls and reported
the case to the police:
We reported the recruitment agency to the police so that the company would be punished for
sending these young girls abroad. But the staff of the agency started approaching and intimidating the girls. They said ‘Come on, don’t file a complaint, what is it you want? Money?
We can give it to you, how much—10 million, 50 million rupiah?’ Two workers immediately
decided to take the money. The others refused, but as the amount offered increased, they
agreed. Eventually only one girl was left who wanted to see them punished. This young girl
wanted to see them prosecuted up to the last minute, but finally she succumbed to the pressure and was paid IDR 40 million [approx. US$4,000] from the agency in return for not
testifying.216
This case also demonstrates an important benefit for migrant workers of direct
negotiation or government-facilitated mediation over the criminal justice system: it
provides them with a more direct route to financial redress. Another member of a civil
society organization noted:
The informal system is far more satisfying in terms of a sense of justice for victims than
going to the police. The police might resolve the case according to law and the perpetrator
may go to jail, but justice for the victim is getting back her money and her money won’t
come back by sending the perpetrator to jail. The lost money will always be a burden for the
victim.217
Participants interviewed for this study mentioned only two cases in which a
recruitment agency or broker was successfully prosecuted for crimes against migrant
workers. In one case in Indramayu, West Java, SBMI noted that a broker received three
years imprisonment and the recruitment agency manager received four. It was not clear
what these defendants had been charged with, whether they had paid a fine, or whether
the individual worker had received restitution. In addition, a case-handling officer from
Migrant Care described a case in Jakarta in 2007 in which there were two victims. While
the broker in that case received a sentence of four years imprisonment, the recruitment
agency was allowed to continue to operate.
According to an MoM official, most cases do resolve if they proceed to court, but
he acknowledged that because migrant workers rarely have all of the necessary evidentiary documents, the “resolution” is rarely restitution in the form of full compensation
for the loss. Rather, he implied, it would be a compromise solution or partial payment.
He was unable to provide examples of such resolutions.218
It was was very difficult to obtain information on the specific charges and criminal provisions that have been invoked in relation to crimes perpetrated against migrant
workers, and the nature or identity of the defendants (i.e., brokers or recruiters in
MIGRANT WORKERS’ ACCESS TO JUSTICE AT HOME: INDONESIA 105
their individual capacity, recruitment agencies in their corporate capacity, insurers etc.).
Some interviewees appeared to conflate criminal and civil processes, demonstrating a
lack of clear understanding of the distinct mechanisms and processes through which
migrant workers may seek redress. The types of criminal charges filed warrants further
research and examination.
Redress for Civil Claims
In addition to pursuing criminal cases prosecuted by the state, Indonesians may bring
civil claims in the courts of general jurisdiction. Civil claims are matters between private
individuals or companies based on the provisions of Indonesia’s Civil Code, the B.W.
(Burgerlijk Wetboek).219
There are several potential claims a migrant worker could bring under the Civil
Code. The Civil Code provides for breach of contract claims (regulated by Book III
of the Civil Code), or enforcement of a contract if a recruiter has failed to carry out a
necessary step in the placement process. A worker could, for example, bring a claim
against a recruitment agency if she was not sent to the location agreed under the placement agreement, was not paid the amount agreed, or was made to do a different kind
of work or work under very different conditions than those stipulated in the agreement.
A worker could also potentially sue for nullification of the agreement based on fraud or
duress if the situation abroad was not as promised, but a recruiter was still demanding
payment of fees (B.W. Article 1321). The worker may also sue an insurer for breach of
the insurance contract if the insurer improperly denies a claim.
The potential benefits of a civil claim are significant. Both parties to a civil claim
are required to attend all hearings (unlike an informal mediation at BNP2TKI). Potential
compensation available to the migrant workers could cover direct financial losses as well
as pain and suffering if the recruitment agency is found liable. Furthermore, in seeking
to address the more systemic issues underlying contract fraud and related abuses, the
pursuit of civil claims would contribute to an analysis of the law and of migrant worker
contracts that could bring much needed clarity to this complex area of law, while clearly
identifying liability for recruitment agents and their brokers. For further claims that
could be tested through strategic test case litigation, see Recommendation 10 below.
As noted in the recommendation, pro bono involvement of law firms, donor support
for civil society organizations, and law school clinics and academics may be needed to
develop and bring any viable claims.
Accessibility of the Civil Courts
Pursuing a claim through the civil courts faces many barriers. Most significantly, the
pursuit of civil claims is generally cost-prohibitive for migrant workers and their family
members. In order to bring a civil case, the worker must be represented by a lawyer
106 MECHANISMS FOR ENFORCING RIGHTS AND SEEKING REDRESS
who is paid on an hourly basis (unless acting pro bono), and must pay an administrative/registration fee and other fees for each document submitted in evidence. Further,
because the claim is generally filed in the locality of the defendant, the migrant worker
must usually travel back and forth to Jakarta to attend the hearings.
If jurisdiction over the defendant can be established, the next impediment is the
length of the civil litigation process. After a claim is filed, the court will require the parties to mediate the case with a professional court mediator, through a confidential mediation process. If the mediation fails, the case will progress to court, proceed through
stages of filing of documents and claims, and then go to trial. The Supreme Court has
indicated that most such claims will be resolved between 6 and 12 months after the first
court hearing. Once the district court has decided the case, however, it may be appealed
to the high court and eventually to the Supreme Court. The entire process could take a
number of years and may require a substantial investment of time and effort that may
be prohibitive for individual migrant workers needing to support their family.
Perceptions of Procedures and Outcomes
According to those interviewed, civil claims filed in the court by a migrant worker are
extremely rare; most interviewees did not know of any such case. Only three of the
experts interviewed had direct experience with a civil claim in the district courts. They
noted that an experienced lawyer with detailed knowledge of migrant worker law and
contracts was needed, and civil society groups rarely had lawyers on staff. Even if they
had the legal expertise on staff, civil society groups usually did not pursue civil cases
because they would not meet the worker’s need for immediate assistance, and workers were unable to wait for a trial and then various appeals before ultimately receiving
compensation. Finally, they stated that migrant workers rarely have the documents
required to support a civil claim. As Pratiwi from Jakarta Legal Aid explained, “most
workers [with serious problems] have lost their documents or they never had a contract
at all, but if they enter the formal system, they need this as evidence.” Migrant workers
may be able to obtain certain documents such as employment, placement, or insurance
contracts from the other party through the required discovery process, but this requires
further examination.220
6.E Protection Abroad and Embassy Assistance
All mechanisms described above are available within Indonesia. However, focus group
participants who had travelled abroad frequently started their search for justice while
they were in the destination country. A number of options are open to workers while
they are abroad, including contacting the agent in the destination country, contacting
MIGRANT WORKERS’ ACCESS TO JUSTICE AT HOME: INDONESIA 107
the recruitment company back in Indonesia, and contacting local authorities abroad,
such as police or migrant worker assistance organizations. For the purpose of this study
and its focus on workers’ country of origin, the Indonesian embassy and its assistance
services play a critical role.
Legal and Institutional Framework
Like other major migrant worker countries of origin, Indonesia has established services
within its missions abroad that focus on the protection of citizens including migrant
workers. In fact, the employment agreements reviewed for this study required that any
dispute between a worker and an employer be resolved peaceably with the assistance
of an embassy.
The Citizen Protection division within the embassy is charged with protecting
and assisting all Indonesian citizens abroad.221 Article 78 of Law 39/2004 states that
Indonesian foreign missions are responsible for the protection of migrant workers.
Article 80 further elaborates on that obligation:
78(1): Republic of Indonesia representatives provide protection to migrant workers abroad
in accordance with [national] law and international law and custom.
In 2006, after numerous complaints about the treatment of migrant workers
abroad, the President’s Instruction on Improving the Placement and Protection of
Migrant Workers included an enhancement of embassies’ protection role (Table 6).222
TABLE 6: Enhanced Protection Role for Embassies after 2006
1.
Program
Action
Outcome
Advocacy and
Defense
Facilitating Legal Aid for
Migrant Workers
Cooperation between
Indonesian embassies
and local law firms in 11
destination countries
Target Date
July 2007
Placement of Police
Attachés in Embassies
according to need.
2.
Strengthening the
Role of Embassies
in Migrant Worker
Protection
Establishing Citizen
Services/Labour Attaches
in migrant worker
receiving countries
Citizen Services/Labor
Attachés in six countries,
including [in the Middle
East] Jordan, Syria and
Qatar
Source: Adapted from Presidential Instruction 6/2006.
108 MECHANISMS FOR ENFORCING RIGHTS AND SEEKING REDRESS
June 2007
In 2008, following the Presidential Instruction, the Ministry of Foreign Affairs
adopted a regulation on Citizen Services, containing the Guideline on Services to and
Protection for Indonesian Citizens Abroad.223 The Ministry of Manpower also adopted
a regulation in 2011 to place its own staff in embassies as labor attachés to undertake
labor-related activities.224 Labor attaché offices within embassies have specific protection
functions for migrant workers, namely:
•
Facilitating and mediating the resolution of disputes and conflicts between
migrant workers and their employers; and,
•
Facilitating advocacy for migrant workers according to law and regulations in the
country of placement, and international law.225
In January 2013 the president signed a further regulation Government Regulation
3/2013, underscoring that the Indonesian government is responsible for the protection
of migrant workers abroad, and that Indonesian representatives abroad are charged
with providing this protection in line with international standards and the laws of the
destination country.226 Crucially, the regulation also requires that the Indonesia-based
recruitment agency assist the embassy or consulate in providing protection and legal aid
to a migrant worker if required during the placement period.227 It is not clear whether
and how recruitment agencies will meet this obligation, particularly given that the regulation does not include a provision for compelling assistance or sanctioning an agency
if it fails to assist.
Establishment of a Right to Legal Aid and Legal Assistance Abroad
Under Law 39/2004, the protective responsibilities of embassies and consulates include
a responsibility to provide migrant workers with legal aid:
80(1) Protection during the placement period is implemented by, among other things:
(a) Providing legal aid according to the law in the country of destination along with international law and custom;
(b) Defending the fulfillment of the rights of migrant workers under their contracts and/or
under the law of the country of migrant worker placement.
According to the recent 2013 government regulation (Government Regulation
3/2013), this includes:
•
Guidance and oversight, including monitoring of recruitment agencies and
employers;
•
Consular assistance and protection;
MIGRANT WORKERS’ ACCESS TO JUSTICE AT HOME: INDONESIA 109
•
Provision of legal aid;
•
Defense and fulfillment of the rights of migrant workers;
•
Protection and other assistance in accordance with international norms; and,
•
Diplomatic efforts on behalf of migrant workers.
The provision of legal advice and legal defense are essential to migrant workers seeking justice abroad, and the legal services set forth in the 2013 regulation are
reasonably comprehensive. The regulation clarifies that legal aid and rights protection
obligations extend to mediation between the worker and another party, assistance in
filing claims in court, and the provision of a lawyer (see Table 7).
TABLE 7: Rights Protection Obligations of Indonesian Foreign Missions
Protection Obligation
Activities of Indonesian Representative Mission
Provision of Legal Aid
Mediation services
Advocacy services
Accompanying a migrant worker with a “legal problem,” (i.e., to
meetings, court dates, government services in destination country).
Handling cases of migrant workers who have experienced physical
and/or sexual violence.
Providing an advocate/lawyer
Defending and fulfilling
the rights of migrant
workers
Calling to the embassy a party who has not fulfilled the rights of a
migrant worker.
Reporting cases to the relevant authorities
Demanding fulfillment of the rights of migrant workers, as
contained in the employment agreement, national law, labor law of
the destination country, and international law.
Filing claims in court against parties that have violated the rights
of a migrant worker.
Assisting migrant workers who have been given work in a different
location or with a different employer than what was promised
in the contract, or whose work was not as described in the
employment agreement.
Resolving demands and disputes between migrant workers
and their employers and/or recruitment agency partners in the
destination country.
Adapted from Government Regulation 3 of 2013 regarding Protection of Indonesian Migrant Workers Abroad,
January 2, 2013, articles 20–21.
110 MECHANISMS FOR ENFORCING RIGHTS AND SEEKING REDRESS
Government Regulation 3/2013 vests both authority and responsibility for protection of migrant workers in the head of the embassy, through the labor attaché. It does
not, however, make legal services mandatory for every case, and does not provide guidance for determining which migrants are eligible for assistance. The extent to which
comprehensive legal aid is provided will depend on the budget provided to the Ministry
of Foreign Affairs and labor attachés, and the availability of other resources, such as
local lawyers in the destination country who are familiar with the legal framework,
language, and procedures of the legal system, and are available to provide the needed
legal aid.
Complaint Resolution Procedures
An MoFA “Standard Operating Procedure” (MoFA SOP) for handling cases is available
on an MoFA blog, and sets out the procedures for different kinds of cases.228 Similar to
procedures in Indonesia, resolution of a case begins with a complaint filed by a migrant
worker. The MoFA website explains that appointments will be “fast, friendly, free and
transparent.”229 The usual procedure, as explained by the MoFA, is for the migrant
worker to report to security, who will then send the worker to be interviewed by a task
force: “The task force will interview the person and then will determine whether it is a
labor case, or if it is a criminal case, in which case it should be handled by the police
attaché. In labor cases it goes to the labor attaché.”
The MoFA Guideline on Providing Services to and Protection of Indonesian Citizens Abroad (MoFA Guideline) explains that the foreign missions will assist migrant
workers to fulfill their rights under the employment agreement, including wages,
holidays, payment of expenses, insurance, type of work, location of work, change of
employer, and early termination of the contract.230 This assistance includes:
1)
Calling the employer/agent in to resolve the dispute;
2)
Assisting in reporting the matter faced by the migrant worker to agencies in the
sending country [Indonesia] to proceed further, in the event the migrant worker/
agent/employer is not prepared to resolve the case at the Indonesian foreign mission;
3)
Accompany the migrant worker [to meetings, hearings or proceedings], provide
legal advice and translation.
4)
Forward a report on the handling of the case to the MoFA to be forwarded to the
MoM, BNP2TKI and the family of the migrant worker.231
MIGRANT WORKERS’ ACCESS TO JUSTICE AT HOME: INDONESIA 111
Perceived Effectiveness of Embassy Dispute Resolution
Awareness of Embassy Services and Legal Rights
Migrant workers participating in focus groups were familiar with the services provided
by the Indonesian missions abroad, often more so than with the services available to
them within Indonesia. Many were informed before departing that they should contact
the embassy if they had any problems with their employer, and were usually given the
number of the embassy in the destination country. MoFA data suggests that significant numbers of workers do report to their embassy with complaints. In 2010, 16,064
cases were reported to Indonesian embassies, of which 10,587 were to embassies in the
Middle East (4,242 in Saudi Arabia and 6,345 in other Middle East countries).232
Thirteen of the migrant workers participating in this study reported or attempted
to report their cases to the Indonesian embassy. In other cases the worker knew of the
embassy, but either could not, or chose not, to seek help. Those who did not report to
an embassy explained that they were located in smaller towns or cities and physically
distant from a foreign mission to which they could report. Some noted their lack of
knowledge about the location of the embassy and the services available, and others
reported a negative perception of embassy assistance. In one focus group, the workers agreed that the embassy staff “were the same as everyone else” and “don’t defend
us, and sometimes they even get angry at us.” One worker reported hearing rumors
that people were slapped or hit by embassy staff and told to go home, although the
researchers were not able to confirm this and it was strongly denied by the Ministry of
Foreign Affairs. Whether true or not, negative rumors significantly affected the decision
of migrant workers as to whether to report their situation or claims to the embassy or
consulate.
Accessibility of Services
Embassies are accessible to migrant workers in person, by phone, or via an internet
connection. Of the 13 migrant workers in this study who sought embassy assistance
while in the Middle East, one telephoned the embassy because she had access to the
Internet and Skype through her employer’s son. For others, the employer or a friend
of the employer took the worker to the embassy after she expressed a wish to return
home. In one case, a relative of the employer helped the worker contact the embassy
after seeing her crying because the employer had prevented her from leaving at the end
of her contract. Others escaped and caught a taxi on their own, relying on the assistance
of the taxi driver to locate the embassy.
Despite the multiple methods through which a worker might contact an embassy,
significant challenges to accessibility persist. These include workers’ limited access to
telephone and internet services, and the limited number of foreign missions capable of
112 MECHANISMS FOR ENFORCING RIGHTS AND SEEKING REDRESS
receiving complaints. In Saudi Arabia, for example, geographically the largest country
in the Middle East, Indonesia has a presence only in Riyadh (the embassy) and Jeddah
(a consulate). For migrant workers who escape from towns or cities outside of these
two urban areas, reaching a foreign mission is extremely difficult. As one migrant said,
“I was given the number of the embassy in Jeddah but I was in a small village called
Abdaha. How would I get to Jeddah? It was 12 hours or more by car.” Although Indonesia has reportedly requested permission to open more offices in the Kingdom to handle
complaints, this request has been refused.
Documentation may also limit access. One migrant worker described being
turned away by an embassy after fleeing because she did not have her passport, even
though her employer was holding her passport and she could not reclaim it. An expert
in migrant worker cases reported from her research in Malaysia that the Indonesian
embassies frequently denied migrant workers assistance or even entry because the
workers did not have their passport and so were considered “illegal.”233 This prevented
the embassy from performing key protective functions because many migrant workers
go to the embassy precisely when they have fled their employer without their documents. Other migrants in the focus group agreed this was common, but the Ministry
of Foreign Affairs disputed that migrants in distress would ever be turned away.
Fairness and Transparency of Procedures
An embassy’s procedures for handling migrant worker cases are not clearly set out in
regulations or the MoFA Guideline. Although the regulations provide a general list of
activities that embassy staff can perform (see above), this list does not contain timelines, ethical provisions, rights of the migrant worker during the process (for example
to information or involvement in the case), or any detail about the circumstances under
which a case should be considered resolved and closed. These procedural fairness and
transparency concerns were reflected in the experience of migrant workers.
In most cases described by focus group participants who received embassy assistance, the embassy called the employer upon receiving the complaint, heard the employer’s perspective and negotiated on the worker’s behalf.234 A worker whose employer in
Saudi Arabia had prevented her from going home to her family for 13 years described
her experience as follows:
When I finally ran away [in 2011], I left the house, and straight away I found an Indonesian
domestic worker who helped me, and I told her everything. She took me to the embassy the
next day, and [an embassy official] helped me. I told him that I had been there for 13 years and
now I wanted to see my parents. [The official] called my employer to come to the embassy
and asked her why I hadn’t been sent home, and she lied and said I hadn’t wanted to go,
even though I had been asking to leave for a long time. I found out later that my family had
called me many times but my employer had told them each time that no one of my name
MIGRANT WORKERS’ ACCESS TO JUSTICE AT HOME: INDONESIA 113
was there. I asked [the official] to help me with my wages as well because I had not been
paid for 4 of the 13 years I had been there, but he was unsuccessful. To this day I have not
received the money.235
Migrant workers did not describe embassy staff members involving them in the
communications or negotiations undertaken with the employer, and workers were often
left in the dark about what transpired during those interactions. One worker who fled
her employer without her passport or other documents reported: “the embassy people
went to the house of my boss I think, but I don’t know anything about that or what
happened there.” She then learned the embassy staff requested the employer attend the
embassy to mediate the wage claim with the worker but the employer refused. Eventually, she said, “my employer opened her heart and her heart was open enough to give
me back my passport,” and the embassy staff went to the house to collect the passport.
She did not know what was said.
Workers expressed gratitude for the assistance they received abroad, but also
spoke of feeling confused and disempowered, and that they had no real choice to accept
or refuse a negotiated resolution. This sense was compounded by their physical situation in the closed shelter (see below), but was likely also a result of the lack of transparent procedures and worker protections within the dispute resolution process.
Availability of Legal Aid in Practice
Although both law and regulations provide for legal aid and legal representation through
the embassy or consulate, none of the migrants interviewed for the study had received
legal assistance from the embassy. This may be because until recently, the embassies
did not hire lawyers to assist with cases—cases were either handled by an embassy or
consulate’s foreign services staff or labor attachés.
At the time of the research for this report, the introduction of legal experts into
embassies was a subject of public discussion due to a recent visit to major destination
countries by a specially created taskforce, the SATGAS TKI (see Text Box below). The
SATGAS TKI had visited the Middle East and strongly recommended a lawyer be placed
in embassies to assist migrant workers who faced serious legal problems. The chairperson of the taskforce noted that access to legal assistance must be meaningful, and
he urged that lawyers who are genuinely able to represent workers in foreign systems
be placed within, or made readily available to, the embassies. One example would be a
“retainer lawyer”—for example, a Saudi lawyer paid on a retainer to represent Indonesian clients. The chairperson noted that in Saudi Arabia even criminal cases could be
resolved by negotiation and payment of compensation, but that competent representation was necessary to achieve that result.
114 MECHANISMS FOR ENFORCING RIGHTS AND SEEKING REDRESS
Experts nevertheless remain concerned that even if local legal experts are retained
by embassies, they would focus on those cases deemed most serious—particularly cases
in which migrant workers are themselves charged with serious crimes and imprisoned
in foreign jails (see Text Box below)—and they would not necessarily be available to
assist workers with more common employment contract violations.
Protecting Migrant Workers Sentenced to Death
In addition to legal problems that some workers encounter as the victim of a
crime or labor violation, some are also charged with offenses as defendants.
In the Middle East, many of these cases involve migrant domestic workers
and are frequently related to their work situation. In 2011, one such migrant
worker, Ruyati Binti Sapubi from West Java was sentenced to death in Saudi
Arabia for the murder of her female employer. Although the Indonesian government had been informed of her trial and had made diplomatic requests
for leniency, Ruyati was executed on June 18, 2011.236 The Indonesian government was not informed of the execution in advance.237
In August 2011, the president responded to the public outcry by placing a
moratorium on labor migration to Saudi Arabia, and formed a Special Taskforce on the Handling of Cases of Migrant Workers and Citizens Abroad
Threatened with the Death Sentence (SATGAS TKI). The taskforce includes
members of government, the legal profession, and civil society, as well as
experts on migrant worker issues. It has conducted field visits to Indonesian
embassies abroad to determine the number of Indonesians potentially on
death row and the reasons for their sentences.
The spokesperson for SATGAS TKI, Humphrey Djemat, the chair of the Indonesian Lawyers Association, noted that among countries in the Middle East,
the largest number of migrant workers threatened with the death sentence
are in Saudi Arabia—28 as of June 2011. He described the findings of the
field trip to Saudi Arabia as follows:
In Saudi Arabia it was very difficult to enter the prisons, even for the consular offices it is hard, at least two weeks notice is needed. But finally we
were able to visit and obtain information on Indonesians detained there.
The cases were varied. Some had murdered Saudi nationals or also other
Indonesians. Others, however, were charged with witchcraft—seen as
“black magic”—based on reports by their employers, or with adultery,
MIGRANT WORKERS’ ACCESS TO JUSTICE AT HOME: INDONESIA 115
which also attracts the death sentence. It is very hard for Indonesians;
most do not speak Arabic well and so are not able to defend themselves
during the investigations. At least the Saudi government respects the
right to consular assistance (unlike Malaysia) but it often takes five or
six months to reach us.
The chairperson called for greater specialized legal assistance for migrant
workers abroad but noted the sensitivity of this issue. It is important, according to Djemat, to keep the other government informed so that they are not
offended and do not suspect interference in their domestic laws and policies.238
Justness of Outcomes
The MoFA reports high rates of “resolution” of cases, noting that in Saudi Arabia it
resolves 94 percent of cases, while in the rest of the Middle East, the figure is 90 percent (the remaining cases were still “in process”). Because the MoFA does not define
“resolution” or give any information on the types of resolution available,239 however, it
is unclear how well the resolution ultimately serves the justice interests of the migrant
workers.
The perception of the migrant workers and others interviewed for the study was
that the outcomes rarely constituted complete redress. As with the other mechanisms
reviewed, workers believed that the emphasis of embassy or consulate staff was on getting the case closed and sending them home to Indonesia, rather than seeking a fair
outcome. Several participants said that they did not feel the embassy took their concerns seriously. Two former migrant workers recounted that embassy officials advised
them to return to Indonesia and that their employer would send their wages, but the
money never arrived. The employer may indeed have promised this, but in any event
the embassy did not explain to the workers its limited power to enforce any promise
and the risks to the worker of leaving early.
Another worker reported having asked to return home because she could not cope
with the volume of work and was frequently hit by her employer. The employer took her
to the embassy and she stayed there for two weeks while her case was negotiated on her
behalf by an embassy official. The worker finally received her salary but the cost of the
flight was deducted from the total, and she received no compensation for the abuse she
endured. Another worker who asked to leave at the end of her two years had her flight
paid but none of her outstanding wages were returned to her. In most cases workers
described themselves as resigned to the situation and wished only to go home rather
than staying longer without employment.
116 MECHANISMS FOR ENFORCING RIGHTS AND SEEKING REDRESS
Experts acknowledged that embassy officials face many challenges in advocating
for a fair outcome for workers. First, a number of destination countries in the Middle
East (such as Saudi Arabia) are intolerant of rights-based advocacy in general, or are in
the midst of internal conflict (such as Syria and Yemen). Embassy or attaché staff members are also limited by the laws and procedures of the destination country. The kafala
system, present in many Middle Eastern countries, creates a structural obstacle because
it prevents workers from changing employers, regardless of abuse or other problems
at the place of employment. If a worker leaves her employer she loses her immigration
status and is left with no place to go and no opportunity to sustain herself while her
case is being resolved. Indonesian government representatives therefore often have
little leverage to demand a fair outcome from employers. One member of the SATGAS
TKI who visited Saudi Arabia explained:
The employer is called, and a translator is arranged. But there is no obligation on the
employer to attend. So it depends on the kindness of employer. If they are nice people they
pay. If they are not, then the worker can only wait for a ticket home. If the worker is still
within the period covered by insurance, the insurer will usually pay [ for the ticket].240
He also described the bureaucratic challenges in seeking non-financial redress
in Saudi Arabia:
As soon as [the embassy] wants to send a troubled worker home it faces many difficulties
with the government of Saudi Arabia. Usually, obtaining the exit permit takes a long time;
the bureaucracy in Saudi Arabia is bad and the system and procedures are unclear, which is
why it takes so long. For example, a migrant worker who has been sentenced to one month
in prison should be released after that time, but the bureaucracy is so bad that it can be a
long time before they process her documents to be released.241
Despite these challenges, the users of the system suggested that embassies could
do more to promote fairness in outcomes, and not only “resolution” of the case.
Even if complete redress is not available in the destination country from the
employer, embassy staff also play a vital role in preparing workers before they travel
home including ensuring they have all the necessary documents from their time incountry to make an insurance claim on their return, such as agreements, receipts of
medical care, evidence of complaints to police, and letters from the embassy itself.
Given that so many migrant workers were unaware of available mechanisms, or did
not have these vital documents, when they returned, it appears that embassies are still
focusing on immediate protection and resolution of cases, and are less focused on, or
equipped to address, meaningful and long-term access to justice for migrant workers.
MIGRANT WORKERS’ ACCESS TO JUSTICE AT HOME: INDONESIA 117
Roma
Roma’s experience seeking the payment of unpaid wages in Saudi Arabia
demonstrates not only the challenges of obtaining justice from disingenuous employers, but also how the effort and time invested in seeking redress
abroad can dissuade workers from submitting claims when they return.
Roma left her village for Saudi Arabia in 2002 as a 22-year-old young mother
with only elementary school education. She explained, “All the women from
my home town went to Saudi, I wanted to be like them and see what it was
like.” When she arrived, she found she was the only domestic worker for
her employers and their nine children. She cared for the children, as well as
cleaning the house, rarely sleeping more than five hours a night, and getting
little food. Each month her employer asked her to sign her wage statement
for 600 Riyal, telling her that her money was being saved and would be
given to her when she went home. At first she believed her employer, but
then started to complain. The recruitment agency sought to advocate on her
behalf, as did the local Saudi assistance services, but each time the employer
lied and said the money would be paid. She describes her case:
After four years I decided to leave, I was so stressed I was fainting, because
they still had not paid me and let me go home as promised. So one day
when my employer’s son was coming home, I snuck out the back door
and caught a taxi. I told him to take me to the embassy but he took me
to the Maktab Amal (the Saudi shelter for workers in distress). The shelter
remembered me from my earlier complaint but this time told me not to
go back to my employer, and to stay there at the shelter.
The shelter at the Maktab Amal was huge and most of the people
were Indonesians—almost 600. They treated us well and we ate a lot, I
became fat! Every night we would chat and help each other reduce the
stress of our situations. The staff offered to help us find a new employer,
but I just wanted to be paid and go home. So they approached my
employer very nicely to ask for my salary, but she lied and told them I
had been paid and showed them the papers I signed. So the Maktab
Amal helped me take the case to the court. I went to the court seven
times and really fought with the employer in that room but they denied
everything because of the pay-stubs.242 The process was difficult—it took
so long and I became exhausted waiting but I wanted to win because I
had earned that money through hard work.
118 MECHANISMS FOR ENFORCING RIGHTS AND SEEKING REDRESS
Finally, the staff at the Maktab Amal asked if I would accept a partial
amount from the employer and I agreed because I wanted to leave. They
helped me negotiate 6000 Riyal, just ten months salary, and then I had
to pay for my own flight home, so I only received 4,800 Riyal in the end.
This process took a year and I wasn’t happy, it was so little compared
to what I was owed.
I moved to the embassy while my flight home was arranged, but I was
more stressed because the space was so small and I couldn’t go anywhere. We couldn’t leave, not even to go out to the yard. I was there
for more than a month waiting for my ticket. The embassy staff didn’t
help me—I was told to just look after myself. They knew I had already
received my salary so weren’t concerned with me. When I finally came
home I was tired and didn’t put in a claim anywhere because I thought
it would be pointless, I just left the airport and went straight home.
Beyond Claims Assistance: Other Protective Services
One of the most important services that embassies and consulates offer to workers seeking redress abroad is accommodation. According to the director of Citizen Services in
Jakarta if the person has run away and the embassy staff determine after an interview
that she or he has a case, the worker will be taken inside and housed in the shelter. The
shelter enables workers to stay in the country to seek redress, and is also a safe transit
station for workers on their way home. The Citizens Protection Division of the ministry
reports that a large number of workers are housed by the embassy each year. In 2009,
the number was 17,152 people worldwide, and in 2010 it was 15,766. The breakdown
in Middle Eastern countries is as follows:
Indonesian Mission
in Middle East
No. of Indonesian Citizens Housed in Shelter
2009
2010
985
748
1,509
1,641
Damascus
499
544
Doha
703
798
Dubai
713
883
Kuwait City
3,116
1,731
Jeddah
1,650
1,472
Riyadh
3,102
2,770
TOTAL
12,277
Abu Dhabi
Amman
10,587
243
Source: Directorate of Citizen Services, Ministry of Foreign Affairs, Indonesia
MIGRANT WORKERS’ ACCESS TO JUSTICE AT HOME: INDONESIA 119
Some migrant workers reported spending only a night or several days in the shelter while their flight home was arranged. For others it was a stay of several months or
even years, while they waited for their cases to resolve. This significantly disincentivizes
migrant workers from bringing a case abroad, especially because they are not able to
leave the embassy grounds once they decide to leave their employer because they no
longer have legal status in the country. Workers who participated in focus groups and
who had stayed at an embassy described feeling trapped, and reported that the facilities were overcrowded. One male migrant worker who had fled his employment at a
salon after not being paid many months’ wages expressed great frustration with the
embassy shelter because he was cut off from society and not allowed to receive guests.
He recalled 10 people sharing a room and, recounted, “We had to go to sleep at 9 p.m.
Some people had been there for two years and nothing had happened in their case at
all. Some people stayed under the stairs.”
Outside of bilateral agreements, Indonesia’s use of diplomatic channels on behalf
of individual or all migrant workers has often been met with opposition. In Saudi Arabia, for example, the Indonesian Labor Attaché in Riyadh has reportedly requested a
minimum wage and inclusion of domestic workers in the national labor law before it
will lift the moratorium on workers to Saudi Arabia. Saudi Arabia has reportedly dismissed the request as meddling in domestic affairs.244
Fleeing an Employer
Focus group discussions revealed that workers in problematic employment situations frequently take matters into their own hands and flee their
employer. This may be because they do not trust the embassy to resolve
their problem, or because they would rather keep working and earning
money in the destination country instead of filing a complaint and having to
return home. Fleeing and working irregularly exposes workers to other risks
as their visa status is generally tied to the original employer, and becoming
“illegal” in the destination country severely limits the worker’s recourse to
help if she encounters problems. Several focus group participants described
such experiences:
I went to Saudi Arabia as a domestic worker but after one year I ran
away from my employer. She hadn’t paid me anything for six months
and when I asked for my money she slapped me across the face for asking. When I fled the house I had no documents. I ran to the highway and
eventually came across an Indonesian who would take in undocumented
120 MECHANISMS FOR ENFORCING RIGHTS AND SEEKING REDRESS
workers. I worked for him for two years and my pay was much more
than with my legal employer. But then I became sick and the police
found me and took me to the hospital. My phone was taken from me
at that time and I lost contact with my family for seven months before
I was able to get home.
—Female Migrant Worker, Indramayu, West Java
I went to Saudi Arabia as a private driver and had no problem with
the work but I was unhappy with my employer. First, I was not allowed
to leave the house and also I was not paid anything for the first three
months—just one month’s wages after the fourth month. Also, my
employer would speak to me rudely and called me an animal. I tried
talking to him many times but he never listened. I also complained to
the agent twice but it was pointless. I wanted to change my fate so after
four months I ran away to Jeddah and worked for four years, always
changing employers and without a contract or my passport.
—Male Migrant Worker, Sukabumi, West Java
This was my second time as a migrant domestic worker to Saudi Arabia.
I arrived in Riyadh in 2006 but ran away after seven months because
they didn’t pay me anything for my work. So I went to Jeddah and
worked there, working from house to house, but the work was never
guaranteed, there was a lot of insecurity. I stayed in a place that took in
run-aways and paid monthly rent until 2009. Jeddah wasn’t safe—there
were raids. So I came home.
—Female Migrant Worker, Sukabumi, West Java
MIGRANT WORKERS’ ACCESS TO JUSTICE AT HOME: INDONESIA 121
7.
Challenges to Enforcing
Migrant Workers’ Rights and
Obtaining Redress
Across interviews with migrant workers, their families, civil society organizations, and
in some cases government officials, a set of challenges emerged that was common to
all mechanisms. These challenges revealed deeper structural obstacles to migrant workers’ access to redress than can be comprehensively addressed through reform of any
single mechanism. These challenges are outlined below, and include: centralization of
actors and mechanisms; documentation requirements for claims; a lack of seriousness
in the approach of various actors to worker complaints; workers’ lack of awareness and
understanding of their legal rights and redress options; inadequate legal aid; inadequate
recruitment agency regulation and accountability; overlaps and gaps in responsibilities
for worker protection; the time, resources and emotional cost to a migrant worker of
seeking redress; and corruption, or perceptions of corruption, within government and
the private sector.
123
7.A Centralization and Distance
A pervasive challenge for workers, their families and CSO representatives is the centralization of the migrant labor system for workers traveling to the Middle East. Because all
Middle East recruitment agencies are Jakarta-based, most disputes can only be resolved
in the capital, far from many workers’ homes.
Case-handlers noted the need to travel back and forth to Jakarta to negotiate
directly with any Indonesia-based party or make any kind of claim. As a civil society
organization staff person recalled: “In one case where the worker was not paid up to
IDR 158,000,000 in wages, someone in our office went to Jakarta to submit an insurance claim. The process went for a long time, and he went back and forth at least three
times.” This should not be necessary given that Proteksi has outposts around Indonesia, but even a recruitment agent agreed that to get any response from the insurer, one
must go directly to its central office and confront Proteksi representatives in person.245
Administrative dispute resolution presented a similar challenge. Although local
labor offices can receive complaints, they can rarely resolve them. This is due partly
to constraints on local offices’ authority, but also due to the practical constraint that
recruitment companies and the insurance consortium are located in Jakarta. As a local
official noted:
If the recruitment agency has a branch here we call them. But if the office is in Jakarta, or if the
broker is here but took the worker to the capital for departure [as in most Middle East cases],
well, that is a significant obstacle for us. We still write to them, but they never come.246
Official mediation services are also primarily available in Jakarta at the BNP2TKI
Crisis Center, although a BP3TKI or other local offices may occasionally conduct mediations if the recruitment agency has a branch in the province.
Travel to Jakarta is costly and intimidating for many workers. It is also timeconsuming and stressful for workers who must leave their work and family responsibilities in order to make the journey each time—factors that significantly disincentivize
workers from pursuing claims.
7.B Documentation Requirements that Workers
Struggle to Meet
The lack of required documentation was one of the most commonly cited reasons for
not filing a claim, or for failing to achieve the desired claim outcome. This was true of
124 CHALLENGES TO ENFORCING MIGRANT WORKERS’ RIGHTS AND OBTAINING REDRESS
insurance claims, administrative dispute resolution, and use of the civil courts. It was
also considered the principal reason that prosecutors decline to file criminal cases. As
one legal expert said:
Obtaining the documents is really the hardest part; meeting the requirements is extremely
difficult. It is hard both when trying to get copies of documents from the recruitment agencies, and when presenting them to the insurance company—[the process] is difficult and full
of problems.247
In some cases, as detailed in earlier sections, migrant workers never receive key
documents such as the KPA (the insurance card), placement agreement or insurance
policy. A migrant worker who has fled her employer in the Middle East is generally
unable to retrieve her documents from the employer, who frequently confiscates or
retains the worker’s documents upon arrival. As a result, the worker does not have her
passport, identity card, or insurance card when she seeks help from an embassy or
seeks to return to Indonesia of her own accord. If the worker is still abroad, civil society
groups in Indonesia will meet with the migrant worker’s family in Indonesia to try to
obtain the needed documentation, but families often do not have copies of all documents. In such cases the organization must try to obtain the documents from various
government agencies and the recruitment agency. As one civil society staffer explained,
“this itself is not an easy process. We must go back and forth, back and forth, and just
finding the documents for one case can take three or four full days [of meetings and
travel].”248
In some cases, the recruitment agency itself holds the personal documents, and
is either reluctant to give them up, or will (improperly) demand a fee for their return.
If a worker’s contract is terminated early, the agency will commonly refuse to give her
any of her documents (including her birth certificate, high school diplomas, and others)
unless she pays around Rp. 25 million (around USD 2,600).249 TIFA Foundation noted
that a migrant worker may visit the recruiter to seek the return of the documents and, if
this “informal” method fails, may file a formal complaint at the provincial-level BP3TKI
and “with the authority of the government, and the power of the law behind us, we can
force the agency to give us the documents.”250
For some harms, the worker must also produce evidence of the occurrence of
the harm and any costs incurred. The MoM office in Sukabumi noted that to receive
compensation for an accident, for example, the migrant worker must provide receipts
for treatment received. However, in most cases migrant workers use traditional healers rather than doctors because of custom and because they cannot afford high quality
medical care, so they do not have any receipts.251 A recruitment agency recalled a case
of sexual assault of a domestic worker by her employer in which the worker was unable
MIGRANT WORKERS’ ACCESS TO JUSTICE AT HOME: INDONESIA 125
to supply documentary evidence demonstrating that the assault occurred, and her claim
was refused.252
Since early 2012 when new insurance rules253 were passed, evidence of many
losses may now be provided in the form of a letter from the embassy stating that a
particular harm occurred. However, civil society groups explained that obtaining such
a letter was time-consuming and difficult, because in most cases the worker has already
returned home, and communicating with the embassy abroad is a highly bureaucratic
process (workers are rarely aware of their insurance coverage or the need to obtain
claims evidence while abroad). Moreover, embassies are often unaware of the information required to satisfy an insurance claim and so insurers reject the letters that
embassies produce. One embassy letter viewed in this study lacked the key information
requested by the insurer about the reason for termination of a worker’s contract, leading
to the rejection of the claim.
7.C Workers’ Concerns and Cases Not Taken Seriously
Migrant workers and civil society organizations repeatedly described the lack of seriousness with which various actors addressed concerns and claims. Interviewees raised
this challenge in relation to private recruitment agencies, insurers, and government
officials, within all of the redress mechanisms. For example, in negotiations—or even
government-facilitated mediations—with recruitment agencies, representatives from
the agency often fail to appear, and workers have little leverage to compel their response
or attendance.
Similarly, workers and civil society group representatives described a dismissive
attitude from certain government officials within offices ranging from the Ministry
of Manpower to the Ministry of Foreign Affairs. They described being “ping-ponged”
between departments, with each agency blaming the other for a lack of results. Civil
society groups expressed particularly deep frustration when recounting their dealings
with the Ministry of Foreign Affairs and embassies in destination countries. They
reported having to follow up many times, often receiving no information about the
status of inquiries and cases. One civil society representative explained, “When it comes
to communicating with an embassy, you have to call, send letters, SMS them there—we
really have to be active. It seems like there is not enough attention or care about these
cases. We do usually get a response but often after sending the letter twice or more.”254
Workers who had been housed in embassies after leaving their employer also
described being addressed rudely or ignored by embassy staff. One worker who stayed
at the embassy for four years to resolve her case remembered:
126 CHALLENGES TO ENFORCING MIGRANT WORKERS’ RIGHTS AND OBTAINING REDRESS
At the embassy the staff in the shelter yelled at me and told me I was misbehaved, and asked
how would my employer ever have agreed to pay me if I acted like this. I was the one who
was put in the wrong. This was hard for me as I was already stressed staying in that small
space for so long, not able to go anywhere.255
7.D Lack of Awareness and Understanding of Legal
Rights and Redress Options
The vast majority of focus group participants had little understanding of their rights
under Indonesian law and the contracts they had signed, and also very limited awareness of redress mechanisms available to them should they suffer harm in the course
of labor migration. While many workers seemed to know that they ought to go to
the embassy if they had a problem in the destination country, and some knew they
were insured, they had not been informed and had no knowledge of the procedures or
documentation required to make an insurance claim, or how to seek redress after they
returned home.
Workers’ lack of awareness and understanding of their legal rights and redress
options is highly disempowering, and is likely the result of several factors. One factor
often cited is the lack of formal education among many low-wage migrant workers, particularly those to the Middle East. This presents challenges to reading and understanding a contract or insurance policy or other key document, especially if it is not explained
to the worker or is not provided in Indonesian (as employment contracts often are not).
The central role of brokers in recruiting migrant workers also limits a worker’s
knowledge of her rights and options before departure, because the brokers handle
all documentation and usually only ask the worker to sign where required, without
effectively communicating anything to the worker about her rights and corresponding
obligations. BNP3TKI has a statutory obligation to provide migrant workers with information pre-departure, but this obligation has failed to translate into actual knowledge:
workers participating in the study either did not receive or did not fully understand
information they received on their rights, or on procedures for accessing redress in
Indonesia or abroad. This is likely because brokers directly connect most Middle East
workers with Jakarta-based recruitment agencies, circumventing the information and
protection services of the local MoM and regional-level BNP3TKI offices.
Finally, information is difficult to access. If prospective migrant workers do not
receive it during the training period, it is not easily available while abroad. The information available online is limited, and not available to workers without access to the
internet or telephones. Embassies—charged with protecting and fulfilling the rights of
migrant workers in the destination countries—provide assistance to some workers, but
MIGRANT WORKERS’ ACCESS TO JUSTICE AT HOME: INDONESIA 127
do not seem to prioritize educating workers about their rights or redress options on
return. Moreover, despite some promising small paralegal-training programs, the quality of information that is generally available is still limited. This study reveals few if any
resources that clearly and simply set out migrant workers’ rights under various sources
of law, or delineate the responsibilities of recruiters, insurers, and various government
departments. Nor did the study identify publicly available materials that clearly and simply set out the procedures and documents required to seek redress through insurance
or other Indonesia-based mechanisms, in a manner accessible to a low-wage migrant
worker or local civil society organization.
7.E Lack of Legal Aid and Legal Advice
Legal experts emphasized the importance of legal representation for migrant workers
at all negotiations and mediations, and when going to the police to file a complaint.
Umu Hilmy of Brawijaya University explained that it is difficult for people without legal
training to, “truly understand the laws on migrant workers [in order to] argue against
these recruitment agency lawyers. [Migrant worker lawyers] need to memorize the law
and know all of the gaps and loop-holes that the other lawyer will use.” This includes
Law 39/2004 and regulations, as well as the criminal code and Anti-Trafficking Law
as they relate to migrant workers (see Redress through the Criminal Justice System in
Section 6, above).
Few private or civil society lawyers have training in these areas, and interviewees
noted that it is difficult for migrant workers to engage private lawyers because they
can very rarely pay legal fees, and their claims are for relatively small amounts. Within
legal aid organizations such as Jakarta Legal Aid, lawyers may specialize in labor law
or criminal law, but experts said that none focused on migrant worker law specifically.
Several interviewees were hopeful that a new law on legal aid, which recognizes a right
to access justice and provides a framework for funding and overseeing legal aid, will
assist migrant workers (see text box on Legal Aid in Indonesia in Section 6, above).256
At the time of the field research the law had not yet been implemented.
Legal expertise is also a challenge abroad. Embassy staff reportedly do not have
the capacity to seriously handle all of the cases that are brought to them—in terms of
both the time and skills required. For example, if migrant workers wish to take their
cases beyond informal mediation to domestic legal processes, an understanding of the
language, laws, and legal culture of the destination country is required. According to the
civil society representative on SATGAS TKI, “the real problem is that the Indonesian
embassies don’t have a lawyer there who understands the labor law of Saudi Arabia.”257
128 CHALLENGES TO ENFORCING MIGRANT WORKERS’ RIGHTS AND OBTAINING REDRESS
Participants also noted that it was often difficult for workers to obtain necessary
information and assistance because embassy officials were unfamiliar with key Indonesian labor migration laws, such as laws regulating migrant worker insurance. Indeed,
the letters supplied to workers by embassies as evidence for insurance claims are frequently inadequate and rejected by the insurer. In some cases, embassy security officers
also improperly exclude workers without documents, despite the fact that the worker’s
lack of documents was the result of mistreatment so that it is often these workers who
are in greatest need of legal assistance.
Finally, lawyers interviewed in this study lamented the lack of information and
training available to them on relevant law in major destination countries. They believed
this gap prevented them from providing advice and assistance to migrant workers’
families when their relatives encountered problems abroad.
7.F Inadequate Regulation of the Private Sector, which
Is Not Held Accountable for Worker Harms
Participants regarded government oversight of recruitment agencies, insurers, and brokers as weak in general and particularly weak with respect to agencies’ provision of
appropriate redress for worker harms. As noted in the section on ADR, securing recruitment agency or insurer attendance at mediation is a persistent challenge. There is no
mechanism for compelling private parties to negotiate with migrant workers, let alone
negotiate in good faith. As a result, a recruitment agency can, and often does, simply
refuse to respond to letters or to attend. As a representative of ATKI Jakarta explained,
“Very few recruitment agencies are cooperative about returning money, they usually
insist they are right.” She also noted a common perception that many recruitment agencies are owned by people in positions of power who protect them from serious claims.
Ministry of Manpower officials emphasized the importance of building close
working relationships with recruitment agencies, “so that they will be willing to cooperate. Because usually the worker who comes home does not have any data at all, so it is
just her word against the agency’s.” However, these close relationships with recruitment
agencies raise concerns about the officials’ capacity to act as objective arbiters between
the parties, and could reinforce the perception among workers that the government and
recruitment agencies are aligned.
The law contains limited sanctions for such behavior. Facilitation (or even nonobstruction) of migrant worker redress is not a condition of agency licensing, for example. Those sanctions that do exist appear to be rarely imposed, or at least not imposed
in a manner that guarantees transparency and accountability. Recruitment agencies
MIGRANT WORKERS’ ACCESS TO JUSTICE AT HOME: INDONESIA 129
therefore have little incentive to comply with their legal obligations regarding information and training, to engage constructively in dispute resolution processes, to assist
workers to obtain copies of key documents required for claims, or to ensure that the
local brokers with whom they work deal honestly and fairly with workers.
A number of interviewees expressed the view that the courts do not hold recruitment agencies accountable because courts are fundamentally biased toward wealthier
and more powerful private sector parties. A representative of Legal Aid Jakarta noted
that even if a migrant worker had all of her documents, “we already know which way a
case will go, we know the worker will lose.”258
7.G Overlaps and Gaps in Migrant Worker Protection
Inadequate delineation of responsibilities for migrant workers has resulted in gaps and
inefficiencies in worker protection in various parts of the labor migration system. These
gaps present practical challenges to workers seeking redress, both because workers
and their representatives do not know who is responsible for a particular function and
because individuals within government and private institutions are unclear as to their
responsibilities.
Most significantly, the content and boundaries between the migrant-workerrelated functions of the Ministry of Manpower and BNP2TKI, and between the national,
regional and local levels within each agency, are unclear. The division of responsibilities
between recruitment agencies and insurers to compensate workers for harms related to
their work abroad is also opaque. For some work-related harms, responsibility may be
shared by the insurer, recruitment agency, and possibly even the broker in Indonesia, as
well as by the partner recruitment agency abroad and the employer—not to mention the
responsibilities of governments in the countries of origin and destination. In practice,
this often results in all parties denying responsibility.
7.H Time, Resources, and Emotional Cost
Geographic distance and layers of bureaucracy make administrative dispute resolution in Jakarta time-consuming, resource-draining, intimidating, and stressful. Most
migrant workers seeking redress after working in the Middle East have little option but
to travel to Jakarta (see Section 7.A above), and remain both patient and persistent. The
required travel to Jakarta presents an insurmountable obstacle to many migrant workers who need urgent redress in order to pay debts, medical costs, or other expenses.
130 CHALLENGES TO ENFORCING MIGRANT WORKERS’ RIGHTS AND OBTAINING REDRESS
Local government offices are constrained in their ability to resolve disputes, and usually
lengthen the dispute resolution process further when they are involved. As one local
Ministry of Manpower official noted:
Our facilitation of the process can take a long time, so those who are not patient or who want
a quick resolution will take matters in their own hands with [a civil society organization] or
other person directly to Jakarta. Usually it is like that. After they report to us, we call them a
second and third time and then we go to that village for some reason we will find the family
and ask, “Hey, what happened, why hasn’t she come? Has she received her wages?” They
then say yes, but it was reduced for this reason and that reason. Well it is up to them; the
main thing is that they reach their goal.259
The insurance claims process poses similar challenges. Migrant Care noted
it could take up to a year to receive a response from the insurer regarding a claim.
Although Regulation 7/2010 requires the consortium to pay a claim within seven days
of fulfillment of all requirements for submitting a claim (Article 26(5)), there is no time
limit for deciding whether these requirements have been met. Furthermore, the redress
provided is rarely for the full amount claimed, which influences the workers’ decision
as to whether to pursue a claim.
Of all mechanisms, the court process is the most time-consuming and emotionally exhausting. TIFA Foundation described a case in which civil society lawyers assisted
a migrant worker to file a case related to a failed departure. The worker had paid a large
upfront fee to the recruitment agency and when the agency did not follow through on
its departure promise, she sued for return of the fee based on breach of contract. The
case progressed slowly but eventually was dismissed when the defendant could not be
located. The TIFA Foundation lawyer explained:
We identified another defendant and I recommended that she file the claim again, but she
was already too tired from the first filing. Civil cases are exhausting because you have to be
very active and if you don’t have enough stamina, you won’t succeed, you will be worn out.260
Reform of the redress system must therefore take into account geographic accessibility, as well as the potential for timely redress.
7.I Corruption and Perceptions of Corruption
Almost all participants outside of government expressed deep mistrust of the labor
migration system, as well as a certainty that individual workers would never win if
they challenged a large recruitment agency, powerful broker, or insurer in court. Many
MIGRANT WORKERS’ ACCESS TO JUSTICE AT HOME: INDONESIA 131
viewed the migrant labor system as burdened by collusion between recruitment agencies, insurers, and government officials who undermined regulatory or bureaucratic
procedures intended to protect workers—a view reinforced by the lack of transparency
common to all redress mechanisms examined in this study.
Recruitment agencies supported this view, noting that the more rules introduced,
the more bribes they were required to pay. In addition, participants thought police,
prosecutors, and courts favored the wealthy and powerful, and were unlikely to hold
a recruitment agency accountable for criminal wrongdoing. As a result, participants
believed that pursuing justice through the criminal justice system would only expose
the worker to more stress, expense, and disappointment. Whether these allegations are
true or not, the widely held scepticism toward the governmental and judicial bodies that
facilitate access to redress creates a strong disincentive against seeking justice.
7.J Summary—Despondency and Frustration
At the Indonesia Roundtable in January 2012, participants were asked in their introductions to identify a success story about access to justice. Very few were able to do so;
most appeared discouraged, frustrated with the system, and generally skeptical about
access to justice for Indonesian migrant workers, whether through formal, informal, or
quasi-formal mechanisms. In the view of many experts, the limited bargaining power
of migrant workers, along with lower levels of education, capital, and confidence to take
cases, meant that recruitment agencies, insurers, and others are frequently permitted
to unjustly profit from and avoid liability for the harms to which they contributed or
from which they failed to adequately protect workers. Migrant workers also supported
this view.
The inherently transnational nature of migrant labor, in which many of the violations occur abroad in jurisdictions in which lawyers in Indonesia have no access and
little understanding, understandably poses a significant challenge to achieving redress.
But that alone does not account for the multitude of barriers to justice identified above.
Contrary to the perspectives of some experts who viewed workers as relatively passive
and bearing the onus for all aspects of achieving justice, our study revealed an engaged
and even angry population seeking change. A number of the workers interviewed for
this study expressed their frustration after trying in a number of ways to assert their
rights and being thwarted throughout. When asked for their recommendations for
improvements to the system, almost all focused on the need for Indonesia’s embassies
to be more responsive to the migrant workers and their family members, and to be
more proactive in protecting the rights of migrant workers. They also critiqued the gov-
132 CHALLENGES TO ENFORCING MIGRANT WORKERS’ RIGHTS AND OBTAINING REDRESS
ernment’s relationships with destination countries, and identified these relationships
as a barrier to ensuring government assistance in protecting their rights and working
to achieve full redress when those rights are violated. Workers also demanded greater
accountability in the system, a demand that requires greater transparency of each of the
redress mechanisms as they respond to and resolve workers’ claims.
MIGRANT WORKERS’ ACCESS TO JUSTICE AT HOME: INDONESIA 133
8. Conclusion and
Recommendations
For the vast majority of low-wage Indonesian migrant workers who travel to the Middle East, access to justice remains elusive both abroad and at home. In some areas,
the rights of migrant workers under Indonesian laws and private contracts are underenforced, and in other areas better regulation is needed. Throughout the Indonesian
labor migration system, greater transparency is critical.
Since research on this report began, Indonesian government and civil society have
taken some promising steps toward improving access to justice for migrant workers.
For example, the Association of Indonesian Lawyers has experimented with placement
of lawyers in the main airport terminal in Jakarta to receive workers’ complaints directly
and facilitate insurance claims. The BNP2TKI Crisis Centre in Jakarta began operations
in 2008 and is receiving a significant number of calls, and the public has demanded
accountability for corruption and mismanagement in the insurance system and elsewhere in the labor migration system.
Ultimately, improving access to justice for Indonesian migrant workers will
require a fundamental change in the way that migrant workers are viewed—as rightsholders with legitimate legal claims, rather than as passive charity-seekers or disruptive children. All parts of the labor migration system must be involved in this change,
beginning with the Ministry of Manpower and the private sector. The government of
Indonesia can enable this change by systematically enforcing the law and better regu-
135
lating the private-sector recruitment agencies, insurers, brokers, and others that profit
from labor migration. The Indonesian Parliament can reform labor migration laws to
include stronger enforceable protections for migrant workers. It can also initiate reforms
to provide migrant workers with specific rights to redress, including provisions establishing enforceable government and private sector obligations to ensure and provide
redress to migrant workers. Academia can support change by increasing the scrutiny
of migrant worker laws and contracts, conducting further studies, collecting relevant
data, and training a new generation of lawyers to represent migrant workers. Donors
can support all of these efforts by supporting civil society advocacy, legal assistance, and
litigation on behalf of workers. Donors can support training of law students, lawyers,
and paralegals, as well as further research and analysis, and the development of better
information sources for migrant workers on the content and enforcement of their rights.
8.A Summary of General Findings
1.
Migrant Workers Face a Range of Legal Problems Involving
Multiple Actors
Indonesian migrant workers travelling to the Middle East face problems involving
multiple private and public sector actors. Within the private sector these include
recruitment brokers (“sponsors”), recruitment agencies, and insurers in the
country of origin, as well as partner recruitment agencies and employers in the
destination country. Problems arise throughout the migration process, including
pre-departure, during placement, and post-return.
Indonesian migrant workers’ problems are governed by numerous sources of law
that provide rights to migrant workers and impose obligations on government and
private actors. These sources of law traverse private and public law, and include
the constitution, statutes, regulations, private contracts, and international law.
They may also include laws in the destination country.
Relevant areas of law include:
•
Law specifically related to migrant labor;
•
Contract law;
•
Insurance law;
•
Criminal law, including the general criminal code and the Anti-Trafficking Law;
•
Consumer protection; and,
•
Labor/employment law (in the country of origin and destination country).
136 CONCLUSION AND RECOMMENDATIONS
Migrant workers’ legal issues are often complicated by the inherent transnational
nature of migrant work. In particular, harms suffered abroad may be connected
to problems that arise in Indonesia before departure, such that multiple private
and government actors in Indonesia and abroad may bear legal responsibility to
prevent and/or remedy a particular harm.
2.
The Key Laws on Migrant Worker Placement and Protection Do
Not Effectively Ensure Workers’ Access to Justice
Indonesia’s labor migration laws, regulations, and policies do not focus on
workers’ redress and restitution, and place only limited emphasis on holding
recruitment agencies and others accountable for worker harms. Indonesia’s single national law concerning migrant workers (Law 39 of 2004 on the Placement
and Protection of Migrant Workers), which governs labor migration in Indonesia, does not specifically reference access to justice. It only requires that workers
directly and “peaceably” negotiate disputes with recruitment agencies and, if this
fails, that they seek the assistance of the Ministry of Manpower (see below) or
submit a claim for insurance to the Migrant Worker Insurance Program. At a
broader level, the ministry has power to sanction recruitment companies for violations ranging from non-compliance with licensing conditions to failure to give
workers required documents, though there is no systematic regime and sanctions
are rarely imposed.
The statute does, however, provide workers with rights to information, equality
of treatment, the standard wage in the destination country, a copy of the work
contract, and to “receive a guarantee of protection of the law … [ for] violation of
one’s rights set out in the law for the duration of the placement abroad.”
In practice, these rights are effectively unenforceable. The statute and regulations
rarely identify the party responsible for fulfilling particular rights, and do not
clearly delineate between government and recruitment agency obligations. They
do not establish enforcement mechanisms nor consequences for non-fulfilment
of government or recruiter obligations. For example, Law 39/2004 does not set
out any method by which a worker may obtain redress if he or she is not treated
equally, does not receive the prevailing wage, and does not receive a copy of the
contract.
Moreover, although the statute and regulations task government with regulating certain aspects of privatized recruitment (primarily through licensing), these
laws are generally assumed to apply only to recruitment agencies and not to local
brokers who are the first and primary contact point for most migrant workers to
the Middle East (though this assumption remains to be tested in the courts).
MIGRANT WORKERS’ ACCESS TO JUSTICE AT HOME: INDONESIA 137
Finally, although Indonesia’s human rights law declares the country’s international human rights obligations to be directly enforceable in Indonesian courts
and via other “effective national legal means,” this provision remains to be tested
in the context of enforcement of the rights of migrant workers under the Migrant
Worker Convention and other human rights treaties to which Indonesia is a party.
3.
Migrant Workers who Go to the Middle East Face Particular
Challenges to Rights Protection and Access to Redress
The Middle East, and specifically Saudi Arabia, is a significant destination for
Indonesian migrant workers. It provided placements to around half of all Indonesian migrant workers until several countries were “banned” in recent years, and
still accounts for almost one third of placements.
Government, civil society, and lawyers interviewed for this study agreed that the
Middle East as a destination region poses particular challenges for both migrant
workers who travel there, and for those seeking to improve access to justice
for those workers. These challenges were viewed in contrast to the Asia Pacific
region, the other main destination area, and specifically to Hong Kong, Malaysia,
Singapore, and Taiwan. Participants observed that:
•
The migrant workers who travel to the Middle East come from particular rural
areas in Java and West Nusa Tenggara. They are overwhelmingly women, with
low levels of education and little if any formal work experience before departure. These factors make them more vulnerable to fraud and other abuses.
•
The recruitment process is inherently disempowering for migrant workers to
the Middle East. All recruitment agencies for the Middle East are located in
Jakarta—far from most migrant workers’ homes. As a result, the vast majority
of workers use local-level brokers to connect them with the agencies—a process that remains beyond government oversight and direct regulation. Migrant
workers must sometimes travel several days to the capital, depending on the
worker’s home province, which separates the worker from her or his family
and local authorities. As a result of geographical distance, workers also face
greater difficulties obtaining documents and seeking assistance or redress
from the recruitment agencies if problems arise.
•
Migrant workers in the Middle East experience more problems, and problems
of a more severe nature, than other migrant workers. The most common problem unique to Middle East workers is “loss of contact,” in which a family loses
all contact with the worker, sometimes for a number of years, when the worker
is cut off from phone and internet access. Participants believed that cases of
138 CONCLUSION AND RECOMMENDATIONS
unpaid wages were also more common in the Middle East, as were serious
physical and sexual abuse cases.
4.
•
Organizations noted that advocacy on behalf of migrant workers is particularly
difficult for those already in the Middle East or who have returned home,
because the region is geographically far; the language and culture are very
different to Indonesia (unlike Malaysia, for example); domestic redress mechanisms, laws, and institutions are especially weak or non-existent; rights-based
advocacy is not tolerated, particularly in Saudi Arabia; connections with local
advocacy organizations and lawyers are limited; and the Indonesian embassies and consulates are overburdened and fail to provide timely responses to
requests for information, and generally lack expertise in local legal systems.
•
Moratoriums may limit the numbers of workers who travel to the region,
but do not improve protections for migrants who have already departed, nor
enhance their ability to access justice for rights violations.
Migrant Workers Have Significant Contractual Rights, but They Are
Underutilized
The contractual rights of migrant workers are most clearly articulated in private
agreements, which are governed by statute and regulations. Migrant workers must
sign two private agreements before departing abroad: one with the recruitment
agency (the placement agreement), and one with the employer or placement agency
in the destination country (the employment agreement). In addition, workers must
obtain an insurance policy, which sets out the worker’s rights and the insurer’s obligations during the coverage period. Requirements for all of these documents are
set out in statutes and regulations, but there are no legislated standard contracts.
Employment agreements (between the worker and the employer or partner
recruitment agency abroad) are generally provided close to the worker’s departure
overseas and the contents must be explained by government officials at pre-departure briefings. They cover all aspects of the employment including the period of
employment, wages and holidays. The role of the destination country’s law and
legal system in the content and enforcement of this agreement is unclear.
The placement agreement (between the worker and the recruitment agency in
Indonesia) should be signed by the recruitment agency and the worker before
the worker commences pre-departure requirements. According to statute, the
placement agreement must include details about the employer and the prospective employment. Most significantly, Law 39/2004 requires that the agreement
include a guarantee that the agency will compensate the worker in the event that
MIGRANT WORKERS’ ACCESS TO JUSTICE AT HOME: INDONESIA 139
the employer in the destination country does not fulfill the terms of the placement
and employment agreements (such as the amount of wages payable). It also gives
the migrant worker rights against the recruitment agency if a placement does not
take place as promised.
Though recent regulations require placement agreements to be vetted by local
or provincial authorities, there is no mechanism for invalidating or correcting
deficient placement agreements. Moreover, because migrants to the Middle East
use brokers to connect directly with Jakarta-based recruiters who are viewed as
outside the local regulatory ambit, the locally-based safeguards generally do not
help migrants to the Middle East.
Workers and their representatives interviewed in this study rarely discussed private contracts as sources of rights or redress in Indonesia. Recruitment agencies
and workers’ case-handlers do not rely explicitly on the terms of these documents
as a basis for negotiation except regarding the agreed wage. Indeed, recruiters
were perceived as generally denying responsibility for harms that workers suffer
abroad, despite their contractual obligations under the placement agreement. Participants could not identify any instances in which recruiters’ contractual obligations to workers were tested through litigation, and they were unable to identify
any case law that explored the scope or enforceability of contractual rights or
explained the relationship between the placement agreement and employment
agreement. The intersection between recruiters’ contractual responsibility for
workers’ losses and workers’ insurance was also unclear.
Further, experts and workers believed that workers to the Middle East rarely
receive a placement agreement from the recruiter at all, and even if recruiters did
provide a placement agreement, its contents were not explained to the worker.
Indeed, the migrant workers who took part in the study were unaware of their
rights under the placement agreement. This study’s researchers were only able
to obtain one sample Middle East agreement (despite significant efforts to obtain
others), which did not comply with statutory requirements. For example, it gave
no guarantee of protection once the employment had commenced and provided
no information on available mechanisms for resolving disputes.
5.
Migrant Workers Seek Redress through Four Institutional
Mechanisms: “Mediation,” Insurance, Courts, and Consular
Assistance
Most workers handle their disputes informally by calling a friend, relative, or local
organization to negotiate with their recruitment agency or broker, rather than
140 CONCLUSION AND RECOMMENDATIONS
using any institutional mechanism. The few that do take their cases further have
four mechanisms available to them.
Mechanism
Responsible Institution
Location
Administrative Dispute
Resolution, including “Mediation”
Ministry of Manpower and/or BNP2TKI
(unclear)
Primarily
Jakarta
Migrant Worker Insurance
Program
Private sector insurance companies
overseen by the Ministry of Manpower
Primarily
Jakarta
Judicial System
The Ministry of Justice
Regional
Embassy/Consular Assistance
Ministry of Foreign Affairs and Ministry
of Manpower (through labor attachés)
Destination
Country
Findings specific to each mechanism include the following:
Administrative Dispute Resolution/Mediation
•
Administrative dispute resolution (ADR)—resolution of migrant workers’ disputes with the assistance of a civil servant—reflects the common Indonesian
practice of seeking local authority figures’ intervention in private disputes, a
mechanism familiar to migrant workers, civil society organizations, and lawyers.
•
Migrant workers use this method in disputes with recruitment agencies and
insurance companies, after direct negotiations have failed. Services range
from assisting workers to obtain documents from recruitment agencies and
other government departments to contacting parties such as the recruitment
agency and insurer on the worker’s behalf in order to obtain compensation.
The final stage in ADR is a “mediation,” in which the government agency
brings together the parties to a dispute to negotiate.
•
The Ministry of Manpower is responsible for resolving disputes related to
migrant workers, but in practice, responsibility has shifted to BNP2TKI in
Jakarta. This is particularly the case for Middle East workers because recruiters
and insurers are located in Jakarta, beyond the reach of local MoM offices. The
law is unclear on the respective dispute resolution responsibilities of MoM and
BNP2TKI.
•
Mediation procedures are not legislated and a BNP2TKI Standard Operating Procedure Manual provides only general guidance to staff conducting the
mediations. Mediations are held in private on an ad hoc basis by BNP2TKI,
as well as by MoM offices at national, regional, and local levels. Mediators are
not trained; they are bureaucrats who bring the parties together to negotiate
MIGRANT WORKERS’ ACCESS TO JUSTICE AT HOME: INDONESIA 141
rather than to mediate a fair resolution. There is no avenue for appealing the
result of a mediation, except to take the matter to court.
•
Recruitment agencies regularly do not attend mediations. If they do, they are
generally represented by a lawyer. There is no mechanism to compel attendance or to provide workers with a lawyer to ameliorate the power disparity.
•
Outcomes of mediation vary from obtaining information and copies of documents, to obtaining compensation for injuries, lost wages, or other losses
(which, as worker representatives noted, were only ever partial).
The Migrant Worker Insurance Program
•
The Indonesian Migrant Worker Insurance Program is a unique privately-run
scheme through which all migrant workers must obtain insurance as a condition of migrating abroad. A standard insurance policy covers losses throughout
the migration process.
•
The program has had very low pay-out rate and has been the subject of sustained criticism from many quarters. Civil society and legal professionals were
sceptical about its ability to provide redress to workers and regarded the program as extortionate; the World Bank described regulation of the program as
ineffective and an Indonesian parliamentary committee recommended that
the insurance consortium be disbanded. At the time of writing, the Indonesian Financial Services Authority had ordered the current consortium to stop
selling insurance to migrant workers due to misappropriation of funds by the
consortium’s broker. Further, the Supreme Court had invalidated implementing regulations. In July 2013 the Ministry of Manpower appointed 3 new consortiums.
•
Awareness and understanding of insurance coverage among migrant worker
returnee participants was very low. Most did not know they were insured, and
others had limited understanding of the operation of their insurance. According to civil society groups, only 2 out of 48 participants stated that they knew
they were insured and had an insurance card—a reflection of general levels of
awareness and understanding among migrant workers.
•
Although participation in the program is mandatory and the premiums are
low, the claims process is not accessible to low-wage migrant workers and
very few workers make successful claims. The Proteksi consortium received
approximately 15,000 claims per year from across all migrant workers, a tiny
proportion of the number of persons who report problems while abroad. Half
142 CONCLUSION AND RECOMMENDATIONS
of claims were rejected. Inappropriate exclusions and limitations, for example
a short time limit for filing claims (12 months from date of harm, even if the
worker is still abroad) also impeded access.
•
Participants perceived the claims procedures to be onerous and unfair: particularly the documentation requirements such as the worker’s original insurance
card (KPA), which many workers do not receive, or lose, and evidence of loss,
which workers find difficult to obtain. In practice, workers could only file
insurance claims at Proteksi’s head office in Jakarta (not at regional offices or
offices abroad), which was prohibitive for many workers who live far from the
capital. Civil society groups also complained that the procedure was highly
non-transparent, and that information about the status of a claim was very
difficult to obtain. Proteksi did not provide reasons for rejecting a claim, and
had no appeals process for disputing an insurance decision.
•
The outcome of claims was a source of frustration to many civil society groups
who felt that decision-making was often arbitrary. They noted that the system
was not compensating workers for the range of harms they commonly experience. Insurers regularly use the controversial practice of “ex gratia” payments,
declaring a claim incomplete but providing a small “charity” sum (permissible
under regulations, but regarded by worker representatives as a way to close
the file and prevent challenges).
•
The insurance regulator (Insurance Directorate) has had limited involvement
in the program, which is primarily overseen by the Ministry of Manpower.
Foreign Mission-Based Assistance Abroad
•
Consulates and embassies have substantial statutory obligations to Indonesian
migrant workers abroad. These were strengthened in a 2013 regulation that
includes obligations to provide legal aid and to monitor recruitment agencies
and employers.
•
Many workers were aware of the possibility of contacting the Indonesian
embassy and receiving assistance, and embassies in the Middle East provided
shelter to a significant number of workers while they attempted to resolve
problems. Civil society groups and lawyers were also familiar with the services
offered by embassies and used them frequently to obtain information about a
migrant worker or a case.
•
Embassy-based services are theoretically accessible in that they are intended to
be free, open to any citizen, and in that a shelter is available for migrant work-
MIGRANT WORKERS’ ACCESS TO JUSTICE AT HOME: INDONESIA 143
ers who cannot return home. However, the services are based only in capital or
other large cities, and so are practically inaccessible to workers based in other
areas. Workers also reported being turned away if they did not have required
identity documents, which are often retained by employers from whom workers flee. Workers who chose not to go to the embassy cited a lack of information or knowledge about the location of the embassy, negative perceptions of
the embassy, or that the embassy was too far away (i.e., in the vast geography
of Saudi Arabia, Indonesian consular services are only present in Jeddah and
Riyadh).
•
The procedures used by the labor attaché or diplomatic staff to resolve complaints are informal, and generally involve negotiation with the employer on
the worker’s behalf. Legal advice was not provided to any migrant worker focus
group participant, although it is theoretically available. In the few places that
Indonesian government lawyers work in embassies on workers’ behalf, the
lawyers do not appear to be fluent in the local language or legal system and
legal assistance abroad is perceived by workers and civil society groups as
inadequate. Most non-government participants described the procedures as
lengthy, bureaucratic, and non-transparent.
•
Civil society organizations generally believe that embassies prioritize resolution of complaints as quickly as possible, regardless of whether the resolution
is fair—partly because of severe overcrowding in shelters, limited embassy
staff, and the limited ability to act in a foreign legal system. Despite Ministry
of Foreign Affairs reports that 90 percent of Middle East cases are “resolved,”
civil society groups indicated that workers generally only receive a flight home,
rather than back wages or compensation for more serious harms.
The Court System for Criminal and Civil cases
•
Courts can theoretically be used by workers in at least three ways: (1) Migrants
can bring a civil law suit against a recruiter for contractual violations such as
unpaid wages or differences in the nature or location of work, or against an
insurer for improper denial of a claim; (2) Courts can be used to compel government regulatory or other actions; and, (3) Police may file criminal charges
against the recruiter or broker in serious cases of fraud, abuse, trafficking, or
exploitation of migrant workers.
•
The court system was the least used of all pathways to justice, and all civil
society and legal representatives interviewed believed that the courts were not
a viable option for most migrant workers.
144 CONCLUSION AND RECOMMENDATIONS
6.
•
All participants were aware of the existence of the courts, and that in order to
bring a criminal case one contacts the police. Awareness of the civil law and
its relevance to migrant workers was low.
•
Although courts of general jurisdiction are geographically accessible in that
they exist at local and provincial levels, there are other practical barriers that
make access extremely difficult. These include onerous evidentiary requirements; expensive, slow, and time-consuming court procedures (including
related appeals); the requirement of skilled legal representation; and the need
to travel to and from the police, prosecutor, courts, and other locations. Claims
are generally filed in the locality of the defendant, i.e., Jakarta for Middle East
recruiters.
•
Study participants knew of only a handful of migrant worker court cases; in
all, the workers were unsuccessful. More research is needed to determine the
reasons for the failure. Little litigation to test the scope and meaning of the
law has been conducted in this area.
Most Institutional Mechanisms Lack Formality and Procedural
Standardization
Most institutional mechanisms were strikingly informal in implementation.
Except for the courts, the procedures for filing complaints and claims, and for
resolving disputes, are governed only by general internal rules, if governed by
rules at all. Dispute resolution appears to be carried out in a relatively informal
and ad hoc manner.
This informality both benefits and disadvantages workers. On one hand, the informal procedures associated with administrative dispute resolution and embassy
complaints are quicker, less expensive, and simpler than going to court. No discovery or other requirements common to court matters can be used to delay proceedings or exclude workers. Indeed some lawyers suggested that the more rules
introduced, the more barriers faced by workers, and the less likely they would
receive anything at all.
On the other hand, informality undermines transparency. Significant imbalances
in power between workers and recruitment agencies or insurance companies
give workers limited leverage in negotiations. In “mediation,” for example, neither the worker nor the government mediator can force the other party to the
table (recruitment agencies frequently fail to attend), and workers often accept
whatever is offered, regardless of whether it is fair. This also happens in insurance claims, when, for example, workers are simply reimbursed the cost of a
MIGRANT WORKERS’ ACCESS TO JUSTICE AT HOME: INDONESIA 145
flight home and several months’ wages regardless of the wages actually owed to
them or other injuries suffered. Like insurance claims and embassies’ complaintshandling, migrant workers have no way to appeal a government mediation and no
truly independent arbiter of disputes, unless the worker is able to go to court. As
a result, worker representatives believe that most workers get something from a
negotiation and/or mediation, but workers almost never receive their full entitlement, and private actors have no incentive or realistic threat of sanction to compel
them to provide fair redress.
7.
Migrant Workers Face Barriers to Accessing Justice that Are
Common to All Mechanisms
According to many experts, the limited bargaining power of migrant workers,
along with lower levels of education, capital, and confidence to take cases, enables
recruitment agencies, insurers and others to unjustly profit from and avoid liability for the harms to which they contributed, or from which they failed to adequately protect workers. Migrant workers also supported this view.
The study found that, across all mechanisms, a further set of common key structural barriers prevents migrant workers from effectively obtaining adequate—if
any—redress:
A) Redress Mechanisms, Recruiters, Insurers, and Government Agencies Are Centralized in Jakarta—Far from Most Workers’ Homes: Because all Middle East recruitment agencies, the insurance consortium, and government departments are
all headquartered in Jakarta, migrants must invariably travel to Jakarta to negotiate with the recruiter or insurer or to file a claim. BNP2TKI’s Crisis Centre
is presently also only in Jakarta, and although local government officials may
resolve disputes more informally, this is not possible in practice if the recruitment agency does not have a branch in the province, as is the case for Middle
East recruiters. Travel to Jakarta is costly, intimidating, time-consuming, and
stressful for most migrant workers.
B) All Mechanisms Have Documentation Requirements that Workers Struggle to
Meet: Many workers either do not receive all of the standard contracts and
other documents required to make claims, or their documents are improperly
retained by the recruitment agency or employer. It is difficult for workers to
obtain replacement copies of key documents such as the insurance card, or to
obtain necessary information from the worker’s recruitment agency. In addition, workers are often unable to provide supporting evidence for their claims
because when they were abroad they did not know what documents they were
146 CONCLUSION AND RECOMMENDATIONS
required to obtain, or they were unable to obtain such evidence (e.g., wage
statements). Evidentiary letters from the embassy are difficult to obtain while
abroad, and often inadequate to support workers’ claims.
C) Workers’ Concerns Are Not Taken Seriously by Government, Recruiters, and Insurers: Workers and civil society organizations described a dismissive attitude
toward workers on the part of many government departments and private sector recruitment agencies and insurers, for whom civil society groups believed
worker protection was an inferior concern to the profit-making aspect of
migrant work. There was a widespread perception that government officials
would not side with workers demanding full accountability from recruitment
agencies or insurers for worker losses. This prevented workers from filing
claims and from challenging decisions they believed to be unjust.
D) Workers Lack Awareness and Understanding of Their Legal Rights and Redress
Options: Despite detailed training requirements under the statute, workers
in this study generally did not receive, or did not understand, information
about their rights, or procedures for accessing redress in Indonesia or abroad,
beyond going to the embassy. There are few if any publicly available resources
that clearly set out workers’ legal rights under statute and typical contracts, or
the procedures and documents required to seek redress.
E) The Private Sector Is Not Sufficiently Regulated or Held Accountable for Migrant
Worker Protection: Participants regarded government oversight of recruitment
agencies, insurers, and brokers as weak in general, and particularly weak with
respect to agencies’ provision of appropriate redress for worker harms. The law
does not contain effective sanctions for agency misconduct, and where sanctions do exist, they are rarely imposed. Facilitation (or even non-obstruction)
of migrant worker redress is not a condition of agency licensing. Recruitment
agencies have little incentive to comply with their legal obligations regarding
information and training, to engage constructively in dispute resolution, to
assist workers in obtaining copies of key documents required for claims, or
to ensure that the local brokers with whom they work deal honestly and fairly
with workers.
F) Migrant Workers Lack Legal Advice and Legal Aid Essential to Accessing Redress:
Legal experts emphasized the importance of legal representation for migrant
workers at all negotiations and mediations, and when going to the police to
file a complaint. Legal aid organizations have little presence in the rural areas
where most workers live, and generally do not focus on labor migration law.
It is difficult for workers to retain private lawyers due to physical access con-
MIGRANT WORKERS’ ACCESS TO JUSTICE AT HOME: INDONESIA 147
straints and lack of financial resources. Most workers, if they receive assistance, do so through small civil society organizations of advocates and former
migrant workers, who assist workers to gather their documents and negotiate
with private and public actors, linking workers to other essential services.
However, civil society group staff outside of Jakarta rarely have legal training
and do not feel able to litigate complex cases in the courts. It is difficult for
workers to access legal advice when abroad because embassy lawyers are often
unfamiliar with destination country law and Indonesian labor migration law.
Indonesian legal aid lawyers are unable to access information on destination
country laws.
G) There Are Overlaps and Gaps in Migrant Worker Protection: Inadequate delineation of responsibilities impedes workers seeking redress, both because workers do not know who is responsible for a particular function and because
individuals within government and private institutions are unclear as to their
responsibilities. This is true of the functions of the Ministry of Manpower
and BNP2TKI relating to migrant workers, and of the national, regional, and
local levels of each agency. For some work-related harms, responsibility may
be shared by the insurer, recruitment agency, and the broker in Indonesia,
as well as by the partner recruitment agency abroad and the employer (and
origin and destination country governments)—resulting in no party accepting
responsibility and ensuring redress.
H) All Mechanisms Have Financial, Time, and Emotional Costs: Migrant workers
rarely have timely and physically accessible redress options. Geographic distance and layers of bureaucracy make administrative dispute resolution and
insurance claims in Jakarta time-consuming and resource draining (as well as
intimidating and stressful). This presents an insurmountable obstacle to the
many migrant workers who need urgent redress in order to pay debts, medical costs, or other expenses. The court process is especially expensive, lengthy,
and emotionally exhausting.
I) Redress Mechanisms Are Subject to Corruption or Perceptions of Corruption:
Almost all participants outside of government expressed deep mistrust in the
labor migration system. They perceived the migrant labor system as burdened
by collusion between recruitment agencies, insurers, and government officials who undermined the regulatory and bureaucratic procedures intended
to protect workers. Recruitment agencies supported this view, noting that the
more rules introduced, the more bribes they were required to pay. In addition,
participants thought that police, prosecutors, and courts favored the wealthy
148 CONCLUSION AND RECOMMENDATIONS
and powerful, making them unlikely to hold a recruitment agency accountable for criminal wrongdoing, and only exposing the worker to further stress,
expense, and disappointment. Whether these allegations are true or not, this
widely-held scepticism of the government and the judicial bodies that facilitate
access to redress creates a strong disincentive against seeking justice.
8.B Recommendations
Based on these findings, and the specific findings on each mechanism, (see Section 6,
above), the authors make the following recommendations.
1.
Establish a Right to Access to Justice for Migrant Workers within
Indonesian Labor Migration Laws
Access to justice and redress should be a central component of current labor
migration law reform. At a minimum, the law on migrant workers should state
that migrant workers have a right to obtain redress for contractual and statutory violations, and should define the specific mechanisms available for seeking
redress, the nature of redress, the parties responsible for providing redress, and
the consequences for failure to provide redress or constructively engage with the
available mechanisms. Standardized procedures that are accessible to workers
should be set out in regulations.
The redress mechanisms made available to migrant workers should be developed
in consultation with civil society, migrant workers, families of migrant workers,
and their representatives. The mechanisms should reflect the specific needs of
migrant workers seeking redress and address the common obstacles to accessing
justice. Given the large number of returnees who report problems while abroad
(at least 14 percent ), as well as those who do not report their problems and those
who experience problems before departure and after return, the mechanisms
must be simple, affordable, geographically accessible, and able to operate at scale.
Education and training about the redress mechanisms, and assistance programs
to aid access, are critical. Training should also be provided to government officials
charged with implementing redress mechanisms, as well as to law enforcement
officials and civil society groups tasked with enabling access, with additional targeted training for recruitment agents, brokers, and insurers. Simple information
and instructions on redress mechanisms should be made electronically available
and incorporated into pre-departure training.
MIGRANT WORKERS’ ACCESS TO JUSTICE AT HOME: INDONESIA 149
Finally, redress mechanisms should be available to all migrant workers and their
families, regardless of their regular or irregular status, as required under international law.
2.
Strengthen Enforceability of Existing Rights Under Statute and
Contracts
Labor migration statutes and regulations should explicitly identify the actor(s)
responsible for fulfilling the rights of migrant workers. In particular, they should
delineate between government responsibilities and the responsibilities of recruitment agencies and others. They should also specify the consequences for the
failure of recruitment agencies (or government) to meet their responsibilities—
including, where possible, mechanisms through which workers may enforce their
rights. Brokers should be directly regulated, or defined as “agents” of recruiters in
appropriate circumstances.
To improve consistency and enforceability of migrant workers’ protections under
placement agreements, the Ministry of Manpower should draft a standard placement agreement that incorporates the statutory rights of migrant workers and
corresponding obligations of recruitment agencies. In particular, the standard
agreement should include reference to Article 52(f) of 39/2004, which requires
recruitment agencies to compensate workers if the employer does not fulfil the
terms of the employment agreement. To the extent that recruitment agencies rely
on insurers to fulfil this obligation, the agreement should be explicit about the
recruitment agency’s responsibilities with respect to a worker making an insurance claim, including in the event that the worker’s claim is not fully paid by the
insurer.
The Ministry of Manpower should require agencies to use the standard agreement, or until such agreement is drafted, should establish penalties for failure
to provide a placement agreement and/or failure to provide an agreement that
complies with 39/2004 and regulations. Lawmakers should consider including a
presumption that the rights of migrant workers under both domestic and international human rights law are implied in any agreement.
3.
Standardize and Regulate the Administrative Mediation Procedures
To strengthen the administrative dispute resolution procedures operated by
BNP2TKI and the Ministry of Manpower, both institutions should consider standardizing and improving their procedures at all levels. This should include, for
example:
150 CONCLUSION AND RECOMMENDATIONS
•
Clearly delineating between the complaint-handling and mediation responsibilities of BNP2TKI and the Ministry of Manpower, and between different
levels of government (national/regional/district).
•
Training mediators through an accredited course, and tasking mediators with
assisting parties to reach a fair outcome based on the rights and obligations
of parties under the placement agreement (or insurance contract) and statute.
•
Employing lawyers at crisis centers who specialize in migrant worker law, to
advise migrant workers about their rights and redress options.
•
Setting clear documentation requirements that take into account obstacles
that migrant workers commonly encounter, processes for obtaining missing
documents, and alternative procedures if documents are unavailable.
•
Setting transparent reporting processes if BNP2TKI finds evidence of wrongdoing or of bad faith by a recruitment agency, including timeframes by which
the Ministry of Manpower is required to act.
•
Setting clear procedures in the event BNP2TKI identifies potential criminal
conduct in the course of complaint-handling and mediating a case.
•
Enabling the sanctioning of recruitment agencies that refuse to take part in
mediation, to respond to worker inquiries, or answer requests for documents.
•
Collecting and publicizing key data such as the amounts claimed by workers,
against which parties claims were made; the compensation agreed upon; and
amounts received by workers (de-identifying workers’ names and personal
details to ensure the privacy of the migrant worker).
•
Establishing a complaint and grievance procedure in relation to the conduct
of the mediator or another party, and related sanctions.
•
Guaranteeing workers’ right to privacy and confidentiality throughout the process, as well as the workers’ right to be informed about progress in their case.
In addition to mediation, the government should consider an administrative tribunal based in regional areas for hearing appeals or deciding cases if mediation
fails. The composition of the tribunal could mirror the domestic labor tribunal,
with representatives of industry, unions, and migrant advocates sitting as tribunal
members.
Changes to the mediation system and/or the creation of a tribunal should be
made as simple and transparent as possible in order to avoid creation of further
barriers to access. Extensive public consultation and pilot programs should be
initiated before a new system is introduced.
MIGRANT WORKERS’ ACCESS TO JUSTICE AT HOME: INDONESIA 151
4.
Improve Effectiveness and Oversight of the Migrant Worker
Insurance Program
The insurance program requires significant structural and operational reform in
order to become the meaningful redress mechanism for low-wage migrant workers that it was intended to be. This should begin with a thorough review of its current operation, based on quality data on the nature of claims paid and refused, the
amounts claimed and paid, the interpretation of claims and reasons for refusal,
the relevant processing times, and all other aspects of the claims determination
process. It should also include an evaluation of the operation of current policy
exclusions and claim-filing time limits, amending these as necessary to ensure
that they reflect common risks and challenges associated with labor migration
and do not unfairly deny coverage (and to ensure that they are consistent with current regulations). The claims process should be made simpler, more accessible,
and more transparent, and the insurer should be required to establish a pay-out
ratio that reflects appropriate coverage of the most common risks to migrant
workers at all stages of the migration process.
Independent insurance experts, together with the Ministry of Finance insurance
regulator and civil society, should conduct the review. The review should also
examine whether the program would operate more effectively and transparently
under the Ministry of Finance rather than the Ministry of Manpower, under the
jurisdiction of the general insurance regulator (BAPEPAM).
Any insurance consortium providing insurance to migrant workers should be
given a limited period within which to process claims. Failure to comply should
result in termination of the consortium’s license, and ongoing compliance should
be a condition of ongoing appointment to the program.
A number of additional reforms can be implemented immediately:
• The Ministry of Manpower should:
–
Set short time limits for deciding and paying claims;
–
Require insurers to provide a claim number that workers and their representatives can use to check the status of their cases, as well as a telephone
service through which workers may easily check the status of their claim;
–
Require insurers to replace a migrant workers’ lost insurance card within
seven days, at no cost, and establish a hotline for workers to file a complaint about insurer misconduct in this or other respects;
–
Sanction recruitment agencies for failure to provide workers with copies of documents in their possession in a timely manner or for charging
152 CONCLUSION AND RECOMMENDATIONS
improper fees for doing so. Establish a hotline through which migrant
workers may report improper recruiter conduct in this respect; and,
–
Require insurers to provide claimants with detailed reasons for rejecting
a claim, an internal review of a claim determination upon request, and an
opportunity to re-submit a claim if deficiencies may be rectified.
•
BNP2TKI, insurers, and recruitment agencies should provide workers with
better information about the insurance program before workers depart,
including an explanation of the evidence that workers should seek to obtain
while still abroad (see also Recommendation 5 on assistance to obtain evidence
while abroad). Simple information on the insurance policy and claims process
should also be published and made freely available. This could be a joint initiative between government,civil society groups , and possibly donors in the
initial stage.
•
BNP2TKI should better assist workers to obtain personal/identity documents
for insurance claims, and Ministry of Foreign Affairs staff in embassies and
consulates should better assist workers to obtain evidentiary documents and
to learn about document requirements for insurance claims.
In the medium term, insurers should be required to establish effective regional
claims processing centers. They should also be required to establish an effective
and accessible complaint and appeal process that is monitored by the insurance
regulator. This process should be accessible in regional areas and should not
require travel to Jakarta. In order for these processes to be available to workers,
there must be an expansion of legal assistance to file claims and challenge rejections, beginning with an evaluation of the three month airport trial program run
by BNP2TKI and the Indonesian Lawyers Association.
Rules on insurance brokerage and the role of brokers in migrant worker insurance should be clarified so that the use of a broker is either removed from the
system as redundant, or the broker is required to act as genuine impartial actor
working to the benefit of the insured.
The government of Indonesia should also consider establishing a separate state
compensation scheme for workers who suffer hardships and injuries that are
difficult to insure. For example, physical, sexual, and emotional abuse could be
compensated by such a scheme. The practice of awarding discretionary charity
payments as part of the “social function” of insurers should be subject to transparent criteria.
MIGRANT WORKERS’ ACCESS TO JUSTICE AT HOME: INDONESIA 153
5.
Improve Oversight and Accountability of Recruitment Agencies
Migrant workers can only be effectively protected if recruitment agencies act in
good faith to ensure that their promises and legal obligations to workers are met
throughout the migration process, and if those agencies that fail to do so are identified through effective monitoring and sanctioned. Elements of a more effective
regulatory system include:
6.
•
More frequent monitoring of agencies using established criteria, as well as
investigations in response to an accessible public complaints process and
mandatory sanctions or de-registration for repeated compliance failures.
•
Stronger licensing requirements, including linking of license renewal with
compliance with key migrant worker protections (among other things), and
denial of licences to applicants previously involved in de-registered agencies.
•
Greater transparency in licensing, including opportunities for public comment on licensing applications and publication of recruiter sanctions and the
identities of senior management and other individuals/corporations with a
significant financial interest in a recruitment agency.
•
Holding recruitment agencies accountable for brokers acting as their agents.
•
Providing recruiters with detailed guidance on their obligations to migrant
workers under existing statute, regulations, and standard placement agreements, as well as the ways in which recruiters ought to meet those obligations
and the consequences of failure to do so. This information does not currently
appear to be clearly defined or available.
Regulate the Broker System
Local brokers/sponsors are an established part of the Indonesian labor migration
system, acting essentially as agents for recruitment agencies at the village level.
Some advocates call for banning brokers, because of high incidences of fraud and
deceptive or incompetent conduct. However, it is the authors’ view that this is
currently unrealistic given the extent to which workers rely on brokers to identify
recruitment agencies and arrange travel documents. In light of the pervasive role
of brokers within the labor migration system, there is a clear need to achieve far
greater oversight of, and accountability within, the broker system.
This should begin with an empirically informed understanding of the operation
of the broker system based on a national study that evaluates the services that
brokers provide to workers, their relationship with recruiters (including the circumstances under which they are the “agents” of recruiters in practice and/or in
154 CONCLUSION AND RECOMMENDATIONS
law), brokers’ geographic scope, the problems that migrant workers frequently
encounter with brokers, and the ways in which brokers may protect workers.
The study should reflect realistic regulatory models that take into account the
large number of brokers at the village level across the country as well as the significance of personal relationships in the broker model.
Potential regulatory initiatives might include:
7.
•
Defining the circumstances under which brokers are “agents” of recruiters,
such that recruiters are liable for their actions.
•
Subjecting brokers to a statutory licensing and regulatory scheme that runs
parallel to the scheme for recruitment agencies, including a mechanism for
migrant worker complaints, investigation, dispute resolution, and redress.
This would need to be reconciled with the prohibition under Article 4 of Law
39/2004 against individuals engaging in migrant worker recruitment.
•
Prohibiting recruitment agencies from engaging brokers who are unlicensed
(and sanctioning those who do so), and making a list of licensed brokers in
each district publicly available and easily accessible.
•
Making licenses valid for a limited period, with periodic renewal contingent
on a clean record.
•
Training brokers on the law, including their obligations, duties, and the rights
of migrant workers. This could be standardized nationally, implemented
locally.
•
Sanctioning brokers for engaging in conduct intended to mislead or otherwise
disadvantage a migrant worker, and banning repeat offenders from acting as
brokers in the future.
Strengthen Embassy Oversight and Systematize Consular
Assistance
Embassies and consulates in significant migrant worker destination countries
should be better resourced, and their staff should be better trained to provide
legal assistance to workers and to conduct more rigorous evaluation of partner
recruitment agencies and employers. This is required in order to implement the
responsibilities of the Indonesian government for protecting its citizens abroad,
as recently articulated under Government Regulation 3 of 2013. Furthermore, consular staff should make themselves more accessible to migrant workers outside of
the capital cities, and should travel more frequently to local shelters in other parts
of the country, particularly in geographically large countries such as Saudi Arabia.
MIGRANT WORKERS’ ACCESS TO JUSTICE AT HOME: INDONESIA 155
Specific recommendations to the Ministry of Foreign Affairs, and Ministry of
Manpower attachés where relevant, include:
•
Embassies and consulates should provide free competent legal advice to
low-wage migrant workers in relation to employment and criminal matters,
addressing rights to redress within the destination country as well as upon
return to Indonesia. While Government Regulation 3/2013 outlines the activities to be undertaken by the Indonesian Foreign Missions in providing legal
aid, additional regulations should establish guidelines for determining when
legal aid is mandatory and which migrants are eligible for legal aid, and that
guidance should be as inclusive as possible. Resources must also be allocated
to the Ministry of Foreign Affairs and labor attachés to ensure that those legal
services are truly accessible and meaningful. Embassy lawyers should either
be extensively trained in local language, laws, and legal systems, or should
engage local lawyers. Embassy staff should also be trained in Indonesian labor
migration law, including the Migrant Worker Insurance Scheme, as well as
relevant international legal standards.
•
Relevant parties should develop standardized procedures for consulate/
embassy staff to resolve disputes between workers and employers, including
defining workers’ rights to information and to participate in the process, to
ensure transparency and fairness.
•
Embassies and consulates should establish procedures to ensure that workers
not in possession of their passports or other documentation receive assistance
from foreign missions, and work to facilitate the workers’ retrieval of their
documentation necessary to pursue a claim, either within the country of work
or upon their return to Indonesia.
•
Embassies and consulates should establish a more efficient mechanism for
responding to worker and family complaints and to inquiries regarding the
status of their case at a particular mission abroad, and work to overcome the
duration of time workers are trapped in the country of work while trying to
resolve disputes with their employer.
•
The government should establish a mechanism for receiving and responding to complaints about consular handling of worker disputes or requests for
information.
•
The government should establish clearer criteria and processes for assessing
the quality of partner recruitment agencies and commercial employers based
on their ongoing treatment of migrant workers.
156 CONCLUSION AND RECOMMENDATIONS
•
8.
The Ministry of Foreign Affairs should maintain records regarding the types
of complaints received by Indonesian missions abroad, the length of time to
resolve the cases, and the outcomes of those cases, and make de-identified
data publicly available. This is particularly important for fulfilling the missions’ obligations under Government Regulation 3/2013 to monitor, as well
as provide guidance and oversight of recruitment agencies and employers.
Improve Information on Rights and Redress, and Workers’ Access
to Documents Required to Substantiate Claims
Government (and possibly donors) should support the development of resources
that clearly and simply set out migrant workers’ rights under various sources of
law, as well as the responsibilities of recruiters, insurers, and various government
departments. Publicly available materials should also clearly and simply set out
the procedures and documents required to seek redress through insurance or
other Indonesia-based mechanisms in a manner accessible to local civil society
groups and low-wage migrant workers. These should be developed by civil society, in collaboration with government and academics, with input from the private
sector. They should be made available online and in hard copy pre-departure,
at embassies, and at local government offices. Development and distribution of
materials should be supported by the government (and possibly donors).
The Ministry of Manpower and BNP2TKI should establish a system in partnership with recruitment agencies and insurers through which migrant workers may
easily obtain copies of their contract and insurance documents in a timely manner
and at no cost. One option would be to create a centralized electronic or hard-copy
location with copies of all documents that migrants can access.
The ministry should also train diplomatic staff about Indonesia-based redress
mechanisms such as insurance, and establish procedures for consulates to advise
and assist workers to collect documentation that they will need to make claims,
before the workers leave the destination country. The Ministry of Foreign Affairs
should develop template letters for embassies to timely provide evidence of harm
suffered by a worker.
The BNP2TKI Crisis Centre Hotline should also advise workers on the documents
that they must obtain and any other steps they should take while in the destination country to make an insurance or other related claim for redress in Indonesia.
MIGRANT WORKERS’ ACCESS TO JUSTICE AT HOME: INDONESIA 157
9.
Improve Training and Capacity of Lawyers Representing Migrants
To increase the pool of skilled individuals assisting migrant workers, law schools
could teach courses on overseas migrant labor, including classes on relevant
human rights, labor rights, consumer rights, and contract law. Law schools could
also establish related clinical legal education programs that both train future lawyers and provide essential services to migrant workers. In the future, transnational clinical collaboration with law schools in destination countries could be
a particularly powerful route to increasing access to justice for workers at all
stages of the labor migration process, particularly with the support of established
migration-focused clinical legal education programs. This would likely require
donor support at the outset.
The legal professional associations should also offer short courses so that practising labor migration lawyers can improve their skills and remain current with
changes to the law. Short courses on the law in significant destination countries
would also be beneficial.
Donor organizations, in partnership with law firms and law schools, could also
offer more in-depth legal training to paralegals and civil society groups assisting
migrant workers, as well as to pro bono lawyers. In addition to domestic legal
training, this could include modules on destination country laws as well as Indonesia’s obligations under the Migrant Worker Convention and other international
treaties.
Finally, donor organizations can support civil society organizations that are teaching workers to assist others by involving the workers in the process to resolve
their disputes. For such training to have a sustainable impact, particularly in light
of significant power imbalances inherent in the dispute resolution process, the
trained workers will need ongoing support.
10.
Support Legal Research and Strategic Litigation
Further research, analysis, and dialogue among lawyers and academics is strongly
recommended to identify creative new ways for migrant workers to use the courts
to enforce their rights. This could include cases to compel government action or
to obtain redress from recruitment agencies or other private parties under contract.
It could also include strategic litigation to test the enforceability of workers’ rights
under the placement agreement, or the standard insurance policy, or to establish the accountability of recruitment agencies for the conduct of brokers (or
158 CONCLUSION AND RECOMMENDATIONS
the independent liability of brokers) for worker harms. There may also be scope
to test the new legal aid law as applied to migrant workers. Litigation may also
be used to test the import of Indonesia’s obligations under the Migrant Worker
Convention and other international treaties in domestic courts and international
forums, particularly in light of Indonesia’s human rights law, which directly incorporates those obligations into domestic law and creates a right to their enforcement through domestic and international mechanisms.
In all of these areas, the involvement of pro bono law firms, civil society groups,
law school clinics/academics and international donors, will be needed to develop
and bring viable claims.
Future research is recommended into the amenability of non-traditional forums,
such as the Industrial Relations Tribunal, to migrant worker claims. It should
also consider migrant workers’ access to redress for rights violations by other
private sector actors, such as training centers, banks involved in the transmission of remittances, and transportation companies that transport workers from
Jakarta airport back to their home communities (with reportedly frequent theft
and fraud). Studies could also explore the discriminatory discrepancies between
placement agreements of Middle East workers and those going to other regions.
Finally, the impact of gender on the type of harms suffered and the barriers to
redress for those harms is greatly needed, given that the vast majority of migrant
workers from Indonesia are women carrying out work traditionally undervalued
as “women’s work.” Further research should include the treatment of pregnant
migrant workers, sexual assault cases, and barriers to seeking redress as experienced by women.
MIGRANT WORKERS’ ACCESS TO JUSTICE AT HOME: INDONESIA 159
Annexure 1: International Law
Ratifications by Indonesia
United Nations Conventions And Protocols
Ratif.
Year
Universal Declaration of Human Rights 1948
YES
2000
Convention on the Elimination of All Forms of Racial Discrimination
1963
YES
1999
International Covenant on Economic, Social and Cultural Rights 1966
YES
2006
International Covenant on Civil and Political Rights 1966
YES
2006
Optional Protocol to the International Covenant on Civil and Political
Rights
NO
—
Second Optional Protocol to the International Covenant on Civil and
Political Rights, aiming at the abolition of the death penalty
NO
—
Convention on the Elimination of All Forms of Discrimination Against
Women 1979
YES
1984
Convention Against Torture and Other Cruel , Inhuman or Degrading
Treatment or Punishment, 1984
YES
1998
Convention on the Rights of the Child 1990
YES
1990
International Convention on the Protection of the Rights of All Migrant
Workers and Members of their Families, 1990 in force 2003
YES
2012
161
United Nations Conventions And Protocols
Ratif.
Year
SIGNED
2003
UN Supplementary Convention on the Abolition of Slavery, the Slave
Trade, and Institutions and Practices Similar to Slavery, adopted 1956,
entered into force 1957
NO
—
The United Nations Convention against Transnational Organized
Crime, 2000
YES
2009
Protocol to Prevent, Suppress and Punish Trafficking in Persons,
Especially Women and Children (“Palermo Protocol”) 2000
YES
2009
International Labour Organization Conventions
Ratif.
Year
ILO Convention 14: Weekly Rest (Industry) Convention, 1921
NO
—
ILO Convention 29: Concerning Forced Labour Convention 1930, entered
into force 1932
YES
1950
ILO Convention 87: Freedom of Association and Protection of the Right to
Organize 1948
YES
1998
ILO Convention 98: Right to Organize and Collective Bargaining
Convention, 1949
YES
1957
ILO Convention 100: Equal Remuneration Convention, 1951
YES
1957
ILO Convention 105:Abolition of Forced Labour Convention, 1957
YES
1999
ILO Convention 111: Discrimination (Employment and Occupation)
Convention, 1958
YES
1999
ILO Convention 131: Minimum Wage Fixing Convention, 1970
NO
—
ILO Convention 138: Minimum Age for Admission to Employment
Convention, 1973
YES
1999
ILO Conventions 144: Tripartite Consultation (International Labour
Standards) Convention, 1976
YES
1990
ILO Conventions 169: Indigenous and Tribal Peoples Convention, 1989
NO
—
ILO Conventions 182: Concerning the Prohibition and Immediate Action
for the Worst Forms of Child Labour Convention, 1999
YES
2000
ILO Convention 97: Migration for Employment Convention (Revised) 1949
NO
—
ILO Convention 143: Migrant Workers (Supplementary Provisions)
Convention, 1975
NO
—
ILO Convention 189: On Decent Work for Domestic Workers
NO
—
Convention for the Suppression of the Traffic in Persons and of the
Exploitation of the Prostitution of Others (a) 2002
ILO Convention 181: Private Employment Agencies Convention, 1997
162 ANNEXURES
Annexure 2: Interviews and
Focus Groups
Research Methodology
TABLE 1: Category of Persons Interviewed
Category
Returned Worker
Number
4
Civil Society Organizations
16
Government
14
Legal Practice/ Academic
3
Private Sector
4
International Organizations
2
Total
43
MIGRANT WORKERS’ ACCESS TO JUSTICE AT HOME: INDONESIA 163
TABLE 2: Focus Groups and Participants
District or
Sub-District
Province
Malang
East Java
Brebes
Dates
(2012)
Participants
Returned
Worker
Family
Member/CSO
Total
12 April
8
1
9
Central Java
7 May
6
5
11
Indramayu
West Java
20 May
7
7
14
Sukabumi (1)
West Java
27 May
9
1
10
Sukabumi (2)
West Java
27 May
7
3
10
East Lombok (1)
West N.T.
10 June
6
7
13
East Lombok (2)
West N.T
11 June
5
3
8
48
27
75
Total
164 ANNEXURES
Annexure 3: List of Organizations/
Persons Interviewed
Organization/Agency
Name
Jakarta
1.
BNP2TKI Crisis Center
Henry Prayitno
2.
Ministry of Manpower, Placement Division
Berry Komaruzaman
3.
Ministry of Manpower, Protection Division
Oscar Abdulrachman
4.
Ministry of Foreign Affairs, Citizen Protection Division
Tatang Budie Utama Razak
5.
Migrant Workers Task Force (SATGAS TKI)
Humphrey Djemat
6.
Assosiasi Tenaga Kerja Indonesia (ATKI)
Retno Dewi
7.
The Institute for Ecosoc Rights
Sri Palupi
8.
Jakarta Legal Aid
Pratiwi Febry
9.
Jala PRT
Lita Anggraini
10.
Migrant Care
Nurharsono and Badriyah
11.
Migrant Institute
Adi Candra Utama and
Nursalim
12.
Serikat Buruh Migran Indonesia (SBMI) Head Office
Jamaluddin
13.
SBMI Banyuwangi
Yudi
MIGRANT WORKERS’ ACCESS TO JUSTICE AT HOME: INDONESIA 165
Organization/Agency
Name
14.
Private legal practice
Harisan Aritonang
15.
TIFA Foundation
Eddy Purwanto
16.
PT Abdillah Putra Tamala (Private recruitment agency)
Irwan Rosadi and
Made Bagus Surajaya
17.
PT Jasindo; formerly PT Grasia Media Utama
(Insurance Brokerage Company)
Bambang Sarjito
18.
PT Harta Aman Pratama/ Konsorsium Asuransi
Proteksi (Insurer)
Rusdiansyah
19.
International Labour Organization (ILO)
Lotte Kejser
20.
World Bank, Justice for the Poor Program
Lisa Noor Humaidah
Brebes, Central Java
21.
Local MoM Office
Henky Budi Rahmawan
22.
SBMI Brebes
Cahyo Subagyo
Indramayu, West Java
23.
Local MoM Office
Adi Satria
24.
SBMI Indramayu
Jihun
25.
Fokbumi
Heru
Malang, East Java
26.
Local MoM Office
Sukardi
27.
Brawijaya University
Umu Hilmy
28.
Paguyuban Jinggo Putri (PJP)
Mutmainah
East Lombok, NTB Province
29.
BNP2TKI in Lombok
M. Saleh
30.
Office of Manpower, Placement Division
Tohari Waluyo
31.
Office of Manpower, Oversight Division
Djunaidi and Syaiful
32.
Advokasi Buruh Migran Indonesia (ADBMI) Lombok
Timur
Roma Hidayat
Sukabumi
33.
Local MoM Office
Sukarwandi and Adi Kurniai
34.
SBMI Sukabumi
Jejen Nurjanah
166 ANNEXURES
Notes
1.
International Convention on the Protection of the Rights of all Migrant Workers and Members of their Families, opened for signature December 18. 1990, 30 I.L.M. 1517 (entered into force
July 1, 2003).
2. International Labour Organization. Migrant Workers. http://www.ilo.org/global/standards/
subjects-covered-by-international-labour-standards/migrant-workers/lang--en/index.htm.
3.
See Auwal, M.A. 2010. “Ending the Exploitation of Migrant Workers in the Gulf,” Fletcher
Forum of World Affairs 34 (Summer): 87–108, at 87–88. (“In numerous cases, the migrant labourers end up not only losing the investments they make in obtaining their jobs, but also their basic
human dignity, health, and, in some tragic cases, even their lives. All too often, they are deprived
of pay, forced to work, left in squalid living conditions, denied the freedom to move or change jobs,
and subjected to physical and sexual abuse.”).
4.
Ibid, 88 and 99.
5.
Groves, S. 2012. “Remittances Hit $534 Billion in 2012, Setting New Record,” International
Diaspora Engagement Alliance, November 26, 2012. http://diasporaalliance.org/remittances-hit-arecord-high-of-534-billion-in-2012/, quoting World Bank figures.
6. International Convention on the Protection of the Rights of all Migrant Workers and Members of their Families, opened for signature December 18, 1990, 30 I.L.M. 1517 (entered into force
July 1, 2003), (CMW).
7.
East Timor and the Philippines have also ratified the convention.
8. A separate complementary study, funded by the Open Society Foundations, is also currently
being undertaken on migrant workers’ access to justice within Qatar.
167
9. All fieldwork was conducted in accordance with the Human Research Ethics Advisory of the
University of New South Wales.
10. The research director based at UNSW, who is fluent in Bahasa and English, undertook
the desk research and legal review. The field research was overseen by the research director and
conducted by an Indonesia-based researcher with extensive experience in migrant worker policy
advocacy and direct services. A legal expert was also retained to obtain copies of laws and to advise
on their interpretation under Indonesian law.
11.
The roundtable was held in partnership with the TIFA Foundation.
12. Three migrant workers who wished to share their story in more detail were interviewed; one
of those also participated in a focus group.
13. Ministry of Manpower and Transmigration Data Center, n.d., Migrant Worker Departures
According to Region of Origin and Sex, 2011. Jakarta: Ministry of Manpower and Transmigration
(MoM).
14. International Convention on the Protection of the Rights of all Migrant Workers and Members of their Families, opened for signature December 18, 1990, 30 I.L.M. 1517 (entered into force
July 1, 2003).
15. South East Asia National Human Rights Institutions Forum (SEANF). 2010. SEANF Paper
on Migrant Workers. (Indonesia, but not Nepal, is a member of ASEAN).
16. See generally, Office of the UN High Commissioner for Human Rights. 2005. The
International Convention on Migrant Workers and its Committee, Fact Sheet No.24 (Rev. 1). New York/
Geneva: United Nations.
17. Colombo Process. 2011. Dhaka Declaration of Colombo Process Member Countries. Colombo
Process, April 21, 2011. http://www.colomboprocess.org/images/docs/dc2011/dhaka_declaration.
pdf). (Indonesia and Nepal are members of the Colombo Process).
18. 1945 Constitution of the Republic of Indonesia, as amended by the First Amendment of
1999, the Second Amendment of 2000, the Third Amendment of 2001 and the Fourth Amendment
of 2004 (Constitution of the Republic of Indonesia 1945, as amended).
19. CEDAW General Recommendation 26, paras. 10–11.
20. Ibid.
21.
Ibid, para. 24.
22. ABA Rule of Law Initiative. 2012. Access to Justice Assessment Tool: A Guide to Analyzing Access
to Justice for Civil Society Organizations. New York: American Bar Association.
23. The World Bank. n.d. A Framework for Strengthening Access to Justice in Indonesia. Washington,
D.C. http://siteresources.worldbank.org/INTJUSFORPOOR/Resources/A2JFrameworkEnglish.pdf,
citing to Bedner, A. 2004. Towards Meaningful Rule of Law Research: An Elementary Approach.
Unpublished manuscript; and Van Vollenhoven Instituut and United Nations Development
Programme. 2005. Access to Justice Practitioner Guide. Bangkok: United Nations Development
Programme.
24. The ABA-ROLI assessment tool includes, for example: a legal framework establishing rights
and duties, and providing “mechanisms to solve their common justice problems”; citizen knowledge
168 NOTES
of rights and duties, and mechanisms for achieving justice; access to legal advice and representation;
accessibility, affordability, and timeliness of justice institutions; institutions that provide citizens
opportunity to present case, independence, and opportunity for voluntary and informed decisions
regarding settlement of dispute; and, enforceability of decisions. The World Bank, by contrast,
considers the existence of: a normative legal framework; legal awareness, looking not just at the
awareness of laws, rights and responsibilities, but also how to access the relevant mechanisms;
actual access to the mechanisms, both formal and informal; the effective administration of justice
through those mechanisms; and, transparency and accountability. See, Vel, J. 2010. “Policy Research
on Access to Justice in Indonesia: A Review of World Bank and UNDP Reports. Law, Social Justice
and Global Development Journal 15: 1–27.
25. United Nations Development Programme. 2004. Access to Justice Practice Note. New York:
United Nations Development Programme, at pp. 5–6.
26. Indonesian Ministry of Foreign Affairs (MoFA). 2012. Profile of Indonesian Citizens Abroad.
Jakarta: MoFA.
27. Sulistyowati Irianto. 2011. Akses Keadilan dan Migrasi Global [Access to Justice and Global
Migration]. Jakarta: University of Indonesia and International Development Research Center, at p. xii.
28. MoFA. 2012. Distribution of Indonesian Citizens Abroad. Jakarta: MoFA.
29. Raharto, A. 2011. “The Migratory Experience of Returned Migrant Domestic Workers: The
Example of Indonesia.” Workshop on Strengthening Dialogue Between ESCWA and ESCAP
Countries on International Migration and Development, Beirut, June 29–30, 2011.
30. The Ministry of Manpower figures note that between 2007 and 2009, a total of 1,051,168
migrant workers were approved to travel to the Middle East, 998,177 of whom were women. MoM.
2010. Data on the Placement of Migrant Workers Abroad 2005–2010. http://pusdatinaker.balitfo.
depnakertrans.go.id/katalog/download.php?g=2&c=17.
31. Raharto, A. 2011. “The Migratory Experience of Returned Migrant Domestic Workers: The
Example of Indonesia.” Workshop on Strengthening Dialogue Between ESCWA and ESCAP
Countries on International Migration and Development, Beirut, June 29–30, 2011.
32. Focus group participants mentioned language barriers a number of times as a source of
frustration for both employee and employer, and an additional barrier to seeking assistance and
redress in the destination country.
33. Hilmy, U. 2008. Pemberdayaan Perempuan di Kabupaten Malang untuk Memperoleh Hak
atas Akses dan Kontrol pada Penghasilan Proses Bermigrasi ke Hong Kong [“Empowerment of
Women in Malang for Realizing Rights to Access and Control the Benefits of Migration to Hong
Kong”]. Rechtidee Law Journal 3: 93–101.
34. United Nations Development Programme in Indonesia. 2007. Justice for All? An Assessment
of Access to Justice in Five Provinces of Indonesia. Jakarta: United Nations Development Programme
in Indonesia.
35. World Bank. 2011. Briefing Note: Justice for the Poor 6(2) (March). See also Hardiyanto, Y.G.,
et. al. 2008. Akses Perempuan Terhadap Keadilan di Indonesia [“Women’s Access to Justice in Indonesia”]. New York: World Bank.
MIGRANT WORKERS’ ACCESS TO JUSTICE AT HOME: INDONESIA 169
36. This Strategy has been developed together with the United Nations Development Programme. See e.g., Sadiawati, D. 2009. “National Strategy on Access to Justice.” Presented at BAPPENAS, Government of Indonesia, Bangkok, March 3, 2009.
37. The first government-sanctioned migrant workers were reportedly placed abroad under a
1970 scheme implemented by the then Department of Manpower, Transmigration and Cooperation, pursuant to Government Regulation 4/1970. This regulation established programs of “Interregional” and “Inter-national” work to move, through private recruitment agencies. Asyarifah.
“Sejarah Penempatan TKI Dari Masa Ke Masa” [“The History of Indonesian Migrant Worker
Placement Over Time”].” Kompasiana. Jakarta, October 24, 2011. http://sosbud.kompasiana.
com/2011/10/14/sejarah-penempatan-tki-dari-masa-ke-masa-403483.html.
38. Ministry of Manpower and Transmigration (MoM) Decree 204/1999 concerning the Placement of Migrant Workers Abroad (KEP-204/MEN/1999).
39. MoM, Ministerial Regulation 7/2010 concerning Indonesian Migrant Worker Insurance
(PER.07/MEN/V/2010), May 31, 2010.
40. MoM, Ministerial Regulation 14/2010 on the Implementation of Placement and Protection
of Migrant Workers (PER.14/MEN/X/2010), October 13, 2010. This was preceded by an earlier
ministerial regulation of the same name, 18/2007.
41. MoM, Ministerial Regulation 12/2011, concerning Labor Attachés and Labor Technical Staff
in Indonesian Foreign Missions Abroad (PER.12/MEN/X/2011), November 1, 2011.
42. East Lombok District, Regional Regulation 12/2006 concerning the Placement, Protection
And Development Of Indonesian Migrant Workers from East Lombok District; West Lombok District, Regional Regulation 5/2007 concerning Protection of Indonesian Migrant Workers; Sumbawa
District, Regional Regulation 21/2007 concerning Protection and Guidance of Indonesian Migrant
Workers.
43. Indonesia is not a federal state. Its constitution states that, “The State of Indonesia shall be a
unitary state in the form of a republic.” Although the constitution provides for regional assemblies
to pass local regulations, the relationship between the regions and the central government is set
out in legislation (rather than in the constitution) and may differ between regions, “having regard
to the particularities and diversity of each region.” Constitution of the Republic of Indonesia 1945, as
amended, Articles 1, 18 & 18A.
44. Law 39/2004, Article 23.
45. These requirements are a combination of the list set out in Law 39/2004 Article 35 and
Manpower Regulation 14/2010 Article 8.
46. Law 39/2004 requires workers to have completed junior high school (Article 35(d)).
However, the recruitment agency representative body, APJATI, and others from the industry
successfully challenged this requirement in the Constitutional Court of Indonesia in 2006. The
court determined that the educational requirement interfered with the constitutional rights to work
and to life, and found that the interference could not be considered necessary. Education was not
an actual requirement for the jobs migrant workers undertake, and further the requirement did
not directly protect certain vulnerable groups such as children or pregnant women. (Case Nos.
019/PUU-III/2005, 020/PUU-III/2005, February 2006). However, employers may nevertheless
set their own educational requirements for a placement.
170 NOTES
47. Law 39/2004, Article 36.
48. One agency representative interviewed for the study remarked that, “if the migrant worker
is illiterate … I send them back to the sponsor and tell him to take the worker home.” Interview
with Mr. Irwan Rosadi and Made Bagus Surajaya, Recruitment Agency PT Abdillah Putra Tamala,
Jakarta, June 22, 2012.
49. Manpower Regulation 14/2010, Article 22.
50. Ibid, Article 24.
51.
Ibid, Articles 31–37.
52.
Ibid, Articles 38–40.
53. A small number of workers organize their own work and visas abroad, or are placed by the
state according to government-to-government contracts. The present report does not focus on those
workers, or on workers who travel abroad through unofficial channels independent of any local
recruiters.
54. BNP2TKI was created by Law 39/2004, but it wasn’t until 2006 that the president passed the
rules necessary to establish the body: Regulation of the President of the Republic of Indonesia Number 81/2006 concerning the National Body for Placement and Protection of Indonesian Migrant
Workers, September 8, 2006 (Perpres 81/2006). Note also that a prior interagency body had been
created in 1999 during reformasi, known as the Indonesian Migrant Worker Placement Coordination Body (BKPTKI), pursuant to Presidential Decree Number 29/1999 (Keppres 81/2006). In this
earlier version, the Minister of Manpower headed the body.
55. This includes ministries of manpower, immigration, foreign affairs, health, population and
the police. Perpres 81/2006 Article 2.
56. Law 39/2004 on the Placement and Protection of Indonesian Migrant Workers, Article 95(2).
57. Government Regulation 5/2013 Concerning Procedures for Evaluating and Appointing Business Partners and Individual Employers, January 2, 2013, Article 4.
58.
Manpower Regulation 14/2010, Article 42.
59. Ibid, Article 9.
60. Ibid, Article 1(8).
61. Ibid, Article 8.
62. Ibid, Articles 11–12, 16.
63. Ibid, Article 19(5).
64. Presidential Regulation 81/2006 concerning BNP2TKI, Articles 27–28.
65. See for example, Sources. 2013. “BNP2TKI Prepares to Open P4TKI in Cirebon [West Java].”
Antara News, June 2, 2013. http://www.antarasumbar.com/berita/nasional/d/0/292441/bnp2tkisiapkan-pembentukan-p4tki-di-cirebon.html.
66. MoM, [n.d.], list of private recruitment agencies to January 2013, on file with authors. Note
that this figure may be misleading as it refers to recruitment agencies currently registered by
MoM. However, experts explained that at the local level, individuals with an expired or cancelled
license number still operate and it is difficult for prospective workers or civil society organizations
MIGRANT WORKERS’ ACCESS TO JUSTICE AT HOME: INDONESIA 171
to identify if the agency is genuine; the list is available on the BNP2TKI site (http://www.bnp2tki.
go.id/pptkis.html) but is updated infrequently. In practice, many more recruitment agencies are in
operation, whether legally or not.
67. Criteria for a recruitment agency to obtain a license are: Formation as a limited liability
company (PT); paid-up capital in the company of at least 3 billion rupiah (around US $315,000);
payment of a deposit to the ministry of 500 million rupiah ($52,000); and, at least a three-year plan
for the placement and protection of migrant workers abroad, including possession of a training
unit, and the facilities and infrastructure to place workers. MoM Regulation 10/2009 concerning
Procedures for Granting, Extending and Withdrawing a License for Recruitment of Indonesian
Migrant Workers, PER.10/MEN/V/2009, May 7, 2009.
68. In late 2011, for example, the Ministry withdrew the licenses of 28 recruitment agencies after
finding serious violations. The most common violation was sending migrant workers to countries
for which there was a moratorium, including Saudi Arabia. Other violations included holding a
worker in a placement center for many months and not sending him or her abroad, and falsifying
training documents. See Serambi Indonesia. 2011. “Kemenakertrans Cabut Ijin 28 PPTKIS Nakal”
[“The Ministry of Manpower Withdraws License from 28 Naughty Recruitment Agencies”]. Serambi.
news.com, November 7, 2011. http://aceh.tribunnews.com/m/index.php/2011/11/07/kemenakertrans-cabut-ijin-28-pptkis-nakal.
69. Law 39/2004, Article 1(6).
70. Ibid, Article 1(8).
71. Ibid, Article 25. See also Government Regulation 3/2013 concerning Protection of Indonesian
Migrant Workers Abroad, January 2, 2013.
72. Government Regulation 5/2013 Concerning Procedures for Evaluating and Appointing Business Partners and Individual Employers, January 2, 2013. See explanatory notes for discussion of
role of Business Partners.
73. Government Regulation 3/2013 concerning Protection of Indonesian Migrant Workers
Abroad, January 2, 2013.
74. MoM Regulation 14/2010, Article 11(1).
75.
Law 39/2004, Article 34(1).
76. MoM Regulation 14/2010, Articles 10–11.
77.
Ibid, Article 11(2).
78. Law 39/2004, Article 34(3).
79. Law 39/2004, Article 41; MoM Regulation 14/2010, Article 22.
80. More detail about the content of the training is provided by Minister of Manpower Decree
23/2009 concerning Information and Training for Prospective Indonesian Migrant Workers Overseas, NOMOR PER.23/MEN/IX/2009, September 30, 2009. This decree does not adopt an empowering approach to training, defining the training as “a process of work training that gives, obtains,
increases and develops work competency, productivity, discipline, attitude and a work ethic, increasing skills and specialized knowledge according to the scale and qualifications necessary for the
position.” (Article 1(3)).
172 NOTES
81. MoM Regulation 14/2010, Article 22; MoM Regional 23/2009 concerning Education and
Training for Prospective Overseas Workers, PER.23/MEN/IX/200930, September 2009.
82. MoM Regulation 14/2010, Article 37(2).
83.
Law 39/2004, Article 69(2).
84. Ibid, Article 69(3).
85.
MoM Regulation 14/2010, Article 31.
86. Many studies have documented and critiqued the training center model. See for example
Lindquist, who notes that women are confined before departure so that they don’t fall pregnant or
change their minds before departure: Lindquist J. 2010. “Labour Recruitment, Circuits of Capital
and Gender Mobility: Reconceptualizing the Indonesian Migration Industry.” Pacific Affairs 83,
no. 1, pp. 115–132.
87. BNP2TKI. 2012. Recapitulation of migrant worker returns (2006–May 2012), June 11, 2012.
Jakarta: BNP2TKI.
88. It is not possible to determine whether the numbers of returned workers reporting problems
per country are proportionate to the number of workers returning from those countries, as the
numbers of returns by destination country is presently unavailable (i.e., it is possible that 80 percent
of returns from Jakarta are workers from the Middle East for example and other workers return
through other ports). However, given that only around one third to one half of migrant workers are
placed in the Middle East, the large proportion of problems (75 percent) reported by migrants upon
return indicate that workers to these countries report more problems than those to the Asia Pacific.
Further analysis of government data in this area would be valuable. See BNP2TKI. “Kepulangan
TKI Di BPK TKI Selapajang” [“Migrant Worker Returns through Selapajang Terminal”] (2006–31
May 2012) http://www.bnp2tki.go.id/statistik-penempatan/statistik-kepulangan/6762-kepulangantki-di-bpk-tki-selapajang-2006-31-mei-2012.html.
89. BNP2TKI [n.d.] Reports per Country, July 2011–June 2012.
90. Ibid.
91. Abdullah, A. 2009. “Kuwait Outraged at Indonesia Domestic Help Ban.” Al Arabiya
News, October 29, 2009. http://www.bnp2tki.go.id/berita-mainmenu-231/8429-bnp2tki-sudahpulangkan-7653-tkib-suriah-ke-daerah-asal.html. Hitipeuw, J. 2011. “Indonesia’s Gov’t Moratorium
on Dispatch of Migrant Workers to Jordan.” Kompas, December 19, 2011. http://english.kompas.
com/read/2011/12/19/08275753/Indonesias.Govt.Moratorium.on.Dispatch.of.Migrant.Workers.
to.Jordan; and “Indonesian Ban on Workers to Saudi Arabia.” Al Jazeera, June 23, 2011. http://
www.aljazeera.com/news/asia-pacific/2011/06/201162383559495252.html.
92. BNP2TKI. 2013. BNP2TKI has brought 7,653 Indonesian migrant workers back to their
home regions. http://www.bnp2tki.go.id/berita-mainmenu-231/8429-bnp2tki-sudah-pulangkan7653-tkib-suriah-ke-daerah-asal.html.
93. See e.g., a review of all of the migrant worker cases received at a local legal clinic: Hilmy,
U. 2011. “Pelanggaran dan perlindungan hukum tenaga kerja perempuan di kabupaten malang”
[“Violations and Legal Protection for Female Migrant Workers in Malang”]. Gajah Madah University
Journal of Law 23: 566–581.
94. Law 39/2004, Article 8.
MIGRANT WORKERS’ ACCESS TO JUSTICE AT HOME: INDONESIA 173
95. Ibid, Article 9.
96. Regional Regulation of Sumbawa District 21/2007 concerning Protection and Guidance of
Indonesian Migrant Workers, August 1, 2007.
97. For a study of Perda regulating migrant work in Indonesia, see Bachtiar, P.P. 2011. The
Governance of Indonesian Overseas Employment in the Context of Decentralization. Manila: Philippine
Institute for Development Studies.
98. Law 39/1999 concerning Human Rights, Article 7.
99. According to IOM, these include agreements with the Republic of Korea, (government-togovernment (G-to-G) via the Employment Permit System), Jordan (revised, signed March 2008);
Kuwait (in the process of being renewed, being separated into formal and informal sectors); Taiwan
Province of China; United Arab Emirates (dated December 18, 2007, for the formal sector); Qatar
(signed on January 21, 2008); Australia (Government-to-Private Sector); and Malaysia (2 MOUs:
one covering formal sector workers and the other covering domestic workers). International
Organization for Migration. 2010. Labour Migration from Indonesia: An Overview. Jakarta: International Organization for Migration.
100. For example, the U.S. Embassy noted that the Qatar MOU provides for a joint committee on
labor cooperation to seek possible employment opportunities in Qatar for Indonesian workers, but
the MOU is not public and an Indonesian Embassy official in Doha reported in 2008 that he had
not seen the agreement. The U.S. embassy official noted his belief that Qatari agreements are little
more then window-dressing to address the often appalling expatriate labor situation in Qatar. United
States Embassy in Doha. 2008. Qatar’s bilateral labor agreements-all pomp and no circumstance.
Confidential cable; Wikileaks, February 4, 2008. http://dazzlepod.com/cable/08DOHA88/.
101. MoM Regulation 14/2010, Article 3.
102. MoM Regulation 14/2010, Article 9(2).
103. Government Regulation 3/2013, Article 29.
104. Law 39/2004, Articles 52(4) and 53.
105. Although this is a widely held view, it is possible that brokers might be considered “agents”
of recruiters and thus indirectly subject to regulation. As noted earlier, this area warrants further
study and potentially litigation to test the law on recruiters and their relationship to their agents.
106. Explanatory notes to Article 52(2)(f), Law 39/2004.
107. See also examples on blogs, such as “Doglosss.” 2010. Perjanjian Penempatan TKI – Singapura [Placement Agreement – Singapore], Jakarta: Maju Makmur Blog. http://doglosss.blogspot.
com/2010/11/perjanjian-penempatan-tki-singapura.html.
108. Law 39/2004, Article 52(2)(j).
109. See generally, Lev D. 2000. “Legal Aid in Indonesia.” In Legal Evolution and Political Authority
in Indonesia: Selected Essays, 283–304.The Hague: Kluwer Law International.
110. See the website of the Legal Aid Foundation: http://www.ylbhi.or.id
111. Interview with Pratiwi Febry, Jakarta Legal Aid, Jakarta, January 27, 2012.
112. Interview with Haris Aritonang, private legal practitioner, Jakarta, January 2012.
174 NOTES
113. Law 16/2011 concerning Legal Aid, November 2, 2011.
114. Law 16/2011, Article 3.
115. Agustinus Supriyanto, Komnas Perempuan, written comments provided to the authors, June
24, 2013.
116. BNP2TKI. 2011. Standard Operating Procedure: Complaints Service System for Prospective
Workers/ Workers Abroad and In-Country. Jakarta: BNP2TKI.
117. Hilmy, U. 2008. “Pemberdayaan perempuan di kabupaten malang untuk memperoleh hak
atas akses dan kontrol pada penghasilan proses bermigrasi ke Hong Kong” [“Empowerment of
Women in Malang for Realizing Rights to Access and Control the Benefits of Migration to Hong
Kong”]. Rechtidee Law Journal 3: 93–101.
118. Interview with Jihun, SBMI Indramayu, Jakarta, May 22, 2012.
119. Mother of a migrant worker, focus group, Brebes, May 7, 2012.
120. Interview with Roma Hidayat, ADBMI Lotim, East Lombok, June 10, 2012.
121. Law 39/2004, Article 85(2).
122. Interview with Eddy Purwanto, Legal Advisor, TIFA Foundation, Jakarta, June 24, 2012.
123. Interview with Oscar Abdulrachman, Case-Handling Division, and Berry Komarudzaman
SH, director of Overseas Manpower Placement, Ministry of Manpower, Jakarta, July 27, 2012.
124. Ibid.
125. Ibid.
126. Interview with Sukardi, Placement and Case-Handling Section, Manpower Office of Malang
District, East Java, April 18, 2012.
127. See BNP2TKI webpage. 2011. TKI Complaints Service (Call Center). BNP2TKI, June 27,
2011. http://www.bnp2tki.go.id/berita-mainmenu-231/4786-pelayanan-pengaduan-tki-call-centerbnp2tki-.html.
128. BNP2TKI. 2012. Dalam Setahun Crisis Center BNP2TKI Selesaikan 2.714 Kasus TKI [In one
year BNP2TKI Crisis Center resolves 2,714 cases]. BNP2TKI, June 27, 2012.
129. BNP2TKI . 2012. Crisis Center BNP2TKI Resolves 4,577 TKI Cases. BNP2TKI, December
10, 2012. http://www.bnp2tki.go.id/berita-mainmenu-231/7684-crisis-center-bnp2tki-selesaikan4577-kasus-tki-.html.
130. Indonesian Embassy in Riyadh. Mechanism for protection assistance. http://www.kemlu.
go.id/riyadh/Pages/ServiceDisplay.aspx?IDP=1&l=id.
131. Indonesian Embassy in Riyadh. 2009. Online Complaint Form: http://www.kemlu.go.id/
riyadh/Pages/FormulirPengaduanOnline.aspx.
132. Interview with Mutmainah, Peguyuban Jinggo Putri, Malang, April 26, 2012.
133. Interview with Pratiwi Febri, Jakarta Legal Aid, Jakarta, January 27, 2012. Note that technically BNP2TKI is answerable directly to the president rather than the Ministry of Manpower, and
so is not technically “below” the ministry. However, only the Ministry of Manpower has the power
to sanction recruitment agencies.
MIGRANT WORKERS’ ACCESS TO JUSTICE AT HOME: INDONESIA 175
134. Law 37/2008 concerning the Ombudsman of the Republic of Indonesia.
135. For information on the Ombudsman’s role and functions, see Ombudsman’s website,
Ombudsman of the Republiic of Indonesia. http://www.ombudsman.go.id.
136. BNP2TKI, Standard Operating Procedure: Complaints Service System for Prospective Workers/ Workers Abroad and In-Country, 2011; and Head of BNP2TKI, Regulation 13/2012 concerning
Protection Services Standards for Prospective/Current Migrant Workers (PER 13/KA/VII/2012), July
2012. This regulation was originally adopted in a more informal document in 2010.
137. Head of BNP2TKI, Regulation 13/2012, Chapter 5, Part A.
138. Interview with Oscar Abdulrachman, Case-Handling Division, and Berry Komarudzaman
SH, Director of Overseas Manpower Placement, Ministry of Manpower, Jakarta, July 27, 2012.
139. Court-based mediation was formalized only recently by Supreme Court of Indonesia Regulation (Perma) 2/2008 concerning Court Mediation Procedures. The regulation states in the preamble
that “Mediation is a conflict resolution process that is faster and cheaper and can increase access
to parties to find a resolution that is satisfying and fulfils a sense of justice.”
140. Head of BNP2TKI, Regulation 13/2012 concerning Protection Services Standards for Prospective/Current Migrant Workers (PER 13/KA/VII/2012), July 2012.
141. See discussion on Private Recruitment Agencies in Section 3B.
142. Interview with Henry Prayitno, crisis center coordinator at BNP2TKI, Jakarta, June 25, 2012.
143. Sukardi, Placement and Case-Handling Section, Manpower Office of Malang District, East
Java, Malang, April 8, 2012; Budi Rahmawan, Placement Section, Manpower Office of Brebes District,
Central Java, May 7, 2012; Adi Satria, Industrial and Labor Oversight Section, Office of Manpower,
Indramayu District, West Java, May 22, 2012; Tohari Waluyo and Syaiful Wathan, Placement and
Oversight Sections, Office of Manpower, East Lombok, June 11, 2012; and Sukarwandi Kaidun and
Ade Kurnia, Placement Section, Manpower Office of Sukabumi District, West Java, Sukabumi, June
28, 2012.
144. Head of BNP2TKI, Regulation 13/2012, p. 15.
145. Interview with Retno Dewi, ATKI Jakarta, Jakarta, June 23, 2012.
146. Law 39/2004, Article 1.
147. Erman Suparno, Indonesian Minister of Labor and Transmigration. 2008. Kebijakan dan
strategi penempatan tenaga kerja Indonesia di luar negeri [Policies and Strategies for the Placement
of Indonesian Migrant Workers Abroad], March 27, 2008. Jakarta: Indonesia National Secretariat.
148. MoM Decree Kep-92/Men/1998 concerning the Protection of Indonesian Manpower Abroad
Through Insurance.
149. “[T]he current system of supervision and regulation of insurance for migrant workers is
ineffective. This results in regulatory duplication in some areas; contradictory interpretations of
claims; policy exclusions that contradict regulations; the revocation of licenses by different agencies;
and gaps in supervision.” The World Bank. 2010. Enhancing access to finance for Indonesia overseas
migrant workers: Evidence from a survey of three provinces. Jakarta: The World Bank.
150. Interview with Oscar Abdulrachman, Case-Handling Division, and Berry Komarudzaman
SH, Director of Overseas Manpower Placement, Ministry of Manpower, Jakarta, July 27, 2012.
176 NOTES
151. Herman Sina. MA Batalkan Permenakertrans Tentang Asuransi TKI [Supreme Court
Invalidates Minister of Manpower and Transmigration Regulation Concerning Migrant Worker
Insurance]. Jurnas, August 1, 2013. Available at: http://www.jurnas.com/news/102119/MA_
Batalkan_Permenakertrans_Tentang_Asuransi_TKI/1/Nasional/Hukum.
152. Friska Yolandha. OJK Bekukan Konsorsium Asuransi TKI [OJK Freezes Migrant Worker
Insurance Consortium]. Republika Online. July 15, 2013. Available at: http://www.republika.co.id/
berita/ekonomi/keuangan/13/07/15/mpyyu0-ojk-bekukan-konsorsium-asuransi-tki [last accessed
September 6, 2013].
153. Tempo.co, Ini Daftar Asuransi TKI pada Konsorsium Baru [List of Migrant Worker Insurers
in New Consortium]. Tempo.co Bisnis, August 1, 2013.
154. MoM Regulation 14/2010, Article 45.
155. Law 2/1992 concerning Insurance Business, ratified on February 11, 1992, Chapter 10: Guidance and Oversight.
156. The insurance law is not mentioned on the Proteksi website. Konsorsium Proteksi. 2010.
Tentang kami [about us]. http://asuransi.tki.car.co.id/index.php?option=com_content&task=view&
id=22&Itemid=45.
157. Minister of Manpower Decision 209/2010 concerning Appointment of One Consortium, Proteksi Insurance (209/MEN/IX/2010), September 6, 2010. Note that an association of
recruitment agencies (HIMSATAKI) challenged the appointment of a single consortium under
Kepmen 209/2010 as a violation of insurance law, and laws outlawing monopolies. The Supreme
Court determined that it did not have jurisdiction to review the appointment because it was a
personal decision of the minister, rather than a law. See Supreme Court of Indonesia, Himsataki v.
Minister of Manpower and Transmigration, Decision 61 P/HUM/ 2010.
158. During the period of this study, the ten consortium members were: PT ACA (Consortium head), PT Asuransi Umum Mega, PT Asuransi Harta Aman Pratama, PT Asuransi Tugu
Kresna Pratama, PT Asuransi LIG, PT Asuransi Raya, PT Asuransi Ramayana, PT Asuransi
Purna Artanugraha, PT Asuransi Tafakul Keluarga and PT Asuransi Relife. Konsorsium Proteksi
Homepage: http://asuransi.tki.car.co.id/index.php. “PT” in Indonesia denotes a private company.
159. Konsorsium Proteksi Page: http://www.proteksi-tki.com/index.php.
160. MoM Regulation 7/2010, Article 14.
161. Commission IX, Parliament of Indonesia. (2013) Recommendations of the Working Committee on the TKI Insurance Consortium, April17, 2013. : http://politik.kompasiana.com/2013/04/17/
rekomendasi-panitia-kerja-konsorsium-asuransi-tki-komisi-ix-dpr-ri-551970.html.
162. Arif Minardi, member of DPR Commission IX, addressing the Commission, Jakarta, June
19, 2012, quoted in BNP2TKI press release, “BNP2TKI (2012) Commission IX calls for the Dissolution of the Migrant Worker Insurance Consortium,” June 19, 2012:http://www.bnp2tki.go.id/
berita-mainmenu-231/6852-komisi-ix-dpr-wacanakan-pembubaran-konsorsium-asuransi-proteksitki.html.
163. Ibid.
164. Definition of Brokerage Company, Regulation 7/2010 section 1.
MIGRANT WORKERS’ ACCESS TO JUSTICE AT HOME: INDONESIA 177
165. Christine Novita Nabebam. 2011. “Association of Insurance Brokers of Indonesia Explains
Migrant Worker Broker’s Commission of up to 50% of Premium.” Kontan News, September 20,
2011. http://keuangan.kontan.co.id/news/abai-memaklumi-soal-komisi-broker-asuransi-tki-hingga50-dari-premi-1.
166. Isa Rachmatarwata, head of the Insurance Bureau at the Ministry of Finance, speaking to
the DPR Standing Committee IX, September 10, 2012. Quoted in Siahaan, C. 2012. “Ministry of
Finances Evaluates the Role of Brokers in Migrant Worker Insurance.” Inilah.com News, September
10, 2012. http://ekonomi.inilah.com/read/detail/1903158/kemenkeu-evaluasi-peran-broker-diasuransi-tki.
167. The Jakarta Post. 2013. “Misappropriation in Workers’ Insurance Funds.” The Jakarta
Post, July 16, 2013. http://www.thejakartapost.com/news/2013/07/16/misappropriation-workersinsurance-funds.html
168. Proteksi Consortium. 2010. Migrant worker standard insurance policy. http://asuransi.tki.
car.co.id/Polis%20Induk%20Asuransi%20Tenaga%20Kerja%20Indonesia%20-%2001.96910%20
-%20PROTEKSI%20TKI.pdf.
169. MoM Regulation 7/2010, Articles 23 and 25.
170. World Bank Indonesia, International Finance Corporation Indonesia. 2012. Improving
IOMW’s Protection Scheme: Review on [sic] Asuransi TKI. Presentation to the National Seminar
on Indonesian Overseas Migrant Worker’s Insurance, Jakarta, June 25, 2012 (World Bank & IFC
Review of Migrant Worker Insurance).
171. Isa Rachmatarwata, head of the Insurance Bureau at the Ministry of Finance, speaking to
the DPR Standing Committee IX, September 10, 2012, quoted in Siahaan, C. 2012. “The Migrant
Worker Insurance Program Has Many Weaknesses.” Inilah.com News, September 10, 2012. http://
ekonomi.inilah.com/read/detail/1903361/asuransi-tki-miliki-banyak-kelemahan.
172. World Bank & IFC Review of Migrant Worker Insurance.
173. MoM Regulation 1/2010, Article 1(3), adding a new Article 41A to MoM Regulation 7/2010
Concerning Insurance.
174. The exception to this is if the employer wishes to extend the worker’s contract after two years
have expired. In this case, the employer is responsible for paying the insurance premium. Ministry
of Labor Regulation 14/Men/X/2010, ss. 28–29.
175. It can result in one to five years in prison or a fine of between IDR one and five billion
(Article 103).
176. MoM Regulation 7/2010, Article 15.
177. MoM Regulation 7/2010, Article 16.
178. Ibid, Articles 16(4) and 16(5).
179. Proteksi Insurance Consortium. Standard Insurance Policy, Proteksi. http://asuransi.tki.car.
co.id/Polis%20Induk%20Asuransi%20Tenaga%20Kerja%20Indonesia%20-%2001.96910%20
-%20PROTEKSI%20TKI.pdf.
180. MoM Regulation 7/2010, Article 26(1).
178 NOTES
181. Ibid, Article 26(2).
182. Ibid, Article 26(4), as amended by MoM Regulation 1/2012.
183. Ibid, Article 27.
184. Bambang Sarjito, director of PT Gracia Media Utama Insurance, insurance broker for
migrant workers between 2006–2010, Jakarta, June 27, 2012.
185. Interview with Henry Prayitno, crisis center coordinator at BNP2TKI, Jakarta, June 25, 2012.
“Fine print” details that could be important for the worker to know are, for example, the 12-month
limit on making a claim from the time the loss occurred.
186. Commission IX. 2013. Recommendations of the Working Committee on the TKI Insurance
Consortium, Parliament of Indonesia, April 17, 2013 (citing BNP2TKI). http://politik.kompasiana.
com/2013/04/17/rekomendasi-panitia-kerja-konsorsium-asuransi-tki-komisi-ix-dpr-ri-551970.html.
187. Law Online. “Humphrey Djemat: A Lawyer Fighting for Migrant Workers.” http://www.
hukumonline.com/berita/baca/lt519241932d5b5/humphrey-djemat-br-mencetak-advokat-pejuangmelalui-tki.
188. Interview with Cahyo Subagyo, SBMI Brebes, Brebes, May 6, 2012.
189. Interview with Roma Hidayat, ADBMI Lotim, East Lombok, June 10, 2012.
190. BNP2TKI found that in 2010 14,854 claims were submitted and 8,124 were accepted, while
in 2011 15,874 claims were submitted and 8,269 were accepted. See BNP2TKI. 2012. Commission
IX Calls for the Dissolution of the Migrant Worker Insurance Consortium, June 19, 2012. http://
www.bnp2tki.go.id/berita-mainmenu-231/6852-komisi-ix-dpr-wacanakan-pembubaran-konsorsiumasuransi-proteksi-tki.html.
191. Commission IX. 2013. Recommendations of the Working Committee on the TKI Insurance
Consortium, Parliament of Indonesia, April 17, 2013. http://politik.kompasiana.com/2013/04/17/
rekomendasi-panitia-kerja-konsorsium-asuransi-tki-komisi-ix-dpr-ri-551970.html.
192. Interview with Nurharsono and Badriyah, Migrant Care, Jakarta, June 28, 2012.
193. Interview with Roma Hidayat, ADBMI Lotim, East Lombok, June 10, 2012.
194. This means that the law is codified and judges apply the law as it exists, rather than creating
new law. Precedent is persuasive but not binding. For an overview of the civil law system, see Apple,
J., and R. Deyling. 1995. A Primer on the Civil Law System. Washington, D.C.: Federal Judicial Center.
195. As an example, in 2010 recruitment agencies challenged in the Mahkmah Agung the Minister
of Manpower’s decision in 2010 (KEP – 209/MEN/IX/2010) to have only one insurance consortium.
The Mahkmah Agung held that the decision was not a “regulation” but a “determination” and
therefore was not within its jurisdiction. Mahkmah Agung Republik Indonesia, Decision 61/P/
HUM/2010.
196. Constitution of the Republic of Indonesia 1945, as amended, Article 24(2).
197. The constitutional court was an important addition to the system in the reformasi period. The
court is responsible for hearing all cases, at the first and final level, “in reviewing laws against the
constitution, determining disputes over the authority of state institutions whose powers are given
by this constitution, deciding over the dissolution of political parties, and deciding disputes over the
MIGRANT WORKERS’ ACCESS TO JUSTICE AT HOME: INDONESIA 179
results of general elections.” Constitution of the Republic of Indonesia 1945, as amended, article
24C.
198. These include religious affairs courts, dealing with family and probate matters for Muslims,
military tribunals, and state administrative courts.
199. See generally International Labour Organization. 2005. Major Labour Laws of Indonesia.
Jakarta: International Labour Organization. http://www.ilo.org/wcmsp5/groups/public/@asia/@
ro-bangkok/@ilo-jakarta/documents/publication/wcms_120126.pdf.
200. Responsibility for appointments to the courts was given to the independent Judicial Commission (Komisi Yudisial), with approval by the legislature (DPR). See the Judicial Commission of
the Republic of Indonesia website, “History of Establishment”: http://www.komisiyudisial.go.id/
statis-14-sejarah-pembentukan.html.
201. In addition to the creation of the Constitutional Court and an Ad Hoc Human Rights Court
for crimes against humanity, the legislature has shifted organizational, administrative, and financial responsibility for the lower courts away from the executive branch (the Department of Justice
and Human Rights, Department of Religious Affairs, and Department of Defense) to the Supreme
Court. See Law 4/2004 on Judicial Powers repealing Law 14/1974 as amended by Law No 35/1999.
202. Transparency International. Corruption by country 2010-2011 – Indonesia. http://www.
transparency.org/country#IDN_PublicOpinion.
203. See for example, Al Jazeera. 2012. “Indonesia’s Justice System,” Al Jazeera, March 1, 2012,
http://www.aljazeera.com/programmes/101east/2012/02/2012221142341411535.html.
204. The Indonesian Penal Code is based on the Dutch colonial criminal code of 1915, the Wetboek
van Strafrechtvoor Indonesia.
205. All of these codes set out the crime and the maximum penalty if found guilty, usually comprising a penal sentence and a fine.
206. For KUHP provision and regulations relevant to migrant workers, see generally Hamim, A.,
and R. Rosenberg. 2003. Review of Indonesian legislation. In Trafficking of Women and Children in
Indonesia, 195–215. Indonesia: International Catholic Migration Commission Indonesia.
207. The offense is now punishable by up to five years imprisonment or maximum IDR
500,000,000 (US$52,000) fine.
208. Law 6 of 2011 on Immigration, Articles 126 and 127. This law replaced the earlier Law 9
of 1992 and according to the explanation, is intended to bring Indonesia’s system into the third
millennium and the era of globalization of trade and labor, as well as to combat transnational
organized crime and the irregular movement of migrants.
209. Law 21/2007 on Combating Trafficking in Persons.
210. The trafficking offense carries a sentence of three to fifteen years. The same sentence applies
for sending a child abroad for the purpose of exploitation by any means (Law 21/2007, Article 6).
211. Interview with Nurharsono and Badriyah, Migrant Care, Jakarta, June 28, 2012.
212. The KUHAP, unlike the KUHP, was significantly updated by the Suharto regime in 1981,
replacing the earlier Dutch procedural law.
180 NOTES
213. Interview with Oscar Abdulrachman, Case-Handling Division of the Ministry of Manpower,
Jakarta, July 27, 2012.
214. Interview with Eddy Purwanto, legal advisor, TIFA Foundation, Jakarta, June 24, 2012.
215. Ibid.
216. Interview with Jihun, SBMI Indramayu, and Eddy Purwanto, legal advisor, TIFA Foundation,
Jakarta, June 24, 2012.
217. Interview with Roma Hidayat, ADBMI Lotim, East Lombok, June 10, 2012.
218. Interview with Oscar Abdulrachman, Case-Handling Division, and Berry Komarudzaman
SH, director of Overseas Manpower Placement, Ministry of Manpower, Jakarta, July 27, 2012.
219. The Civil Code in Indonesia was introduced by the Dutch in 1847 and is based on the Napoleonic civil code. Except for discrete sections that have been superseded by later legislation, such as
family law, mortgage law, and bankruptcy law, the Civil Code is still largely intact.
220. Interview with Pratiwi Febri, Jakarta Legal Aid, Jakarta, January 27, 2012.
221. In 2003, Presidential Decision 108/2003 specified the tasks of both embassies and consulates, including the provision of legal and material assistance to Indonesian citizens in distress.
Embassies are tasked with “representing and defending the interests of the nation, state and government” of Indonesia, as well as “protecting the citizens of Indonesia,” including through “guardianship, care, protection and legal and material assistance to Indonesian Nationals in the event of
threats and/or legal problems in the destination country.” Consulates have the same overall role for
defending the interests/Indonesia and Indonesians abroad.
222. Presidential Instruction 6/2006, Policy for the Reform of the System of Placement and
Protection for Indonesian Migrant Workers, August 2, 2006.
223. MoFA Regulation 4/2008 concerning Services to Citizens at Foreign Missions of the Republic of Indonesia; and Guideline on Providing Services to and Protection of Indonesian Citizens
Abroad.
224. MoM Regulation 12/2011 concerning Labour Attaches and Technical Labour Staff in Missions
of the Indonesian Government Abroad, 12/MEN/X/2011.
225. Ibid, Articles 7(e) and (f). Focus group participants who remembered contacting the embassy
were unclear as to whether they spoke to diplomatic or labor attaché staff, so in this section all are
described as simply “embassy staff.”
226. Government Regulation 3/2013 concerning Protection of Indonesian Migrant Workers
Abroad, January 2, 2013, Article 16.
227. Ibid, Article 25.
228. The Embassy in Saudi Arabia has also developed a comprehensive procedure for handling
cases in the Kingdom which it has made available on its website: http://www.kemlu.go.id/riyadh/
Pages/TipsOrIndonesiaGlanceDisplay.aspx?IDP=4&l=id.
229. MoFA Website. 2009. Pelayanan Perlindungan WNI & BHI [Citizen Services]. http://www.
kemlu.go.id/Pages/ServiceDisplay.aspx?IDP=1&l=id.
MIGRANT WORKERS’ ACCESS TO JUSTICE AT HOME: INDONESIA 181
230. MoFA Guideline on Providing Services to and Protection of Indonesian Citizens Abroad, p. 71.
231. Ibid.
232. Directorate of Citizen Services. 2011. “Migrant Workers between National Asset and National
Image.” Tabloid Diplomasi, September 15 –October 14, 2011, at p. 4.
233. Interview with Sri Palupi, Institute for ECOSOC Rights, Jakarta, January 27, 2012.
234. Interview with Tatang Boedi Utama Razak, director of Citizen Services, Ministry of Foreign
Affairs, Jakarta, June 26, 2012.
235. Female migrant worker, focus group, Malang, East Java, April 12, 2012.
236. Vienna Convention on Consular Relations, 1963, 21 U.S.T. 77, T.I.A.S. 6820, 596 U.N.T.S.
261.
237. Embassy of the Republic of Indonesia, Riyadh. 2011. KBRI Riyadh Kecam Pelaksanaan
Eksekusi Hukuman Mati Ruyati [“Indonesian Embassy in Riyadh Denounces Execution of Ruyati”].
Cabinet Secretariat of Indonesia Website, June 21, 2011. http://www.setkab.go.id/international2088-kbri-riyadh-kecam- -eksekusi-hukuman-mati-ruyati.html; and Hidayati, N. 2011. Kronologi
Pemancungan Ruyati [“Chronology of Beheading of Ruyati”]. Detik News, June 19, 2011. http://news.
detik.com/read/2011/06/19/124055/1663347/10/kronologi-pemancungan-ruyati.
238. Interview with Humphrey Djemat, spokesperson for the Task Force on Indonesian Citizens/
Migrant Workers Threatened with the Death Sentence Abroad, Jakarta, June 26, 2012.
239. Directorate of Citizen Services. 2011. “Migrant Workers between National Asset and National
Image.” Tabloid Diplomasi, September 15 –October 14, 2011, at p. 4.
240. Interview with Jamaluddin, civil society representative on the SATGAS TKI, Jakarta, January
28, 2012.
241. Ibid.
242. The description of the court given by Roma appears similar to an employment tribunal where
parties represent themselves and negotiate an outcome.
243. Directorate of Citizen Services. 2011. “Migrant Workers between National Asset and National
Image.” Tabloid Diplomasi, September 15 –October 14, 2011, at p. 4.
244. Saudi Gazette. 2012. “Jakarta Seeks ILO Cover for Its Domestic Workers.” February 26, 2012.
http://www.saudigazette.com.sa/index.cfm?method=home.regcon&contentid=20120226118340.
245. Interview with Irwan Rosadi and Made Bagus Surajaya, Recruitment Agency PT Abdillah
Putra Tamala, Jakarta, June 22, 2012.
246. Interview with Sukardi, Placement and Case-Handling Section, Manpower Office of Malang
District, East Java, April 18, 2012.
247. Interview with Nurharsono and Badriyah, Migrant Care, Jakarta, June 28, 2012.
248. Interview with Jihun SBMI Indramayu, Jakarta, June 24, 2012.
249. “Then the case will come to us. We will go to the agency and demand they release them or
we will report it to the police, but if we don’t accompany the worker she will have to pay. This is the
crazy situation in Indonesia.” Interview with Eddy Purwanto, TIFA Foundation, Jakarta, June 24,
2012.
182 NOTES
250. Interview with Eddy Purwanto, legal advisor, TIFA Foundation, Jakarta, June 24, 2012.
251. Interview with Office of Manpower, Sukabumi, June 28, 2012.
252. Interview with Mr Irwan Rosadi and Made Bagus Surajaya, Recruitment Agency PT Abdillah
Putra Tamala, Jakarta, June 22, 2012.
253. MoM Regulation 1/2012.
254. Interview with Mutmainah, Paguyuban Jinggo Putri, Malang, April 26, 2012.
255. Female migrant worker, focus group, Lombok Timor, June 10, 2012.
256. Law 16/2011 concerning Legal Aid, November 2, 2011.
257. Interview with Jamaluddin, civil society representative on the SATGAS TKI, Jakarta, January
28, 2012.
258. Interview with Pratiwi Febri, Jakarta Legal Aid, Jakarta, January 27, 2012.
259. Interview with Sukardi, Placement and Case-Handling Section, Manpower Office of Malang
District, East Java, April 18, 2012.
260. Interview with Eddy Purwanto, legal advisor, TIFA Foundation, Jakarta, June 24, 2012.
MIGRANT WORKERS’ ACCESS TO JUSTICE AT HOME: INDONESIA 183
Open Society Foundations
The Open Society Foundations work to build vibrant and tolerant democracies whose
governments are accountable to their citizens. Working with local communities in more
than 100 countries, the Open Society Foundations support justice and human rights,
freedom of expression, and access to public health and education.
www.soros.org
Migrant Worker Access to Justice Project
This report was produced by the Migrant Worker Access to Justice Project. The Project
examines and seeks to strengthen the legal frameworks that underpin low-wage labor
migration, so as to better protect the rights of migrant workers and ensure redress
for workers whose rights are violated. It is currently focused on the under-examined
role of countries of origin in ensuring justice for labor migrants and private sector
accountability, with a focus on the Asia-Middle East corridor.
The Migrant Worker Access to Justice Project is an applied research collaboration
between law professors at the University of New South Wales Law School and the
University of Pennsylvania Law School, who work closely with local partners in South
and South East Asia. It is led by Bassina Farbenblum (Director of the Australian Human
Rights Centre’s Migrant and Refugee Rights Project, and the Human Rights Clinic at
UNSW Law), Eleanor Taylor- Nicholson (Fellow of the Australian Human Rights Centre
at UNSW), and Sarah Paoletti (Director of the Transnational Legal Clinic, Penn Law
School).
www.migrantworkerjustice.org
International Migration Initiative
The International Migration Initiative (IMI) designs and supports initiatives to reform
the most abusive aspects of the migration process. The program organizes its work
around migration corridors, pursuing coordinated action in countries of origin, transit,
and destination. IMI seeks to achieve two specific goals: (1) that labor migration is a
safe, just, and non-exploitative process, and (2) that laws, policies, and practices do
not discriminate against migrants or violate their rights. To achieve these, IMI targets
employment practices and recruitment systems to improve labor protections, migration
enforcement policies to reduce rights violations by ensuring that immigration and
border controls comply with human rights norms, and governance structures to
establish systems that more effectively protect the rights of migrants. IMI draws on
the experience and activism of grassroots organizations while simultaneously and
vigorously engaging with policymakers and political leaders.
www.opensocietyfoundations.org/about/programs/international-migration-initiative
Tifa Foundation
Tifa Foundation is a grant-making organization that strives to build an open society by
actively strengthening civil society in Indonesia. Since 2012, Tifa has been dedicated to
advancing quality democracy in Indonesia. Tifa Foundation’s vision is a society in which
citizens, businesses and the government promote good governance, nurture solidarity
and support individual rights, particularly the rights and views of women, minorities,
and other disadvantaged groups. Tifa works to promote an open society in Indonesia,
one which respects diversity and honors the rule of law, justice, and equality.
www.tifafoundation.org
Each year, around half a million Indonesians travel abroad
to work, half of those to the Middle East. They are typically
women from small cities or villages with primary education
and limited work experience, hired to perform domestic work.
Many suffer abuse and exploitation but have virtually no
access to recourse within their host country’s legal system.
The vulnerability of migrant workers abroad makes it crucial
for them to be able to seek redress in their own countries.
Access to justice at home also allows for redress when home
governments and private recruitment businesses breach
their legal responsibilities to migrant workers.
Migrant Workers’ Access to Justice at Home: Indonesia is the
first comprehensive study of migrant workers’ access to
justice in their country of origin. The report analyses the
mechanisms through which migrant workers may access
justice in Indonesia, and the systemic barriers that prevent
most workers from receiving full redress for harms that they
suffer before, during, and after their work abroad.
The report also outlines the laws, policies, and procedures
that govern the operation of each redress mechanism, and
contains recommendations for improving access to justice
and private sector accountability in 11 key areas, addressed
to government, parliament, civil society, donors, and others.
Migrant Workers’ Access to Justice at Home: Indonesia provides
a strong evidence-based foundation for advocacy and law
reform within Indonesia and globally. It can also function
as a guide for civil society groups in Indonesia to better
understand, use, and test existing justice mechanisms to
enforce migrant workers’ rights.
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