Ada Pertanyaan? Hubungi Kami 
Ada Pertanyaan? Hubungi Kami Ady TD Achmad, IGAP Trisnajaya
The Industrial Relations Court (Court) held a preliminary hearing for a case between Luis Pereira, an Indonesian citizen, against the Brazilian Embassy (Embassy), Monday (28/1).
Luis Pereira filed a claim in September 2011, in order to resolve his dispute with the Embassy, where he worked as a technician since 2006. Luis claimed that the Embassy breached the Law No. 13 of 2003 on Labor by terminating his employment in 2011 without solid grounds or proper compensation.
Based on the Law, Luis is entitled to two months salary and severance pay. Luis also claimed that the Embassy failed to pay his salary since September 2011, thus violating employer’s obligation under Article 155 of the Labor Law.
The article stipulates that before the court has decided on an industrial relations dispute, both employer and employee must continue with their obligations as stated in the employment contract. Luis then asked the Brazilian Embassy to pay compensation of more than Rp 500 million.
Joshua L. Siahaan, Luis’ advocate, explained to hukumonline that even though the Labor Law only applies to Indonesian employers and employees, Luis and the Embassy have mutually agreed to comply with the prevailing Indonesian laws in their second employment contract—signed on 1 December 2009.
“The Brazilian Embassy should comply with Indonesian laws,” stated Joshua.
Meanwhile, Hariveno Harmaily, advocate for the Brazilian Embassy, argued that the Court is not competent to hear the case.
Hariveno argued that the Embassy has a diplomatic immunity pursuant to the Vienna Convention on Diplomatic Relations 1961 (Vienna Convention 1961).
Thus, the Brazilian Embassy is not bound by the Labor Law. He also stated that Brazilian law should prevail because the Brazilian Embassy is on Brazilian territory.
However, the Court rejected Hariveno’s arguments during the preliminary hearing that the Court is not competent to hear the case.
When contacted by hukumonline on Tuesday (29/1), Yogo Pamungkas, law lecturer at University of Trisakti, commented that the Brazilian Embassy is bound by Indonesian laws.
Yogo said that diplomatic immunity under Vienna Convention 1961, only applies to diplomatic relations only, while industrial relations between employers and employees are not diplomatic relations.
“It is clear that in industrial relations, [the Brazilian Embassy] must obey the Law,” stated Yogo.
Hikmahanto Juwana, International Law expert at University of Indonesia, explained to hukumonline on Tuesday (29/1) that in the industrial relations cases, Indonesian laws must prevail and that diplomatic immunity stipulated in the Vienna Convention 1961 is not absolute.
Industrial relations between the Embassy and Indonesian citizens are entirely private law matters. When disputes arise, the Law must be in force. “Indonesian Law on Manpower is a mandatory law,” Hikmahanto asserted.
When deciding on the prevailing law in the case, Hikmahanto said that choice of law in the employment contract is also important to note. However, he concluded that the Labor Law will prevail as a mandatory law.
(jt/hot)
Ady TD Achmad, IGAP Trisnajaya
The Industrial Relations Court (Court) held a preliminary hearing for a case between Luis Pereira, an Indonesian citizen, against the Brazilian Embassy (Embassy), Monday (28/1).
Luis Pereira filed a claim in September 2011, in order to resolve his dispute with the Embassy, where he worked as a technician since 2006. Luis claimed that the Embassy breached the Law No. 13 of 2003 on Labor by terminating his employment in 2011 without solid grounds or proper compensation.
Based on the Law, Luis is entitled to two months salary and severance pay. Luis also claimed that the Embassy failed to pay his salary since September 2011, thus violating employer’s obligation under Article 155 of the Labor Law.
The article stipulates that before the court has decided on an industrial relations dispute, both employer and employee must continue with their obligations as stated in the employment contract. Luis then asked the Brazilian Embassy to pay compensation of more than Rp 500 million.
Joshua L. Siahaan, Luis’ advocate, explained to hukumonline that even though the Labor Law only applies to Indonesian employers and employees, Luis and the Embassy have mutually agreed to comply with the prevailing Indonesian laws in their second employment contract—signed on 1 December 2009.
“The Brazilian Embassy should comply with Indonesian laws,” stated Joshua.
Meanwhile, Hariveno Harmaily, advocate for the Brazilian Embassy, argued that the Court is not competent to hear the case.
Hariveno argued that the Embassy has a diplomatic immunity pursuant to the Vienna Convention on Diplomatic Relations 1961 (Vienna Convention 1961).
Thus, the Brazilian Embassy is not bound by the Labor Law. He also stated that Brazilian law should prevail because the Brazilian Embassy is on Brazilian territory.
However, the Court rejected Hariveno’s arguments during the preliminary hearing that the Court is not competent to hear the case.
When contacted by hukumonline on Tuesday (29/1), Yogo Pamungkas, law lecturer at University of Trisakti, commented that the Brazilian Embassy is bound by Indonesian laws.
Yogo said that diplomatic immunity under Vienna Convention 1961, only applies to diplomatic relations only, while industrial relations between employers and employees are not diplomatic relations.
“It is clear that in industrial relations, [the Brazilian Embassy] must obey the Law,” stated Yogo.
Hikmahanto Juwana, International Law expert at University of Indonesia, explained to hukumonline on Tuesday (29/1) that in the industrial relations cases, Indonesian laws must prevail and that diplomatic immunity stipulated in the Vienna Convention 1961 is not absolute.
Industrial relations between the Embassy and Indonesian citizens are entirely private law matters. When disputes arise, the Law must be in force. “Indonesian Law on Manpower is a mandatory law,” Hikmahanto asserted.
When deciding on the prevailing law in the case, Hikmahanto said that choice of law in the employment contract is also important to note. However, he concluded that the Labor Law will prevail as a mandatory law.
(jt/hot)