Vol. 5, No. 12, December 2024
E-ISSN: 2723 - 6692
P-ISSN: 2723 - 6595
http://jiss.publikasiindonesia.id/
Journal of Indonesian Social Sciences, Vol. 5, No. 12, December 2024 3307
KEYWORDS
ABSTRACT
Non-permanent contracts;
legal protection; maternity
leave; human rights;
discrimination; Job Creation
Law
The absence of maternity leave for female workers in Fixed-Term
Employment Agreements (PKWT) in regionally-owned companies is
an important issue related to legal protection and human rights. This
study aims to examine legal protection and relevant regulations
based on Law No. 6 of 2023 on Job Creation, with specific objectives
to: 1) analyze the extent of compliance of regionally-owned
companies with labor laws concerning maternity leave; and 2)
identify and address the factors contributing to the non-
implementation of these rights. Using a normative juridical
approach, this study identifies discrimination against female
workers, who by nature require more protection in terms of
reproduction. The results show that the elimination of maternity
leave rights violates Article 153 paragraph (1) of Law Number 6 of
2023, which prohibits termination of employment for reasons of
pregnancy or childbirth. The Labor Law provides special rights such
as maternity leave to female workers. In conclusion, the company's
policy of eliminating this right is against the principle of non-
discrimination in human rights. It is recommended that companies
comply with labor regulations to ensure the welfare of female
workers.
Attribution-ShareAlike 4.0 International (CC BY-SA 4.0)
Introduction
The issue of women's labor protection has become a global concern, especially in the context of
gender-based discrimination in the work environment (Triana et al., 2019). The United Nations (UN)
through the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW)
emphasizes the importance of respecting women's reproductive rights, including the right to give
birth and obtain maternity leave. In Indonesia, although there are regulations that protect the rights
of women workers, such as Law Number 13 of 2003 concerning Manpower and Law Number 6 of
2023 concerning Job Creation, the implementation still faces many challenges. One of them is a
company policy that prohibits female workers with a Fixed-Term Employment Agreement (PKWT)
status from getting married or pregnant, under the pretext of unavailability of maternity leave for
Legal Protection for Workers in Fixed-Term Employment
Agreements (PKWT) in Regional-Owned Enterprises Regarding
the Absence of Maternity Leave: A Human Rights Perspective in
Relation to Law Number 6 of 2023 on Job Creation
Pepe Febianti, Ade Maman Suherman, Tri Setiady
Universitas Singaperbangsa Karawang, Indonesia
Correspondence: [email protected]
*
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them. This condition reflects the gap between regulations and practices in the field, which in turn
creates issues of injustice and human rights violations.
Factors that influence this problem include companies' lack of understanding of applicable
regulations, weak government supervision, and companies' prioritization of target achievement over
workers' welfare. In addition, a strong patriarchal culture also contributes to the lack of respect for
the rights of women workers. In the context of non-permanent contracts, workers are often placed in
a vulnerable position due to the temporary and flexible nature of the work agreement, so companies
feel no obligation to provide certain rights, such as maternity leave. Another factor is workers' lack of
knowledge about their rights, which makes them reluctant or unable to fight for these rights before
the company.
The impact of these factors is significant, both for workers and companies. For female workers,
these discriminatory policies can cause stress, emotional instability, and economic losses due to job
loss. In addition, violations of women's reproductive rights can affect their physical and mental health.
On the company side, such practices can damage the company's image and increase the risk of
lawsuits. Furthermore, at a macro level, such discriminatory policies can hamper the government's
efforts to achieve gender equality, which is one of the targets in the Sustainable Development Goals
(SDGs).
More specifically, this study highlights the Fixed-Term Employment Agreement (PKWT) as the
main variable in the analysis. PKWT, in accordance with Article 56 paragraph (1) of the Manpower
Law, is a work agreement between workers and employers that is temporary, with a duration
determined by the nature of the work. In this context, female workers on non-permanent contracts
often face major challenges in obtaining legal protection, including maternity leave. Law No. 6 of 2023
has provided legal protections for women workers, such as a prohibition on termination of
employment due to pregnancy. However, the interpretation and implementation of this law at the
company level is often not in line with the regulation's mandate.
This research offers novelty in the form of an in-depth analysis of the gap between regulation
and practice in protecting the rights of women workers in regionally-owned companies in Indonesia.
Most previous studies have mostly discussed the rights of women workers in general, without
considering the status of employment agreements that distinguish the treatment of permanent and
contract workers. This research also uses a normative juridical approach with a specific study on the
implementation of Law Number 6 Year 2023. Thus, this research is expected to provide a new
contribution in understanding the complexity of the implementation of labor regulations in
Indonesia.
The urgency of this research is very relevant considering that the protection of women workers'
rights is part of the state's responsibility to ensure the welfare of its people. Violations of women
workers' rights are not only detrimental to the individuals concerned, but also reflect weak law
enforcement in the labor sector. Furthermore, this issue has the potential to affect the
competitiveness of the Indonesian workforce as a whole, especially in an era of globalization that
demands fair and equal treatment in the workplace. Therefore, it is important to take a closer look at
existing regulations and how their implementation can be improved to create an inclusive and
women-friendly work environment.
This research aims to provide a clear picture of legal protection for female workers on non-
permanent contracts for maternity leave, with a focus on regionally-owned companies. In addition,
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this study also aims to identify factors that hinder the implementation of related regulations, and
provide recommendations that can be the basis for future policy improvements.
The benefits of this research are expected to be felt theoretically and practically. Theoretically,
this research can contribute to the development of legal science, especially in the field of labor law.
Practically, the results of this research are expected to be a reference for the government, companies,
and workers in understanding and implementing fair and equal employment regulations. Thus, this
research can be the first step towards the establishment of a more inclusive work environment, where
the rights of women workers are respected and protected in accordance with the mandate of the
constitution and law.
Research Methods
This research uses an analytical descriptive method with a normative juridical approach,
aiming to describe systematically and factually the legal protection of female workers in a Fixed-Term
Employment Agreement (PKWT) related to the absence of maternity leave, reviewed from Law
Number 6 of 2023 concerning Job Creation. The research data was obtained through a literature study
which included primary legal materials such as the 1945 Constitution of the Republic of Indonesia
and Law Number 39 of 1999 concerning Human Rights, secondary legal materials in the form of labor
law literature, and tertiary legal materials such as legal dictionaries and encyclopedias. Data
collection techniques are carried out through document analysis using the Content Analysis method,
which aims to identify the characteristics of relevant legal regulations, as well as interviews to obtain
direct information from sources who have related information. This research was conducted at the
Regional Library of Purwakarta Regency, with the main focus on evaluating the implementation of
labor regulations that provide protection for female workers in PKWT, in order to answer the
problem of discrimination of maternity leave rights in regionally-owned companies.
Results and Discussion
Legal protection of workers in a specific time work agreement (PKWT) for the absence of
maternity leave in regionally-owned companies in terms of human rights theory
The term law is often used in everyday life, which can be interpreted as a norm that applies or
is enforced in Indonesia. Law in Indonesia is a law that must exist in every work agreement, system
of norms or rules that apply in Indonesia. In addition, the law must not override the rights and
obligations of every citizen. Likewise, in work agreements, the law must not override the law. That is
why work agreements must not override the rights of workers.
Every person has the same rights and opportunities to obtain employment and a decent
livelihood without distinguishing ethnicity, religion, race or gender as guaranteed by the Constitution.
The provision of Article 27 paragraph 2 of the 1945 Constitution of the Republic of Indonesia
(hereinafter referred to as the 1945 Constitution) states that "Every Indonesian citizen has the right
to a decent job and livelihood." Based on the provisions of Article 27 paragraph 2 of the 1945
Constitution of the Republic of Indonesia, it shows that there is no discrimination of opportunities in
the right to obtain employment and the right to a decent livelihood for both men and women, but the
physical and psychological conditions between men and women are different. Physically, women
naturally have reproduction, including menstruation, pregnancy, childbirth and breastfeeding.
(Widanti & Putra, 2021).
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The word woman comes from 'empu', which means cherished. According to Mansour Fakih,
women are human beings who have reproductive organs such as the uterus and channels to give birth,
produce eggs, have a vagina and have breastfeeding tools. These tools are biologically attached to the
female sex which is a gift from God Almighty (Rismilda, 2023; Widanti & Putra, 2021). Based on this
nature, the right to reproduction for women workers is protected by the Constitution of the Republic
of Indonesia which states that health is part of human rights. Human rights have been contained in
the Constitution of the Republic of Indonesia, then elaborated in the reproductive rights of women
workers regulated in Law No. IX.
13 of 2003 concerning Manpower (hereinafter referred to as the Manpower Law), one of which
regulates maternity leave. The Manpower Law and Law No. 6 of 2023 on the Stipulation of
Government Regulation in Lieu of Law No. 2 of 2022 on Job Creation into Law (hereinafter referred
to as Law No. 6 of 2023) are legal provisions for the implementation of development in the labor
sector, which regulates the relationship between workers and employers, workers and workers, as
well as workers or employers and the government (Indira et al., 2023; Salem et al., 2021).
The relationship between the employer and the worker is an employment relationship because
in carrying out their work the worker is obliged to enter into an agreement with the employer in the
form of a work agreement. The work agreement contains provisions regarding work elements, wage
elements and order elements. A work agreement is a legal basis for workers in carrying out their
rights and obligations. The rights for female workers are certainly different compared to men, the
Labor Law provides special rights to women, for example, regulating the right to obtain maternity
leave, maternity leave and menstrual leave.
One case arises regarding the fulfillment of the rights of female workers who work in a
regionally-owned company, one of which is the right to maternity leave. A regionally-owned company
in Purwakarta Regency prohibits its female workers in the period of a specific time work agreement
(PKWT) to get married and become pregnant. The company is reluctant to take risks in achieving
targets so that workers are required to resign from the company. Resignation in labor relations is
something that is avoided by workers in general, especially for female workers, of course, it is very
detrimental to their rights, which naturally have reproductive organs. In addition, the difficulty of
getting a job makes some female workers delay marriage and having a baby.
Workers have a weaker/lower position than employers who are in a stronger position socio-
economically. If the relationship between the worker and the employer is left entirely to the parties,
then creating social justice in the field of labor will be difficult to achieve, because the strong party
will always want to control the weak party. For this reason, the government has gradually
participated in handling labor issues through various laws and regulations. (Husni, 2003).
In Indonesia, a Regional-Owned Enterprise (BUMD) (prior to 2014 called Perusahaan Daerah)
is a company owned by the local government and a legal entity created by the government to conduct
commercial activities on behalf of the provincial/district/city local government. BUMDs are
"organizations that have independent corporate status, led by a board of directors appointed by local
government officials with majority public ownership." (Guan et al., 2021; Voorn et al., 2017)
Regardless of the company, every employment agreement must be based on valid law. Because an
agreement is invalid if it is based on something that is not lawful.
If we connect it with the theory of human rights, Jimly Asshidiqqie expressed the opinion that
human rights are rights that are universally recognized as rights inherent in humans because of the
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nature and nature of human birth as humans, namely the rights to enjoy freedom from all forms of
slavery, oppression, deprivation, persecution or any other treatment that causes humans to be unable
to live properly as humans (Asshiddiqie, 2005; Setiawan, 2023).
The idea of human rights emerged along with the concept of natural rights theory armed with
the thought of natural law of Thomas Aquinas, Hugo de Groot and continued during the Renaissance,
John Locke through the thought of natural law until the revolution in England, the United States and
France in the 17th and 18th centuries. (Smith, 2008).
The idea of natural law stems from conservative forces that want to protect property property
which is a symbol of the existence of a system of life whose approach is based on theological and
secular views that see that existing laws are a manifestation or a phenomenon of a higher legal order
that should be obeyed.
This motive is recognized as a fundamental right of every individual in his life, but behind the
conservative nature of the idea of natural law, it contains a revolutionary motive, this is evident when
the idea of natural law on human equality is contained in legal documents compiled in America and
France which aim to protect human rights. (Cahyadi & Manullang, 2008)..
Arrangements for Workers in a Fixed-Term Employment Agreement (PKWT) for Maternity
Leave based on Law Number 6 of 2023 concerning Job Creation in regionally-owned
companies
Matlin in her book entitled The Psychology of Women states that Employed women are women
who work for wages (Nilakusmawati & Susilawati, 2012). This definition is the same as the definition
of workers according to the Manpower Law stipulated in Article 1 number 3, namely "Workers /
laborers are everyone who works by receiving wages or compensation in other forms." The
remuneration in other forms is in the form of goods or objects whose value is determined on the basis
of an agreement between the employer and the worker/laborer (Nur & Hajir Susanto, 2021;
Pujiastuti, 2008). Employers have the meaning of legal entities or individuals who run a business
either owned by themselves or together with other parties, with the aim of providing employment
and providing wages for this work. Employers and workers if they have an agreement regarding
rights and obligations will be regulated in a work agreement. A work agreement has elements of work,
wages and orders as stated in Article 1 number 15 of the Manpower Law, namely "Work relations are
relations between employers and workers / laborers based on work agreements, which have
elements of work, wages and orders." The employment relationship is based on a work agreement
between the employer and the worker, either an oral work agreement or a written work agreement.
In the valid terms of the agreement stipulated in Article 1320 of the Civil Code (hereinafter
referred to as the Civil Code) and the valid terms of the employment agreement according to Article
52 paragraph (1) of the Manpower Law. A work agreement is an agreement between an employee
and an employer orally and or in writing, either for a certain time or for an indefinite time, which
contains working conditions, rights and obligations of the parties. Work agreements for a certain
period of time must be made in writing (Pujiastuti, 2008). According to Article 56 paragraph (1) of
the Manpower Law, which has been amended by Law No. 6 of 2023, there are 2 types of work
agreements, namely specific time work agreements (PKWT) and indefinite time work agreements
(PKWTT). A specific time work agreement is a work agreement based on a period of time or the
completion of a certain job. Article 59 paragraph (1) of Law No. 6 of 2023 states that a specific time
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work agreement can only be made for certain jobs which, according to the type and nature or
activities of the work, will be completed within a certain time, namely as follows:
a) Work that is one-off or temporary in nature.
b) Work that is expected to be completed in a short period of time;
c) Seasonal work.
d) Work related to new/experimental/pilot products.
e) work that is irregular in type and nature or activity
The provision of Article 153 paragraph (1) of Law No. 6 Year 2023 states that employers are
prohibited from terminating employment to workers for the following reasons:
a) absent from work due to illness according to a doctor's certificate for a period not exceeding 12
(twelve) months continuously;
b) is unable to carry out his/her work due to fulfilling obligations to the state in accordance with
the provisions of laws and regulations;
c) practicing the worship that their religion commands;
d) get married;
e) pregnant, giving birth, miscarrying, or breastfeeding her baby;
f) have blood ties and/or marital ties with other Workers/Laborers in one Company;
g) establishing, becoming a member and/or management of a Trade Union/Labor Union,
Workers/Laborers conduct Trade Union/Labor Union activities outside of working hours, or
within working hours upon the agreement of the Employer, or based on the provisions
stipulated in the Work Agreement, Company Regulation, or Collective Bargaining Agreement;
h) report the Employer to the authorities regarding the Employer's actions that commit criminal
offenses;
i) different ideology, religion, political sect, ethnicity, color, class, gender, physical condition, or
marital status; and
j) in a state of permanent disability, illness due to work accident, or illness due to employment
relationship which according to a doctor's certificate whose recovery period cannot be
ascertained.
If we observe the provisions of Article 153 paragraph (1) letter e of Law No. 6 Year, the
company's decision not to allow its workers to marry and conceive is not in accordance with what is
mandated by the law, because female workers have the right to reproduction, namely to give birth.
Even this does not cause workers to lose their jobs.
Conclusion
Based on the description of the discussion carried out above, it is concluded that legal
protection for female workers who do not get maternity leave by companies in the Manpower Law
and Law No. 6 of 2023 is not justified. The Manpower Law regulates the right to obtain maternity
leave which is regulated in Article 82 of the Manpower Law. Therefore, workers under a specific time
agreement are allowed to marry and conceive. Because in the provisions of Article 153 paragraph (1)
of Law No. 6 of 2023 states that companies are prohibited from terminating employment to workers
on the grounds of pregnancy, childbirth, pregnancy loss, or breastfeeding their babies. If the company
unilaterally terminates employment due to female workers taking maternity leave, the termination
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of employment carried out for the reasons mentioned above is null and void and the company is
obliged to reinstate the worker concerned. Therefore, the prohibition of marriage and pregnancy does
not have an impact on the dismissal of a worker.
It is key that companies or employers are required to comply with the regulations stated in the
labor law regarding women's leave for pregnancy and childbirth. This means that female workers
have the right to obtain leave as stipulated by law for purposes such as childbirth, childcare, or other
health needs. Companies/employers must ensure that this right is fulfilled and not discriminate
against women workers/laborers. It also means that there are no rules prohibiting workers from
getting married or having a baby. Companies/employers do have to comply with labor regulations
governing the leave rights of pregnant women workers in accordance with applicable laws. This is
important to ensure the protection and welfare of female workers during pregnancy and childbirth.
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