Unpaid Leave in Times of Pandemic of Covid-19
The Corona Virus 19 (Covid-19) pandemic does not only impacts on public health, but it also has a major impact on the Indonesian economy, both micro and macro. In the midst of the economic hardship that hit, many companies have chose to ask their workers to take unpaid leave (unpaid leave) with the aim of reducing costs and expenses. This is experienced by many workers, especially workers who work in the hotel, tourism and restaurant sectors. Then, what are the actual rules or legal basis for unpaid leave?
Article 93 paragraph 1 of Law Number 13 Year 2003 concerning Manpower (“Law of Manpower”) explains that no wages will be paid if workers/laborers do not perform work, while Article 93 paragraph 2 stipulates that the provisions referred to in paragraph (1) do not applies, and entrepreneurs are required to pay wages if:
- Workers/laborers are sick so they could not perform work;
- Female workers/laborers who are sick on the first and second day of their menstrual period so that they could not perform work;
- A worker/laborer does not come to work because of the worker/laborer gets married, marry off their children, circumcised, child baptism, the wife gave birth or had a miscarriage, her husband or his wife or child or son-in-law or parents or parents-in-law or family members in one house pass away;
- Workers/laborers could not perform their work because they are carrying out their obligations to the state;
- Workers/laborers could not perform their work because they carry out worship that is ordered by their religion;
- Workers/laborers are willing to perform the work that has been promised but the entrepreneur does not employ them, either because of his own fault or obstruction that the entrepreneur could have avoided;
- Workers/laborers carry out their right to rest;
- Workers/laborers carry out trade union/labor union duties with the consent of the entrepreneur; and
- Workers/laborers carry out educational tasks from the company.
Furthermore, in the elucidation of Article 93 paragraph (1), it is explained that this provision is a principle that basically applies to all workers/laborers, except if the worker/laborer concerned is unable to perform the work not because of his/her fault. This is clearly different from the situation that is happening nowadays, where the company is the one that forces its workers to take unpaid leave and does not pay the worker wages. Here it is clear that the worker did not perform his/her job not because of his fault and/or desire, but because he was forced by the company where he worked.
Then, how to justify the unpaid leave scheme carried out by these companies? There is an agreement between the two parties, this is what justifies this practice which is still being carried out in masse in this pandemic era, where workers have no choice and finally agree to the unpaid leave scheme. This is still considered better than being fired from the company and completely losing their income.
The government through the Circular Letter issued by the Minister of Manpower Number M/3/HK.04/III/2020 concerning Protection of Workers/Laborers and Business Continuity in the Context of Preventing and Overcoming Covid-19 stipulates that for companies that limit their business activities due to government policies in their respective regions respectively for the purpose of preventing and overcoming Covid-19, resulting part or all of their workers/laborers absent for work, considering, the continuity of the business, then the changes in the amount and payment methods of wages for workers/laborers are carried out according to the agreement between the entrepreneur and the worker/laborer.
Suria Nataadmadja & Associates Law Firm
Advocates & Legal Consultants