Basic Legal Study On Workplace Health And Safety Protection In Indonesia

Vol. 6, 2020A new decade for social changeswww.techniumscience.com9772668779000ISSN 2668-7798

Basic Legal Study On Workplace Health And Safety

Protection In Indonesia

Parningotan Malau

Faculty of Law, Universitas Putera Batam, Indonesia

Doktormalau2019@gmail.com

Abstract. This study aims to examine the legal history and the concretization of the value of

Pancasila as a legal basis in protecting the occupational safety and health of workers in

Indonesia. The research method used in this study is a type of normative research using the

Statute Approach. The analysis technique in this study was carried out in a descriptive way to

describe the legal conditions and protection of workers in Indonesia. The results of this study

indicate that the birth of labor law in Indonesia is based on a long history of labor suffering due

to slavery, forced cultivation, slavery to forced labor, not vice versa because employers

corporations are persecuted by the treatment of workers and employers. National labor law,

specifically the Work Safety Health Act, must be able to position workers as independent legal

subjects, not arbitrarily controlled by other legal subjects, be treated humanely in accordance

with their dignity and status, and obtain justice as a weak party. In addition, to avoid

discrimination, it must show the principle of unity in work relations, between employers and

workers in corporations, or broader unity in industrial relations, namely between employers'

organizations, labor organizations, and government

Keywords. Law, Labor, Occupational Health Safety

Introduction

Article 27 paragraph (3) of the 1945 Constitution of the Republic of Indonesia Third

Amendment states that "the State of Indonesia is a state of law". The inclusion of this

provision in the Body of the 1945 Constitution of the Republic of Indonesia shows the

growing commitment of a country, that the Indonesian state must be a state of law, precisely

the state of Pancasila. All applicable laws (ius constititum) and those that will apply (ius

constituendum) must be a derivation of the values of the Pancasila as the source of all sources

of law (Winarno, 2011).

Pancasila as a national personality law is the result of the noble agreement of the

Indonesian people so that it becomes a basic norm (grundnorm) (Indrati,2007). Pancasila has

a variety of positions and functions, each of which is understood in accordance with the

context of the process of objectively forming Pancasila. All positions and functions of the

Pancasila do not stand alone, but if grouped they will return to the two positions and functions

of the Pancasila, namely "as the basis of state philosophy" (philosofische grondslag) and "as a

view of the life of the nation" (as views of life of nation) (Kaelan,2013).

Before continuing the explanation of the concept of the rule of law Pancasila, it is worth

exploring the initial formulation of the rule of law idea itself, and alluding as necessary

regarding the two concepts of the rule of law that are widely known (Nasional,2008).

An understanding of the rule of law already exists in ancient Greek literature. Plato in

the 4th century BC in his book entitled Nomoi formulated, "the implementation of good

governance governed by law". By his student Aristotle, in the book Politica made a formula,

"a good state is a country governed by the constitution and fair justice". Humans decide be a

good society and moral, so that makes it be fair. When this situation materializes, what is

called the rule of law is created (Busro,1983).

Technium Social Sciences Journal

Vol. 6, 88-100, April 2020

ISSN: 2668-7798

www.techniumscience.com

Moh. Kusnardi and Harmaily Ibrahim explained Aristotle's formula. Initially arising

from the policy (state) is small and has a small population, all state affairs are carried out by

deliberation (ecclesia), where all citizens participate in the affairs of organizing the country. A

rule of law is a statue that stands on a law that guarantees justice to its citizens. Justice is an

absolute requirement for achieving happiness in life for its citizens (Ibrahim, 1983). It is not

the real people who rule the country, but a fair mind, whereas the real authority is only the

holder of law and balance.

Immanuel Kant first formulated the idea of a rule of law in the form of theory in

continental European countries. The initial idea of the ideals of the law was aimed at opposing

the power of "absolutism" the power of kings, aristocrats or groups, therefore in the process of

its development rechtsstaat had more revolutionary characteristics. Kant formulated his

theory, that a state can only be called a rule of law if it has the characteristic of "the protection

of human rights (HAM)", so the concept of the rule of law (rechtsstaat) was born, although

initially, the rule of law meant "the state of night watchman" (nachtwachterstaat) or "police

state" (I'etat gendarme) (Erwin,2011).

In the middle of the 20th century, the understanding of the rule of law shifted, the state

must be responsible for the welfare of its people. The state (also Indonesia) is not only a night

watchman (nachtwachterstaat) but must actively carry out efforts to realize the welfare of its

people (workers/laborers). Thought of the rule of law which is influenced by liberalism then

shifts / develops towards the welfare state (welfarestaat) which seeks the creation of people's

welfare. Julius Stahl also placed guarantees on the protection of human rights as a feature or

element of the welfare state (Padmo, 1989).

The rule of law, the concept of the Anglo Saxon rule of law which developed in Britain

and the United States. Albert Venn Dicey in "Introduction to the law of the constitution",

introduces the term the rule of law (simply defined, "legal order"). The fundamental element

of government whose authority under the law (rule of law) is the guarantee of human rights

by law and court decisions (due process of law). Kaelan and Achmad Zubaidi are of the

opinion that community movements that want the power of the king and state administrators

must be limited and regulated through statutory regulation. Implementation in relation to all

the regulations of the Invitation is often termed the rule of law. Said by Hadjon, the rule of

law has an evolutionary characteristic.

Friedman argues, between the notion of the rule of law or rechtsstaat and rule of law

complement each other, and are difficult to separate. Some describe the notion of the rule of

law and the rule of law almost the same, but there are also opinions although the rule of law

and rule of law are inseparable but have their respective emphases (Friedman ,1960).

For example, criminal politics (criminal policy) to tackle crime is as an effort to

provide welfare laborers through strict protection of K3 workers / laborers in the workplace,

including by regulating their socio-economic life. This new idea is known as welvaartstaat,

verzorgingsstaat, welfare state, social service state, or state of material law. Then it becomes

raison d'etre, revising or supplementing Dicey's thoughts about the formal state (Zubaidi

,1962). Protection of basic rights (work rights) in the workplace (workplace) that is weak

socio-economically, the state must actively provide justice above the pleasures of stronger and

more powerful parties (entrepreneurs / limited liability companies). The concept of OSH

protection Workers in the workplace must be derived from or guided by the concept of the

Pancasila rule of law. That is, the concept of OSH protection of workers/laborers must be

realized on the elements of communal, religious and family.

In work relations, the social, economic and psychological position of workers is far

below that of employers, therefore workers' welfare must be fulfilled in line with national

Technium Social Sciences Journal

Vol. 6, 88-100, April 2020

ISSN: 2668-7798

www.techniumscience.com

development goals, in the Fourth Paragraph of the Opening of the 1945 Constitution of the

Republic of Indonesia (Undang-Undang Dasar Negara Republik Indonesia Tahun 1945 n.d.).

The desire and determination of the state for the welfare of society (workers) must be in line

and implemented in the protection of the basic rights (basic rights, human rights) of workers

in the workplace, in terms of K3 protection of laborers in the workplace. The state, by

recalling the historical and teleological factors of national labor law, then through legislation

(the policy formulation of the corporate criminal liability system in the UUKK) should be

able to provide justice (welfare) to workers. The UUKK must play a role in safeguarding the

functioning of the social system for workers in their weak position over the

corporation/entrepreneur who gains and enjoys business activities.

Methodology

As a legal science, the type of research used in this study is legal research (legal

research, rechtsonderzoek), often called normative legal research or normative juridical

(normative juridical) which is prescriptive, namely, what should be, which should be (should /

ought), the ideal, which is justly done to find the truth of coherence. Normative legal research

puts the law as a norm system regarding principles, norms, rules of law, court decisions,

agreements and doctrines (Marzuki,2010).

The object of legal research studies (ondrezoek-research) is the law which is

conceptualized as a norm or rule, that is legislation. So, essentially normative research is

research that studies and analyzes the legal norms set out in the rules set by the authorities. If

you see the law as a system of abstract regulations, then Satjipto Rahardjo holds the focus on

the law as an institution truly autonomous and the consequence is the use of normative

methods, or so-called normative analytics (Nurbani ,2013). The primary legal material in this

study is legislation, court decisions and jurisprudence that have permanent legal force

(incracht van gewijsde) regarding work accident cases incorporate workplaces which are

concretizations (law in action) of legislation, and Draft Law Number 1 of 1970 along with

official records or minutes during the process of making both the government and the DPRGR

at that time. in making legislation. The legislation that will be reviewed, among others:

Basic Laws (grondwet, grundgesetz) that have been in effect in Indonesia, starting from

the 1945 Constitution, the United Republic of Indonesia Constitution (RIS) 1949, the

Provisional Constitution (UUDS) 1950, up to The current constitution, namely the 1945

Constitution of the Republic of Indonesia (URI NRI);

Labor/employment laws that have been in effect in Indonesia, starting with Law

Number 12 of 1948 (Work Law of 1948), jo. Law Number 1 of 1951 concerning the

Statement of the Enactment of the Employment Act of 1948 Number 12 of the Republic of

Indonesia for all of Indonesia (State Gazette of the Republic of Indonesia of 1951 Number 2),

Law Number 14 of 1969 concerning Basic Provisions concerning Labor (State Gazette of the

Republic of Indonesia Year 1969 Number 55, Supplement to the State Gazette of the Republic

of Indonesia Number 2912), up to the current law, namely Law Number 13 of 2003

concerning Labor (State Gazette of the Republic of Indonesia of 2003 Number 39,

Supplement State Gazette of the Republic of Indonesia Number 4279), in lieu of Law Number

14 of 1969;

While the secondary legal material in this study is secondary legal materials in the form

of all publications about the law that are not official documents. Publications on law include

textbooks, legal journals, legal papers, lecture materials or legal lectures which have been

published, written interview results relevant to the research topic, legal dictionaries, as well as

comments on court decisions on non-legal material (Triwulan,2014). Researchers also use

Technium Social Sciences Journal

Vol. 6, 88-100, April 2020

ISSN: 2668-7798

www.techniumscience.com

non-legal materials, can be about books on political science, economics, sociology,

philosophy, culture or non-legal research reports and non-legal journals insofar as they have

relevance to the topic of this research.

Discussion

Concretization of Pancasila Values in Labor Protection

Basically, the birth of labor law in Indonesia, especially related to the protection of workers in

work relations, one of the most important parts is the protection of workers' K3 against the

background of the dark and long history of the Indonesian people both as slaves or laborers by

the practice of slavery, stretching (horigheid, perhorigheid) / forced cultivation

(cultuurstelsel), servitude (pandelingschap), forced labor (rodi) / pancen, poenale sanctie,

romusya, kinrohosyi, and fujingkau or iugun yanfu from the Dutch occupation to the Japanese

occupation.

The sadistic, barbaric, and beyond humanitarian treatment carried out both by the Dutch

East Indies authorities to the people (slaves / laborers) as well as by employers/entrepreneurs

or corporations (by the VOC trade alliance and plantation companies) to the workers.

Slaves/laborers are exploited, controlled, treated arbitrarily, trampled on their dignity and so

they do not have the right to live on their lives. Workers are extorted without wages or with

relatively small wages, often without food, without rest, and without paying attention to their

safety and health (K3).

Thus, the nature of the birth of labor law in Indonesia is due to a long history of

suffering from slaves / laborers due to slavery, bondage (horigheid, perhorigheid) / forced

cultivation (cultuurstelsel), slavery (pandelingschap), forced labor (rodi) / pancen, poenale

sanctie, romusya, kinrohosyi, and fujingkau or iugun yanfu, not vice versa because the

employer or the entrepreneur/ corporation is persecuted by the treatment of

workers/employers and entrepreneurs. Precisely at the time, the 'VOC (Vereenigde

Oostindische Compagnie) and plantation companies in the Dutch East Indies era received

various facilities and facilities from the authorities. The VOC, for example, was a special

trade union alliance because it was supported by the state and given special facilities. The

VOC may have an army and may negotiate with other countries. It can be said that VOC is a

state within a state. Something ironic, behind all these special facilities, the VOC and the

plantation companies are detached from corporate criminal responsibility in labor protection

(K3).

In the days of the poenale sanctie, criminal provisions were only directed at workers,

while the employer/entrepreneur or corporation (VOC trade union and plantation companies)

was not touched by Koeli Ordonantie 1880 (Stb.111 1880). Labor law at that time was served

with the Dutch East Indies law which was very contrary to the philosophical values of

Pancasila. In Rawls's opinion, the law must be a role model so that people can take a position

while paying attention to the interests of their individual (Shidarta,2008).

After the birth of the Pancasila on June 1,1945 or more precisely after the Proclamation, then

as an independent and sovereign state of labor life, it must be in harmony with the Pancasila

as a view of life. Exploring and exploring the noble values of Pancasila is something very

principle because these values become an important aspect of the need for OSH protection of

workers/laborers in the workplace.

However, Pancasila as the philosophy of life of the Indonesian people was not only

valid since the proclamation, but long before that was in the days of the previous ancestors.

All activities are carried out on the basis of humanity and justice, by always upholding the

name of God. All problems related to people's lives are resolved on the basis of deliberation.

Technium Social Sciences Journal

Vol. 6, 88-100, April 2020

ISSN: 2668-7798

Basic Legal Study On Workplace Health And Safety Protection In Indonesia

This study aims to examine the legal history and the concretization of the value of Pancasila as a legal basis in protecting the occupational safety and health of workers in Indonesia.

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