Showing posts with label labor. Show all posts
Showing posts with label labor. Show all posts
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The Insider’s Threat to Business (Australian Government)

Sunday, December 12, 2010

 

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In the wake of wikileaks, the Australian government recently issued a booklet titled “The Insider’s Threat to Business: A Personnel Security Handbook”. The booklet elaborate precautionary approaches that a business organization may employ in order to prevent the leak of confidential business information.

 

One of the legal method to prevent leaks (this is not explained in the booklet) is through the signing of employee confidentiality agreement. My research however indicates that the power of confidentiality agreements differs across jurisdiction. In the common law jurisdiction, confidentiality carries more weight due to the operation of obligation of confidence under the English equity law. The obligation of confidence protect the imparting of information in a ‘trust’ environment, such as between a doctor and its patient, or between a employer and employee. As such, the obligation may be enforced irrespective of agreement.

 

This is not the situation in continental legal system. I have yet to find any obligation to keep secret, independently of an agreement. Hence, an employee signing confidentiality agreement in a continental jurisdiction will be bound only to the extent of the agreement. When he decide to disclose the information one day, it would amount simply to a breach of (an employment) contract.


Determination of access level and the use of Digital Rights Management are therefore the most appropriate precaution. You will find some details about this in the booklet.



 

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Company Law to be Judicially Reviewed

Sunday, August 19, 2007

Still an unconfirmed news (will be confirmed if they log their case on the Court's registrar). Chairman of Apindo Sofjan Wanandi planned to submit a Judicial Review of the newly enacted Company Law to the Constitutional Court. He argued (link in Bahasa) that the Merger Rules on the new law -- which obligates companies to announce its merger decision prior to general meeting of shareholders-- was unfair.

I still don't know how it can violate the Constitution. Article 33 of the Constitution expressed that the economy is built upon a 'common endeavour' based on familial principles. I suppose, the families here could mean the workers too.

 

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Labor Strike Procedure in Indonesia

Saturday, January 20, 2007

In essence, every dispute arising out of Industrial Relation must be settled through deliberation of the involved parties. In this regard, prior to conducting a strike, a negotitation among Labor Union and the Company is mandatory. For the purpose of legal-evidentiary formalities, a sealed notes of meeting of the above negotiation process signed by authorized representative of the Labor Union and authorized representative of the company (if it is a limited liability company, then it shall be signed by members of the board of director or any one authorized to negotiate under a proxy signed by one of the company’s Board of Directors) shall be prepared. Only after the negotiation failed can the labors perform its right to strike.

Labors can perform their right to strike without getting through a process of negotiation. This can only be performed however, if the company refuses to negotiate. Decision of the Labor Minister, Kepmenakertrans No. KEP. 232/MEN/2003 Year 2003 on the Consequences of Illegal Strike (“Kepmenakertrans”) obligated workers to request the employer to enter into negotiation, at least 2 (twice) within 14 days. It would be important for the Labor Union to accept receipt from the employer that such notification has been given to the employers.

If the company refuses to negotiate after being properly notified as explained in the above paragraph or if the nagotiation have taken place but no resolution is achieved, Labors can perform their right to strike. Performance on the right to strike must comply with prevailing regulations, otherwise it can be categorized as an “illegal strike”.

At least within 7 (seven) business days prior to the strike, labor or its union must notify in written, the company and local ministry of manpower (labor dispute resolution institution should also be notified, and presumably, the police too). The ministry of manpower is obligated to give receipt of such notification under the law.

The notification must contain at least (a) timing (day, date, and hours) where the strike begins and will end, (b) the place where the strike will be held, (c) reasons and causes of the strike; and (d) signature of the chairman and secretary and/or each of chairmans and secretaries of the labor union responsible for the strike. If the strike is not performed in such procedure, the employer may take temporary action in secyring its company and its production facility by (a) prohibiting the labors striking at its production site or, (b) if necessary prohibits the strike to be held in the company’s locations. (Article 140 Law No. 13 Year 2003 on Labor, “Labor Law”).

In giving the notification to the ministry of manpower, Labor or the Labor union must enclose (1) notes of meeting signed by authorized representative of the company and authorized representative of the Labor Union, (2) a notification of strike to the employer and a receipt from the employer indicating that such notification has been accepted. All receipt and notifications must be signed by authorized parties.

In cases where no negotiation is possible, the enclosure must contain a letter of requesting negotiation to the employer and its receipt, and the letter notifying a strike with its receipt. As the law obligates the ministry of manpower to give receipt in return of those notifications, it would be better tomake sure that in the receipt, the ministry of manpower has clarified that the strike procedure has been fulfilled by the labors, in accordance with Article 140 of the Labor Law.

Legal Protection on The Right to Strike

The Law guarantee the right of labors to perform the Strike. Article 143 of the Labor Law stated that no one shall impede the labor and labor union to use its right to strike and no one shall be permitted to arrest labors which perform strike that are peaceful and in accordance to the prevailing regulations. Elucidation of Article 143 of the Labor Law gives examples that giving punishment, intimidating in any of its forms and determining work mutations to the labor is an example of “impeding the right to strike”.

In addition to that, Article 144 of the Labor Law forbids employer to replace the striking worker with another labor from outside the company or to give sanctions or any other form of retaliatory action to labors or the labor unions as a result of the strike. It needs to be underlined that the protection given by Article 144 will only be applied toward strikes that are in accordance with the procedure. In practice, the “evidence” that a certain strike has complied with prevailing regulations are:
  1. Signed notes of meeting between labor union and the employer, if no negotiation is possible, then the receipt of letter requesting for negotiation
  2. Receipt of strike notification from the local ministry of manpower alltogether with a statement that the strike preparation has fulfilled Article 140 of the Labor Law
  3. Receipt of strike notification from the company

Legal Consequences of Strikes

If a strike is not performed in regards to the prevailing regulation, then it can be deemed as an “illegal strike”. Article 16 of the Kepmenakertrans stated that illegal strike may count as absence from work. The company must call upon the labors – properly through a written notification -- twice in a seven days period. If such proper notification has been conducted, workers which are ignorant to the notification will be deemed to resign from its employment.

Toward a strike which are not caused by normative problems (problems caused by non fulfillment of certain provision in a regulation) the company may refuse to give payment to labors. Company may perform lock-out as a consequence of the strike but this must also be conducted in regards to prevailing regulations.





Disclaimer:

This article is not intended as a legal opinion.

Click here for a link to the Labor Law