International Journal of Civil Engineering and Technology (IJCIET)
Volume 10, Issue 1, January 2019, pp.444–450, Article ID: IJCIET_10_01_041
Available online at http://www.iaeme.com/IJCIET/issues.asp?JType=IJCIET&VType=10&IType=1
ISSN Print: 0976-6308 and ISSN Online: 0976-6316
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LEGAL POLICY IN PROTECTION FOR
INDONESIAN SEAFARERS
Adnan Hamid
Faculty of Law, Universitas Pancasila, Jakarta, Indonesia
ABSTRACT
Indonesia as a state of law, which is based on Pancasila and the 1945 Constitution
of the Republic of Indonesia, has a goal to improve welfare for its people wherever
they are. Therefore, it is the duty of the State to protect its citizens who work both
formally and who work informally, both those who work domestically and those who
work abroad. Law No. 18 of 2017 concerning the Protection of Indonesian Migrant
Workers who replaced Law No. 39 of 2004 concerning the Placement and Protection
of Indonesian Migrant Workers is a form of general protection for all Indonesian
workers who work overseas or who are known as Workers Migrants, including sailors
and seafarers. However, the form of protection against seafarers of Indonesian crew
is felt to be inadequate, considering that there are still many sailors of Indonesian
ship crew whose rights are differentiated compared to seafarers from other countries.
The main problem in this paper is to analyze legal policies in the protection of
Indonesian seafarers working overseas. By using normative juridical and sociological
juridical method, this study shows for Indonesian seafarers, both at home and abroad
are entitled to legal protection in accordance with the nature of their work without
exception. This legal protection begins with an agreement between the seafarer and
the employer as stated in the sea labor agreement.
Keywords: policy, legal protection, seafarers, migrant workers.
Cite this Article: Adnan Hamid, Legal Policy In Protection For Indonesian Seafarers,
International Journal of Civil Engineering and Technology (IJCIET), 10 (1), 2019, pp.
444–450.
http://www.iaeme.com/IJCIET/issues.asp?JType=IJCIET&VType=10&IType=1
1. INTRODUCTION
Data from Indonesian central statistics agency (BPS) states that the number of Indonesia's
workforce continues to increase and currently has reached 122.38 million people. A large
number of work forces should have the potential to have a positive influence on development,
especially in the economic growth of a nation, when a large workforce is utilized and
managed properly. However, it was realized that it turned out that not all of the existing
workforce had gotten jobs so unemployment emerged. BPS recorded unemployment figures
as of August 2015 as many as 7.56 million people. If the unemployment rate continues to
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increase, it will certainly be a burden for the government. Therefore the government continues
to push for continued economic growth and stability. High stability and economic growth will
open up opportunities for new jobs which in turn can reduce unemployment. However, if the
employment opportunities in the country are getting narrower, finding employment abroad is
an alternative that is done so that it is not classified as unemployed. According to the Director
of Placement and Protection of Foreign Workers at the Ministry of Manpower and
Transmigration of Soes Hindarno, based on different assumptions from the Ministry of
Manpower and Transmigration, the Ministry of Foreign Affairs and BNP2TKI recorded that
Indonesian citizens working abroad had almost reached 7 million people, and more than 60%
working in the household management sector. Article 1 point 2 of Law Number 18 of 2017
defines Indonesian Migrant Workers as "every Indonesian citizen who will, is currently, or
has done work by receiving wages outside the territory of the Republic of Indonesia." Many
types of work are carried out by Indonesian Migrant Workers , among others, starting from
the type of work known as D3 (dirty, dangerous, and demeaning) such as housework or as a
housekeeper, being a worker in a restaurant, to become a worker in plantations or other
similar jobs. While several other Indonesian migrant workers who have certain skills or
expertise, work in the formal sector such as being nurses in hospitals, working in various
companies, and becoming professional Indonesian Migrant Workers. Many Indonesian
Migrant Workers with certain competencies or those who have special skills workas sailors,
crew members even become ship masters (Hamid,2002).
In the current era of globalization, indeed the geographical boundaries between countries
are no longer an obstacle for someone to work and earn a living. Even in advanced countries,
it still requires workers from other countries to fill the gaps in various fields of work. This
phenomenon continues to evolve along with the pattern of relationships that are intertwined
and open between countries in various dimensions, such as the current implementation of the
ASEAN Economic Community (AEC). The enactment of this (AEC will certainly affect
competition in obtaining employment. As a result, the existing employment will be narrower,
considering that competitors are not only from within the country but also come from other
countries. To be able to work abroad or become an Indonesian migrant worker, requirements
and procedures are needed which are certainly much more difficult than if working at home
(Handani, 2018). At least more documents are needed, certain skills and skills are needed and
preparation is needed, both in the form of funds and mental preparation (Riswanto et al.,
2018). Economic problems and intense competition in gaining employment in the country as
well as more open employment opportunities that exist overseas, the number of Indonesian
Migrant Workers continues to increase (Khairuunnisa & Supriatna, 2018).This paper is to
examine how the protection policy for seafarers who work as Indonesian migrant workers.
Data shows that there is an increase for seafarers to work abroad. An increase in the number
of seafarers working as Indonesian migrant workers was not followed by an increase in
protection for Indonesian seafarers (Rochman, 2011). Some cases that afflict sailors of
Indonesian crew abroad such as discrimination in the provision of salaries or wages as well as
the failure to fulfill the rights as seafarers of the crew and various other forms of "oppression"
must be followed up with appropriate policies considering more shipping companies outside
country that employs seafarers from Indonesia.
2. METHOD
This paper uses normative juridical and sociological juridical method. The research itself is a
scientific activity related to analysis and construction carried out methodologically,
systematically and consistently. Methodology means that according to a particular method or
method, systematic is based on a system, while consistent means that there are no things that
conflict with a legal framework. This research refers to the literature study by examining
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secondary data in order to get an overview of one rule with other regulations and how they are
applied. The approach used is a normative juridical approach, namely by analyzing the
articles in the legislation relating to the protection of migrant workers, especially for
Indonesian seafarers.
3. DISCUSSION
Some of the reasons that caused the seafarers of Indonesian crews to be very interested in
foreign countries were, among others, salaries or wages that were quite cheap compared to
seafarers from other countries (see also Ellis & Sampson, 2008). However, based on data
from the Ministry of Transportation, HR Development Agency (BPSDM), the national
maritime industry still needs 83,000 seafarers, ranging from ship captain, officers / crew
members, to crew members. While the fulfillment of the need for seafarers from the marine /
shipping education line is only 1,700 from public / private schools per year, on the other hand
the needs of sailors per year are 16,000. Plus some developed countries like Korea and Japan
are no longer interested in becoming sailors because the life and salaries of those who work
on land are very feasible. This is an opportunity for seafarers of Indonesian crew to work
overseas.
Along with the increasing interest of Indonesian citizens to become sailors of the crew, it
is necessary to regulate and protect seafarers, given that the work as sailors has a greater risk
than the work on land (Uyun et al., 2018). Work as Seafarers requires a number of specific
requirements and competencies that need to be regulated in separate rules. While the
regulation and protection of seafarers as mandated in Article 7 of Act No. 18 of 2017
concerning the Protection of Indonesian Migrant Workers, has not yet been specifically
regulated. That the aforementioned law is an effort to realize equal rights and opportunities
for workers to obtain decent work and income, the implementation of which is carried out
while taking into account the dignity, dignity, human rights and legal protection and equal
distribution of employment opportunities and provision of labor in accordance with national
interests (Couper et al., 1999). In general, the protection of migrant workers is all efforts to
protect the interests Indonesian Migrant Workers and their families in realizing the fulfillment
of their rights in all activities before work, during work, and after working in legal, economic
and social aspects (Setyawati, 2013; Nuraeny,2017).
Arrangement for Indonesian Migrant Workers, especially regarding seafarers, starting
from permits and supervision of seafarers, regulated by several different government
agencies, such as from the Ministry of Foreign Affairs, Ministry of Manpower and
Transmigration, National Agency for Placement and Protection of Indonesian Workers
(BNP2TKI) and from the Ministry of Transportation through Law Number 17 of 2008
concerning Shipping (Budiartha,2018). The number of agencies that make various policies on
their own and the existence of overlapping rules, often cause problems in the implementation
of the placement and protection of seafarers. As a result, in handling cases experienced by
Indonesian seafarers, such as discrimination in the provision of salaries or wages which are
often distinguished from seafarers from other countries. So in other words the arrangement of
salaries or wages for Indonesian seafarers is lower for the same level and position compared
to the salaries of seafarers from other countries. Not to mention a lot of work agreements that
were only signed by prospective sailors and ship crew agency companies without being
registered with authorized officials, so that the agency often broke the promise of fulfilling the
rights for the seafarers themselves. In fact, it is not uncommon for forms of physical torture to
be followed by detention of seafarers' documents, working hours that are not in accordance
with the provisions, and inadequate occupational health and safety facilities on board. Not to
mention the differences in the arrangement and placement of seafarers, which are arranged in
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two different forms of business entities, namely in the form of Indonesian migrant worker
placement companies (P3MI) as mandated by Law No. 18 of 2017 concerning the Protection
of Indonesian Migrant Workers. On the other hand, the arrangement of the Ministry of
Transportation is not in the form of a company but in the form of an Agency under the
authority of the Ministry of Transportation, especially the Directorate General of Sea
Transportation. This certainly has an impact on related data Seafarers who are only listed on
sea transportation, even though in the case of ship crew sailors, the Ministry of Manpower,
specifically the Directorate General of Manpower Supervision and K3 and BNP2TKI, must
still be responsible for labor-related institutions, especially in the supervision and protection
of seafarers.
On the other hand, the implementation of the Maritime Labor Convention 2006
(MLC2006) by the International Labor Organization in September 2013, became the first step
for regulating and protecting ship crew sailors universally, especially for seafarers from ships
from countries that have ratified it. The 2006 MLC is expected to be the right and effective
solution in providing protection for Indonesian seafarers working abroad. It is expected that
the implementation of the 2006 MLC can provide hope and protection for Indonesian Migrant
Workers, especially those who work as sailors of crew members.According to Ministry of
Transportation data based on Kompas daily on September 6, 2016, there are currently 570,000
seafarers and 102,474 officers working on ships where 378,000 sail with foreign vessels.
From the available data, there are many sailors from Indonesia who prefer to work on foreign
vessels rather than on Indonesian ships, because if they work on foreign ships, the salary and
benefits obtained are far greater than working on ships or Indonesian shipping companies. As
a result, ships owned by national shipping companies lack sailors, both officers and crew.
This reality raises a serious problem, given that the increase in domestic shipping held by
national private shipping companies has not been followed by an increase in the number of
seafarers with sufficient capability. To overcome the shortage of seafarers, especially the
position of officers and captain, ship owners often violate regulations in terms of shipping
safety. In the world of international shipping, seafarers of Indonesian crews are quite in
demand by other countries, so it is not surprising that the demand for the world labor market
for Indonesian sailors is quite high.
Seafarers from Indonesia include sailors who are mostly sought after by shipping and
fishing companies in Europe and Asia Pacific. At present, there are 250,000 Indonesian
sailors who work in foreign companies. This is certainly an advantage because it will bring
foreign exchange to the country. In general, the remittances of migrant workers (including
foreign exchange from Indonesian seafarers) who work abroad, the value continues to
increase every year. Meanwhile Law No. 18 of 2017 concerning the Protection of Indonesian
Migrant Workers has provided regulation and protection for Indonesian workers who will
work overseas as Migrant Workers (including Indonesian seafarers working overseas) starting
from pre- placement, time-placement and after-placement. The legal policy of providing
existing protection is indeed not a special protection policy for seafarers working abroad.
However, the general legal protection policy contained in the Indonesian Migrant Workers
Protection Act is expected to minimize the exploitation of seafarers of Indonesian crew
working abroad. This Law regulates general legal policies that regulate the provision of
protection so that it can provide security in working and can fulfill a sense of justice. Justice
itself can only be understood if it is positioned as a situation that is intended to be realized by
law and the effort to realize justice in the law is a dynamic process. This effort is often
dominated by forces that fight in the general framework of the political order to actualize it.
On the other hand the law itself protects one's interests by allocating a power to him to act in
the context of his interests. This allocation of power is carried out in a measurable manner in
the sense of its breadth and depth. Such power is what is called right. But not in every power
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in society it can be called a right, but only a certain power which becomes the reason for
attaching that right to someone. Meanwhile, according to John Rawls justice is the main
virtue of the presence of social institutions. However, the virtues of the whole community,
cannot exclude or challenge the sense of justice of every person who has obtained a sense of
justice, especially the weak justice seekers. Hans Kelsen (2000) in his book entitled General
Theory of Law and State, holds that law is a social order that can be declared fair if it can
regulate human actions in a satisfying way so that it can find happiness in it. In the Pancasila
perspective, justice according to the conception of national law is aimed at social justice that
concerns the interests of the community and by itself a socially just individual must set aside
his individual freedoms for other individuals. Pancasila as the philosophy of life of the nation
and state of Indonesia makes all activities carried out on the basis of humanity and justice by
always upholding the Almighty Godhead. All problems relating to the lives of many people
are resolved or handled on the basis of deliberation and mutual cooperation based on the
noble values of Pancasila which become a spirit in the life of the nation and state. The
constitution as a basic law in the 1945 Constitution is based strongly on the values of
Pancasila, which means that all laws, legislation and other regulations that govern social life
must be guided by these basic laws(Wicaksono, 2018). Thus, no exception regarding labor
regulations must be based on strong Pancasila values (Kartasapoetra, 1986).
State institutions and regulations which are state products must be able to go hand in hand
and be in harmony with the interests of the individuals it regulates so that justice and balance
between rights and obligations can be realized. The suitability as described above is expected
to be felt by Seafarers. Law No. 17 of 2008 concerning shipping, mentions seafarers as crew
members, whose understanding is a person who works or is employed on a ship by the owner
or operator of the ship to carry out duties on board the ship listed in the certificate book.
While that is the understanding of Seafarers in the MLC 2006, "the person who means that is
not a member of the ship to which this convention applies." From the two meanings above, it
can be said that Seafarers are people people who work on a ship who have their own duties
and functions in carrying out work on the ship. Thus, the Master, engineer, radio operator,
even the cook on the boat can be categorized as Seafarers. Justice for Seafarers can also be
reflected in the rights and obligations set forth in agreed work relationships and made in the
form of a Work Agreement. In relation to the employment relationship that occurs between
the employer (employer) and the work recipient (seafarer), it is stated in the form of a work
agreement that must be made in written agreement or known as a sea employment agreement.
The sea labor agreement itself is an agreement held between a ship transport entrepreneur on
the one hand and a workforce on the other, where the latter binds themselves to work for a
ship transport entrepreneur, as a captain or sailor by receiving wages (Kuntoro, 1999; Sutedi,
2009).
Regarding the sea labor agreement itself is divided into two types, namely: Sea labor
agreements made between ship entrepreneurs with captain or ship officers; and sea work
agreements made between ship entrepreneurs and crew. Particularly for work agreements
between shipbuilders and crew members must absolutely be made with authentic deeds in
front of the crew member registrar (currently carried out by the Directorate General of Sea
Transportation, Ministry of Transportation of the Republic of Indonesia). The contents of the
maritime employment agreement include: the full name or identity and position of the worker,
place and position in the sea labor agreement, length of time or voyage, and wages and
workplaces and other provisions. Meanwhile the rights of the good seamen, the captain and
other crew members are the same, although there are slight differences. Furthermore,
regarding the working time itself according to Government Regulation Number 7 of 2000, it
is based on 8 hours of work or 44 hours per week, with a break of at least 10 hours within 24
hours, and a day off every week plus holidays on holidays official national. Besides that, the
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right to a good and proper place of residence is also regulated and the right to proper food is
sufficient and well-served and varied with a nutritious and healthy menu and fresh water must
remain available on board adequately and meet health standards. In theory if the above
provisions are violated, it can be said as a violation of law and of course Seafarers as workers
can enforce the shipping company to pay compensation for losses suffered. Whereas the
obligation of seafarers is obliged to do everything ruled by the captain and other obligations
contained in the sea labor agreement. Regarding government policies relating to migrant
workers abroad, especially legal protection for Indonesian seafarers, cannot be separated from
two important issues, namely political interests and the making of legal instruments that
contain protection values. Given that law is an actualization of political values, the
government's legal policies, which are the result of political products, must be balanced with
the most essential needs, namely protection and guarantee of the fulfillment of TKI's rights as
human beings with all their human values. In the daily lives ofseafarers are very vulnerable to
discrimination, exploitation, and various forms of intimidation while doing their jobs.
4. CONCLUSION
Seafarers as part of migrant workers who work abroad need to receive greater attention in the
form of policies and legal protection in written law and work agreement. Basically, legal
protection in the aspect of employment is protection of dignity and recognition of human
rights which are owned by legal subjects (naturlijkpersoon) based on legal provisions. Legal
protection can also be interpreted as a set of rules or rules that will protect things from other
things. Furthermore, legal protection for workers is grouped into three types of protection,
namely technical protection, economic protection and social protection. Technical protection
which is a form of protection that is closely related to efforts to safeguard workers from the
emergence of danger in doing work, economic protection which is a form of protection that is
closely related to efforts to improve income sufficient to meet daily needs / needs for workers
and their families as well as social protection which is a protection that is closely related to
efforts towards society which concerns their dignity and human dignity. Regarding the role of
the state in legal protection, it is certainly inseparable from the role of the state in fulfilling
human rights. For Indonesian seafarers who work on boats, both at home and abroad are
entitled to legal protection in accordance with the nature of their work without exception. This
legal protection begins with an agreement between the seafarer and the employer as stated in
the sea labor agreement.
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