Investor Briefing | Update on the Case of the Striking Workers of PT. Freeport Indonesia
On September 14th, 2021, the Indonesian Supreme Court issued 3 verdicts — No. 1095 K/Pdt.Sus-PHI/2021 (Demianus Jonasen May v. PT. Freeport Indonesia), No. 1126 K/Pdt.Sus-PHI/202 (Muhammad Anwar v. PT. Freeport Indonesia), and No. 1116 K/Pdt.Sus-PHI/2021 (Tri Puspital v. PT. Freeport Indonesia). All the verdicts held that the strike was legal and in accordance with Indonesian laws. The Supreme Court also held that PT. Freeport Indonesia committed a violation of Indonesian laws, in particular freedom of association and the right to strike.
Examination of the Strike Case by the Labour Court
The first initiative to bring the three workers’ cases to the court came from the company. PT. Freeport Indonesia filed a lawsuit seeking a final decision over the dismissal of the three workers. This move was responded by the workers (as defendants) to use the same court to sue back the company and to claim the legality of the strike. In the court, the dispute centred around the different interpretations of the legitimacy of the dismissal and the legality of the strike. The company claimed that dismissal was justified by the result of the voluntary resignation of the three workers. In contrast, the three workers claimed as part of the striking workers insisted that their strike was legal. On April 16th, 2021, the Labour Court of Jayapura (PHI Jayapura) verdict was in favour of the company. The PHI Jayapura court ruled that the dismissal of the three workers was legal and justified as a result of voluntary resignation.
Next, on May 6th, 2021, all the three workers lodged an appeal at the Supreme Court. On September 14, 2021, the Supreme Court issued 3 separate verdicts — No. 1095 K/Pdt.Sus-PHI/2021, No. 1126 K/Pdt.Sus-PHI/202, and No. 1116 K/Pdt.Sus-PHI/2021. This time, the Supreme Court’s verdict rejected the workers’ appeal and declared the dismissal of the workers. However, the Supreme Court verdicts also made significant revisions to the PHI Jayapura’s verdicts by declaring that the company had violated Indonesian laws and a re-calculating new formula of compensation for the three workers.
In its verdicts the Supreme Court Judges held that “Judex Facti did not consider two evidences in the form of the letter of Papua Provincial Government Manpower Office dated September 12, and a Papuan Governor’s Letter dated December 19, principally stated that Workers left the workplace starting April 11, 2017, 18 April 2017, 20 April 2017 and 1 May 2017 until the strike is declared valid”. Next, the Judges stated that “if the two evidences are considered carefully, it can be obtained legal facts that the Defendant did not work from September 21, 2017 to October 19, 2017 due to a legitimate strike”. Furthermore, the judges held that “because the strike carried out by the Defendant is part of an Union activity protected by law, then in accordance with the provisions of Article 28 of Law Number 21 of 2000 concerning Trade Unions in conjunction with the provisions of Article 153 paragraph (1) letter g of Law Number 13 of 2003 concerning Manpower, Workers who are carrying out Trade Union activities are protected from termination of employment, thus the Plaintiff’s action to terminate the Defendant’s employment with the reason/qualification of resigning as referred to in Article 168 of Law Number 13 of 2003 concerning Manpower, must be declared invalid, and the Defendant must be re-employed at his original place”. However, considering the fact that the Workers was not working anymore since 2017, the Judges allowed the dismissal of the Workers with the compensation in accordance with the provisions of Article 156 of Law Number 13 of 2003 concerning Manpower.
Even though it looks inconsistent in its legal considerations, still, the Supreme Court Judgment clearly held that the strike was legal, and the company had violated freedom of association and the right to strike. The Supreme Court verdicts in the case of Demianus Jonasen May, Tri Puspital and Muhamad Anwar -all of them are labour union activists– contain several legal consequences.
The Supreme Court verdicts, as a final legally binding judgement, provide a legal basis for the certainty of the status of the overall striking workers. It provides not only justification for the legality of the strike, but also provides protection for the striking workers from unfair treatment from the company. In four years, the management of PT. Freeport Indonesia imposed excessive sanctions, dismissed all striking workers, and busted the labour union systematically. With the dismissal of all unionists and its members, the Caretaker PUK SPKEP SPSI practically cannot operate anymore in the workplace. All organizational communications and other legitimate activities of the union and striking workers to defend their rights were exercised outside the company’s plant. Another consequence is the obligation of the labour inspectorate to enforce the labour laws and prosecute the management of PT. Freeport Indonesia as the alleged perpetrator of a criminal offence in accordance with the provisions of Article 28 of Law Number 21 of 2000 concerning Trade Unions in conjunction with the provisions of Article 143, 185, and 189 of Law Number 13 of 2003 concerning Manpower.
Following the Supreme Court verdicts, Lokataru as striking workers’ lawyer calls the Indonesian Government and Freeport -McMoRan (FCX) and other shareholders of PT. Freeport Indonesia to evaluate the management of PT. Freeport Indonesia and to restore the right of the striking workers immediately.
For further information about the case, please contact:
- Haris Azhar, MA (Legal Counsel of the striking workers) (+62 81513302342)
- Nurkholis Hidayat, LLM (Legal Counsel of the striking workers) (+62 81519967110)
- Tri Puspital (PC SPKEP SPSI Kab. Mimika) (+62 85240883716)