Indonesia Employment Law Alert: Employers to Take Note of New Guidelines on Sexual Violence in the Workplace
On May 29, 2023, Indonesia’s Ministry of Manpower (“MOM”) issued MOM Decree No. 88 Year 2023 regarding Guidelines for the Prevention and Handling of Sexual Violence in the Workplace (“MOM Decree No. 88”).
Highlights of MOM Decree No. 88 include the new obligation for companies to establish a task force for the prevention and handling of sexual violence in the workplace, and the requirement that companies provide compensation to victims.
Task Force Obligation for Companies
MOM Decree No. 88 stipulates that the task force established by companies must have an odd number of members, with a minimum of three members. Task force members shall be appointed from among company representatives and representatives of employees or the company’s labor union.
The main duties of the task force are to:
- Develop and implement programs and activities that refer to company policies regarding efforts to prevent sexual violence in the workplace.
- Receive and record complaints of sexual violence in the workplace.
- Collect information related to indications or alleged instances of sexual violence in the workplace.
- Provide guidance to victims and the company to try and resolve complaints of sexual violence in the workplace.
- Provide assistance to victims of sexual violence in the workplace.
Compensation for Victims
MOM Decree No. 88 stipulates that companies are liable to compensate victims of sexual violence in the workplace as part of the recovery actions companies must take.
Under MOM Decree No. 88, companies are obliged to take the following steps, among others:
- Return any sick leave or other leave taken by the victim during the handling of the sexual violence incident.
- Provide additional sick leave if the victim requires counselling.
- Remove any negative appraisals from the personnel records of the victim added due to the occurrence of the sexual violence.
- Re-employ the victim if the person concerned was dismissed.
- Review any decisions or actions related to work relationships that might be detrimental to the victim and/or the complaining party to ensure there was no retaliation.
- Provide compensation for any medical expenses.
Sanctions for Sexual Violence in the Workplace
MOM Decree No. 88 provides that companies can sanction perpetrators of sexual violence in the workplace. These sanctions can be in the form of:
- Written warning letter.
- Transfer or assignment to another division/department/work unit.
- Reducing or removing part or all of the person’s authority in the company.
- Temporary suspension.
- Termination of employment.
Note that these sanctions do not reduce the right of the victim to file a police report and perpetrators are still subject to legal sanctions in accordance with applicable laws.
Definition of Sexual Violence
The forms of sexual violence in MOM Decree No. 88 still refer to Law No. 12 Year 2022 dated May 9, 2022, regarding Crimes of Sexual Violence, namely:
- Non-physical sexual harassment;
- Physical sexual harassment;
- Contraceptive coercion;
- Forced sterilization;
- Marriage coercion;
- Sexual harassment;
- Sexual exploitation;
- Sexual slavery; and
- Electronic sexual violence.
MOM Decree No. 88 distinguishes between sexual violence and sexual harassment as follows:
Sexual violence is any act of condescending, humiliating, harassing and/or attacking a person's body and/or reproductive function, due to unequal power relations and/or gender, which results in or can result in psychological and/or physical suffering, including those actions that interfere with a person's reproductive health and lost opportunity to work safely and optimally.
Sexual harassment is any unwanted sexual act, request to perform a sexual act, verbal or physical action or gesture of a sexual nature, or any other behavior of a sexual nature that makes a person feel offended, humiliated, and/or intimidated so that the act disrupts the working conditions and environment.
Call to Action for Employers
Companies are advised to be aware of the new provisions under MOM Decree No. 88 and regulate the prevention of sexual violence in the workplace in detail in their employment agreements, company regulation, or collective labor agreements.
MOM Decree No. 88, in Indonesian, is available here.
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