The Role Of Mediator In The Employmenttermination Dispute Settlement In Jambi City

The duties and obligations of mediator who are assigned by Department of Labour, Cooperatives and Small and Medium Enterprises Office of Jambi City

Industrial relations disputes are disagreements that result in a conflict between employers or a mix of employers with workers or laborers or unions because of disputes over the rights, disputes of interest and employment termination disputes as well as disputes between unions within a company. Industrial relations is the relationship between all parties involved in the production process or service in a company. Therefore, industrial relations will greatly affect the results of production and income of workers and companies. In industrial relations the government has a very important role in maintaining the smooth and harmonious relationship, because if the industrial relations are not going well, in the sense of a conflict or dispute happened, then this will affect the production process that will broadly affect the economy of a country. (R.Budiono, 2011).

Industrial relations disputes between workers and employers can be solved by the settlement procedure as set forth in Law Number 2 Year 2004 concerning Industrial Relations Dispute Settlement. The first step that should be taken is to negotiate to reach consensus between workers with employers known as bipartite negotiation. But generally these steps are rarely achieved. Therefore, dispute issues are left to the competent authority in labor sector by doing mediation. Mediation is a negotiation involving third party who have expertise on effective mediation procedures and can assist in conflicted situations to coordinate their activities so that they are more effective in the bargaining process to reach a disputesettlement agreement. (As'adi, 2012).

According to Article 1 Point 11 of Law Number 2 Year 2004, mediation is the settlement for rights disputes, interest disputes, employment termination disputes, and disputes between workers/unions only within a company through deliberations which mediated by one or more mediators who are neutral . Mediator of Industrial Relations, hereinafter referred to as mediator, is agovernment institution employee who responsible in the labour sectorwhich fulfilling the requirements as mediator set by Minister to perform mediation and has obligation to give written recommendation to dispute parties to settle the rights disputes, interest disputes, employment termination disputes, and disputes between workers/unions within one company.

As regulated in Article 2 of Minister of Labour and Transmigration Regulation of Republic of Indonesia Number 17 Year 2014 concerning the Appointment and Dismissal of Industrial Relations Mediators and Mediation Work Procedures, the conditions for becoming mediators are:

• Faithful and fearful toward Almighty God;

• Indonesian citizens;

• Civil Servants at the agency which responsible for labour affairs;

• Healthy according to the doctor's certificate;

• Mastering the legislations in the labour sector;

• Authoritative, honest, fair and behaving impeccably;

• Educated at least one stratum (S1)

• Has a certificate of competence.

• Has a letter of appointment from the minister.

In every government office which in charge of labour sector, several officers are appointed as mediators who conduct mediation to settle disputes between employers and workers. In the Department of Labour, Cooperatives and Small and Medium Enterprises Office of Jambi City there are three mediators, namely:

• Ramayanti, SH.

• Drs.Surungan.

• Budi Warsito, SH.

The role of mediator in settling employment termination disputes in Jambi City

Role is a dynamic process of individual status, if he do his rights and obligations according to his position, then it can be said that he has performed his role. (Soekanto, Sosiologi Suatu Pengantar, 2009) So an institution will be effective and useful in society which can be seen from how far the institution role in solving or overcoming the problems that exist in the society although not all solved. The good or bad role of the mediator can be seen from the good or bad of the mediation process. Implementation of mediation in Department of Labour, Cooperatives and Small and Medium Enterprises Office of Jambi City can be said good enough, because the mediator has been carrying out his duties in accordance with the provisions contained in Law Number 2 Year 2004 concerning Industrial Relations Disputes settlement. Disputes that filed and recorded at Department of Labour, Cooperatives and Small and Medium Enterprises Office of Jambi City, are generally about employment termination. Regarding rights disputes and interest disputes are rarely filed because the rights and interests are generally regulated in company regulations in which workers must obey. If workers do not agree with the rules made by the company generally they will not dare to argue as long as it does not violate the applicable legislation. Workers who do not agree with the rules made by employers can resign or stop quietly (Ramayanti, 2017). In addition, if there is a violation of workers’ rights that are not or less fulfilled by the employer, the workers or their representatives through the union may report and request assistance for their settlement through industrial relations supervisors located at the provincial labour agency.

Dispute over employment termination is a dispute that occurs because the parties or one of the party disagree about the employment termination that has been done. Termination procedure is done through several stages. First, must be negotiated first between employers and workers/unions about the reason for the employment termination. Second, if the negotiation failed the employer may terminate the employment after obtaining the assessmentfrom industrial relations dispute settlement institution. Third, employment termination without the assessment of the competent authority is null and void and the employer obligate to employ the worker (Sunyoto, 2013).

Before the birth of Law Number 2 Year 2004 the process of settlement is quite long, with the existence of this law the process is simplified. First handling is done at the Industrial Dispute Court within the General Courts, and it may be possible to file an appeal to the Supreme Court. This is intended to provide an opportunity for dissatisfied parties to the Industrial Relations Court's decree to re-examine the dispute in a higher court, since the issue of employment termination is a complex issue. Therefore, the basis of the test is in addition to the provisions of the Civil Code particularly concerning agreement, as well as the provisions of public law (Labour Law)(Charda, 2017).

The mediation settlement process takes place after the parties have registered the dispute with the local labour agency, in which they are not agreeing to settle the dispute through arbitration or conciliation, or due to a rights dispute. As such, settlement through mediation becomes mandatory. The disputes settlement through mediation conducted by a mediator located in each of the Regency/City Labour agency offices. Within no later than seven working days after receiving assignment of industrial relations dispute settlement, the mediator conducted research on the case. Within a maximum of 30 working days from receiving dispute assignment, he must have completed his work (Articles 10 and 15 of Law No. 2 Year 2004). As soon as receiving disputefile, the mediator take the settlement measures as follows:

• conducting mediation hearing no later than seven working days after receiving the assignment of duty to settle the dispute,

• call the parties in writing to attend the session by taking into account the time of the call so that the mediation session can be held no later than seven working days from receiving the assignment of duty to settle the dispute,

• conducting mediation proceedings by seeking negotiation for consensus settlement,

• issuing written recommendation to the parties if the settlement does not reach an agreement within 10 working days of the first mediation session,

• assist in making a joint agreement in writing when a settlement agreement is reached, which signed by the parties and witnessed by the mediator,

• notify the parties to register the signed joint agreement of the parties to the Industrial Relations Court where the joint agreement is signed to obtain the registration certificate, and

• Make a minutes on every Industrial Relations Dispute Settlement. (Pradia, 2013)

In practice, prior to reporting the disputes to the Mediator, the disputing parties usually conduct bipartite negotiations first. This can be seen from the minutes attached when one of the party or both parties reported the dispute to the Mediator. The Minutes attached is in accordance with Law Number 2 Year 2004 concerning Industrial Relations Dispute Settlement, which contains:

• Full name and address of the parties.

• Date and place of negotiation.

• The subject matter or the dispute reason.

• Opinions of the parties.

• Conclusions or outcomes of the negotiation.

• Date and signature of the negotiating parties.

After the Mediator receives a report or delegation of dispute settlement, a mediation hearing should be immediately undertaken. Prior to the hearing, the mediator makes a call submitted to the parties which content is that the parties are expected to come to the mediation process to attend the mediation session. Calls are usually responded well by the parties by directly attending the proceedings without the mediator having to repeat the call to bring in the parties or one of the party. Thus the mediator only makes a call just once. Even if the employees cannot attend they can be represented by personnel or legal counsel. After the parties have fulfilled the summons, the trial immediately held. In mediation meetings, negotiation for consensus are held between the parties and mediated by one or more neutral mediators. Mediation sessions are conducted depending on the needs, but it usually need only once meeting to found an agreement. If in one hearing they find an agreement from the parties, then there is no need to do another hearing. But if in a mediation hearing is difficult to find an agreement, then the mediator provides recommendation or options taken from the statements of the parties at the hearing which then submitted to the parties whether or not they approve the given options. If in the mediation hearing the parties have fulfill the agreement, then they made a Joint Agreement which signed by the parties and mediators who then registered it to the Industrial Relations Court to obtain the proof of registration certificate (Surungan, 2017).

If the aforementioned Joint Agreement is not executed by the responsible party, the aggrieved party may apply for an execution to the Industrial Relations Court in the area where the Joint Agreement is registered, to obtain the assessment of execution. If the execution applicant is domiciled outside the Industrial Relations Court where Joint Agreement registered, the execution applicant submits it through the Joint Agreement Court in the domicile of the applicant, then it is forwarded to the competent Industrial Relations Court of doing the execution (Article 7 of Law No.2 Year 2004). Especially in the case of employment termination disputes, if it cannot be resolved by negotiation, the employer can only terminate workers after obtaining the assessmentfromIndustrial RelationsDisputes Settlement institution. The application of the assessmentis done in writing along with the reasons for the termination, and evidence of the negotiations. The assessment of the request for employment termination can only be granted if the negotiation has actually taken place, and has not resulted in an agreement (Article 151 paragraph (2) and (3) and Article 152 of Law No. 13 Year 2003).

Data obtained from Department of Labor, Cooperatives and Small and Medium Enterprises Office of Jambi City on the number of cases of Industrial Relations Dispute Settlement in 2015 and 2016 as follows:

• In year 2015 as many as 51 cases, 27 completed with Joint Agreement, 5 completed with Joint Agreement made in the company, 9 recommendations, 5 recommendations followed by the Joint Agreement, 5 cases removed because the parties did not continue the cases.

• In year 2016 as many as 33 cases, 22 completed with the Joint Agreement, 1 finished with a joint agreement in the company, 10 with recommendations.

The above data does not show the names of the workers and companies in disputes, because according to the provisions of Article 9 of Minister of Labour and Transmigration Regulation of Republic of Indonesia Number 17 Year 2014 stated that the mediator shall keep the confidentiality of all information obtained, so that the names of the disputing parties are not published. The mediator always try to achieve peace between employers and workers in the form of agreement set forth in the Joint Agreement. As far as possible the case should not transferred to the Industrial Relations Court. During the period of 2 (two) years there is only 1 (one) case that reached the Industrial Relations Court which is a case filed in 2015. Generally the parties agreed and received recommendation from the mediator (Ramayanti, 2017). The same thing was also expressed by other mediators. The mediator always advised that the case should not be brought to the Industrial Relations Court, in spite of the long term of settlement, as well as the parties surely paying the cost of the court fee and also to the lawyer (Satria, 2017). Mediators should be fair and independent that can be seen when the Mediator provides recommendations or options when there is no agreement at the mediation session. The mediator provides impartial recommendations to either party. Evidence that the mediator's recommendations is impartial to either party that the recommendation proposed by the mediator is ultimately approved by the parties so that the case does not reach the court (Satria, 2017). Mediation is an alternative dispute settlement process in which the third party that requested for assistance in the dispute settlement process is passive and unauthorized to provide an input, moreover to decide the dispute, so in mediation, the mediator serves only as an intermediary forthe parties to the dispute. Even if the mediator gives input it is only recommendation that can be approved and unapproved by the parties. If the recommendation is finally approved by the parties then the mediator creates a Joint Agreement.

In the Year 2015 there are 5 (five) mediation results in the form of recommendations which continue to be a Joint Agreement. This proves that in the end the parties agree with the settlement option or recommended by the mediator. In 2016 settlement that done through mediation in 33 cases which was reported, completed with the Joint Agreement in 22 cases, whereas recommendations in 10 cases, 1 case with the Joint Agreement in the company. The recommendations settlement that took place in 2016, has not obtained any information about them whether they proceed to the court or they receive the recommendations. The parties sometimes do not provide information on how to proceed from the proposed settlement, this is one of the obstacles faced by the mediator at the Department of Labor, Cooperatives and Small and Medium Enterprises Office of Jambi City, so it is not known whether the dispute settlement is complete or not (Ramayanti, 2017). Another obstacle is that it is difficult to bring employers to attend meetings or hearings held by Mediators. Employers usually have their own busyness so they do not have time to attend meetings and are represented only by their personal staff. It can make the process last longer even if there is a term of completion, because the company representative must report the results of the meeting to the employers first (Satria, 2017). Employers cannot be forced to attend because legislation allows parties represented by their legal counsel.

From the total of cases entering in year 2015 there were 51 cases, 37 of it cases completed with the Joint Agreement (27 cases with Joint Agreement in the Department of Labour, Cooperatives and Small and Medium Enterprises Office of Jambi City, 5 Joint Agreements in the company, 5 recommendations continued into Joint Agreements). From the above data it is seen that more than 50% of cases can be solved through mediators. Also in 2016, more than 50% can be completed by mediators in Joint Agreement form. Thus it can be concluded that mediators at the Department of Labour, Cooperatives and Small and Medium Enterprises Office of Jambi City have done a good job. The average period of completion in accordance with the provisions is sometimes even faster than the time specified, because the mediator does not delay to mediate if the parties are willing to be presented together. According to the Chairman of the Confederation of Indonesian Prosperity Trade Union (KSBSI), mediators at the Department of Labour, Cooperatives and Small and Medium Enterprises Office of Jambi City are very good at their performance, they patiently explain and give understanding of the solutions that they suggested (Roida Pane, 2017). The success of mediation is determined by a mediator who has a certain qualification as a mediator.The mediator must master the subject matter of employment. In addition, a mediator must have the ability to analyse and the ability in creating a personal approach within the mediation technical corridor as well as the ability to formulate the will of the parties into a formulation of recommendations.