Overview

Indonesia still faces several significant issues as regards efforts to ensure the welfare of mothers and children. For example, birth rates, infant mortality and stunting remain high. Furthermore, provisions on the welfare of mothers and children that apply within Indonesia remain scattered across various legal frameworks and have yet to accommodate the needs and dynamics of the country’s many communities. In an effort to address this vital area, Indonesia’s House of Representatives has finally passed the long-awaited Bill on the Welfare of Mothers and Children During the First Thousand Days of Life Phase (Rancangan Undang-Undang Kesejahteraan Ibu dan Anak Pada Fase Seribu Hari Pertama – “KIA Bill”).[1]

The KIA Bill comprises nine chapters and 46 articles that, generally speaking, address provisions that apply to a wide range of stakeholders in an effort to ensure the welfare of mothers and children.  Furthermore, the KIA Bill sets out the recognized rights of mothers and children, as well as the obligations of relevant stakeholders. It is also expected that the KIA Bill will serve as the basis for the introduction of further regulatory frameworks that will specifically address the protection of mothers and children. Indeed, as mandated under the KIA Bill itself, several legal instruments are expected to be issued over the next two years as implementing frameworks for the KIA Bill. These new Regulations include the following:[2]

1. Regulation of the Government on Support for the Organization of the Welfare of Mothers and Children[3];
2. Regulation of the Government on Planning, Implementation, Guidance, Supervision and Evaluation[4];
3. Regulation of the Government on the Management of Data and Information on the Welfare of Mothers and Children[5]; and
4. Regulation of the President on Intersectional and Functional Coordination[6].

Hukumonline has previously examined the expected impact of the KIA Bill on employers by providing a comparative analysis between provisions set under the KIA Bill and Law No. 13 of 2003 on Manpower and its amendment (collectively referred to as “Manpower Law”), which can be accessed through “KIA BILL: A Gift for Working Mothers, A Blow to Employers”. This previous discussion identified a number of remaining unaddressed issues under the KIA Bill and these will be discussed in this edition of Indonesian Law Digest, along with highlights of the recognized rights and pertaining obligations that have been introduced under the framework of the KIA Bill. It should also be noted that our discussion is supported by a number of in-field viewpoints that have been provided by experts within the field of manpower and industrial disputes.

In order to offer readers a comprehensive and thorough discussion of these important issues, this edition of Indonesian Law Digest (ILD) has been divided up as follows :

I. Understanding Rights and Obligations under the KIA Bill
A. Recognized Rights of Mothers and Children
B. Obligations Pertaining to Relevant Parties

II. Unaddressed Issues under the Current KIA Bill
A. Maternity and Paternity Leave: Legal Certainty and Implications
B. KIA Bill: Empowering or Risky?
C. Applicable Standards to Accommodate the Rights of Working Mothers

I.    Understanding Rights and Obligations under the KIA Bill

A.   Recognized Rights of Mothers and Children

As briefly outlined above, the KIA Bill sets out a number of rights that can be enjoyed by all mothers, working mothers and children. In addition, in order to support the welfare of mothers and children, the KIA Bill also regulates a number of recognized rights for husbands and families. The table below sets out a summary of recognized rights for mothers and children, as well as other family members:

In addition to the various rights outlined above, mothers with disabilities are also entitled to enjoy various rights, as addressed under specific Laws and Regulations that cover persons with disabilities, including Law No. 8 of 2016 on Persons with Disabilities.[14]

It should also be noted that the recognized rights of mothers and children, as specifically addressed under the 2024 version of the KIA Bill, have been adjusted from the previous 2022 version of the Draft KIA Bill. In this regard, while some rights have been retained, a number of significant revisions have also now been introduced under the 2024 version of the KIA Bill. In the above table of rights, the points marked with asterisks (*) are the new and adjusted provisions that did not previously feature in the 2022 version of the Draft KIA Bill. (see: The Draft KIA Bill and Maternity Leave: Ensuring the Rights of Women and Children vs. Discrimination in the Workplace). The KIA Bill further clarifies that the right to enjoy maternity leave and to receive wages during maternity leave is a right of employees that is applicable in accordance with Laws and Regulations on manpower.[15] Accordingly, it should be noted that any cases of violations regarding the implementation of the right to maternity leave will result in the imposition of the following criminal sanctions on employers:[16]

1. Terms of imprisonment ranging from one year to four years; and/or
2. Fines ranging from Rp. 100 million to Rp. 400 million.

B.   Obligations Pertaining to Relevant Parties

Along with the recognized rights outlined above, the KIA Bill sets a number of obligations that apply to mothers and fathers regarding the overall welfare of children and mothers. In addition, certain obligations also apply to business actors in order to ensure the fulfillment of the recognized rights of mothers and children. Prior to specifically addressing the topic of the various obligations of business actors, listed below are the obligations that apply to mothers and fathers:[17]

The above-listed obligations are the joint responsibility of both mothers and fathers. In addition, the following consequences will also apply in relation to the obligations described above:[18]

1. If a mother is incapable of providing exclusive breastmilk for the children, then exclusive breastmilk may be provided by a breastmilk donor;
2. If a mother or father passes away, becomes separated from their children, or is medically incapable of performing the obligations outlined above, then said obligations should be borne by the living father, mother and/or families; and
3. If a mother, father and families pass away, become separated from their children, or are incapable of performing the obligations outlined above, then said obligations should be borne by a surrogate family (keluarga pengganti) or the state through a childcare institution in accordance with the applicable Laws and Regulations.

In addition to mothers and fathers who make a direct contribution to the welfare of their children, the KIA Bill also sets out a number of obligations and duties that apply to different stakeholders, as summarized in the table below:

One of the most highlighted provisions of the KIA Bill is the obligation for employers to provide proper accommodation, facilities and infrastructure to mothers and children within the workplace, with the added caveat that employers must also facilitate their employees by adjusting their assignments or workloads, working hours and workspaces. Currently, the Manpower Law does not explicitly mandate the obligation to provide facilities and support, although the law entitles female employees to proper opportunities to breastfeed their children during working hours, which should be exercised with due consideration to the availability of rooms for breastfeeding in accordance with the conditions and abilities of employers.[31]

Additionally, Law No. 17 of 2023 on Health (“Health Law”) also requires special facilities to be provided within office environments for exclusive breastfeeding purposes.[32] In line with these provisions, Regulation of the Minister of Health No. 15 of 2013 on Procedures for the Provision of Special Facilities for Breastfeeding and/or Lactation (“Regulation 15/2013”) requires the provision of breastfeeding opportunities, while the realization of this obligation may take the form of the provision of lactation rooms.[33]

In terms of the obligation to provide lactation rooms specifically, employers should also be aware of the potential criminal sanctions that may be imposed upon any parties that are deemed to have damaged efforts to implement the exclusive breastfeeding program, as specifically described under the Health Law, including the requirement to provide supporting breastfeeding facilities within office environments. The applicable criminal sanctions for violations within this area break down as follows:[34]

1. Maximum term of imprisonment of one year; or
2. Maximum fine of Rp. 50 million.

II.  Unaddressed Issues under the Current KIA Bill

Within the context of the substance of the KIA Bill, there are still a number of issues that have yet to be further clarified, specifically in relation to legal certainty and the implications of maternity and paternity leave, as well as the applicable standards that can accommodate the rights of working mothers. The following section of this edition of ILD explores these issues further and offers viewpoints from various relevant stakeholders within the sector.

A.   Maternity and Paternity Leave: Legal Certainty and Implications

As addressed previously, provisions on maternity leave are specifically regulated under the Manpower Law, although the term “rest” (istirahat) is used instead of the term “maternity leave” (cuti hamil), which has now been adopted by the KIA Bill. Furthermore, there are also various differences in terms of the periods of leave that are available under the KIA Bill and the Manpower Law, as summarized in the following table:

During an interview with Juanda Pangaribuan, a legal practitioner working within the manpower and industrial relations field, the concern was raised that the above-outlined differences could potentially result in overlapping provisions on maternity leave. In this regard, these seemingly minor differences nevertheless mean that there is a duality between the term “maternity leave”, as provided under KIA Bill, and “rest”, as provided under the Manpower Law. This duality may ultimately be interpreted to mean that working mothers are entitled to enjoy two different types of rights.[35]

This concern becomes more problematic given that the KIA Bill does not further clarify that the right to maternity leave, as provided under the KIA Bill, does not automatically equate to the right to rest, as provided under the Manpower Law. The absence of such clarification ultimately results in legal uncertainty in terms of whether employers are obliged to grant both types of rights instead of only a single one. [36] Simply put, potential disputes may be raised by working mothers, who may seek to obtain their right to rest both prior to and after labor, as described under the Manpower Law, on top of their right to maternity leave, as described under the KIA Bill on the basis that both rights are recognized separately with no clear correlation being set between these two rights.[37]

In order to find a middle ground regarding this concern, Diana Dewi, Chairwoman of the DKI Jakarta Indonesian Chamber of Commerce and Industry, has stated that if cases arise that involve employees demanding that their rights be fulfilled in an overlapping manner, then said cases should be discussed in a bipartite manner in order to negotiate proper compensation and the consequences of extending the initial maternity leave beyond its maximum given period.[38]

In addition to said potential disputes, it is also worth underlining the fact that the current provision on maternity leave that features under the KIA Bill may negatively impact working mothers. In comparison with the Manpower Law, which specified that a rest period is to be provided both prior to and after labor, the KIA Bill does not specify the granting of any such rest period for working mothers. [39]

In this context, concern lies in the fact that employers may potentially only grant maternity leave once a working mother has gone into labor, without granting their rights prior to labor. Accordingly, the KIA Bill would require a technical provision in order to address the process of granting the right to leave or rest. [40]

On the other hand, employers generally seem to lean more towards open-ended provision regarding the allocation of periods of maternity leave. In this regard, it would be better to seek a mutually agreed center ground that addresses the differences in leave allocation, as addressed under the two provisions, through bipartite negotiations. The losses of both sides (employees and employers) can be minimized in this way, while it should be noted that both parties will be given the opportunity to negotiate their leave allocations through due consideration of their needs and capacities.[41]

B.   KIA Bill: Empowering or Risky?

Beyond the legal lack of certainty addressed above, concerns have also been raised regarding the context of the legal implication provisions set under the KIA Bill. Worries have emerged concerning provisions under the KIA Bill that are not properly empowering working mothers. Instead, current provisions set under the KIA Bill generally seem to describe and define working mothers as an inconvenience to employers.[42]

While acknowledging that provisions set under the KIA Bill primarily hope to ensure improved welfare for mothers and children, the fear is that said provisions will leave too much of a gap for working mothers, who will use them as an excuse for a lack of productivity and adequate levels of performance at work. Instead of spoon-feeding working mothers, it would be best if the provisions allowed them to strike their own balance between ensuring the welfare of their children and maintaining their working performance.[43]

In a worst-case scenario, the imposition of too many obligations and responsibilities upon employers regarding the facilitation of working women may disincentivize employers from hiring women in the long run. In essence, employers may become reluctant to hire mothers or women in general as a way of evading their obligations and responsibilities in relation to working mothers.[44]

Therefore, without dismissing efforts aimed at ensuring the welfare of mothers and children through the new set of provisions that feature under the KIA Bill, the long-term implications of the new provisions should also be adequately taken into account.[45]

C.    Applicable Standards to Accommodate the Rights of Working Mothers

As addressed previously, employers, among other parties, are required to provide facilities, proper accommodation and infrastructure capable of ensuring the fulfillment of the welfare of mothers and children, including within the workplace. That being said, a given employer will also be required to provide a healthcare service facility, lactation room and daycare facility at least within their office buildings. Moreover, employers must also accommodate the needs of working mothers by adjusting the required performance levels, working hours and/or working areas of working mothers, with due consideration being paid to conditions and working performance.

Within the context of tangible facilities, not all office buildings are currently providing the facilities required under the KIA Bill. In this regard, the office buildings that have already been brought into compliance with the required facilitation are primarily government offices and those of large-scale businesses. This shows that all employers do not enjoy the same capabilities and capacities as regards the establishment of required facilities.[46]

At present, the KIA Bill has yet to address the applicable standards of propriety that must be met by employers in order to ensure compliance with said obligations. This, however, presents an opportunity for companies to formulate their own internal standards for facilities that may be utilized as a reference during the establishment of said facilities within their office buildings.[47]

Additionally, services offered by facilitators in order to establish the required facilities may also be utilized by employers to ensure that their facilities and accommodations are in compliance with the standards of propriety. This will not only benefit employers through guaranteed compliance but should also result in the addition of new working fields and opportunities.[48]

Conclusion

The KIA Bill marks a significant step towards enhancing the welfare of mothers and children in Indonesia. By consolidating and expanding legal provisions, the bill addresses critical issues such as maternal and child health, nutrition and social welfare. However, the implementation of these provisions will require significant coordination among various stakeholders, including employers, government bodies and healthcare providers. While the bill promises substantial benefits, it also poses challenges, particularly in terms of the harmonization of its substance with the existing Manpower Law and ensuring compliance across diverse workplaces. The success of the KIA Bill will ultimately depend on effective execution and continuous evaluations that are capable of meeting the evolving needs of the community.

Source: hukumonline.com