LEGAL POLICY IN PROTECTION FOR INDONESIAN SEAFARERS

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1 International Journal of Civil Engineering and Technology (IJCIET) Volume 10, Issue 1, January 2019, pp , Article ID: IJCIET_10_01_041 Available online at ISSN Print: and ISSN Online: IAEME Publication Scopus Indexed LEGAL POLICY IN PROTECTION FOR INDONESIAN SEAFARERS 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:, Legal Policy In Protection For Indonesian Seafarers, International Journal of Civil Engineering and Technology (IJCIET), 10 (1), 2019, pp INTRODUCTION Data from Indonesian central statistics agency (BPS) states that the number of Indonesia's workforce continues to increase and currently has reached 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 editor@iaeme.com

2 Legal Policy In Protection For Indonesian Seafarers 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 editor@iaeme.com

3 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 editor@iaeme.com

4 Legal Policy In Protection For Indonesian Seafarers 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 editor@iaeme.com

5 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 editor@iaeme.com

6 Legal Policy In Protection For Indonesian Seafarers 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. REFERENCE [1] Budiartha, I.N.P. (2018). Work Permit for Foreign Workers in Indonesia. Journal of Legal, Ethical and Regulatory Issues 21(Special Issue). [2] Couper, A. D., Walsh, C., Stanberry, B., & Boerne, G. L. (1999). Voyages of abuse: Seafarers, human rights and international shipping. Pluto Press. [3] Ellis, N., & Sampson, H. (2008). The global labour market for seafarers working aboard merchant cargo ships [4] Hamid, A. (2012). Menuju Kebijakan Yang Adil Bagi Pekerja Migran. Jakarta: FHUP Press. [5] Handani, N. D. (2018). Muslim students' awareness on halal products: A study in a non- Islamic country. Arthatama Journal of Business Management and Accounting, 2(1). [6] Kartasapoetra. (1986). Hukum Perburuhan Di Indonesia Berlandaskan Pancasila. Jakarta: Bina Aksara. [7] Kelsen, H. (2000). General Theory of Law and State. Translated by Rasisul Muttaqien. Bandung: Nusa Media editor@iaeme.com

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