With increasing reports of sexual violence in Indonesia over the last three years, and the enactment of Law No. 12 of 2022 (the Sexual Violence Law), which created specific offenses for sexual violence, Indonesia’s Ministry of Manpower updated their 2011 guidelines on sexual harassment in the workplace.
The new guidelines were issued through Minister of Manpower Decree No. 88 of 2023 on Guidelines for Preventing and Handling Sexual Violence in the Workplace (the 2023 Guidelines).
Under the 2023 Guidelines, employers are required, among other things, to create a taskforce for preventing and dealing with sexual violence at work.
Coverage
Unlike the 2011 guidelines, which focused on sexual harassment, the 2023 Guidelines are wider in ambit since they now cover sexual violence, in line with the Sexual Violence Law.
Sexual violence is defined as any act that demeans, insults, harasses or attacks a person’s body or reproductive functions due to an imbalance of power or gender that results or may result in physical or psychological harm. This term is broader than sexual harassment, and also contemplates harm in the form of interference with reproductive health.
The 2023 Guidelines recognize physical and nonphysical sexual harassment and electronic-based sexual violence as forms of sexual violence that most frequently occur at the workplace. The 2023 Guidelines also provide detailed examples of conduct that may amount to harassment or violence.
Sexual harassment is defined as any unwelcome sexual advance, request for sexual favors, verbal or physical sexual conduct or gestures, and any other sexual conduct that would offend, humiliate or intimidate a person.
Prevention of Sexual Violence
The 2023 Guidelines encourage employers to take action to prevent sexual violence at work, using steps broadly similar to those set out in the 2011 guidelines. This may include, for instance: implementing policies preventing sexual violence at the workplace and providing training on sexual violence at work.
The 2023 Guidelines go a step further by requiring employers to create a taskforce to prevent and deal with sexual violence at work. Employers that already have a bipartite cooperation institution—Bipartite LKS—may place the taskforce within the Bipartite LKS.
Bipartite LKS
A Bipartite LKS must be formed at any employer with at least 50 employees and must be registered with the local Manpower Office. It serves as a platform to discuss matters concerning industrial relations at a company. The Bipartite LKS is required to, among other things, convene regular meetings and facilitate communication between management and employees in order to prevent industrial relations issues arising.
The taskforce should have at least three members—two of whom act as chairperson and secretary—and include representatives of both the management and employees, or labor union. The taskforce will be responsible for:
- Arranging and executing programs related to the prevention and handling of sexual violence.
- Receiving and maintaining a record of sexual violence complaints.
- Gathering information on the occurrence of sexual violence at the workplace.
- Providing recommendations to the victim and the employer on resolving complaints.
- Providing assistance to the victim.
While the concept of a taskforce to deal with sexual violence is not new (the 2011 guidelines refer to a panel for preventing sexual harassment), the 2023 Guidelines are far more prescriptive in terms of the establishment, composition and responsibilities of the taskforce. They also mandate the creation of the taskforce, though there are no specific penalties for failure to do so.
Apart from establishing a taskforce, the 2023 Guidelines also recommend that employers provide appropriate facilities to prevent sexual violence at work, including workspaces and break rooms with sufficient lighting, and CCTV surveillance.
Proactive Approach
The Indonesian government’s more proactive approach to addressing sexual violence at the workplace is a timely and welcome development. In the last few years, we have seen an increase in workplace sexual harassment complaints across Asia, and particularly in Indonesia. This is consistent with the International Labor Organization’s 2022 Report on Sexual Violence and Harassment in the Workplace in Indonesia, which found that more than 70 percent of the 1,173 individuals surveyed reported suffering sexual violence at work.
The 2023 Guidelines are a helpful reminder for employers to ensure that their policies are effective in both preventing and dealing with sexual violence. In our experience, a key risk is the failure to include sexual harassment and violence as a form of misconduct that warrants termination of employment without notice in either the employment contract or the company regulations—or collective labor agreement, as appropriate. That omission significantly limits an employer’s options when dealing with substantiated cases of sexual harassment and violence.
That said, the recommendations in the 2023 Guidelines need to be tailored to the particular circumstances. For instance, while setting up a taskforce is useful in ensuring consistency across all sexual harassment and sexual violence cases, employers should also consider how to deal with a complaint made against a member of the taskforce itself, or against an employee who is more senior than the taskforce chairperson. In such situations, the taskforce may not be able to handle the complaint effectively.
Key Takeaways
Employers should:
- Arrange regular training for all employees, particularly those in satellite offices and remote facilities. Workplaces far from the head office may face less oversight and reporting of inappropriate behavior, and lack readily available resources to address complaints. Communication challenges and differing workplace cultures also often exist between the main versus satellite offices.
- Set up a taskforce as recommended in the 2023 Guidelines, ensuring that employees know about and have access to confidential reporting channels.
- Have a clear and accessible anti-harassment policy (for example, on the company intranet or a physical bulletin board) and send regular reminders (for example, though internal email communications) on the employer’s stance against sexual harassment. Employers might also incorporate appropriate examples from the Sexual Violence Law to clarify the policy further.
Prawidha Murti is an attorney with Herbert Smith Freehills’ associate firm, Hiswara Bunjamin & Tandjung, in Jakarta, Indonesia. © 2023 Herbert Smith Freehills. All rights reserved. Reposted with permission of Lexology.