The work environment in Indonesia has been drastically changed by COVID-19. Most offices have adopted work from home (“WFH”) systems in light of the pandemic and the restrictions put in place by the Government on the number of employees allowed to physically work in offices.
WFH is possible with the support of digital technology that allows employees to be connected and work flexibly without being physically present in the office. While there are benefits to the adoption of a WFH system, such as eliminating commute times and costs, work from home can blur the boundary between work and private life. With employees connected digitally and reachable around the clock, the right to disconnect has become a hot topic in employment law globally.
We discuss here the right to disconnect in general and how it looks for employers and employees from an Indonesian legal perspective.
What Is the Right to Disconnect?
The right to disconnect concerns the right of employees to be disconnected from their work-related digital communications outside their working hours. This means employees can, without consequence, choose not to reply to work-related emails, calls, or messages during their non-working hours.
The right to disconnect was first introduced by the Labor Chamber of the French Supreme Court in 2001, which held that employees were under no obligation either to accept working at home or to bring home their work files or tools (Labor Chamber of the Cour de Cassation dated October 2, 2001). The court further affirmed this ruling in 2004, finding that it cannot be considered misconduct if employees are not reachable on their cell phones outside working hours (Labor Chamber of the Cour de Cassation dated February 17, 2014).
As of the date of this article, several countries have formally adopted the right to disconnect in their local laws, e.g., France, Italy and Spain. Other countries, including the Philippines and Canada, have introduced bills proposing a similar concept.
Right to Disconnect and the Current Indonesian Legal Perspective
The primary rights of employees in Indonesia are governed under Law No. 13 of 2003 regarding Manpower, as amended by Law No. 11 of 2020 regarding Job Creation (the “Manpower Law”). However, neither the Manpower Law nor its implementing regulations address the right of an employee to disconnect. We note that the closest and most relevant provisions concern overtime work, which to a certain extent is only applicable to a certain group of employees.
Pursuant to Article 78(1) of the Manpower Law jo. Article 28 of Government Regulation No. 35 of 2021 regarding Fixed-Term Employment Agreement, Outsourcing, Working Hours and Rest Hours, and Termination of Employment (“GR 35/2021”), both the employee’s approval and the employer’s authorization is required for overtime work to be carried out.
The Manpower Law and GR 35/2021 provide several other restrictions on overtime work. According to the Manpower Law and GR 35/2021, overtime shall not exceed four hours per day and 18 hours per week. Further, the employer is required to provide and the employee is entitled to the following: (i) overtime pay; (ii) sufficient rest time; and (iii) foods and beverages with at least 1,400 calories for four hours or more of overtime.
Note that exceptions to overtime pay apply for a certain group of employees having responsibilities as so-called thinkers, planners, executors and/or controllers of the company. It is generally considered that employees with these responsibilities are those at or above the management level or professional employees. These employees, with unlimitable working hours and higher salaries, are not entitled to overtime pay for working beyond their respective working hours.
Such arrangement should be clearly governed in the employment agreement, company regulation or a collective labor agreement, otherwise the employer could be obliged to provide overtime pay.
What to Expect Ahead?
Despite it not actually being governed by the Manpower Law, it is not entirely impossible for the right to disconnect to be enforced under Indonesian employment practice. As such, it is important for employers to consider this idea and decide how they might wish to address and govern the issue in their employment agreements, company regulations, or collective labor agreements, as applicable.
For more information, please contact:
Syahdan Z. Aziz, Partner, SSEK
syahdanaziz@ssek.com
Vivin Purnamawati, Associate, SSEK
vivinpurnamawati@ssek.com
