This is the final part of a multi-part article that first appeared in our Quarter II Wake Up Call  highlighting some employment/HR matters that managers should be aware of to avoid mistakes that might jeopardize the relationship with employees and/or create risk of disputes. 

Cuti Bersama - Mandatory, Free Leave or Ignore?

Cuti Bersama (CB) or collective leave applies to government employees, who are required to take leave on certain specified days linked to public holidays.  These CB are deducted from the employee’s annual leave entitlement.

The CB dates are not required to be followed by the private sector and therefore it is the private sector employer’s decision whether it wishes to follow the CB or not. Frequently banks and institutions linked to the financial markets will follow these because the supporting government institutions (e.g. Bank Indonesia) are closed.

Private sector employers can decide whether to ignore the CB, offer a free/office holiday or require that some CB are followed (mandatory leave with deduction from the employee’s leave balance). The employer should document the policy in the relevant agreements. 

Long Service Leave

Since the enactment of the 2003 Manpower Law, employers are not required to offer long service leave.  However, if they offered long service leave, then certain minimum requirements were stipulated.

The 2020 Job Creation Law has removed these minimum requirements, leaving these to be regulated by ministerial regulation. That regulation states that any provisions regarding long service leave shall be determined by the employer and documented in the relevant agreements. Therefore, at present, it is the employer’s discretion whether it will offer long service leave and on what basis. However, any existing long service leave will need to follow the existing agreed terms. 

Updated maternity & paternity benefits - Law 4 on Maternal & Child Welfare during the first 1000 days of life 

Law No. 4 on Maternal & Child Welfare during the first 1000 days of life (Law No. 4) was signed by the President on 2 July 2024, with immediate effect. 

Although Law No. 4 is subject to the issue of implementing regulations that must be issued within 2 years of 2 July 2024, there are several requirements that employers should be aware of.

 Mothers are entitled to maternity leave of: 

  • A minimum of the first 3 months; and 
  • Up to an additional 3 months if there are special conditions (such as the mother experiencing health problems, complications after childbirth or miscarriage; or health problems or complications experienced by the newborn child). A doctor's 
    certificate is required as evidence for additional leave. 

The salary entitlement during this period is:

  • Full salary for the first 3 months. 
  • Full salary for the fourth month. 
  • 75% of the salary for the fifth and sixth months.

The base 3-month paid leave entitlement is consistent with the existing law and regulations, however, the additional leave and related salary for leave exceeding 3 months is new.

If the expected mother suffers a miscarriage, then she is entitled to 1.5 months paid leave or the period specified in a certificate from a doctor, obstetrician or gynecologist, or a midwife. 

This is also consistent with the existing law and regulations. However, it appears there might also be an entitlement for up to 6 months if this is supported by a doctor’s certificate. This view is based on the stipulation that the “special conditions” referred to above also include a miscarriage. It is hope this will be clarified when the implementing regulations are issued. Assuming our view is correct then the salary due would also follow the above entitlement to full salary for the first four month and then 75% of salary for the fifth and sixth months.

A provision that is likely to create some concern for employers is the obligation for employers to support mothers by providing:

  • Space for lactation
  • Daycare

As suggested in the elucidation to Law No.4, this obligation might be limited to workplaces where is there are sources of danger.  It is hoped the relevant implementing regulation will be promptly issued to clarify employer’s obligations for these matters.

 Failure to provide these facilities will result in guidance and/or administrative sanctions in accordance with applicable laws and regulations. This might be stipulated in the implementing regulations.

Compared to the current entitlement for 2 days leave in the event of the birth of his baby or a miscarriage, Law No. 4 provides the husband with:

  • 2 days paid leave in the event of the birth of a baby that can be extended for up to 3 days additional paid leave or as agreed, or 
  • 2 days paid leave in the event of a miscarriage.

Further the husband should be “sufficient time” (waktu yang cukup) to accompany his wife and/or the child if:

  • The wife has health problems, health disorders, and/or post-childbirth complications or miscarriage;
  • The child is born with health problems, health 
    disorders, and/or complications;
  • The wife who gave birth passed away; and/or
  • The newborn Child passed away.

The meaning of “sufficient time” and any limitations are not stipulated in Law No. 4 and might be explained in the implementing regulations. 

 

By Nicholas Graham, Business Services Practice