Early last month, the Indonesian government announced a single system for regulating the recruitment and contracting of migrant fishers, which was long-awaited by migrant rights activists.
The new set of rules aims to make recruitment more orderly and improve the welfare of Indonesian migrant fishers – who end up working on fishing vessels that are part of foreign fleets, including Taiwan.
A very conservative estimate from the International Labour Organization (ILO) shows that each year, around 23,000 Indonesian migrant fishers are recruited by licensed companies for overseas employment. But this figure is likely to be much higher as it does not include data from all government authorities administering recruitment.
During one of the author’s past research with ILO, we found that most fishers came from villages near the north coast of Central Java, where the 2022 minimum wage is a little more than Rp 1.8 million (US$121.38) a month. By contrast, employment as a migrant fisher promises US$300-400.
However, they usually only receive US$50 monthly for the first five months. The rest is withheld for recruitment fees and to help ensure the fishers will complete their two-year contract. In some cases, the agents do not return the withheld wages to the fishers. This guarantees the fishers remain on the job despite well-known physical abuse and poor working conditions.
The newly announced regulation is expected to address these issues. However, it has legal complexities that might harm attempts to protect migrant fishers.
Ministry of Manpower wins licensing control
Currently, no one in the government actually knows how many migrant fishers from Indonesia have been recruited for overseas employment. This complicates government efforts to monitor for abuse and exploitation.
The lack of data is due to multiple government agencies such as the Agency for Migrant Worker Protection, the Ministry of Transport as well as local trade offices competing for control of licensing by implementing their own systems. While licensing promises much-needed non-budgetary income to fund their operations, the main motivation is to exercise more power over the recruitment industry. That also entails the ability to grant exemptions from rules in exchange for an illegal fee.
The new regulation unequivocally gives control to one government agency: the Ministry of Manpower.
It gives the Ministry of Manpower authority to licence recruitment companies known as “manning agents”. The ministry also does it for other companies supplying migrant workers to households, plantations and factories in Asia-Pacific and the Persian Gulf. The 2017 Migrant Worker Protection Law mandates this control.
‘Homework’ for policymakers
Civil society organisations such as the Indonesian Migrant Workers Union and MigrantCare have long advocated for the government to issue a regulation that brings order to the system.
Now the government has done so, it has created “homework” for policymakers, advocates and lawyers who will be involved in implementing and monitoring the new system.
We have identified three legal issues that need to be settled.
1. Unclear terminology: migrant fishing crew or fishing sea-goers?
The regulation uses a new legal term, “migrant fishing crew” (awak kapal perikanan migran), to describe migrant fishers. It resembles the legal term “fishing crew” (awak kapal perikanan) found in implementing regulations associated with the 2004 Fisheries Law. But the new regulation is an implementing regulation of the migrant worker protection law, which refers to them as “fishing sea-goers” (pelaut perikanan).
The new legal term could result in manning agents and the government shirking responsibility for procedurally recruited and deployed migrant fishers. It opens possibilities for them to argue that required changes to the recruitment practice do not apply, especially if they increase the cost of doing business.
It also signals that the government is seeking to integrate the “migrant protection” and “employment protection” policy domains, which it tends to treat separately. This different treatment by the government is largely because overseas abuses and exploitation of Indonesians are often high-profile at home. In contrast, poor employment conditions for local domestic workers, construction workers and fishers are tolerated.
This integration may mean that the government must apply the same standards of assistance for Indonesians working at home and abroad.
But a legislative amendment is needed to synchronise legal terminologies between existing regulations to prevent this - not how it has been done here.
2. There may be other licensing systems for migrant fishers
Second, the regulation does not unequivocally state that the new licensing system may be the only one in the future.
It stipulates that the Ministry of Manpower will recognise licences previously issued by the Ministry of Transport for two years. During that time, licence holders need to comply with new conditions. These include depositing Rp1.5 billion (US$101,144) to cover the cost of unpaid financial responsibilities for their recruits.
The new regulation singles out a 2013 regulation that the Ministry of Transport used to issue those licences. However, the Ministry of Transport declared that regulation invalid on July 7 2021 when it replaced it with a new one. These licence holders could argue that they are not legally required to comply with the Ministry of Manpower’s new rules.
3. The need for specialist judges to adjudicate disputes
The new regulation includes an example of policy innovation that, with time, may improve compliance.
The regulation requires the Industrial Relations Court to adjudicate disputes between manning agents and migrant fishers regarding the rights and obligations in the required placement contract (perjanjian penempatan).
This contract is often violated when recruiting migrant workers for overseas households and factories. While some violations are reported to the government, even fewer lawsuits have been filed at the district court for adjudication as a civil matter using contract law.
This policy innovation intends to treat the violations as a “special” civil matter (perdata khusus) and requires that the court specialising in settling labour disputes handle the cases. To be effective, the government needs to train specialist judges to “resolve” the disputes.
A greater role for the legal system
Litigation through Indonesia’s notoriously slow-moving court system will provide answers to these issues.
The leading civil society organisations are divided about how useful the court system is regarding recruitment matters.
But the Indonesian Migrant Workers Union has used it in various ways to advocate specific cases and put pressure on the government to create “better” rules that favour recruits instead of the manning agents, such as this new regulation.
Wayne Palmer menerima dana dari Dewan Riset Australia (Hibah: DP220101031).
Benni Yusriza Hasbiyalloh terafiliasi dengan Tenggara Strategics, perusahaan riset yang didirikan oleh The Jakarta Post, CSIS dan Universitas Prasetiya Mulya. Artikel ini sendiri tidak berhubungan dengan pekerjaan di Tenggara.
This article was originally published on The Conversation. Read the original article.
