Indonesia’s New Mother & Child Law Imposes Additional Obligations on Employers
Indonesia has enacted wide-ranging new legislation on maternal and child welfare during the first 1,000 days of a child’s life ("KIA Law").[1] In the employment sphere, this imposes a variety of new obligations on employers, while simultaneously clarifying a number of existing ones.
Key Takeaways for Employers
From the employer’s perspective, five aspects of the KIA Law are of particular interest:
Maternity Leave Entitlements
While the existing Manpower Law[2] provides a female employee with the right to 1.5 months’ leave before childbirth and 1.5 months afterwards (extendable without limit based on a doctor or midwife’s recommendation), the KIA Law stipulates that the 3-month maternity leave entitlement can be extended by up to 3 more months. The additional leave may only be availed of in special circumstances, such as maternity-related health issues, postpartum complications or miscarriage, or the birth of a child with a health disorder or medical complication. All of these circumstances need to be evidenced by a doctor’s certificate.
Additionally, in the event of a miscarriage, the employee is entitled to recuperation leave of 1.5 months, or longer, based on a certificate from a doctor, obstetrician, or midwife.
Obligation to Pay Salary During Extended Maternity Leave
The KIA Law also clarifies an employer’s obligation to pay an employee who takes extended maternity leave. Full pay must be provided during the first month of extended leave, with the amount reducing to 75 percent of monthly pay for each of the next 2 months.
Support for Mothers in the Workplace
The KIA Law provides that every working mother is entitled to:
appropriate facilities for the provision of health and nutrition services, and for lactation during work hours;
accessible childcare facilities in terms of distance and affordability;
support through measures such as adjustment of duties, and flexible or alternative working arrangements, while at the same time having regard to workplace exigencies and performance objectives;
sufficient time for caregiving, if required (the legislation states that this issue will be governed by the employee’s contract of employment, employee handbook or collective labor agreement).
Unfortunately, no guidance or parameters are provided as to what constitutes “appropriate” or “accessible” in relation to points a and b above. Notwithstanding this, the legislation provides that employers who fail to comply will be liable to “guidance” and administrative sanction from the government. More details on guidance and administrative sanctions are expected to be provided by upcoming implementing regulations.
Paternity Leave
Male employees/husbands are entitled to:
2 days’ paternity leave at the time of childbirth, which may be extended by up to a further 3 days (or as agreed) – this provision is rather unclear as it fails to explain what the criteria are for extended paternity leave; or
2 days’ leave in the event of a miscarriage.
While the amount of paternity leave mandated under the KIA Law is the same as under the Manpower Law, there is no provision in the Manpower Law for additional paternity leave.
The KIA Law also requires an employer to afford a husband sufficient time to be with his wife and/or child in cases where: (i) the wife experiences a health issue, disorder, or complications postpartum or after a miscarriage, (ii) the child is born with a health issue, disorder, or complication; (iii) the wife dies during childbirth; or (iv) the child dies at birth.
Prohibition on Termination of Employment during Maternity Leave
Echoing the Manpower Law, the KIA Law prohibits an employer from dismissing a mother for availing herself of her rights under the KIA Law, such as taking extended maternity leave or leave for recuperation following miscarriage. Mothers exercising these rights cannot be dismissed and must continue to receive their entitlements under the legislation.
ABNR Commentary
While the KIA Law clarifies and strengthens the rights of mothers, fathers and children vis-à-vis employers, it suffers in some instances from a lack of definition and clarity, thus leading to a certain amount of uncertainty or ambiguity as to what precisely employers need to do in order to comply with its provisions.
In addition, many of the rights conferred by the KIA Law are already provided by the Manpower Law, which remains in effect, thus leading to a degree of unnecessary overlapping.
Despite its shortcomings, the KIA Law clearly imposes a number of new requirements on employers, while at the same time clarifying existing ones. Employers would, therefore, do well to take note of the changes and to make whatever adjustments are required to their HRD policies so as to ensure compliance.
With more than 55 years’ experience advising leading domestic and multinational companies on Indonesian manpower and labor issues, ABNR is ideally placed to help you get to grips with the new legislation. So, should you require any assistance, please do not hesitate to contact the authors: Indra Setiawan (isetiawan@abnrlaw.com), Tifanny Natalia (tnatalia@abnrlaw.com), and Laras Kusumo (lkusumo@abnrlaw.com)
[1] Undang-Undang Republik Indonesia Nomor 4 Tahun 2024 tentang Kesejahteraan Ibu dan Anak pada Fase Seribu Hari Pertama Kehidupan
[2] Law No. 13/2003 on Manpower, as amended by Law No. 6/2023 on the Confirmation of Government Regulation No. 2 of 2022 on Job Creation as Law (Undang-Undang Nomor 13 Tahun 2003 tentang Ketenagakerjaan, terakhir diubah dengan Undang-Undang Nomor 6 Tahun 2023 tentang Penetapan Peraturan Pemerintah Pengganti Undang-Undang Nomor 2 Tahun 2022 tentang Cipta Kerja menjadi Undang-Undang)
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NEWS DETAIL
11 Oct 2024
Indonesia’s New Mother & Child Law Imposes Additional Obligations on Employers
Indonesia has enacted wide-ranging new legislation on maternal and child welfare during the first 1,000 days of a child’s life ("KIA Law").[1] In the employment sphere, this imposes a variety of new obligations on employers, while simultaneously clarifying a number of existing ones.
Key Takeaways for Employers
From the employer’s perspective, five aspects of the KIA Law are of particular interest:
Maternity Leave Entitlements
While the existing Manpower Law[2] provides a female employee with the right to 1.5 months’ leave before childbirth and 1.5 months afterwards (extendable without limit based on a doctor or midwife’s recommendation), the KIA Law stipulates that the 3-month maternity leave entitlement can be extended by up to 3 more months. The additional leave may only be availed of in special circumstances, such as maternity-related health issues, postpartum complications or miscarriage, or the birth of a child with a health disorder or medical complication. All of these circumstances need to be evidenced by a doctor’s certificate.
Additionally, in the event of a miscarriage, the employee is entitled to recuperation leave of 1.5 months, or longer, based on a certificate from a doctor, obstetrician, or midwife.
Obligation to Pay Salary During Extended Maternity Leave
The KIA Law also clarifies an employer’s obligation to pay an employee who takes extended maternity leave. Full pay must be provided during the first month of extended leave, with the amount reducing to 75 percent of monthly pay for each of the next 2 months.
Support for Mothers in the Workplace
The KIA Law provides that every working mother is entitled to:
appropriate facilities for the provision of health and nutrition services, and for lactation during work hours;
accessible childcare facilities in terms of distance and affordability;
support through measures such as adjustment of duties, and flexible or alternative working arrangements, while at the same time having regard to workplace exigencies and performance objectives;
sufficient time for caregiving, if required (the legislation states that this issue will be governed by the employee’s contract of employment, employee handbook or collective labor agreement).
Unfortunately, no guidance or parameters are provided as to what constitutes “appropriate” or “accessible” in relation to points a and b above. Notwithstanding this, the legislation provides that employers who fail to comply will be liable to “guidance” and administrative sanction from the government. More details on guidance and administrative sanctions are expected to be provided by upcoming implementing regulations.
Paternity Leave
Male employees/husbands are entitled to:
2 days’ paternity leave at the time of childbirth, which may be extended by up to a further 3 days (or as agreed) – this provision is rather unclear as it fails to explain what the criteria are for extended paternity leave; or
2 days’ leave in the event of a miscarriage.
While the amount of paternity leave mandated under the KIA Law is the same as under the Manpower Law, there is no provision in the Manpower Law for additional paternity leave.
The KIA Law also requires an employer to afford a husband sufficient time to be with his wife and/or child in cases where: (i) the wife experiences a health issue, disorder, or complications postpartum or after a miscarriage, (ii) the child is born with a health issue, disorder, or complication; (iii) the wife dies during childbirth; or (iv) the child dies at birth.
Prohibition on Termination of Employment during Maternity Leave
Echoing the Manpower Law, the KIA Law prohibits an employer from dismissing a mother for availing herself of her rights under the KIA Law, such as taking extended maternity leave or leave for recuperation following miscarriage. Mothers exercising these rights cannot be dismissed and must continue to receive their entitlements under the legislation.
ABNR Commentary
While the KIA Law clarifies and strengthens the rights of mothers, fathers and children vis-à-vis employers, it suffers in some instances from a lack of definition and clarity, thus leading to a certain amount of uncertainty or ambiguity as to what precisely employers need to do in order to comply with its provisions.
In addition, many of the rights conferred by the KIA Law are already provided by the Manpower Law, which remains in effect, thus leading to a degree of unnecessary overlapping.
Despite its shortcomings, the KIA Law clearly imposes a number of new requirements on employers, while at the same time clarifying existing ones. Employers would, therefore, do well to take note of the changes and to make whatever adjustments are required to their HRD policies so as to ensure compliance.
With more than 55 years’ experience advising leading domestic and multinational companies on Indonesian manpower and labor issues, ABNR is ideally placed to help you get to grips with the new legislation. So, should you require any assistance, please do not hesitate to contact the authors: Indra Setiawan (isetiawan@abnrlaw.com), Tifanny Natalia (tnatalia@abnrlaw.com), and Laras Kusumo (lkusumo@abnrlaw.com)
[1] Undang-Undang Republik Indonesia Nomor 4 Tahun 2024 tentang Kesejahteraan Ibu dan Anak pada Fase Seribu Hari Pertama Kehidupan
[2] Law No. 13/2003 on Manpower, as amended by Law No. 6/2023 on the Confirmation of Government Regulation No. 2 of 2022 on Job Creation as Law (Undang-Undang Nomor 13 Tahun 2003 tentang Ketenagakerjaan, terakhir diubah dengan Undang-Undang Nomor 6 Tahun 2023 tentang Penetapan Peraturan Pemerintah Pengganti Undang-Undang Nomor 2 Tahun 2022 tentang Cipta Kerja menjadi Undang-Undang)