11 Oct 2023
New Indonesian Guidelines on Workplace Sexual Harassment: Improvements Still Needed

Introduction

Following the enactment of the Sexual Harassment Law[1] in 2022, on 29 May 2023 the Minister of Manpower (“MoM”) issued MoM Decree No. 88 of 2023 on Guidelines for the Prevention of and Response to Sexual Harassment in the Workplace (“Guidelines”),[2] which provides technical guidance for employers and other stakeholders on how best to prevent and respond to workplace sexual harassment.

The Guidelines aim to synchronize, consolidate and update earlier guidelines on the issue that were set out in a 2011 MoM Circular[3] so as to take better account of evolving social mores. For example, as will be discussed further below, the Guidelines emphasize how all employers are required to better monitor and respond to cases of sexual harassment by establishing a dedicated task force to tackle the issue, something that was not required under the 2011 MoM Circular. The Guidelines also stress that employers are not only required to help victims recover but to also take measures to protect them from future incidents. The roles of the Ministry of Manpower and local-government manpower agencies are also addressed by the Guidelines in the expectation that they will help reinforce the efforts of employers to tackle sexual harassment in the workplace.

A. Key Features

In line with the provisions of the Sexual Harassment Law, the Guidelines define sexual harassment as any unwanted sexual advance, request to engage in sexual activity, or verbal or physical sexual conduct or gesture that could offend, humiliate and/or intimidate a person and disrupt the workplace environment.  The Guidelines identify nine forms of sexual harassment:

1. non-physical sexual harassment;
2. physical sexual harassment;
3. forced contraception;
4. forced sterilization;
5. forced marriage;
6. sexual violence;
7. sexual exploitation;
8. sexual slavery; and
9. electronic-based sexual violence.

Of these nine categories of sexual harassment, general definitions and examples are only provided for three: (i) physical sexual harassment, (ii) non-physical sexual harassment and (iii) electronic-based sexual violence.

Further, the general definitions provided for both non-physical and physical sexual harassment make these dependent on an intention to demean (they are respectively defined as a physical or non-physical act that is “... focused on the body, sexual desire and/or the reproductive organs with the intention of demeaning a person’s dignity based on their sexuality (and/or their moral values, in the case of non-physical harassment) ...”. This issue of intent is further discussed in our ABNR Commentary below.

The Guidelines then identify the actions that employers must take to prevent and deal effectively with sexual harassment in the workplace:

1. Establish policies for the prevention and tackling of sexual harassment and their incorporation into employment agreements, internal company regulations or collective labor agreements;
2. Provide education and campaign against sexual harassment aimed at stakeholders in the workplace;
3. Heighten employee awareness of the risks of sexual harassment in order to prevent its occurrence;
4. Provide adequate workplace safeguards to discourage incidents of sexual harassment (installation of surveillance cameras, etc.); and
5. Disseminate persuasive anti-sexual harassment messages (using posters, social media, etc.).

Further, the Guidelines require the establishment of a dedicated task force (with at least 3 members) to implement employers’ anti-sexual harassment policies.

B. Right to Complain

The Guidelines stipulate that a victim, family member, colleague, or other relevant party may lodge a complaint – manually or online – about sexual harassment with either the employer’s task force (see section E below), the local-government manpower agency (dinas) or the MoM (collectively “Complaints Body”). Complaints may also be filed directly with the police.

C. Responding to Complaints

Complaints of incidents of sexual harassment must be responded to seriously, swiftly and in a non-discriminatory manner. In response to a complaint:

1. The Complaints Body must gather information on the alleged sexual harassment from the victim, the reporting and reported parties (and other relevant parties), surveillance camera footage, etc. Information that is collected must be recorded in writing.
    
2. The Complaints Body, upon the collection of information, must provide considerations with regard to:
    
3. 1. the victim, with a view to the filing of a criminal complaint with the police; and/or
   2. the employer, with a view to imposing sanctions on the reported party in accordance with the provisions of the relevant employment agreement, internal company regulations or collective labor agreement. Sanctions can take the form of a written warning, reassignment of the reported party to a different division/department/work unit, reduction or withdrawal of the reported party’s authority in the workplace, suspension, and – ultimately – termination of employment. None of this should preclude the right of the victim to independently file a criminal complaint against the reported party.

Throughout the process, victims must be provided with appropriate support and protection by the Complaints Body, in accordance with the provisions of the laws and regulations.

D. Victim Recovery

The Guidelines mandate employers to assist with, and take whatever action is necessary to ensure, victim recovery. This should include (but is not limited to):

1. Preventing retaliation from the reported party;
2. Ensuring regular supervision of the workplace;
3. Ensuring that a victim will not be adversely affected by the way the sexual harassment is responded to (such as via demotion, being overlooked for promotion, etc.);
4. Other assistance, such as compensation or providing additional sick/annual leave as may be deemed necessary for the victim to properly recover from the incident (through therapy or counselling, reimbursement of medical expenses, etc.).

E. Employer’s Anti-Sexual Harassment Task Force

The Guidelines oblige an employer to establish a task force consisting of at least three members, the primary purpose of which is to prevent, or respond to, incidents of workplace sexual harassment. The task force may be established via (1) the employer’s bipartite cooperation body (if it has one); or (2) a resolution of the Board of Directors or other top management.

It should be noted that the Guidelines do not impose any sanctions on an employer that fails to set up a task force.

The responsibilities of the task force should include (but not be limited to):

1. Establishing programs and activities to support the employer’s policy for the prevention of, or response to, workplace sexual harassment;
2. Receiving and recording complaints from victims;
3. Collecting information related to allegations of workplace sexual harassment;
4. Determining how to deal with victims and the employer itself; and
5. Providing support to victims.

The task force must simultaneously uphold the employer’s code of ethics and its own objectivity and credibility, and maintain confidentiality by never disclosing the identities of those involved to unauthorized parties.

ABNR Commentary

While the Guidelines seem to demonstrate a commitment on the part of government to tackling sexual harassment in the workplace, they are nevertheless surprisingly ambiguous and “flexible” in places.

For example, under the definitions of physical and non-physical sexual harassment, an action must be “intended to demean” before it can constitute sexual harassment. This is clearly an unsatisfactory formula that runs contrary to international norms as it makes these forms of sexual harassment dependent on the intention of the perpetrator, which significantly increases the burden of proof as a perpetrator may often claim to have had no intention whatsoever of demeaning a victim but the victim is nevertheless left feeling demeaned as a result of the perpetrator’s actions or words. This lack of certainty could well make victims think twice before filing a complaint.

A further obvious example of ambiguity or lack of clarity in the Guidelines is the fact that no size threshold is stipulated for businesses that are required to establish an anti-sexual harassment task force. As the Guidelines cover every form of business that employs labor in return for the payment of wages, all employers, even micro businesses, are in theory required to establish a task force, something that would be highly onerous if not actually an absurdity in practice for very small businesses (given that a task force should consist of at least three members). In addition, there are no sanctions on businesses that fail to establish a task force, which could be seen as calling into question the government’s seriousness in this regard.

So, while the Guidelines are to be generally welcomed as a step forward, it is clear that they could do with some further tightening up if they are to be effective.

By partners Mr. Indra Setiawan (isetiawan@abnrlaw.com) and Mr. Ridzky F. Amin (tamin@abnrlaw.com), and  senior associate Ms. Marintan Panjaitan (mpanjaitan@abnrlaw.com)

This ABNR News and its contents are intended solely to provide a general overview, for informational purposes, of selected recent developments in Indonesian law. They do not constitute legal advice and should not be relied upon as such. Accordingly, ABNR accepts no liability of any kind in respect of any statement, opinion, view, error, or omission that may be contained in this legal update. In all circumstances, you are strongly advised to consult a licensed Indonesian legal practitioner before taking any action that could adversely affect your rights and obligations under Indonesian law.