Implementation of Anti-Discrimination Provisions in Job Vacancy Criteria Based on Article 35 Paragraph (1) of Law Number 13 of 2003 on Manpower

Implementation of Anti-Discrimination Provisions in Job Vacancy Criteria Based on Article 35 Paragraph (1) of Law Number 13 of 2003 on Manpower Author: Usman Arifin M Labor Law Consultant / Labor Law Practitioner / Founder of USA Law Firm / Alumni of the Master of Legal Studies in Labor Law, Faculty of Law, University of Indonesia Abstract Reports on discriminatory criteria in employee recruitment reflect unfair practices in the hiring process that violate human rights. Although Indonesia’s Manpower Law regulates non-discriminatory principles in recruitment, practical implementation often tells a different story. Law Number 13 of 2003 on Manpower outlines a non-discriminatory framework within employment relationships. Article 35 Paragraph (1) explicitly states that every worker has an equal opportunity to obtain employment. However, discriminatory job advertisements remain prevalent. This article examines the forms of discrimination in recruitment practices, evaluates their compliance with Indonesia’s positive law, and offers recommendations for improving the enforcement of this legal norm in employment practice. The research uses a normative juridical method with a sociological approach. Keywords: Manpower, Discrimination, Recruitment, Law No. 13 of 2003, Human Rights.

Introduction Discrimination in recruitment remains a crucial issue in Indonesia’s labor market. Requirements based on gender, age, and religion frequently appear in job advertisements. Yet Article 35 Paragraph (1) of Law Number 13 of 2003 on Manpower clearly prohibits employers from including discriminatory requirements in job postings. Content of Article 35 Paragraph (1): "Every worker shall have the same opportunity without discrimination to obtain employment." This means no differential treatment should occur in the hiring process based on ethnicity, religion, race, gender, or physical condition. Field Realities Many companies still include discriminatory criteria, such as: "Good looking and attractive" "Single female, maximum age 25" "Male, minimum height 170 cm" "Muslim" These criteria, albeit implicitly, violate the non-discriminatory principles upheld by the Manpower Law. Legal Consequences Although Article 35 Paragraph (1) is declarative in nature (stating a principle), its neglect can trigger intervention by labor supervisory bodies and may become the subject of a lawsuit in the Industrial Relations Court, especially in cases where discrimination causes harm. Several judicial review attempts have been made seeking to allow companies more discretion in setting recruitment criteria based on industry needs. However, the Constitutional Court rejected such motions. Still, dissenting opinions have noted the potential legal uncertainty within the phrase “independently recruit the required workforce.” Impacts of Discrimination Loss of Employment Opportunities: Discrimination prevents qualified individuals from obtaining jobs. Social Inequality: It exacerbates social and economic disparities. Economic Loss: It reduces national economic potential by failing to utilize human resources optimally. The prohibition of discrimination in the workplace is part of the broader principles of equality and social justice. Article 35 Paragraph (1) of Law No. 13 of 2003 reflects the state’s commitment to protecting the rights of workers to access employment without unequal treatment based on personal characteristics. Research Methodology This study uses a normative juridical approach supported by secondary data, including court rulings, labor agency reports, and documentation of job vacancy advertisements. Discussion 1. Definition of Discrimination in the Context of Labor Law Discrimination is defined as any distinction made based on race, skin color, gender, religion, political opinion, social origin, or other statuses. In recruitment, it occurs when companies impose requirements irrelevant to job competence or demand arbitrary conditions unrelated to the work itself. 2. Article 35 Paragraph (1) of the Manpower Law This article serves as a fundamental norm protecting workers from discriminatory practices. Although it does not explicitly stipulate sanctions, it is imperative in nature and forms a legal basis for worker protection. 3. Implementation in Practice Job advertisements often still include discriminatory requirements such as: Physical appearance demands like “good looking” or “attractive,” which are irrelevant to job functions. Unjustified age limits, which should ideally align with retirement age or professional experience. Gender-based requirements for neutral roles, which are discriminatory and violate human rights. Religious requirements with no direct relevance to job duties. These practices highlight weak enforcement and a lack of legal awareness among employers. 4. Comparison with International Law Indonesia has ratified ILO Convention No. 111 of 1958 concerning Discrimination in Respect of Employment and Occupation, which affirms the prohibition of discriminatory practices in recruitment and employment. Therefore, clearly discriminatory elements in job criteria should be eliminated and prohibited from job postings. Conclusion Article 35 Paragraph (1) of the Manpower Law provides legal protection for workers’ rights that remain under-implemented. This provision should be recognized as a legal foundation to combat discrimination in the recruitment process. Applying the principle of non-discrimination in recruitment is not merely a legal obligation but also a human rights imperative. Employers must adopt a more conscientious and responsible approach in developing hiring criteria that align with legal norms and principles of social justice. Recommendations Strengthen Government Oversight: Authorities must enhance supervision over discriminatory job advertisements. Employer Education: Companies should be educated on the principle of non-discrimination and its legal consequences. The government must enforce these provisions rigorously. Regulatory Reform: There is a need for implementing regulations that impose administrative sanctions for violating non-discrimination principles. Public awareness of rights and anti-discrimination measures should be improved. Cultural Transformation: Companies should promote inclusive and equitable workplace cultures that prioritize competence over bias. Increased Participation: Efforts should be made to enhance labor force participation among women and marginalized groups.