“Perlindungan Hukum terhadap Pekerja Alih Daya di Perusahaan Migas: Implementasi PP Nomor 35 Tahun 2021 tentang Alih Daya dan PHK”

“Perlindungan Hukum terhadap Pekerja Alih Daya di Perusahaan Migas: Implementasi PP Nomor 35 Tahun 2021 tentang Alih Daya dan PHK” Penulis: Usman Arifin M Konsultan Hukum Ketenagakerjaan / Praktisi Human Capital/ Founder USALawfirm / Alumni Magister Ilmu Hukum Program Hukum Ketenagakerjaan Fakultas Hukum Universitas Indonesia Abstrak, This study examines the legal protection afforded to outsourced workers in the oil and gas industry within the context of the implementation of Government Regulation (PP) Number 35 of 2021, which governs Fixed-Term Employment Agreements (PKWT), outsourcing, and termination of employment (PHK). A normative-juridical research method is employed to analyze relevant regulations, court decisions, and field practices. The findings indicate that, although PP No. 35 provides a legal framework for a maximum contract duration of five years and compensation for termination (including severance pay, long service awards, and compensation for entitlements), several challenges remain. These include ambiguous definitions, limited administrative sanctions, and obstacles in protecting workers during the transfer of company assets in the oil and gas sector. The study recommends refining regulatory definitions, strengthening oversight mechanisms, and enhancing the enforcement of workers’ rights through mediation and litigation. Penelitian ini membahas perlindungan hukum kepada pekerja alih daya di industri migas dalam konteks implementasi PP Nomor 35 Tahun 2021 yang mengatur PKWT, alih daya, dan PHK. Metode penelitian normatif-yuridis digunakan untuk menganalisis regulasi, putusan pengadilan, dan praktik di lapangan. Hasil menunjukkan bahwa, meskipun PP 35 memberikan dasar hukum ketentuan durasi kontrak maksimal lima tahun dan kompensasi PHK (uang pesangon, penghargaan masa kerja, penggantian hak), masih terdapat berbagai tantangan: definisi yang multitafsir, minimnya sanksi administratif, dan kendala perlindungan dalam alih aset perusahaan migas. Rekomendasi diarahkan pada perbaikan definisi regulasi, pengawasan yang lebih ketat, serta upaya penegakan hak pekerja melalui mediasi dan litigasi. This study examines legal protection for outsourced workers in the oil and gas industry within the context of implementing Government Regulation No. 35 of 2021, which governs Fixed-Term Employment Agreements (PKWT), outsourcing, and termination of employment (PHK). A normative‑juridical research method is employed to analyze regulations, court decisions, and practical field implementation. The findings show that although PP No. 35 provides a legal basis for a maximum contract duration of five years and compensation for termination (including severance pay, long-service awards, and other entitlement compensations), several challenges remain. These include ambiguous definitions, minimal administrative sanctions, and protection gaps during the transfer of assets in oil and gas companies. The study recommends refining regulatory definitions, strengthening oversight mechanisms, and promoting enforcement of workers' rights through mediation and litigation. Introduction This section outlines the background: the widespread use of outsourcing in the oil and gas sector, the status of outsourced workers under PKWT/PKWTT contracts, and the risk of unilateral termination by either the outsourcing provider or the user company. Using a normative‑juridical approach, the study reviews both the regulatory framework and its implementation, as well as the relevant decisions of the Industrial Relations Court (PHI). Theoretical & Regulatory Framework Law No. 13 of 2003: foundational regulations on employment relationships (Article 1(1)), outsourcing (Articles 59–60), and termination of employment (Articles 151–158). Government Regulation No. 35 of 2021 (effective since 2 February 2021): regulates PKWT, outsourcing, and PHK, including contract validity, compensation provisions, and legal requirements for outsourcing: Articles 18–20 stipulate that labor procurement through outsourcing must use written PKWT/PKWTT contracts, define the responsibilities of the outsourcing company, and protect workers through mechanisms such as TUPE (transfer of employment rights). Article 40 establishes the scheme for calculating severance pay, long-service awards, and compensation for entitlements in cases of termination. Articles 56–57 govern termination due to efficiency, retirement age, and urgent reasons, as well as the rights to compensation or severance. A notable weakness of the regulation is the absence of clear sanctions for both outsourcing service providers and user companies, as well as ambiguous definitions of “urgent reasons” for termination. Additionally, Law No. 11 of 2020 (Job Creation Law) is relevant, particularly in relation to outsourcing, complementing the implementation of PP No. 35/2021. Conditions of Outsourced Workers in the Oil and Gas Sector Outsourced workers in this sector typically have PKWT contracts and are not directly employed by the user company. Key issues include reduced pay, insufficient oversight of safety and work standards, and lack of transfer of performance records when the outsourcing provider changes. Implementation of PP No. 35/2021 in Practice PHI Kendari Decision No. 10/Pdt.Sus‑PHI/2021 (6 September 2021): The user company terminated employment due to retirement age, and the court ruled for severance pay equivalent to 1.75 times the normative calculation under Article 40(1)–(3) of PP No. 35/2021. RSPP–Pertamina Central Hospital case (2021): The PHI ordered the cessation of outsourcing practices due to lack of formal licensing, ruling that the workers should have been directly employed by the user company. Supreme Court Decision 1438 K/Pdt.Sus‑PHI/2017 and decisions from PN Manado and PN Surabaya established precedents requiring employment relationships to transfer to the user company if the outsourcing arrangement is illegal. Discussion Implementation of PP No. 35/2021 demonstrates improved credibility in limiting PKWT duration and establishing PHK processes, based on research findings and PHI rulings on outsourcing. The PHI Kendari decision (No. 10/Pdt.Sus PHI/2021) is a notable example, enforcing severance pay and residual rights for outsourced workers per the regulation. Academic journals (e.g., Anatami) further explore the obligations of outsourcing companies regarding working hours and overtime in line with PP No. 35/2021. Analysis & Challenges Key challenges in oil and gas outsourcing include: Overlapping regulations and ambiguous definitions of what constitutes an “urgent reason” for termination. Weakness of enforcement: no clear administrative or criminal sanctions for violating parties and inadequate formal oversight (e.g., contract registration, licensing). Implementation issues during asset or contract transfers—outsourced workers may be terminated before their PKWT ends, and there is no requirement to transfer their employment status to the new entity. Recommendations Clarify the definition of “urgent reason” and specify legitimate criteria for PHK. Strengthen administrative and criminal sanctions for user companies and outsourcing providers that violate worker rights. Enhance supervision by the Ministry of Manpower and BPJS, including online contract registration and regular audits. Ensure effective TUPE implementation: outsourcing companies must maintain continuous employment relationships during the transition of service providers, as mandated in Article 19 of PP No. 35/2021. Facilitate workers’ access to mediation and litigation at PHI, and leverage social security protections (e.g., through BPJS and the Job Loss Insurance Program under PP No. 6 of 2025). Promote the enactment of a dedicated outsourcing law for strategic sectors such as oil and gas, in line with proposals to prohibit outsourcing in core technical roles. Conclusion PP No. 35/2021 represents progress by formalizing outsourcing and PHK procedures and assigning responsibility to outsourcing firms, yet significant implementation challenges persist—especially regulatory ambiguity, weak sanctions, and improper practices in the oil and gas industry. PHI and Supreme Court rulings have established supportive precedents for safeguarding outsourced workers, but stronger enforcement is still needed—not only to uphold workers’ welfare but also to ensure job security and transparency in employment conditions. To realize these goals, further regulatory refinement, firm oversight by governmental bodies, and balanced legal norms are essential to empower workers and secure their rights in practice.