Legal Status and Consequences of Marriage Between Employees in the Same Company under Indonesian Law

Legal Status and Consequences of Marriage Between Employees in the Same Company under Indonesian Law

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Jack Wiston, GDL., LPC

INTRODUCTION

This memorandum addresses the legal framework governing marriage between employees within the same company in Indonesia. It analyzes the permissibility of such marriages, the validity of company regulations prohibiting them, the legal consequences and sanctions for violations, relevant jurisprudence, and the relationship with internal codes of conduct and conflict of interest policies. The analysis is based on prevailing Indonesian labor laws, Constitutional Court decisions, and relevant ministerial circulars, providing clear guidance for compliance and risk mitigation for employers and employees.

DISCUSSION

  1. Legal Status of Marriage Between Employees in the Same Company
  • Indonesian law does not prohibit marriage between employees within the same company or organization.
  • Article 153 paragraph (1) letter f of Law Number 13 of 2003 concerning Manpower, as amended by the Job Creation Law (Perppu Cipta Kerja), expressly prohibits employers from terminating employment (PHK) on the grounds of blood relations and/or marital ties between employees in the same company.
  • The Constitutional Court Decision Number 13/PUU-XV/2017 further strengthens this protection by declaring that the phrase “unless regulated in the employment agreement, company regulations, or collective labor agreement” in Article 153 paragraph (1) letter f has no binding legal force. Thus, employers cannot enforce a prohibition on marriage between employees, even if stipulated in internal regulations.
  • The principle of lex superior derogat legi inferiori applies, meaning higher-level legislation overrides lower-level regulations.
  • Minister of Manpower Circular Number SE-04/M/BW/1996 also prohibits discriminatory provisions, including bans on female employees marrying, from being included in company regulations or collective agreements.
  • Therefore, marriage between employees in the same company is lawful and cannot be used as grounds for termination or employment prohibition, regardless of employment status.
  1. Validity of Prohibitions in Company Regulations, Collective Agreements, or Employment Contracts
  • Any prohibition on marriage between employees contained in collective labor agreements (PKB), company regulations, or employment contracts is legally invalid and contrary to prevailing laws.
  • Article 153 paragraph (1) letter f of Law Number 13 of 2003, as amended by Article 81 point 43 of the Job Creation Law, prohibits termination of employment on the basis of marital ties between employees, without exception.
  • The Constitutional Court Decision Number 13/PUU-XV/2017 affirms that the phrase allowing exceptions in company regulations or agreements is unconstitutional and has no legal effect.
  • Minister of Manpower Circular Number SE-04/M/BW/1996 reiterates that prohibitions on female employees marrying must not be included in company regulations or collective agreements, as part of anti-discrimination efforts.
  • If such prohibitions are included in company regulations, PKB, or employment contracts, they are rendered void by the principle of lex superior derogat legi inferiori, with the higher law (Manpower Law and Constitutional Court Decision) prevailing.
  • Consequently, any prohibition on marriage between employees in internal company documents is null and void.
  1. Sanctions for Companies and Management for Violations
  • If a company enforces or applies a prohibition on marriage between employees, whether through employment contracts, company regulations, or collective agreements, the following sanctions apply:
    1. Under Article 153 paragraph (1) letter f of Law Number 13 of 2003, as affirmed by Constitutional Court Decision Number 13/PUU-XV/2017, termination of employment on the grounds of marriage between employees is null and void by law, and the employer must reinstate the affected employee.
    2. Article 111 paragraph (2) of Law Number 13 of 2003 states that company regulations must not conflict with prevailing laws; if they do, the higher law prevails.
    3. If unlawful termination occurs, the employee is entitled to reinstatement and payment of wages and entitlements during the period of unemployment, as stipulated in Article 153 paragraph (2).
    4. Companies failing to inform and provide employees with company regulations, or including unlawful provisions, may be subject to criminal fines ranging from IDR 5,000,000 to IDR 50,000,000 under Article 188 paragraph (1).
    5. Labor Inspectors are authorized to investigate and enforce compliance, including in cases of discrimination and unlawful termination, as provided in Article 60 of Government Regulation Number 35 of 2021.
  • Sanctions may include:
    • Mandatory reinstatement of unlawfully terminated employees
    • Payment of wages and entitlements during the period of unemployment
    • Administrative and/or criminal fines for the company and/or management
    • Supervision and enforcement actions by Labor Inspectors
  • These provisions are absolute and cannot be overridden by internal company rules.
  1. Criminal Sanctions for Violations
  • Companies or management may be subject to criminal sanctions for violations related to prohibiting marriage between employees, especially if such violations result in unlawful termination.
  • Article 153 paragraph (1) letter f of Law Number 13 of 2003 prohibits termination on the grounds of marriage between employees; such termination is null and void, and the employer must reinstate the employee.
  • If the employer persists in such termination, criminal sanctions may be imposed under Article 185 paragraph (1), which provides for imprisonment of at least 1 year and up to 4 years and/or fines ranging from IDR 100,000,000 to IDR 400,000,000, particularly for violations of Article 156 paragraph (1) or other explicitly criminalized provisions.
  • Failure to provide or explain company regulations to employees, or inclusion of unlawful provisions, may result in criminal fines of IDR 5,000,000 to IDR 50,000,000 under Article 188 paragraph (1).
  • Labor Inspectors are empowered to investigate and enforce compliance, including in cases of discrimination and unlawful termination, as stipulated in Article 182 paragraphs (1) and (2).
  • In summary, criminal sanctions may be imposed on companies or management found guilty of unlawful termination or other explicit violations of the Manpower Law.
  1. Jurisprudence: Industrial Relations Court Decisions on Termination Due to Marriage Between Employees
  • Several Industrial Relations Court (PHI) decisions have addressed termination due to marriage between employees:
    1. PHI Central Jakarta Decision Number 12/PHI.G/2012/PN.JKT.PST: The court ruled that termination due to marriage between employees is null and void by law, based on Article 153 paragraph (1) letter f. The company was ordered to reinstate the employee and pay all entitlements during the period of unemployment.
    2. PHI Bandung Decision Number 37/G/2011/PHI/BDG: The court held that company regulations prohibiting marriage between employees cannot be used as grounds for termination. The principle of lex superior derogat legi inferiori was applied.
    3. Constitutional Court Decision Number 13/PUU-XV/2017: This decision reinforced the protection by declaring the exception clause in Article 153 paragraph (1) letter f unconstitutional.
    4. In practice, PHI courts consistently order payment of wages and entitlements during the period of unemployment, as provided in Article 153 paragraph (2).
  • These decisions consistently uphold the prohibition of termination due to marriage between employees and restore the rights of affected employees.
  1. Relationship with Conflict of Interest Rules, Code of Conduct, and Ethics Codes
  • The prohibition of termination due to marriage between employees is absolute, even if the company has internal rules on conflict of interest, code of conduct, or ethics codes.
  • Article 153 paragraph (1) letter f of Law Number 13 of 2003, as affirmed by Constitutional Court Decision Number 13/PUU-XV/2017, prohibits termination on the grounds of marriage between employees, regardless of internal company rules.
  • Any attempt to justify such prohibition on the basis of conflict of interest management is invalid, as higher-level legislation prevails (lex superior derogat legi inferiori).
  • Article 153 paragraph (2) provides that termination on such grounds is null and void, and the employer must reinstate the employee.
  • Internal rules on conflict of interest, code of conduct, and ethics codes may be implemented as long as they do not infringe upon employees’ statutory rights. Companies may manage potential conflicts of interest through task reassignment, job rotation, or information access restrictions, but not through termination or prohibition of marriage.
  • The Constitutional Court has emphasized that blood relations or marital ties are matters of fate and cannot be used to override the right to work and the right to form a family.
  • Companies must ensure that internal rules do not conflict with the Manpower Law. Any conflict of interest arising from marriage must be managed in a manner that respects employees’ rights, not through termination or prohibition.
  • In summary, internal codes cannot be used as a legal basis for prohibiting or terminating employment due to marriage between employees.

CONCLUSION

Based on the analysis above, it is concluded that marriage between employees in the same company is fully protected under Indonesian law. Any prohibition or sanction imposed by company regulations, collective agreements, or employment contracts is null and void. Employers are strictly prohibited from terminating employment on such grounds, and violations may result in administrative and criminal sanctions, as well as reinstatement and compensation for affected employees. Companies are advised to review and revise internal policies to ensure full compliance with prevailing labor laws and Constitutional Court decisions.

  1. Companies must immediately remove any provisions prohibiting marriage between employees from internal regulations, agreements, or contracts.
  2. In managing potential conflicts of interest, companies should implement non-discriminatory measures such as job rotation or task reassignment, without infringing upon employees’ statutory rights.

LEGAL BASIS

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