Indonesia: New Guidelines On Sexual Violence In The Workplace

With increasing reports of sexual violence in Indonesia over the last three years, and the enactment of Law No. 12 of 2022 (the Sexual Violence Law), which created specific offences for sexual violence, Indonesia's Ministry of Manpower saw the need to update their 2011 guidelines on sexual harassment in the workplace.

The new guidelines were issued last month through Minister of Manpower Decree No. 88 of 2023 on Guidelines for Preventing and Handling Sexual Violence in the Workplace (the 2023 Guidelines).

Under the 2023 Guidelines, employers are required, among other things, to create a task force for preventing and dealing with sexual violence at work.

COVERAGE

Unlike the 2011 guidelines, which focused on sexual harassment, the 2023 Guidelines are wider in ambit since they now cover "sexual violence," in line with the Sexual Violence Law.

"Sexual violence" is defined as any act that demeans, insults, harasses or attacks a person's body or reproductive functions due to an imbalance of power or gender which results or may result in physical or psychological harm. This term is broader than "sexual harassment," and also contemplates harm in the form of interference with reproductive health.

The 2023 Guidelines recognise physical and non-physical sexual harassment and "electronic-based sexual violence" as forms of sexual violence that most frequently occur at the workplace. The 2023 Guidelines also provide detailed examples of conduct which may amount to harassment or violence.

"Sexual harassment" is defined as any unwelcome sexual advance, request for sexual favours, verbal or physical sexual conduct or gestures, and any other sexual conduct that would offend, humiliate or intimidate a person.

PREVENTION OF SEXUAL VIOLENCE

The 2023 Guidelines encourage employers to take action to prevent sexual violence at work, using steps broadly similar to those set out in the 2011 guidelines. This may include, for instance:

• implementing policies preventing sexual violence at the workplace; and
• providing training on sexual violence at work.

The 2023 Guidelines go a step further by requiring employers to create a task force to prevent and deal with sexual violence at work. Employers that already have a bipartite cooperation institution (Bipartite LKS) may place the task force within the Bipartite LKS.

The task force should have at least three members (two of whom act as chairperson and secretary) and include representatives of both the management and employees (or labour union). The task force will be responsible for:

• arranging and executing programmes related to the prevention and handling of sexual violence;
• receiving and maintaining a record of sexual violence complaints;
• gathering information on the occurrence of sexual violence at the workplace;
• providing recommendations to victim and employer on resolving complaints; and
• providing assistance to the victim.

While the concept of a task force to deal with sexual violence is not new (the 2011 guidelines refer to a panel for preventing sexual harassment), the 2023 Guidelines are far more prescriptive in terms of the establishment, composition and responsibilities of the task force. They also mandate the creation of the task force, though there are no specific penalties for failure to do so.

Apart from establishing a task force, the 2023 Guidelines also recommend that employers provide appropriate facilities to prevent sexual violence at work, including workspaces and break rooms with sufficient lighting, and CCTV surveillance.

OUR VIEW

The Indonesian government's more proactive approach to addressing sexual violence at the workplace is a timely and welcome development. In the last few years, we have seen an increase in workplace sexual harassment complaints across Asia, and particularly in Indonesia. This is consistent with the International Labor Organisation's 2022 Report on Sexual Violence and Harassment in the Workplace in Indonesia, which found that more than 70% of the 1,173 individuals surveyed reported suffering sexual violence at work.

The 2023 Guidelines are a helpful reminder for employers to ensure that their policies are effective in both preventing and dealing with sexual violence. In our experience, a key risk is the failure to include sexual harassment and violence as a form of misconduct that warrants termination of employment without notice (alasan mendesak) in either the employment contract or the company regulations (or collective labour agreement, as appropriate). That omission significantly limits an employer's options when dealing with substantiated cases of sexual harassment and violence.

That said, the recommendations in the 2023 Guidelines need to be tailored to the particular circumstances. For instance, while setting up a task force is useful in ensuring consistency across all sexual harassment and sexual violence cases, employers should also consider how to deal with a complaint made against a member of the task force itself, or against an employee who is more senior than the task force chairperson. In such situations, the task force may not be able to handle the complaint effectively.

KEY TAKEAWAYS

Employers should:

• arrange regular training for all employees, particularly those in satellite offices and remote facilities. Workplaces far from the head office may face less oversight and reporting of inappropriate behaviour, and lack readily available resources to address complaints. Communication challenges and differing workplace cultures also often exist between the main vs satellite offices;
• set up a task force as recommended in the 2023 Guidelines, ensuring that employees know about and have access to confidential reporting channels; and
• have a clear and accessible anti-harassment policy (eg on the company intranet or a physical bulletin board) and send regular reminders (eg though internal email communications) on the employer's stance against sexual harassment. Employers might also incorporate appropriate examples from the Sexual Violence Law to clarify the policy further.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.