A Digest of Case Law on the Human Rights of Women - Asia Pacific ...

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CEDAW Indonesia Article 11 Employment Nurhatina Hasibuan (Petitioner) v Pt. Indonesia Toray Synthetics, Functionaries <strong>of</strong> Indonesian Labour Union, Functionaries Board <strong>of</strong> Indonesian Labour Union Branch, Central Management Board <strong>of</strong> Indonesian Labour Union (Respondents) No. 651/PDT/1988/PT.DKI Jakarta High Court 2 July 1988 Hasan Basri Pase CJ, Moeridjatun, Soengkono JJ <strong>Law</strong>s and International Instruments Considered CEDAW 1979, Articles 1, 4, 11; Kesepakatan Kerja Bersama 1954, Articles 12, Figure 2 (Mutual Working Agreement) 16, 68; Labour Act 1969, Article 2; Occupational Act 1948, Articles 7, 8, 9, 13. This case examines whether a lower mandatory retirement age for women constitutes sex discrimination. The Court considered whether the lower retirement age was in breach <strong>of</strong> the Labour Act 1969, which prohibits discrimination on the ground <strong>of</strong> sex, and international instruments such as CEDAW. The Court also considered whether it had the jurisdiction to hear this case. On 27 April 1987, the petitioner, Ms Hasibuan, received a notice from her employer Toray Synthetics stating that as she would be turning 40 the following month, she would be required to resign from her job. The work agreement under which Ms Hasibuan was employed included a mandatory age for retirement <strong>of</strong> 55 years for men and 40 years for women. For Ms Hasibuan, this meant that she would not be eligible for the same benefits as a man, because her age would prevent her from qualifying for the pension. Ms Hasibuan applied to the Court for an order requiring her employer to change the mandatory retirement age so that it would be the same for men and women. She also asked the Court to issue an order requiring her employer to employ her until she reached the age <strong>of</strong> 55. The lower court decided in favour <strong>of</strong> Ms Hasibuan and the respondents appealed to the Jakarta High Court. 14
Nurhatina Hasibuan v Pt. Indonesia Toray Synthetics, etc. (Indonesia) Ms Hasibuan argued that Article 12, Figure 2 <strong>of</strong> the Mutual Working Agreement 1954 [“the Working Agreement”] was discriminatory as it set a lower retirement age for women than for men. She argued it breached Article 2 <strong>of</strong> the Labour Act 1969, which states that employers should not discriminate on the basis <strong>of</strong> sex. Further, she argued that the Labour Union, by knowingly agreeing to the Working Agreement, had also breached the Labour Act 1969. Finally, Ms Hasibuan argued that Indonesia had international obligations to promote the equality <strong>of</strong> women under CEDAW, and should therefore amend the Working Agreement to make equal provision for men and women. The respondents argued that the Court did not have jurisdiction to decide this matter and that it should be handled by the administrative bodies responsible for solving labour disputes. These administrative bodies, the respondents argued, included the Head Office <strong>of</strong> the Labour Ministry, as well as the Director General <strong>of</strong> Developing Labour Relationships and Job Norm Supervision. As these were the bodies responsible for the Working Agreement any action should be directed at them. The respondents also argued that even if the Court was found to have jurisdiction, the different mandatory retirement age for men and women was part <strong>of</strong> a labour agreement that was only temporary (for two years) and on this basis should not be subjected to challenge for discrimination. The respondents also argued that even if the Working Agreement was discriminatory, it was acceptable discrimination. They argued that the biological difference between men and women justified a lower age <strong>of</strong> retirement for women. Women, for example, were more likely to experience work related stress and illness. The respondents argued that the purpose <strong>of</strong> the provision was protective, similar to legislation that prohibits women from working in mines, or at night. Further, differences in retirement ages could also be found in other groups <strong>of</strong> employees in the workforce such as government positions where workers had a lower retirement age. This, the respondents argued, was allowed as acceptable discrimination. Finally, the respondents argued that Ms Hasibuan had not specified which article <strong>of</strong> CEDAW she wished to rely upon. They also argued that CEDAW must not be applied rigidly but instead interpreted flexibly in light <strong>of</strong> the local social norms <strong>of</strong> a given society. Decision The Court decided in favour <strong>of</strong> Ms Hasibuan, confirming the decision <strong>of</strong> the lower court. The Court rejected the argument that it did not have jurisdiction on the basis that if a law is broken, the Court will have the jurisdiction to rule upon it. The Court ordered that the company, Indonesia Toray Synthetics, immediately amend the 15
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Page 8 and 9: Contents ARTICLE 16(f): MARRIAGE AN
Page 10 and 11: Contents MARRIAGE AND FAMILY LIFE -
Page 12 and 13: Introduction regional groups - an i
Page 15 and 16: Part I CEDAW Cases
Page 17 and 18: Imelda Romualdez-Marcos v Commissio
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Page 23 and 24: Sayeeda Rahman Malkani and others v
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Page 29 and 30: Article 11 Employment Teikoku Zouki
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Page 33 and 34: to clarify paternity suggested by t
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Page 41 and 42: Article 16.1(f) Marriage and Family
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CONSTITUTIONAL LAW Nepal Nationalit
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CONSTITUTIONAL LAW Japan Employment
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Iwate Bank Case (J
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CONSTITUTIONAL LAW Bangladesh Marri
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Patricia Molu v Cidie Molu (Pacific
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Prakash Mani Sharma v His Majesty
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John Noel (as representative <stron
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John Noel (as representative <stron
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Hee Jung Woo v Jung Hue Shin, Jong
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Al-Amin and 5 others v The State (B
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Al-Amin and 5 others v The State (B
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95 Glossary In criminal proceedings
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countries. Sharia is a religious co
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Bangladesh CEDAW Country Ratificati
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Government is discriminatory. Some
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CEDAW Country Ratification Report:
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Notes Asia Pacific Forum on Women,
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