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

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
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