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Jurnal Legalitas
Volume 16 Issue 1, 2023
P-ISSN: 1979-5955, E-ISSN: 2746-6094
This work is licensed under a Creative Commons Attribution-NonCommercial 4.0 International License.
ILO AND LEGAL PROTECTION FOR INDONESIAN
MIGRANT WORKERS (STUDY CASE: ADELINA)
Nasrullah1, Logi Farman2, Rian Ade Pangestu3*, Ardi Novasela4
1 Faculty of Law, Universitas Muhammadiyah Yogyakarta, Indonesia. E-mail: nasrullah@umy.ac.id
2 Faculty of Law, Universitas Muhammadiyah Yogyakarta, Indonesia E-mail:
logi.farman.law21@mail.umy.ac.id
3 Faculty of Law, Universitas Muhammadiyah Yogyakarta, Indonesia. E-mail:
Rian.ade.law21@mail.umy.ac.id
4 Faculty of Law, Universitas Muhammadiyah Yogyakarta, Indonesia. E-mail:
ardi.novasela.law18@mail.umy.ac.id
Abstract: Adelina's case indicates that there are still arbitrary actions experienced by indonesian
workers in Malaysia. Adelina is an illegal migrant worker and was convicted of attempted murder by
her employer in Malaysia. Adelina often received violent treatment from her employer until Adelina
died. This research aims to find the facts of Adelina's case objectively so that it can be an evaluation
of the applicable legal formulation. The legal research used is normative legal research, researchers
put the law as a building system of norms. Doctrinal legal research in this study uses a regulatory
approach, and research sources that are in accordance with the legal issues studied. The results found
that the lack of prevention efforts by Indonesia and Malaysia against cases of smuggling of illegal
workers resulted in trafficking in persons being the main factor in the occurrence of unlawful acts
committed by employers against migrant workers.
Keywords: Migrant Worker; Human Trafficking; Illegal Worker; Woman Worker.
1. Introduction
The ILO is an International Labour Organization under the United Nations or
often called the United Nations. The ILO aims to protect and protect workers, by
“encouraging the creation of employment opportunities for one or a group of
women and one or a group of men in a company so that all workers can obtain
productive and decent work freely, safely, fairly, and with dignity.”
1
The main goal of the ILO is as a labor organization that can promote the rights
of every worker. The ILO also encourages the creation of decent employment
opportunities for workers, by improving social protection and strengthening
dialogue in addressing problems in the labor world. Thus, the ILO as a labor
organization has established cooperation with approximately 181 member states.
1
Vicente Silva, “The ILO and the Future of Work: The Politics of Global Labour Policy,” Global
Social Policy 22, no. 2 (2022): 341–358, https://doi.org/10.1177/14680181211004853.
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The ILO also ensures that employment standards are respected by “all parties in
both basic labor practices and principles.”
2
The basis of the ILO's role as an international labor institution is the connection
with the phenomenon of security that often occurs in the world of work. Phenomena
that occur include exploitation, violence, sexual harassment, and other forms of
crime. Often in the world of work workers do not get their rights such as the right to
get a salary and protection from treatment of violence and sexual harassment. Cases
of crime in the world of work are increasing, this is due to the deindustrialization
the creation of tensions between workers and employers. “From 2018 to 20223,
there were 2,300 crimes in the workforce, including not getting a salary.”
3
So the ILO
has expected to accommodate all the needs of the workforce. In addition to the ILO,
“the State also plays an important role in guaranteeing the rights of workers. The
right to welfare, and the right to legal protection.”
4
The role of ILO as an international organization has sought legal protections for
migrant workers from various countries. This can be seen by the existence of
protection instruments such as ILO Convention Number 19 of 1925 concerning
Equal Treatment for Citizens and Foreign Workers and ILO Convention Number 105
of 1957 concerning the Elimination of Forced Labor. The Instrument is a form of
protection provided by the ILO convention on migrant workers. The ILO acts as a
drafter of regulations at the international level which can then be used or utilized by
member states to serve as a guideline for the protection of migrant workers. In
addition to efforts to establish legal instruments, “the ILO also carries out a role as a
communicator by conducting campaigns and socialization efforts related to migrant
workers. As well as facilitating migrant workers who get unfair treatment while
working.”
5
Despite the existence of ILO Convention Number 19 of 1925 concerning Equal
Treatment for National and Foreign Workers and ILO Convention Number 105 of
1957 concerning the Elimination of Forced Labor, in its realization, there are still
cases of violence that occur in the world of work. including the cases that were then
the talk of the community the Adelina case. Adelina is a migrant worker from the
country who was the victim of attempted murder and torture. Adelina died in
Malaysia, as a result of malnutrition and abusive treatment by her employer which
resulted in injuries to Adelina's body. By cause of often gets modeling violent
treatment in evacuees with very weak body conditions. Adelina Sau was sentenced
to die in a hospital, a day after being rescued from her employer's home. The
2
Cindy Margareta, "The Role of the International Labour Organization (ILO) on Human Rights
Violations in the Form of Trafficking in Persons Occurring in Crew members (ABK)," Atma Jaya
University Yogyakarta Vol. 2, no. 3 (2016): 1–7, https://123dok.com/document/4yrplrvq-peran-
international-labour-organization-pelanggaran-berupa-perdagangan-terjadi.html.
3
Raja Eben Lumbanrau Endang Nurdin, “PRT Indonesia Di Malaysia - Ratusan Kasus
Penganiayaan, Puluhan Ribu Permintaan Di Balik Bisnis Besar,” BBC News Indonesia, 2023. Acessed
on 10 January 2023, Available: https://www.bbc.com/indonesia/dunia-64769844.
4
Michelia Valeria Japian, "The Existence of the International Labour Organization (ILO) in
providing protection for workers' rights under ILO Convention No. 111 of 1958 on discrimination in
employment and position and its implementation in," Lex Privatum Vol. 9, No. 1 (2021): 28–39.,
https://ejournal.unsrat.ac.id/index.php/lexprivatum/article/view/33148
5
Cici Valensy, "The Role of the International Labour Organization (ILO) in Protecting Indonesian
Migrant Workers in Saudi Arabia," JOM FISIP Vol. 4, no. 2 (2017): 1–11.
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perpetrators in this case have been successfully secured, “while Indonesia has
managed to secure two suspected masterminds of shipping or trafficking to
Malaysia.”
6
Incident that killed Adelina Sau, contrary to ILO principles of maintaining
protection and enforcement of the law for migrant workers. In the context of human
rights, the relevant state is obliged to provide guarantees of protection and respect
for human rights for each individual. Such obligations are slowly being accepted by
countries. stating that the country's obligations include three things, namely the
obligation to respect, the obligation to carry out, and the obligation to protect human
rights. The regulations relevant to the Adelina Case are contained in the Convention
on Migration for Employment or Labor Abroad. The convention contains several
provisions to ensure the security, comfort, and safety of migrants in carrying out
their work outside the country where they work. “The Convention urges member
states to comply with the results of the convention to enforce laws against criminal
acts of violence experienced by workers or migrant workers. and ILO Organizations
can easily take steps to counter propaganda that misleads Indonesian workers or
migrants.”
7
The Convention on the Protection of Migrants was created by the ILO through
ILO Convention No. 105 of 1957 on the abolition of forced labor. And on the outcome
of the convention is to ask its member states that have ratified the convention to be
able to position foreign workers who are legally within their territory. This is done
with the best treatment such as considering fairness in applying various statutory
instruments and rules. Then for countries that ratify it is prohibited to carry out
discrimination such as citizenship discrimination, racial discrimination, religious
discrimination, and sex discrimination.
In the ILO convention, the fundamental objective is to regulate the conditions
under which labor is employed and can provide special protection to workers who
are particularly vulnerable to being victims of unlawful acts. “The ILO convention
does not distinguish between permanent migrant workers and temporary migrant
workers.”
8
The theory used in this scientific journal is a theory related to the theory of
international organizations. “International Organizations have been defined as a
formal structural body that focuses on global and mutually sustainable issues, and
its implementation prioritizes the interests of people who do not get their rights.”
9
And in its formation through the consent of various sovereign and legitimate states.
6
Gede Dendi; Sudika Mangku Teguh Wahyudi Dewa Gede; Rai Yuliartini, Ni Putu, “Perlindungan
Hukum Tenaga Kerja Indonesia Ditinjau Dari Perspektif Hukum Internasional (Studi Kasus
Penganiayaan Adelina Tkw Asal Ntt Di Malaysia),” Jurnal Komunitas Yustisia 2, no. Vol 2, No 1 (2019):
Maret, Jurnal Komunitas Yustisia (2019): 55–65.
7
Aliesa Amanita Akbar, Taufan Herdnsyah, Sumarti Sari, “Implementasi Kebijakan Pemerintah
Dalam Perlindungan Tenaga Kerja Wanita (TKW) Studi Kasus: TKW DI Malaysia,” Jurnal Ilmu
Hubungan Internasonal 2, no. 1 (2017): 23–47, http://dx.doi.org/10.52947/morality.v8i1.223.
8
Purwaka Hari Prihanto, “Kebijakan Moratorium Pengiriman Tenaga Kerja Ke Luar Negeri Dan
Dampaknya Terhadap Penigkatan Kualitas Pekerja Migran Indonesia,” Hukum Dan Keadilan 7, no. 1
(2013): 15–28.
9
Yordan Gunawan, Hukum Internasional: Sebuah Pendekatan Modern (Yogyakarta: LP3M UMY,
2021). 40.
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With so many perspectives on Adelina's case, the author will try to gather and
analyze the facts to find an objective truth in Adelina's case, and also to animate the
legal position in force in Indonesia and Malaysia as countries that have ratified the
ILO convention, thus making it easier to find the legal formulations within the ILO
to protect migrant workers.
2. Method
The research method chosen is normative legal research which is legal research
that puts the law as a building system of norms. doctrinal legal research in this case
uses two types of approaches, including: First, the statutory approach, this is done
by examining laws and regulations that are in accordance with the problem being
studied. Second, is an analytical approach, aiming to be able to examine other
research that is in accordance with the problem.
3. Analysis or Discussion
3.1. The case of Adelina the Indonesian Worker who Died As a Result of Being
Tortured
In line with the increasing interest of Indonesian workers who want to work
abroad, “It is recorded that in 2023 the demand in the worker sector has reached
66,000.”
10
As well as the large number of Indonesian workers working outside the
country, “In 2021 the number of Indonesian migrant workers has reached 3.25
million.”
11
there are also various cases experienced by Indonesian workers. One of
the most common issues is human trafficking, which can be categorized as a crime
against humanity. “Indonesian workers outside the country are often subjected to
trafficking, including slavery and forced labor, victims of violence, arbitrariness,
crimes of human dignity and dignity, and other treatment that violates human
rights.”
12
According to the terms of Article 27 paragraph (2) jo. Article 28 D paragraph (2)
of the 1945 Constitution of the Republic of Indonesia explains that work is the
human right of the people of the country which is the responsibility of the state to
fulfill it. To carry out this constitutional mandate, the government has set various
policies. “One of them is by filling job opportunities outside the country. Indonesia
is the second largest sending country for migrant workers in Southeast Asia after
the Philippines.”
13
The meaning of work for each person is reflected in the 1945 Law of the
Republic of Indonesia Article 27 paragraph (2) states that every Public Society of the
Republic of Indonesia has the right to work and a decent livelihood for humanity.
10
Ibid
11
Dimas Bayu, “Jumlah Pekerja Migran Indonesia Capai 3,25 Juta Pada 2021,” DataIndonesia.Id,
2022. Accessed on 13 February. Available: https://dataindonesia.id/sektor-riil/detail/jumlah-
pekerja-migran-indonesia-capai-325-juta-pada-2021
12
I Gede Angga Aditya Putra, “Upaya Perlindungan Hukum Bagi Para Tenaga Kerja Indonesia
(Tki) Di Luar Negeri Dalam Perspektif Hukum Internasional,” Jurnal Komunikasi Hukum 8, no. 1
(2022): 469–80, https://doi.org/10.23887/jkh.v8i2.52017
13
Nina Yolanda, “Perlindungan Hukum Terhadap Tenaga Kerja Indonesia,” Solusi 18, no. 2
(2020): 198–217, https://doi.org/10.36546/solusi.v18i2.286.
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However, in reality, the limitations of job vacancies within the country have an
impact on the number of Indonesians looking for work outside the country. From
year to year, the number of those who work outside the country continues to grow.
The amount of interest of workers who want to work outside the country and the
large number of migrant workers who are working outside the country on the other
hand have positive sides. Among them is tackling some of the problems of
unemployment in the country. But it also has a negative side in the form of the
inhumane treatment of migrant workers. “This effect can be felt by migrant workers
either throughout the departure process while working outside the country, or after
returning to Indonesia.”
14
If based on Article 27 paragraph (2) of the 1945 Law of the Republic of
Indonesia, the law requires protecting the people of the country who want to
exercise their rights to get a job, especially outside the country, so that they can get
labor placement services effectively and instantly by always prioritizing the safety
of workers, both physical, moral and dignity.
juridically, the laws and regulations that are under reference to the placement
and protection of migrant workers outside the country are the Ordinance on the
Deployment of Indonesians to Carry Out Work Outside Indonesia (Staatsblad of
1887 No. 8) as well as Ministerial Decree, namely PP No. 59 of 2021. Where the Law
positions Indonesian migrant workers as active subjects who have dignity and
dignity as human beings and the conditions in the ordinance are so simple that they
instantly do not meet the growing needs. “The weakness of the ordinance and the
absence of a law that controls the placement and protection of migrant workers
outside the country has so far been addressed through arrangements in Ministerial
Decrees and regulations for their application.”
15
“Malaysia is the country that occupies the highest latrine in violence against
Indonesian workers, let alone reaching 39%.”
16
The high level of violence against
Indonesian workers in Malaysia must receive serious attention from the Indonesian
government for labor placement procedures. In essence, this is by article 7 of Law
Number 39 of 2004 concerning the Placement and Protection of Migrant Workers,
where the government is obliged to:
1) “Ensure the fulfillment of the rights of prospective migrant workers or
migrant workers, whether they depart through the implementation of the
placement of migrant workers, or those who leave independently;
2) Supervise the placement of prospective migrant workers;
3) Establish and improve the data system for the placement of prospective
migrant workers outside the country;
4) Carry out diplomatic work to ensure the fulfillment of the rights and
protection of migrant workers to the maximum in the destination country;
14
Ni Putu Yuliartini Rai Dendi Teguh Wahyudi, Dewa, Dewa Gede Sudika Mangku, “Perlindungan
Hukum Tenaga Kerja Indonesia Ditinjau Dari Perspektif Hukum Internasional (Studi Kasus
Penganiayaan Adelina TKW Asal NTT Di Malaysia),” Komunitas Yustisia Universitas Pendidikan
Ganesha Vol.9, no. 1 (2019): 55–65, https://doi.org/10.23887/jatayu.v2i1.28772
15
Ibid.
16
Teguh Wahyudi Dewa Gede; Rai Yuliartini, Ni Putu, “Perlindungan Hukum Tenaga Kerja
Indonesia Ditinjau Dari Perspektif Hukum Internasional (Studi Kasus Penganiayaan Adelina Tkw
Asal Ntt Di Malaysia).”
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5) Distribute protection to migrant workers throughout the period before
departure, placement period, and retirement period.”
Universally, the government's barriers to protecting Indonesian workers
outside the country began in 2006 in Bali, Indonesia agreed on an MoU
(Memorandum of Understanding) with Malaysia relating to the protection of
domestic workers. This again case of violence and human trafficking is not just a
matter of fact. However, this has always been a dynamic towards the Indonesia and
Malaysia agreements. “This is evidenced by several times that Indonesia has
terminated cooperation with Malaysia, especially in sending workers to Malaysia,
because Malaysia often violates agreements with Indonesia.”
17
The Indonesian government's obstacles to enforcing Indonesian labor laws
outside the country include trafficking in Indonesia. Similarly, the problems
experienced by TKW from Nusa Tenggara Timur Adelina, after it was identified that
Adelina was an Indonesian TKW. Adelina passed away because of being tortured by
her employer, Adelina often finds torture to the point of facing anemia and
malnutrition, especially since Adelina's body has residual injuries that are not
overcome to the point of failure to the body's organs.
Looking further at the issue of trafficking in persons leading to violence is in
stark contrast to the ILO Number agreement. 105 1957 on the Abolition of Forced
Labor. Therefore, the police evacuated Adelina and said that Adelina's death was
one of the symptoms of human trafficking in Malaysia, Adelina's death problem, for
the Migrant Care Agency, only one of the thousands of other problems was
successfully disclosed, Migrant Care recorded trafficking crimes, “from 2012 to
February 2018, there was 1.288 Indonesian migrant workers died outside the
country. As many as 36% of problems exist in Malaysia.”
18
So, it was confirmed that Adelina, a migrant worker from NTT, was one of the
trafficking victims in NTT who was employed in Malaysia. After Adelina was assisted
by the Protection of Indonesian Citizens and BHI, “Adelina's body was immediately
repatriated to the country, and provision of money and compensation money was
given to Adelina's family in NTT.”
19
Crime and the threat of human trafficking are becoming actual issues in NTT. In
recent years, NTT has been ranked at the top, being named as the home area for
victims of trafficking. Efforts to combat trafficking in NTT have always been
highlighted by various groups. The Ministry of Social Affairs of the Republic of
Indonesia gives a signal that the case of migrant workers in NTT has reached a
chronic situation so the enforcement steps become a common urgency. Universally,
the number of migrant workers from NTT is not the largest in Indonesia, but the
number of human trafficking problems from NTT for information from the Police
CID is the highest in Indonesia. “Since February 2014, the problem of trafficking in
persons has become a "hotspot‟ of complaints of the civil movement in NTT.”
20
Human trafficking in NTT can be said to have been an emergency because there
are so many NTT people, especially among women aged 15 years and over who are
17
Ibid.
18
Adharinalti, “Perlindungan Terhadap Tenaga Kerja Indonesia Iregular Di Luar Negeri.,” Jurnal
Rechts Vinding Vol 1, no. 1 (2020): 157–173, http://dx.doi.org/10.33331/rechtsvinding.v1i1.111
19
Ibid.
20
Ibid.
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used as TKW outside the country, especially in Malaysia, Singapore, Taiwan, and
other countries. Information Institute of Resource Governance Social Change
(IRGSC) from
“January to December 2015, there were 941 people victimized, it is alleged that
there were 7 industry networks and individuals who participated. In 2015 there
were 1. 667 TKWs from NTT who were victims of human trafficking. Meanwhile,
in 2016, from January to July, there were 726 TKWs with problems or
indications of trafficking practices. The East Nusa Tenggara Regional Police
(Polda) noted, 1. 667 female labor candidates (TKW) from NTT were sent out of
the region illegally.”
21
TKW candidates are planned to be sent by several trafficking networks to work
in Medan and Malaysia. With this situation, the practice of human trafficking has
become a new phenomenon that is quite surprising because first, nationally, “NTT
has not had time to be ranked in the highest record of human trafficking problems
in Indonesia.”
22
Adelina Sau, a Female Worker (TKW) who died as a result of violence from her
employer, has now added to the long history of cases of victims who died because
they were victims of violence from their employers abroad. Adelina Sau, also known
as Adelina Lisao, alleged that her file was forged by an agent who sent her to work
abroad. The short story in Adelina's case is often getting Acts of mistreatment
committed by her employer and then Adelina was rescued from her employer's
home in 2018. But due to the injuries suffered by Adelina, Lives were not helped,
and Adelina died a day after being rescued from her employer. “Based on the
examination results of Bukit Hospital, Malaysia, Adelina Sau has been pronounced
dead as a result of the mistreatment carried out by her employer.”
23
In the case of Adelina, who received violent treatment, it was contrary to ILO
convention No. 105 of 1957 on the Abolition of Forced Labor. Based on police
information, Adelina's case is indicative of human trafficking in Malaysia. Adelina's
21
Aloysius Lewokeda, “IRGSC: Perdagangan Orang Tak Hanya Dipicu Soal Kemiskinan,”
AntaraNews, 2019. Accesed on 12 January 2023. Available:
https://www.antaranews.com/berita/1090624/irgsc-perdagangan-orang-tak-hanya-dipicu-soal-
kemiskinan
22
Ibid.
23
Joni Sitondai, “Tuntutan Jaksa Penuntut Umum Terhadap Agen Penyalur Tenaga Kerja
Indonesia Bagi Anak Sebagai Korban Tindak Pidana Perdagangan Orang Dengan Cara Pemalsuan
Dokumen,” Jurnal Hukum Universitas Atma Jaya Yogyakarta Vol 1, no. 2 (2019): 1– 16.
0
500
1000
1500
2000
Tahun 2015 Tahun 2016
Case Human Traffiking in East Nusa
Tenggara
January - December January - June
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death, according to the Indonesian Migrant Workers Protection Agency (BP2MI), “is
just one of thousands of other cases that have come to light, the Indonesian Migrant
Workers Agency recorded 1,445 Indonesian migrant workers died abroad in 2020-
2022, and as many as 665 of them died in Malaysia.”
24
In general, the role of the International Labour Organization (ILO) through the
immigrant worker convention can be represented by the State of Indonesia. By
sending orders to deal with the case of Adelina's death. This is an effort by the
Indonesian government in terms of protecting Adelia or another worker in Malaysia.
If based on the MoU between Indonesia and Malaysia then the two countries must
act collectively in exposing the death of Adelina. It is also by the orders of the ILO
Convention. In addition to working together to uncover cases from Adelina
Indonesia and Malaysia also have the authority to provide or enforce a new legal
umbrella, to expose trafficking crimes for workers with legal or illegal status. “One
of the things that Adelina received persecution treatment was due to Adelina's
status as an Illegal worker so there was minimal monitoring from each country.”
25
“The lack of prevention and enforcement carried out by each country is also caused
by the continued trafficking of persons in both countries.”
26
Although normatively the laws applicable in the international convention or
MoU between Indonesia and Malaysia are quite adequate, there are many more
similar cases that have been experienced by other migrant workers. This is a
challenge for International Institutions and each country to be able to eradicate
unlawful acts that apply in the MoU or international conventions.
3.2. The Role of the ILO in the Legal Protection of Indonesian Migrant
Workers
Based on the 1949 International Labour Organization Convention which
regulates the work system and legal protection of migrant workers. Migrant
workers are people or groups who migrate from one place to another. According to
the Ministry of Social Affairs in Indonesia, “a migrant worker is a person who moves
from Indonesia abroad (both legally and illegally), to work within a predetermined
period or an unspecified period.”
27
ILO Convention No.105 which was later ratified by Indonesia by establishing
Law No.19 of 1999 states that the state or government is obliged to suppress, and
reduce the use of forced labor in any form. It also requires effective action to fully
eliminate forced labor. This can be done in the form of, preventing Action,
investigating violations, taking appropriate action against violators, and, providing
legal handlers to victims by providing the right to recovery and alleviating suffering.
Then the ILO is the only UN "tripartite" body that invites representatives of
governments, employers and workers to jointly formulate policy policies and
programs. The ILO is a global body responsible for developing and overseeing
24
Ibid
25
Yordan Gunawan, Introduction to Indonesian Legal System (Yogyakarta: UMY Press, 2021).
26
Bastianto Nugroho, “Analisa Hukum Tindak Pidana Perdagangan Orang (Human
Trafficking).,” Jurnal Bina Mulia Hukum Vol.2, no. 1 (2017): 107–114,
https://doi.org/10.23920/jbmh.v2n1.9
27
Josep Robert Khuana, “Pengaturan Dan Perlindungan Hukum Tenaga Kerja Migran Lintas
Negara Dalam Perspektif Hukum Internasional,” Jurnal Kertha Semaya Vol.8, no. 8 (2020): 1275–
1290, https://doi.org/10.24843/KS.2020.v08.i08.p14
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international labor standards. “In cooperation with its 181 member states, the ILO
seeks to ensure that these labor standards are respected both in principle and
practice.”
28
The ILO seeks to achieve its goals through, four key goals:
1. Promote and realize basic principles and rights in the workplace;
2. Create greater opportunities for women and men to get decent jobs;
3. Increase the coverage and effectiveness of social protection for all;
4. Strengthen tripartism and social dialogue.
In relation to the world of work, especially cross-border migrant workers, the
ILO world labor organization under the auspices of the United Nations is very
concerned about protecting migrant workers as stated in the convention with the
four points above. So that every UN member state as a state party because “it has
ratified is obliged to be responsible on behalf of the entire world community of
civilized countries according to the legal principles of their respective countries
accompanied by obeying and applying universal principles as well as applying
exterritorial jurisdiction.”
29
ILO Convention No. 182 which has been ratified through Law No. 1 of 2000,
contains several things that have the character of a principle. One of them is to take
effective and immediate action to ensure the worst violations and elimination of
workers. The worst forms of labor include work whose nature if done can endanger
health, safety, and morals.
TKI can be said to be an Indonesian Worker (TKI), in its sense is every
Indonesian citizen who has met the requirements and has applied to work abroad
in an employment relationship with a certain period accompanied by a salary from
his employer. since the declaration of the ILO (International Labour Organization)
on the existence of principles accompanied by basic rights in the workplace and
enacting a set of labor standards relating to conventions that have been mutually
agreed upon by international organizations (ILO). “Member states that use the
services of foreign workers are required to implement the standard also related to
the basic form of Human Rights (HAM) on legal protection.”
30
Then, to establish a
standard of protection for member states, namely the role of legal migrant worker
documents, “so that these migrant workers' legal documents guarantee the
protection of these migrant workers and also these documents will also help
minimize the occurrence of human trafficking and smuggling practices.”
31
The role of the ILO, through Convention Number 19 of 1925 on Equal Treatment
for National Workers and ILO Convention Number 105 of 1957 on the Elimination
of Forced Labor is that the ILO as an international organization has sought to be able
to carry out legal protection for migrant workers. Then the ILO or the International
28
International Labour Organization, “Sekilas Tentang ILO,” 2007.
29
International Labour Organization.
30
I Wayan Parsa Ratihtiari, A.A Titah, “Perlindungan Hukum Terhadap Pekerja Migran
Indonesia Di Luar Negeri,” Jurnal Cita Hukum Vol 2, no. 3 (2019): 1–15,
https://doi.org/10.24843/KM.2019.v07.i07.p02
31
Josep Robert Khuana, “Pengaturan Dan Perlindungan Hukum Tenaga Kerja Migran Lintas
Negara Dalam Perspektif Hukum Internasional,” Kertha Semaya : Journal Ilmu Hukum 8, no. 8 (2020):
1275, https://doi.org/10.24843/ks.2020.v08.i08.p14.
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Labor Organization functions or acts as a drafting instrument for conventions for
migrant workers by always being able to cooperate with Indonesia in protecting
migrant workers who are Indonesian citizens who work abroad.
The ILO Convention for Indonesian Migrant Workers in this case aims, firstly to
regulate how current labor conditions occur and secondly, to provide special
protection in the category of vulnerable workers so that they can be employed
within the Indonesian state itself. “The convention on migrant workers shall not
discriminate between permanent or temporary migrant workers, even if the
provisions of the convention are binding only on Indonesian migrant workers.”
32
With the existence of conventions and mutual agreements on the protection of
migrant workers. Indonesia as one of the ratifying parties participated in
implementing the protection of Indonesian migrant workers in the legislation of
Law Number 18 of 2017 concerning the Protection of Indonesian Migrant Workers.
it states that Against efforts to protect Indonesian migrant workers. then the Central
Government can organize or provide Social Security for Indonesian Migrant
Workers, with this social protection and these provisions. Then Indonesian Migrant
Workers can use the services or treatment of BPJS Ketenagakerjaan and further
mandate a greater role for the central and local governments in terms of protection
of Indonesian Workers, “protection for Indonesian Workers is carried out during or
before departure, retirement, and placement period.”
33
32
Lukas Banu, “Implementasi Hukum Pasal 35 Undang-Undang Nomor 39 Tahun 2004 Dalam
Program Recognised Seasonal Employment,” Udayana, Jurnal Magister Hukum Vol.3, no. 4 (2018): 1–
15, https://doi.org/10.24843/JMHU.2018.v07.i01.p08
33
Siti Hajati Hoesin Rolasta, Marwanto, “Perlindungan Hukum Bagi Pekerja Migran Indonesia Di
Jepang (Analisis Peran BP2MI Pada Program G To G),” Pakuan Law Review Vol.1, no. 8 (2021): 253–
261, https://doi.org/10.33751/palar.v8i1.4789
Jurnal Legalitas
Volume 16 Issue 1, 2023
Page 134
CTKI Recruitment Stages through the P to P Scheme
According to police in Malaysia, Adelina was a victim of trafficking, resulting in
inaccessible rights, including the right to earn a salary, safety, and safety. So it can
be interpreted as forced labor. This trafficking in persons is related to the transfer
of a person, usually passing through the border between the two countries and
having the purpose of exploitation. Human trafficking has been defined by the
Protocol to Prevent, Suppress and Punish Human Trafficking, especially Women and
Children. That complements the UN Convention against Transnational Organised
Crime (Palermo Protocol) adopted in 2000. The Palermo Protocol distinguishes
human trafficking from human smuggling through elements of exploitation,
deception, and coercion. The Palermo Protocol defines Human Trade as the
recruitment, transportation, transfer, or reception of persons, through the use of
threats or the use of force or other forms of coercion, kidnapping, fraud, abuse of
power or vulnerable positions, or by giving or receiving payments or benefits to
reach an agreement from a person who has control over another person for
exploitation. Exploitation may include, “at a minimum, the exploitation of the
prostitution of others or other forms of sexual exploitation, forced labor or service,
slavery or slavery-like practices, or the taking of organs.”
34
So by definition in
Adelina's case, it is included in the human trade because it meets the identity of
people's trade definitively. So that in practice the trade of people must be able to be
resolved collaboratively with the cooperating state. By prioritizing prevention
efforts through the enforcement of agents who commit smuggling, fraud, and
coercion with and the lure of money.
4. Conclusion
The ILO Convention has been very clear and comprehensive in formulating
instruments to protect workers from acts of exploitation, discrimination, and human
trafficking. However, the main problem in the case of crimes against migrant
workers is the lack of prevention of human transactions in each country and the lack
of supervision between the two countries on the implementation of policies.
Thus, as an effective measure to reduce trafficking crimes and also as mandated
by law. So the two countries should be able to maximize the MoU in each policy so
that prevention and enforcement efforts can take place in balance
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