Updates on New Guidelines concerning Sexual Harassment within the Indonesian Workplace

The Ministry of Manpower of Indonesia ("MOM") has issued new and updated procedures governing the manner in which sexual harassment within the workplace is to be handled.

• On 29 May 2023, the MOM issued Decree No. 88 of 2023 on the Guidelines on the Prevention and Handling of Workplace Sexual Harassment ("2023 Guidelines"), updating the previous guidelines that have been in force since 2011 pursuant to the MOM Decree No. SE.03/MEN/IV/2011 on the same subject ("2011 Guidelines").
• Notable updates introduced under the 2023 Guidelines include:
  • The 2011 Guidelines expressly states that the guidelines provided therein are not binding, whilst the 2023 Guidelines shall be treated as the standard for preventing and handling workplace sexual harassment;
  • Requirements imposed on companies and/or employers include (i) establishment of a sexual harassment prevention task force; and (ii) provision of compensation to sexual harassment victims, whose employment is under the scope of their supervision; and
  • Digital sexual harassment and violence.

Background

On 29 May 2023, the MOM issued 2023 Guidelines that update the 2011 Guidelines and provide the protocol for Indonesian companies and/or employers when handling reports and cases of sexual harassment within the workplace.

The 2023 Guidelines introduced new requirements for companies and/or employers, including obligations imposed on companies and/or employers to:

(i) establish a sexual harassment prevention task force; and

(ii) provide compensation to victims of sexual harassment that are under their scope of supervision.

In addition, the 2023 Guidelines also provide requirements concerning digital sexual harassment and violence.

Overview of the Updates on Sexual Harassment at Workplace

Previously, the provisions concerning sexual harassment and violence in the workplace were relatively insignificant. The Law No. 13 of 2003 on Manpower (as amended) and Law No. 12 of 2022 on Sexual Violence Crime do not specifically define conduct that is considered sexual harassment or violence, nor do these regulations specifically discuss the prevention of such conduct within the workplace.

The 2023 Guidelines is an implementing regulation to both the Indonesian Manpower Law and Sexual Violence Law, which provides guidelines for the prevention and handling of sexual harassment and violence within the workplace.

2023 Guidelines

Scope of Guidelines

The 2023 Guidelines cover sexual harassment and sexual violence. These terms are differentiated as follows:

• Sexual Harassment

Any unwelcome sexual advances, requests for sexual favours, verbal or physical conduct or gestures of a sexual nature or any other conduct of a sexual nature that makes a person feel offended, humiliated, and/or intimidated.

• Sexual Violence

Any act that degrades, humiliates, harasses, and/or attacks a person's body and/or reproductive function, due to unequal power relations and/or gender, which results in psychological and/or physical suffering.

Sexual Harassment Prevention Task Force

Pursuant to the 2023 Guidelines, every company must establish a sexual harassment prevention task force consisting of at least 3 (three) members (head of task force, secretary, and member of task force). This task force shall be responsible for the following:

• Development and implementation of a program that adheres to the company's anti-workplace sexual harassment policies;
• Undertaking of appropriate action in respect of complaints and/or reports of workplace sexual violence;
• Collection of information related to any alleged workplace sexual violence;
• Provision of guidance to victims and the company on the settlement of the report and/or complaint; and
• Provision of assistance to victims of workplace social violence.

Amends

Victims of workplace sexual harassment/violence is entitled for a certain amends from the company and/or employer in which such victim is under their scope of supervision.

Such amends includes the following:

• Permission to take sick leave without deduction of such victim's leave balance to allow for the victim's recovery from the sexual violence;
• Provision of additional sick leave for the victim's recovery if the victim requires counselling;
• Removal of negative appraisals from the victim's record that were added in association with the sexual violence;
• Re-employment of the victim if he/she was dismissed;
• Review of decisions or actions related to any employment relationship that may be detrimental to the victim, ensuring no retaliation;
• Provision for any medical expenses incurred by the victim due to the sexual violence.

Sanctions

Pursuant to the 2023 Guidelines, the perpetrators of workplace sexual violence may be subject to sanctions in the following forms, notwithstanding the victim's rights to also file police/criminal report:

• Written warning;
• Transfer of working division/department;
• Reduction or removal of part or all of the perpetrator's authority within the company;
• Suspended employment;
• Employment termination.