ABSTRACT
Keywords: health insurance, worker protection, legal reasoning, legal violation, BPJS.
ABSTRAK
Other than wages, workers obtain protection in the form of social security
According to Article 5 clause (1) and Article 52 of the SJSN Law as well as Article 5 clause (2) and Article 6 of the BPJS Law, the administration of social security is carried out by two administering bodies, namely BPJS Health and BPJS Workforce. BPJS Health runs the Health Care Insurance. Meanwhile, BPJS Workforce runs Work Accident Insurance, Old Age Security, Pension Security, Death Security, and Job Loss Guarantee.
Regulations concerning social security's role as a form of worker protection are strengthened in Article 13 of the SJSN Law and Article 15 clause (1) of the BPJS Law. They stipulate that employers are gradually required to register themselves and their employees as BPJS participants under the social security program they are enrolled in. Aside from that, Constitutional Court Decision No. 70/PUU-IX/2011 establishes that workers have the right to register as participants in the social security program at the expense of their employers if the company has not registered their employees to BPJS. This means that workers have the right to obtain benefits from the social security implementation through BPJS membership, either through employer registration or self-registration if the company refuses to register the employee.
The legal construction of social security protection for workers does not end with their registration with BPJS. As an agency with the duty and authority to manage social security programs, BPJS is also required to give benefits from the revenues of employer contributions. Article 13 letter d of the BPJS Law states, "In carrying out its duties, BPJS is obliged to provide benefits to all participants following the Law on the National Social Security System." As an institution charged with administering social security, BPJS is responsible for carrying out its mandate to establish a national social security system that offers comprehensive social protection to all Indonesians.
In carrying out its duties, BPJS is given the authority to impose a temporary suspension on participants who fail to fulfill their obligations, i.e., stopping or delaying the payment of contributions. There was a case related to the conflict of regulations regarding BPJS’s duties and authorities, namely the case of Khalimah vs BPJS, which was decided through Decision No. 88/Pdt.G/2018/PN.Jkt.Pst which was changed with (jo.) No. 498/PDT/2019/PT.DKI jo No. 2650K/Pdt/2020.
Siti Khalimah was the wife of the late Irwan Dahlan, a worker at PT. Freeport Indonesia. She filed a case related to the dispute of BPJS's unlawful acts. The panel of judges in the Central Jakarta District Court won the lawsuit with Judgment No. 88/Pdt.G/2018/PN.Jkt.Pst. In this case, the plaintiff claimed that BPJS violated Article 21 of the SJSN Law in conjunction with Article 7 of Governmental Regulation No. 12/2013, which states that the membership of laid-off health insurance participants is still valid for a maximum of 6 months after the termination of their work. Meanwhile, the defendant argued that the reason for deactivating the plaintiff's husband's participation was not the termination of his employment relationship, but the discontinuation of payment of health insurance premiums to BPJS and that the deactivation complies with the defendant's legal duties.
In this decision, BPJS Health of Mimika Regency, Papua Province, Indonesia, was said to have committed a law-violating action as it deactivated the late Irwan Dahlan's participation in the health insurance program, preventing the deceased's family from receiving benefits. BPJS Health was found to have committed a law-violating action under Article 1365 of the Civil Code. This decision has been strengthened at the appeal level by Decision No. 498/PDT/2019/PT.DKI and at the cassation level by Decision No. 2650K/Pdt/2020.
The primary problem to be addressed in this paper is how judges construct the legal reasoning to support arguments so that BPJS, despite performing its duties within its authority, is still found to have committed unlawful acts based on Article 1365 of the Civil Code.
This research was normative research. As normative research, this study employed three approach methods, namely the statute approach, the case approach, and the conceptual approach. This normative study adopted the statute approach as it focused on various legal standards, which served as the study's major theme (
Workers are a company's most valuable and vital asset, as they determine the success and the failure of the company in promoting national growth. As a result, it is natural that workers should be provided with enough protection to guarantee their welfare, safety, and comfort at work
According to
Social security as legal protection for workers is accomplished due to the existence of an occupational relationship between employers and employees. This establishes the parties' rights and obligations in carrying out the occupational relationship. Aside from the need for companies to pay wages to employees, another equally important commitment is to provide them with social security. Article 99 states that: (1) Every worker/laborer and their family has the right to obtain social security for employees and (2) The social security for workers as mentioned in clause (1) is carried out under applicable laws and regulations. As a result, it can be argued that because social security is part of a worker's right, it is also an employer's responsibility.
According to (
Health insurance benefits, which are one of the social security programs in Indonesia, consist of medical and non-medical benefits. Medical benefits are provided by medical indications and service standards. Such benefits are not differentiated based on the amount of participant contributions, which is considered to embody the principle of equity. Article 19 of the SJSN Law states that health insurance is provided nationally based on the principles of social insurance and equity to ensure that participants receive health care benefits and protection while meeting their basic health needs. Meanwhile, non-medical benefits are provided based on the amount of the participant's contribution.
Based on these regulations, workers are participants who are categorized as wage recipients. Wage recipients refer to anyone who works for an employer and is paid a wage or salary. Family members of wage recipients are entitled to health insurance benefits based on SJSN Law, Article 20, clause (2). The family members in question include the legitimate wife or husband, biological children, stepchildren from a legitimate marriage, and legally adopted children with a total of four persons. Children who continue to benefit from active wage recipients members must be: (a) unmarried or do not have their own income and (b) under the age of 21 (twenty-one) or 25 (twenty-five) if they are still pursuing formal education.
Since the enactment of the SJSN Law, which was followed by the BPJS Law, social security administration has been centralized by the Social Security Administrator of Health (Badan Penyelenggara Jaminan Kesehatan/BPJS) which is domiciled and headquartered in the nation's capital (Article 8 clause (1) of the BPJS Law). This agency directly reports to the President (Article 7 clause (2) of the BPJS Law). BPJS Workforce runs Work Accident Insurance, Old Age Security, Pension Security, Death Security, and Job Loss Guarantee. However, BPJS Health only runs one program, namely the Health Care Insurance.
BPJS is a public legal entity founded under the BPJS Law as stipulated in Article 7 in conjunction with Article 5 of the BPJS Law. According to
As a public legal entity, one of the principles that BPJS must implement is the nonprofit principle (Article 4 letter b of the SJSN Law and the BPJS Law). The non-profit principle is defined as a business management principle that prioritizes the use of development funds to provide maximum benefits for all participants. In essence, this principle means that BPJS is prohibited from taking advantage of premiums paid by participants, including the proceeds from the collected fund's development. This principle is complementary to the principle of trust funds, which is also adopted in the SJSN Law and the BPJS Law. It regulates that contributions and the proceeds of their development are funds that participants have entrusted to them. Thus, these funds must maximally be used for the benefit of social security participants. According to Article 12 Letter A of the BPJS Law, in exercising its jurisdiction, BPJS has the right to receive operational funds from social security funds and/or other sources under statutory provisions to implement its programs.
According to
a. The legal basis for BPJS is Article 34 clause (2) of the 1945 Constitution. So, BPJS is funded by statutory levies (source of funds) and contribution assistance/social support (state spending), both of which are cooperative efforts under the National Welfare System. BPJS, as a public legal organization, was established by a special law and is solely responsible for social security programs, which are state programs, under the mandate of Article 28H clauses (1), (2), and (3), as well as Article 34 clauses (1) and (2) of the 1945 Constitution. As determined by the state, working capital is not divided into shares. BPJS has the goal and purpose of providing enough basic requirements for all individuals. BPJS capital is separated from state wealth. Funds are managed with trust funds belonging to all participants, which constitute a collection of mandatory contributions by Article 23A of the 1945 Constitution.
b. The legal basis for state-owned business enterprises is Article 33 of the 1945 Constitution. State-owned business enterprises engage in economic operations (volunteer businesses) that are part of the national economic system. As a state-owned corporate entity, its capital is divided into shares, with the state owning at least 51%. The goal of state-owned business enterprises is to contribute to the growth of the national economy in general and the state income in particular. Aside from that, other goals include obtaining profit; arranging public benefits through the provision of goods; becoming a pioneer in commercial activities that cannot currently be implemented by the private sector and cooperatives; as well as actively participating in advising and assisting entrepreneurs from economically vulnerable groups, cooperatives, and the community. The capital of state-owned business enterprises is derived from separated state assets and state capital participation from the state budget, reserve capitalization, as well as other trading business sources and business revenue funds that are part of state-owned business enterprises (
Before the enactment of the BPJS Law, the authority to administer health insurance was given to several organizing bodies, namely: a. PT Asuransi Kesehatan (Health Insurance Limited Company) which was established based on Government Regulation No. 6 of 1992 on the Transfer of the Bhakti Husada Public Company Form to Become a Limited Liability Company (State Gazette of the Republic of Indonesia of 1992 No. 16); b. PT Asabri (Indonesian Armed Forces Social Insurance Company Limited Company), which was established based on Government Regulation Number 68 of 1991 on the Transfer of Republic of Indonesia’s Social Insurance of the Armed Forces Public Company Form to become a Limited Liability Company (State Gazette of the Republic of Indonesia of 1991 No. 88) and; c. PT Jamsostek (Workforce Social Security Limited Company) was established based on Government Regulation No. 36 of 1995 on the Determination of the Administering Body for the Social Security Program for Workers (State Gazette of the Republic of Indonesia of 1995 No. 59).
Each organizing body has distinct membership segments. Participants of the PT Askes health insurance scheme are non-military state administrators. PT Asabri participants are military personnel working for state authorities. Meanwhile, PT Jamsostek participants are the people who are employed in the private sector (Article 4 clause (1) of Law No. 3 of 1992 on Social Security for Workers).
According to the explanation in Article 2 clause (4) of the Governmental Regulation No. 14 of 1993 on the Implementation of Social Security Programs for Workers, if an employer has submitted a health insurance program to an organizing body that can provide better services than those provided by the appointed organizing body (PT Jamsostek/Employees' Social Security Limited Company), the employer is not required to participate in this company’s social security program. This means that in addition to PT Jamsostek, other organizations can administer health insurance and give superior benefits. Different issues are addressed in Article 5 clause (1) and Article 13 of the SJSN Law as well as Article 52 of the BPJS Law, which require existing organizing bodies to transfer their participation in the health insurance scheme to BPJS Health. These provisions are verified by increasing the membership section to include both contribution assistance recipients and general participants (Article 2 of Presidential Decree No. 82/2013). As a result, BPJS Kesehatan becomes the exclusive provider of health insurance for workers. Even so, some research findings indicate the emergence of problems associated with the obligation of institutional transformation from private legal entities to public legal entities (
As previously stated, as a social security administering body, BPJS is responsible for collecting contributions of independent participants and employers (who pay for their employees’ premiums) (Article 10 letter b of the BPJS Law). BPJS is also responsible for paying benefits and/or financing health services following the provisions of the social security program (Article 10 letter f and Article 13 letter d of the BPJS Law). In carrying out its tasks, BPJS is granted the authority outlined in Article 11 of the BPJS Law, which includes imposing administrative fines on participants or employers who fail to meet their commitments. The authority's implementation is governed by Government Regulation No. 86 of 2013 on the imposition of administrative sanctions on employers other than state administrators, as well as every person involved in social security administration, except employers, workers, and recipients of contribution assistance. However, Governmental Regulation No. 86/2013 exclusively covers employer sanctions.
The law-violating action terminology is derived from the words onrechtmatige daad (Dutch) and tort (English) (
According to
In this case, the causality between BPJS's actions and the losses suffered by the worker participants can be demonstrated using the Schutznorm's Theory of Relativity, which states that it is insufficient for someone to be held responsible for committing a law violation under Article 1365 of the Civil Code. It only demonstrates that there is a causal relationship between the act committed and the damage incurred. However, it must be demonstrated that the breached standard or regulation was intended to protect the victim's interests. According to
According to
Moreover, there is an issue of whether or not BPJS as a public legal entity can be sued based on Article 1365 of the Civil Code, considering that the provisions of the article in question are intended for private legal acts. Meanwhile, in carrying out its duties and authorities, BPJS is subject to public law. In this regard,
Initially, the Hoge Raad (the Dutch Supreme Court) held the view that authorities who acted contrary to their legal obligations in the public domain could not be held accountable. However, after 1924, the Hoge Raad's perspective changed. The government can be held liable if it neglects its legal obligations, regardless of whether those obligations fall under public or private law. As long as the negligence has caused harm to private individuals, the government can be sued for its unlawful acts (
In case No. 88/Pdt.G/2018/PN.Jkt.Pst, it is known that the late Irwan Dahlan was a permanent employee of PT Freeport Indonesia (Freeport Indonesia Limited Company) since 1991, working as a Lead Hand Main maintenance. On May 1st, 2017, Irwan Dahlan and other workers went on strike in response to PT Freeport's refusal to talk with the Labor Union over the furlough (employee housing) policy. On October 30th, 2017, during the late work strike, Irwan Dahlan became unwell and was treated at Mimika Regional General Hospital. According to the examination results, the late Irwan Dahlan was diagnosed with a deficiency of white blood cells and was referred to an internal medicine specialist. Personal charges and fundraising revenues from PT. Freeport Indonesia Labor Union (2015-2017) was used to pay for hospital treatment. On November 5th, 2017, Irwan Dahlan asked to be taken back to Blitar, East Java Province, so that his family could care for him.
Siti Khalimah (the plaintiff), the wife of the late Irwan Dahlan, brought him to Mardi Waluyo General Hospital for treatment on November 7 th , 2017. Hospital bills were paid privately because the hospital confirmed that the deceased had health insurance. Irwan Dahlan was exempted from the insurance; thus, health insurance benefits cannot be issued. On November 16 th , 2017, the plaintiff was compelled to request that the deceased be taken home since the family could no longer afford the medical bills. Then, at 5 p.m., Irwan Dahlan was proclaimed dead at the hospital.
It was found that the insurance membership had been deactivated since the strike on May 1st, 2017, resulting in the severance of employment relations. This was seen on May 24th, 2017, when an employee named Ama Nurjana Houbrow was unable to use his insurance membership card to make payments following surgery for his wife's ruptured membranes. According to hospital records, PT. Freeport has disabled his insurance membership access via the E-Dabu application system since June 30th, 2017.
Based on these facts, the plaintiff claims that BPJS Health violated Article 21 of the SJSN Law by committing a law-violating action. Meanwhile, BPJS claims that the deactivation of the insurance membership was carried out following applicable regulations, specifically Article 17A.1 of Presidential Regulation No. 19 of 2016 on Health Insurance (hereinafter referred to as Presidential Decree No. 19/2016). It states that BPJS has the authority to deactivate participants if they fail to pay their dues as required. BPJS argued that when the deactivation was carried out, the layoff decision was still in dispute. It did not yet have binding legal force, so the rights and obligations of the disputing parties (PT. Freeport Indonesia and workers, including the late Irwan Dahlan) remained intact. As a result, the company's responsibility to pay health insurance contributions to BPJS remains unchanged. However, since June 2017, BPJS has not received the previous contribution amounts.
On May 19 th , 2017, BPJS received notification from PT. Freeport via email requested 1,611 (one thousand six hundred and eleven) BPJS Health participants, including the late Irwan Dahlan, be transferred and not included in the bill for June 2017. This was because he left and no longer worked for the company. In other words, Irwan Dahlan was laid off because he resigned. Regarding this case, the judge argued that, based on the provisions of Article 21 clause (1) of the SJSN Law, regardless of whether the layoff was still being disputed, BPJS should continue to apply Article 21 clause (1), i.e., providing a safety net and activate late participation. This law states that Irwan Dahlan and his family have the right to obtain benefits from the BPJS up to six months after the participant's employment is terminated without making any contributions. This is consistent with the principles of humanity, benefits, and social justice for all Indonesians, which are upheld in the implementation of SJSN.
It is possible to conclude that the panel of judges based the element of error that appeared in a quo case on BPJS's failure to carry out its legal obligations as provided in Article 21 clause (1) of the SJSN Law. The Panel of Judges did not query whether the layoff was permissible under existing rules and regulations. It seems that the judge has made a legal finding. A legal finding is the process of making concrete legal conclusions that have direct legal consequences for a particular case
Dworkin's stages of constructive interpretation require the judge to undergo three steps before issuing a decision. According to Dworkin, constructive interpretation consists of at least three stages: (1) in the pre-interpretation stage, the interpreter determines the object and context of the interpretation. The identified and interpreted objects are legal norms, legal decisions, ideas, and moral principles that are acknowledged as a collection of social wisdom; (2) in the interpretation stage, the interpreter finds relatively adequate explanations and meanings that can be used as a reference in adjudicating the case at hand by analyzing the relevance/connection between the objects; then, (3) in the post-interpretation stage, the interpreter adjusts the meanings obtained in the previous stage with the facts of the case at hand, and then makes a well-founded decision. These three steps are known as the adjudication theory (
The implementation of these three steps in this case can be explained below:
At the pre-interpretation stage, it can be determined that the analyzed norm is Article 21 clause (1) of the SJSN Law and the provisions of Article 17A.1 of Presidential Decree No. 19/2016;
During the interpretation stage, an analysis is performed on the applicability of Article 21 of the SJSN Law. Article 21 clause (1) of the SJSN Law states that "Health insurance participation remains valid for a maximum of 6 (six) months after a participant experiences termination of employment." It can be concluded that the legal interpretation of the application of Article 21 clause (1) is that there are circumstances in which workers are laid off. The judge must consider the facts to determine whether or not the late Irwan Dahlan was laid off. At this point, layoffs must be defined under the law. However, the SJSN Law does not define layoffs. The concept of layoffs is found in Presidential Decree No. 12/2013 on Health Insurance and its Amendments, namely Presidential Decree No. 19/2016. Article 1 number 11 of this decree defines a layoff as the termination of an employment relationship owing to specified circumstances that result in the termination of the rights and obligations between the worker and the employer under legislative regulations. The layoff regulations in the Law on Workforce specify the legal circumstances for layoffs, including formal and material requirements. If these prerequisites are not met, the layoff is deemed void and unlawful by law. Then, the employee-employer relationship is assumed to continue. As a result, the parties are still obligated to complete their objectives. Meanwhile, Article 17A.1 of Presidential Decree No. 19/2016 goes into effect, stating that participant insurance would be temporarily discontinued if health insurance contributions are not paid on time for more than one month beginning on the 10th. As a result, it is possible to assume that this clause was enacted in response to the circumstance of late payment. It makes no difference whether the delay in payment was caused by layoffs or not.
The post-interpretation stage involves interpreting the applicability of Article 21 clause (1). It must be examined if the late Irwan Dahlan was laid off. In the a quo decision, the judge determined that the late Irwan Dahlan had resigned. Unfortunately, the verdict did not clarify the reasons why the judge ruled that the late Irwan Dahlan had resigned.
Regulations governing layoffs by workers, also known as resignation, do not require employer approval or the underlying reason for the worker's resignation (as opposed to provisions for layoffs at the employer's initiative). However, the intention to resign must be born in the worker. In terms of the lawsuit, it is clear that the late Irwan Dahlan never filed his resignation letter. The case began when the late Irwan Dahlan and his friends went on strike in response to company actions that were perceived to have harmed workers. As a result, the entrepreneur chose to terminate his work arrangement and stop paying the health insurance membership contribution to BPJS, which was his obligation. In such circumstances, layoffs should be considered the employer's objective. Therefore, legal formalities apply, such as obtaining approval from the PPHI (Penyelesaian Perselisihan Hubungan Industrial/Industrial Relationship Dispute Resolution) institution. Employer layoffs without PPHI clearance are null and void. They are deemed non-layoffs. Due to the non-existence of layoffs, Article 21, clause (1) does not apply.
The panel of judges does not systematically interpret the application of Article 21 clause (1). However, it also carried out a teleological interpretation. This means that Article 21 clause (1) is comprehensively interpreted by considering the purpose of making the norm in question. Social security is a safety net for social and economic risks that may occur. A factor that may happen was the employer's failure to pay contributions due to disputes between employers and workers. In the quo case decision, the judge used the term 'safety net'. This is because, in essence, the labor social security program is intended to provide certainty in the continuity of family income streams as a substitute for part or all of the lost income
It appears that the panel of judges has carried out legal construction by paying attention to the values that must be present in every judge's decision. This is according to Dworkin's opinion that there are at least three values that must be present, namely justice, fairness, and procedural due process. In this case, the panel of judges prioritizes justice as the basis for deciding the status quo. It appears that the judge did not question whether the layoff was still in dispute or not. Because the plaintiff has based her lawsuit on Article 21 clause (1), it can be interpreted that the heirs of the late Irwan Dahlan have accepted the layoff. Therefore, the elements for the provisions of Article 21 clause (1) to be enforceable are fulfilled. Thus, BPJS has been declared to have carried out a law-violating action based on Article 1365 of the Civil Code with an error by failing to carry out its legal obligations based on the provisions of Article 21 clause (1) of the SJSN Law.
Temporary Membership Termination Arrangements Under the SJSN Law and Health Insurance Implementing Regulations
| Regulation | Post-layoff health insurance benefits | Temporary Suspension [Deactivation] of Membership | Notes |
|---|---|---|---|
| SJSN Law | Article 21 states that health insurance membership can be renewed for up to six months after a participant's employment termination. | - | Presidential Decree No. 12/2013 lacks an explanation for layoff criteria in post-layoff Health Insurance Benefits provisions. The term 'Temporary Suspension' is used, as it can be revoked if fees are paid. In Presidential Decree No 111/2013, there is no changes were made to the provisions in subsequent amendments. Meanwhile, Presidential Decree No. 64/2020 adds provisions related to the temporary termination of membership. |
| Presidential Decree No. 12/2013 | Article 7 states that individuals who are laid off will still have access to Health Insurance Benefits for up to six months without paying contributions. | - | |
Presidential Decree No. 111/2013 The First Amendment of Presidential Decree No. 12/2013 | - | Article 17A.1 states that in case of a delay in health insurance contributions, the insurance will be temporarily suspended. The suspension ends if the participant pays outstanding monthly contributions for 12 months or pays the contribution in the month they want to end the suspension. | |
| Presidential Decree No. 82/2018 | Article 27 states that wage-recipient participants who experience layoffs can continue receiving Health Insurance Benefits for up to six months without paying contributions. Layoffs must meet specific criteria, such as an industrial relations court decision, a company merger, bankruptcy, or prolonged illness. In disputes, employers and employees must continue paying contributions until a permanent decision is made. | Article 42 states that a participant's insurance will be temporarily suspended if they fail to pay their contribution by the end of the current month. The suspension ends when the participant pays the outstanding monthly contributions for 24 months and ends the suspension. | |
Presidential Decree No. 64/2020 The Second Amendment of Presidential Decree No. 82/2018 | Article 42 states that in 2020, a participant's insurance suspension ends if they pay outstanding monthly contributions for six months, end the suspension in the same month and pay the remaining monthly fees in full by 2021 to maintain membership status. |
Meanwhile, regarding the compensation claim, the panel of judges only granted the claim for material losses in the form of treatment costs during treatment in the hospital. The judge believed that immaterial losses could not be estimated using life expectancy because the human age is unpredictable. Then, regarding children's education money, the judges based their argument on a sense of propriety and appropriateness. Based on these two principles, the judges decided to provide education money to the three children until they obtained their bachelor’s degree. It can be seen that, in considering the compensation claim, the panel of judges did not at all consider the position of BPJS as a public legal entity. As previously known, in carrying out its operations, BPJS is bound by the non-profit principle, which excludes activities that seek profit. So, the question which arises that may be analyzed in further research is where the money paid by BPJS to the plaintiff came from.
Based on the preceding explanation, it is possible to conclude that the judge employed Dworkin's adjudication theory to decide on the