Good infrastructure brings better social and economic mobility, leading to better living conditions. For Indonesia, a country with a large population and an archipelagic territory, developing efficient infrastructure is important to ensure sustainable and inclusive growth. However, the development of the infrastructure must also be followed by taking into account the resilience, safety and comfort of the community in utilizing the infrastructure. Apart from corruption, legal cases in infrastructure in terms of the resilience and safety of infrastructure development often occur. This of course will not only harm contractors, service providers and service users, but also the wider community. In this article, we will discuss cases that generally occur in Indonesia and how they are regulated in Indonesian law.
Governing law and regulation
- Indonesian Criminal Code (KUHP)
- Law No. 2/2017 concerning Construction Services
- Government Regulation (PP) No. 22/2020 concerning the Implementation Regulation of Law No. 2/2017 concerning Construction Services as amended by Government Regulation (PP) No. 14/2021
- Ministry of Manpower Regulation (Permenaker) No. 5/2021 concerning Procedures for the Implementation of Work Accident Insurance, Death Benefits and Old Age Security Programs
Work accidents in infrastructure projects
There are many factors that affect infrastructure project work, ranging from materials, construction workers, contractors, project locations, financing and others. One of the factors that greatly support the construction of infrastructure projects is the construction workforce. Construction workforce is everyone who has the skills or knowledge and experience in carrying out construction work as evidenced by a construction work competency certification. The condition of Indonesia’s infrastructure, which is still far from other countries, has prompted the government to speed up a number of infrastructure project developments to catch up with other countries. This speed allows the workforce to become tired of working and makes the project responsible party not pay attention to the safety and security of workers in the field. This is what causes many construction project accidents in Indonesia. A construction accident as regulated in PP No. 22/2020 is an event due to negligence at the stage of construction work due to non-fulfillment of safety, health, and sustainability standards, resulting in loss of property, working time, death, permanent disability and/or environmental damage. As regulated in the Permenaker No. 5/2021, work accidents must meet the element of being forced to do so as evidenced by an injury/injury or injury to the human body as a result of an event or incident. These work accidents include:
- Accidents that occur as a result of work and/or at work
- Accidents that occur on the way from home to work or vice versa through the usual road
- Accidents that occur while carrying out duties or official trips on orders and interests of the company or employer or are related to work
- Accidents that occur during work hours and work breaks due to doing important or urgent things with the permission or knowledge of the Employer
- Diseases caused by work or work environment
- Died suddenly as a result of work.
Other conditions that are included in the Work Accident criteria:
- Accidents that occur while working overtime, as evidenced by a warrant for overtime
- Accidents that occur while carrying out other activities related to the interests of the Employer, as evidenced by a letter of assignment from the company
- An accident that occurs when the Participant is on leave and receives a call or assignment from the Employer, with the coverage of protection covering traveling to and from home to fulfill the call
- Accidents that occur on the way to and from the base camp or the platform at the Workplace to the Worker’s place of residence to take a break, as evidenced by the company statement and work schedule
- Accidents that occur on the way to and from home using roads that are usually passed or reasonable for Workers who return to their actual homes every weekend.
Based on the BPJS Ketenagakerjaan (Workers Social Security Agency) data, throughout 2020 there were 225,000 cases of work accidents. Then, from January to September 2021, there were 82,000 cases of work accidents in Indonesia. Around 65.89% of work accidents occur at work locations. Those data were counted by BPJS Ketenagakerjaan based on claims submitted for work accidents experienced by workers. One of the cases of work accidents in Indonesia occurred on February 4, 2018, in the Manggarai-Jatinegara (Double-Double Track) railway facility construction project. The launcher girder on the project collapsed and killed four people. This incident has put the project contractor consortium or the person in charge on providing project construction services – namely PT Hutama Karya, PT Modern Surya Jaya and PT Mitra Engineering Group – under the spotlight because this project accident has the potential to become a criminal matter if it is proven that there is an element of negligence.
Work accidents also often occur in two large mega projects, namely the light rail transit (LRT) and mass rapid transit (MRT) which have been carried out in the Jakarta administration since 2017. Injuries and material losses occurred as a result of the work accident. On January 20, 2018, the concrete construction of the LRT Kelapa Gading-Velodrome route on Jalan Kayu Putih, Pulogadung, East Jakarta, collapsed and injured five workers. This is not the first time this work accident on the LRT Kelapa Gading-Velodrome route has been involved. On Tuesday, October 13 2017, a work accident also occurred at the Kelapa Gading-Velodrome LRT project which was prepared to support the 2018 Asian Games in Jakarta. The poles of the LRT construction project hit two residents’ houses on Jalan Kelapa Nias Raya, Block PA 3, No 02, Pegangsaan Dua, Kelapa Gading, North Jakarta. The collapse of this portal gentry made the resident’s house roof damaged.
A work accident also occurred recently on August 30, 2021, which befell three workers at the dock 4 repair project at Merak Port. The worker fell while casting. In that case, investigators found unlicensed project tools. This can give rise to indications of negligence by the consulting company in charge of supervising the work, including determining whether or not a project tool passes the criteria. The next omission was that a bucket for casting was found which should only be for 2 people but instead filled with 3 workers. This has given rise to an indication of the element of intent from PT Hydropower Technology as a contractor company.
A project accident has the potential to become a criminal matter if it is proven that there is an element of negligence. Work accidents in infrastructure projects can be triggered by human error or engineering error. Article 59 of Law No. 2/2017 stipulates that in every implementation of construction services, service users and service providers are required to meet the Security, Safety, Health and Sustainability Standards. The person in charge of the construction service provider can be punished if it is proven that there is negligence. The punishment for those in charge can be waived if the incident was purely unintentional. Article 359 of the Criminal Code explains about negligence that can cause the death of another person. The regulation states that anyone whose fault causes the death of another person can be sentenced to a maximum of five years in prison. In addition to article 359, there is article 201 of the Criminal Code which regulates the problem of damage to buildings which states that a person can be sentenced to 4 months and 2 weeks in prison if his fault causes the building or buildings to be destroyed. It is different with work accidents that occur due to natural disasters, of course, they cannot be criminalized, but if there is a human error, then there must be a party who is held legally responsible.
Building failure post infrastructure project work
In addition to work accidents, an unexpected event that often occurs in infrastructure projects in Indonesia is building failure. Building failure as mentioned in PP No. 22/2020 is a condition of the collapse of the building or the non-functioning of the building after the final delivery of the results of the construction services.
Building failure usually occurs from several factors including:
- Failure to plan. This failure can occur if it does not follow the standards that have been set at the time of planning such as differences with existing terms of reference, differences in materials or manufacturing materials, errors in calculations regarding infrastructure strength, and others.
- Failure to monitor development. This failure occurred because supervision was not carried out according to procedures, making original and inappropriate development proposals, agreeing on work plan drawings without technical calculations.
- Implementation. This failure can occur due to not carrying out quality value tests, incorrect reading of specifications, not in accordance with work methods, doing work with inappropriate equipment, and others.
- Building use. Structural failure can also occur due to excessive loading, the use of buildings that are outside of their initial use, not doing proper maintenance of the building, and the age of the building which is quite old.
In the past few years, there have been many incidents of building failures in Indonesia. These events claimed many human victims. This kind of incident must be held accountable to the parties who due to their mistakes or negligence resulted in the failure of a building to fulfill its function in terms of security and safety aspects. In 2016, the Yellow Bridge in Nusa Lembongan Klungkung collapsed and left eight people dead and 34 injured. Before collapsing, actually the Yellow Bridge had been inspected and the bridge was declared critical to be passed. Prohibition signs have also been installed. The collapse was thought to have been caused by an overload, which when the bridge collapsed, many people and 17 motorcycles were loaded. The overload resulted in the collapse of the bridge due to the breaking of the sling cable.
The failure of the building also occurred on January 15, 2018, namely the collapse of the stock trading center building, namely the Indonesia Stock Exchange (IDX) building. At least 75 people were injured and suffered broken bones. The spotlight on the incidents that occurred on the IDX was not only due to negligence which caused the safety of IDX workers and visitors to be threatened, but also the guarantee of building security vital to Indonesian and international economic activities. In addition to the Stock Exchange, the building is also the office of the World Bank.
A month later, a building failure in Indonesia’s infrastructure occurred, namely on February 5, 2018, where the underpass wall or the South Perimeter Road tunnel at Soekarno-Hatta International Airport collapsed. The wall collapsed after the construction work was completed and has been put into operation. As is known, above the tunnel there is a railroad track for Soekarno-Hatta International Airport. As a result of the incident, two women who were passing by in one car were buried under the soil and concrete of the tunnel material until one of them died.
For these events, many parties who participated in its construction should be suspected of being responsible. In every construction service operation, service users and service providers are required to meet security, safety, health and sustainability standards. If the implementation of construction services does not meet these standards, the service user and/or service provider may become the party responsible for the failure of the building. The building failures in the implementation of construction are determined by the Expert Appraiser and the decision is final and binding. Liability for building failure may be in the form of replacement for repair of Building Failure by the Service Provider and provision of compensation by the Service User and/or Service Provider. The service provider may transfer the responsibility for the replacement or repair of the Building Failure to a third party in the form of insurance.
If a construction service provider’s fault is found in the event of a building failure, the service provider is obliged to replace or repair the building failure. Article 65 of Law No. 2/2017 further details the liability for the failure of the building including:
- The service provider must be responsible for the failure of the building within the specified period in accordance with the construction age plan.
- In the event that the planned construction age is more than 10 years, the service provider must be responsible for the failure of the building within a maximum period of 10 years from the date of final delivery of construction services.
- Service users are responsible for building failures that occur after the period specified above.
- Provisions for the period of liability for building failures must be stated in the construction work contract.
If the construction service provider does not fulfill the obligation to replace or repair the failure of the building, it may be subject to administrative sanctions in the form of written warnings, administrative fines, temporary suspension of construction service activities, blacklisting, suspension of permits, and/or revocation of permits.
The Service User and/or Service Provider who will later be determined by the Expert Appraiser as the responsible party must provide compensation to the party who was harmed due to the Building Failure. The compensation will be determined by the competent authority based on the report from the Expert Appraiser. Compensation for losses suffered by the aggrieved party is in the form of:
- Compensation for the injured party who died
- Compensation for the aggrieved party who suffers an injury resulting in permanent disability
- Compensation for medical expenses that are actually incurred by the injured party or part of the cost of other services
- Compensation for destruction, damage, or loss due to Building Failure.
The compensation process carried out by the responsible party must be started within a period of no later than thirty calendar days from the date of stipulation by the competent authority.
