A. INTRODUCTION
In this era of disruption, everything is changing rapidly, including in the field of labour. In its development, a job is not only in the form of a working relationship but develops with new relationship patterns such as partnership relationship that are widely applied by application companies to online transportation drivers.
Basically, the legal relationship formed between online transportation drivers and application companies is a partnership relationship, not an employment relationship that is subject to Law (UU) Number 13 of 2003 concerning Manpower amended by Law Number 6 of 2023 concerning Stipulation of Government Regulation in Lieu of Law Number 2 of 2022 concerning Job Creation into Law, hereinafter referred to as (‘Manpower Law’). There is a difference between employment relationship and partnership relationship. Employment relationship in labour law is a relationship between a worker and an employer that is formed after an agreement is made between the worker and the employer. The agreement has the consequence that the employer declares his willingness to employ the person by paying wages and the person declares his willingness to work and receive wages from the employer1.
Unlike the employment relationship, the partnership relationship is arisen from a partnership agreement, which basically is an extension of the principle of freedom of contract as stipulated in Article 1338 of the Civil Code (‘Civil Code”’). The gig economy business concept carried out by application companies places online transportation drivers not as workers with employment relationship but as partners with partnership relationship. Partnership schemes are growing rapidly because companies can easily obtain labour whose skills are needed by the company. The concept of partnership relationship is basically equal and mutually beneficial for both parties unlike labour relations which are subordinate in nature.
The regulation of partnerships in positive law in Indonesia is regulated in Law No. 20 of 2008 concerning Micro, Small and Medium Enterprises (‘MSMES Law’), which basically only regulates the concept of partnerships between micro, small and medium enterprises and large businesses. In other words, there are no specific and detailed rules governing the partnership relationship between application companies and online transport drivers. This paper will discuss the construction of partnership relationship between application companies and online transport drivers and their differences with employment relationship.
B. DISCUSSION
I. CONSTRUCTION OF PARTNERSHIP LEGAL RELATIONSHIP BETWEEN ONLINE TRANSPORT DRIVERS WHO HAVE PARTNER STATUS WITH APPLICATION COMPANIES
The partnership relationship is arisen from a partnership agreement which basically a partnership agreement is an extension of the principle of freedom of contract as stipulated in Article 1338 jo Article 1320 of the Civil Code. Furthermore, partnership arrangements in positive law in Indonesia are regulated in the MSMEs Law which includes important aspects such as definitions, principles and partnership patterns as follows:
a. Definition of Partnership
Normatively, the definition of partnership is regulated in Article 1 point 13 of MSMES Law’, which states that:
“Partnership is cooperation in business linkages, either directly or indirectly, on the basis of the principles of mutual need, trust, strengthening and benefit involving micro, small and medium enterprises with large enterprises”2.
From this definition, it means that basically, partnership is a form of cooperation between two or more parties with the principles of mutual need, trust, strengthening, and benefit as outlined in the form of a partnership agreement.
b. Principles of Partnership
Basically, business partnerships are implemented by taking into account the principles of partnership, based on Article 104 paragraph (2) of Government Regulation Number 7 of 2021 concerning Ease, Protection, and Empowerment of Cooperatives and Micro, Small and Medium Enterprises (‘GR No 7/2021’), the principles of partnership include:
a. Mutual need;
b. Mutual trust;
c. Strengthen each other;
d. Mutual benefit.
Based on these principles, it means that the purpose of the partnership is a ‘win-win partnership’, where both parties have a common goal of mutual benefit or in other words, symbiotic mutualism. However, this does not mean that the parties in the partnership relationship must have the same strength or ability, but the essential thing is that there is an equal bargaining position between the two parties3. The affirmation of the principle of equality in partnership relationship is also contained in the provisions of Article 36 paragraph 1 of the MSMES Law, which states that
‘In implementing the partnership relationship, the parties have equal legal standing and Indonesian law applies to them’4.
c. Pattern of Partnership
The pattern of partnership is regulated in Article 26 of Law Number MSMEs in conjunction with Articles 106-116 of GR No 7/2021. Quoting from article 26 of the MSME Law that partnerships are implemented with patterns:5
a) core-plasma;
b) subcontracting;
c) franchising;
d) general trading
e) distribution and agency;
f) supply chain; and
g) other forms of partnership, such as profit sharing, operational cooperation, joint ventures, and outsourcing.
Partnership Relationship Between Application Companies and Online Transportation Drivers Based on the MSME Law
In its application, initially, many partnerships relationship were applied by micro, small and medium enterprises (MSMEs) with large businesses so that MSMEs could grow competitive and competitive in the midst of today’s increasingly competitive business climate. Therefore, cooperation in the form of partnerships is considered to be a strategy to increase the competitiveness of MSMEs with other business actors. However, along with the development of the digital economy, it has an impact on the massive growth of companies engaged in online-based transportation that use partnership relationship as the basis for the legal relationship between companies and online transportation drivers.
The Minister of Transportation Regulation No. 12/2019 on the Protection of Safety of Motorcycle Users Used for Public Interest indicates that the underlying legal relationship is a partnership relationship and the regulation refers to the MSME Law as stated in Article 15 as follows:6
- The relationship between the Application Company and the Driver is a partnership relationship.
- Arrangements regarding the partnership relationship as referred to in paragraph (1) shall be regulated in accordance with the provisions of laws and regulations.
Although the MSMES Law and GR No. 7/2021 do not specifically regulate the partnership between application companies and online transportation drivers. However, if it is connected to the UMKM Law, based on the Definition of Micro & Large Enterprises and the criteria in Article 35 of GR No. 7 of 2021, application companies are companies with the category of Large Enterprises with the criteria of having a business capital of more than IDR 10,000,000,000.00 (ten billion rupiah). For example, referring to the articles of association of PT GOTO Gojek Tokopedia, the recorded capital of PT GOTO Gojek Tokopedia is IDR 4,000,000,000,000.00. (four trillion Rupiah)7. Meanwhile, online transportation drivers are classified as micro businesses where online transportation is an individual productive business with business capital criteria of at most Rp1,000,000,000.00 (one billion rupiah). For example, to become an online transportation driver partner, the capital required is a motorbike and its equipment with an assumption not more than Rp. 1,000,000,000 as a form of capital contribution from online transportation drivers. Thus, the existence of both parties, namely Micro Businesses and Large Businesses, is fulfilled. The two parties also have a business relationship, where the application company has the business of providing application-based transportation services, and online transportation drivers are the executors of these services.
When referring to the provisions of Article 26 of the MSME Law Jo Article 113 of the GR No. 7/2021 regarding patterns in partnerships, the profit-sharing pattern is the closest to the partnership between application companies and online transportation drivers. Where in this pattern, micro, small and medium enterprises are positioned as executors who run businesses that is owned by large businesses. In this case, the online transportation driver is the executor of the business owned by the application company. With this concept, the component of income received comes from the minimum delivery rate per kilometres after being divided by the percentage to which the application company is entitled as agreed in the partnership agreement and incentives if it has met certain points.
In practice, the application of partnership relationship run by application companies is often not in accordance with the principles of partnership, such as policies that are decided unilaterally, resulting in protests and resistance from online transportation drivers as happened on August 29, 2024. This happens because there is no legal basis that specifically regulates the legal relationship between Application Companies and online transportation drivers. Practically only in the MSMES Law and PP 7/2021 which basically only regulates partnerships between only regulates partnerships between micro, small and medium enterprises and large businesses.
II. COMPARISON OF EMPLOYMENT RELATIONSHIP AND PARTNERSHIP RELATIONSHIP
There is currently a bias between employment and partnership relationship because many application companies apply partnership schemes as the basis of the legal relationship that underlies the relationship between the company and online transportation drivers as its partners, but the application tends to be similar to employment relationship. Therefore, to distinguish between the two, a comparison can be made between employment and partnership relationship as listed in the table below:
| Differentiating Factor | Employment relationship | Partnership Relationship |
| Basis of Agreement | Employment agreement | Partnership Agreement |
| Legal Basis | Manpower Law jo Job Creation Law | Civil Code jo MSMES Law |
| Wage and order | Available | None |
| Position of the Parties | Subordination | Equal |
| Social security and healthcare | Clearly regulated | Not clearly regulated |
| Working time | Set at 8 hours per day | Not clearly regulated |
| Minimum wage | Clearly regulated | Not clearly regulated |
| Status | Worker | Partner |
Based on the comparison table, the partnership relationship emphasizes mutualism between the parties. In principle, partnerships emphasize a mutually beneficial relationship. The position of the parties is equal. Unlike the employer-labor position in labor law which is superior-subordinate. Therefore, the legal relationship between application companies and online transportation drivers is a partnership relationship because there is no element of wages and orders, so it is not an employment relationship.
Case Example: Supreme Court Decision No. 85K/Pdt.Sus-PHI/2016
Although the difference between a partnership relationship and an employment relationship has been explained earlier, in reality there is often a mistake in classifying the legal relationship between a partnership and an employment relationship based on a work agreement.
An example can be seen in the Supreme Court Decision No. 85K/Pdt.Sus-PHI/2016 between Josman Simbolon et al. (Plaintiff) and PT. Tubagus Jaya Mandiri (Defendant). In this case, the Defendant initially terminated the partnership with the truck trailer drivers (Plaintiffs). The Plaintiffs then filed a claim for severance compensation in accordance with the law, but the Defendant refused, arguing that the relationship between the Plaintiffs and Defendant was merely a partnership.
Judicial Considerations: The court, in its deliberations, stated:
- The element of wages, as admitted by the Defendant in its response and based on witness testimony from both the Plaintiffs’ and Defendant’s witnesses, was proven. The commission-based payment system was recognized as wages, in accordance with Article 157(3) of Law No. 13 of 2003. The commission system was declared as wages.
- The element of orders, based on the Defendant’s response in point 5 and witness testimony from the Plaintiffs’ witness Eben Siregar and the Defendant’s witnesses Nurdin Bahrudin and Arry Heliyanto, proved that there were orders, specifically the delivery of goods to customers under the direction of the Defendant’s management.
- Thus, even though the formal relationship was based on a partnership, the elements of work, wages, and orders, as defined in Article 1(15) of Law No. 13 of 2003, were proven. Therefore, the relationship between the Plaintiffs and the Defendant was found to be an employment relationship.
According to the Court Decision, the relationship between a worker and the company constitutes an employment relationship, considering that the Plaintiffs (employees) received work, wages, and orders from the Defendant (company)
From the example of the case, it is important for companies to know how to determine the type of legal relationship that exists between them, because each legal relationship has different rights and obligations, so that the clarity of the legal relationship will clarify their rights and obligations.
CONCLUSION
The relationship between application companies and online transportation drivers is a partnership relationship, not as an employment relationship subject to the Manpower Law. This is due to the characteristics of the relationship that emphasize more on partnership, where there are no elements of work, wages and clear orders as in employment relationship. This partnership relationship is based on a partnership agreement with the principles of equality, mutual need, trust, strengthening, and benefit between the two parties, as stipulated in the Civil Code and MSME Law. In this context, online transportation drivers are considered micro businesses that establish partnerships with application companies as large businesses.
From the legal aspect of partnership as stipulated in the MSMES Law jo. GR 7/2021, the partnership relationship prioritizes mutualism between the parties. In principle, partnerships emphasize a mutually beneficial relationship. The position of the parties is equal, unlike the employer-labour position in employment relationship which is superior-subordinate.
In the future, it is crucial for the government, as the regulator, to establish clear and detailed regulations to govern this relationship, not only from a sectoral perspective as currently seen through Ministerial Regulation No. 12 of 2019, which focuses on transportation issues. Instead, the regulations should address more comprehensive aspects, such as: determining the types of work that can be regulated under a partnership scheme, fare setting, safety protection, and providing mechanisms for disputes resolution regarding partnership relationships.
- Lany Ramli, Labor Law, (Airlangga University Press 2008). [23]. ↩︎
- Article 1 number 13 of Law No. 20 of 2008 concerning MSMEs (State Gazette of the Republic of Indonesia Year 2008 Number 93)
↩︎ - Ery Agus Priyono, ‘Legal Protection for Parties in Livestock Partnership Agreements’, (2018), Vol.2, Diponegoro Private Law Review.
↩︎ - Article 36 of Law No. 20 of 2008 on MSMEs (State Gazette of the Republic of Indonesia Year 2008 Number 93)
↩︎ - Article 26 of Law No. 20 of 2008 on MSMEs (State Gazette of the Republic of Indonesia Year 2008 Number 93
↩︎ - Article 15 of Minister of Transportation Regulation No. 12/2019 on the Protection of Safety of Motorcycle Users Used for the Public Interest (State Gazette of the Republic of Indonesia Year 2019 Number 266)
↩︎ - Articles of Association of PT GOTO Gojek Tokopedia number 135
↩︎
