Procedures of Employing Foreign Workers Under MOM Reg. 8/2021
On March 31, 2021, the Minister of Manpower issued Regulation No. 8 of 2021 on the Implementing Regulation of Government Regulation 34 of 2021 on the Employment of Foreign Workers (“MOM Reg. 8/2021”). As its name implies, MOM Reg. 8/2021 is an implementing regulation of Government Regulation 34 of 2021 on the Employment of Foreign Workers dated February 2, 2021 (“GR 34/2021”) which specifies in greater detail the mechanism and requirements that must be fulfilled to employ foreign workers. Please see our Newsflash on GR 34/2021 here.
Previously, the employment of foreign workers was regulated under Minister of Manpower Regulation No. 10 of 2018 dated July 11, 2018 on the Procedures on the Employment Workers (the “Previous Regulation”). MOM Reg. 8/2021 revokes and replaces the Previous Regulation.
The highlights of MOM Reg. 8/2021 are as follows.
- Procedures on the Application and Issuance of Legalized Manpower Utilization Plans
In order to employ foreign workers, employers must first submit and obtain a legalized Manpower Utilization Plan (an “RPTKA”). An RPTKA also serves as the basis to grant visas and stay permits for foreign workers. The steps to apply for an RPTKA are as follows:
- Creation of an account by the employer in the Online Foreign Worker Employment System;
- Filling out application data and uploading required documents to obtain a legalized RPTKA;
- Evaluation of the application for the legalized RPTKA;
- Filling out the data on the potential foreign worker(s) and uploading required documents for such foreign workers;
- Issuance of a Notification of Foreign Worker Employment Compensation Fee (“DKPTKA”); and
- Issuance of a Legalized RPKTA.
For an application for a Legalized RPTKA, an employer shall submit at least:
- The name, address and business activity of the employer;
- The name, sex, age and address of the foreign worker;
- The position or type of job of the foreign worker;
- The place of work;
- The amount of compensation and payment terms;
- The employment terms, including the rights and obligations of the Foreign Worker and the Employer;
- The validity period of the employment contract;
- The place and date the employment contract is made;
- The signatures of the parties in the employment contract.
- Procedures on the Application and Issuance of Legalized Manpower Utilization Plans
There are four types of RPTKAs, namely: (i) an RPTKA for Temporary Jobs; (ii) an RPTKA for Jobs Lasting More than 6 Months; (iii) an RPTKA for non-DKPTKA Jobs; and (iv) an RPTKA for Work at Special Economic Regions (Kawasan Ekonomi Khusus or a “KEK”).
RPTKAs for Temporary Jobs
This RPTKA covers the following types of jobs:
- Commercial filmmaking that is approved by relevant authorities;
- Audit, production quality control or inspections on Indonesian branches for a duration of more than 1 (one) month;
- Jobs related to installation of machinery, electricity, after sale service or products in the exploration/development stage of the business;
- Impresario services; or
- One-off jobs or jobs that have a duration of less than 6 months.
The Legalized RPTKA for these jobs are valid for a maximum of 6 months and may not be extended.
RPTKAs for Jobs Lasting More Than 6 Months
This RPTKA covers jobs that last more than 6 months that is to be filled by a foreign worker. The Legalized RPTKA for these jobs is valid for up to 2 years and may be extended subject to the relevant immigration rules.
RPTKAs for Non-DKPTKA Jobs
RPTKA for Non-DKPTKA Jobs may be further divided into Non-DKPTKA jobs in: (i) social, religious, and educational institutions, or (ii) government institutions or foreign country/international organization representatives. The Legalized RPTKA for these jobs is valid for up to 2 years and may be extended subject to the relevant immigration rules.
RPTKA for Work at KEKs
These RPTKA covers jobs held by foreign workers in KEKs. The Legalized RPTKA for these jobs is valid for up to 5 years and may be extended subject to the relevant immigration rules. For a Director/Commissioner position in a KEK, the validity of the Legalized RPTKA is valid for the duration of the term of the Director/Commissioner subject to the relevant immigration rules. Furthermore, a Legalized RPTKA for work in a KEK is valid for work locations within the same KEK and other KEKs.
Once an application for the legalized RPTKA is submitted, it will be evaluated by the Directorate General of Manpower Placement Development and Work Opportunity Expansion.
- Exemptions from Having RPTKAs
A legalized RPTKA is not required for: (i) directors/commissioners who have certain share ownership in the company (i.e., the employer); (ii) Diplomatic or consular officers at foreign countries’ representative offices; or (iii) foreign workers employed by employers for production activities that were stopped due to emergencies, vocational, technology-based start-ups, business visits and limited period research.
For foreign workers in technology-based start-ups or vocational business activities, the exemption from having a legalized RPTKA is only valid if the job/business activity lasts for up to 3 (three) months. During this time, the employer for these businesses is only required to submit the data of the potential foreign worker. If the job/business activity exceeds 3 (three) months and the employer intends to employ the foreign worker, then an application for a legalized RPTKA is required.
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June 3, 2021
Please contact Johannes C. Sahetapy-Engel (jsahetapyengel@aksetlaw.com), Thomas P. Wijaya (twijaya@aksetlaw.com), or Caleb Sitorus (csitorus@aksetlaw.com) for further information.
Disclaimer:
The foregoing material is the property of AKSET and may not be used by any other party without prior written consent. The information herein is of general nature and should not be treated as legal advice, nor shall it be relied upon by any party for any circumstance. Specific legal advice should be sought by interested parties to address their particular circumstances.
Any links contained in this document are for informational purposes and are available and relevant at time this publication is made. We provide no liability whatsoever in respect of any information or content in such links.
Procedures of Employing Foreign Workers Under MOM Reg. 8/2021
Reallocation of Contributions for Unemployment Benefits Program: Procedures and Implementation
The Minister of Manpower (“MoM”) enacted Regulation No. 7 of 2021 dated March 31, 2021 on Participants Registration Procedures and Implementation of Premium Reallocation for the Unemployment Benefits Program (“MoM Regulation 7/2021“) in order to implement Article 10 (2) and Article 17 (2) Government Regulation No. 37 of 2021 dated February 2, 2021 (“GR 37/2021”) on the Implementation of the Unemployment Benefits Program (in Indonesian, Jaminan Kehilangan Pekerjaan or the “JKP Program”).
Employers are required to register their workers with the JKP Program. The workers shall be: i) Indonesian citizens, ii) below 54 (fifty-four) years old when registered, and iii) in employment relationship with the respective employers. In addition, workers who work at large or middle size enterprises must be registered with the following programs: National Health Security (in Indonesian, Jaminan Kesehatan Nasional), Work Accident Security (in Indonesian, Jaminan Keselamatan Kerja or “JKK”), Provident Fund (in Indonesian, Jaminan Hari Tua), National Pension Security (in Indonesian, Jaminan Pensiun) and Life Insurance (in Indonesian, Jaminan Kematian or “JKM”). Workers who work at micro and small enterprises must be registered with the foregoing programs as well, except for the National Pension Security (in Indonesian, Jaminan Pensiun).
MoM Regulation 7/2021 sets out provisions specifically concerning the procedures of the implementation of the premium reallocation for the JKP Program. A summary of the salient provisions of MoM Regulation 7/2021 is set out below.
- Source of Funds for JKP Program
The premium for the JKP Program shall be paid monthly in the amount of 0.46% (zero point four six percent) of a worker’s monthly salary. The 0.46% (zero point four six percent) amount is based on the following calculation:
- 0.22% (zero point two two percent) from the worker’s monthly salary will be paid by the Central Government; and
- The remaining 0.24% (zero point two four percent) from the worker’s monthly salary will be paid by way of the reallocation of the JKK and JKM premia. Pursuant to GR 37/2021, the amount of the JKK premium would be 0.14% (zero point one four percent) from the worker’s monthly salary and the JKM premium would be 0.10 (zero point one zero percent) from the worker’s monthly salary.
The source of the funds for the JKP Program is based on the reallocation of the JKK and JKM premia, with the following conditions:
- The JKK contributions are reduced by 0.14% (zero-point fourteen percent) of the monthly wages. Subsequently, the JKK contributions for each risk level group becomes:
- Very low risk level, 0.10% (zero point ten percent) of the monthly wages;
- Low risk level, 0.40% (zero point forty percent) of the monthly wages;
- Medium risk level is 0.75% (zero point seventy-five percent) of monthly wages;
- High risk level of 1.13% (one point thirteen percent) of the monthly wages;
- Very high risk level of 1.60% (one point sixty percent) of the monthly wages.
- JKM contributions are reduced by 0.10% (zero point ten percent) of the monthly wages. Subsequently, the JKM contributions becomes 0.20% (zero point twenty percent) of the monthly wages.
Such reduced contributions (being a total of 0.24% of the monthly wages) are then allocated for the contribution or premium for the JKP Program. Note that there is no additional payment by an employer or an employee for the JKP Program.
- Payment of JKK and JKM Recomposed Contributions
Pursuant to Article 10 of MoM Regulation 7/2021, for workers who are included in the Social Security Administrator Program (Badan Penyelenggara Jaminan Sosial or “BPJS”) for the first time, the reallocation of the JKK and JKM contributions will be implemented retroactively as of February 2021. Further, the contributions reallocation shall be implemented by the Manpower BPJS by the 17th of each of the following months. In cases where employers are in arrears in payments of JKK and JKM contributions by February 2021, the workers shall not automatically become participants to the program.
For the reallocation of the contributions executed after February, employers are required to report the participation data of the participants of JKK and JKM Programs to the Manpower BPJS every month no later than the 15th of each of the following months.
- Calculation of JKK and JKM Reallocated Contributions
The calculation of JKK and JKM reallocated contributions are based on the worker’s latest wage which have been reported to Manpower BPJS and shall not exceed the upper limit of wages, which is Rp5.000.000 (five million Rupiah). In any event the wage exceeds the upper limit, the wage used as a basis for the calculation shall be at the amount of the upper limit of the wage. In any event the wages reported to Manpower BPJS exceeds the upper limit of wages, the differences between the calculation of JKK and JKM reallocated contributions shall become the assets of the work accident social security funds and the death social insurance funds.
- Legitimacy of Participation
Employers who have included their workers into the JKP Program will be given a JKP Program membership certificate by the Manpower BPJS. The certificate, together with a card of participation, will be issued in electronic form. Pursuant to Article 19 of MoM Regulation 7/2021, the certificates and cards of participation shall be delivered by the Manpower BPJS to employers no later than 3 (three) business days after the contributions are paid while the cards of participation shall be delivered by the employers to their workers no later than 3 (three) business days since the same are received from the Manpower BPJS.
The Manpower BPJS and the Ministry of Manpower (the “Ministry”) shall integrate the JKP Program’s participation data into an employment information system at the Ministry.
***
June 3, 2021
Please contact Johannes C. Sahetapy Engel (jsahetapyengel@aksetlaw.com), Thomas P. Wijaya (twijaya@aksetlaw.com), or Esther C. Marpaung (emarpaung@aksetlaw.com) for further information.
Disclaimer:
The foregoing material is the property of AKSET and may not be used by any other party without prior written consent. The information herein is of general nature and should not be treated as legal advice, nor shall it be relied upon by any party for any circumstance. Specific legal advice should be sought by interested parties to address their particular circumstances.
Any links contained in this document are for informational purposes and are available and relevant at time this publication is made. We provide no liability whatsoever in respect of any information or content in such links.
Changes to Investment Law Under Omnibus Law
This newsflash is a follow up to the previously issued newsflash dated November 5, 2020, on the general overview of the Job Creation Law or what is publicly known as the Omnibus Law (link here).
This newsflash will cover further discussion on the amendments to the Law No. 25 of 2007 dated April 26, 2007 on Capital Investment (the “Investment Law”) under the Omnibus Law. The amended Investment Law shall now be the main reference for investment, either domestic or foreign, in all lines of business in Indonesia.
We set the following key provisions.
- Closed Lines of Business and Activities Reserved for the Central Government
Under the Omnibus Law, in principle, all lines of business are open for investment, except for business activities that are closed for investment and activities reserved for the Central Government. Under the elucidation of the Omnibus Law, activities reserved for the Central Government are service activities or other activities under the defense and security sectors, among others, main weaponry systems, public museums, historical and archaeological remains, provision of air navigation, telecommunication/aids to shipping navigation and vessel.
Previously, the Investment Law did not include an exhaustive list of business activities that are closed for capital investment. These closed business activities were listed under Appendix I of the Negative Investment List. Now it seems that it will be more difficult to change the list of business activities that are closed for investment, since the revision will require the process of getting such revision be passed by the House of Representatives.
Based on the existing Negative Investment List, there used to be 20 (twenty) business activities that are closed for capital investment. The Omnibus Law now simplifies the closed business activities into 6 (six) lines of business. The following business activities are closed for capital investment under the Omnibus Law:
- cultivation for and industry of type I narcotics;
- gambling and/or casino;
- fishing of species in Appendix I of Convention on International Trade in Endangered Species of Wild Fauna and Flora (CITES);
- utilization and retrieval of coral;
- manufacture of chemical weapons; and
- manufacture of industrial chemicals and manufacture of ozone-depleting substances.
It is also still unclear whether the remaining business activities that used to be closed for investment under the Negative Investment List, such as production of alcoholic beverages, production of active ingredients for pesticides, will now become open for investment. The elucidation of the Omnibus Law stipulates that capital investment shall be based on national interests, including protection of business activities that are harmful for health. Therefore, it remains to be seen whether there will be any change of restrictive approach towards production of alcoholic beverages, production of pesticides, and other business activities that are no longer listed as closed for investment under the Omnibus Law.
The Omnibus Law also mandates further provisions on investment to be stipulated under a Presidential Regulation. The investment requirements for the priority business activities shall be stipulated in the form of investment priority list under the Presidential Regulation which covers the following:
- Priority business activities with fiscal incentives;
- Business activities with non-fiscal incentives, among others, in the form of ease of Business Licensing, investment location, infrastructure and energy provision;
- Business activities for the Micro, Small, and Medium Enterprises (usaha mikro, kecil, dan menengah or “UMKM”) and partnership requirement between large enterprises and UMKM excluding partnership as a shareholder; and
- Business activities that are open with certain requirements.
We expect this Presidential Regulation—which is dubbed as the “Positive Investment List” by the Coordinating Minister for Economic Affairs—to be issued in the near future. However, in order to fully understand the restrictive provision and how it differs with the existing Negative Investment List, we may have to wait for at least three months in order to see the specific provision under the Presidential Regulation governing the Positive Investment List.
- The Protection of Cooperatives and Micro, Small, and Medium Enterprises
The Omnibus Law also amends Article 13 of the Investment Law. Under this provision, the Central Government or the Regional Governments, in accordance with their authorities, shall provide the convenience, empowerment, and protection to cooperatives and UMKM for their investment in accordance with the standards determined by the Central Government.
In order to protect and empower cooperatives and UMKM, the Omnibus Law provides that foreign capital investment is only allowed for large-scale enterprises and shall establish a partnership with the cooperatives and UMKM. Certain business activities will also be either allocated for cooperatives and UMKM or open for large-scale enterprises with requirement to establish a partnership with cooperatives and UMKM. These protection and empowerment may be in the form of (a) partnership program; (b) human resources training; (c) competitiveness enhancement; (d) innovation and market growth endorsement; (e) accessibility to financing; and (f) widespread dissemination of information.
Further, to support the intention of supporting entrepreneurship in Indonesia the Omnibus Law introduces a specific support provision for partnership arrangement in Indonesia. In this new provision, the Central Government and the Regional Government, in accordance with their authorities, (i) must facilitate the partnership between medium enterprise and large enterprise with cooperatives, micro and small enterprise in the supply chain for increasing competitiveness and business level; (ii) provide incentives and ease of doing business according to the prevailing laws and regulations; and (iii) supervise and evaluate the implementation of partnership between cooperatives, UMKM, and large enterprises. Further provisions will be governed under the Government Regulation.
- Capital Investment Facilities
Another notable amendment under the Omnibus Law incorporates tourism business development as one of the segments that are eligible to receive investment facilities. The types of investment facilities are no longer listed in this Law and will be subject to laws and regulations on taxation. We note that this change in arrangement is intended to streamline policies relating to tax facilities so that it is governed fully by the Ministry of Finance.
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November 25, 2020
Copyright © 2020 AKSET. All rights reserved.
Changes to Investment Law Under Omnibus Law
Changes to Competition Law under Omnibus Law
As a follow up to the previously issued newsflash dated November 5, 2020 on the general overview of the Job Creation Law or what is publicly known as the Omnibus Law (link here), this newsflash covers further discussion of the notable amendments to Law No. 5 of 1999 dated March 5, 1999 on Prohibitions on Monopolistic Practices and Unfair Business Competition (the “Competition Law”) under the Omnibus Law.
The amendments to the Competition Law may impose several implications and challenges in the antitrust sector.
This newsflash will focus on the following key provisions.
- Change of Appeal Procedure (the “Objection”) to the Commercial Court
Previously, the Objection procedure for a decision rendered by the Indonesian Business Competition Supervisory Commission (Komisi Pengawas Persaingan Usaha or "KPPU") needed to be submitted to the District Court. The Omnibus Law now requires business actors to submit the Objection to the Commercial Court. Accordingly, the authority of the District Court to examine and decide upon Objection to the KPPU decisions regarding business competition and/or antitrust cases as provided under Article 44 of the amended Competition Law is now transferred to the Commercial Court.
In addition to the change in jurisdiction, the Omnibus Law also repeals the maximum 30-day deadline in issuing a decision at the Objection and cassation stage. As a result, both the Commercial Court and Supreme Court are free to issue a decision without any time limit.
With this change of authority taking place, the Commercial Court now has an absolute competence to examine, adjudicate, and decide the following matters: Bankruptcy and Suspension of Debt Payment Obligations (Penundaan Kewajiban Pembayaran Utang or PKPU), Bank Liquidations by the Indonesian Deposit Insurance Company (Lembaga Penjamin Simpanan or LPS), Intellectual Property, and recently, Business Competition.
The Omnibus Law provides that further procedures for the examination on the Commercial Court and the Supreme Court shall refer to the prevailing laws and regulations. In this case, the Objection procedures in the Commercial Court will still refers to the Supreme Court Regulation No. 3 of 2019 dated August 20, 2019 on Procedure for Appeal against Decisions of the KPPU (“SC Reg. 3/2019”). It is worth noting that SC Reg. 3/2019 stipulates Objection procedures in the District Court. Therefore, this may cause some confusion in the future with regard to the procedures to be implemented in the Commercial Court. We expect that the Supreme Court will issue a circular letter on the Objection procedure in the Commercial Court in the near future.
- Removal of Maximum Administrative Fines of Rp25 Billion
The most significant change to the Competition Law lies in the removal of the capped fee on fines of Rp25 billion under Article 47 of the amended Competition Law. Following the adjustment under this article, KPPU may now have a power to impose even higher administrative fines for violation of the Competition Law. This provision is subject to a Government Regulation which will set out further provisions on the criteria, type, amount of fine, and procedures of sanction imposition.
- Limitation of Criminal Sanctions Imposition
The Competition Law previously stipulates criminal sanctions for violating several articles under the Competition Law. In practice, though, criminal sanction has never been exercised in Indonesia towards violation of the Competition Law. The Omnibus Law now stipulates that only a violation of Article 41 of the Competition Law (refusal of providing evidence or hindering the investigation process) may be subject to criminal sanction. The form of criminal sanction for violating this provision is subject to a fine of up to Rp5 billion or substituted with criminal confinement for no longer than 1 (one) year.
Meanwhile, any violation of the other articles previously mentioned in Article 48 of the Competition Law, such as prohibited agreements, prohibited activities, and dominant position are only subject to administrative sanctions provided under the Omnibus Law.
- Removal of Additional Criminal Sanctions
The Omnibus Law also removes the provision on additional criminal sanctions as previously provided under Article 49 of the Competition Law, such as (i) revocation of business licenses; (ii) prohibition of business actors proven to have violated this law from filling the position of director or commissioner for at least 2 (two) years and no longer than 5 (five) years; or (iii) order to cease certain activities or actions causing losses to other parties. The Omnibus Law now does not recognize additional criminal sanctions for any violation of the Competition Law.
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November 24, 2020
Copyright © 2020 AKSET. All rights reserved.
Changes to Competition Law under Omnibus Law
Changes to Manpower Law under Job Creation Law
On November 2, 2020, the President of the Republic of Indonesia enacted the approved Job Creation Bill (or publicly known as the Omnibus Law) which Bill was passed by the House of Representatives on October 5, 2020. The Job Creation Bill is enacted as Law No. 11 of 2020 dated November 2, 2020 on Job Creation (the “Job Creation Law”).
Under the Job Creation Law, certain provisions of Law No. 13 of 2003 dated March 25, 2003 on Manpower (the “Manpower Law”) are amended.
The amendments to the Manpower Law are found in Chapter 4 Article 81 of the Job Creation Law. The highlights of the amendments are as follows.
- WORK TRAINING
A work training shall be organized and directed to provide, enhance, and develop work competence in order to improve capability, productivity, and welfare of employees. Previously, a work training may only be organized by work training institutions held by the Government and/or private sectors. The Job Creation Law stipulates that a work training now may be organized by in-house or within an employer.
A work training business is open for foreign investment with foreign capital ownership limitation up to 67%.
- EMPLOYMENT OF EXPATRIATES
As was required under the Manpower Law, under the Job Creation Law an employer that wishes to employ an expatriate must have an approved Foreign Manpower Utilization Plan (Rencana Penggunaan Tenaga Kerja Asing – an “RPTKA”). Under the Job Creation Law, an RPTKA is not required in the following cases: (i) for directors or commissioners with certain shares ownership or shareholders in accordance with applicable laws, (ii) for diplomats and consulate officials working at representatives of foreign countries, or (iii) for foreigners who are needed for the production activities that are halted due to an emergency, vocational, start-up companies, business visits, and performing research for a certain period.
Unlike the provision under the Manpower Law, employers who do not possess an RPTKA while employing an expatriate are not subject to criminal sanctions under the Job Creation Law. The Job Creation Law provides that employers who do not have an approved RPTKA would only be subject to administrative sanctions which will be set out in an implementing regulation. Further provisions on the allowed positions and period of employment of expatriates, as well as types of the administrative sanctions, will be stipulated in a Government Regulation.
- FIXED-TERM EMPLOYMENT AGREEMENTS
The Job Creation Law no longer stipulates the maximum period of fixed-term employment agreements. But, the Job Creation Law still states that fixed-term employment agreements shall not be entered into for the work that is permanent in nature. So in our view, it is very unlikely that an employer may use a ‘perpetual’ fixed-term employment agreement given the ephemeral nature of a fixed-term employment agreement in the first place.
Previously, fixed-term employment agreements entered in a foreign language only and not in Roman alphabets would convert into indefinite-term employment agreements. This provision is not stated in the Job Creation Law.
The Job Creation Law introduces new provisions regarding compensation pay payable to fixed-term employees upon completion of the employment period or the completion of the work. The amount of such compensation pay is based on the completed year(s) of service. However, there is no change in the provision regarding the compensation entitlement for termination of fixed-term employment prior to the completion of employment period as stipulated in Article 62 of the Manpower Law.
Further provisions on fixed-term employment agreements and compensation pay for fixed-term employees will be stipulated in a Government Regulation.
- SUBCONTRACTING AND OUTSOURCING
Subcontracting service (business to business) provisions under the Manpower Law are revoked. This revocation now allows companies to freely subcontract any work to any third party based on commercial terms agreed by the parties.
For outsourcing, the Job Creation Law is now silent on the types of work that may be outsourced to outsourcing companies. The outsourcing arrangement itself remains acknowledged. The Job Creation Law clarifies that the outsourcing company (and not the engaging company) is responsible and liable for the employment of the outsourced employees.
Also, the Job Creation Law requires an outsourcing company to ensure that an outsourced employee will continue to work in the same work if the outsourcing is granted to another outsourcing company. We expect that the Government will issue implementing regulation concerning outsourcing matters.
- WORK HOURS
Previously, the Manpower Law provided that overtime work is allowed for a maximum of 3 hours per day and 14 hours per week. The Job Creation Law stipulates that overtime work may be performed for a maximum of 4 hours per day and 18 hours per week. While there is an increase of the overtime hours, the approval of the employees for any overtime is still required.
- WAGES
Wages are determined based on time units and/or output units. This provision is not new as this is contained under Government Regulation No. 78 of 2015 dated October 23, 2015 on Wages. Article 88C of the Manpower Law provides that Governors must determine the provincial minimum wages and may also determine regency/city minimum wages subject to regional economic growth and inflation. The determination of a Governor on minimum wages shall taking into account the economy and manpower conditions based on data derived from the statistics agency. Note that micro and small businesses are exempt from the minimum wages requirement. We note that further detailed provisions on wages will be stipulated under a Government Regulation.
In addition, the amended Article 95 of the Manpower Law accommodates the previous Constitutional Court Decision against the Manpower Law regarding payment of wages during bankruptcy or liquidation of an employer. When a company is bankrupt or liquidated, the Job Creation Law provides that the payment of employee’s outstanding wages are prioritized over payment to other creditors, including secured creditors’ claims, claims of state’s rights, auction houses, and public institutions established by the Government. Meanwhile the payment of other employees’ rights are paid in advance against all creditors except secured creditors.
- PAID LEAVE
Under the Job Creation Law, a long leave may be given by certain companies and it shall be governed under an employment agreement, a company regulation, or a collective work agreement.
Other provisions on paid leave regulated under the Manpower Law remain unchanged, including paid menstrual leave and maternity leave.
- TERMINATION OF EMPLOYMENT AND TERMINATION BENEFITS
Consistent with the Manpower Law, the Job Creation Law does not recognize the concept of termination-at-will. Therefore, employers may not dismiss employees without cause. In the event of employment termination and the employee does not accept the termination, the amended Article 151 of the Manpower Law requires the parties in dispute to go through the dispute settlement procedures (i.e., the bipartite negotiation, the tripartite mediation, and the court proceeding at the Labor Court) as regulated under Law No. 2 of 2004 dated January 14, 2004 on Industrial Relation Dispute Settlements.
Under the Job Creation Law, there are no longer multipliers of the termination benefits arising from termination of employment under specific circumstances (e.g., in the event of efficiency measures, mergers, acquisitions, changes of ownership, consolidations, spin offs, death, retirement, or prolong illnesses). We understand that these changes appear to be the most controversies and objection from the labor workforce, since these entitlements in the event of employment termination are reduced.
The formula to calculate the amount of termination pay and service pay under the Job Creation Law remains the same with that of the Manpower Law. However, we note that the Job Creation Law omits one of the components of the compensation pay which was previously regulated under the Manpower Law, namely the ‘housing, medical, and health care allowance’ which was determined to be 15% of the total amount of the severance and the service pay.
Note that the Job Creation Law now regulates a significant protection for employees in the event of termination of employment, whereby the failure of an employer to pay termination benefits to an employee will result in criminal sanctions (i.e., imprisonment of 1 - 4 years and fines of Rp100 – 400 million).
- NEW SOCIAL SECURITY PROGRAM DUE TO JOB LOSS
While there are no multipliers of severance pay and service pay like in the Manpower Law, the Job Creation Law introduces a new social security program called the job loss security/coverage. The job loss security/coverage will be organized by the Social Security Administrator Agency for Manpower (BPJS Ketenagakerjaan) and the Government. The program will provide benefits for employees whose employment is terminated in the form of cash (capped at six months’ wages), job training, as well as access to job market information. This additional security/coverage is subject to payment of a premium or contribution to BPJS Ketenagakerjaan. The Job Creation Law states that the Government shall be responsible for the premium or contribution for the job loss security/coverage.
Further provisions on the job loss coverage/security will be stipulated in a Government Regulation. So it remains to be seen how the job loss security/coverage will be implemented and paid to the employees whose employment is terminated.
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November 5, 2020
Copyright © 2020 AKSET. All rights reserved.
Changes to Manpower Law under Job Creation Law
Long-Awaited Omnibus Law Finally Enacted
On November 2, 2020, the Job Creation Law or what is publicly known as the Omnibus Law was officially promulgated as Law No. 11 of 2020 on Job Creation (“Job Creation Law” or “Omnibus Law”). This newsflash is an update to the previously issued newsflash that we issued on October 7, 2020 (link here).
In line with the previous Job Creation Bill that was approved by the House of Representatives and circulated publicly on October 5, 2020 (the “Job Creation Bill”), it seems that there are no major changes to the Job Creation Bill compared to this final version of the enacted Omnibus Law, which amends 78 existing laws.
We will issue a series of newsflashes with an in-depth discussion of the Omnibus Law notable amendments against the previously prevailing laws and other notable changes against the Job Creation Bill (as relevant) within the upcoming weeks.
The Omnibus Law aims to create and increase jobs by providing the protection and empowerment of cooperatives and UMKM as well as providing ease of doing business, particularly for the acceleration of national strategic projects.
The Omnibus Law consists of 15 chapters and 186 articles which includes the following scopes:
- improvement of the investment ecosystem and business activities;
- manpower;
- protection and empowerment of cooperatives and UMKM;
- ease of doing business;
- research and innovation support;
- land procurement;
- economic area;
- Central Government investment and acceleration of national strategic projects;
- implementation of the government administration; and
- sanctions
Due to the wide scope of the Omnibus Law, this newsflash will focus on the following key provisions.
- Improvement of the Investment Ecosystem and Business Activities
Article 6 of the Omnibus Law introduces a new concept on the improvement of the investment ecosystem and business activities, which will be elaborated below.
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- Implementation of Risk-based Business Licensing
The Omnibus Law introduces a new segmentation of business licensing based on risk profiles of the business, namely: low, medium, or high risks.
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- Simplification of the Basic Requirement for Business Licensing
The simplification of the basic requirement of business licensing covers the suitability of spatial layout activities, environmental approvals, and approvals of the buildings and certificate of feasible function.
In order to simplify the basic requirement of business licensing, the Omnibus Law amends, removes, and/or stipulates new provisions to the laws related to spatial layout, management of shorelines and small islands, marine affairs, geospatial information, environmental, buildings, and architects.
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- Simplification of Sectoral Business Licensing
The Omnibus Law is expected to simplify business licensing process in the following sector: marine and fisheries; agriculture; forestry; energy and mineral resources; nuclear affairs; industry affairs; trade affairs, legal verification (metrology), halal products warranty, and standardizations compliance evaluations; public works and housing; transportation; health, medicine, and food; education and culture; tourism; religion affairs; postal, telecommunications, and broadcasting affairs; and defense and security.
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- Simplification of Investment Requirement for Certain Sectoral
In order to implement ease of doing business for public and business actors in certain business sectors, the Omnibus Law amends, removes, or stipulates new provisions to the laws related to capital investment, banking, and sharia banking.
- Ease of Doing Business
In order to implement ease of doing business for business actors, the Omnibus Law amends, removes, or stipulates new provisions, among others, under the Immigration Affairs Law, the Patent Law, the Trademark Law, the Company Law, the Taxation Laws, and the Anti-Trust Law.
- Central Government Investment and Ease of National Strategic Projects
The Omnibus Law introduces a new concept of the Central Government Investment. The Central Government investment is carried out by the Minister of Finance as the State Treasurer (“MOF”) and/or an institution granted with special authority (sui generis) to manage the investment, in order to increase the investment and strengthen the economic condition for supporting the strategic policies of job creation.
In carrying out its duties, the MOF has the following authorities: (i) fund placement in the form of monies instrument(s); (ii) management of assets; (iii) cooperation with other party including with trust fund; (iv) determine the investment partner(s); (v) grant and obtain loan; and/or (vi) management of its own assets.
On a separate note, the Central Government or the Local Government in accordance with their authorities is responsible to provide area and business licensing for national strategic projects of the Central Government, Local Government, State-Owned Enterprises or Local-Owned Enterprises.
If the Central Government or the Local Government is not able to conduct a land procurement for any national strategic project, then such land procurement may be carried out by business entities subject to requirements under prevailing laws and regulations.
- Other Notable Notes
Upon the enactment of the Omnibus Law:
-
- Any applicable laws and regulations that contradict the Omnibus Law or any other higher laws and regulations or court decisions need to be harmonized and synchronized. It will be coordinated by the Ministry of Law and Human Rights.
- Business or sectoral licensing that has been issued shall remain valid up until the expiry of such licensing. Meanwhile, the ongoing application for a business licensing must be adjusted to be in accordance with the Omnibus Law.
- The relevant Government Regulation(s) and the Presidential Regulation(s) as the implementation of the Omnibus Law shall be enacted within 3 (three) months.
***
November 5, 2020
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Long-Awaited Omnibus Law Finally Enacted
Manpower Law Amended
17 years after the enactment of Law No. 13 of 2003 dated March 25, 2003 on Manpower (the “Manpower Law”), certain provisions of the Manpower Law are now amended. On October 5, 2020, the House of Representatives passed the Job Creation Law (or publicly known as the Omnibus Law) which contain certain amendments of the Manpower Law (the “Amended Manpower Law”) along with amendments to other 80 existing laws.
At the time this newsflash is issued, the Job Creation Law is still undergoing final redactional reviews and the promulgation process with the State Secretary (for the signing by the President). The Omnibus Law is not effective yet until it is signed by the President and promulgated. If the President does not sign the Omnibus Law in 30 days from October 5, 2020, the Omnibus Law becomes effective then by law. Accordingly, the final draft we reviewed may not be promulgated verbatim, and we should expect changes (albeit non substantial) in the latest version of the Law that is enacted.
Among the numerous amended laws, the Amended Manpower Law is one controversial issue which results in a series of demonstrations and opposition from the labor workforce. The Amended Manpower Law may be found at Chapter 4 Article 81 of the Omnibus Law. The highlights of the salient points of the Amended Manpower Law are as follows:
- USE OF EXPATRIATES
Principally, an employer that wishes to employ an expatriate must have a Foreign Manpower Utilization Plan (Rencana Penggunaan Tenaga Kerja Asing – an “RPTKA”). Under the Amended Manpower Law, an RPTKA is not required in the following cases: (i) for directors or commissioners with certain shares ownership or shareholders in accordance with applicable laws, (ii) for diplomats and consulars working at representative offices of foreign countries, or (iii) for foreigners who are needed for the production activities that are halted due to an emergency, vocational, start-up companies, business visits, and research for a certain period. Further provisions on utilization of expatriates will be stipulated in a Government Regulation.
- FIXED-TERM EMPLOYMENT AGREEMENTS
It appears that the Amended Manpower Law no longer stipulates the maximum period of fixed-term employment agreements. But, the Amended Manpower Law still states that fixed-term employment agreements shall not be entered into for the work that is permanent in nature. So in our view, it is very unlikely that an employer may use a ‘perpetual’ fixed-term employment agreement given the ephemeral nature of a fixed-term employment agreement in the first place.
Previously, fixed-term employment agreements entered in a foreign language only and not in Roman alphabets would convert into indefinite-term employment agreements. This provision is not in the Amended Manpower Law.
The Amended Manpower Law introduces new provisions regarding compensation pay payable to fixed-term employees upon completion of the employment period or the completion of the work. The amount of such compensation pay is based on the completed year(s) of service. However, there is no change in the provision regarding the compensation entitlement for termination of fixed-term employment prior to the completion of employment period as stipulated in Article 62 of the Manpower Law.
Further provisions on fixed-term employment agreements and compensation pay for fixed-term employees will be stipulated in a Government Regulation.
- SUBCONTRACTING AND OUTSOURCING
Subcontracting service (business to business) provisions under the Manpower Law are revoked. This revocation now allows companies to freely subcontract any work to any third party based on commercial terms agreed by the parties.
For outsourcing, the Amended Manpower Law is now silent on the types of work that may be outsourced to outsourcing companies. The outsourcing arrangement itself remains acknowledged. Note that the Amended Manpower Law requires an outsourcing company to ensure that an outsourced employee will continue to work in the same work if the outsourcing is granted to another outsourcing company.
- WORK HOURS
Previously, the Manpower Law provided that overtime work is allowed for a maximum of 3 hours per day and 14 hours per week. The Amended Manpower Law stipulates that overtime work may be performed for a maximum of 4 hours per day and 18 hours per week. While there is an increase of the overtime hours, the approval of the employees for any overtime is still required.
- WAGES
Wages are determined based on time unit and/or output unit. Article 88C of the Amended Manpower Law provides that Governors must determine the provincial minimum wages and may also determine regency/city minimum wages subject to regional economic growth and inflation. The determination of a Governor on minimum wages shall taking into account the economy and manpower conditions based on data derived from the statistics agency. Note that micro and small businesses are exempt from the minimum wages requirement. We note that further detailed provisions on wages will be stipulated under a Government Regulation.
In addition, Article 95 of the Amended Manpower Law accommodates the previous Constitutional Court Decision against the Manpower Law regarding payment of wages during bankruptcy or liquidation of an employer. When a company is bankrupt or liquidated, the Amended Manpower Law provides that the payment of employee’s outstanding wages are prioritized over payment to other creditors, including secured creditors’ claims, claims of state’s rights, auction houses, and public institutions established by the Government. Meanwhile the payment of other employees’ rights are paid in advance against all creditors except secured creditors.
- PAID LEAVE
Under the Amended Manpower Law, a long leave may be given by certain companies and it shall be governed under an employment agreement, a company regulation, or a collective work agreement.
Other provisions on paid leave regulated under the Manpower Law remain unchanged, including paid menstrual leave and maternity leave.
- TERMINATION OF EMPLOYMENT AND TERMINATION BENEFITS
Consistent with the Manpower Law, the Amended Manpower Law does not recognize the concept of termination-at-will. Therefore, employers may not dismiss employees without cause. In the event of employment termination and the employee does not accept the termination, Article 151 of the Amended Manpower Law requires the parties in dispute to go through the dispute settlement procedures (i.e., the bipartite negotiation, the tripartite mediation, and the court proceeding at the Labor Court) as regulated under Law No. 2 of 2004 dated January 14, 2004 on Industrial Relation Dispute Settlements.
Under the Amended Manpower Law, there are no longer multipliers of the termination benefits arising from termination of employment under specific circumstances (e.g., in the event of efficiency measures, mergers, acquisitions, changes of ownership, consolidations, spin offs, death, retirement, or prolong illnesses). We understand that these changes appear to be the most controversies and objection from the labor workforce, since these entitlements in the event of employment termination are reduced.
The formula to calculate the amount of termination pay and service pay under the Amended Manpower Law remains the same with that of the Manpower Law. However, we note that the Amended Manpower Law omits one of the components of the compensation pay which was previously regulated under the Manpower Law, namely the ‘housing, medical, and health care allowance’ which was determined to be 15% of the total amount of the severance and the service pay.
While there are no multipliers of severance pay and service pay like in the Manpower Law, the Omnibus Law introduces a new social security program called the job loss security/coverage. The job loss security/coverage will be organized by the Social Security Administrator Agency for Manpower (BPJS Ketenagakerjaan) and the Government. The program will provide benefits for employees whose employment is terminated in the form of cash, job training, as well as access to job market information. This additional security/coverage is subject to payment of a premium or contribution to BPJS Ketenagakerjaan. It is unclear yet who shall be responsible for the premium or contribution for the job loss security/coverage.
Further provisions on the job loss coverage/security will be stipulated in a Government Regulation. So it remains to be seen how the job loss security/coverage will be implemented and paid to the employees whose employment is terminated.
***
October 8, 2020
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Newsflash on Amendment of Manpower Law
Omnibus Law Finally Passed
On October 5, 2020, the House of Representatives finally passed the long-awaited Job Creation Law or what is publicly known as the Omnibus Law, amidst controversies during the drafting process.
At the time this newsflash is issued, this Job Creation Law is still undergoing final redactional review and promulgation process with the State Secretary. The public has yet to obtain the final version of the Law at this moment. The discussion of this newsflash is based on the final draft of the Job Creation Bill circulated publicly on October 5, 2020. We expect some changes in the Law is enacted, but no substantial changes should be made to the Law.
In total, based on this latest draft, the Omnibus Law amends 76 existing laws. Among the numerous amended laws, some of the most notable amendments are laws on capital investment, limited liability companies, and manpower. The complete list of the amended laws may be found in the following link.
In addition to the amendment of laws, the Omnibus Law stipulates segmentation for licensing based on the risk profiles of business activities. This is intended to simplify licensing the process and doing business in Indonesia, including the institutionalization of micro and small enterprises.
Further, in relation to taxation matters, Government of Indonesia originally intended to pass a separate “omnibus law” on taxation. However, this newly-enacted Job Creation Law already includes amendments on taxation laws (i.e., the Law on General Provisions of Taxation, the Law on Income Taxes, and the Law on Value Added Taxes and Sales Taxes for Luxury Goods). It remains to be seen whether the omnibus law on taxation will still be discussed and passed separately by the House of Representatives.
Please find below the key provisions in the Omnibus Law. We will issue a series of newsflashes with in-depth discussion on each of these items.
- Risk-based Business Licensing
The Omnibus Law introduces a new segmentation of business licensing based on risk profiles of the business namely: low, medium, or high risks. The risks are determined based on an evaluation of the health, safety, environment, resources utilization and management, and volatility of the businesses.
Based on the risk profiles of the businesses, the documents required for the relevant business are as follows.
| Risk | Business Licensing Document |
| Low | A Business Identification Number (Nomor Induk Berusaha or “NIB”) |
| Medium-low | a. An NIB; and
b. A Statement of certification standard by the business actor. |
| Medium-high | a. An NIB; and
b. Fulfillment of certification standards. |
| High | a. An NIB; and
b. A License. |
We expect the implementation of this risk-based business licensing to be incorporated in the Online Single Submission (“OSS”) system.
- Transitional Clauses
In light of the issuance of this Omnibus Law, existing Business Licenses will still be valid until the end of their validity period, and any issued Business License may be adjusted in accordance with the Omnibus Law.
Under the Omnibus Law, the implementing regulations should be issued in three months from the date of the Law’s promulgation. Existing implementing regulations will still be valid as long as the provisions therein do not contradict those of the Omnibus Law, and they shall be conformed within three months.
- Amendments of Capital Investment Law
The Omnibus Law amends the Capital Investment Law to include specific business lines that are closed for capital investment. Other than these closed business lines and activities that may only be carried out by the Central Government, all business lines are open for investment. We expect the new negative list of investment to be issued in the near future following the enactment of the Omnibus Law.
- Amendments of Company Law
Under the amendment of the Company Law in the Omnibus Law, there is no longer a minimum requirement for the authorized capital. The amount of the authorized capital shall be agreed upon by the founders of the company and 25% of such authorized capital shall be issued to and paid-up by the shareholders.
It is important to note that under the current BKPM regulations, foreign investment companies are still required to have the issued and paid-up capital of at least Rp2.5 billion.
Another new concept introduced under the Omnibus Law is the simplification of the company establishment for micro and small businesses. Micro and small companies may be established by a sole shareholder pursuant to an establishment statement. With this provision, micro and small businesses may be institutionalized with more lenient requirements, thus creating a separation of liability between the company and the individual owner.
- Amendments of Manpower Law
The Omnibus Law amends various provisions under the Manpower Law, among them are treatment on terms of fixed-term employment agreement, outsourcing rules, and employment termination benefits.
The amendments of the Manpower Law under the Omnibus Law no longer stipulate the maximum period of a fixed-term employment agreement, although the Omnibus Law still states that fixed-term employment agreements shall not be entered into for works that are permanent in nature. Further provisions on fixed-term employment agreements will be stipulated under a Government Regulation.
The amendments to the Manpower Law remove subcontracting from the Manpower Law, and do not set out the types of works that may be outsourced to outsourcing companies, while still acknowledging outsourcing arrangement itself. However, because the Minister of Manpower Regulations currently in effect still contain the said conditions (e.g., that outsourcing may only be for supporting activities separate from main business activities), it is unclear whether these conditions will be considered a contradiction that will require an adjustment to conform with the Omnibus Law. Therefore, it remains to be seen whether the Minister of Manpower will issue new regulations on outsourcing due to changes in outsourcing rules in the Omnibus Law.
Other notable amendments under the Manpower Law are changes on employment termination benefits. Under the Omnibus Law, there is no longer multiplier for termination benefits in relation to termination of employment under specific circumstances (e.g., in the event of efficiency or merger of companies). We understand that these changes are what causes the most controversies and objection from labor workforce, since these have greatly reduced their employment termination entitlements in cases of mergers, efficiencies, or death.
- What to Expect
Despite its intention to ease licensing process and doing business in Indonesia, various matters under the Omnibus Law still remain to be further stipulated to ascertain that these ideas work for all stakeholders across the board.
***
October 7, 2020
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Omnibus Law Finally Passed
Employee Protection and Business Sustainability on the Prevention of Covid-19
On March 17, 2020, the Minister of Manpower (the “MOM”) issued her Circular Letter No. M/3/HK.04/III/2020 on the Employee Protection and Business Sustainability on the Prevention of COVID-19 (the “Circular Letter”).
Through this Circular Letter, the MOM requests all the Governors in Indonesia to apply the following measures to protect employees and to sustain businesses.
- Infection Prevention and Countermeasures of COVID-19 in Workplace
The Governors are requested to develop and supervise the implementation of laws and regulation related to the Occupational Health and Safety Measures (K3) and to register and report any COVID-19 case to the relevant institutions. The Governors shall instruct each employer to anticipate the COVID-19 outbreak at the workplace by implementing measures such as hygiene obligation into the K3, implementing the Health and Safety Supervising Committee, and optimizing the function of the work safety service.
The Governors shall emphasize that each employer must immediately develop a plan in facing the COVID-19 outbreak to lessen the infection risk in the workplace and to sustain the businesses.
- Wage Protection during COVID-19 Outbreak
Any employee that is unable to work because:
- he or she is categorized a Person under Supervision (Orang Dalam Pengawasan) based on a doctor statement for the maximum of 14 (fourteen) days or more in compliance with the standards issued by the Ministry of Health, or
- he or she is a suspect of the COVID-19 infection and is quarantined or isolated based on a doctor statement,
is entitled to receive the full wages during the quarantine or isolation periods.
If an employee is unable to work because he or she is infected by the COVID-19 as evidenced by a doctor statement, he or she is entitled to received the wages as accordance to the prevailing laws and regulations.
For employers, the Circular Letter simply states that if an employer is unable or restrained to conduct its business based on the respective regional government policy, which in turn results in all or some of the workers being unable to work, in considering the business sustainability, such employer may amend or adjust the wage amounts and the means of payment based on a mutual agreement between the employer and the employees. This is nothing but a repetition of the relevant provisions of the Manpower Law (Law 13 of 2003).
In this context, please note that the Circular Letter does not allow employers to reduce wages without the consents of the employees. While this is disappointing for employers, please note that the Manpower Law restricts an employer from reducing the amounts of wages without the consent of the employee.
***
April 1, 2020
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New Procedures on Expatriate Utilization Permits
Less than 2 years from the previous rules on expatriate utilization (Minister of Manpower and Transmigration Regulation No. 12 of 2013), the Minister of Manpower recently enacted the new procedures of expatriate utilization under Minister of Manpower Regulation No. 16 of 2015 on Expatriate Usage Procedures (the “New Regulation”).
We describe certain new requirements in the New Regulation below. We note that some of the new requirements may present difficulty or be more burdensome (if not impractical) for a client’s operations or management.
- 1:10 Ratio. There is now a ratio of 1:10 for each expatriate hired. In other words, an employer is required to recruit 10 Indonesians workers for each expatriate it hires. Previously, this ratio only applied to trade representative offices that had a 1:3 ratio.
- Online Submission and Processing. All applications are now submitted online.
- More Elaborate RPTKAs. There are several types of the plan of expatriate utilization (known in short as “RPTKA”), including RPTKA for urgent and emergency work, RPTKA for temporary work, RPTKA for special economic zones, RPTKA for maritime purposes, RPTKA for the entertainment industry, and RPTKA for karaoke workers.
- Mandatory NPWP. An expatriate who works for more than 6 months must now obtain a tax registration number (known in short as “NPWP”). This may be an issue for expatriates because the Income Tax Law (Law No. 7 of 1983 and its amendments) contemplate the tax on worldwide income.
- Mandatory Local Insurance Policy. Every expatriate in Indonesia, including directors and commissioners, must have insurance policy from an Indonesian insurance company.
- Mandatory JSN. An expatriate who works for more than 6 months must participate with the National Social Security coverage, i.e., BPJS Kesehatan (Health coverage) and BPJS Ketenagakerjaan (Employment coverage).
- Work Permit for Non-Residing Directors and Commissioners. Non-residing directors and commissioners of a company are now expressly required to have work permits. This requirement clarifies the previously unwritten policy of the authority in this regard.This appears to also suggest that these non-residing directors and commissioners to have NPWPs and to participate in the National Security Coverage, if they are appointed for more than 6 months.
- Expanded Coverage Temporary Work Permit. Temporary work permits are now required for expatriates who are in Indonesia for the following reasons:
- To provide guidance, supervision, and training to the implementation of technology industry;
- To participate in the production of a commercial movie;
- To speak at a seminar;
- To attend any meeting in a head office or a representative office in Indonesia;
- To carry out an audit, production quality control or inspection to the branch office in Indonesia;
- To carry out a trial work;
- To complete a one-off work;
- To perform work related to installation of machinery, electricity, after sales, or products in observation.
Obviously, the requirement to have a work permit for any speaking engagement and attendance of meetings will be considered impractical and difficult.
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July 14, 2015
