Overtime Work Limit

PERTANYAAN

I am a legal staff in a company. Based on Article 78 section (1) letter b Law Number 13/2003, overtime work can only be done for a maximum of 3 hours in 1 day and 14 hours in 1 week.

Then Article 188 section (1) Law Number 13/2003 reads, anyone who violates the provisions referred to in Article 14 section (2), Article 38 section (2), Article 63 section (1), Article 78 section (1), Article 108 section (1), Article 111 section (3), Article 114, and Article 148, is subject to a criminal sanction of a fine of at least IDR 5 million and a maximum of IDR 50 million.

So, can a company employ its employees overtime more than Article 78 section (1) or more than 3 hours a day, or more than 14 hours a week, but permitted by the local Employment Agencies? Does this still violate the criminal provisions in Article 188 section (1)?

INTISARI JAWABAN

Now, several provisions in the Manpower Law have been amended, deleted, and new arrangements have been established by the Perppu 2/2022 that has been enacted as law, including provisions regarding overtime in Indonesia.

Then, employers who violate the provisions of overtime working time can be charged with a criminal sanction of a minimum fine of IDR 5 million and a maximum of IDR 50 million. So, what is the legal basis?

Please read the review below for a further explanation.

ULASAN LENGKAP

This article is an English translation of Batas Waktu Kerja Lembur, written by Renata Christha Auli, S.H., and published on Thursday, 8 June 2023.

This article is the second update of the article with the same title written by Umar Kasim from INDOLaw, and was first published on Wednesday, 17 March 2010, and first updated by Bernadetha Aurelia Oktavira, S.H. on Friday, 21 May 2021.

All legal information available on Klinik hukumonline.com has been prepared for educational purposes only and is general in nature (read the complete Disclaimer). In order to obtain legal advice specific to your case, please consult with Justika Partner Consultant.

Overtime and the Conditions

It should be noted that currently the Manpower Law has been amended, deleted, and new regulations have been established by Perppu 2/2022 which has been enacted as a law through Law 6/2023.

In relation to your question, the working hours as referred to by the law shall consist of:[1]

1. 7 hours in 1 day and 40 hours in 1 week for 6 business days in 1 week; or
2. 8 hours in 1 day and 40 hours in 1 week for 5 business days in 1 week.

However, in a job, there are times when workers work beyond the working time. This is in accordance with Article 81 number 24 of Perppu 2/2022, which amends Article 78 section (1) Manpower Law, which reads:

Businesses who employ workers/laborers exceeding the working hour as referred to in Article 77 section (2) shall fulfill the following requirements:

1. 1. there is approval from the relevant workers/laborers; and
   2. overtime working hours may only be conducted maximum for 4 (four) hours in 1 (one) day and 18 (eighteen) hours in 1 (one) week.

Furthermore, businesses or entrepreneurs who employ workers/laborers exceeding the working hours, as referred to above must pay overtime pay.[2] However, it should be noted that provisions on overtime working hours do not apply to certain business sectors or works.

Then, Article 26 section (1) Government Regulation 35/2021 stipulates that overtime may only be conducted for a maximum of 4 hours in 1 day and 18 hours in 1 week.

Moreover, in order to implement overtime, there should be an order from entrepreneurs and approval from the relevant workers/laborers in writing and/or through digital media.[3] The order and approval may be drawn up in the form of a list of workers/laborers who are willing to work overtime and are signed by the relevant workers/laborers and entrepreneurs.[4]

Entrepreneurs shall draw up a list of overtime implementations that contains names of workers/laborers who work overtime and the length of overtime.[5]

So, what is the overtime calculation in Indonesia, and how do you calculate overtime pay? Here is the review.

How to Calculate Overtime Wages

A company that employs workers/laborers beyond working hours must pay overtime pay with the following provisions:[6]

1. for the first overtime hour in the amount of 1.5 times an hour’s wage; and
2. for each subsequent overtime hour, in the amount of 2 times an hour’s wage.

However, if overtime work is performed on weekly rest days and/or national holidays, the calculation is different, as follows:

1. for working hours of 6 business days and 40 hours a week:[7]

1. calculation of overtime pay is implemented as follows:
   1. the first hour to the seventh hour is paid 2 times an hour’s wage;
   2. the eighth hour is paid 3 times an hour’s wage; and
   3. the ninth hour, tenth hour, and eleventh hour is paid 4 times an hour’s wage;

 

2. if official holidays fall on the shortest business day, the calculation of overtime pay is implemented as follows:

1. the first hour to the fifth hour is paid 2 times an hour’s wage;
2. the sixth hour is paid 3 times an hour’s wage; and
3. the seventh hour, the eighth hour, and the ninth hour is paid 4 times an hour’s wage.

 

2. for working hours of 5 business days and 40 hours a week:[8]
   1. the first hour to the eighth hour is paid 2 times an hour’s wage;
   2. the ninth hour, is paid 3 times an hour’s wage; and
   3. the tenth, eleventh, and twelfth hours, is paid 4 times an hour’s wage.

Sanctions for Overtime Work Time Deviations

For information, in the past, there was such a thing as a deviation of working time and rest time as regulated in the Decree of the Minister of Manpower 1989 which was carried out selectively and temporarily, but now the regulation has been revoked.

In the event that there is an official of the Manpower Office (a.k.a. employee officials) who still grants permission to deviate from overtime working time contrary to the provisions of the applicable laws and regulations, the officials concerned are acting beyond his authority[9] and may be subject to sanctions in accordance with Government Regulation 53/2010 as amended by Government Regulation 94/2021.

In addition, entrepreneurs who violate provisions on overtime work limit in Article 78 section (1) Manpower Law as mentioned above, shall be subject to a fine for a minimum of IDR5 million and a maximum of IDR50 million.[10] However, sanctions imposed on entrepreneurs in the form of a jail, prison sentence and/or a fine do not release the entrepreneurs from their obligations to pay entitlements and/or compensations to the workers/labourers.[11]

Also Read: Here's How to Calculate Overtime Pay on Religious Holidays

These are the answers we can provide, we hope you will find them useful.

Legal Basis:

1. Law Number 13 of 2003 on Manpower;
2. Law Number 30 of 2014 on Government Administration;
3. Regulation of the Government in Lieu of Law Number 2 of 2022 on Job Creation which has been passed into law under Law Number 6 of 2023;
4. Regulation of the Government Number 53 of 2010 on Discipline of Civil Servants as amended by Regulation of the Government Number 94 of 2021 on Discipline of Civil Servants;
5. Regulation of the Government Number 35 of 2021 on Temporary Employment Agreement, Outsourcing, Working Hours and Breaks and Termination of Employment Relationships;
6. Decree of the Minister of Manpower on the Approval of Permission to Control Work Time and Rest Time for Companies Employing Workers 9 Hours a Day and 54 Hours a Week.

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[1] Article 81 number 23 Regulation of the Government in Lieu of Law Number 2 of 2022 on Job Creation (“Perppu 2/2022”) that amended Article 77 section (2) Law Number 13 of 2003 on Manpower (“Manpower Law”).

[2] Article 81 number 24 Perppu 2/2022 that amended Article 78 section (2) Manpower Law.

[3] Article 81 number 24 Perppu 2/2022 that amended Article 78 section (3) Manpower Law.

[4] Article 28 section (1) and (2) Regulation of the Government Number 35 of 2021 on Temporary Employment Agreement, Outsourcing, Working Hours and Breaks and Termination of Employment Relationships (“Government Regulation 35/2021”).

[5] Article 28 section (3) Government Regulation 35/2021.

[6] Article 31 section (1) Government Regulation 35/2021.

[7] Article 31 section (2) Government Regulation 35/2021.

[8] Article 31 section (3) Government Regulation 35/2021.

[9] Article 18 section (1) Law Number 30 of 2014 on Government Administration.

[10] Article 81 number 69 Perppu 2/2022 that amended Article 188 section (1) Manpower Law.

[11] Article 189 Manpower Law.