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Requirements for Foreign Workers to Work in Indonesia

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Requirements for Foreign Workers to Work in Indonesia

Requirements for Foreign Workers to Work in Indonesia
Dian Dwi Jayanti, S.H.Si Pokrol
Si Pokrol
Bacaan 10 Menit
Requirements for Foreign Workers to Work in Indonesia

PERTANYAAN

What is the procedure for reporting foreign workers who have not fulfilled the requirements to work in Indonesia? What are the requirements for foreign workers to work in Indonesia?

DAFTAR ISI

    INTISARI JAWABAN

    Foreign Workers (Tenaga Kerja Asing/ “TKA”) who are employed by employers must fulfill requirements, one of which is to have education in accordance with the qualifications of the position to be occupied.

    In principle, if a Foreign Worker does not meet the requirements as regulated in the laws and regulations, then the Foreign Worker cannot be employed by the employer. Then what about the reporting of Foreign Workers who have not fulfilled the work requirements?

    Please read the review below for a further explanation.

    ULASAN LENGKAP

    This article is an English translation of Syarat Tenaga Kerja Asing Bisa Bekerja di Indonesia which was written by Dian Dwi Jayanti, S.H.and was published on Friday, 3 February 2023.

    This article below is the third update of the article with the same title, which was first written by Tri Jata Ayu Pramesti, S.H., and was first published on Thursday, 18 June 2015, and was first updated on Monday, 22 August 2016, and was secondly updated on Friday, 27 July 2018.

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

    Requirements for Foreign Workers Who Work in Indonesia

    Foreign Workers (Tenaga Kerja Asing/ "TKA") are foreign citizens who hold visas with the intention of working in Indonesian territory.[1]

    The Indonesian manpower philosophy is to protect Indonesian workers who work in Indonesia, therefore, if there is a special need and urgent need to employ foreign workers, strict requirements must be made so that Indonesian workers are protected from unfair competition. As explained by Togar S.M. Sijabat in the article entitled Is There Any Age Limit for Foreign Workers?.

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    In response to your question, every Foreign Worker employed by an employer should:[2]

    1. have education in accordance with the qualifications of the position to be occupied;
    2. have the competence or work experience for at least 5 years in accordance with the qualification of the position to be occupied; and
    3. transfer their expertise to Understudy Workers of Foreign Workers.

    In addition to the abovementioned requirements, Foreign Workers may be employed in Indonesia only for working relationships for certain positions and for certain periods of time as well as having competence in accordance with the position to be occupied.[3] Certain positions which may be occupied by Foreign Workers shall be determined by the minister after securing input from the relevant ministries/agencies.[4]

    Reporting of Foreign Workers Who Have Not Fulfilled the Requirements to Work in Indonesia

    In response to your question, regarding the reporting of Foreign Workers, we are not clear on what you mean by the reporting of Foreign Workers here. In principle, if a Foreign Worker does not meet the requirements as set out in the laws and regulations, then the Foreign Worker cannot be employed by the employer. This is because in order to employ Foreign Workers, any employer who employs Foreign Workers must have a recruitment plan for Foreign Workers that is validated by the central government.[5]

    In addition, employers must secure a permit to employ Foreign Workers in the form of a Foreign Workers Recruitment Plan (Rencana Penggunaan Tenaga Kerja Asing/ “RPTKA”), which is a plan for the utilization of Foreign Workers in certain positions and for a certain period,[6] which is validated by the minister or appointed official.[7]

    If a company or employer hires a foreign worker without a license/permit, the central government or regional government in accordance with their authority may impose administrative sanctions for violations of Article 42 section (1) of Law 13/2003.[8]

    Then, regarding the reporting you are referring to, Article 32 section (1) of Government Regulation 34/2021 states that employers of Foreign Workers must report once a year to the minister or appointed official, for the implementation of:

    1. recruitment of Foreign Workers;
    2. education and job training for Understudy Workers of Foreign Workers; and
    3. transfer of technology and transfer of expertise from Foreign Workers to Understudy Workers of Foreign Workers.

    Employers of Foreign Workers are also required to report the implementation of Foreign Workers recruitment for temporary work, after the expiry of the work agreement, to the minister or appointed official.[9]

    Then the employers of Foreign Workers are also obliged to report to the Minister or the appointed official, for the Foreign Workers work agreement which has expired or terminated before the term of the work agreement expires.[10]

    Meanwhile, the supervision of Foreign Workers recruitment shall be carried out by the labor inspector at the ministry which organizes government affairs in the manpower sector and/or the agency which organizes government affairs in the provincial manpower sector, which conducts supervision on the norms of Foreign Workers recruitment in accordance with the provisions of laws and regulations in the manpower sector.

    In addition, the supervision of the use of Foreign Workers is also carried out by immigration officials who are in charge of immigration supervision and enforcement, in a coordinated manner in accordance with the scope of their duties and authorities.[11]

    In answer to your question, the previous author, who interviewed Umar Kasim, also explained that the Foreign Workers Recruitment Plan or RPTKA should be examined from the start, of course, whether the recruited Foreign Workers fulfilled the requirements or not. If the requirements are not fulfilled, then the RPTKA will not be approved.

    If a company is found to be employing a non-compliant Foreign Worker, for example, Foreign Worker who has competency in marketing but is employed in the financial administration division/sector, then the Foreign Workers requirements are not fulfilled and the company's permission to employ Foreign Workers (the RPTKA) may be revoked.[12]

    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. Regulation of the Government in Lieu of Law Number 2 of 2022 on Job Creation;
    3. Government Regulation Number 34 of 2001 on the Recruitment of Foreign Workers;
    4. Regulation of the Minister of Manpower Number 8 Of 2021 on the Implementing Regulation of the Government Regulation Number 34 of 2021 on the Recruitment of Foreign Workers.

    NB:

    We have conducted an interview with Umar Kasim via phone call on 18 June 2015, at 14.39 West Indonesia Time (zone).


    [1] Article 1 number 1 Regulation of the Minister of Manpower Number 8 Of 2021 on the Implementing Regulation of the Government Regulation Number 34 of 2021 on the Recruitment of Foreign Workers (“Regulation of the Minister of Manpower 8/2021”) and Article 1 number 1 Government Regulation Number 34 of 2001 on the Recruitment of Foreign Workers (“Government Regulation 34/2001”).

    [2] Article 4 Regulation of the Minister of Manpower 8/2021.

    [3] Article 81 number 4 Regulation of the Government in Lieu of Law Number 2 of 2022 on Job Creation (“Perppu 2/2022”) which amended Article 42 section (4)  Law Number 13 of 2003 on Manpower (“Law 13/2003”).

    [4] Article 4 section (2) Government Regulation 34/2001.

    [5] Article 81 number 4 Perppu 2/2022 which amended Article 42 section (1) Law 13/2003.

    [6] Article 1 number 4 Regulation of the Minister of Manpower 8/2021.

    [7] Article 2 Regulation of the Minister of Manpower 8/2021.

    [8] Article 81 number 70 Perppu 2/2022 which amended Article 190 Law 13/2003.

    [9] Article 32 section (2) Government Regulation 34/2001.

    [10] Article 32 section (3) Government Regulation 34/2001.

    [11] Article 35 Government Regulation 34/2001.

    [12] Article 36 section (1) letter c Government Regulation 34/2001.

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