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Director & Shereholder under PerPres no.20 Year 2018

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  • #46
    Originally posted by centurion View Post
    (I) ... There is no such thing as work permit in the laws or regulations ...

    However, in the article 42 it is not specifically said that every employer will get a separate document ...


    (II) Investor visas on the other way go from applicants directly to Imigrasi, manually and based on BKPM recommendation. In the?* BKPM recommendation, it is mentioned that you are allowed to work as an owner and director/commissioner, which is I think sufficient for imigrasi to not deport the applicant ...

    (I) Yes , I agree .

    Regarding Article 42 of the Manpower Law [(1) Every employer that employs workers of foreign citizenship is under an obligation to obtain written permission from Minister.) , what I meant in the other post was that it was not contradicted by the PerPres & Manpower Regulation because they don't specifically state that the director/commissioner shareholder is exempted of a written permission from Minister .

    (II) It is questionable , I think .
    - When the Law says "written permission from Minister" , isn't referring to the Manpower Minister ?
    - Has BKPM (Google/Wikipedia : The BKPM/Investment Coordinating Board is a Non-Departmental Indonesian Government Institution whose task is to formulate government policies in the field of investment, both domestically and abroad) the authority to state "you are allowed to work as an owner and director/commissioner" ?

    Besides that Immigration seems to not agree to go against Article 42 of the Manpower Law & does not agree with the BKPM statement too . Immigration just issued the Permen no.16 Tahun 2018 (which takes the PerPres no.20 Tahun 2018 in consideration) but states :
    Pasal 2
    Setiap TKA yang bekerja di Indonesia wajib mempunyai Vitas untuk bekerja. / Each foreign worker to work in Indonesia must have a Visa for work .

    And below is the Immigration Regulation defining Investor Visa as a "not for working" Visa .

    PP no.31 Tahun 2013
    Article 102
    (1) Limited stay Visa is issued to carry out the following activities:
    a. working; and
    b. not for working.
    ......
    (3) Activities that are not for working as contemplated in clause (1) letter b, include:
    a. Make foreign investment;
    b. Participate in training and scientific research;
    c. Participate in education;
    d. Family unification;
    e. Repatriation; and
    f. Foreign elderly traveler;
    Last edited by marcus; 17-04-19, 23:01.

    Comment


    • #47
      (I) The Minister of labor allowed in the Manpower regulation 20 2018 directors+shareholders to work (exempt from RPTKA, but allowed to them get employed, to be more precise). This is also in accordance with article 42-this is a written approval as well, although a general one.

      (II) The argument does not stand-as under d. is Family unification and they are allowed to work, and at least some of categories with a work permit. Presidential regulation overrides as well. The Immigration regulation is not just issued, it was issued almost a year ago.

      The history of the whole case speaks for itself. President asked the Manpower to make easier the work permits process and make regulation in two weeks, otherwise, the president will issue PerPres instead. Manpower was ineffective and did not comply. President issued a regulation and released some categories (directors shareholders) of work permits. That is the whole truth.

      The BKPM recommendations are just an illustration that all government bodies are aware of the situation and that nobody would be deported.

      So, are directors/commissioners that are shareholders allowed to work? Yes

      Are all regulations on this matter in accordance with the constitution? Probably no. Is this our concern? No


      Are the regulations effective? Yes










       

      Comment


      • #48
        Originally posted by centurion View Post
        (I) The Minister of labor allowed in the Manpower regulation 20 2018 directors+shareholders to work (exempt from RPTKA, but allowed to them get employed, to be more precise). This is also in accordance with article 42-this is a written approval as well, although a general one.

        (II) The argument does not stand-as under d. is Family unification and they are allowed to work, and at least some of categories with a work permit ...

        (IIa) President issued a regulation and released some categories (directors shareholders) of work permits. That is the whole truth.

        (IIb) The BKPM recommendations are just an illustration that all government bodies are aware of the situation and that nobody would be deported.

        (IIc) So, are directors/commissioners that are shareholders allowed to work? Yes .

        (IId) Are the regulations effective? Yes.

        (I) It could be , but it doesn't seem that Immigration considers so . If Immigration considers that as you say , Immigration would issue a Work Visa/KITAS/KITAP , not an Investor Visa/KITAS/KITAP which does not allow to work .

        (II) Well this is another/different story (it involves 2 Laws and the lack of an implementation Regulation) .

        (IIa) You mean , RPTKA (Plan for the employer to hire foreign worker) , not Work Permit right ? As I told before , I didn't find any mention of Work Permit in the PerPres 20/2018 . But yes , the Manpower's Regulation 10/2018 (Article 22) does what you say .

        (IIb) At least Immigration seems to either not know or to not agree (as I notice from their Regulation issued after PerPres 20/2018 + Immigration seems to still require a Work Permit/Notifikasi for issuing a Work Visa as told by members here) .

        (IIc) My view : Yes , with a Work KITAS/KITAP . No if with a Investor KITAS/KITAP .

        (IId) No relevant problem with the Regulations themselves . But in their last implementation step , Manpower may be doing it wrong if they really say that director/commissioner shareholder can work normally/fully with an Investor Visa/KITAS/KITAP (defined by Immigration to be for non-work purpose and so not requiring a permission from Manpower) .

        In my view , working with an Investor Visa/KITAS/KITAP is working with a wrong Visa/Stay Permit , not complying with Immigration Regulations PP no.31 , 2013 & PerMen no.16 , 2018 (see more about them in post no.47 above) .

        It may be also not comply with Article 42 of the Manpower Law (UU 13/2003) depending on what kind of work is done and how Indonesian government considers the work done as employee's work or just owner work . For example , in USA , it seems that their Tax office considers an owner also as an employee if he/she "provides services to the company, whether it is in management, sales or labor" . So if Indonesia has a similar differentiation , a director/commissioner shareholder could be also considered an employee , consequently Article 42 of the Manpower Law would not allow exemption of both RPTKA/Plan for Hiring Foreigners & Work Permit/Notifikasi .

        From https://smallbusiness.chron.com/diff...any-37905.html
        [Difference Between an Officer & an Employee of a Company
        by Fraser Sherman; Reviewed by Michelle Seidel, B.Sc., LL.B., MBA; Updated March 09, 2019
        [... Officers typically include high-level management such as the CEO, treasurer and chief financial officer ...
        The IRS view is that if an officer works for the company, he's an employee ... An owner-officer who sits back and accepts the distribution of the profits at the end of the year isn't an employee. An officer who provides services to the company, whether it is in management, sales or labor, is an employee ... ]

        See below possible penalties stated in 2 Articles of the Immigration Law .


        ---------------------------------------------------


        Article 75

        (1) Immigration officers have the authority to apply Administrative Measures on foreigners in Indonesia acting dangerously and reasonably suspected to endanger security and public order or foreigners who do not respect or do not obey laws and regulations.

        (2) Administrative Measures Immigration as referred to in paragraph (1) can be:
        a. inclusion in the "blacklist';
        b. restrictions, changes, or cancellation of residence;
        c. prohibition to be in one or a few specific places in Indonesia;
        d. requirement to reside in a particular place in Indonesia;
        e. imposition of the burden of costs and / or
        f. deportation from Indonesia.


        ---------------------------------------------------


        Article 122
        Shall be punished with imprisonment of five (5) years and fined at most Rp500.000.000, 00 (five hundred million rupiah):

        a. any foreigner who deliberately misuse or engage in activities not in accordance with the intent and purpose of the Visa/Stay Permit given to him/her;


        Poster's Note : To people who don't know , e-ITAS , KITAS and KITAP are some of the available Stay Permits .
        Last edited by marcus; 18-04-19, 08:47.

        Comment


        • #49
          Agree to disagree, I think that you should seek advice in DirJen imigrasi about the subject as I think that you speculate too much about the subject. They will confirm what I said before and how they interpret the whole thing.

          So, according to you, what is director/commissioner who is a shareholder allowed to do?

          The boilerplate about the penalties was redundant.

          Comment


          • #50
            Originally posted by centurion View Post
            (1) .. I think that you should seek advice in DirJen imigrasi about the subject ... They will confirm what I said before and how they interpret the whole thing.

            (2) as I think that you speculate too much about the subject ...

            (3) So, according to you, what is director/commissioner who is a shareholder allowed to do?

            (4) The boilerplate about the penalties was redundant.

            (1) Sorry , I am not personally interested as I am not an investor . But yes , interested people should do that . But be warned that what is written in the Laws/Regulations is more important than any verbal information .

            By the way , why are you so sure (I don't remember you saying that you already talked to the Immigration Directorate General about this subject) ?


            (2) From https://dictionary.cambridge.org/dic...sh/speculation
            [speculation definition: 1. the activity of guessing possible answers to a question without having enough information to be certain ...]

            Well , if I missed any other Law or Regulation , please let us know (yes , at the beginning you did show us some extra parts of the Law/Regulation . Thank you) .


            (3) Depend on the objective :
            - with a Work Visa/KITAS/KITAP : work normally/fully
            - with an Investor Visa/KITAS/KITAS : cannot work normally/fully

            (4) Yes , for you who knows the Laws/Regulations , but please understand that probably many other not so knowledgeable people may read these posts too .
            Last edited by marcus; 17-04-19, 18:35.

            Comment


            • #51
              In short, according to you with investor KITAS as a director, you cannot work fully.

              It contradicts to itself according to this opinion, as according to your opinion, without work visa/KITAS you cannot work. It does not matter it is full or not, as in Indonesia the work is work, being full time, part time or voluntarily work without salary. So you cannot work "a little". Representing your Indonesian company on meetings, dealing with partners, while you live in Indonesia, constitutes work as well.

              Following this thinking, somebody can appoint some foreigner as a director in some company, and until he works from time to time he is not a subject of a work permit/work KITAS, as he works occasionally.

              The regulation perspective is one side of the story, the other one is how the regulations are executed in practice and what the administrations consider as a mainstream.

              I did speak with  Dirjen Imigrasi on two occasions. However, everybody has to check for himself/herself as discussions here are not legal advice.

              Comment


              • #52
                Originally posted by centurion View Post
                (i) In short, according to you with investor KITAS as a director, you cannot work fully.

                It contradicts to itself according to this opinion, as according to your opinion, without work visa/KITAS you cannot work ...


                (ii) I did speak with Dirjen Imigrasi on two occasions. However, everybody has to check for himself/herself as discussions here are not legal advice

                (i) Ok , as it may confuse people as you say , I revise to : "with an Investor KITAS , nobody is allowed to work (according to the Immigration Regulations)" .

                Note : That answer on post no.50 was supposed to be my personal opinion , I myself would be a little flexible in the "work" definition (but as my personal opinion is not important , lets put it simpler) .

                Sometimes people interpret Regulations differently , this is why we need to rely on what is written in the Laws/Regulations as much as possible . I know that mainly because I myself was a government officer in my country .

                (ii) The people reading this Forum (for free) know that we never said we are legal experts (I am not a lawyer too) , but I think that people spending time reading expect us to be sincere and tell them the relevant information we know . Personally I think that you would get more credibility if you have told us that what you defended was supported by the officer(s) from Immigration Directorate General (by the way did Immigration DirJen tell you that a director shareholder can work everyday like a normal employee with a Investor KITAS ? and with who you talked : the big boss or a low ranking official ?) .

                Note : For those who didn't notice , it is written in the lowest part of every page of this Forum : "... The information contained within this forum should not be construed as recommendations upon which you can rely without further personal consideration..."
                Last edited by marcus; 20-04-19, 08:28.

                Comment


                • #53
                  Originally posted by marcus View Post


                  (i) Ok , as it may confuse people as you say , I revise to : "with an Investor KITAS , nobody is allowed to work (according to the Immigration Regulations)" .

                  Note : That answer on post no.50 was supposed to be my personal opinion , I myself would be a little flexible in the "work" definition (but as my personal opinion is not important , lets put it simpler) .

                  Sometimes people interpret Regulations differently , this is why we need to rely on what is written in the Laws/Regulations as much as possible . I know that mainly because I myself was a government officer in my country .

                  (ii) The people reading this Forum (for free) know that we never said we are legal experts (I am not a lawyer too) , but I think that people spending time reading expect us to be sincere and tell them the relevant information we know . Personally I think that you would get more credibility if you have told us that what you defended was supported by the officer(s) from Immigration Directorate General (by the way did Immigration DirJen tell you that a director shareholder can work everyday like a normal employee with a Investor KITAS ? and with who you talked : the big boss or a low ranking official ?) .

                  Note : For those who didn't notice , it is written in the lowest part of every page of this Forum : "... The information contained within this forum should not be construed as recommendations upon which you can rely without further personal consideration..."

                  I have been on "sosialisasi" organized by Manpower and Immigration organized last year. However, I have been in Biro Hukum (Legal Department) in Manpower to discuss the issue as well, with their officials-so they are mid-up ranked ones who draft or interpret these regulations.


                  So according to them, investors that are directors/commissioners do their activity not based on work contract but based on appointment. Salary-benefits are decided by General Meeting of Shareholders, according to the Law on Companies Art 96.

                  Individuals on these positions are allowed to: sit in the office, run the company daily and give orders to subordinates, receive a salary/compensation and other benefits, get insurance, pay tax etc.

                  Detailed explanations by them on some border case by them on my questions, as Articles 8 and 10 in the Permen 201 2018 are not clear according to me:

                  Are you allowed to be a director in multiple companies (without RPTKA-work permit) where you are a shareholder? The answer is yes.

                  Are you allowed to be a director and shareholder in one company and director in another company where you are not a shareholder? The answer is yes, for the later you need RPTKA and pay 1200 USD/year. However, in this case, I did not get a clear answer where the KITAS would be-investor or work, they suggested to consult Imigrasi for this.

                  Manpower, Immigration and Ministry of law database are connected, so Manpower sends to immigration data online. I.e., if you are on spouse KITAS and you get a work permit immigration will see that. If you have KITAS/KITAP they can see where are you a shareholder or director/commissioner as well through the online system.

                  When I get answers from the relevant person in DirJen imigrasi I will post them as well.

                  ?*

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