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  • Employment Law, Law Firm Recommendation?

    Hi All,
    Anyone had first hand good experience of a Law firm in Indonesia specialised in Employment law, in particular Foreigner employment contractual entitlement vs employment law?
    Any recommendation from personal experience before we rely on Google ? Thanks 

  • #2
    I don't know any , and I am not a lawyer , but I know few Indonesian Laws and would recommend you to read some of them that may be related to your problem .

    As far as I know , there is no Employment Law .

    Besides that , you could post your concern here (who knows somebody can give you at least a small help) .

    2 Laws that may be related to your problem (you can get a copy in the internet) :

    - UU no.13 Tahun 2003 (or ACT OF THE REPUBLIC OF INDONESIA NUMBER 13 YEAR 2003 , in English) - Labor Law

    - Indonesian Omnibus Law (a recent Law that revised multiple Laws) - I didn't read it as it is very long and I am lazy .


    http://www.expat.or.id/info/legalmat...indonesia.html


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


    UU13 Year 2003 - Labor/Manpower Law (the poster recommends you to get the copy from the internet as this is only a part of the document and may contain errors)
    .......
    Article 42 (applicable only to foreign workers)
    (1) Every employer that employs workers of foreign citizenship is under an obligation to obtain written permission from Minister.
    ...
    (4) Workers of foreign citizenship can be employed in Indonesia in employment relations for certain positions and for a certain period of time only.
    .......
    Applicable to all workers :

    Article 51
    (1) Work agreements can be made either orally or in writing.
    (2) Work agreements that specify requirements in writing shall be carried out in accordance with valid legislation.
    Article 52
    (1) A work agreement shall be made based on
    a. The agreement of both sides;
    b. The capability or competence to take legally-sanctioned actions;
    c. The availability/ existence of the job which both sides have agreed about;
    d. The notion that the job which both sides have agreed about does not run against public order,
    morality and what is prescribed in the valid legislation.
    (2) If a work agreement, which has been made by both sides, turns out to be against what is prescribed
    under point a and point b of subsection (1), the agreement may be abolished/ canceled.
    (3) If a work agreement, which has been made by both sides, turns out to be against what is prescribed
    under point c and point d of subsection (1), the agreement shall be declared null and void by law.
    Article 53
    Everything associated with, and or the costs needed for, the making of a work agreement shall be borne by, and shall be the responsibility of, the entrepreneur.
    Article 54
    (1) A written work agreement shall at least include:
    a. The name, address and line of business [of the enterprise];
    b. The name, sex, age and address of the worker/ labourer;
    c. The occupation or the type of job;
    d. The place, where the job is to be carried out;
    e. The amount of wages and how the wages shall be paid;
    f. Job requirements stating the rights and obligations of both the entrepreneur and the worker/labourer;
    g. The date the work agreement starts to take effect and the period during which it is effective;
    h. The place and the date where the work agreement is made; and
    i.The signatures of the parties involved in the work agreement.
    (2) The rulings in a work agreement as far as point e and point f of subsection (1) are concerned must not run against the enterprise’s rules and regulations, the enterprise’s collective work agreement and valid statutory legislation [valid laws and regulations].
    (3) A work agreement as referred to under subsection (1) shall be made in 2 (two) equally legally binding copies, 1 (one) copy of which shall be kept by the entrepreneur and the other by the worker/ labourer.
    Article 55
    A work agreement cannot be withdrawn and/or changed unless both sides in the agreement agree to do so.
    Article 56
    (1) A work agreement may be made for a specified period of time or for an unspecified period of time.
    (2) A work agreement for a specified period of time shall be made based on:
    a. A term; or
    b. The completion of a certain job.
    Article 57
    (1) A work agreement for a specified period of time shall be made in writing and must be written in the Indonesian language with Latin alphabets.
    (2) A work agreement for a specified period of time, if made against what is prescribed under subsection
    (1), shall be regarded as a work agreement for an unspecified period of time.
    (3) If a work agreement is written in both the Indonesian language and a foreign language and then differences in interpretation between the Indonesian text and the one in the foreign language arise, then the Indonesian version of the agreement shall be regarded as the authoritative one.
    Article 58
    (1) A work agreement for a specified period of time cannot stipulate a probation period.
    (2) If a work agreement as referred to under subsection (1) stipulates a probation period, however, the probation period shall then be declared null and void by law.
    Article 59
    (1) A work agreement for a specified period of time can only be made for a certain job, which, because of the type and nature of the job, will finish in a specified period of time, that is:
    a. Work to be performed and completed at one go or work which is temporary by nature;
    b. Work whose completion is estimated at a period of time which is not too long and no longer than 3 years;
    c. Seasonal work; or
    d. Work that is related to a new product, a new [type of] activity or an additional product that is still in the experimental stage or try-out phase.
    (2) A work agreement for a specified period of time cannot be made for jobs that are permanent by nature.
    (3) A work agreement for a specified period of time can be extended or renewed.
    (4) A work agreement for a specified period of time may be made for a period of no longer than 2 (two) years and may only be extended one time for another period that is not longer than 1 year.
    (5) Entrepreneurs who intend to extend work agreements for a specified period of time they have with their workers/ labourers shall notify the said workers/ labourers of the intention in writing within a period of no later than 7 (seven) days prior to the expiration of the work agreements.
    (6) The renewal of a work agreement for a specified period of time may only be made after a period of 30 (thirty) days is over since the work agreement for a specified period of employment comes to an end; the renewal of a work agreement for a specified period of time may only be made 1 (one) time [once] and for a period of no longer than 2 years.
    (7) Any work agreement for a specified period of time that does not fulfill the requirements referred to under subsection (1), subsection (2), subsection (4), subsection (5) and subsection (6) shall, by law, become a work agreement for an unspecified period of time.
    (8) Other matters that have not been regulated under this article shall be further determined and specified with a Ministerial Decision.
    Article 60
    (1) A work agreement for an unspecified period of time may require a probation period for no longer than 3 (three) months.
    (2) During the probation period as referred to under subsection (1), the entrepreneur is prohibited from paying wages less than the applicable minimum wage.
    Article 61
    (1) A work agreement comes to an end if:
    a. The worker dies; or
    b. The work agreement expires; or
    c. A court ruling and/ or a decision or a resolution of the institute for the settlement of industrial relations disputes, which has permanent legal force, ends the agreement; or
    d. There is a certain situation or incident prescribed in the work agreement, the enterprise’s rules and regulations, or the enterprise’s collective work agreement which may effectively result in the termination of employment.
    (2) A work agreement does not end because the entrepreneur dies or because the ownership of the company has been transferred because the company has been sold, bequeathed to an heir, or awarded as a grant.
    (3) In the event of a transfer of ownership of an enterprise, the new entrepreneur [who now owns the enterprise] shall bear the responsibility of fulfilling the entitlements of the worker/ labourer affected by the transfer unless otherwise stated in the transfer agreement, which must not reduce the entitlements of the worker/ labourer.
    (4) If the entrepreneur, who is a sole proprietorship, dies, his or her heir may terminate the work agreement after negotiating it with the worker/ labourer.
    (5) If a worker/ labourer dies, his or her heir has a rightful claim to [acquire] the worker’s entitlements according to the valid statutory legislation or to the entitlements that has been prescribed in the work agreement, the enterprise’s rules and regulations, or the enterprise’s collective work agreement.
    Article 62
    If any one of both sides in a work agreement for a specified period of time shall terminate the employment relation prior to the expiration of the agreement, or if their work agreement has to be ended for reasons other than what is given under subsection (1) of Article 61, the side that terminates the relation is obliged to pay compensation to the other side. The amount of the compensation pay shall be the same as the amount of wages that the worker/ labourer in the work agreement is entitled to receive from the point of termination until the expiration of the agreement.

    Comment


    • #3
      Article 63
      (1) If a work agreement for an unspecified period of time is made orally, the entrepreneur is under an obligation to issue a letter of appointment (surat pengangkatan) for the worker/ labourer.
      (2) The letter of appointment as referred to under subsection (1) shall at least contain information concerning:
      a. The name and address of the worker/ labourer;
      b. The date the worker starts to work;
      c. The type of job or work that the worker is supposed to do;
      d. The amount of wage that the worker is entitled to.
      Article 64
      An enterprise may hand over part of its work to another enterprise under a written agreement of contract of work or a written agreement for the provision of labour
      Article 65
      (1) The handover of part of work from an enterprise to another enterprise [a contractor] shall be performed under a written agreement of contract of work.
      (2) Work that may be handed over to the other enterprise as referred to under subsection (1) must meet the following requirements:
      a. The work can be kept separate from the main [business] activity [of the enterprise that contracts the work to the other enterprise];
      b. The work is to be undertaken under either a direct order or an indirect order from the [original] party commissioning the work;
      c. The work is an entirely auxiliary activity of the enterprise [that contracts the work to the other enterprise]; and
      d. The work [when pending completion while being contracted out to the other enterprise] does not directly inhibit [the] production process [of the enterprise that subcontracts the work to the other enterprise].
      (3) The other enterprise as referred to under subsection (1) must be a legal entity.
      (4) The protection and working conditions provided to workers/ labourers at the other enterprise as referred to under subsection (2) shall at least the same as the protection and working conditions provided at the enterprise that commissions the contract or shall accord with valid laws and regulations.
      (5) Any change and/or addition to what is required under subsection (2) shall be determined and specified further with a Ministerial Decision.
      (6) The employment relationship in undertaking the work as referred to under subsection (1) shall be determined and specified with a written employment agreement between the other enterprise and the worker/labourer it employs.
      (7) The employment relationship as referred to under subsection (6) may be based on an employment agreement for an unspecified period of time or on an employment agreement for a specified period of time if it meets what is required under Article 59.
      (8) If what is stipulated under subsection (2), and subsection (3), is not met, the enterprise that contracts the work to the contractor shall be held legally responsible by law to be the employer of the worker/ labourer employed by the contractor. [Literal translation: If what is stipulated under subsection (2), and subsection (3), is not fulfilled, then, by law, the status of employment relationship between the worker/ labourer and theenterprise that accepts the contracted work [the contractor] shall change into employment relationship between the worker/ labourer and the enterprise that contracts the work to the contractor.]
      (9) In the event of [legally-imposed] change of employer from the contractor to the contracting enterprise as referred to under subsection (8), the employment relationship between the worker/
      labourer and the contracting enterprise shall be subjected to the employment relationship as referred to under subsection (7).
      Article 66
      (1) Workers/ labourers from labour providers/ suppliers [literal translation: enterprises that provide workers/ labourers’ service] must not be utilized by employers to carry out their enterprises’ main activities or activities that are directly related to production process except for auxiliary service activities or activities that are indirectly related to production process.
      (2) Labour providers/ suppliers which provide labour for auxiliary service activities or activities indirectly related to production process must fulfill the following requirements:
      a.There is employment relationship between the worker/ labourer and the labour provider;
      b. The applicable employment agreement in the employment relationship as referred to under point a above shall be employment agreement for a specified period of time which fulfills what is required under Article 59 and/or employment agreement for an unspecified period of time made in writing and signed by both sides;
      c. The labour provider shall be responsible for wages and welfare protection, working conditions and disputes that may arise; and
      d. The agreements between enterprises serving as labour providers and enterprises using the labour they provide shall be made in writing and shall include articles as referred to under this act.
      (3) Labour providers/ suppliers shall take the form of a legal entity business with license from a government agency responsible for labour/ manpower affairs.
      (4) If what is stipulated under subsection (1), point a, point b, and point d of subsection (2), and subsection (3) is not fulfilled, the enterprise that utilizes the service of the labour provider shall be held legally responsible by law to be the employer of workers/ labourers provided to it by the labour provider. [Literal translation: If what is stipulated under subsection (1), point a, point b, and point d of subsection (2), and subsection (3) is not fulfilled then, by law, the status of employment relationship between the worker/ labourer and the labour provider shall change into employment relationship between the worker/ labourer and the enterprise that commissions the labour provider.]


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


      Labor/Manpower Regulation PerMen no.8 , Year 2021 (31 March 2021) - not an official translation
      Article 7
      ....
      (2) Data required for the work agreement for foreign workers should at least contain:
      a. name, address, and type of business of the employer;
      b. name, gender, age, and address of the foreign worker;
      c. position or type of work;
      d. place of work;
      e. the salary and the method of payment;
      f. working conditions that contain rights and obligations of the employer and employee
      g. the validity period of the work agreement;
      h. the place and date the work agreement was made; and
      i. the signatures of the parties in the employment agreement


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


      From "Indonesia’s Omnibus Law: A Breakthrough - Key Highlights (Oentoeng Suria & Partners / Ashrst)
      ... The Indonesian House of Representative has ratified the Jobs Creation Bill (RUU Cipta Kerja and widely known as the “Omnibus Law”) on 5 October 2020, after approximately 8 months of deliberation...
      Fixed Term Employment Contract:
      The Manpower Law currently limits the period of fixed term contracts to 5 years (2 years of initial contract, 1 year of extension, a break period of 30 days, and/or 2 years of renewal after the break period). However, Omnibus Law makes no changes to the type of work for which company can engage employees on a fixed term basis.
      This Omnibus Law revokes the following provisions under the Manpower Law:
      1) the maximum time limits on fixed term contracts;
      2) the requirement to issue a written notification regarding the intention of the Employer to extend the fixed term contract;
      3) the ability to renew a fixed term contract only, 30 days after the deadline of the agreement and for no longer than 2 years; and
      4) the deeming of a fixed term contract which is not written in Bahasa Indonesia and in latin alphabet letters (huruf latin) into a permanent employment contract (Perjanjian Kerja Waktu Tidak Tertentu/PKWTT).

      ...........
      The Omnibus Law prohibits the use of probationary periods for fixed term employees. Where a probationary period is applied to such an employee, that period will be counted towards the employee’s total employment for all purposes.
      The Omnibus Law introduces a new requirement to pay compensation to a fixed term employee upon expiry of the fixed term contract. Further details regarding compensation will be set out in a Government Regulation...

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