The Implication of Juridical and Sociological Existence of

Foreign Labor in Indonesia

Ibnu Affan

Lecturer of Law Faculty of Islamic University of North Sumatra

Keywords: Implication, juridical and sociological existence, foreign labor.

Abstract: The multilateral relationship of our country to the countries of the world in the current era of globalization

has opened the tap for the entry of foreign workers (TKA) in Indonesia. The use of foreign workers cannot

be avoided, but in principle the use of foreign workers are those that are needed in 2 (two) terms: those who

bring capital (as investors) and/or bring skills for transfer of knowledge or transfer of technology transfer of

technology). In addition to these two things, in essence, it is not allowed. If we observe the laws and

regulations governing foreign workers in Indonesia, then the entry of foreign workers in our country is not

necessary to worry about. Our regulations have restricted the use of foreign workers only in working

relationships for certain positions and at certain times of the year. Therefore, the government has issued a

number of legal instruments ranging from licensing, health protection coverage to the supervision.

Departing from that, when there are foreign workers who enter Indonesia do not follow the applicable legal

procedures, they can be qualified as illegal foreign workers. Juridical implications for illegal foreign

workers not only affect the foreign workers themselves, but also have legal implications for employers. The

Manpower Act (UUK) has affirmed criminal sanctions to the employer as regulated in Articles 185 and 187

of the Manpower as well as administrative sanctions in accordance with the provisions of Article 190 of the

UUK. The presence of foreign workers in the national economy of a country is sociologically also intended

to create competencies which in turn will create efficiency and increase economic competitiveness.

Thusthere is no other way our labor should be ready to compete in the midst of global markets. Increased

competence becomes the absolute thing to win the competition in the labor market.

1 INTRODUCTION

Globalization of the world economy has affected

almost every aspect of domestic and international

economic relations. The growth of international

trade, massive international financial flows, and the

activities of multinational corporations are

increasingly binding on the national economy to one

another, all of which make globalization an

important and increasingly controversial feature in

world economic development (Agusmidah, 2011, p.

246).

Indonesia as a developing country in essence

cannot be separated from various forms of social

phenomena that exist. Facing the development of the

world with technological sophistication and

influential information also in the economic sector

economic globalization has been programmed in the

national development agenda by creating

employment for the people's welfare in the plan of

improving the labor climate. Recognizing that

development carried out by the Indonesian people

aiming to build a complete Indonesian people and

the welfare of the community is all necessary to

restructure the various aspects of community life in

social and economic fields, especially in working

relationships (Naning, 1983, p. 183).

Establishment of big companies in this country is

one of the supporting factors that is very

instrumental in the process of nation building that is

being undertaken. The employment issue is an ever-

present problem, and will remain with respect to the

establishment of the company. Therefore, labor is

the most dominant factor in a company. The need

for professional experts and the need for appropriate

technologies are needed to support a work process,

making private companies, whether foreign private

or national private use foreign workers (TKA) as

their workforce with the priority to use labor local.

Affan, I.

The Implication of Juridical and Sociological Existence of Foreign Labor in Indonesia.

DOI: 10.5220/0008885303670373

In Proceedings of the 7th International Conference on Multidisciplinary Research (ICMR 2018) - , pages 367-373

ISBN: 978-989-758-437-4

367

Indonesian Workers (TKI), one of the human

resources as the driving force of development must

have a productive work ethics, skilled, creative,

disciplined and professional and be able to utilize,

develop and master science and technology. But in

reality the existing TKI cannot fully master the

science that continues to grow. The scarcity of our

workforce with the quality that suits the needs

formation in some job sectors have high difficulty

level or require special skills and it is not easy for

our workforce to meet these qualifications. This is a

factor that encourages the use of foreign workers in

Indonesia (Randang, 2011).

Foreign Investment Issues (PMA) are also getting

crowded. This is given that for the sake of national

development it requires a lot of funds. Funds needed

for investment cannot be sustained by the

government and the national private sector alone.

This situation is increasingly encouraging to seek as

much as possible to attract foreign investment to

Indonesia (Anoraga, 1995, p. 46).

Through PMAwith many advantages, and its

permanent and long-term nature, also contributes to

technology transfer, transfer of management skills

and creating new jobs. Employment is important to

note that the problem of providing employment is a

problem that is quite dizzying to the government

(Ibid). The presence of foreign investments and

PMDN (Domestic Investment) has allowed the entry

or use of foreign migrant workers (Syarif, 1996, p.

2).

The opening of the opportunity for the use of

foreign workers began when Indonesia became part

of the world community as part of the Asia Pacific

Economic Cooperation (APEC) Asia Economic

Cooperation (1986), member of the Asean Free

Trade Area (AFTA) Asean Free Trade Organization

in 1992, World Trade World WTO (1995 World

Trade Organization), providing a great opportunity

for the entry of foreign workers in Indonesia.

The use of foreign workers is unavoidable in the

current era of globalization. However, in principle

the use of foreign workers is needed in 2 (two)

terms: those who carry capital (TKA) that bring

capital (as investors) and/or bring skills in terms of

transfer of knowledge or transfer of technology. In

addition to these two things, it is essentially not

allowed and should prioritize the use of TKI

(Sumarprihatiningrum, 2006, p. 57).

The purpose of the use of foreign workers is to

meet the needs of skilled and professional workers

in certain fields that cannot be filled by our

workforce accelerating the process of national

development by accelerating the transfer of science

and technology and increasing foreign investment as

development support in Indonesia. However, the use

of foreign workers should be implemented

selectively in order to optimally utilize the

Indonesian workforce. As a consequence of

globalization and liberalization of trade and

investment, such as direct foreign direct investment,

the number of foreign workers working in Indonesia

tends to increase over time.

2 LEGAL RULES FOR USE OF

TKA

To be able to use foreign workers in Indonesia,

employers must follow the laws in force in our

country. In formal juridical use of foreign workers it

has been regulated in Law no. 13. In Article 42

paragraph (1) of the UUK stating that: every

employer employing foreign workers shall have

written permission from the Minister, which means

that UUK has prohibited employers from employing

foreigners without written permission from the

Minister.

The Understanding of TKA also narrows the

foreign citizens visa holders with the intention of

working in the territory of Indonesia. Meanwhile,

foreign workers who can be employed in Indonesia

are only in working relationships for certain

positions and certain times only. To provide wider

opportunities for Indonesian labor migrants, the

government limits the use of foreign workers and

simultaneously exercises oversight. Therefore, the

government has issued a number of legal

instruments ranging from licensing, health

protection coverage to the supervision. A number of

regulations ordered by UUK include:

(1) Ministerial Decree on Specific Occasions and

Certain Time (Article 42 paragraph (5));

(2) Ministerial Decree on Procedures for

Ratification of Foreign Workers' Use Plan

(Article 43 paragraph (4));

(3) Ministerial Decree on Position and Standard of

Competence (Article 44 paragraph (2));

(4) Ministerial Decree on Certain Occupations

Prohibited in Persistence by Foreign Workers

(Article 46 paragraph (2));

(5) Ministerial Decree on Certain Positions in

Education Institutions Released from Payment

of Compensation (Article 47 paragraph (3));

(6) Government Regulation on the Amount of

Compensation and Its Use (Article 47

paragraph (4));

ICMR 2018 - International Conference on Multidisciplinary Research

368

(7) Presidential Decree on the Use of Foreign

Workers and the Implementation of Education

and Training of Co-workers (Article 49).

2.1 Foreign Workers Use Plan

(RPTKA)

On March 26, 2018 President JokoWidodo signed

the Presidential Decree (Perpres) RI No. 20 Year

2018 on the Use of Labor. This Presidential

Regulation was made as the implementer of Article

49 of the Law as a substitute for Presidential

Regulation no. 72 Year 2014 on the Use of Foreign

Workers and Implementation of Education and

Training of Companion Workers made at the time of

President SusiloBambangYudhoyono (SBY) which

is considered to be no longer relevant to the current

state of our nation. This Presidential Regulation has

been arranged to provide work to foreign workers:

a) government agencies, representatives of

foreign countries, international bodies, and

international organizations;

b) foreign trade representative offices,

representative offices of foreign companies,

and foreign news agencies conducting

activities in Indonesia;

c) foreign private companies working in

Indonesia;

d) a legal entity established under Indonesian law

in the form of a Limited Liability Company or

Foundation, or a foreign business entity

registered with the competent authority;

e) social, religious, educational and cultural

institutions;

f) Impresario service business; and

g) Business entities as long as they are not

prohibited by law.

The Presidential Regulation also regulates that

each employer must prioritize the use of TKI in all

types of positions available. The use of new foreign

workers can be done when the position cannot be

occupied by TKI. This Perpres expressly states that

foreign workers are prohibited to occupy positions

that take care of personnel and / or certain positions.

Each foreign worker employer must have a

Foreign Employment Use Plan (RPTKA) endorsed

by the Minister or appointed official prior to

employing the TKA. RPTKA is a preliminary

document to be prepared by the employer that

contains the plan for the use of foreign workers. This

RPTKA must be submitted in writing to the Minister

or appointed official. This RPTKA is used as the

basis for obtaining IMTA (Permit to Employ

Foreign Personnel). The obligation to make RPTKA

for employers who will employ foreign workers is

excluded exclusively for employers in the form of

government agencies, representatives of foreign

countries and international agencies employing TKA

(Agusmidah, 2010, p. 113).

Employers of foreign workers are also not

required to have RPTKA to employ TKA:

1. shareholders who are members of the Board of

Directors or members of the Board of

Commissioners to the employers of foreign

workers;

2. diplomatic and consular officers at

representative offices of foreign countries; or

3. TKA on the type of work required by the

government.

If the Presidential Regulation no. 72 Year 20014

is still regulated on the term of RPTKA no later than

5 (five) years it can be extended for the same period

with due regard to domestic labor market conditions.

This is not so with Presidential Regulation no. 20 of

2018 as in this perpres there is no longer regulation

regarding the duration of the use of foreign Workers,

but RPTKA valid is in accordance with the period of

plan of foreign worker used by the employer. This

means that the employer is decisive for how long he

will use the foreign worker.

This RPTKA contains at least the following:

1. reasons for the use of foreign workers;

2. position and / or position of Foreign Workers

in the organizational structure of the company

concerned;

duration of use of foreign workers; and

4. appointment of Indonesian workers as escort of

foreign workers employed.

Armed with RPTKA, each foreign worker must

have an IMTA issued by the Minister or appointed

official. The obligation to have IMTA does not

apply to representatives of foreign countries who use

foreign workers as diplomatic and consular

employees. IMTA is granted for a maximum period

of 1 (one) year and can be extended for a maximum

of 1 year with a condition not exceeding the period

of validity of RPTKA. Especially for the positions of

commissioners and directors, the extension of IMTA

shall be granted for a maximum of 2 (two) years

with a condition not exceeding the period of validity

of RPTKA.

The Presidential Regulation also requires each

employer to appoint TKIs as counterpart workers

and carry out education and training for TKI in

accordance with occupation qualifications occupied

The Implication of Juridical and Sociological Existence of Foreign Labor in Indonesia

369

by TKA and facilitate the education and training of

Indonesian language to the TKA. However, this

provision does not apply to the positions of directors

and/or commissioners. Education and training for

labor migrants who become co-workers can be

implemented inside or outside the country.

Employers shall report the use of TKA every 1 (one)

year to the Minister of Manpower covering the

implementation of the use of foreign workers and

the implementation of education and training of

companion workers.

2.2 RPTKA Ratification Procedures

If the employer plans to hire foreign workers, the

initial procedure to be performed is to have RPTKA

approved by the Minister or appointed official. The

procedure for the use of foreign workers has been

regulated in the Regulation of the Minister of

Manpower (Permenaker) RI Number 16 of 2015 as

already amended by the Minister of Manpower No.

35 of 2015 on the Procedures of the Use of Foreign

Workers. In order to obtain RPTKA the foreign

worker employer must submit an online application

to the Director General of Ministry of Home Affairs

through the Director by fulfilling the following

requirements:

a. reasons for the use of foreign workers;

b. completed RPTKA forms;

c. business license from the authorized

institution;

d. deed and approval of the establishment and/or

amendment of the competent authority;

e. organizational structure chart of the company;

f. recommendation of positions to be occupied by

foreign workers from technical institutions in

accordance with regulations applicable in the

relevant technical institutions;

g. information of company domicile from local

government;

h. the taxpayer's principal number (NPWP) of the

employer;

i. letter of appointment of companion workers

and assistance program plan;

j. a letter of statement to carry out education and

job training for TKI in accordance with

occupation qualifications occupied by TKA;

and

k. evidence of compulsory employment report

according to Law no. 7 of 1981.

If the result of the RPTKA eligibility assessment

meets the requirements, within 2 (two) days of

receipt of the application, the Director General or

Director shall issue the RPTKA approval decision.

RPTKA whose work location across provinces can

be used as a basis for extension of IMTA by

province or regency / municipality in accordance

with their authority. The issuance of the RPTKA

decision is made by the Director General for the

employment of foreign workers employing TKA of

50 persons or more and the Director for an employer

of foreign workers employing TKA is less than 50

persons.

3 TYPES OF CERTAIN TIME

PERFORMANCE IN RPTKA

3.1 RPTKA for Emergency and Urgent

Work

Emergency and urgent work is work that requires

immediate treatment, and if not dealt with directly

may result in fatal losses to the company and / or the

general public. As for the type of work that is

Emergency and Urgent includes natural disasters,

force majeur, damage to machinery or production

equipment. In order to obtain RPTKA for

emergency and urgent work, foreign worker

employers must submit the requirements as defined

in Permenaker No. 16 of 2015, including but not

limited to: a) the reasons for the use of foreign

workers; b) a completed RPTKA form; c) business

license from the authorized institution; d) a letter of

emergency and urgent statement from the employer

of TKA.

The application for ratification of RPTKA shall

be no later than 2 (two) working days after the

expatriate worker. If the results of the RPTKA

feasibility assessment for emergency and urgent

work meet the requirements, the Director General or

Director shall issue a RPTKA approval decision

within 1 (one) working day. The validity period is

only 1 (one) month and cannot be renewed.

3.2 RPTKA for Temporary Work

Temporary work is work that is at any time or can be

completed in a short time. The RPTKA for

temporary employment is provided for:

a. commercial film making and has received

permission from the authorized institution;

b. conducting audits, quality control of

production, or inspection on branch companies

in Indonesia for a period of more than 1 (one)

year;

ICMR 2018 - International Conference on Multidisciplinary Research

370

c. work related to the installation of machinery,

electrical, after sales services, or products

during the business assessment.

To obtain RPTKA for temporary employment

the employer must submit a request to the Director

General or Director of the Ministry of Manpower of

the Republic of Indonesia. If the result of the

RPTKA feasibility assessment for the work is

temporary, it has fulfilled the requirements, then the

Director General or Director shall issue a RPTKA

approval decision within 2 (two) days of receipt of

the application. The validity period is a maximum of

6 (six) months.

3.3 RPTKA for Special Economic

Zones and Free Trade Zones and

Free Ports

Special Economic Zone (SEZ) is a territory within

the territory of the Republic of Indonesia which is

established to carry out special economic functions

and obtain certain facilities. Meanwhile, Free Trade

Zone and Free Port (KPBPB) is an area within the

jurisdiction of the Republic of Indonesia which is

separate from customs area so that it is free from

imposition of import duty, value added tax, sales tax

on luxury goods and excise duty.

In order to obtain RPTKA in KEK and KPBPB,

the employer must apply to the appointed officials of

KEK and KPBPB. If the results of the RPTKA

eligibility assessment in KEK and KPBPB meet the

requirements, the appointed official must issue the

RPTKA approval decision within 2 (two) working

days. The period of 2 (two) days is referring to the

provisions of Article 8 of Perpres. 20 of 2018.

3.4 RPTKA for the Territorial Waters

In order to obtain RPTKA in the territorial waters,

the foreign worker employers must submit an

application online to the Director General or the

Director of the Ministry of Manpower of the

Republic of Indonesia by evoking the requirements

that have been determined. If the result of the

RPTKA feasibility assessment for the water area has

fulfilled the requirements, the Director General or

Director must issue the RPTKA approval decision

within a period of 2 (two) working days. The period

of 2 (two) days is referring to the provisions of

Article 8 of Perpres. 20 of 2018.

3.5 RPTA for Impresario Service

Business

ImpresarioService Business is an activity to manage

entertainment in Indonesia, either bringing in or

repatriating TKA in art and sport which is

temporary. In order to obtain RPTKA for impresario

service business, the foreign worker employer must

apply to the Director General or Director of Ministry

of Manpower RI by completing the specified

requirements.

If the result of the RPTKA feasibility assessment

for the impresario service business has fulfilled the

requirements, then the Director General or Director

shall issue a RPTKA approval decision within a

period of no more than 2 (two) working days.

3.6 RPTKA for Singing/Karaoke

Guides

To obtain RPTKA for singing / karaoke guides, the

foreign worker employers must apply by completing

the specified requirements. If the result of the

RPTKA feasibility assessment for the singing /

karaoke guides has met the requirements, then the

Director General or Director of Ministry of Home

Affairs shall issue a decision on ratification of

RPTKA within 2 (two) working days. The validity

period is a maximum of 6 (six) months and cannot

be extended.

4 TKA REQUIREMENTS

Foreign nationals who want to work in Indonesia

cannot just casually work in Indonesia as TKA must

meet the following requirements:

a. having an education in accordance with the

terms of occupation to be occupied by foreign

workers;

b. havinga certificate of competence or having

work experience in accordance with the

position to be occupied by TKA for at least 5

(five) years;

c. making a letter of revelation to transfer its

expertise to TKI assistant as evidenced by the

report on the implementation of education and

training;

d. having NPWP for foreign workers who have

worked for more than 6 (six) months;

e. having a proof of insurance policy on an

Indonesian legal entity; and

The Implication of Juridical and Sociological Existence of Foreign Labor in Indonesia

371

f. National Social Security membership for

foreign workers who work more than 6 (six)

months.

5 PROCEDURES FOR

OUTSTANDING IMTA

After the proposed RPTKA is approved by the

Minister or appointed official, the employer may

proceed directly to the application of IMTA, as a

basis for the issuance of working visa and residence

permit card (KITAS) for the foreign worker

concerned. Every employer of foreign workers shall

have IMTA issued by the Director. Foreign workers

holding positions of members of the Board of

Directors, members of the Board of Commissioners,

or members of the Board of Trustees, members of

the board, members of supervisors who are

domiciled abroad are not required to have IMTA.

The obligation to have IMTA also does not apply to

representatives of foreign countries who use TKA as

diplomatic and consular employees.

To obtain IMTA the employer of foreign

workers must apply online to the Director by

fulfilling the following requirements:

a. proof of payment of DKP-TKA through a

government bank appointed by the Minister;

b. the ratification decision of RPTKA;

c. passport of TKA to be employed;

d. fitting photo of TKA color 4 x 6 cm;

e. letter of appointment of migrant workers;

f. having an education in accordance with the

terms of occupation to be occupied by foreign

workers;

g. havinga certificate of competence or

havingwork experience in accordance with the

position to be occupied for at least 5 (five)

years;

h. draft work agreement or employment

agreement;

i. proof of insurance policy in insurance company

with Indonesian legal entity; and

j. a recommendation from an authorized

inconsistency where necessary for a foreign

worker to be employed by an employer of

TKA.

6 JURIDICAL IMPLICATIONS

Based on the descriptions mentioned above, it is

understood that if any foreign workers entering

Indonesia do not follow applicable legal procedures,

they may be qualified as illegal foreign workers. The

legal consequences for illegal foreign workers not

only affect the foreign workers themselves, but also

have legal implications for employers. UUK has

affirmed criminal sanctions to the employer as

regulated in Articles 185 and 187 of the UUK as

well as administrative sanctions in accordance with

the provisions of Article 190 of the UUK.

Penalty imprisonment for a minimum of 1 (one)

year and a maximum of 4 (four) years and/ or a fine

of at least Rp. 100.000.000, - (one hundred million

rupiahs) and at most Rp. 400,000,000, - (four

hundred million rupiahs) for an employer employing

a foreign worker without written permission from

the Minister of Manpower or a designated official.

In addition, for employers of foreign workers who

do not comply with the provisions concerning the

position and standard of competence, do not provide

a companion worker and do not carry out education

and job training for TKI can also be given sanctions

of imprisonment of at least 1 (one) month and no

later than 12 (twelve) years and/or a minimum fine

of Rp. 10.000.000, - (ten million rupiahs) and at

most Rp. 100.000.000, - (one hundred million

rupiahs).

For an employer who does not provide a

companion worker and does not carry out education

and job training for TKI, other than to be subject to

criminal sanctions can also be given administrative

sanctions as stated in Article 190 UUK namely in

the form of: a) reprimands; b) written warning; c)

restrictions on business activities; d) freezing of

business activities; e) cancellation of consent; f)

registration cancellation; g) temporary suspension of

parts or all of the means of production; h) revocation

of permits.

7 SOCIOLOGIC IMPLICATIONS

The presence of foreign workers in the national

economy of a country will be able to create

competencies that lead to efficiency and improve

economic competitiveness. Philosophically and in

the spirit of globalization, the use of foreign workers

in developing countries is intended for transfer of

knowledge and transfer of technology.

Open access to foreign workers can be used as a

study material in selecting sectors or sub-sectors that

want to be liberalized. The need for high skilled

worker (TKA) is increasing in line with economic

progress in a country (Yanti, 2016, p. 6). The

presence of foreign workers in the national economy

ICMR 2018 - International Conference on Multidisciplinary Research

372

of a country is sociologically intended to create

competencies which in turn will create efficiency

and enhance economic competitiveness. But often in

the implementation of many problems, especially

related to the expertise when dealing with migrant

workers.

Although liberalization undertaken within the

framework of the WTO is intended to regulate free

movement of personal, it is still associated with the

ownership of the company, meaning that if a foreign

party is allowed to buy or establish a company, the

foreign party is also allowed to bring or employ

experts company. The next question that will arise is

how the migrant workers because foreign companies

in the host country are obliged to hire Indonesian

labor migrants. Therefore, a clear and definite legal

regulation is needed so that foreign companies in

Indonesia can comply. The existence of national

legislation should also consider the effects of

globalization (Ibid).

There is no other way our labor should be ready

to compete in the midst of global markets. Increased

competence becomes the absolute thing to be able to

win the job market competition. Now the job market

is no longer protected by the rules of legislation, but

is determined by the ability or skill of each

individual. Workers who rely solely on government

protection will be eroded by the times; while the

labor used is the workforce rely on expertise and

competence according to their respective fields.

Manpower today is a workforce that is able to

compete in the modern job market based on its

competencies.

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