As a matter of practice, foreigners residing outside Indonesia who are commissioners in Indonesian companies do not need izin kerja. I know several Singaporeans and Australians residing in their home countries who are commissioners at large, publicly-listed Indonesian MNC's and none have an izin kerja. There was some stink about this purported requirement in the past (also about requiring foreign commissioners to pass an Indonesian language test), but the whole thing was eventually dropped. As is typical in Indonesia, the law can say one thing, but the practice/interpretation can be something entirely different.
Also, a 'Foreign Worker' is, in Bahasa Indonesia, termed a Tenaga Kerja Asing (TKA), and as
@Brian86 points out, is defined in the Manpower Law as someone who comes to stay in Indonesia for purposes of work... So, technically, as a matter of law, the question remains open for foreign commissioners who originally came to stay in Indonesia for purposes of family reunion on a spouse sponsored Kitas or Kitap.
They are not TKA, ie Foreign Workers under the Manpower Law. Of course, practice/interpretation by the manpower authorities can be otherwise, but then we don't have rule of law, which it appears is a somewhat abstract concept in Indonesia.
That former law is more confusing, because like No. 8 2021 it says in Pasal 1 that TKA is only those with a visa for the purpose of working. Pasal 37 which you quote does seem like it could possibly contradict that, but it doesn't matter, because that language is not present in the current law (No. 8 2021).
Out if interest I try to browse the new regulation. The Permenaker No. 8 2021
From the new regulation, to me it is crystal clear that Commisioner is categorised as TKA.
ARTICLE 5
(1) Employers of TKA can employ
TKA who being employed by another TKA Employer for the same position as: a. directors or
commissioners;
ARTICLE 20
(5)
Ratification of RPTKA KEK for the position of director or
commissioner, is given once and is valid for the duration of the
TKA concerned becomes a director or
commissioner accordingly with the provisions of the laws and regulations in immigration field.
EXCEPTIONS FOR VALIDATION OF PLAN USE
FOREIGN WORKERS
ARTICLE 30
Ratification of the RPTKA
does not apply to: a. directors or
commissioners with share ownership, or
shareholders in accordance with the provisions legislation;
ARTICLE 31
(1) Directors or commissioners with share ownership , or unenforceable shareholders Ratification of RPTKA as intended in Article No.301 -26-30 letters a must meet the criteria in accordance with provisions of laws and regulations in the field investment facilities.
(2) Directors or commissioners with share ownership certain parties, or shareholders as intended in paragraph (1) obtain a recommendation for granting a visa and a residence permit from a non-ministerial government agency who is tasked with carrying out policy coordination and services in the field of investment.
So it seems to me there is no any difference with the old regulation which has been superseded that I have quoted in Post#5. Director, Commissioner are TKA. As a commissioner you will only be exempted
if you have share ownership, which literary means you own the company.
What is not clear yet is the Commisioners domicile abroad. But common sense rule if
you own the companies and domicile abroad you are actually investors, which should be encouraged, you are not TKA. So I have no wonder if they are exempted from the requirement for a work permit or at least remains a grey area.
I would not fear working informally on a spouse visa, but I would be nervous about being a salaried komisaris on a spouse visa, although I have not seen any law that would make it illegal. The Permenaker No. 8 th2021 above does not, and I have searched for other laws addressing these issues and have not found any, but they may exist.
Spoused sponsored ITAP and
Foreign Workers Recruitment Plan (“Rencana Penggunaan Tenaga Kerja Asing/ “RPTKA”) are two different things. ITAP is the right to abode, it does not automatically give you the right to work.
