WNA, wife sponsored Kitap, working without IMTA in PMA

[Happy]

Background:

I am WNA currently on Kitap just over 2 years, previously 5 years Kitas. Sponsored by WNI wife and originated from a 317 type Vitas.

5 years ago I co-founded a PT company, originally local PT but since 2 years converted to PMA with some other foreign shareholders. I am one of the directors in the akta. And I also act as CEO managing the day-to-day operation of the company.

Last week we got a surprise inspection from manpower, and they found a few minor issues, but these 2 main issues, which the inspector wrote up in his report:

1. That I as "TKA" do not have any permit from manpower, company has no RPTKA and IMTA (or notification as they call it now), and no 1200$ fees are being paid to fund their useless bureaucracy.

2. The employment contracts of my staff have been signed by me. They deem that illegal.

Clearly they are very confused people and the audit is now in ...well...let's call it escalation.

We have submitted a response showing the laws. UU 13 2003 Article 1 (13) which defines TKA and is clearly not applicable to me, and UU 16 2011 Article 61 which gives me an unconditional right to work.

Lucky in my case, I was very open with Immigrasi when I did my Kitap, declared myself as wira swasta and direktur of PT XXX in the application form. Consequently Imigrasi questioned that, I provided a copy of the Akta and some UU pasals, and they approved my Kitap without further questions.

Big question is if Manpower will give up with the overwhelming legal facts and the "approval" I got from Imigrasi, or if they dare to pursue this.

I am quite busy, but in a way this is a dream come true in case they want to ignore the laws of the land and have this go to court.

I will post updates, if anybody has any similar recent experiences or legal views, please share!

 

[Happy]

About their claim that foreign resident director cannot sign employment contract, I could not find any law and leave it up to them to show me the law. Maybe anybody knows more? All I know foreigner can clearly not be HR director, which is an entirely different matter from doing what a director does, which is signing contracts.

 

[dafluff]

I don't have any input, but I do wish you the best of luck with this, and thank you for sharing (hopefully) the outcome with the forum!

 

[jstar]

What I don't understand: If Manpower's own (relatively new) regulation states that a shareholder who is also director of a PT PMA (so: you) doesn't need a work permit, why did they tell you you'd need a RPTKA+notification?

Or does this have to do with the contradiction between MOM and BKPM? The latter not being in sync yet with the Manpower regulation?

 

[Happy]

I am not a shareholder in the new arrangement, my shares moved to group. Only director in akta. So that new director & shareholder does not apply.

 

[Happy]

And I think it does not matter. Because the king of all laws that exists on this matter, WNA on Kitap based on 317 Vitas, is UU 16 2011, which is unconditional, the newest and higest law, and no other legal document has challenged it.

 

[Happy]

They even repeated the TKA definition of UU 13 2003 in
Regulation Hukum dan Ham 16 2018:

Article 1, point 17:
Tenaga Kerja Asing yang selanjutnya disingkat TKA
adalah warga negara asing pemegang visa dengan
maksud bekerja di wilayah Indonesia.

A foreigner who comes here on a work visa

Anybody here on a family visa by definition does not have a work visa.

So the 2018 ministerial regulation sticks to the same pricipal. Somebody on a family stay permit (based on a previous family reunion visa) can by legal definition not be a TKA. Subsequently any other laws and pasal mentioning TKA are not applicable to us.

 

[R Cameron]

I think you have solid arguments to make, so it will be interesting to see how this plays out. Please keep us updated.

 

[Happy]

Not sure if my argument is solid under Indonesian standards. It is 100% solid about the law, but what is the law worth here...

 

[gemima]

Not much to imput - I wish you the very best of luck with this - please do keep us all updated.
I'm a foreigner and CEO in my company (with work sponsored KITAS) and I sign the staff contracts (I do have an Indonesian HR director of course!).

 

[Happy]

The nonsense goes on. I hired a lawyer with over 10 years working in this field from a reputable international law firm, to handle this case. Meeting today.

About signing employment contracts: I asked to show the law which prohibits foreign directors to sign employment contracts. He cannot show it. Just blabla and more blabla about about foreigner cannot have HR position.

About my case without RPTKA: He believed that the definition of TKA is foreigner who works here. I showed him the legal definition of Pasal 1 and he was speechless. He got it. And yet he still said that pasal 42 onwards of UU 13 2003 have to be applied to foreigners, even though they refer to TKA.

I always said to all my friends, never trust any lawyer or doctor. They make themselves look omnipotent, but in reality they cause more harm than good. Unless you have an accute infection and need antibiotics.

 

[jstar]

lawyer with over 10 years working in this field from a reputable international law firm..............He believed that the definition of TKA is foreigner who works here

As do ALL the lawyers and notaries I’ve talked to in the previous years when we started discussing this over here.

Still wonder what the judges will/would say....

 

[Dave70]

One possible way out for you is to transfer the shares of the local PT to your name so that you will be shareholder as well as director of the PMA company in order to fulfill the requirements to be exempted from having an IMTA. However, it still depends on how much shares or value of shares you have.

 

[dannyboy]

Hi Happy,

any update re. the case? I am curious to hear what happens next
Best of luck!

 

[Happy]

Quick update:

Manpower won't give up, but in a strange way. They sent official letter requesting RPTKA and Notifikasi to be done within 2 weeks. Quoting the usual TKA related articles from the 2003 UU.

But they can't be that certain about their case, they know I have been working like this since over 4 years but are not asking for any penalty.

Anyway, I am writing this while sitting in Ombudsman RI waiting room and will file an official report against this nonsense.

More updates as things develop.

 

[Happy]

Things just got way more interesting, Imigrasi have seized my passport and opened a full scale investigation.

Besides that, I also found out about ministry regulation Hukum Dan Hak 27 / 2014, in article 28 it actually says that even holder of spouse sponsored KITAS/P need RPTKA.

Ongoing...I'll update as the drama unfolds. If anybody has good advice, it is more than welcome!

 

[centurion]

It would be interesting to see if you and the company would be fined and you deported by Manpower accusation. If nothing happens, it would be a clear victory for the point of view that spouses do not need any specific permit as the right to work is granted by law.

However, "gray zone" usually does not work for foreigners here.

 

[Helpful Herbert]

It's a manpower issue, but immigration have seized your passport? Are they working together on this - apart from possibly not following a regulation from manpower is there an immigration law or regulation you've broken?

 

[Happy]

We will see. Next thing I will save my passport at my embassy an tell the imigrasi guys they can get it from there if they want it.

 

[dafluff]

Besides that, I also found out about ministry regulation Hukum Dan Hak 27 / 2014, in article 28 it actually says that even holder of spouse sponsored KITAS/P need RPTKA.

That's actually an interesting one. There is definitely some contradiction here. The ministerial regulation in question (link in Indonesian), is a technical regulation for the issuance of a KITAS, ie. it is for the immigration officers to refer to as to what they need to do.

So for a spousal KITAS the technical requirements are (article 28.9):
a. Proof of marriage (akta perkawinan atau buku nikah) translated into Indonesian, unless it is in English.
b. Proof of marriage registration in Indonesia if marriage is done abroad.
c. RPTKA in the case where the foreigner is a tenaga kerja asing (TKA).

Now here is where the contradictions are:

1. Spousal KITAS by Indonesia's own definition is not eligible for TKA status (visa tidak dengan maksud untuk bekerja). Therefore a spousal KITAS holder is never a TKA as defined by the manpower law (Tenaga kerja asing adalah warga negara asing pemegang visa dengan maksud bekerja di wilayah Indonesia).

2. It is also illogical in cases where the spousal KITAS has been issued before the foreigner obtains a job. In this case the KITAS has been issued, then the foreigner gets a job so obviously technical guidelines on how to obtain a KITAS are moot at this point.