6.2. Work Agreement Procedures

6.2.1. Probationary Period

Employers can place new permanent workers on probation for no longer than three months. During the probationary period, workers cannot be paid less than the minimum wage.

While non-permanent workers cannot be subject to probationary period by the employers.

LEGAL REFERENCE:

MANPOWER ACT NO. 13 OF 2003, ARTS. 58, 60 [UU KETENAGAKERJAAN NO. 13 TAHUN 2003, PASAL 58, 60].

6.2.2. Foreign Workers

Employers who employ foreign workers must prepare a foreign workers recruitment plan (Rencana Penggunaan Tenaga Kerja Asing – RPTKA) and endorsed by the:

1. Director General of Workers Placement and Development, Ministry of Manpower and Transmigration, if employer is planning to recruit 50 foreign workers or more;
2. Director of the Foreign Workers Management, Directorate General of Workers Placement and Development, Ministry of Manpower and Transmigration, if the employer is planning to recruit less than 50 foreign workers.

The foreign workers recruitment plan (RPTKA) endorsement is valid for a period up to 5 years and can be renewed. Renewing the foreign workers recruitment plan (RPTKA) can be requested with :

1. The Minister of Manpower and Transmigration, if the workplace is located across provinces and there are changes of position, location, number of foreign workers and/or nationality in the recruitment plan; or
2. The Head of the Provincial Manpower Office, if the workplace is located in one province and there is no change in position and number of foreign workers.

Once the foreign worker’s recruitment plan (RPTKA) has been endorsed, the foreign worker’s recruitment permit (Izin Memperkerjakan Tenaga Kerja Asing – IMTA) can be processed and issued by the Director of the Foreign Workers Management.

The foreign worker’s recruitment permit (IMTA) is valid for a period up to 1 year and can be renewed. Renewing the foreign worker’s recruitment permit (IMTA) can be requested to the Director of the Foreign Workers Management or the Provincial Governor or the Head of District (Regent or Mayor).

The foreign workers must have a specified position and period of employment. The employer must appoint an Indonesian counterpart to work with the foreign worker, to ensure the transfer of skills from the foreign worker to the counterpart.

Foreign workers are not permitted to occupy several positions, namely:

1. Personnel Director
2. Industrial Relation Manager
3. Human Resource Manager
4. Personnel Development Supervisor
5. Personnel Recruitment Supervisor
6. Personnel Placement Supervisor
7. Employee Career Development Supervisor
8. Personnel Declare Administrator
9. Chief Executive Officer
10. Personnel and Careers Specialist
11. Personnel Specialist
12. Career Advisor
13. Job Advisor
14. Job Advisor and Counseling
15. Employee Mediator
16. Job Training Administrator
17. Job Interviewer
18. Job Analyst
19. Occupational Safety Specialist

Employers are required to ensure the return of foreign workers to their country of origin when their work agreement ends.

LEGAL REFERENCES:

MANPOWER ACT NO. 13 OF 2003, ARTS. 42-48 [UU KETENAGAKERJAAN NO. 13 TAHUN 2003, PASAL 42-48];
MOMT DECREE NO. 40 OF 2012 [KEPUTUSAN MENAKERTRANS NO. 40 TAHUN 2012];
MOMT REGULATION NO. PER.02/MEN/III/2008 [PERATURAN MENAKERTRANS NO. PER.02/MEN/III/2008].

6.2.3. Recruitment Agent Fees

Government agencies for job placement are prohibited from charging fees to workers or employers directly or indirectly.

Private agencies for job placement can collect fees from employers and employees only for the following positions with earnings at least 3 times the district minimum wage: managerial, supervisors, operators and other professional positions that requires an undergraduate degree with professional education.

LEGAL REFERENCES:
MANPOWER ACT NO. 13 OF 2003, ARTS. 35-38 [UU KETENAGAKERJAAN NO. 13 TAHUN 2003, PASAL 35-38];
MOMT DECREE NO. KEP.230/MEN/2003 [KEPUTUSAN MENAKERTRANS NO. KEP.230/MEN/2003]

6.2.4. Non-Permanent Work Agreements

Non-permanent work agreements (for a specified time) can only be used for four types of work:

1. to be performed and completed at once or temporary by nature;
2. estimated time to be completed is not too long and no longer than 3 years;
3. dependent on season; or
4. is related to a new product, a new activity or an additional product that is still in the experimental stage or try-out phase.

The garment industry can be classified as an industry that may depend on season or relates to manufacturing new product, therefore garment enterprises may recruit workers under a non-permanent work agreements, if the conditions applies.

The initial non-permanent work agreement can be made for up to two years and can only be extended once for up to one year. If the employer wishes to continue employing the worker at that point, the worker must be employed under a permanent work agreement.

Employers who wish to extend a worker’s non-permanent work agreement must inform the worker in writing no later than seven days before the non-permanent work agreement expires.

LEGAL REFERENCES:

MANPOWER ACT NO. 13 OF 2003, ARTS. 56-59 AND EXPLANATORY NOTES [UU KETENAGAKERJAAN NO. 13 TAHUN 2003, PASAL 56-59 DAN PENJELASAN];
MOMT DECREE NO. KEP.100/MEN/VI/2004, ARTS. 4-9 [KEPUTUSAN MENAKERTRANS NO. KEP.100/MEN/ VI/2004, PASAL 4-9].

6.2.5. Outsourcing

An enterprise may only outsource (subcontract) part of its work to another enterprise under a written agreement if the work is:

1. done separately from the main business activity;
2. undertaken under either a direct or an indirect order from the party commissioning the work;
3. an entirely auxiliary activity that is not related to the core business activity of the factory; and
4. not directly inhibiting the production process.

Examples of auxiliary business activities in the garment industry are cleaning and maintenance services, catering services, security services, and transportation services.

Outsourcing enterprises must protect workers by either:

• including a Transfer Undertaking Protection of Employment (“TUPE”) provision in the outsourced workers’ contracts, in which case the workers may be employed under non-permanent work agreements, or
• having workers on permanent work agreements, if the work agreement does not have a TUPE provision for transfers of the outsourcing enterprise’s obligation to a successor outsourcing enterprise.

Home-based workers who are regular workers for the enterprise must also be provided with the same protections and benefits as those working in the enterprise premises.

LEGAL REFERENCES:

MANPOWER ACT NO. 13 OF 2003, ARTS. 64-66 [UU KETENAGAKERJAAN NO. 13 TAHUN 2003, PASAL 64-66];
CONSTITUTIONAL COURT DECISION NO. 27/PUU-IX-2011 OF 2012 [PUTUSAN MAHKAMAH KONSTITUSI NO. 27/PUU-IX/2011 OF 2012];
CIRCULAR LETTER OF THE DIRECTOR GENERAL OF INDUSTRIAL RELATIONS AND SOCIAL SECURITY OF THE MINISTRY OF MANPOWER AND TRANSMIGRATION NO. B.31/PHIJSK/I/2012 [SURAT EDARAN DIREKTUR JENDERAL PEMBINAAN HUBUNGAN INDUSTRIAL DAN JAMINAN SOSIAL TENAGA KERJA KEMENAKERTRANS NO. B.31/PHIJSK/I/2012].
MOMT REGULATION NO. PER. 19 of 2012, ART. 15 [Permenaker No. 19 tahun 2012 tentang outsourcing]