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KITAS AS ONE OF THE REQUIREMENTS FOR FOREIGN NATIONALS BOARD OF TRUSTEES AND BOARD OF MANAGEMENT OF THE FOUNDATION

2 April 2019

Board of Trustees is an organ of the Foundation who has an authority that is not given to the Board of Management or Board of Supervisor by Foundation Law or the Articles of Association. While the Board of Management is the organ of the Foundation who carries out activities of the Foundation.

Foreign nationals who become Trustee or Management are only allowed to become members. Whereas for the chairperson, secretary and treasurer must be held by Indonesian nationals. Thus, the foreign nationals Trustee and Management who are visa holders with the intention of working in the territory of Indonesia, is a Foreign Worker.

It becomes a question whether the Trustee or Management who is a foreign national is obliged to fulfill the requirements like a foreign worker employed by an employer, such as:

  1. Have a relevant education with the position that will be occupied by foreign workers
  2. Have a competency certificate or have work experience of at least 5 (five) years that are relevant with the position to be occupied by foreign workers
  3. Transfer their expertise to local companion workers
  4. Have a Taxpayer Identification Number (NPWP) for foreign workers who have worked more than 6 (six) months and
  5. Have a Limited Stay Permit (ITAS) for work, issued by the authorized agency.

Relating to Trustees and Management of Foundations established by Foreigners or Foreigners with Indonesian nationals, The Board of Trustees and Board of Management members who are foreign nationals must be holders of permits to carry out activities or businesses in the territory of Indonesia and holders of Temporary Stay Permit (KITAS). If they do not have such permissions, by law, they must resign from their positions.

Regarding the permission to carry out activities or businesses in the territory of Indonesia, it is a permission to employ foreign workers in the form of ratification of the Plan for the Use of Foreign Workers (RPTKA). RPTKA is a plan for the use of foreign workers in certain positions made by the employer for a certain period, authorized by the Minister of Manpower or a designated official. In the event a foundation will employ foreign workers, the foundation must submit RPTKA ratification.

If the foundation employs foreign workers without permission, it means that the foundation has violated the provisions of Article 42 of Law Number 13 of 2003 concerning Manpower. For these violations, the foundation may be liable to a minimum of one year imprisonment and a maximum of four years and/or a fine of at least Rp.100 million and a maximum of Rp.400 million.

Foundation as the employer of foreign workers is obliged to report on the use of foreign workers every one year to the Minister of Manpower (in this case the Director General of Manpower Placement Development and Expansion of Employment Opportunities). Such reports include:

  1. Implementation of the use of TKA
  2. Implementation of education and training of Local Companion Workers.

Officials who ratify the RPTKA are obliged to examine whether foreigners to be employed have fulfilled the requirements, both sponsorship and administrative requirements. If it does not meet the requirements, the RPTKA will not be approved.

Labor inspectors are also obliged to supervise the use of foreign workers in a foundation. This is regulated in Article 36 of Minister of Manpower Regulation No. 10/2018, which states that:

  1. Supervision of the use of foreign workers as well as the implementation of education and training of Local Companion Workers is carried out through stages:
    • Preventive educative
    • Repressive non-judiciary and/or
    • Repressive judiciary.
  2. The Preventive Educative stages as referred to in paragraph (1) letter a are prevention measure through the dissemination of norms, technical advisory, and assistance.
  3. The Repressive non-judiciary stage as referred to in paragraph (1) letter b is a forced measure outside the court to fulfill the provisions of Law and Regulations in the form of a memorandum of inspection and/or a statement of the ability to fulfill the provisions of the Law and Regulations.
  4. The Repressive Judiciary stage as referred to in paragraph (1) letter c is a forced measure through a court institution by conducting an investigation process by the Labor Inspector as a Civil Servant Investigator.

The supervision of the use of foreign nationals as member of Board of Management also carried out by immigration officials who served in the field of immigration supervision and enforcement, in a coordinated manner according to the scope of duties and authority.