The Legalities of Working as Consultant on Spouse ITAP

Discussion in 'Employment Law' started by Fabius77, Sep 22, 2016.

  1. Fabius77

    Fabius77 Member

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    Hi folks, I've just moved here from the old forum.

    I should soon get my spouse ITAP-1 (today, the Dirjen Izin Tinggal completed the letter for Immigration Office) and I may have the opportunity to work as consultant in the chemical/laboratory/analysis field.

    But I want to do it legally. Considering this rather cumbersome thread (https://forum.expatindo.org/showthread.php?292-Working-on-Spouse-KITAP), it seems there is no need for other authorization to work as consultant for a spouse ITAP holder.

    Is there anybody here with more specific knowledge of the consultant work case?

    By the way, if you need or know some company in need of that kind of consulence, you can contact me ;)
     
  2. Bad_azz

    Bad_azz Well-Known Member Charter Member Cager

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    Here's my take on it- I am sure someone will pop up and correct me if I am wrong:
    Law says - ITAP holders can work.
    Some other legislation & regulations say that employers must jump through a set of hoops to employ a TKA - which you are not, as TKA is a person in the country for work reasons and bound by work permits and visas - on the spouse sponsored visa we are here for family reasons : marriage.
    My way round the hassles is to freelance - so I am not caught up in the red tape of contracts and such.
    "Consultant" covers a whole lot of ground so I doubt it has been legislated - to the depths that "teacher" "trainer" etc have been in the education field of work.

    See this thread,it will give you more information- post 30: https://forum.expatindo.org/showthread.php?309-Working-at-a-school-on-a-spouse-sponsored-KITAS
     
  3. Fabius77

    Fabius77 Member

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    Good to know that you never had problems.
     
  4. PhilippeD

    PhilippeD Member Charter Member Cager

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    This single sentence "dapat melakukan pekerjaan dan/atau usaha untuk memenuhi kebutuhan hidup dan/atau keluarganya." is the only text of law that define your right to work.
    Meaning: you can do whatever you want (definitely, until it is legal)

    It the actual context you are also better to know and UNDERSTAND the article I mentionned in the tread you mention and be ready to stand your ground when if facing bullying from imigration or other party.

    Keeping polite and knowing your right are the basis of survival in Indonesia :becky:
     
  5. Bad_azz

    Bad_azz Well-Known Member Charter Member Cager

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    I haven't had any problems- I have had some very wrong advice from some tuppenny immigration guy who thought he was a lawyer- told me that the "orang asin" part in the law only meant men- and I asked him to clarify what part of "orang" meant man (person/people). I pointed out that it is a genderless word & had it meant man it would have said laki laki or pria.
    Anyway- I didn't get too into it with him as it wasn't so much about me working as about me telling KanIm during my ITAP process that yes I would be working should I choose to do so, in legal work.
    Other than that I had no issues or worries.
    I also have the balls to stand up for my rights , so if they do try anything funny with me I will probably counter sue for a breach of my human rights.
     
  6. Fabius77

    Fabius77 Member

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    Ah well, that's transparent bullshit and must be confronted.

    I asked at the Dirjen Izin Tinggal and the answer was that freelancing and consulting and the like do not require the employer to have an IMTA. Salaried work instead still needs IMTA.
     
  7. PhilippeD

    PhilippeD Member Charter Member Cager

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    While being interrogated in the immigration office I was said I could only work for my wife business and nothing else... half hour later they told me to wait to have my KITAS ikut istri for being able to do whatever i want.


    The only trouble it can be created if you work as a salaried is menpower giving trouble to the company for other foreigner (TKA) they employ (refusing to extend the work visa of other foreign (TKA) worker employ by the same company.
    Other than that they don't have any way to cause you problem (legally speaking).
     
  8. Om DelOreo

    Om DelOreo New Member

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    That's from the UU, right? What about the PP? What does it say, because the regulations usually give more details, right?

    The last time I asked at the local dept. of labor, they said unless I want to become an Indonesian, I can freelance, or I can work for my wife if she forms a UD, but I'm not allowed to do contract work, or even work that has a schedule. A school that asked if I could teach English for them, after school, paid for by the parents was rejected by the head of the section at the dept. of labor, but a government office that asked if I could teach English for them, paid for by the government, after work, was allowed. I'm confoozled!
     
  9. PhilippeD

    PhilippeD Member Charter Member Cager

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    The rule in Indonesia for not being fuck up: know the law, if someone told you no about something you know being legal ask him on which law article he based his answer and be ready to have to teach them (politely) the law they are suppose to know and enforce.

    Some immigration officer are not shy at all to openly lie to you and (try to) intimidate you - I have been through it.
    Their super nationalistic sentiment don't allow them to support the idea of a foreigner working in their country - except for their own personal gain.

    If you are a TKA you need to follow the manpower law and they only allow one work at time.
    If you have a kitas sponsored by your wife (or a repatriate) you have nothing to do with the manpower - but they don't like if you go work where they could get a their money from the work permit cost. They could use their power for give trouble where they can; on the other TKA hired by the company.

    If you are not a TKA you are not under the authority of the manpower - they don't have any regulation for you.
    To my knowledge, it don't have any other regulation from the immigration and they can't because of the UN human right convention which Indonesia have sign.

    The "you can only work for your wife business" is a bullshit that was invented in the beginning when everyone was confuse about how to apply the new immigration law.
    Confront any immigration officer who told you that to show you the law/regulation for support this and you will see they will change fast enough of subject!

    The best way around I had found for turn around all the bullshit:
    Have your wife create a CV, have all you contract sign by her (not you) and every paiement deposed in a bank account in her name you could transfer it after that).

    sadly I had to leave Indonesia and can't put this on practice...
     
  10. jstar

    jstar Mr. 10,000

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    ^
    Was that a boutade?

    The thing is, as always over here, there is a big difference between speaking theoretically and stating the letter of the law from a protected environment, and the possible intimidation of uniformed officials while being accompanied by a spouse who does not want any conflict. And the latter is the situation for most 'in the field'.

    Also, I do not wish to be the case that is tested in court.
     
    Last edited: Oct 14, 2016
  11. Om DelOreo

    Om DelOreo New Member

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    I'm a foreigner (TKA).

    I'm a permanent resident (ITAP) sponsored by my spouse.

    I was told my wife has to make a "UD" by Manpower, not Immigration. Immigration initially told me to go ahead and work, but later they started checking up on me to see what I was doing. The information from them, Manpower and other departments is sometimes contradictory. :frusty:

    I believe you are referring to the Immigration law of 2011, not the Manpower law of 2005(?). What about the Regulations (PP) that were made for that law? Does it clarify my ability to work? Specifically, does it clarify the one clause in that Immigration law about the right to work to support my family?

    Why do you believe that Manpower has no authority over my ability to work, but Immigration does? Which laws and regulations state that all matters for a foreign worker on a spousal ITAP are handled by Immigration? I have not kept up on the latest news, so I clearly have not seen this new information. :noidea:

    I have lived in Indonesia for quite a while now. I'm fairly good at Indonesian, too. I know how things work and the government employees that I have to deal with no longer bother asking for money or making my life difficult because they know I won't bribe them but I WILL report them for corruption or failure to do their job correctly. :laser:

    Merci!
     
  12. Bad_azz

    Bad_azz Well-Known Member Charter Member Cager

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    The clause in the "immigration" law that states that it supersedes previous laws on the matter perhaps?
    In black and white it states : that a foreigner on a spouse sponsored temp/permanent resident visa has the right to work to support the family- now lemme see- in legal talk that is pretty cut & dried.
    What manpower laws are you referring to? and what clauses of them?
     
  13. jstar

    jstar Mr. 10,000

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    Probably:
    1. Undang-Undang Nomor 13 Tahun 2003 tentang Ketenagakerjaan;
    2. Peraturan Menteri Ketenagakerjaan Nomor 16 Tahun 2015 tentang Tata Cara Penggunaan Tenaga Kerja Asing sebagaimana diubah oleh Peraturan Menteri Ketenagakerjaan Nomor 35 Tahun 2015 tentang Perubahan Atas Peraturan Menteri Ketenagakerjaan Nomor 16 Tahun 2015 tentang Tata Cara Penggunaan Tenaga Kerja Asing.

    Pasal 1 angka 1 Peraturan Menteri Ketenagakerjaan Nomor 16 Tahun 2015 tentang Tata Cara Penggunaan Tenaga Kerja Asing sebagaimana diubah oleh Peraturan Menteri Ketenagakerjaan Nomor 35 Tahun 2015 tentang Perubahan Atas Peraturan Menteri Ketenagakerjaan Nomor 16 Tahun 2015 tentang Tata Cara Penggunaan Tenaga Kerja Asing (“Permenaker 16/2015”)

    Now in these laws and regulations, esp. the relationship between Manpower, Employer and Foreign Worker (TKA) is discussed. And the requirements for companies (excluding individuals) to hire foreign workers are very clear.

    This is the crux: The case some here make, is that WNA that reside in RI and who are sponsored by their spouse (and thus without an official work contract and IMTA), are not foreign workers, since a TKA status is very specific and well defined and requires certain steps that do not apply to these foreigners.

    But that 'there are foreign workers and foreigners that work' differentiation is not clear in the law at all!
     
  14. Bad_azz

    Bad_azz Well-Known Member Charter Member Cager

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    Is this a "law"?
    "Peraturan Menteri Ketenagakerjaan Nomor 16 Tahun 2015 " feeling too lazy to translate.

    On a spouse sponsored ITAS we are not TKA.
     
  15. jstar

    jstar Mr. 10,000

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    .
    Well, we can be; the employer does not need to be the ITAS/P sponsor. (Cf. Sergei.)

    But if we are not TKA, what are we? (Again; what is the difference between Foreign Workers and working foreigners? Many officials and lawyers here don't see a difference)
     
  16. PhilippeD

    PhilippeD Member Charter Member Cager

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    I'm surprise to find people who are still embezzle with this matter. The law is quite simple and clear on the subject, there is not the much in the immigration law that talk about work.
    I know there is a lot of confusion bring by the immigration officer and this since the beginning the law UU6/2011 was enacted.

    Context:

    Indonesian is part of the UN since september 1950 and need to comply to it's human right... which he don't always does. One of the 30 article said:

    Article 23.

    (1) Everyone has the right to work, to free choice of employment, to just and favourable conditions of work and to protection against unemployment.
    (2) Everyone, without any discrimination, has the right to equal pay for equal work.
    (3) Everyone who works has the right to just and favourable remuneration ensuring for himself and his family an existence worthy of human dignity, and supplemented, if necessary, by other means of social protection.
    (4) Everyone has the right to form and to join trade unions for the protection of his interests.

    This mean if you allow someone living on your land you can't deny him his right to work.
    Indonesian are ultra nationnalistic, particularly people you will find in working in governement office. They don't like the idea of giving the free right of work to foreigner and then their tendency to lie about this subject. Add to this the general unknowledge of the law there are supposed to apply.

    I have been openly "lied" about immigration regulation by the boss of our immigration office and this was nothing more than a standard visa procedure she didn't want to do - she didn't want do a "change of sponsor" and want me doing a brand new visa in singapore.
    Now imagine those same person when it's about a subject they are personally against it.



    What the law said:


    penjelasan art 39 UU 6/2011
    Visa tinggal terbatas diberikan kepada Orang Asing yang bermaksud bertempat tinggal dalam jangka waktu yang terbatas dan dapat juga diberikan kepada Orang Asing eks warga Negara Indonesia yang telah kehilangan kewarganegaraan Indonesia berdasarkan Undang-Undang tentang Kewarganegaraan Republik Indonesia dan bermaksud untuk kembali ke Indonesia dalam rangka memperoleh kewarganegaraan Indonesia kembali sesuai dengan ketentuan peraturan perundang-undangan.
    Visa tinggal terbatas dalam penerapannya dapat diberikan untuk melakukan kegiatan, antara lain:
    1. Dalam rangka bekerja:
    a. sebagai tenaga ahli;
    b. bergabung untuk bekerja di atas kapal, alat apung, atau instalasi yang beroperasi di wilayah perairan Nusantara, laut territorial, atau landas kontinen, serta Zona Ekonomi Eksklusif Indonesia;
    […]
    m.melakukan kegiatan pengobatan; dan
    n. calon tenaga kerja asing yang akan bekerja dalam rangka uji coba keahlian.
    2. Tidak untuk bekerja:
    a. penanam modal asing;
    b. mengikuti pelatihan dan penelitian ilmiah;
    c. mengikuti pendidikan;
    d. penyatuan keluarga;
    e. repatriasi; dan
    f. lanjut usia.


    In the first section (1. Dalam rangka bekerja: ) there is 14 situation were a (K)ITAS (Visa tinggal terbatas) can be given in matter of work related.
    In the second section (2. Tidak untuk bekerja: ) It describe the situation were the KITAS is not delivered for work purpose. There is no "dengan maksud bekerja" (entrance for work purpose) under a wife sponsored KITAS, a repatriation or any of the 4 other situation mentionned.

    In other word: Wife sposored and repatriated KITAS holder are not TKA (Tenega Kerja Asing) and CAN NOT BE DELIVERED A WORK PERMIT (IMTA).
    The law don't make any ambiguity about this.
     
  17. PhilippeD

    PhilippeD Member Charter Member Cager

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    However article 61 UU 6/2011 allows anyone included in the scope of "penyatuan keluarga" and "repatriasi" to work for their living and/or provide for the needs of their family.

    Pasal 61 UU 6/2011
    Pemegang Izin Tinggal terbatas sebagaimana dimaksud dalam Pasal 52 huruf e dan huruf f dan pemegang Izin Tinggal Tetap sebagaimana dimaksud dalam Pasal 54 ayat (1) huruf b dan huruf d dapat melakukan pekerjaan dan/atau usaha untuk memenuhi kebutuhan hidup dan/atau keluarganya.

    *the bolded part would be translated as: work for their living and/or provide for the needs of their family

    The "pasal 52" refer to kitas holder sponsored by their wife (e) and their children (f).
    And "pasal 54" refer to KITAP holder sponsored by their wife (b), their children (c) and repatriated KITAD holder (d)

    Pasal 52 UU 6/2011
    Izin Tinggal terbatas diberikan kepada:
    a.Orang Asing yang masuk Wilayah Indonesia dengan Visa tinggal terbatas;
    b. anak yang pada saat lahir di Wilayah Indonesia ayah dan/atau ibunya pemegang Izin Tinggal terbatas;
    c. Orang Asing yang diberikan alih status dari Izin Tinggal kunjungan;
    d. nakhoda, awak kapal, atau tenaga ahli asing di atas kapal laut, alat apung, atau instalasi yang beroperasi di wilayah perairan dan wilayah yurisdiksi Indonesia sesuai dengan ketentuan peraturan perundangundangan;
    e. Orang Asing yang kawin secara sah dengan warga negara Indonesia; atau
    f. anak dari Orang Asing yang kawin secara sah dengan warga negara Indonesia.

    Pasal 54 UU 6/2011
    (1) Izin Tinggal Tetap dapat diberikan kepada:
    a. Orang Asing pemegang Izin Tinggal terbatas sebagai rohaniwan, pekerja, investor, dan lanjut usia;
    b. keluarga karena perkawinan campuran;
    c. suami, istri, dan/atau anak dari Orang Asing pemegang Izin Tinggal Tetap; dan
    d. Orang Asing eks warga negara Indonesia dan eks subjek anak berkewarganegaraan ganda Republik Indonesia.


    For resume, a foreigner with a KITAS/KITAP sponsored by his spouse, their children with a KITAS/KITAP sponsored by their Indonesian mother/father and repatriate holding a KITAP are not allowed to work permit but are allowed to work. Which mean you can work without being regulated by the manpower (depnaker) and have - like the UN Human Right said - free choice of employment as same as any other Indonesian.


    The confusion come from:
    1- A lot of skepticism when the law was release
    2- Total denied of the official to give explanation about the "pasal 61" when the law was release
    3- General lack of knowledge of many immigration officer
    4- Absolutely no regulation for give a frame in which the "pasal 61" can be apply

    But they can not regulate the "pasal 61" as it will be again the UN human right.
    Also the Indoneisan Gov don't want it to be too much wide spread and want keep it as secret as possible.
     
  18. PhilippeD

    PhilippeD Member Charter Member Cager

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    There is where you get confuse, the art 39 UU 6/2011 is very clear about this: if you receive your kitas/kitap under "penyatuan keluarga" (family reunion - KITAS/KITAP ikut istri) you are NOT a TKA.


    Ou si tu préfère:

    C'est la que tu as tord, l'article 39 de a loi UU/6 2011 est très clair a propos de ceci: Si tu recoit uu KITAS/KITAP pour des raison de "penyatuan keluarga" (regroupement familiale - KITAS\KITAP ikut istri) tu n'est PAS un TKA.
     
  19. PhilippeD

    PhilippeD Member Charter Member Cager

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    You should also consider that TKA is not mentionned (to my knowledge) in the immigration law.
    It seem to be a term used only by Manpower (Depnaker) and their respective law.

    Immigration only mention different reason to allow visa.
    For reason of work, family reunion, repatriation, etc...

    If the visa is given for reason of work, you need the related work permit (IMTA) and can't work without it.
    If the visa is given for reason of family reunion or repatriation you CAN NOT have a work permit, but you can work. Their is no law or regulation to my knowledge that frame this right to work.

    And I don't believe they could put restriction to it as per the UN human right they have sign.
     
  20. Om DelOreo

    Om DelOreo New Member

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    Very informative! Thank you Phillippe! Like I wrote before, I have not kept up with the latest news. My life has been consumed with other things.

    Okay, I understand that I can work to support my family, and that Manpower has no right to interfere in my ability to work, nor do I need a permit from them. And, in fact, they cannot give me one. So I can ignore them. That's great, since I really don't like those slimy people.

    But, I assume any laws that dictate requirements, such as UU 13, 2003, are still valid. Is that not true? In it, the need to have a degree related to the job sought is stipulated if I remember correctly.

    Examples:
    A spousal ITAP holder who wishes to teach physics in high school must possess a relevant bachelor's degree. It seems that, whether I'm considered a foreigner or local is irrelevant here - I must have the correct degree.

    If you hold an ITAP and wish to teach your native language (French) in a university, you must have both a doctorate in a related field and a certificate of teaching French. If you're not considered a "TKA" because you have a spousal ITAP, however, then is it correct that the requirement would revert to that for locals, which means you'd need a master's degree in a related field, but no certificate?

    What about outside the education field? Are there requirements from the government? I only possess a computer-related associate's degree, which is less than a bachelor's, but I assume that the government doesn't generally dictate educational requirements. Since I also have university credits beyond that, plus work experience, might I be eligible for an equivalency to a bachelor's degree?



    I'm having trouble finding Peraturan Menteri Ketenagakerjaan Nomor 16 Tahun 2015 tentang Tata Cara Penggunaan Tenaga Kerja Asing. Does someone have a link to it? Is it relevant to a permanent resident like me?

    Thank you to Bad_Azz and jstar for their input, too.
     
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