What is my employer not paying me and what can I do? THR, etc...

Discussion in 'Employment Law' started by Vicissidude, Nov 28, 2018.

  1. Vicissidude

    Vicissidude Active Member Charter Member Cager

    Joined:
    Jul 17, 2016
    Messages:
    198
    Ratings:
    +62
    I've been working for my company, a private school system, for a couple years and just now became aware that THR is very clearly required by law. I receive a monthly salary, all KITAS expenses paid, and private health insurance. That's it. I do not receive THR, end of contract bonus, any flight reimbursement, or monthly housing allowance. I believe how they do things (at least with the foreigners) is we begin receiving an annual "holiday bonus" (THR) in our 5th year of employment. We also receive a pay raise with each 1-year contract if we stay on.

    I searched this forum and (ahem) that other one, and I found several threads but some conflicting feedback on specifics. I also saw referenced that several forum members who were not receiving the required THR and later asked all received it. The threads I found left it open ended or that Nakertrans told the employer to pay, but not in writing, and then basically said the employee had to take it up with the courts.

    My current contract is almost up and I was planning to sign another within the next month, so it's good timing at least. I haven't spoken with my employer yet as I want to first get some legal facts straight. Here's what I want to know/confirm:

    1. The THR laws with Regulation 6 are pretty clear, but can my employer claim that I already receive it over all 12 months in my current salary? I found nothing about THR in my contract so nothing like that has been agreed upon by both parties.
    2. Is my employer required to pay an end-of-contract bonus (uang pesangon) in addition to THR which is also equal to one month salary? If so, is that only when my employment ends, or upon completion of each 1-year contract?
    3. What kind of flight reimbursement, if any, is required? A round trip every year? A one-way ticket when my employment ends?
    4. Are any housing allowances required in addition to monthly salary for expat workers?
    5. Is my employer required to pay for BPJS (national health insurance) in its entirety? They already pay for a private insurance plan, but once the new BPJS requirements were enacted, we got that as well. They are taking 125k from our paychecks, and the contract says they are paying for most of it (I forget the percentage they are supposedly paying, but I think it was over 90%).
    6. Am I entitled to back pay for any of the above that I have not received?

    I would like the laws on hand to cite when I speak with my employer. I'd also like to hear your thoughts on what is reasonable and realistic for me to expect, as well as the next steps if my employer refuses to pay. Thanks in advance!
     
  2. jstar

    jstar Mr. 10,000

    Joined:
    Jul 31, 2016
    Messages:
    2,487
    Ratings:
    +353
    In talking to a family-i-l member who is a HR director in a larger company, I heard the THR (religious holiday bonus) is always separate -so not split up- and that your salary slips also should show that.

    Normally the THR is paid before the holiday of the emplyees’ religious denomination (e.g. Lebaran, Christmas, Imlek) but some companies combine it for all employees to a fixed yearly date. (But then the employer should agree with that in the contract.)

    BPJS is often shared by both. I also heard out that many Mickey Mouse [sic] companies (which can be larger btw, >1000 employees) do ‘officially’ deduct the BPJS from the salaries but their employees are not active members! They don’t get a card or when they present themselves to a hospital they get refused.

    Asking why so many companies don’t seem to follow the rules, I got “since they get away with it”.

    And about filing official complaints etc.; the problem is the sanctions are defined somewhere, but vague and all over the place concerning severity (from written warning to a prohibition to hire employees and even to do business) and thus free for interpretation. So that makes it rather tempting....

    Good luck.
     
  3. jstar

    jstar Mr. 10,000

    Joined:
    Jul 31, 2016
    Messages:
    2,487
    Ratings:
    +353
    Btw, the expats in that particular company get a yearly trip home with the family (business class), and their healthcare insurance provides for checkups etc. in Singapore. But that will depend on the industry and company of course.
     
  4. snpark

    snpark Active Member Cager

    Joined:
    Sep 30, 2016
    Messages:
    981
    Ratings:
    +357
    All depends how much you want to rock the boat, you might win the battle but lose the war, yes it is rightfully yours but is it worth the hassle. You could maybe "mention" it once and see what happens, but push it at your peril.
    BJPS is only about 400-500 anyway a month. Not a huge amount. But worth to get a seperate Int'l western insurance also if you have family, kids, paranoia etc. Usually only a $100 or so for basic coverage
     
  5. Vicissidude

    Vicissidude Active Member Charter Member Cager

    Joined:
    Jul 17, 2016
    Messages:
    198
    Ratings:
    +62
    Thanks for the replies. I'm not too worried about BPJS actually since my employer does already pay for a private healthcare plan in addition to BPJS, and I've used both so they're both legit. I just wanna cover all my bases.

    @jstar What you said about THR seems in line with everything else I've found. I think this one is clear cut and I am definitely owed. Here is the Ministry of Manpower Regulation 6, 2016 regarding current THR requirements in Bahasa Indonesia for anyone interested.

    The most pressing things I now want to get straight before I meet with my boss are my questions 2, 3 and 4 above. I think there may not be any legal requirements for a flight bonus (aside from a one way "repatriation" flight when the employee leaves the company) or housing allowance, but I still don't know.

    Regarding end-of-contract bonus, I found referenced in another thread Indonesian Labor Law No.13 Article 156. I'm unclear if "termination" means the obvious or simply "completion of contract," in other words, if I'm owed one month salary per year at the end of each 1-year contract, or accumulated for a lump sum severance package. Either way, I want to know that I have that coming! Also interesting if you read Article 156 is the appreciation pay.. So if I work for 3 years, it looks like I'm entitled to 5 months' salary bonus (1 month salary for each year, plus 2 months' salary appreciation). I may be misunderstanding this one. Someone please confirm or clarify the above points. Looking your way, @atlantis ;)
     
  6. dafluff

    dafluff
    Moderator Cager

    Joined:
    Jul 13, 2016
    Messages:
    2,645
    Ratings:
    +543
    2) You wouldn't normally get anything. Pesangon, ie. severance pay, is only applicable if the employee is being laid off by the company. Contract employees are not eligible. There is a bit of complication here, because there is a limited time (max 3 years) an employee is allowed to be on a contract (Perjanjian Kerja Waktu Tertentu - PKWT), and then the employee becomes a regular employee. However, this is the case for WNI. Not sure if a KITAS holder could ever be regarded as a regular employee.

    3) The law (UU No 13, 2003) says that the employer shall return the employee to their home country at the end of their work relationship. It is not clear if the end of one contract counts as as "the end of their work relationship" if that contract is extended. I would probably infer from the law that the main purpose of it is to make sure the foreigner gets shipped home at the end of the job, rather than to give yearly return trips to them.

    4) I have not heard of any law requiring or even recommending a housing allowance.

    5) As noted in our BPJS article, premium is shared both by employer and employee. For employees the premium is 5% of monthly salary, up to a salary cap of Rp 8 million. In the private sector, the employer is responsible for 4% and the employee is responsible for 1%.

    The other thing that you haven't mentioned is whether your employer has enrolled in you into BPJS Ketenagakerjaan (Worker's Comp). They should do this if not.
     
  7. Vicissidude

    Vicissidude Active Member Charter Member Cager

    Joined:
    Jul 17, 2016
    Messages:
    198
    Ratings:
    +62
    Thanks for clarifying. Good thing I checked here. So it seems all of these are fairly standard in many contracts for expat teachers but not required.

    I checked my contract and it does say that the employee is responsible for 1% (not that the employer pays most of it like I originally stated). I'll check this one off the grievance list.

    I'm not sure but can check when I speak with my boss.


    So it seems the only thing legally off about my situation is the unpaid THR. Well, that and they never mentioned anything about covering a flight home after I leave the company.
     
  8. Bad_azz

    Bad_azz Well-Known Member Charter Member Cager

    Joined:
    Jul 16, 2016
    Messages:
    2,530
    Ratings:
    +396
    & as your contract is coming up for renewal, now is the time to develop your negotiation skills.
    Think what it would cost them to find someone new - in time and money & hassle.
    Use that to renegotiate your contract. Start higher than you actually would settle for & then you have wriggle room to broker a deal that you and your employer can live with.
    I negotiate stuff ALL the time, I win most & I lose some, but sometimes I get really pleasant surprises too when the offers come in higher than what I would ask for.

    Here's what I would go in with- the salary you have been getting plus a little bit more a month, say 1 million (think of the visa processing fees etc they would have with a newbie)
    health cover- you get that anyway.
    Housing allowance of 75 million a year. Some schools pay double this.
    Reduced fees at school for your own kids if you have any,
    Travel allowance- suggest 2 -4 million a month at the very least it should cover gojek/grab fees. & THR
    Tell them in negotiation that you are willing to waiver the travel fees or cut the housing allowance.
    Salary: you should be getting 40 million or more a month if its a F/T contract position at a decent school.
    & if you are suitably qualified & talented you could well just change schools & get most of what I listed.
     
    Last edited: Nov 29, 2018
  9. Bad_azz

    Bad_azz Well-Known Member Charter Member Cager

    Joined:
    Jul 16, 2016
    Messages:
    2,530
    Ratings:
    +396
    Oops I forgot the flights home- get those written into the contract too- IF you want them, if not use them as a pawn that you are prepared to let go. Maybe barter for shorter haul flights such as to Bali or another holiday destination.
     
  10. HappyMan

    HappyMan Member Charter Member Cager

    Joined:
    Jul 17, 2016
    Messages:
    260
    Ratings:
    +19
    As per the flights home, I'd tend to agree with dafluff, they don't have to pay for the flights unless you actually stop working for them. Still, I have seen places where a partial cost of the flight is given to the employee. Thing is, if you wanted to take a break between contracts for a moth or two, they'd owe you for the flight and they'd need a temporary replacement. Assuming they want to keep you, they are better off giving you half the money and keeping you employed. It turns into a bonus for extending the contract, rather than an end of contract cost.
     
  11. Vicissidude

    Vicissidude Active Member Charter Member Cager

    Joined:
    Jul 17, 2016
    Messages:
    198
    Ratings:
    +62
    @Bad_azz and @HappyMan - Thanks for your input. I just wanted to get clear what is legally required so I could be informed and not say anything stupid or make unreasonable demands in negotiation, but I'm definitely asking for more.

    The other issue that I haven't mentioned is that around the same time I learned about THR being required, I also learned that other native teachers working for the same company in another city already receive most of the benefits we've talked about here. And by most, I mean basically ALL of them. From their first year.

    I spoke with my boss yesterday and told him exactly what I want, and my reasons. I only requested back pay for what the law mandates. Looking at badazz's comment above, my requests were extremely reasonable. I made it clear which requests I'm willing to be flexible on. I should hear back sometime next week.
     
  12. Bad_azz

    Bad_azz Well-Known Member Charter Member Cager

    Joined:
    Jul 16, 2016
    Messages:
    2,530
    Ratings:
    +396
    keep it reasonable, don't get too greedy & be aware of what they can actually afford- you pushing for an extra few million a month might mean them laying off a local teacher cos they can't afford it- so as with all in life find the balance that works best for all.
    Just don't let them make a fortune off YOUR back, without you gaining the returns.
     
  13. Vicissidude

    Vicissidude Active Member Charter Member Cager

    Joined:
    Jul 17, 2016
    Messages:
    198
    Ratings:
    +62
    So a little update... My employers got back to me finally. They denied all my requests, so if I were to stay on, it would be with the existing agreement. If I felt comfortable giving more specifics on this platform, you guys could easily see that people up the ladder are indeed (in BA's words) making a fortune off our backs. Anyway, I plan to look for greener pastures and leave without any drama. I'm confident that I can find something better before long, something with more rewarding working conditions and a more competitive salary package.

    Regarding THR, they maintained that I am not entitled to it, and their reasoning changed every other sentence. First just because I'm a foreigner, then because I'm a contract worker, then because we have semester breaks so I "don't work the full year," and on and on... I calmly explained why each reason they gave me was incorrect and finally just asked that they direct me to the clause in the regulation that excludes me. They pointed out Pasal 5.3 and told me that it says it is up to the employer's discretion (laughable, I mean why have a law that says "but you don't actually have to follow this law" LOL!). I translated it after our meeting, and I'm pretty sure that's the passage that specifies when THR is to be paid, which is before the main holiday of the worker's religion unless otherwise agreed upon by both parties. Am I correct? Is my employer completely full of shit? Is there any kind of "official" English version of Regulation 6?

    If I decided to go to my local Nakertrans, what would I need to bring to make my case?
     
  14. Bad_azz

    Bad_azz Well-Known Member Charter Member Cager

    Joined:
    Jul 16, 2016
    Messages:
    2,530
    Ratings:
    +396
    To be honest Vicissidude, I wouldn't waste my time with the case or nakertrans. All it will do is add hassles & stress to your life that you can just walk away from.
    As you say you can go on to pastures new & do quite nicely- I'd just chalk this one up to a learning experience.
     
  15. snpark

    snpark Active Member Cager

    Joined:
    Sep 30, 2016
    Messages:
    981
    Ratings:
    +357
    Agree, if you can find bigger and better then do it, should not be a problem if you are renewing a contract and decide to leave it legally at the end, so unlikely they will make problems. Do everything politely but firmly (eg EPO, contract end etc) Good luck
     
  16. Vicissidude

    Vicissidude Active Member Charter Member Cager

    Joined:
    Jul 17, 2016
    Messages:
    198
    Ratings:
    +62
    Thanks for your input guys. @snpark I don't anticipate any issues with leaving the company. I've completed my contract after all. @Bad_azz Yes, that's probably the path I'll take. I'd just like to know my options and what to expect so that I can make an informed decision. I also want to know the actual damn law! It seems like valuable knowledge to have moving forward. Otherwise, it wasn't really much of a learning experience after all.

    My boss also sent me screenshots of this article/blog post. The last two sections are confusing me, maybe due to the translation. My employer says this says they can choose to offer it or not. The explanations of the law in the article are very wishy washy and unofficial sounding to me. It's also contrary to the strong statements I've read here and elsewhere, so I really don't know what to think.

    And again, can someone please clarify Passage 5.3 from Regulation 6? Is that concerning if or when THR is paid?

    I greatly appreciate it guys.
     
  17. R Cameron

    R Cameron Active Member Charter Member Cager

    Joined:
    Jul 19, 2016
    Messages:
    421
    Ratings:
    +113
    It seems extremely clear to me that 5.3 is only discussing the timing of when THR is to be paid, and it is saying the terms must be agreed by both the employer and employee in the work contract or (written) company policies.
     
  18. William King

    William King Well-Known Member Charter Member Cager

    Joined:
    Jul 18, 2016
    Messages:
    1,364
    Ratings:
    +267
    An employer quoting a blog post as law.... That's says it all.
     
Loading...

Share This Page