THE RECONSTRUCTION OF LABOR LAW IN FACING FOREIGNWORKER IN THE GLOBALIZATION ERA

Transcription

1 THE RECONSTRUCTION OF LABOR LAW IN FACING FOREIGNWORKER IN THE GLOBALIZATION ERA Rahayu Subekti Lecturer of Law Faculty, Universitas Sebelas Maret Adi Sulistiyono Lecturer of Law Faculty, Universitas Sebelas Maret I Gusti Ayu Ketut Rachmi Handayani Lecturer of Law Faculty, Universitas Sebelas Maret Abstract This research aimed to reconstruct labor law, as the labor law, in this case concerning foreign workers, is urgent to govern specifically recalling that in globalization era, Indonesia as the member of WTO should give the foreign workers the opportunity of coming into Indonesia.Many foreign workers coming into Indonesia resulting in a tighter competition with local workers, so that there should be a regulation related to foreign workers that can protect the Citizens. The reconstruction labor law related to foreign workers is expected to give solution to this problem. This study was a juridical normative law with statute approach. Statute approach is intended to study the legislation and regulation related to the legal problems (issues) encountered. The result of research showed that Labor law has not been able to protect Indonesian workers in controlling foreign workers in globalization era. The protection was given through licensing, limitation and supervision. Meanwhile, the supervision over foreign workers in globalization has not been effective yet as it involves only competent and independent manpower supervisors, while in the term of foreign worker use, there should be a team involving many institutions related to workers. In addition, there should be a firm definition of foreign workers, and people s participation in supervising the foreign workers. This study recommended the need for reconstruction of labor law related to: firstly the amendment to law by confirming the definition of foreign workers; secondly the supervisor of manpower particularly for the foreign workers should be changed into supervising team involving such institutions as labor and Immigration Service and BPPT dealing with foreign workers specifically, thirdly People participation should be increased in foreign worker supervision. Keywords: Foreign worker, globalization, reconstruction of labor law A. Introduction Globalization development encourages the movement of capital and investment flow to many countries in the world, and population migration or worker movement between countries. The movement of workers occurs due to investment made by other countries generally needing direct overseeing by 451

2 owner/investor. The effect of globalization in which Indonesia becomes WTO member should give foreign workers the opportunity of coming in. For that reason, foreign workers come into Indonesia. The Republic of Indonesia state s objective, as included in the fourth paragraph of Preamble of 1945 Constitution Subsequent thereto, to form a government of the state of Indonesia which shall protect all the people of Indonesia and all the independence and the land that has been struggled for, and to improve public welfare, to educate the life of the people and to participate toward the establishment of a world order based on freedom, perpetual peace and social justice, are as follows: 1. Protection Function, State protects all the people of Indonesia and all the independence and the land that has been struggled for; 2. Welfare Function, State obligatorily improves public welfare; 3. Educational Function, State obligatorily educates the life of the people; 4. Peacefulness Function, State obligatorily creates peace in living within state, society, both at home and abroad. 1 In line with the state of Indonesia s objective, as included in the Preamble of UUD 1945 (the 1945 Constitution), the scholars mention that those objectives reflect on the type of welfare state 2. Undang-Undang Dasar 1945 (the 1945 Constitution) ensures the rights of every citizen to obtain job as included in the Article 27 clause (2) mentioning that: Every citizen shall have the right to work and to earn a humane livelihood. In other words, reasonable job and standard of life are the rights of every citizen as one sign of humanness. Job opportunity is a means 1 Lalu Husni, 2010, Hukum Ketenagakerjaan Indonesia Edisi revisi, PT Grafindo Persada Jakarta , Teori Negara Hukum, An Idea that government is prohibited from intervening with the citizens affairs in both social and economic sectors as suggested by legal state concept that has shifted to a new idea, that government should be responsible for public welfare. Government may not be passive or serve not only as safeguard in social area but should be active in taking some attempts of building the public welfare by means of organizing economic and social life 452

3 needed to earn living in order to get reasonable life. Reasonable life is defined as the ability of fulfilling basic needs such as food, clothing and shelter. 3 It is then confirmed in Article 8 D of 1945 Constitution: Every person shall have the right to work and to receive fair and proper remuneration and treatment in employment. Article 28 I clause (4) confirms that The protection, advancement, upholding and fulfillment of human rights are the responsibility of the state, especially the government. From the elaboration above, it can be summarized that one of state s constitutional obligation is to provide job opportunity for its citizen, as working is the part of citizens human rights in the attempt of maintaining their life existence. This duty of providing job opportunity is not easy to government as it faces some manpower problems and globalization. 4 Globalization issue is so important as it has reformed the order of law, economy, politics, and public policy of state, including Indonesia. Indonesia s entry into globalization process today is characterized with a series of policies focusing on opening domestic economy in the attempt of expanding and deepening integration into international market. 5 The factors attracting foreign investors to invest in developing countries are low wage, weak implementation of manpower legislation, work stability guarantee (without bribe) and etc. These become comparative advantages to developing countries, including Indonesia. It affects further the manpower law in Indonesia: 1. Free market, on the one hand, creates a situation in which developing countries are compelled to use low wage and weak implementation of manpower law as the comparative advantages to attract investor. 3 Haryanto Hanif, Hak dan Kewajiban sebagai warga Negara Indonesia Pasal 27 ayat 2 UUD 1945, co.id/2015/03/hak-dan-kewajiban-sebagai-warganegara.html 4 Jamal wiwoho 2016, Materi Hukum Dan Globalisasi. Globalization is a social and cultural process starting with the interaction of a nation with another. Globalization can be defined as an interdependency condition in international network involving distribution transportation, communication and economy beyond the State territorial borderline. 5 Zul Fadli, Problematika Globalisasi Hukum di Indonesia: Dari Perjanjian Internasional menjadi Hukum Nasional, Jurnal Supremasi Hukum, Vol. 2, No. 1, June

4 2. Developed countries pioneering free trade suppress the developing countries not to use low wage and weak implementation of manpower law as comparative advantage by attempting to lead them to implement standard manpower law as specified by ILO or to approve the connection of standard manpower to international trade. 3. Free market also requires the government to be a just referee rather than direct player (performer) in economic area, including in manpower area. These three points prove the dilemma the government faces in the attempt of enforcing labor law on the one hand and of attracting foreign investor, on the other hand. 6 The enactment of free market has been initiated through Masyarakat Ekonomi ASEAN (MEA = ASEAN Economic Community) impacting on the access to economic and human resources around South East Asia. At that time, product, service and labor are competing to come in and to seize the Indonesian consumers and employers attention. Prasetyo says that the presence of free market for product and service leads the foreign workers to come into and to work Indonesia easily so that the competition is getting tighter in manpower area. 7 In Indonesia, foreigner is divided into two: a. Newcomer foreigners: those getting admission license by acquiring the right to stay in Indonesia in certain period of time, called visa holder foreign labor. b. Settler foreigners: those allowed staying permanently in Indonesia and getting settling license with demographic recommendation called settler foreign labor or domestic foreign labor. 8 6 Agus Midah, 2005, Peran serikat Pekerja / serikat Buruh menghadapi era globalisasi, Karya Ilmiah, USU Repository 7 Prasetyo Bagus, 2014, Menilik kesiapan Dunia Ketenagakerjaan Indonesia Menghadapi MEA, Jurnal Rechsvinding Online, Media Pembinaan Hukum Nasional, 02 June 2014, pp Dirjen Binapenta, 1981, Petunjuk tentang izin mempekerjakan / kerja Tenaga kerja asinggdi Indonesia hlm 1 454

5 Considering this, the work done by foreign workers is divided into two, as well: 1) The work done by foreigners having job relation to employers or in other words, the foreigners employed by others or employers. 2) Free or independent job and employers standing alone. 9 Data of Dirjen Binapenta (Directorate General of Labor Building, Placement and Job Opportunity Expansion) of Indonesian Manpower Ministry shows that there are foreign workers working in Indonesia in The largest number of foreign workers (thereafter called TKAs) comes from China People Republic, followed with Japan, South Korea and India. From all ASEAN countries, the largest number of TKAs comes from Malaysia, Thailand and Philippine. Beyond Asian areas, a substantial number of foreign workers come from United State of America, Australia and United Kingdom. The distribution of TKAs by origin country can be seen in table below: 10 Table 1 DISTRIBUTION OF FOREIGN WORKERS BY ORIGIN COUNTRY NO Country China 16,153 16,731 14,371 15,341 2 Japan 10,935 12,803 11,081 10,183 3 South Korea 6,505 8,190 9,075 7,678 4 India 4,974 5,923 6,047 4,680 5 Malaysia 4,938 5,330 4,962 3,779 6 United State of 4,483 4,644 2,197 2,497 America 7 Thailand 3,863 4,146 1, Australia 3,834 3,644 3,376 2,503 9 Philippines 3,816 3,588 2,601 2, United Kingdom 3,144 3,292 2,631 2, Others 14,662 4,136 10,775 12,401 TOTAL 77,307 72, ,604 9 AbdulRachmad Budiono,1995, Hukum Perburuhan di Indonesia, RajagrapindoPersada, Jakarta 10 Ahmad Syaifudin, 2015,Politik Bahasa Untuk Tenaga Kerja Asing Di Indonesia Pada Era Pasar Bebas, National Seminar of PIBSI XXXVII on October 2,

6 The enactment of ASEAN Economic Community (MEA) in 2016 and the invasion of Foreign workers coming from China have triggered the increasing number of foreign workers in Indonesia. In addition, the enactment of visa exemption to 160 countries increases the number of illegal foreign workers in homeland. Actually foreign workers working in Indonesia should have certain skill or expertise rather than blue-collar workers thereby not putting out the job opportunity for the local workers. However, many employers in local areas elicit foreign workers with the reason of low wage. The entry of foreign workers to Indonesia is the threat against Indonesians. Amid the problems of high unemployment rate and limited job opportunity, foreign workers, particularly those coming from China instead come to Indonesia in throng to earn living. More severely, they are largely illegal foreign workers. 11 There are at least three factors leading the illegal foreign workers to come into Indonesia: 1) They come into Indonesia illegally through 200 transit harbors or border areas not safeguarded tightly by apparatuses and Directorate General of Immigration. Poor infrastructure condition and inadequate number of apparatus and immigration officers in border areas lead the illegal workers to come into Indonesia easily through those channels. 2) They work illegally by utilizing tourist visa and then work in their country-originated companies. The number of manpower supervisors in local area is very small. The Manpower Minister s stipulation is unclear as well. Manpower Minister only seeks an excuse based on the formal data of Immigration Directorate General. However, Manpower Minister does not see the fact in the field that many China workers utilize tourist visa and have overstayed. 11 Angelina Larasati, 2016, 3 Faktor ini jadi alasan masuknya tenaga kerja asing illegal ke Indonesia, 456

7 3) They utilize the weak rule post-withdrawal of Article 26 clause (1) letter d of Permenakertrans 12 of 2013 about the rule obliging the foreign workers to speak Bahasa Indonesia. This rule has been removed by Permenaker No16 of The provision about the company s obligation to recruit 10 local workers when it employs one foreign workers (TKA) in Article 3 clause 1 of Permenaker Number 16 of 2015 has been also removed with Permenaker No.35 of 2015 about the Procedure of Foreign Worker Employment. 12 B. Problem Statement How is the reconstruction of manpower law in dealing with foreign workers in globalization area? C. Reference 1. Globalization The word Globalization is a combination of two words: global meaning going worldwide, and lization meaning process. Some international and national scholars suggest the definition of globalization. Anthony Giddens defines globalization as the intensification of social relation globally thereby connecting the events occurring in one location and those in another and resulting in the change in both of them, while Martin Albrow defines globalization as entire process of population connected to a single world community, global community. Malcom Waters defines globalization as a social process impacting on less important geographic limitation in social-cultural condition, as embodied into people s consciousness. Selo Somardjan suggests that globalization is a process of creating organization and communication system between communities throughout world to follow certain same system and norms. Achmad Suparman states that globalization is a process making an object or 12 Ibid, angelina 457

8 behavior the characteristics of each individual in the world without territorial border. 13 Globalization is created due to many factors affecting: the State s policy to connect to and to establish cooperation with other countries, international economic system, population migration to many countries, science and technology advance, rapid development of transnational companies. As time progresses, globalization develops affected by the change of global politics as suggested by Anthony Giddens 14 : a. The collapse of Soviet Union in 1991 and the fall of soviet-model communism. Since the collapse of Soviet Union, the states in former Soviet block such as Russia, Poland, Republic of Czech, and etc moved following the western political and economic system. b. The emergence of International and regional government mechanism c. The emergence of Intergovernmental organization/igos) and International non-governmental organization/ingos). These international organization encourages the communication and interaction between governments or between inter-country communities. It encourages the improvement of globalization. In addition to the matters above, globalization is also affected by rapid and broad information flow. The rapid development of information and communication technology encourages each individual to connect to another quickly. In addition, technology advance also enables individual to access information quickly, either at home or abroad. The rapid development of transnational companies is also the factor causing the 13 Aang Imam, Apa itu Globalisasi, on Wahyuni Tri Prasetyani, Faktor Penyebab Terjadinya Globalisasi on

9 development of globalization. Transnational company is the one producing product or service in more than one country. 15 The factors causing globalization are: The development of information and communication technology contributing to facilitating inter-country economic transaction, International economic cooperation facilitating the establishment of close relationship between countries, and the advanced science in transportation technology facilitating the transportation service and the delivery of product abroad. 2. Foreign workers Foreign worker is defined as every non-indonesian citizen can work both in and out of work contract, in order to produce service or product to fulfill the people s need. 16 The definition of foreign workers viewed from law aspects (Authentic Definition), particularly Article 1 number 13 of Law No.13 of 2013 about Manpower, is the foreigners holding visa intended to work Indonesian areas. 3. Supervision The word supervision or pengawasan comes from Indonesian word awas meaning safeguarding. The term pengawasan is known in management and administration sciences as one element of management. 17 The word pengawasan is called controlling in English, translated into supervisionand controlling, so that the term controlling is broader than supervision. However scholars have equated the definition of controlling and that of supervision. So supervision is included into controlling. 18 Supervision according to scholars (as cited by Rahardjo) such as Victor M Situmorang and Jusuf Juhir, is any effort and action in the 15 Wahyuni Tri Prasetyani, Faktor Penyebab Terjadinya Globalisasi accessed on Abdul Khakim, 2009, Dasar-Dasar Hukum Ketenagakerjaan Indonesia, Citra Aditya Bakti, Bandung, p Anton M. Moeliono,dkk, Kamus Umum Bahasa Indonesia, Balai Pustaka, Jakarta, 1995 p Victor M Situmorang dan Jusuf Juhir, Aspek Hukum Pengawasan Melekat Dalam Lingkungan Aparatur Pemerintah, Rineka Cipta, Jakarta, 1994, p

10 attempt of finding out in what extent is the implementation of duty consistent with the stipulation and target to be achieved, while Sondang P. Siagian defines supervision as a process of observing the implementation of each organizational activity to ensure that all works being done run as planned. Djamaluddin Tanjung and Supardan define supervision as one of management function to ensure that the work implementation runs well according to the planned standard Reconstruction Some scholars suggest the definition of reconstruction. Yusuf Qardhawi states that reconstruction includes three important points: firstly maintaining the core of original construction by maintaining its disposition and characteristic; secondly, improving the collapse things and reinforcing the weak principles; and thirdly including some reforms without changing the original disposition and characteristics. From this, it can be understood that reform is not featuring an actually new thing, but reconstructing something existing and then applying it to the present reality. 20 B.N Marbun defines reconstruction simply as rearranging or representing materials existing and reorganizing them into the original ones. 21 From the definition above, it can be concluded that reconstruction in this research is defined as reforming system or form, or redesigning the Manpower Law related to the regulation of foreign workers. D. Analysis And Discussion Indonesia should deal with liberalization invasion, particularly in service area pertaining to the ability of preparing human resource quality as the workers in order to be competitive in local and international job market. Human resource quality aspect should be the central point. In addition, the 19 Rahardjo Adisasmita, 2011, Pengelolaan Pendapatan & Anggaran Daerah, Penerbit Graha Ilmu, Yogyakarta, p Yusuf Qardhawi dalam Problematika Rekonstruksi Ushul Fiqih, 2014 Al-Fiqh Al- Islâmî bayn Al-Ashâlah wa At-Tajdîd, Tasikmalaya, dalam 21 B.N. Marbun, 1996, Kamus Politik, Pustaka Sinar Harapan, Jakarta, p.469. in 460

11 regulation in legislation sector should be maximized to create better protection and supervision for to foreign workers. In dealing with free job market wave, Indonesia should take strategic measures, including arranging the infrastructure to develop Indonesian human resource quality. It can be done by means of developing standard competency, education, and training based on independent and credible competency, and harmonization of regulation between institutions. Regarding this, Indonesia should develop grand strategy immediately in order to deal with job market globalization. Indonesian unpreparedness in strengthening infrastructure and its institution will make Indonesia the object of job market globalization and the fertile land for foreign workers. 22 Foreign workers have been a common phenomenon in the development of science and technology; therefore the analysis on the need for workers with competency in certain area becomes the main reason of employing Foreign Workers. The regulation of foreign workers viewed from legal aspect of manpower is intended to ensure and to give Indonesian citizens the fair job opportunity in many jobs and levels. Thus, in employing foreign workers in Indonesia, the tight mechanism and procedure should be implemented starting from selection and licensing to supervision or employment of foreign workers. Basically Indonesia has ratified The final act Uruguay Round (an agreement of World Trade Organization establishment through Law No.7 of 1994). Considering such the condition, Indonesia has included the provisions in WTO into Indonesian positive law. The part of the final act is General Agreement on trade of services (GATS) governing the liberalization of service trade in the environment of WTO members. In addition, Law No.13 of 2003 about Manpower, particularly governing the placement of foreign 22 Agus Midah, 2010, Dinamika dan kajian teori Hukum ketenagakerjaan Indonesia, Penerbit Ghalia Indonesia, Bogor 461

12 workers (TKAs) in Indonesia, is related to service (worker) trade in Indonesia. 23 As the consequence of Indonesia s commitment to be the members of World Trade Organization (WTO), Indonesia should open its market to the procurement of product and service from other member states of World Trade Organization (WTO). Indonesia no longer closes itself from the entry of foreign product and service to be traded in Indonesia. When we think specifically of foreign service trading, the market access of which is opened, Indonesia should be willing to be market of foreign service trading, in addition to be service traders in foreign countries. The most potential service trading forms in Indonesia to be entered into by foreign service trader are skill and expertise traders called foreign workers. The role of government in dealing with manpower problem, particularly due to globalization is to intervene with the market competition. Friedman explaining the role of State in modern State concept: First as protector, secondly as disposer of social services, thirdlyas industrial manager, fourthly as economic controller and fifthly as arbitrator. 24 From Friedman s argument, it can be concluded that it is justifiable when government implements the principles of modern state by participating as economic controller. In line with this, Pratama Raharja explains the objective of government s intervention as follows: Ensuring the realization of equal right for every individual and avoiding the exploitation. 2. Maintaining the economy to grow and develop regularly and stably. 3. Supervising the activities of large companies that can influence the market, to prevent them from conducting adverse monopoly practices. 23 Frankiano B Randang, Kesiapan Tenaga Kerja Indonesia Dalam Menghadapi Persaingan dengan tenaga kerja asing, Servanda Jurnal Ilmiah Hukum, Volume 5 No.1, January 2011, ISSN Catharhina Dewi, Dimensi Baru Peran Pemerintah dalam mengatasi Masalah Ketenagakerjaan Melalui Pembangunan Hukum Di Indonesia., Jurnal Hukum Pro Justitia, July 2006, Volume 24 No Pratama Rahardja 2002, Pengantar Ilmu Ekonomi (Mikro Ekonomi dan Makro Ekonomi ) Lembaga penerbitan Fakultas Ekonomi Universitas Indonesia. p

13 4. Providing public good to improve public welfare. 5. Controlling the externality of economic activity that can harm the public. This argument confirms the probability of government s participation in economic problem, particularly resulting in the manpower problem. Besides Friedman, Keynes also suggests that in the combination of state and market effect, state can take strategic action for the sake of national interest. 26 In Indonesian areas, the activity of Foreign Workers (TKAs) is supervised by Manpower Service as governed in Law No.13 of 2003 about manpower and the Manpower Minister Regulation No.16 of 2015 about the Procedure of employing Foreign Workers, constituting the government intervention to govern the workers. Manpower Minister, M. Hanif Dhakiri determined three pillars of manpower that should be built around the MEA: firstly, the improvement of Indonesian workers (TKIs ) competency and certification, secondly the placement of formal-sector labor, and thirdly foreign worker management starting from controlling to repressive action. 27 The government s intervention in foreign workers area can be seen in the Law No. 13 o f 2003 about Manpower governing the employment of foreign workers in Chapter VIII Articles The regulation starts from the obligation of job giver employing foreign workers to get written license; having the plan of employing foreign workers containing the reason of position type and period of foreign worker employment, the obligation of designating Indonesian workers to assist the foreign workers to the obligation of deporting the foreign workers to their origin country after the end of work contract. Considering the Stipulation above, it can be concluded that Indonesian manpower law provide fundamental provision in putting the Foreign Workers in Indonesia, as explained below: 26 Budi Winarno,2014, Dinamika Isu- Isu Global Kontemporer, CAPS Center Of Academic Publishing Services, Yogyakarta 27 ADY/MYS,2015, Inilah Fokus Pengawasan TKA Jelang MEA, m.hukumonline.com, June 3, 2015 accessed on March 1,

14 1. Every job giver employing the foreign workers should have written license from minister or official designated, except for the foreign countries representative employing foreign workers ad diplomatic and consulate need no license. 2. The individual job giver (provider) is prohibited from employing foreign workers. 3. Foreign workers can be employed in Indonesia only in the work contract for certain position and period. 4. Job provider employing foreign workers should have foreign worker employing plan legalized by minister. 28 The objectives of regulation concerning Foreign workers, viewed from legal aspect of manpower, are basically to ensure and to give the Indonesian citizens the fair job employment in many areas and levels. Thus, in employing Foreign Workers in Indonesia, the tight mechanism and procedure should be taken from selection and licensing procedure to supervision. Furthermore, to meet the need for national job market particularly in filling in the vacuum of skill and competency in certain area that cannot be covered by Indonesian workers, foreign workers can be employed in Indonesia as long as in work contract. The employment of foreign workers is the part of an attempt of improving investment and economic openness today, and the foreign workers, Indonesian people are expected not to be worry because Indonesia has a clear foreign worker controlling and supervising system. 29 Controlling derives from the word control, meaning directing, improving the misdirected activity and getting it into the correct direction. However, some scholars do not agree with the equation of term controlling to supervision, as its definition is broader than supervision stating that supervision is only an activity of supervising only and seeing something thoroughly and reporting the result of supervising activity, while controlling 28 Agus Midah, 2010, Dinamika dan kajian teori Hukum ketenagakerjaan Indonesia, Penerbit Ghalia Indonesia, Bogor 29 Maruli A Hasoloan, 2016, Plt Dirjen Binwasnaker dan K3 Kementerian ketenagakerjaan, dalam nusakini.com accessed on

15 is to conduct controlling activity, driving, improving, and getting into correct direction, in addition conducting supervision. 30 The from of controlling is the application of many Foreign Worker employment regulations such as the stipulations governed in Law No. 13 of 2003 about Manpower and RI s Manpower Minister Regulation Number 16 of 2015 about the employment of foreign workers. Considering Article 36 of RI s Manpower Minister Regulation Number 16 of 2015 about the employment of foreign workers: a) Having education corresponding to the requirement of position to be occupied by foreign workers, b) Having competency certificate or job experience corresponding to the position occupied by the workers at least more than 5 years., c) Making statement of the obligation to transfer its skill to Indonesian assistant workers proved with the report of short course implementation, d) Having NPWP (Tax payer Number) for foreign workers who have worked for more than 6 months, e) Having insurance policy document in Indonesian legal insurance, and f) Participation of national social guarantee for foreign workers working for more than 6 months. Foreign workers may not occupy prohibited job position. The prohibited job position is governed in Manpower and Transmigration Minister of Republic of Indonesia s Decree No. 40 of 2013 about Certain Positions prohibited from being occupied by Foreign Workers. There are 19 job positions prohibited for foreign workers: personnel director, industrial relation manager, personnel manager, personnel development supervisor, personnel recruitment supervisor, personnel placement supervisor, employee career building supervisor, personnel business arranger, office chief executive, personnel and career development expert, personnel specialist, career advisor, worker advisor, position guiding and counseling, worker intermediary, personnel training administration, personnel interviewer, position analyst, and personnel work safety organizer. Those positions govern the procurement and placement of workers, payroll and wage, and 30 Ni Matul Huda, 2009, Hukum Pemerintahan Daerah, Nusa Media, Bandung 465

16 compensation and social security. In addition, they also govern the personnel controlling system, work relation termination process, education and training, and career development. The release of Minister s Decree No.40 of 2012 about Certain Positions Prohibited from being occupied by Foreign Workers is intended to confirm the border of foreign workers employment in Indonesia and to protect Indonesian workers. 31 Controlling is conducted with certain position, at certain time, and by prioritizing Indonesian workers. Certain position rule for foreign workers proves 32 that State prioritizes domestic workers more. It is supported with the obligation of assistance; therefore it will be a part of transfer of technology and transfer of knowledge from foreign workers to Indonesian workers. Foreign Workers Employing Plan (RPTKA) is one prior document that should be prepared by job provider, containing the plan of foreign workers employing plan in certain position for certain period of time and should be legalized by minister or designated official. This RPTKA is useful to be the basis for obtaining foreign worker employing license (IMTA). The use of Foreign Workers is conducted by TKA provider in work relation for certain position and time. Every job provider obligatorily prioritizes the employment of Indonesian workers in all available positions. It includes, based on Article 4 of Manpower Minister s Regulation No.16 of 2015: a) Government institution, b) Foreign countries representative; c) International bodies d) Foreign trade representative office, foreign company representative office, and foreign news office conducting activity in Indonesia. e) Foreign private companies running business in Indonesia, f) Legal bodies established based on Indonesian law or foreign legal bodies enlisted in the authorized institution.g) Social, religious, education, and cultural institutions, and h) Impresariat service business 31 Farah Faadilah Wara,2016, Problematika Tenaga Kerja Asing di Indonesia, harianhaluan.com 32 Maruli A Hasoloan, 2016, Plt Dirjen Binwasnaker dan K3 Kementerian ketenagakerjaan, in nusakini.com access on l

17 Job provider for TKAs that will employ TKAs should have RPTKA legalized by minister or officials designated. RPTKA can be given for maximally 5 years and can be extended for the same period of time. Meanwhile, the legalization of Foreign Workers Employing Plan can be done by the following officials: 1. Directorate General for applying for the employment of more than 50 (fifty) foreign workers. 2. Director for applying for the employment of more than 50 (fifty) foreign workers. The intended legalization of Foreign Workers Employing Plan contains: a) Reason of employing Foreign Workers, b) Position and/or status of foreign workers, c) Wage/Salary of foreign workers, d) Number of foreign workers, e) The period of foreign workers employment, f) The number of Indonesian workers designated as assistant, g) Number of TKI (Indonesian Workers) employed. The application for RPTKA extension should enclose or upload the following: A) Reason of using Foreign Workers, b) Form of Foreign Workers Employment Plan that has been filled in, c) Domicile recommendation of company from local government, d) Evidence of manpower reporting obligation still prevailing according to Law No.7 of 1981, e) Report on the realization of education and training implementation in the attempt of transferring technology and transferring skill by enclosing training certificate, f) Decision of Foreign Workers Employing Plan still prevailing, g) License of employing Foreign Workers still prevailing, h) Evidence of DKP-TKA payment or IMTA extension retribution, i) Recommendation of position to be occupied by TKA from technical institution corresponding to the provision of legislation. The limitation of Foreign Workers Employment contained in Permenakertrans No.16 of 2015: a) TKA employment for emergency and urgent job, b) TKA employment for free economic and trading and 467

18 harbor areas, c) TKA employment for water territory, d) TKA employment for imperiat service, e) TKA employment for Sing/karaoke guidelicensing 33 plays an important role administratively as it allows the prohibited matters in the fulfillment of certain conditions. Foreign Worker employing license or IMTA is the next measure after job provider get legalization of Foreign Worker Employment Plan. Every job provider for foreign workers obligatorily has IMTA published by Director, IMTA applies as well to TKA occupying the position of board of directors members, commissioner boar member or builder member, administrator member, supervisor member domiciling in foreign countries. To obtain IMTA, job provider for foreign workers (TKA) obligatorily files the application only to Director by uploading: a) DKP-TKA payment evidence through governmental bank designated by Minister, b) Decision of RPTKA legalization, c) Passport of TKA to be employed, d) Photograph of foreign workers in 4x 6 cm dimension.e) Assistant Indonesian Workers Designation Letter, f) Having education consistent with the position to be occupied by TKA, g) Having competency certificate or having job experience corresponding to the position to be occupied by foreign workers for at least 5 years, h) Draft working contract, i) Insurance policy in Indonesian legal insurance, j) Recommendation from authorized institution when necessary for foreign workers to be employed by job provider for foreign workers. IMTA is given for maximally 1 year and can be extended corresponding to Minister s Decision about position that can be occupied by foreign workers or RPTKA. IMTA will be the basic of filing the application for: 33 Regarding the definition of licensing in legal terminology dictionary, license is defined as allowance/permission from government required for the deed generally not considered as something unexpected at all. Ateng Syafrudin as cited by HR, stated that license aims to and is defined to remove obstacle, to changing something prohibited into the allowed one. Meanwhile, according to Sjahran Basah, license is the one-facet state administration law deed applying regulation in concreto based on requirement and procedure as specified in legislation 468

19 b) Publishing visa approval, b) Providing and extending limited stay license, c) Changing status of visit stay license into ITAS, d) Changing status of ITAS into permanent stay license (ITAP), e) Extending ITAP. Article 36 of Permenaker No.16 of 2015 requires the Foreign Workers Precondition as follows: (1) Foreign workers employed by job provider for foreign workers should obligatorily meet the following requirements: a. Having education consistent with the requirement of position to be occupied by foreign workers. b. Having competency certificate or having job experience corresponding to the position to be occupied by foreign workers for at least 5 years. c. Making statement of the obligation to transfer skill to Indonesian assistant workers as proved with report on education and training implementation. d. Having Taxpayer Number for foreign workers who have worked for more than 6 (six months). e. Having insurance policy document in Indonesian legal insurance company f. Affiliation with national social security for foreign workers who have worked for more than 6 (six) years. Considering the elaboration above, there should be more effective supervision. The implementation of manpower supervision is the important element in employing workers, either foreign or local workers, as the attempt of enforcing the manpower law comprehensively, to both manpower institution as the organizer of supervision and to the company following its workers from their early employment. The presence of foreign workers in Indonesia is governed with Articles of Law No.13 of 2003 about Manpower, Manpower and Transmigration Minister s Regulation (Permenakertrans) No.02/Men/2008 about Procedure of Governing Foreign Workers, PP No.21/2010 about manpower supervision, PP No.31 of 1994 about Supervision of Foreigners and Articles of Law No.6 of 469

20 2011 about immigration and instruction of implementation of Immigration Directorate General No. F-338.IL of 1995 about Form and Procedure of Supervising Foreigners. Nevertheless, the supervision over foreign workers still seems to be limited, thereby resulting in negative excess in the term of national economic security and resilience. The definition of Manpower Supervision Implementation is governed in Article 1 letter 32 of Law No. 13 of 2003 about Manpower; manpower supervision is the activity of supervising and enforcing the implementation of legislation in manpower sector. The implementation of manpower supervision was conducted to oversee the compliance with Manpower Legislation, operationally conducted by the officers of Manpower Service. The implementation of supervision is intended: 1) To implement the manpower legislation, 2) To give technical information and advice to employers or administrators and or workers about anything that can ensure the effectiveness implementation of manpower legislation about work relation and manpower condition in broad sense, 3) To collect data and informative material to develop and to accomplish the new manpower legislation. Article 176 of Law No.13 of 2003 about Manpower mentions that the manpower supervision is conducted by a competent and independent manpower supervisor to ensure the implementation of manpower legislation. 34 Similarly, the employment of foreign workers in companies need the supervision of legislation implementation related to the preconditions to be fulfilled. The mechanism of Foreign Worker supervision used in Indonesia is as follows: 1. Preventive educative supervision involving socialization, technical guidance of the implementation of foreign workers employment, and building to foreign workers user companies, 34 Pasal i76 UU No. 13 Tahun 2003 tentang ketenagakerjaan 470

21 2. Non-justice persuasive supervision involving the investigation on the infringement of foreign worker employment either proactively or responsively based on the report from public. 3. Pro-justice repressive supervision involving investigation over the infringement of foreign workers employment. The supervision can be done periodically, specifically, and incidentally and responsively. 35 In implementing the supervision, there are some factors inhibiting the implementation of supervision: 1) The number of worker supervisor in Indonesia is generally still relatively small. Based on data of Kemenakertrans (Manpower and Transportation Ministry), totally there are 2384 worker supervisors in Indonesia with216,547 companies to be supervised. It means that 1 supervisor should deal with 90 companies. For example 36 : Cianjur currently has 2 manpower supervisors, constituting local supervisor the authority of which is pulled to West Java Province. Such the number is very inadequate to supervise companies in Cianjur. Disnakertrans (Manpower and Transportation Service) notes that there are 828 small-, medium-, and large-enterprises (companies). The ratio is that 1 personnel should supervise 414 companies annually. As the result of manpower supervision, the supervision for wage, moreover normative right for foreign workers becomes more difficult to do because the duty is not only to find out the number but also other thing in detail. Similarly, according to the Chairperson of Manpower and Transportation Service for South Borneo (Kalimantan Selatan), there are 7 regencies in this area having no manpower supervisor: tanah Bumbu, Barito Kuala, Hulu sungaiutara Hulu sungai selatan, Tanah Laut, Balangan, and Banjar. Similar condition is found in Sukabumi city until 35 Nusakini.com, 2017, Mekanisme pengendalian dan pengawasan Penggunaan TKA oleh pengawas ketenagakerjaan, accessed on Ahmad Ubaidilah ( Kepala Perlindungan Tenaga Kerja Luar Negeri Disnakertrans Kabupaten Cianjur),2017, Pengawasan Tenaga Kerja Asing Sulit Karena Kurang Tenaga Kerja, http//m.patas.id/politika/eksekutif/2017/01/13/pengawasan-tka-sulit-karena-kurang-tenaga-kerjahtml?fdx_switcher=true, accessed on March

22 today having no PPNS (Civil Servant Investigator) in manpower area, the existence of which is very important to supervise manpower problem. 37 2) Limited fund also inhibits the achievement of foreign workers supervision. Executive Director of Manpower Service for Pelalawan, Riau, said that due to limited budget, they can monitor the foreign workers license in only some companies in their area. They are often dependent on only the report from companies employing foreign workers, as there is no fund for going directly to some places. They recognize that there is only 1 company giving report, while the others do not do so. In Samarinda, limited fund impacts on the limited infrastructure. It of course inhibit the implementation of duty to supervising foreign workers, while in Samarinda, due to the broad work area of immigration office needs sophisticated monitoring and communicating media and transportation vehicles such as helicopter and speedboat to monitor the activity of foreign workers. 3) Inadequate cooperation between government institution and community. In this case, the supervision of foreign workers becomes divided regarding foreign worker license dealt with by BPPT (Integrated Licensing Service Agency), foreign worker registration by Disnakertrans. Immigration Officer supervises the infringement. Meanwhile stay license is dealt with by local government. Another factor exacerbating this condition is the application of local autonomy constituting one factor leading to an ineffective implementation of manpower implementation, particularly in disconnected manpower sector. 4) The role of public as one stakeholder in supervising the foreign workers is still considered as inadequate. Many people tend to be closed and uncaring about the infringement of immigration, for example in the case of overstaying foreign workers Diaz Hendropriyono, 2015, Pengawasan Tenaga Kerja Asing, Kompasiana, tenaga =kerja-asing-5529c2cof17e617123d23ab 38 Diaz Hendropriyono, 2015, Pengawasan Tenaga Kerja Asing, Kompasiana, tenaga =kerja-asing-5529c2cof17e617123d23ab 472

23 E. Conclusion and recommendation 1. Conclusion Labor law in controlling foreign workers has not been able to protect Indonesian workers in globalization era. The protection is conducted through licensing, limitation and supervision. The supervision of foreign workers has not been effective in globalization era as it involves the competent and independent labor supervising officers only, while the employment of foreign workers involves many institutions. In addition, the definition of foreign workers is less obvious and the public is involved inadequately in supervision. 2. Recommendation There should be a reconstruction of labor law related to: firstly, the reform to confirm the definition of foreign workers, secondly specific manpower supervision for foreign workers is changed into supervisor team involving many institutions such as labor, Immigration Services, and BPPT dealing with foreign workers specifically, and thirdly, there should be public participation in the supervision of foreign workers. References Aang Imam, Apa itu Globalisasi, diakses tanggal AgusMidah, 2010, Dinamika dan kajian teori Hukum ketenagakerjaan Indonesia, Penerbit Ghalia Indonesia, Bogor AbdulRachmad Budiono, 1995, Hukum Perburuhan di Indonesia, Rajagrapindo Persada, Jakarta ADY/MYS, 2015, Inilah Fokus Pengawasan TKA Jelang MEA, m.hukumonline.com, 3 Juni 2015 diakses tanggal 1 maret 2017 Ahmad Syaifudin, 2015, Politik Bahasa Untuk Tenaga Kerja Asing Di Indonesia Pada Era Pasar Bebas, Seminar Nasional PIBSI XXXVII tamggal 2 Oktober

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