THE AUTHORITY OF THE REGIONAL GOVERNMENT OF THE PROVINCE OF BALI IN COLLECTING RETRIBUTION FOR FOREIGN WORKERS (TKA)

A. Introduction

Indonesia is one of the countries with abundant potential resources both as a tourist destination, and as an area with natural resources, customs, and culture that are very well known in the world. Because of this, many people from outside the territory of Indonesia are interested in coming to Indonesia for various reasons and interests, one of which is as a Foreign Worker in Indonesia (TKA). The arrival of foreign workers to work in Indonesia is due to various reasons, including: due to placement from their original company, some have entered Indonesia to get a job, and some are working in Indonesia because they receive a job call, and various other reasons. The number of foreign workers (TKA) in Indonesia in 2020 reached 98,902 people. From the data, foreign workers from China were in first place, namely 35,781 people. or the equivalent of 36.17%. Followed by Japan 12,823 people, South Korea 9,097, India 7,356 people, Malaysia 4,816 people, Philippines 4,536 people, United States 2,596 people, Australia 2,540 people, England 2,176 people, Singapore 1,994 people and, 15,187 from other countries. The foreign workers are scattered in various regions in Indonesia.

              The need for foreign workers in Indonesia cannot be avoided, especially in the global era and the agreement / agreement signed by Indonesia was the issuance of Law Number 7 of 1994 concerning Ratification of the Agreement Establishing the World Trade Organization, and then promulgating the Law Number 13 of 2003 concerning Manpower, then one of the things that was agreed upon was the permission for foreign workers to work in the territory of Indonesia with certain conditions. In addition, as Indonesia enters the era of the ASEAN Economic Community (MEA) or ASEAN ECONOMIC COMMUNITY, it must be prepared to accept global competition, including in the field of manpower. MEA is an economic integration of the Asean countries, where one of the elements agreed upon from the 5 existing elements is the liberalization of labor flows to ASEAN countries. . Thus, it cannot be avoided that the presence of foreign workers will increase.

              The presence of foreign workers to work in Indonesian territory can certainly have both positive and negative impacts. The positive side of the use of foreign workers in Indonesia is intended to be able to create competences and the transfer of knowledge and transfer of technology can be faster, as well as an increase in investment in Indonesia. Besides that, it can also trigger the productivity of the local workforce, where with the presence of foreign workers, the competition between foreign workers and local people will certainly trigger the enthusiasm of local workers to continue to spur themselves so they can survive in the competition. One of the positive impacts of the existence of foreign workers, especially for local governments, is that they can provide economic benefits, in particular, in increasing local revenue (PAD) for regions where the foreign workers work through payment of fees, foreign workers are also foreign exchange carriers based on the Law on Income Tax. The negative side is that it can increase unemployment and narrow employment opportunities for local workers. In addition, the presence of foreign workers is a threat to local workers who do not have more skills.

              As Bali is one of the main tourist destinations in Indonesia, it is inevitable that foreign workers will try to find their fortune in Bali. Some of them are legal foreign workers, but many are illegal. According to the Head of Immigration for the Province of Bali Agato PP Simamora, Thursday (1/10/2018) the presence of these illegal foreign workers was due to the influence of the visa-free policy, this policy made tourist visits to Indonesia booming. This can be seen from the number of foreign workers in Bali as of January 2015, the number reached 1800 people. Meanwhile, in 2018, according to the Head of the Bali Province Manpower and Energy and Mineral Resources (ESDM) Service, Ni Luh Made Wiratmi said the number of foreign workers in Bali this year (2018) reached 2,300 people, down from 3,000 last year. The decline in foreign workers occurred because each district and city already had a local regulation that was used in permits to employ foreign workers and the non-tax collection. The foreign workers work in several fields available on the island of Bali. They are predominantly working in the fields of tourism, garment, and teachers. For the origin of foreign workers, it is dominated by American, Singaporean and Japanese citizens.

              The large number of foreign workers working in Indonesia in general, as well as in areas especially Bali, of course requires regulation as a legal umbrella for the foreign workers themselves, the Government / Local Government and Entrepreneurs. The problem then is how to regulate the problem of foreign workers in Indonesia, especially related to user fees? and what is the regional authority in collecting fees for foreign workers, especially for the local government of Bali Province?

B. Research Methods

The method used in this writing is a normative research method, namely examining the existing norms in the legislation. The sources of legal materials used are primary, secondary and tertiary legal materials. The approach used is a legal approach, analytical or conceptual approach.

C. Discussion

In Indonesia, manpower issues are regulated in various laws and regulations. The following describes several laws and regulations related to Manpower

C.1. Regulation of Foreign Workers' Levies.

Before discussing specifically about the Foreign Worker Retribution, it will first discuss the regulations related to foreign workers in various existing laws and regulations, starting from the 1945 Constitution, Laws, Government Regulations and the laws and regulations under it. which is the basis / basis for collecting foreign workers levies for the Regional Government of Bali Province. There are several laws and regulations that become the legal basis for foreign workers, which are prepared according to the type and year the regulation was issued. that is:

a. The 1945 Constitution of the Republic of Indonesia (UUD 1945).

The 1945 Constitution is the highest source of formal law in Indonesia, and forms the basis for the statutory regulations under it. Article 23A of the 1945 Constitution provides briefly that: Taxes and other levies of a coercive nature are regulated by law. Thus, the issue of existing taxes and other levies, including levies, is further regulated in the Law. Meanwhile, labor issues are briefly regulated and linked to the issue of the right to work, namely in Article 27 paragraph (2) which states that: Every citizen has the right to work and a decent living for humanity. Furthermore, Article 28D paragraph (2) states that: Everyone has the right to work and to receive fair and proper compensation and treatment in an employment relationship.

b. UU no. 13 of 2003 concerning Manpower

This law regulates several matters concerning manpower, including the definition of labor and foreign workers. In Article 1 point 2 it is stated that a workforce is any person who is capable of doing work in order to produce goods and / or services either to fulfill his own needs or for the community. Furthermore, Article 1 point 13 states that, Foreign Workers are foreign citizens who hold visas with the intention of working in Indonesian territory. Specifically, the issue of foreign workers in this law is regulated in Chapter VIII on the Use of Foreign Workers starting from Article 42- Article 49, which basically regulates the guidelines for hiring foreign workers, which must be fulfilled by both foreign workers and employers. Some of the things that are regulated include:

1. Every employer who employs foreign workers must have a written permit from the Minister or an appointed official.

2. Individuals are prohibited from employing foreign workers

3. TKA can only be employed for certain jobs and for a certain period of time

4. Employers who use TKA must have a plan to use TKA approved by the Minister or an appointed official

5. Employers are obliged to pay compensation for every foreign worker they employ, except for government agencies, representatives of foreign countries, international agencies, social institutions, religious institutions, and certain positions in educational institutions.

Thus this Law regulates in general matters related to manpower, while the detailed regulation is described in other laws and regulations.

c. Law No.28 of 2009 concerning Regional Taxes and Regional Levies

Law No.28 of 2009 is an implementing regulation of Article 23A of the 1945 Constitution. Which specifically regulates Regional Taxes and Levies. In Article 1 point 64, it is stated that regional levies are: "regional levies as payment for services or the granting of certain permits specifically provided and / or given by the regional government for the benefit of certain individuals or entities". From this definition, the characteristics of local user fees are: they are collected by local governments; in the collection there is economic compulsion; There are counterparts that can be directly appointed and levies are imposed on each person or agency that uses services provided by the state / local government.

            Furthermore, in Article 108 paragraph (1) it is determined that the Objects for Retribution are: a. Public Services; b. Business Services; and c. Certain Permissions. Retribution for foreign workers is included in the character of certain licensing levies. Characteristics of Certain Permits Retribution:

1. the said licensing includes governmental authority transferred to the regions in the framework of decentralization principles;

2. the license is really necessary to protect public interest; and

3. the costs borne by the Region in the operation of the license and the costs to overcome the negative impact of the issuance of the permit are quite large so that they are worthy of being financed from the licensing fees;

The objects of certain licensing fees are certain licensing services by the Regional Government for private persons or Entities intended for regulating and supervising activities of spatial use, use of certain natural resources, goods, infrastructure, facilities or facilities in order to protect public interests and preserve sustainability. environment.

d. Law No.23 of 2014 concerning Regional Government

In Law No.23 of 2014 regarding government affairs, it is divided into mandatory and optional government affairs. In Article 12 paragraph (2) it is determined that one of the Compulsory Government Affairs which is not related to Basic Services is a problem: a. Labor; b. … .., etc. Thus, the issue of manpower is one of the existing authorities in the region.

e. PP 38 of 2007 concerning the division of government affairs between the Government, Provincial and Regency / City Governments.

PP 38 of 2007 regulates in more detail the division of government affairs between the Government, Provincial governments and Regency / City governments. In Article 7 PP it is stated that mandatory affairs are government affairs that are obliged to be carried out by the provincial government and district / city regional governments, relating to basic services. Obligatory affairs as referred to in paragraph (1) letter l include: manpower.

Furthermore, in the Appendix PP, the division of affairs between the Government, Provincial and Regency / City Governments in the field of manpower is explained in more detail, so there is a division of government affairs between the central government, provincial governments and district / city governments. The Manpower and Transmigration Sector in number 8a, states that the central authority is; Providing recommendations for work visas and issuing new permits to employ foreign workers (IMTA). b. Issuance of extension IMTA for TKA whose work location is more than 1 (one) provincial area.

Meanwhile for Provinces are: Issuance of extension IMTA for foreign workers whose work locations are cross regencies / municipalities in 1 (one) province. For regencies / cities, extension of IMTA issuance for foreign workers whose work locations are within the district / city area

The need for clarity on the authority of each government, in relation to foreign workers and fees, is to clarify the limits of authority held by the (Central) Government, Provincial Government and Regency / City Government.

f. PP No.97 of 2012 concerning Traffic Control Charges and levies for extension of IMTA

Retribution for IMTA extension is specifically regulated in PP No.97 of 2012. Article 2 stipulates the additional types of levies include: a. Traffic Control Retribution; and b. IMTA Extension Retribution.

In Article 1 point 3 of PP No.97 of 2012, it is stated that the Retribution for the Extension of the Permit to Employ Foreign Workers, hereinafter referred to as the IMTA Extension Levy, is a levy on the extension of the IMTA to foreign workers. Furthermore, in number 4, it is determined that: IMTA extension is a permit granted by the governor or regent / mayor or an appointed official to an employer of foreign labor in accordance with the provisions of laws and regulations.

The PP also stipulates the division of authority between the Provincial Government and the Regency / City Government in imposing IMTA Extension Charges. Article 2 paragraph 3 determines that the collection of IMTA extension levies is carried out by: a. provincial government for an extension of the IMTA whose work location is across districts / cities within the province concerned; and b. district / city government for an extension of the IMTA whose work location is within the concerned regency / city. Several other matters were regulated, among others:

1. stipulates that the extension of the IMTA is subject to retribution (Article 13 paragraph 1.)

2. The subject of retribution is the employer (Article 14 paragraph 2)

3. the amount of the tariff is determined in the Regional Regulation (Article 15)

Article 15 paragraph (1) PP 212 The rate for the IMTA Extension Retribution is set at the highest as much as the IMTA issuance rate stipulated in the Government Regulation regarding the types and rates of PNBP types that apply to the ministry in the field of manpower. Furthermore, Article 15 paragraphs (2) and 16 regulate the amount of levy fees for IMTA extension and the utilization and receipt of levies regulated in Regional Regulations.

g.  Presidential Regulation Number 20 of 2018 concerning Use of Foreign Workers

This Presidential Regulation basically contains the obligations that must be carried out by both the employer and the foreign worker to be able to employ and work in Indonesia. This regulation contains several matters related to TKA, including regulating the obligations of Employers who use TKA to have a Foreign Worker Utilization Plan (RPTKA) which is approved by the Minister or an appointed official, where in the RPTKA at least contains: a. reasons for using TKA; b. positions and / or positions of foreign workers in the organizational structure of the company concerned; c. period of use of foreign workers; and D. the appointment of Indonesian workers to assist the employed foreign workers

Furthermore, Article 9 states that the RPTKA ratification is a license to employ foreign workers. Furthermore, there is also an exception to having RPTKA (Article 10 (1): a. Shareholders who serve as members of the Board of Directors or members of the Board of Commissioners of the TKA Employers; b. Diplomatic and consular employees at representative offices of foreign countries; or c. TKA of types jobs required by the government.

This regulation is designed to regulate basic aspects that aim to use foreign workers selectively. Therefore, in employing foreign workers, a very strict mechanism or procedure is usually carried out, especially the obligation for companies to make plans for the use of foreign workers (RPTKA) as stipulated in written regulations.

C.2. The authority of Bali Province in collecting IMTA Retribution

Based on the statutory regulations as described above, it can be seen that one of the authorities possessed by the regions is in collecting "Retribution". The characteristics of local user fees are:

a.retribution collected by local government;

b.in the collection there is economic compulsion;

c. there are contestants who can be directly appointed and;

d. retribution is imposed on every person / entity that uses services provided by the state.

The purpose of collecting local levies is to fill the state treasury or regional treasury to meet their routine needs and also to regulate the prosperity of the community through services provided directly to the community. Therefore, according to Ahmad Yani, the Provincial Region, Regency / City is given the opportunity to explore the potential of its financial sources by determining the types of fees other than those that have been determined and in accordance with the aspirations of the community. According to Budi Waluyo (2012), in essence, regional tax and levies have a strong interest in the services provided by local governments to the community so that economic growth and improvement will also encourage regional tax and levies.

Charges on user fees can only be made if the government or local government has the authority to do so. Steenbek in his writings stated that in the Constitutional Law authority (bevoegheid) is described as power (rechtmacht). So the concept of public law, authority consists of at least three components, namely, influence, legal basis and legal certainty. As a legal state, having authority by an agency / institution or official is very important in State Administrative Law, because the new government can have legality and carry out its functions based on the authority it gets from existing laws and regulations. Based on the authority, the legitimacy of government actions is measured. The issue of authority can be seen in the State Constitution which gives legitimacy to Public Bodies and State Institutions in carrying out their functions. Therefore, authority is the ability to act that is given by the applicable law to conduct legal relations and actions.

Bali Province as one of the regions that is part of the Republic of Indonesia as emphasized in Article 18 of the 1945 Constitution, is also given the autonomy authority to collect levies, especially in collecting IMTA levies and regulating it in the form of Regional Regulations. It's just that the authority possessed by the regions in collecting the foreign worker levies, is specifically for the levies for the extension of the Permit to Employ Foreign Workers (IMTA). Thus the authority of the regional government, especially the Bali Provincial Government in collecting levies for the extension of the IMTA is in accordance with the provisions of Article 150 of Law Number 28 of 2009 concerning Regional Taxes and Regional Levies, which states that the types of regional levies can be added as long as they meet the criteria stipulated in the Law. Invite. Additional types of regional levies are stipulated by a government regulation. There is an opportunity to increase the types of levies by means of government regulations intended to anticipate the transfer of service and licensing functions to the regions. Therefore, in PP No.97 of 2012, 2 (two) new types of levies are stipulated, namely the Traffic Control Levies and the IMTA Extension Levies. who already has an IMTA from the Minister who is responsible for manpower affairs or an appointed official. Previously, IMTA extension levies constitute PNBP which by this Government Regulation is stipulated as Retribution.

The authority of the Bali Provincial Government in collecting fees for the extension of the IMTA was then strengthened by the enactment of the Bali Provincial Regulation Number 6 of 2011 concerning Certain Permits Retribution. This Perda does not yet regulate the IMTA Extension Retribution, therefore this Perda was later amended by the Bali Provincial Regulation Number 5 of 2013 concerning Amendments to the Regional Regulation of the Province of Bali Number 6 of 2011 concerning Certain Permits Retribution. In this regulation, only one more type of retribution has been added, namely the IMTA Extension Levy. Subsequently issued the Bali Provincial Regulation Number 2 of 2015 concerning the Second Amendment to the Regional Regulation of the Province of Bali Number 6 of 2011 concerning Certain Licensing Charges and Regional Regulations of the Province of Bali Number 4 of 2018 concerning the Third Amendment to the Regional Regulation of the Province of Bali Number 6 of 2011 concerning Licensing Charges Certain.

Some of the things regulated in Perda No.5 of 2013 include the name, object and subject of levies; How to Measure the Level of Service Usage: The Principle of Determining the Structure; Structure and Amount of Levy Rates, based on Article 25D, the amount of IMTA Extension Levies is set at USD 100 (one hundred dollars) per foreign worker per month. Also includes: Polling Areas; Retribution Period; Payment Determination; The place of payment; Installments and Payment Delays; Administrative Sanctions. Administrative sanctions are imposed if they do not pay on time or underpayment will be subject to sanctions in the form of interest of 2% (two percent) per month from levies payable that are not paid or underpaid and are billed using STRD. In addition, the Perda also includes: Collection, Utilization of Retribution Revenue and utilization of user fees, namely for:

(1) prioritized for funding activities to develop skills and skills of local workforce.

(2) The allocation of the utilization of the IMTA extension Retribution revenue as referred to in paragraph (1) shall be determined through the Regional Revenue and Expenditure Budget.

Payment of IMTA retribution is one of the requirements for foreign workers to obtain a Temporary Stay Permit Card (KITAS).

The large number of foreign workers in Bali has also encouraged several regencies / cities to make regional regulations on the IMTA Extension Retribution according to their authority. The following are some of the local regulations:

Table

Regional Regulations in Several Regencies / Cities in Bali Province