Judges

- AMSER SIMANJUNTAK, SH
- I GUSTI PUTU SUENA, SH
- I KETUT DANA, S.Sos.

Substitute Clerk :

- I NENGAH JENDRA, SH

INDUSTRIAL RELATIONS COURT

WITH THE DENPASAR COURT OF FIRST INSTANCE
Case Number

06/G/2012/PHI.PN.Dps.

Date

OCTOBER 5, 2012

Plaintif

MICHAEL ALLAN EPSTEIN

Defendant

PT. SEHAT UTAMA AGUNG

ALONG WITH:
VERDICT OF THE SUPREME COURT IN JAKARTA
Dated: MARCH 27, 2014

Number:

56K/Pdt.SUS/2013

NOTES:
The Plaintif pleads the duplicate of this verdict is
issued or granted
Page 1 of 40

On

____________________

at

the

cost

of

IDR

________________
The Defendant pleads the duplicate of this verdict is
issued or granted
On

____________________

at

the

cost

of

IDR

________________
V E R D I C T
Number: 56 K/Pdt.Sus/2013
FOR THE SAKE OF JUSTICE IN THE NAME OF GOD THE ALMIGHTY
THE SUPREME COURT
which examined the case on Industrial Relations Dispute at
the cassation level has passed the following verdict in
the case:
MICHAEL ALLAN EPSTEIN, residing in De Vega Las
Vegas Nevada USA 89102, in this respect authorizes
H.M. Rifan, S.H., M.Hum., and partners, the Advocates
and Assistant Advocates with the "Austrindo Law
Office", having its office at Jalan By Pass Ngurah
Rai No.2001, Simpang Dewa Ruci, Kuta, Badung, Bali,
acting by virtue of the Special Power of Attorney
dated

October

19,

2012,

the

Petitioner

in

Cassation formerly the Plaintiff;

Versus

Page 2 of 40

PT. SEHAT UTAMA AGUNG, domiciled at Istana Kuta

Galeria

Valet

Number

5-6,

Jalan

Raya

Patih

Jelantik Kuta, Badung, in this respect authorizes

Kario Lumbanradja, S.H., an Advocate, residing at
Jalan Waringin Raya Number 4, Kayuputih, Jakarta
by virtue of the Special Power of Attorney dated
September 17, 2012, the Respondent in Cassation
formerly the Defendant;
The Supreme Court mentioned above;
After reading the relevant letters (documents);
Considering that from the documents it is apparent
that the

present Petitioner

in Cassation

formerly the

Plaintiff has sued for damages the present Respondent in

Cassation formerly the Defendant before court session of
the Industrial Relations Court with the Denpasar Court of
First Instance, which in principle the following arguments;
1.

That the Plaintiff is an expatriate employed by the

Defendant as a Chiropractic Consultant since August
2009;

2.

That the position of the Plaintiff as an Expatriate

continues to be extended by the Defendant up to the
second extension based on the Expatriate Employment
License Number: Kep. 569/0255/IMTA/KPPT dated June 6,
2011 valid since July 31, 2011 to July 31, 2012;
Page 3 of 40

3.

That as long as the Plaintiff works as an expatriate

with the Defendant, the Defendant has never provided
the Plaintiff with an employment agreement. In 2009,
the Plaintiff had once been presented/shown an employment
contract by the Defendant then returned the same to
the Defendant because it needs several revisions, but
the employment contract had never been shown again to
the Plaintiff and the Defendant had never requested
the Plaintiff to sign an employment contract till the
issuance of the final IMTA dated June 6, 2011;

4.

That during the two (2) year work period with the
Defendant, the Plaintiff always performed the work
properly and the Defendant had never served a warning
letter in any form whatsoever with regard to the work
done by Plaintiff;

5.

That on September 23, 2011, the Defendant wrote a

letter to the Plaintiff stating that the Defendant
decided to discontinue sponsoring the KITAS (Temporary
Residents Card) owned by the Plaintiff without any
clear reasons. The letter also asked the Plaintiff to
deliver several immigration documents for the Exit
Permit Only processing;

6.

That the Plaintiff did not think he made any mistakes

(wrongs) with the company and performed the work as
Page 4 of 40

usual till the end of October 26, 2011. The Defendant

wrote

again

letter

On

the

Employment

Relations

Termination and asked the Plaintiff to deliver the

immigration

documents

for

the

Exit

Permit

Only

processing. It was the same as the first letter dated

September 23, 2011. The Defendant did not state any
reasons for the employment relations termination with
the Plaintiff.
7.

That since the issuance of the letter dated September

23,

2011

by

the

Defendant,

the

Plaintiff

did

not

receive any wages from the Defendant but the Plaintiff

still performed the work for the Defendant;
8.

That despite unfair treatment and discharged by the

Defendant without any clear reasons, the Plaintiff
still

worked

while

taking

proper

legal

actions

to

settle the manpower problem where through its attorney

at law, the Plaintiff wrote a letter on November 2,
2011 to respond to the employment relations termination
and also requested a meeting or negotiation to discuss
this but there had never been any response either
oral or written by the Defendant;
9.

That

the

Plaintiff

then

received

summons

from

the

Immigration Office basically requesting the Plaintiff

Page 5 of 40

to

leave

Indonesia

with

regard

to

the

notice

of

sponsorship withdrawal from the Defendant;

10. That the Plaintiff requested discretion/judgment of
the Immigration Office to let the Plaintiff to remain
staying in Indonesia since his manpower problem is
not yet settled, but the Immigration Office rejected
the request of the Plaintiff that on November 15, 2011
the Plaintiff had to leave Indonesia;
11. That on December 15, 2011 the Plaintiff through his
attorney at law wrote a letter to the Manpower Service
of Badung Regency to file/register his manpower dispute;
12. That the Manpower Service of Badung Regency then facilitated a Bipartite negotiation between the Plaintiff
and the Defendant considering a Bipartite negotiation
had never been done before, which matter after the
Bipartite negotiation as many as two times it was
concluded that the Plaintiff and the Defendant failed
to reach agreement because respective party remained
on their initial standpoint as stated in the Minutes
of Bipartite Negotiation dated February 23, 2012;
13. That

because

there

was

no

agreement,

the

Manpower

Service of Badung Regency referred the dispute between

the Plaintiff and the Defendant to the Manpower and
Transmigration

Services

of

Badung

Province

to

be

Page 6 of 40

settled through Mediation involving a Mediator of the

Manpower and Transmigration Services of the Badung
Province;
14. That on March 26, 2012 a mediation between the Plaintiff and the Defendant was conducted with the Mediator
Mr. I Gede Raka, S.E., and the negotiation result was
"an agreement is unreachable and the parties maintained
their standpoints;
15. That then the dispute between the Plaintiff and the
Defendant reach no agreement, and on April 16, 2012
the Manpower and Transmigration Services of Badung
Province issued Recommendation containing the following:
1.

That the Employer shall pay the workers rights as

provided for in Law Number 13 of 2003 Article 156
paragraphs (2), (3) and (4) on Manpower, and other
normative rights;

2.

That Worker shall accept the Employment relations

Termination by the Employer by receiving his rights
as provided for in Law Number 13 of 2003 Article
156 paragraphs (2), (3) and (40 on Manpower and
other normative rights;

3.

That both parties shall answer the recommendation

no later than 10 business days upon receipt of
such letter of recommendation;
Page 7 of 40

16. That the recommendation by Mediator of Manpower and

Transmigration

Services

of

the

Bali

Province

was

formulated based on the fact that because these was

no written employment agreement between the Plaintiff
and the Defendant that employment agreement of definite
period shall be deemed employment agreement of indefinite
period as provided for in Article 57 paragraph (2) Law
Number 13 of 2003 on Manpower which is even in contravention with Article 42 paragraph (4) of Law Number
13 of 2003 on Manpower;
17. That Plaintiff is an expatriate employed by the Defendant
as the Chiropractic Consultant as stated in the Expatriate Employment License Number: Kep.569/0255/IMTA/
KPPT dated June 6, 2011;
18. That as described in item 3 of this lawsuit/claim,
the Defendant and the Plaintiff did not supply their
employment relationship with an employment Agreement,
but this does not simultaneously/automatically make
Article 57 paragraph (2) that states that "the Employment
Agreement of definite period made not in writing is
contradictory
paragraph

(1)

with

the

declared

provisions
as

as

described

in

employment

agreement

of

indefinite period", may be effected since as those

governed in Article 42 paragraph (4) of Law Number 13
Page 8 of 40

of 2003 on Manpower, "Expatriate may be employed in

Indonesia only in employment relationship for a particular work/job and definite period", that the employment relationship between the Plaintiff and the Defendant
is till included in Employment agreement of Definite
Period;
19. That

without

any

employment

agreement

between

the

Plaintiff and the Defendant, the employment relationship

period between the Plaintiff and the Defendant shall
be

in

Number:

accordance with Expatriate Employment License

Kep.569/0255/IMTA/KPPT

dated

June

6,

2011

which was up to July 31, 2012;

20. That as a result of the employment relationship termination by the Defendant requires the Defendant to
pay compensation to the Plaintiff in the amount of
the Plaintiffs wage up to the time limit of expiry of
employment

agreement

period

because

the

Defendant

terminated the employment relationships prior to the

expiry of employment relationship period as formulated
in Article 62 Law Number 13 of 2003 on Manpower;
21. That as long as the Plaintiff worked for the Defendant
as from August 2009 up to October 2011 (2 years and 2
months), the Defendant paid the Plaintiffs wage weekly
on agreement of 45% of the total Defendants income for
Page 9 of 40

the

services

rendered

by

the

Plaintiff

within

the

scope of his work, which matter for the payment of

weekly

wage

by

the

Defendant

to

the

Plaintiff,

receipt was always issued specifying description of

the "Salary" or in the Indonesian language is wage or
salary;
22. That Article 157 paragraph (2) Law Number 13 of 2003
on Manpower states "if the income of a worker/laborer
is paid on daily calculation basis, then the monthly
income shall be equal to 30 times daily income"; Article
157 paragraph (3) Law number 13 of 2003 on Manpower
also states If the wage of a worker/laborer is paid
based on income unit calculation, the pieces/contract
or commission, the daily income shall be equal to the
average

income

per

day

for

the

last

twelve

(12)

months, provided that it shall be not less than the

provision on the minimum wage of the relevant province
or regency/ municipality;
23. That as shown in the receipt of wage received by the
Plaintiff during one year time period since September
2010 till August 2011, the Plaintiffs income generated
from services rendered by the Plaintiff shall be two
billion

fifty

six

million

eight

hundred

and

fifty

thousand Rupiahs (IDR 2,056,850,000.-) with an average

Page 10 of 40

weekly income of thirty-nine million five hundred fiftyfive thousand rupiahs (IDR 39,555,000.-). Of such amount,
45% thereof shall be the Plaintiffs wage amounting to
nine hundred twenty-five million five hundred eightytwo thousand five hundred Rupiahs (IDR 925,582,500.-)
with the average weekly wage of IDR 17,799,663 or rounded
up to seventeen million eight hundred thousand Rupiahs
(IDR 17,800,000);
24. That as from the date of issuance of sponsorship discontinuation letter upon the Plaintiffs KITAS on September
23, 2011 the Plaintiff still set aside 308 days or 44
weeks till the expiry of Expatriate Employment License
Number: Kep.569/0255/IMTA/KPPT dated June 6, 2011;
25. That the unilateral employment relationship termination
by the Defendant requires the Defendant to pay compensation to the Plaintiff in the amount of the Plaintiffs
wage till time limit of the expired time period of
employment agreement totaling seven hundred eightythree

million

two

hundred

thousand

Rupiahs

(IDR

783,200,000.00 with the breakdown of average weekly

wage

of

seventeen

million

eight

hundred

thousand

rupiahs (IDR 17,800,000 multiplied by the remaining

service period of 44 weeks;

Page 11 of 40

26. That due to the Defendants action to terminate the

employment relationship with the Plaintiff and did not
voluntarily paid the compensation makes the Plaintiff
bear the advocate services fees and other costs arising
from settling manpower case amounting to two hundred
million Rupiahs (IDR 200,000,000.00);
27. That due to the Defendants action to terminate the
employment relationship with the Plaintiff without any
clear reasons has truly caused losses to the Plaintiff.
Other than losses above-mentioned, the Plaintiff must
also bear immaterial costs that is the Plaintiffs
reputation is tarnished, disruption of activities and
daily work/activities and disruption of peacefulness
an life convenience of the Plaintiff that actually
cannot be valued by material/money, but that the lawsuit/
claim is not illusionary, it is very reasonable to
provide

the compensation of one billion Rupiah (IDR

1,000,000,000.-);
28. That to guarantee the Plaintiffs lawsuit/claim, it is
reasonable for the Plaintiff to request the Denpasar
Court of First Instance to place conservatory attachment
on the Defendants Office Building located at Istana
Kuta Galeria Valet 2 No.5-6, Jalan Raya Patih Jelantik,
KutaBadung along with the whole movable assets therein;
Page 12 of 40

That based on the above reasons the Plaintiff requests

the Industrial Relations Court with Denpasar Court of First
Instance to pass the following verdict:
1.

To accept and grant the Plaintiffs lawsuit/claim in its

entirety;

2.

To declare that the employment relationship between

the Plaintiff and the Defendant is a lawful employment
relationship of definite period by law;

3.

To sentence the Defendant to pay compensation in cash

and at lump sum amounting to seven hundred eighty
million seven hundred eighty thousand Rupiahs (IDR
780,780,000.00)

within

time

period

of

seven

(7)

calendar days since the decision is read out to the

Plaintiff.
4.

To

sentence

the Defendant to bear the costs

to

be

incurred by the Plaintiff for advocate services and

other costs arising from the handling of the manpower
case in cash and at lump sum amounting to two hundred
million Rupiahs (IDR 200,000,000.00) within a time
period of seven (7) calendar days since the decision
is read out to the Plaintiff;
5.

To sentence the Defendant to pay immaterial costs the

Plaintiff has suffered in cash and at lump sum amounting
to one billion Rupiahs (IDR 1,000,000,000.00) within
Page 13 of 40

a time period of seven (7) calendar days since the

verdict is read out to the Plaintiff;
6.

To sentence the Defendant to pay the moratorium interest

of 12% per annum of the total compensation to be paid
by the Defendant amounting to seven hundred eighty
million seven hundred eighty thousand Rupiahs (IDR
780,780,000.00) or amounting to seven million eight
hundred

seven

thousand

eight

hundred

Rupiahs

(IDR

7,807,800.00) per month as from the lawsuit/claim is

brought to Industrial Relations Court till the execution
or implementation of the verdict;
7.

To declare lawfully that the conservatory attachment

placed on the movable property shall be legal and
valuable/precious;

8.

To sentence the Defendant to pay the costs of the

Court case;

Or:
If the Panel of Judges of Industrial Relations Court with
the Denpasar Court of First Instance is op the opinion,
the Plaintiff requests the fairest verdict (ex aequo et
bono);
Considering that on the lawsuit the Defendant presents
exception which in principle as follows:

Page 14 of 40

1.

The Plaintiffs lawsuit is obscure libel, because it

does not explain the basis for petitum in posita;
To sentence the Defendant to pay compensation in cash
and at lump sum amounting to seven hundred eighty
million seven hundred eighty thousand Rupiahs (IDR
780,780,000.00) within a period of seven (7) calendar
days since the verdict is read out to the Plaintiff;
the lawsuit petitum is obscure libel and incomplete
because there is not any provision at all of Law Number
2 of 2004 on industrial relations dispute settlement
that states the obligations of the Panel (of Judges)
to compel the Defendant to pay the compensation in
cash within a period of 7 days;
That Article 1110 of Law Number 2 of 2004 states that:
The Verdict of Industrial Relations Court with the
Court of First Instance with regard to the Rights
dispute and Termination of Employment (PHK) dispute
has the permanent legal standing if petition for appeal
is not brought to the Supreme Court within a period
of 14 business days;
Hence, it is reasonable that the Panel (of Judges) does
not receive the Plaintiffs lawsuit because the petitum
is not relevant to the arguments of the lawsuit;

Page 15 of 40

2.

The

Ground

for

the

Plaintiffs

Lawsuit

is

Obscure

Libel;
1)

That in the posita No. 25 the Plaintiff:

States that the unilateral termination of employment
by the Defendant requires the Defendant to Pay
compensation to the Plaintiff in the amount of the
Plaintiffs wage till the time limit of expiry of
employment agreement period totaling seven hundred
eighty-three million two hundred thousand Rupiahs
(IDR 783,200,000.00) with the breakdown of average
weekly wage amounting to seventeen million eight
hundred

thousand

Rupiahs

(IDR

17,800,000.00)

multiplied by the remaining service term of 44

weeks;
While in claim petitum No.3 of the compensation
requested shall be seven hundred eighty million
seven

hundred

eighty

thousand

Rupiahs

(IDR

780,780,000.-);
As such, the rationale for total loss demanded in
petitum No.3 is contradictive to each other and
unclear and incomplete; therefore the Panel (of
Judges) shall be obliged not to accept the lawsuit
of the Plaintiff as the petitum is not relevant
to the lawsuit arguments;
Page 16 of 40

2)

That the petitum of item 4 of the Plaintiffs lawsuit

states:
To sentence the Defendant to bear the costs to be
incurred by the Plaintiff for the Advocates fee
and other costs arising from the handling of manpower
case in cash and at lump sum amounting to two hundred
million Rupiahs (IDR 200,000,000.-) within a period
of seven (7) calendar days since the verdict is read
out to the Plaintiff;
That

the

individual

person

or

party

that

are

litigating parties at the court shall not be obliged

to use a lawyers services because no Law requires
an individual person litigating in a Court to use
a lawyers services; and accordingly the Plaintiff
has no legal reasons to request the compensation
over the costs of the Advocates legal services
and charge the Defendant. This is in accordance
with

the

Verdict

of

the

Supreme

Court

of

the

Republic of Indonesia Number: 635 K/Sip/1973 dated

July 4, 1974 that states: "that the advocates
honorarium has no regulation in HIR that requires
a person litigating in a Court of Law requires the
assistance from a lawyer, then the wage may not be
charged to the opponent (legal adversary);
Page 17 of 40

Thus, it is reasonable for the Panel of Judges not

to accept the Plaintiffs lawsuit;
3)

The Plaintiffs Petitum No. 5:

To ask the Defendant to be sentenced to pay the
immaterial losses the Plaintiff has suffered in
cash and at lump sum amounting to one billion
Rupiah (IDR 1,000,000,000.00) since the verdicxt
is read out to the Plaintiff;
The Plaintiff in its claim fails to explain clearly
what immaterial compensation means and fails to
prove in rated manner the amount of immaterial
loss.
This is in accordance with the Verdict of the Supreme
Court of the Republic of Indonesia Number: 117 K/
Sip/1971, dated June 2, 1971 the legal principle
of which states as follows: "a claim for compensation
not

clearly

described

and

not

accompanied

by

convincing probing on the amount of compensation

to

be

received

by

the

Plaintiff

shall

not

be

approved by the Court;

4)

That the Plaintiffs petitum No. 6 requests the

Judge to sentence the Defendant to pay the moratorium
interest of 12% per annum of total compensation to
be paid by the Defendant amounting to seven hundred
Page 18 of 40

eighty million seven hundred eighty thousand Rupiahs

(IDR 780,780,000.-) per month as from the claim is
brought to the Industrial Relations Court till the
implementation of this Verdict.
That the Plaintiffs petitum No. 6 is groundless
and is not clear at all because in its petitum the
Plaintiff makes the basis for interest payment of
the basic losses amounting to seven hundred eighty
million seven hundred eighty thousand Rupiahs (IDR
780,780,000.00) while the Plaintiffs posita No.
25 states the losses suffered are seven hundred
eighty-three million two hundred thousand Rupiahs
(IDR 783,200,000.00); thus it is more apparently
obscure libel what is demanded by the Plaintiff of
the moratorium interest of 12% of which amount?
On the other hand, the Plaintiff argues the interest
payment of 12% of the losses suffered has no legal
force and accordingly it is reasonable that the
Panel (of Judges) rejects the Plaintiffs lawsuit;
3.

With regard to the Lawsuit for Placing Conservatory

Attachment
As Law Number 2 of 2004 does not provide the authority
to the Industrial Relations Court to place conservatory
attachment except if the implementation of Verdict of
Page 19 of 40

the Industrial Relations Court which has had permanent

legal force/standing or a Joint Agreement, then it is
reasonable and lawfully grounded to the Panel of Judges
to waive and does not take them into consideration.
That

with

regard

to

the

lawsuit,

the

Industrial

Relations Court with the Denpasar Court of First Instance

has passed the Verdict Number: 06/G/2012/PHI.PN.Dps. dated
October 5, 2012 with the following dictum:
In the Exception:
-

To reject the Defendants exception in its entirety;

In the Merit of the Case:

1.

To declare the Plaintiffs lawsuit is not acceptable;

2.

To sentence the Plaintiff to pay the costs of the Court

case

amounting

to

two

hundred

forty-one

thousand

Rupiah (IDR 241,000.00);

Considering that when the Verdict is read out on October
5, 2012 in the presence of the Plaintiffs Attorney at Law
and

the

thereto

Defendants
the

Attorney

at

Law

Plaintiff/Petitioner

in

then

in

relation

Cassation submits

verbal petition on October 19, 2012 as evidenced from the

Cassation Petition Deed Number: 06/Kas/G/2012/PHI.PN.DPS
drawn up by the Registrar/Clerk of Industrial Relations
Court with the Denpasar Court of First Instance; the petition
Page 20 of 40

is accompanied by a Contra Memorandum of Cassation dated

November 2, 2012 which contains the reasons received at
the Clerk of Court of First Instance on the same day;
That the Memorandum of Cassation of the Petitioner
in Cassation/the Plaintiff has been informed to the Defendant
on November 8, 2012 then the Respondent in Cassation/the
Defendant

presents

the

Contra

Memorandum

of

Cassation

received at the Clerk of Industrial Relations Court with

the Denpasar Court of First Instance on December 20, 2012;
Considering that the petition of cassation quo along
with reasons thereof have been informed to the opponent
(legal adversary) carefully, submitted within a grace period
and in the manner as provided for in the law and therefore
the petition for cassation is formally acceptable.
REASONS FOR CASSATION
Considering

that

the

reasons

presented

by

the

Petitioner in Cassation/the Plaintiff in its Memorandum

of Cassation in principle as follows:
1.

Judex Facti Judge has pas Verdict using the rules that
have actually been revoked/withdrawn and is not valid
as the basis for its consideration;
That on the basis of its consideration, Judex Facti
states that based on Article 9 paragraph (1) of the
Decree of the Minister of Manpower and Transmigration
Page 21 of 40

of the Republic of Indonesia Number: Kep.20/Men/III/

2004 concerning the Procedures for Obtaining Expatriate
Employment License and the effective period of the
Expatriate Employment License (IMTA) is granted the
same as the effective period of stay permit;
That

the

Decree

of

the

Minister

of

Manpower

and

Transmigration of the Republic of Indonesia Number:

Kep.20/Men/III/2004
Obtaining

Expatriate

concerning
Employment

the

Procedures

License

has

for
been

revoked/withdrawn and declared to be no longer valid

four (4) years ago by virtue of the Regulations of
the Minister of Manpower and Transmigration of the
Republic

of

Indonesia

Number:

Per.02/MEN/III/2008

concerning the Procedures for the Use of Expatriate

and Transmigration through the Minister of Manpower
and Transmigration of the Republic of Indonesia as
stated in the Closing Provisions as referred to in
Article 44 of this Regulation;
That the act of the Judex Facti Judge who has mistakenly
and

carelessly

used

the

regulation

that

had

been

revoked/withdrawn and declared no longer valid as the

basis for not accepting the lawsuit of the Petitioner
in Cassation/the Plaintiff should raise question as

Page 22 of 40

the Judge as the legal mouthpiece should not make the

most fatal mistakes;
That to respond to the arguments of the Petitioner in
Cassation/the Plaintiff that bases the period of the
employment agreement on the IMTA Number: Kep.569/0255/
IMTA/KPPT dated June 6, 2011 (the Second Extension)
because there is no written employment agreement between
the Worker/the Petitioner in Cassation/the Plaintiff
and the Company/Respondent in Cassation/the Defendant.
The Judex Facti Judges in their legal consideration
has waived juridical facts and material facts so that
finally has mistakenly concluded that the effective
period of the IMTA is not simultaneously/automatically
become an Employment Agreement of Definite Period between
the Plaintiff and the Defendant. The juridical facts
and material facts which have been waived by the Judex
Facti Judges are as follows:
A)

An Expatriate may be employed in Indonesia only in

Employment

Relationship

for

Particular

Position

(see Article 42 paragraph (4) of Law Number 13 of

2003 regarding Manpower).
The

Judex

Facti

considerations
"Particular

Judges

in

waives

this

Position"

and

presenting
rule.

their

The

meaning

"Definite

Period"

legal
of

have

Page 23 of 40

definitely referred to something certain. Certainty of

"Particular Position" and "Definite Period" has been
contained in the IMTA issued by the Minister or Relevant
Officer. The IMTA Number: Kep.569/0255/IMTA/KPPT dated
June 6, 2011 (the Second Extension) has given permission
to the Respondent in Cassation/the Defendant to employ
the Petitioner in Cassation/the Plaintiff for a particular position: Chiropractic Consultant and Definite
Period: July 31, 2011 to July 31, 2012;
If then the validity period of IMTA cannot be made the
same as employment agreement period should there be no
employment agreement as concluded by the Judex Facti
Judges, then where is the legal certainty of the element
of "Definite Period" for the use of an Expatriate. The
Judex

Facti

Judges

has

mistakenly

considered

the

element of "Definite Period" in this case;

B)

The Employer that will employ an Expatriate must have

RPTKA (Foreign Manpower/Expatriate Use Plan) (vide:
Article 3 of the Regulation of Minister of Manpower
and Transmigration of the Republic of Indonesia Number:
Per.02/MEN/III/2008 concerning the Procedures for the
Use of Expatriate through the Minister of Manpower and
Transmigration of the Republic of Indonesia).

Page 24 of 40

As it is further described in Article 5 of the same

Regulation,

one

of

the

attachments

for

obtaining

approval for the RPTKA, the Employer of an Expatriate

must complete the RPTKA Form containing therein:
a.

Identity of the Employer of the Expatriate/the

Company;

b.

Title/Position of Expatriate;

c.

Amount of Wage of Expatriate;

d.

Total Number of Expatriates;

e.

Job Description of Expatriate;

f.

Work Site/Location;

g.

Period of the Use of Expatriate;

h.

Appointment of Indonesian Manpower as an accompanion

to the Expatriate employed; and

i.

Education and training program plan for Indonesian

Manpower;

C)

Any Employer that employs expatriate shall be obliged

to have written permission (IMTA) from the Minister
or official/officer appointed (vide: Article 42 paragraph (1) of Law Number 13 of 2003 concerning Manpower)
The use of Expatriate in Indonesia cannot be immediately/
directly done. The company that is desirous to employ

Page 25 of 40

Expatriate must have written permission called the

Expatriate Employment License (IMTA);
Before applying for the Expatriate Employment License,
an Employer must first have a visa recommendation by
enclosing several requirements including one of the
copies of decision on approval and ratification of
RPTKA. The visa recommendation is required for further
process that is to submit application for IMTA;
The documents to be enclosed to submit an application
for IMTA are as follows:
-

Copy of the draft of Employment Agreement;

Evidence of payment for compensation funds of the

use of Expatriate through a Bank designated by
the Minister;

Copy of the insurance policy;

Copy of notification letter of approval for visa

grant, and colored photograph of 4 x 6 size as
many as two (2) pieces.

From the whole documents, one of the documents that

strongly shows the period of manpower use is Evidence
of payment for compensation fund of the use of Expatriate
through

Bank designated by

the

Minister

has

been

forwarded as evidence on this case but the existence

Page 26 of 40

of this evidence is not considered at all by Judex

Facti Judges in passing the Verdicts.
As already described in the Conclusion of the Petitioner
in Cassation/the Plaintiff that reflects the evidence
presented, the period of the use of manpower the license
of which is requested by the Employer in this case the
Respondent in Cassation/the Defendant, is explicitly
contained in the evidence of payment for compensation
funds of the use of Expatriate, that is the Work Skill
Development

Funds

Deposit

Slip

of

the

Ministry

of

Manpower (DPKK Depnaker) that states the period of

manpower use for 12 months in a specific date that is
from July 31, 2011 to July 31, 2012. The period of
manpower use in this case is certainly the same as the
employment period of the Petitioner in Cassation/the
Plaintiff as the name of the Petitioner in Cassation/the
Plaintiff is definitely written in the DPKK;
However again, the Judex Facti Judges carelessly does
not consider at all this evidence in passing the Verdicts;
In addition, other than the evidence of payment for
compensation

funds

of

the

use

of Expatriate,

the

Petitioner in Cassation/the Plaintiff also enclosed

the copy of Employment Agreement Draft that was never
signed either by the Petitioner in Cassation or by the
Page 27 of 40

Respondent in Cassation/the Defendant as evidence but

the Judex Facti Judges does not consider which is badly
regretted as the existence of the Employment Agreement
Draft has also been acknowledged by the Respondent in
Cassation/the Defendant at the Court session and further
the Respondent in Cassation/the Defendant also acknowledged that the Petitioner in Cassation/the Plaintiff
returns the Employment Agreement Draft for improvement/
rectification, but such Employment Agreement is never
returned by the Respondent in Cassation/the Defendant;
The Judex Facti Judges should be able to see the act
of the Respondent in Cassation/the Defendant as an
Employer who does not meet the obligations to furnish
any manpower/worker employed with an Employment Agreement as one sign of ill-will and haphazardly treat the
Worker. For notes, three (3) witnesses presented by
the Petitioner in Cassation/the Plaintiff are all the
former workers of the Respondent in Cassation/ the
Defendant also discharged arbitrarily by the Respondent
in

Cassation/the

Defendant.

The Judex Facti Judges

should have been able to consider the evidence of these

witnesses to furnish the ill-will of the Respondent
in Cassation/the Defendant;
D)

The Extended IMTA is used as the basis for extending

KITAS (vide: Article 28 of the Regulation of the Minister
Page 28 of 40

of

Manpower

and

Transmigration

of

the

Indonesia Number: Per.02/MEN/III/2008

Republic

concerning

of
the

Procedures for the Use of Expatriate through the Minister

of Manpower

and Transmigration

of

the

Republic

of

Indonesia).
Precisely, this Article nullifies the conclusion of the
Judex Facti Judges stating that 'the validity period
of the IMTA is provided the same as the validity period
of stay permit" as the IMTA Number: Kep.569/0255/IMTA/
KPPT dated June 6, 2011 that permits the Respondent in
Cassation/the Defendant to employ the Petitioner in
Cassation/the Plaintiff which constitute the second
extended IMTA that Definitely it may be said that IMTA
is the basis for extending KITAS and not other way round.
However, instead of using the regulation as the basis
for considering in passing the verdict, the

Judex

Facti Judges prefers to choose the revoked rule which

declared not longer valid, namely that Decree of the
Minister of Manpower and Transmigration of the Republic
of
the

Indonesia

Number:

Kep.20/Men/III/2004

Procedures for Obtaining

Expatriate

concerning
Employment

License as the legal basis;

That basically the element of "Definite Period" of the
Manpower Relationship has been affirmed in sustainable
Page 29 of 40

manner

in

the

supporting

documents

on

the

Use

of

Expatriate, among others Application for RPTKA, Approval

and Ratification of RPTKA, Evidence of Payment for
Compensation Funds of the Use of Expatriate and IMTA.
In other words, any document shall specify the expatriate
use period to be employed by the Employer in which
this time period derived from the application of the
Employer

and

then approved by

the Minister

or

the

relevant Officer based on the applicable regulation/

rule;
That in the Conclusion, the Petitioner in Cassation/
the Plaintiff has several time used the Regulation of
Minister of Manpower and Transmigration of the Republic
of

Indonesia

Number:

Per.02/MEN/III/2008

concerning

the Procedure for the Use of Expatriate through the

Minister of Manpower and Transmigration of the Republic
of Indonesia as legal ground in affirming the arguments
of

the

Petitioner

in

Cassation/the

Plaintiff,

but

carelessly, mistakenly and negligently the Judex Facti

Judges has used the Decree of the Minister of Manpower
and Transmigration of the Republic of Indonesia Number:
Kep.20/men/III/2004

concerning

the

Procedure

for

Obtaining Expatriate Employment License withdrawn and

declared no longer valid as legal ground to pass this
Verdict;
Page 30 of 40

Realizing the carelessness of the Judex Facti Judges

conducted in fatal manner in giving legal considerations,
it should be wondered about whether the Judex Facti
Judges does not master the Manpower materials that
should be mastered very well by the Judex Facti Judges
or

the

Judex

Facti

Judges

has

other

interests

in

passing this Verdict;

2.

That the Petitioner in Cassation/the Plaintiff acknowledges the difference between the calculation of Posita
and Petitum due to the mistakes of the Petitioner in
Cassation/the Plaintiff but the Respondent in Cassation/
the Defendant is not at a loss due to the difference as
the number of Petitum is smaller than the Posita and
by nature the calculation is not much different;
It is really not wise if the facts have shown the mistakes
of the Respondent in Cassation/the Defendant but the
lawsuit/claim

is

not

accepted

due

to

groundless

difference of the posita and petitum as the difference

of the posita and petitum in this case is not the
basic difference as in the difference of land/person
identity that may cause object mistake/error;
3.

The Judex Facti Judges has mistakenly concluded the

calculation of compensation made by the Petitioner in
Cassation/the Plaintiff and the daily calculation that
Page 31 of 40

then

questions

the

Plaintiffs

status

as

daily

employee.
That Law Number 13 of 2003 concerning Manpower only
recognizes

Employment

Relationship

with

Employment

Agreement of Definite Period (PKWT) and Employment

Relationship with Employment Agreement of Indefinite
Period (PKWTT). Though one of PKWT forms is Freelance
Daily Worker, the status of the Petitioner in Cassation/
the Plaintiff cannot be categorized as Freelance Daily
Worker

as provided

for

in

the

Regulation

of

the

Minister of Manpower Number: PER.06/MEN/1985.

The Judex Facti Judges has mistakenly considered this
because the provision made as the basis by the Petitioner
in Cassation/the Plaintiff in doing the calculation
i.e. Article 157 paragraph (2) is the provision on
the wage to be paid based on daily calculation and not
the provision on daily employee;
4.

That the Judex Facti Judges has mistakenly applied the

law by treating/considering the calculation of compensation being the same as the severance pay and bases
the legal consideration on Article 156 paragraph (2)
of Law Number: 13 of 2003;
That the severance pay and/or merit pay for the term
of service as referred to in Article 156 paragraphs
Page 32 of 40

(2) and (3) of Law Number 13 of 2003 concerning Manpower

is only valid for workers with Employment Agreement
of Indefinite Period and not for workers with Employment Agreement of Definite Period because:
A)

The calculation of severance pay as referred to in

Article 156 paragraph (2) stipulates the calculation
of severance pay with the term of service of eight
(8) years or more;
And the calculation of the merit pay for the term
of service as referred to in Article 156 (3) stipulates the calculation severance pay with the term
of service of twenty-four (24) years or more;
The

provision

may

not

certainly

be

applied

to

workers with the Employment Agreement of Definite

Period as based on Article 59 paragraph (4) of Law
Number 13 of 2003 concerning Manpower, the Employment
Agreement of Definite Period may only be held for
at most two (2) years and may only be extended one
(1) time for a period of one

(1)

year,

so

the

maximum term of service of the worker with the

Employment

Agreement

of

Definite

Period

shall

only be three (3) years;

B)

That the calculation of compensation for Workers

with Employment agreement of Definite period has
Page 33 of 40

been specifically provided for in Article 62 of Law

Number 13 of 2003 concerning Manpower stating "If
either party terminates the Employment Relationship
before the expiry of time period specified in the
Employment Agreement of Definite Period or the
termination of employment is not due to provisions
as referred to in Article 61 paragraph (1), the
party

that

terminates

the

employment

agreement

shall be required to pay the compensation to other

party in the amount of wage of worker/laborer till
the time limit of employment agreement period is
expired".
That

based

on

the

above-mentioned

regulation/rule,

the Company in this case the Respondent in Cassation/

the Defendant has the obligations to pay compensation
of seven hundred eighty million seven hundred eighty
thousand rupiahs (IDR 780,780,000.00) to the Petitioner
in Cassation/the Plaintiff for having terminated

the

employment contract by sending letters on the sponsorship

discontinuation

of KITS

on

September 23,

2011

and

October 26, 2011 in which before the time period the

employment contract expired on July 31, 2012;
That the Judex Facti Judges by virtue of their dictum of
verdict stating the Plaintiffs lawsuit is unacceptable
Page 34 of 40

based on the conclusion of unclear lawsuit of the Petitioner

in Cassation/the Plaintiff though accurate material facts
and juridical facts are presented have proven that the
Judex Facti Judges has neglectfully performed the legal
obligations to elicit, follow and understand the sense of
justice of the public;
LEGAL CONSIDERATIONS
Considering that with regard to the above-mentioned
arguments/reasons the Supreme Court is of the opinion:

Regarding the first to fourth reasons/arguments:

That the reason/argument is not justifiable and therefore after examining carefully the Memorandum of Cassation
dated

November

Cassation

dated

2,

2012

December

and
20,

the

Contra

2012

in

Memorandum

relation

to

of
the

considerations of Judex Facti, in this case the Industrial

Relations Court with the Denpasar Court of First Instance
has

not

mistakenly

applied

the

law

in

the

following

considerations:
That objection by the Petitioner in Cassation is not
justifiable because Judex Facti has been correct and right
in making judgment, in considering and in applying the
law;
Page 35 of 40

That the lawsuit/claim filed by the Plaintiff is not

clear because it fails to show the employment relationship
between the Plaintiff and the Defendant, which matter may
be proven by no lawful evidences that show the existence
of such employment relationship;
Considering that from the above-mentioned considerations, it is evident that the Verdict of Judex Facti in
this case is not in contradiction of the law, and therefore
the Petitioner

in Cassation

Mr. MICAHEL

ALLAN EPSTEIN

must be rejected;
Considering that because the petition in cassation
from

the

Petitioner

in

Cassation

is

rejected

and

the

Petitioner in Cassation is the injured/aggrieved party,

the Petitioner in Cassation is sentenced to pay the cost
of the Court case in this cassation level.
With due observance of Articles of Law Number 2 of
2004,

Law

Number

regarding Judicial
regarding

the

13

of

2003,

Law

Authorities, Law

SUPREME

COURT

as

Number

48

Number 14

already

of

2009

of 1985

amended

and

supplemented by virtue of the Law Number 5 of 2004 and the

second amendment of thereto by virtue of Law Number 3 of
2009 as well as other related laws and regulations.
TO PASS JUDGMENT

Page 36 of 40

1.

To

reject

the

petition

in

cassation

from

the

Petitioner in Cassation: MICHAEL ALLAN EPSTEIN;

2.

To

sentence

the

Petitioner

in

Cassation/the

Plaintiff to pay the costs if the Court case in

this cassation level amounting to five hundred
thousand rupiahs (IDR 500,000.00);
In witness whereof it was decided in the consultative
meeting of the SUPREME COURT on Thursday, March 27, 2014
by H. Mahdi Soroinda Nasution, S.H., M.H., the Judge of
the Supreme Court as designated by the Chairperson of
Supreme Court as the Presiding Judges, Arief Soedjito,
S.H., M.H., and Bernard, S.H., M.M, Ad Hoc Judges of the
Industrial Relations Court (PHI) with the Supreme Court
respectively as the member of the Panel of Judges and on
the same day the said verdict was read out in an open
session of the court on by the Presiding Judge in the
presence of the said members of the Panel of Judges and
assisted by Edi Saputra Pelawi, S.H., M.H., a Substitute
Clerk of the Court and not attended by the Parties.
Members of Panel of Judges
signed / Arief Soedjito, S.H.
signed / Bernard, S.H., M.M.

Chairman
signed
H. Mahdi Soroinda Nasution, S.H., M.Hum

Costs:

Substitute Clerk
Page 37 of 40
signed
Edi Saputra Pelawi, S.H., M.H.

Stamp Duty.... IDR

6,000.-

Editorial..... IDR

5,000.-

Cassation Adm. IDR 489,000.---------------------------+

Total......... IDR 500,000,SUPREME COURT OF THE REPUBLIC OF INDONESIA
O.b. Clerk of the Supreme Court
Junior Clerk for Special Civil Cases
officially
stamped

signed

Rahmi Mulyati, S.H., M.H.

NIP. 19591207 198512 2 002

Page 38 of 40

NOTES I:-----------------------------------------------------It is hereby recorded that the Verdict of the Supreme

Court of the Republic of Indonesia dated March 27, 2014
Number: 56 K/PDT.SUS/2013 has been informed to H.M. Rifan,
S.H., M.Hum (Attorney at Law of the Petitioner in Cassation)
on Tuesday, December 9, 2014;-------------------------NOTES II:----------------------------------------------------It is hereby recorded that the Verdict of the Supreme
Court of the Republic of Indonesia dated March 27, 2014
Number: 56 K/PDT.SUS/2013 has been informed to PT. Sehat
Utama Agung (the Respondent in Cassation) on Tuesday,---December 9, 2014;--------------------------------------Clerk of
the Industrial Relations Court
with the Denpasar Court of First Instance,
signed
I KETUT SULENDRA, SH.
For the issuance of Official Duplicate
Clerk of the Industrial Relations Court
with the Denpasar Court of First Instance,
officially stamped
by the Court

stamp
duty

signed

I KETUT SULENDRA, SH.

NIP. 19571231 197603 1 002
Page 39 of 40

NOTES: ------------------------------------------------------It

is

hereby

recorded

that

the

Photocopy

of

the

Official Duplicate of Verdict of the Supreme Court of the

Republic of Indonesia dated March 27, 2014 Number: 56
K/PDT.SUS/2013 has been issued/granted to/at the request
of Kario Lumbanradja, SH. (the Attorney at Law of the
Respondent in Cassation) on Friday, December 12, 2014;--________________________
I, the undersigned, Manimbul Luhut Sitorus, a certified, authorized and sworn
translator, by virtue of the Decree of the Governor of Jakarta Special Capital Region
number 5226/1998 SK GUB DKI, dated June 17, 1998, hereby state that I am
competent to translate from Indonesian into English, and further certify that I have
translated the "Verdict of the Supreme Court of the Republic of Indonesia
Number: 56 K/Pdt.Sus/2013 in the Case between MICHAEL ALLAN EPSTEIN
as the Petitioner in Cassation and PT. SEHAT UTAMA AGUNG as the
Respondent in Cassation" from Indonesian into English; and to the best of my
ability the said translation is true and accurate.
Jakarta, January 8, 2015

_________________________________________________
Manimbul Luhut Sitorus
Certified, Authorized and Sworn Translator
Head Office

: Komplek Rukan Sentra Pemuda Kav. 14

Jalan Pemuda No. 61 Jakarta Timur 13220
Indonesia
Phone: +62-21 4711363; 4893355
Branch Office : Gedung Trisula 2nd Floor
Jl. Menteng Raya No. 35 Jakarta Pusat 10340
Indonesia
Phone: +62-21 3914542; 3902574
Page 40 of 40