Legal Perspective of Religious Festivity Allowance (Tunjangan Hari Raya)

1.            Introduction

Religious Festivity Allowance (THR) is right of the employee regarding to Indonesia regulation. The issue of THR is one of sensitive in Indonesia. Under Government Regulation Number 78 of 2015 concerning of Wage Jo Law Number 13 of 2003 concerning of Man Power issued the THR as one of employee’s right. Article 7 paragraph (3) Government Regulation Number 78 of 2015 mandates the Ministry of Employment to issue the Ministry Regulation regarding to THR.

on March 8^th 2016, Ministry of Employment issued regulation Number 6 of 2016 concerning on Religious Festivity Allowance for employees at the Company (Regulation 6 of 2016). The Regulation 6 of 2016 is replaced the Ministry of Employment Regulation Number 04/MEN/1994 concerning to THR (Regulation 4 of 1994).  Under the new regulation there is several new change of the ruling.

2.            Religious Festivity Allowance (THR)

a.      Definition

      According to article 1 number 1 of Regulation 6 of 2016 Jo Article 6 paragraph (1) Government Regulation No. 78 of 2015 , THR is income non salary that obligatory to be paid up by entrepreneur to employee or his/her family in date towards the religious festivity.

      The religious festivity according to Regulation 6 of 2016 has been widely defined are:

·         Idul Fitri day for muslim;

·         Christmas for Catholic and protestant;

·         Nyepi for Hindus;

·         Waisak for Buddhist;

·         Imlek for Konghucu.

b.      THR Obligation

Article 2 paragraph (1) Regulation 6 of 2016 stated that, THR is obligatory given  by entrepreneur to employee who has been worked  minimum 1 (one) month continuously or more. It different with old regulation (Regulation 4 of 1994) that requires 3 (three) months work to get THR.

The right of THR is given to employee who along to industrial relation in kind of work agreement neither of definite periodic employee or indefinite periodic employee.

c.       The Amount of THR

According to article 3 Regulation 6 of 2016, the amount of THR can be divided into 2 (two) types:

·         Employee who has been worked for 12 (twelve) months continuously or more is given once month salary;

·         Employee who has been worked for 1 (one) month continuously or more, but less than 12 (twelve) months is given the THR proportionally as service period. Hereby the calculation:

      The Amount of THR can be higher as regulation was setting up, it is according to the internal rules of company (work agreement, collective work agreement, company regulation, etc), but the company can not pay below the regulation was setting up.

d.      THR of Freelance Worker

      To calculate the freelance worker THR shall be first to calculate the month’s salary of the worker. Hereby the calculation of salary for daily freelance worker according to Regulation 6 of 2016:

·         Worker who has been worked for 12 (twelve) months or more is calculated according to the average salary that accepted for 12 months;

·         Worker who has been worked less than 12 (twelve) months is calculated according to average salary each month.

      After the salary of freelance worker has been gotten, so the amount of THR is followed the calculation as the normal employee as point c above.

e.       Payment of THR

      According to Article 5 Regulation 6 of 2016, THR shall be paid to employee once a year towards religious festivity. The regulation was ruling that, before 7 (seven) day of religious festivity, the entrepreneur shall pay the THR to employee.

f.       Type of Payment

      The type of THR payment in kind of Rupiah (Article 6 of 2016), it different with Regulation 4 of 1994 in article 5 that stated the type of payment can be in kind of others type (not Rupiah),  except alcohol and drugs, no more than 25% of total payment.

g.      Breach of Employment Relation

      According to Regulation 6 of 2016, THR is given to indefinite periodic employee who is breached of employment relation in 30 days before the religious festivity,  it is exceptional  for the definite periodic employee.

h.      Replacement of  Employee

      The employee who replaced to other company with continuously working at new company has right to get THR from the new company, if the old company has not given THR.

i.        Sanction

      According to Regulation 6 of 2016, if the company/entrepreneurs late to pay THR to their employee is punished to pay 5% of fine without abolish thier obligation to pay THR to its employee.

      But if, the company/entrepreneurs does not pay THR to its employee according to article 11 Regulation 6 of 2016 Jo Government Regulation Number 78 of 2015, the company is imposed administrative sanction as follow:

·         Written notification;

·         Restriction  of business activities;

·         Temporary or permanent suspension of some or all production facilities;

·         Suspension of business activities.

j.        Implementation

      The New Regulation (Regulation 6 of 2016) becomes effective since the date, it was issued (March, 8^th 2016).

3.            Similarity and Differences of Regulation 4 of 1994 and Regulation 6 of 2016

a.      Similarity

      Comparing to Regulation 6 of 2016 to Regulation 4 of 1994, there is several similarity:

·         THR is given either for definite periodic employee or indefinite periodic employee;

·         THR is given to indefinite periodic employee if, end of employment relation before the religious festivity.

·         THR shall be paid up, seven day before religious festivity;

·         Replacement of employee get THR;

·         The proportional calculation is similar, but the requirement of minimum service period is different.

b.      Differences

Differences	Regulation 4 of 1994	Regulation 6 of 2016
Religious Festivity	·      Idul Fitri day for muslim; ·      Christmas for Catholic and protestant; ·      Nyepi for Hindus; ·      Waisak for Buddhist;	·         Idul Fitry day for muslim; ·         Christmas for Catholic and protestant; ·         Nyepi for Hindus; ·         Waisak for Buddhist; ·         Imlek for Konghucu.
Minimum Period of Service	3 (three) months	1 (one) month
Type of Payment	Rupiah and can be in kind of others good, except alcohol and drugs, no more than 25% of total amount.	In kind of Rupiah.