Without work, Abubakar (right, above) was not getting any money and had to depend on free meals served by TWC2, but it wasn’t because the scaffolder wasn’t willing to work. It was simply because his boss was penalising him for refusing to take a pay cut. The boss had not assigned him to any work site for weeks.
Rafiqul (left) and Abubakar were just the visible end of a large group of abused workers, whose predicament shows up the ways in which employers exploit loopholes in the Ministry of Manpower’s foreign worker system, loopholes so large, one can drive an earth-mover through. Their cases also show how, even when there are rules, employers ignore and circumvent them because enforcement is known to be weak.
Their stories started like this: Both paid $3,200 to $3,500 to an employment agent in Bangladesh for job placement and arrived in Singapore in early April 2011. The agent had promised them jobs that paid a basic salary of $660 a month — a figure that was stated in the In-principle Approval for Work Permit (IPA). They roughly figured that, with a bit of overtime and saving about $300 a month, they would recover the cost of the agent’s fee within about a year.
However, when they arrived, they were told the salary would be $20 per day or about $$520 a month. There was some overtime, at a rate that was 1.5 times the basic rate, but working on Sundays was also computed at 1.5 times — when Singapore’s Employment Act stipulates that it should be 2 times the basic rate.
They put up with it.
But they noticed something fishy quite early on. Their Work Permits stated that their employer was Sumitomo Mitsui Construction Company Limited, but they never had any dealings with this company, which they called “main con”. When they tried to get help from Sumitomo Mitsui for their current difficulties, the maincon waved them away, saying that they were not responsible for them.
The men were in effect employees of another company, which they called “subcon” (in this story, we shall refer to it as Subcon-Y) and the “boss” referred to above was the boss of this company. Their salaries were also paid by Subcon-Y.
“Why didn’t Subcon-Y apply for your Work Permits directly?” TWC2 asked the men.
“They don’t have quota,” Rafiqul and Abubakar said, seemingly sure of their facts. “They have pending case at MOM.”
It sounded as if Subcon-Y was being investigated by the Ministry of Manpower for previous abuses.
After working about five months, the workers were told in batches that they were expected to sign fresh employment contracts with a new employer, which shall be referred to in this story as New Employer-C. However, Subcon-Y would remain their active boss. It is not clear what the relationship was between New Employer-C and Subcon-Y. One possibility is that they were related companies, with New Employer-C set up to obtain foreign worker quotas where Subcon-Y could not.
The sticking point was that the new contract stipulated an even lower salary of $420 a month, which naturally led to great unhappiness among the men. But Subcon-Y told them that whether they liked it or not, their existing Work Permits under Sumitomo Mitsui would soon be cancelled. If they wanted to continue working, they had no choice but to sign the new contracts. The alternative? They’d be sent home.
By the time TWC2 came to know of the case, about 150 workers had grumpily signed new contracts with guns figuratively pointed at their heads.
Twenty, including Rafiqul and Abubakar, had refused and were looking to the Ministry of Manpower for a fair resolution. For their nerve, they were penalised by not being assigned any work. Abubakar also had to surrender his Work Permit to the boss — what for, he didn’t know, but TWC2 suspected that it was likely for cancellation. Subcon-Y might probably be looking to bundle him onto an early flight home.
At the time of writing, there were another fifty workers getting increasingly anxious that the same Hobson’s Choice would be presented to them soon.
Rafiqul’s and Abubakar’s case reveal several glaring flaws and unanswered questions in the Singapore’s foreign worker policy:
1. When the In-principle Approval for the Work Permit (IPA) states a basic salary of $660, does that not mean that this figure should be the contractual basic salary?
2. Why is there no system to assure workers how long that promised salary is valid for? Can an employer say that the promised salary is only for the first month? Or just the first day? Should it not be for the duration of the Work Permit, since the IPA is related to the Work Permit?
3. ‘Contract substitution’ is a term that describes a situation in which one party (in this case, the worker) is for all practical purposes compelled to accede to a new contract with inferior terms, because the option to refuse carries a cost that is extremely high (e.g. a huge monetary loss or risk of physical hurt). It is generally considered a form of human trafficking.
3a. Did the initial contract presented to the men after arrival stipulating a salary of $520 instead of $660 mentioned on the IPA constitute contract substitution and therefore human trafficking?
3b. Did the attempt to pressure the men — on pain of losing their jobs altogether and being sent home — to agree to a new contract with New Employer-C for an even lower salary of $420, constitute contract substitution and therefore human trafficking?
4. When a contract stipulates a basic salary of, for instance, $660, employers of foreign workers often pro-rate it to mean a daily rate one-twenty-sixth of it (i.e. about $25 a day), and then apply it as if the men are daily-rated. But when an employment contract and IPA states a monthly basic salary, does it not mean that the employee is monthly-rated?
5. If the employee is monthly-rated, does it not mean that he should be paid the basic monthly salary regardless of whether the employer assigns work to him or not?
6. How can an employer refuse to assign work to the employee and then treat those days as if the worker had asked for no-pay leave, and refuse to pay him for those days? Does the Ministry of Manpower consider this practice acceptable?
7. Why are companies that obtain foreign workers by “borrowing quota” from other companies not detected by the Ministry of Manpower? Didn’t anyone notice that the levy was paid by a different company?
8. Is “loaning quota”, and then telling the workers that the employer-in-name is not responsible for them a practice acceptable to the Ministry of Manpower? If not, why are employers doing this, confident they can get away with it?
9. Why are companies confident that they can get away with paying only1.5 times the basic pay rate for overtime work on Sundays, when it should be 2 times by law?