Our Stand: Work permit holders should be free to change employers and stay longer

Posted by on October 17, 2013 in News, Our Stand

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Transient Workers Count Too believes that the present system wherein workers’ work permits are tied to employers with little scope for transfer is an unhealthy state of affairs. TWC2 would like to see the system changed to one where the general rule is that work permit holders have a right to change jobs within their defined industries at any time, without having to obtain permission (“release”) from their existing employers.

This statement clarifies TWC2’s stand on this subject, setting out proposals which we would urge the authorities to implement as soon as possible. We are guided by the hope that generally speaking, workers should be staying in work in Singapore for eight to ten years on average, with short breaks for home leave. This is the kind of duration for enough skills and experience to be acquired in order to give substance to the aim of improving productivity. Longer stays also help with social and cultural adjustment, lessening misunderstanding and friction with other communities.

TWC2 proposes that migrant workers, coming out of one job, should have one full month to look for a new job, with an additional month if he or she so requests.

Most likely, the document legalising their stay in Singapore while they look for new jobs would be a Special Pass, but since there are other kinds of Special Passes, so for better clarity in this paper, we will use these working names to refer to the two job search periods mentioned above:

0.01  “Job Search Special Pass” — the first thirty days, and

0.02  “Job Search Extended Special Pass” — the second thirty days.

white_10x40COE_key_proposalsMuch of the existing foreign worker framework sets out employers’ obligations with respect to accommodation, medical care, upkeep and support. Consequently, while we propose the freeing up of the labour market to allow existing work permit holders to look for new jobs and the creation of this class of Job Search Special Passes, it is necessary to also discuss how employers’ obligations fit into the new scheme. This we do below.

A key consideration is whether the worker loses his job suddenly, where “suddenly” means less than 30 days’  notice. It is very hard for a worker to find alternative accommodation, for example, unless he or she has the time to do so.  TWC2 proposes that in such circumstances, the employer should remain responsible for housing them for the first 30 days of the Job Search Special Pass. Otherwise, workers should be responsible for their own accommodation.

Thus, this discussion is bifurcated. Section 3 below discusses how workers with “sudden” job loss should be supported by the system, while Section 4 discusses situations where a worker can foresee his impending joblessness.

 

TWC2 recognises that there are other circumstances when a worker is placed on a Special Pass, e.g. when he is under medical treatment or awaiting resolution of a work injury compensation (WICA) claim. The issue of accommodation (and subsistence) for these type of Special Pass holders — and it can be a very long period stretching over two years — is addressed in a separate paper. Nonetheless, there remains the question: At what point does the worker obtain the freedom to search for a new job, and be put on a Job Search Special Pass? Section 5 discusses this.

And what about workers who suffer a serious illness or injury that is not work-related? This is dealt with in Section 6.

First however, the drawback of the existing framework, typing work permit holders to employers, has to be recognised.

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1. Present system and how it works against productivity improvement

Under the present system, a work permit holder is tied to an employer, who would have placed a bond to guarantee repatriation of the worker when the work permit expires or is cancelled. This creates perceived difficulties in allowing a worker to change employer: if the worker is not repatriated, how is the bond to be discharged?

Objectively, the difficulty doesn’t exist, or is easily solved. So long as another employer places a new bond, it should be straightforward to discharge the previous employer from the old bond.

In fact, TWC2 has noticed that the Ministry of Manpower (MOM) has lately been using its discretion to grant more workers who have salary claims against their employers the option of changing employers. This suggests that bond replacement has been shown to work. It is also noted that in the domestic worker segment, “transfer” is a fairly common practice — though an employer’s release is still required, which TWC2 considers an unnecessary and burdensome requirement.

TWC2’s stand is that all workers who are fit to work should be free to change employers and seek new jobs should they wish. Only in the most exceptional circumstances, e.g. when a worker has been convicted of a serious crime or suffered a substantial injury and permanent incapacity, should this option not be available to him.

The current system creates negative outcomes in several ways, especially when considered against the background of high placement fees charged by employment agents and the consequent indebtedness suffered by workers:

1.01   It gives excessive leverage to employers, some of whom are tempted to exploit such leverage unfairly, e.g. through underpayment of salaries, illegal deductions, or working without adequate safety equipment;

1.02   It can lead to under-reporting of abuses and shortcomings in employment and work safety practices when workers are disempowered and fearful of losing their jobs;

1.03   It opens the door to “worker-churning”, since employers have near-total freedom to send workers home and replace them with fresh intakes;

1.04   As a consequence of 1.03, it tends to undercut efforts to improve productivity as experience and experientially-acquired skills (including social and communication skills interacting with workers from other communities and Singaporeans) are lost.

Another argument that may be made against the freedom to change jobs is that allowing work permit holders to do so may encourage job hopping and thus raise manpower costs for employers. In TWC2’s view, the real defect lies elsewhere: It is precisely because manpower costs have been artificially depressed by the rigidity and one-sidedness of the present system, that employers have found no incentive to invest in productivity improvements. Employers have become addicted to artificially low wages. Allowing workers to change employers, mirroring the freedom of employers to change employees, will help restore a healthy level of wages, thereby providing a floor to wages for lower-skill work in Singapore. This will have useful flow-through effects to Singaporeans with similarly low-skill levels, as well as signal to employers the importance of investing in productivity.

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2. Need to restrict intake of fresh, inexperienced workers

Even when workers are allowed to seek new jobs locally without first being repatriated, take-up by employers may be too low, thus defeating the aim of retaining skills and experience. From TWC2’s viewpoint, two stumbling blocks are likely to be:

2.01   Employers may believe the workers already here and looking for jobs are more “difficult” workers;

2.02   Employers often ask workers to pay for their jobs.

Both can be traced ultimately to employers being confident that little, save the foreign-to-local manpower ratio, stands in the way of bringing in fresh workers, who may be more compliant, and possibly pay more per head for their jobs. It is for this reason that, to promote the retention of experienced workers already here, something must be done to restrict the intake of fresh, inexperienced workers.

Of 2.01 and 2.02 mentioned above, the first is an attitudinal problem that time and experience will probably mitigate, when the option to hire fresh new workers is restricted. Based on conversations TWC2 has had with employers, many see workers who have been on Special Passes (even when the reason was their employers’ failure to pay salaries, thus no fault on the workers’  part) as “trouble-makers”. “They know too much about their rights,” was how one employer put it. This suggests that workers seeking change of employer locally are likely to face considerable resistance from companies. In turn this means that policy-makers ought to counteract this resistance using other levers.

The problem outlined in 2.02 is an open secret. Workers who have been permitted by MOM to seek new employers have told TWC2 that typically, employers ask them to pay to be taken on. Anecdotal information suggests that the rate asked is between $1,000 and $1,500, roughly equivalent to the going rate that work permit holders are often required to pay their employers when their work permits are renewed — a kickback that is also illegal but widespread.

This common practice of asking migrant workers to pay for their jobs is, crudely put, a case of employers exploiting their State-given bargaining advantage for private gain. This advantage comes from the knowledge that they have near-total freedom to bring in new workers, from India, Bangladesh, China, etc, who are prepared to pay much larger sums to employment agents. It is widely suspected among newly-arriving workers that a portion of what they pay finds its way to the employer. In fact, there have been several occasions when workers have reported to TWC2 verbal conversations wherein it was made clear to them that indeed a part of their “agent money” had gone directly to the employer.

COE_impede_fresh_workersTWC2 notes that such “kickbacks” are illegal, but the continuing ubiquity of reports indicates that enforcement is either low priority or nullified by evidential difficulties. It is compounded by the reluctance of workers themselves to lodge formal complaints to the authorities, for fear of losing their jobs. This too points to the way the near-total freedom of employers to bring in fresh new workers wreaks havoc across a swathe of other public policy objectives.

In order that workers have a realistic chance of securing a change of employer locally, the “open-door” policy for new workers should be curtailed. Undoubtedly, it is going to be tricky finding the right balance. Too tight and Singapore may face a labour crunch in the relevant sectors; insufficiently tight and experienced workers already here can’t find alternative jobs and are compelled to go home, thus depriving Singapore of experienced workers. As the need is for a mechanism that is flexible, TWC2 does not recommend any quota. Instead we recommend that applications for work permits for persons who have never worked in Singapore before, or who have stayed away for more than three years, be subject to a slight delay in processing, e.g. sixty days. That way, employers will soon realise that to obtain the manpower they need — at least within a short time frame — they should look to hiring workers who are seeking change of employer locally; i.e. they should look to hire from among workers with Job Search Special Passes or Job Search Extended Special Passes.

This delay period can be lengthened or shortened as needed. MOM should have no difficulty picking up real-time data on how many workers are in their 30-day or 60-day job search period since the ministry is in control of issuing Special Passes. As numbers of foreign workers on Job Search Special Passes increase, the delay in processing applications for fresh new workers can be lengthened, and vice versa, in order to maintain an appropriate level of positive pressure in favour of workers already here and with experience.

There is one bonus to be had in getting employers to hire migrant workers already here in preference over those fresh from aboard, and it is that should an employer ask for or receive a kickback, the illegal act takes place within Singapore jurisdiction. What is very difficult to police with fresh workers still in their home countries and using job agents there becomes a lot easier to catch when employers have to negotiate with workers right here within this country. Workers who have been in Singapore a while and enjoyed first-hand the benefit and security of a 30-day job search period, may also be less fearful and more prepared to blow the whistle on errant employers.

Whilst the proposed general rule that workers exiting a job be given 30 days (plus 30 more on request) to look for a new one may sound neat in principle, how it is applied in various real-life situations can get complicated. The sections below recommend ways to apply the principle in various foreseeable situations. These situations basically fall into three broad types.

2.03   where worker finds himself quite suddenly without a job;

2.04   where a worker is able to foresee that at a certain point, he will be without a job;

2.05   where job search follows a period in which he had been recovering from an injury.

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3. Suddenly without a job

 

A worker may find himself quite suddenly without a job in two ways:

3.01   when he is terminated at short notice and his work permit prematurely cancelled by his employer;

3.02   when his work permit is cancelled by MOM for reasons to do with employer infringing the rules;

A worker in either of these situations should be given a 30-day Job Search Special Pass, with employer responsible for accommodation and meals for the first 30 days. It is not right to expect the worker to obtain his own accommodation at such short notice.

The reason for linking accommodation with meals is that if an employer gets to choose where to house a worker, it may well be at a distant location where the worker simply has no food options at all. Hence, in this paper, where accommodation is provided by an employer, it should also come with responsibility for supplying meals of a sufficient nutritional standard and compatible with a worker’s dietary and cultural expectations. Logistically, this requirement should pose difficulty to employers who anyway arrange for a caterer to deliver meals to their working workers as a matter a routine.

Upon his request, the worker should get a 30-day extension for his job search, thus Job Search Extended Special Pass, but for this additional period, he should be responsible for his own accommodation (and meals).

It should be illegal for an employer to repatriate a worker during these job search periods.

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4. Foreseeable joblessness

A worker should be able to foresee joblessness in certain situations:

4.01   his work permit expires and his employer has informed him 30 days in advance that it will not be renewed;

4.02   he resigns from the job of his own volition.

A worker in either of these situations should likewise be given a 30-day Job Search Special Pass (with his option for extension), but the chief difference with Section 3 situations is that the employer does not have to be responsible for the workers’ accommodation during the first 30 days. The worker should be entirely able to anticipate that he would need to get his own alternative accommodation.

If an employer fails to give a worker 30 days’ notice that the work permit will not be renewed, then it should be considered a “sudden”  job loss situation, as per 3.01 above.

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5. In the case of a worker who has suffered an injury, and admitted into the Work Injury Compensation Act (WICA) process

In many instances of  workplace accidents, employers terminate a worker and cancel the work permit soon after realising that the injury is serious and the recovery process may be lengthy. While WICA provides some protection, there are many gaps and defects that leave workers who are recovering from injuries in the lurch. However, this is not the place to discuss the weaknesses of WICA in detail, except that it is necessary to dovetail the available protections from WICA with new proposals we are making here, so that we eliminate the gaps through which workers can fall.

The period between an accident and the conclusion of the WICA process can be divided into four broad parts:

5.01    A period when the worker is certified to be under medical leave, but less than twelve months after an accident;

5.02   The worker is still certified to be under medical leave, but it has been more than twelve months after an accident;

5.03   The worker is certified to be under “light duties” or has no certified medical status at all, but is still receiving treatment or occupational therapy;

5.04   The worker has completed medical treatment but is waiting for medical board assessment, or waiting for the results of the assessment.

The total period can be as long as 24 – 30 months between the accident and until the final Notice of Assessment (post-all objections) is issued.

WICA only mandates income support in period 5.01, at two-thirds of Average Monthly Earnings (note: not two-thirds of basic salary as often, wrongly, practised by MOM case officers).

WICA offers no assistance to workers in period 5.02, 5.03 or 5.04. This is clearly an insupportable situation; workers must have a means of survival.

One possibility is to permit workers in periods 5.02, 5.03 and 5.04 to seek new jobs (Change of Employer), but working when they have not completed treatment may aggravate the injury, as well as complicate the assessment of permanent incapacity. TWC2 does not think this would be a good idea.

Instead, TWC2 proposes that when the entitlement to medical leave wages lapses, but the WICA process is still not concluded, then the obligation of the former employer to provide “maintenance and upkeep” (under Work Pass Regulations) should kick in, and “maintenance and upkeep” should be rated similarly at two-thirds of Average Monthly Earnings. Accommodation and meals should also be provided by the former employer. These two obligations should continue until the final Notice of Assessment.

Our proposal has two huge advantages:

5.05   No worker, who is not allowed to work (as a condition of his WICA Special Pass), shall be left homeless and destitute;

5.06   There will be no incentive for employers to drag out the medical treatment and assessment process, because the longer it drags out, the longer they will have to keep providing income support to the worker. Dragging out the process includes commonly-reported complaints such as employers refusing to provide letters of guarantee to hospitals, or making objections to assessment points.

In effect, there should be a seamless transition between medical leave wages provided to those in 5.01 and “maintenance and upkeep” for those in phases 5.02, 5.03 and 5.04.

At the point when the final Notice of Assessment is served to the worker, there should also be some determination whether a worker is fit to resume working, or is so incapacitated that he should return home. A simple rule of thumb may be that any worker whose final Notice of Assessment awards him ten points or fewer shall be considered fit to resume work. In such a case then, TWC2 proposes that the worker’s WICA Special Pass be replaced with a 30-day Job Search Special Pass from the date the final Notice of Assessment is served. The worker should be responsible for his own accommodation past this point.

A further 30-day Job Search Extended Special Pass should be available upon request.

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6. In the case of a worker who has suffered an injury, but not admitted into the WICA process

Likewise, for a worker who has suffered a non-work-related injury, a mechanism needs to be set up to determine whether the injury is minor enough that after a week or two, he is fit to work. If he is but his employer has cancelled his work permit, thus leaving him with no job to return to, then MOM should issue him a 30-day Job Search Special Pass. The employer should provide accommodation and meals for this 30-day period, since the disruption to the job had not been foreseeable, and the worker would have no time to plan for alternative accommodation.

Thereafter, at his request, the Special Pass can be extended a further 30 days, but accommodation and meals should be at his own expense.

If, on the other hand, the injury is judged to be too serious to expect quick recovery, then he should be repatriated when doctors certify him fit to travel. The employer should provide accommodation, meals and “maintenance and upkeep” (rated at two-thirds of Average Monthly Earnings) until repatriation.

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7. Summary table

This table brings together the different scenarios, and indicates for each, when the 30-day job-search Special Pass should commence, and who should be responsibility for accommodation during that period.

COE_summary_table2

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8. Admission into WICA should be decided within 30 days of injury report or accident report

On a side note, TWC2 is concerned that an increasing number of workers report that their former employers have denied that the accident was work-related months after the event, when all witnesses or other evidence have become unavailable, and that MOM, on receipt of such employer denials, then put the burden of proof on workers to show that it had been a work-related incident in the first place. This is grossly unfair. Not only is an impossible burden of proof placed on the worker after this lapse of time, he faces the possibility of having all hospital and medical expenses, and all previously-received medical leave wages reversed; he would have to pay the entire amount back.

As a matter of good administrative practice, MOM should be prompt and conscientious, and bind itself to making a determination whether an incident is work-related or not, within thirty days of the initial injury report or accident report. No objection should be entertained after 30 days.

 

TWC2 is an organization that is dedicated to assisting low-wage migrant workers when they are in difficulty. We are motivated by a sense of fairness and humanity, though our caseload often exceeds our
means.

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