Genius Engineering, part 3: nearly 100 skilled electricians lost

Posted by on December 28, 2014 in Articles, News, Our Stand, Stories

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Four months after employees of Genius Engineering and related companies lodged salary complaints with the Ministry of Manpower (MOM), Mouazzam Hossin (pictured above) is still in Singapore, struggling to get something out of what he is owed.

Mouazzam is among the last of the workers still here. Nearly all the rest — there were altogether about 95 workers — have gone home shortchanged and dejected. In essence, there was little by way of remedy.

Two workers from GEC Construction at our office, calculating how much they're owed.

Two workers from GEC Construction at our office, calculating how much they’re owed.

This article is a summary of what happened in the months following the salary complaints. It will provide readers with a fairly typical example of how migrant workers are treated when salaries are not paid. It throws an unflattering light on the migrant worker system in Singapore and on officialdom. One is tempted to say by way of summing up that the outcomes experienced by these workers showed that Manpower ministry officials weren’t successful in helping workers recover their salaries, but such a statement might mislead, for what is apparent from the narrative is that the ministry set a very low bar for itself. Did it ever aim to recover their salaries fully in the first place? Or was it determined from the very start to get the workers to agree to a haircut? That is the question that surfaces.

genius_sidebar1The middle parts of this article will recount what several groups of workers faced. The last part is a discussion about policy failures and necessary improvements.

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Boss said, “Wait, wait, later, later”

Two stories from a little while back, Genius Engineering, part 1 and part 2 provide an account of how the case began. Employees of Genius Engineering Construction Pte Ltd and related companies, all electricians, found themselves without salaries around May 2014. They spoke to their boss but received unsatisfactory replies, mostly in the form of “Wait, wait, later, later.”

Although there was plenty of work, the men began to suspect that the company might be short of cash. By late July, their salaries were three months in arrears, and they had had enough. The boss was also beginning to admit that he had no money to pay them. Group after group made their way to the Ministry of Manpower to lodge complaints.

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Money diverted?

The first men began appearing at Transient Workers Count Too in early August. By then accommodation was also in question. They had been told that the company would only house them at its Balestier Road quarters till the end of the month. In any case, meals were no longer being supplied by the usual caterer. That was probably the trigger the that brought the first group of men to TWC2’s Cuff Road Project, where we serve free meals to workers in need. By the third week of August, we had 44 men under our care.

genius_sidebar2The men said that MOM got the contractor superior to Genius — according to them, the name of this company was Propell Integrated —  to pay Genius for work done, in the hope that Genius would have the cash to pay its workers. This remedy is provided under Sections 65(1) and 65(1A) of the Employment Act.  MOM confirmed to them that Propell did transfer money to Genius, the men told TWC2, but Genius still failed to pay them their salaries. It appears that the money was diverted. Why didn’t MOM insist that Propell pay directly to the workers, in order to ensure that the money would not go astray? And when the money was diverted, what did MOM do about it? Surely Propell remained liable for salaries even if Genius diverted the money, since Sections 65(1) and 65(1A) would not have been satisfied so long as the men remain unpaid. It seemed like a well-intended move by the ministry, poorly executed.

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Pathetic offer from ‘insurance’

see_note_1Among the first to come to TWC2 was Hossain Sanowar , whose English was good enough to tell us what was happening at MOM. He was among a group of 35 who had a meeting at MOM on 19 August. The MOM officer conducting the meeting told the men that the best he could do was to get the insurance company to pay them a portion of what they were owed. Note 1 explains what ‘insurance’ means. According to Hossain, they were given a sheet of paper to sign, on which was written the settlement being offered: Those owed more then $3,000 were offered $1,200. Those owed under $3,000 were offered $1,000.

genius_engg_1830v“Only two or three person signed,” said Hossain (pictured left), observing that they were the ones relatively new to the company. “I think they new man, so they scared.” The great majority of the 35 workers present at the meeting refused to sign, viewing the offer inadequate.

see_note_2“MOM officer then say [if] we don’t sign, we have to go Labour Court,” added Hossain. “He said that one he not care, if [at] Labour Court there, we don’t get anything, he say, ‘don’t blame me’.”

TWC2 has argued before that it makes no sense to only offer the men a small portion of the insured value.  A fuller discussion is in the last (discussion) section.

Part of the reason at least some of the men were unimpressed with the offer was that it wasn’t only salaries in question. Some would have debts as a result of having to pay thousands of dollars in agent fees, which were not factored into their salary claims. Others have previously suffered salary deductions  of $1,500 each for Work Permit renewal. Even though this is illegal, it is common, and employers generally provide no written record of such deductions, without which, MOM will find it hard to take into consideration. So, an offer of $1,200 as settlement for a worker with owed salary of around $3,800 and ‘renewal money’ of $1,500 (total $5,300), is only about 23 percent.

The following day, another 25 men had their meeting at MOM. The ‘insurance’ offer was similar, as was the unenthusiastic outcome.

However, as the weeks dragged on, more and more of the early resisters eventually succumbed, though TWC2 does not have a count of how many.

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Overtime pay “not allowed by judge”

Mouazzam is among the few holding out. He had a Labour Court hearing late November. He won, in a way. The Assistant Commissioner for Labour who presided — the person he calls the “judge” — issued a formal order requiring Genius to pay him his basic salary.

But “OT pay not allowed by judge,” he tells TWC2, because “my time card, he not accept.” Mouzzam had his personal handwritten record of extra (overtime) hours worked, but the original copy would have been taken back by the payroll officer at the end of each month to aid in computing salaries. For the court to include overtime pay owed, however, “Judge say must have original time card, or photocopy of original time card,” Mouazzam explains. “But company never give me the time card, then how?”

So where is the time card now? we ask.

“MOM have. I know boss give all the time cards to MOM officer, but MOM not show judge. I don’t know why like that.”

More 'geniuses' waiting for their turn to consult with a social worker

More ‘geniuses’ waiting for their turn to consult with a social worker

At least Mouazzam did not have a renewal money problem. He had worked at Genius for only eleven months, and his Work Permit had not come up for renewal. On the other hand, he had not yet recovered through monthly earnings the amount he paid the agent for this job. “I pay agent $3,000 for this job. Now how to get back?”

Now he also has to pay $250 in rent. After being turfed out of company quarters, he has been renting a bunk “near Farrer Park”. It would soon become totally uneconomic to continue fighting his case. But it needn’t be so. He could be working at a new job while sorting out the salary arrears from the previous job, though as will be argued below, between MOM disallowing him from looking for new work, and the very strong preference among employers to hire from abroad, a lot is still needed to translate such a imaginative hope into functional reality.

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S Pass employees

Some of the employees were not on Work Permits, but on S Passes, with higher basic salaries. We understand that they were on S Passes, with better pay, because they had technical college diplomas in electrical engineering. Shahalom Mohammed was the first of the S Pass employees to come to us, with a Labour Court order in hand. His case had progressed very rapidly to Labour Court, which ordered his employer to pay $7,800, representing three months of basic salary.

By 22 August, the 14-day period for Genius to pay Shahalom had expired. Genius had not paid. Your writer wrote to a senior officer at MOM drawing his attention to this:

[Shahalam Mohammed’s] case seems to be the most advanced, in that he obtained a Labour Court order in his favour, ordering his employer to pay him $7,800 in unpaid salary by 21 August 2014. Company director Lim Chor Hee represented the employer Genius Engineering at the Labour Court on 6 and 7 August, and personally wrote an undertaking to pay by 21 August.

The employer’s failure to pay as agreed is a bad sign for all the remaining workers.

We urge MOM to impress on the employer and director Lim Chor Hee your intention to apply Section 20 of [Employment of Foreign Manpower Act], holding the company officers personally liable, since the employer has violated Section 22(1)(a), — more specifically contravention of Work Pass Conditions Fifth Schedule Paragraph 1. It may help to remind them that they face imprisonment of up to one year for each count of the offence.

Salary abuses are widespread because MOM is not making it a point to hold directors personally responsible, as provided by law. Employers are too easily allowed to shield themselves through limited liability companies. This case was particularly important to prosecute because we understand MOM had pressed Propell Integrated to pay Genius some money and yet the money was not used to pay the workers.

TWC2 did not receive any reply or acknowledgement from MOM to our email.

TWC2 social worker Karno speaking to a group of S Pass workers from Genius; this group that came today comprised mostly Punjabis.

TWC2 social worker Karno speaking to a group of S Pass workers from Genius; this group that came today comprised mostly Punjabis.

Shahalom was soon followed by several more S Pass employees, all with Labour Court orders in their favour. But here’s an odd thing:  Some orders had overtime pay included even though their basic salary was outside the upper limit for overtime; others had their overtime claims ruled out. It was all messily inconsistent.

S Pass holders did not get any ‘insurance’ offers. The security bond is not a requirement for S Pass holders; there is no insurer at hand.

Needless to say, all their Labour Court orders meant nothing. The employer simply ignored the orders. There is no practical enforcement mechanism for Labour Court orders. 

see_note_3Eventually, the eight Sikh S Pass guys did not want to wait any further. They were offered $100 and a flight ticket back home paid by their employer. They flew home on 3 October 2014. In theory they could have tried to look for new jobs. Unlike Work Permit holders, whose work visas are linked to one employer, S Pass holders can change jobs. We don’t know how hard they tried to find new employment, but TWC2’s understanding anyway is that it would have been very difficult to job-hunt locally. Employers strongly prefer to hire direct from home countries, so the theoretical right to change jobs means little again.

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Employment Act, Sections 116 and 125

In summary, four months on, most of the Genius workers have gone home. As far as we know, not one of them obtained anything close to what they were owed. Some Work Permit holders took the insurance offer of $1,000 or $1,200. Others, including the S Pass guys, had meaningless Labour Court orders not even worth the paper they were printed on. Except for a few still fighting on, they have all returned to India or Bangladesh empty-handed.

On 29 September, your writer wrote another email to MOM pointing out that MOM has not exhausted all available avenues to help the men, even if the men have to go home.

As you may know, several workers from Genius Engineering have approached Transient Workers Count Too for help. Eleven formerly S Pass workers have Labour Court orders in their favour, each for salaries unpaid for about 3 months. In all but one case, the date by which the employer should have paid up has passed, but the workers tell us that they have still not received payment.

As you know, applying for Writ of seizure & sale is not a practical option since it involves considerable upfront costs, money the workers do not have.

The Employment Act provides two additional avenues:

Section 116(1) allows the Commissioner to make an order on the party that is the superior/main contractor above Genius Engineering, to withhold payment to Genius, and instead make payment to the Commissioner.

Section 125(1) allows the Commissioner to “institute such proceedings, civil or criminal … for and in the name of the employee”.

Since it is important that employers should not get away scot free with ignoring Labour Court orders and not paying their employees, could you approach the Commissioner to request activation of these measures?

(A list of eleven S Pass workers with details of their Labour Court orders was attached to the email).

There was no reply.

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Suggestions for policy improvement

note_1Above, it was mentioned that Work Permit holders were offered partial settlement of $1,000 or $1,200 out of ‘insurance’. The ‘insurance’ in question is the $5,000 Security Bond that all employers of Work Permit holders must tender to MOM for each employee. The terms of the bond are very clear: It can be forfeited if the employer fails to pay salaries on time, or fails to repatriate the worker at the end of the work period.

TWC2 has long argued that MOM should simply forfeit the bonds in cases of non-payment of salaries and transfer to workers the full amount they are owed, up to a maximum of $5,000. We have not heard any logical reason why MOM resists doing so.

If there is a fear that in forfeiting the bond, the employer may then consider himself absolved of the obligation to repatriate the worker, such a concern is simply mitigated by giving the worker a bit more and telling him that he has to buy his own ticket home out of the money he has received.

We wonder, though, if the real concern is that if MOM starts forfeiting bonds, the insurance companies (through whom employers execute bonds) would start raising premiums across the board, and this might “hurt business”. Surely this is a bad reason not to do the right thing by the workers. Why should workers suffer injury for fear of making life a bit more expensive for employers?

note_2What the workers call a ‘Labour Court’ is not a judicial court, but an administrative tribunal under the Ministry of Manpower. There are many things wrong with the process. The first is that workers are not allowed representation; even helpers from NGOs like TWC2 are denied access to assist workers. NGOs are banned from observing proceedings entirely.

S Pass workers preparing their documentation before their Labour Court hearing

S Pass workers preparing their documentation before their Labour Court hearing

Workers report all sorts of irregularities including poor translation. An example above is the report by Mouazzam that the MOM case officer failed to provide the Asst Commissioner time card evidence he was holding when that evidence would have been helpful to him.

We also noted above that there was inconsistency in the application of overtime claims by S Pass workers.

However, since we cannot witness and document these irregularities first-hand, we can’t say for sure if these reports are accurate. One is left with the ineluctable impression that shielding the tribunal process from watchful eyes is the probable intent of banning third parties from being present.

The Labour Court should conduct its proceedings in public. At the very least, on the invitation of a worker, NGO representatives should be able to assist him in the tribunal. Presiding Commissioners and Assistant Commissioners should also provide decisions in writing. Poor quality decisions are then more easily challenged through administrative law. These changes will improve the quality of the Labour Court process and its credibility.

note_3MOM may be slowly moving towards allowing Work Permit holders to change employers, a move TWC2 has long argued for. Construction workers will be allowed to do so at the end of each Work Permit period, starting June 2015 (see this news report). S Pass holders have always been free to change employers. However, done in isolation, such a change for Work Permit holders will not likely mean much. There are three additional hurdles that need to be overcome:

1. There is no job marketplace where workers already in Singapore seeking new jobs can be matched up with employers. Instead, employers have well-honed recruitment networks reaching into the villages of India, China and Bangladesh. Effort needs to be put into creating such a domestically-based marketplace.

2. Some employers take a cut of the placement fee paid by workers prior to departure for Singapore. Because the transaction is veiled by its trans-national nature and conducted via middlemen, it is extremely difficult for the authorities to trace and clamp down on such payments, even though they are technically illegal. These employers would be loth to abandon hiring from abroad; it is just too lucrative.

3. Some employers actively resist hiring workers already in Singapore, especially workers who have lodged complaints with MOM. They prefer “fresh” workers, i.e. those new to Singapore, unfamiliar with routes of redress. Perhaps they see these workers as more easily taken advantage of.

TWC2 has proposed that parallel to allowing workers to change jobs, MOM should disincentivise direct hiring from abroad. We have proposed some administrative measures, e.g. delaying approval of Work Permits for ‘fresh hires’ in order to give experienced workers already in Singapore a better shot at getting new jobs.

The example of Genius Engineering is sobering. Here were 95 certified electricians with experience of working in Singapore. Yet, for want for better policies, we have lost virtually all of them. They have gone home, disappointed with Singapore. This is no way to push for retaining skills and experience in the quest for better productivity — our current economic mantra.

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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