The story “Cannot sleep…. I remember my wife’s crying” described the injustice done to Bangladeshi worker Humaun. He came to Singapore for a promised job only to be told there was none for him. The job offer had been properly documented through an In-principle Approval for a Work Permit (IPA) from the Ministry of Manpower, a letter that MOM issues to signal its approval for an employer’s application to employ to foreign worker. Humaun had no reason to doubt that the offer was genuine and he paid over $3,000 to the recruiter to obtain this job. It is unlikely that he can recover any of that sum back.
Although, in the other story, Humaun spoke of seven other workers besides himself, a total of 25 men from the same company, Jabel Process Engineering Pte Ltd approached TWC2 around the same time. Perhaps Humaun did not know the other men.
At TWC2, we see such cases quite regularly. Every few weeks a new group from a different company will approach us with a similar tale.
It will strike any reasonable person that such false (or at the least unfulfilled) promises should be criminal, especially since they lead to substantial financial losses for the victims, besides the emotional suffering they endure. Indeed, there is a clause in the law that (sort of) addresses this, but as this paper shows, it is poorly worded, rendering it ineffective. TWC2 has not heard of any recent prosecutions under this clause, which anyway is quite new, dating from 2012.
The law and why it falls flat
The provision can be found in the Employment of Foreign Manpower Act (EFMA). Section 22B makes it an offence to fail to employ someone after inducing him or her to come to Singapore for work. It says that any person who:
(a) obtains a work pass for a foreign employee for a trade or business that does not exist, that is not in operation or that does not require the employment of such a foreign employee; and
(b) fails to employ the foreign employee,
shall be guilty of an offence and shall on conviction be punished with imprisonment for a term of not less than 6 months and not more than 2 years and shall also be liable to a fine not exceeding $6,000.
However, Humaun’s case shows up the deficiencies of this law’s phrasing.
Firstly, the trigger for the offence is “obtains a work pass”. Jabel Process obtained an In-principle Approval for a Work Permit (IPA) from MOM. But it did not convert this into a Work Permit. Is obtaining an IPA sufficient to meet the meaning of obtaining a work pass? It remains unclear.
Secondly, at least one of the three conditions in (a) must apply.
(i) a trade or business that does not exist
(ii) is not in operation
(iii) does not require the employment of such a foreign employee
Jabel Process is an existing business — it was registered in 2002 — and so (i) does not apply. From accounts TWC2 heard, it is an operating company, or has been for some years, so (ii) probably doesn’t apply. As for (iii) “does not require”– that seems very difficult for any prosecution to prove since is is based on rather subjective business calculations.
The deficiency in the phrasing therefore makes it impossible to prosecute any existing and operational company for bringing in workers and failing to employ them, since the prosecution may never be able to satisfy the first limb of Section 22B.
Furthermore, the manner in which MOM handled this case could have made it impossible to prosecute, not through any blunder on the ministry’s part, but through trying to be compassionate in at least a limited way.
MOM made the company pay each man $500, this being the basic salary as stated in the IPA. This helps the men recover a small part of what they paid to agents to come here, but Jabel Process could then argue in its defence that, having paid them one month’s salary (albeit at MOM’s insistence), they have, technically speaking, “employed” the men. For one month. Thus Jabel could assert that they did not fail to employ them, and that limb (b) of Section 22B cannot be considered satisfied.
Poorly-worded laws, coupled with a lack of a properly-designed victim protection system, make a mockery of the system.
A better way is to make it an offence simply if an employer fails to convert an IPA into a Work Permit within 30 days of the worker’s arrival in Singapore. TWC2 has also urged (see our Universal Periodic Review paper) that instead of getting employers to pay one month’s salary when a worker’s IPA is not converted, the law should require such employers to pay compensation to the workers. A reasonable scale of compensation should be:
- six times the basic salary (as stated in the IPA) if employer fails to convert the IPA into a work pass, or if employer terminates the worker after less than a month on the job;
- five times the basic salary if employer terminates the worker after only one full month on the job;
- four times basic salary if terminated after only two full months on the job;
- three times basic salary if terminated after only three full months on the job;
- twice basic salary if terminated after only four months on the job;
- basic salary-equivalent if terminated after only five months on the job.
By calling it compensation, and making it a provision in law distinct from salary, it makes it clear that such payment does not constitute employment. Compensation paid may be admissible as mitigation, but it should not absolve or complicate the criminal liability, the way the present resolution method (“Pay your workers one month’s salary!”) does.