Reflections: Wica and Labour Court processes

Posted by on November 27, 2016 in Articles, Facts, research, analysis

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Most interns who spend 6 – 9 weeks with TWC2 are asked to wrap up their internship with an essay on a specific topic. Law student Pranay Arvind Suryavanshi spent his mid-year vacation 2016 with us assisting with casework and the Labour Court Research Project. In the process, he came across many foreign workers who had suffered workplace injuries and then found themselves in bureaucratic quagmire trying to get fair resolution.

An intern’s reflection on theory and practice: Work injury compensation and Labour Court processes

By Pranay Arvind Suryavanshi

The Work Injury Compensation Act (WICA) was envisioned by the Parliament to be a “piece of social legislation that aims to provide low cost and expeditious resolution of work related injury claims.” Does it live up to its noble goals? Does it function well for all kinds of workers, including Singapore’s most vulnerable group of workers – its unskilled and semiskilled migrant workers? This opinion piece argues that the WICA is well intentioned and theoretically sound, but it does not function well in practice for Singapore’s unskilled and semi-skilled migrant workers. These migrant workers face various difficulties in practice when they make an injury claim under the WICA. These difficulties include:

  1. An opaque claims process
  2. An uphill battle in Labour Court
  3. Forgery – an easy way for employers to deny the claims of workers
  4. A long, painful wait for medical treatment
  5. Continuing hardship even after the worker wins his case in the Labour Court.

Each will be discussed in some detail below.

1. An opaque claims process

It is not easy for these migrant workers to even make a claim. They aren’t informed that they can simply contact MOM and initiate a claim. Ordinarily, they have to wait for their employer to send an incident report to MOM and MOM will then send a claim application form to the employer, who is supposed to pass it on to the worker. However, employers have an incentive to make as few incident reports as possible as they want to keep their injury statistics low. Consequently, this means many employers never file incident reports and the worker’s injury is never made known to MOM or to the insurance companies.

Also, some employers may simply refuse to give the claim application form (that the ministry sent over) to the worker because they fear that if they allow one claim, numerous other workers will similarly start filing claims as well. The injured worker may know vaguely there is an “insurance” process, but without knowing how to go about it himself, typically looks for a lawyer to help him. Others hear about TWC2 from their friends and come to this organisation for assistance.

2. An uphill battle in Labour Court

When the employer admits that an accident occurred at his worksite, injuring a worker, the claim then revolves largely around how much permanent disability has resulted and what the compensation should be. This is a relatively straightforward process involving medical assessment, but even so it can get stuck because there is a dispute over what the worker’s previous salary was. Since the compensation amount is linked to salary, employers are incentivised to misdeclare the worker’s previous salary in order to minimise their liability.

If MOM is unable to resolve a dispute about salary, the matter is sent up to the Labour Court.

Another common reason injury cases are sent to the Labour Court is because the employer insists that no accident or injury occurred.

The Labour Court (presided over by the Commissioner of Labour or one of his Assistants) is supposed to adjudicate these competing claims.

Workers are allowed to represent themselves in Labour Court (LC). Self-representation is a theoretically sound idea because it significantly lowers the legal costs for the migrant worker.  Unfortunately, the workers often have little understanding of the legal points they have to make in Court in order to substantiate their claims. Oftentimes, they end up rambling about their family, their debt and their dire financial situation. This does not forward their case and might confuse the Commissioner or Assistant Commissioner (ACL).

Next, the fight in the Labour Court is unfair in itself. The worker, who does not even have a strong command of English, is pitted against his company, who can appoint someone familiar with local laws and court procedures to represent itself. Sometimes, companies also appoint their lawyers or their insurer’s lawyer to represent themselves. Workers with their low incomes, or having spent many months jobless and income-less, are in no position to engage good lawyers to represent them.

Most times, there were other workers around when an accident occurred. It might appear the simplest thing in the world, should an employer deny that an accident had occurred, to call these other workers as witnesses. However, Singapore regulations make migrant workers highly dependent on their bosses for their jobs and continued stay in Singapore. Bosses can fire workers at any time, and the workers aren’t even permitted to look for new jobs. Given their vulnerability, these witnesses almost always end up testifying for the employer — to say the accident did not occur — for fear of losing their own jobs. TWC2 has yet to see the Labour Court take the position that due to conflict of interest, such testimony should be discounted.

There have been cases where despite overwhelming evidence that a worker was badly hurt, and in the middle of a workday too, the Labour Court would rule that no workplace accident occurred — based on such witness testimony.

Moreover, it is difficult for the worker to satisfy the evidentiary requirements of the Labour Court. ACLs often require the worker to produce original copies of his documents such as his medical reports, medical leave certificates and salary slips (to calculate his previous salary).  However, workers cannot easily get access to these documents as employers often keep these documents from their workers. Workers’ requests for these documents from their employers often fall on deaf ears — again because employers’ interests are diametrically opposed.  Also, workers may be paid in cash and this makes it nearly impossible for them to produce evidence of how much they were paid.

Finally, the documentary evidence which the LC places great weight on may not best reflect the worker’s case. For example, it is often the employer who talks to the doctor on behalf of the injured worker. Thus, the doctor’s words in the medical report reflect what the employer wanted the doctor to hear, rather than reflect the injured worker’s story of how he got injured. In this way, the documentary evidence which appear neutral may actually be biased against the worker’s case.

3. Forgery – An easy way for employers to deny the claims of workers.

Based on this author’s personal experience, forgery of documents by bosses seems to be a common occurrence. Employers often forge documents – e.g. salary slips and timesheets (used to calculate current and future earning potential of the worker so permanent incapacity compensation payment can be made). The Labour Court says that it will only entertain assertions of forgery if the party alleging forgery can prove it. Unfortunately, it is practically impossible for workers to prove forgery. In order to prove forgery, they have to get a forensic examination done at the Health Sciences Authority and this costs a few thousand dollars.

While it is a sound principle that the burden of proof should lie on the claimant, this principle cannot be applied blindly. TWC2 has advocated that anytime an employer presents a document to a court (e.g. employment contract, salary calculation, time sheet) which, at the material time, no copy was given to the worker to retain, then the court should adopt a skeptical view of such ‘evidence’. Any party acting with integrity would give a copies of documents (that have contractual importance) to counter-parties. Failure to do so should be grounds to impeach the reliability of such documentary evidence when presented to a court later.

4. A long, painful wait for medical treatment

The system is such that employers do not have to pay for the medical treatment of the worker until it has been admitted by the employer or proven by evidence that the worker’s injury occurred due to a work-related accident. Only where immediate medical treatment is required is the employer obliged to bear the cost. If the medical procedure is not “immediately necessary” (e.g. to save a life), the employer does not have to pay for it until it is accepted that it was a workplace injury.

The usual procedure is that MOM first investigates each claim to determine if the injury was work-related. As employers often try to dispute that the injury was work related, the investigation process is rather lengthy.  Based on this author’s personal experience, it normally takes MOM six to twelve months to complete their investigation. During this lengthy investigation process, workers are often left languishing in pain with no medical treatment provided for by the employer. This unnecessarily complicates their existing injuries and increases the risk of them becoming permanently disabled.

It should be pointed out that the delays in access to medical treatment is a common problem faced by many injured workers. Employers feel confident in putting forth an argument that the injury was not work related because they know that they can directly or indirectly coerce their other employees into testifying that no one saw the injured worker get injured at work.

5. Continuing hardship even after the worker wins his case in the Labour Court

The injured worker’s troubles continue even after he wins his case and receives a Court Order stipulating the compensation that his employer has to pay him. Often, employers simply ignore the Court Order. The worker, who is unfamiliar with local laws and who has no access to legal aid, is helpless in enforcing the Court Order. The ordinary means of enforcing Court Orders, such as applying for a Writ of Seizure and Sale (WSS) or a garnishee order, is not accessible to the migrant workers because they require legal assistance and have a high initial cost[1]. Moreover, these methods require a lot of time before money is finally extracted from the debtor and migrant workers do not have this luxury – their visas are normally set to expire soon after their Court Order is handed out.

Based on this author’s personal experience, many workers then simply agree to accept a lower sum from their employers or engage the services of a debt collector, who will charge them a commission fee of up to 40% of the total compensation amount that is due to them.

In conclusion, migrant workers face numerous obstacles in initiating a claim, arguing their case before MOM and finally, getting the compensation that is due to them. Their situation is dire and a lot more could be done to help them. This piece does not aim to provide a comprehensive list of recommendations but a helpful summary of the recommendations that have already been made by NGOs such as TWC2 and HOME will be provided.

Firstly, MOM should more actively clamp down on those employers who do not make incident reports when their worker gets injured. This can be achieved via imposing strict penalties on employers who have been found to be negligent in the making of incident reports. Currently, it is not an offence for employer to not make incident report or make them late.

Secondly, there should be more information given to migrant workers to help prepare them for their meetings and hearings so they able to present their case in a clear and understandable way.

Thirdly, there should be a separate fund set up to pay for the worker’s medical treatment while MOM investigates whether the injury is work related. Employers should recompense this fund once it has been determined that the injury is work-related.

Finally, MOM should actively bring criminal prosecutions under S35(2)(a) of the WICA – this section makes it a criminal offence for employers to ignore the Labour Court orders and not pay compensation by the due date.

 

 

[1] It is about $400 as of 3rd August 2016. The stamp fee is $270, while the document filing fee is $83 and the search fee is $16.

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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