On 20 July 2018, the Ministry of Manpower (MOM) posted a note on Facebook (Link) saying they wished to refute two claims that we made in the article Jaynal lost hs case at ECT; was the tribunal’s decision sound? which can be found at this link.

This is our response to MOM’s statement (“refutations”)

First of all, MOM appears to ignore two preambulatory statements we made near the top of our article: that the article was a review of the case notes and that “what he told us went like this”. In other words, the article was a record of what the worker said, as recorded in our case notes.

Like many stories that support the mission of TWC2, we aim to capture the subjective perspectives of migrant workers. We hope to show readers what their lived experiences are like, what their information landscape is like. This is in order to arrive at a better understanding of their vulnerabilities, disadvantages, and the reason why they make certain assumptions or decisions, based on the situations they have found themselves in.

Do they always know the absolute facts of everything that is going on around them? In the real world, no one does. Migrant workers are no exception. This is especially when MOM itself has generally preferred to remain non-transparent about their policies and decisions, not only towards workers but even towards NGOs and the Singapore public.

Totality of evidence

Simply because it’s a more straightforward issue, we will deal with MOM’s second “refutation” first.

In their statement, MOM described our claim in a misleading way. MOM wrote

Claim: Jaynal was owed seven months of salaries by his employer and he lacked evidence to prove his case as he was made to pre-sign blank salary vouchers

And then went on to say that

judges do not treat signed vouchers as conclusive of the matter, but also look at the totality of the evidence presented to them.

It’s a red herring of a response. We never said that judges should treat signed vouchers as conclusive or that judges should not look at the totality of the evidence presented to them. Instead our point was that the present regulatory framework disadvantages workers like Abedin Md Jaynal over their access to evidence. Specifically, we pointed out that MOM’s own inaction (over electronic payment of salaries) handicaps workers like him by not assuring them of better evidence of salary payments or non-payments.

We wrote:

TWC2 has long argued that rules should be in place to mandate all salary payments to be made by bank transfer. That way, simply producing bank statements would help workers like Jaynal show that no salaries had been paid. It would make for a fairer balance of evidence at ECT.

Thus, MOM’s “refutation” is actually a deflection from this point we made. MOM should own up and explain their mysterious resistance to a very important suggestion we have put forward.

Expecting us to know the unknowable

MOM’s first refutation is also, to a degree, a deflection of an argument. However, it is a more layered issue and we must necessarily go into some contextual detail in order to explain it.

MOM wrote:

Claim: MOM did not approve Jaynal’s transfer to a new employer because his former employer owed foreign worker levies
Fact: This is false. Jaynal’s transfer was rejected because he had worked illegally for other employers without a valid work pass and had thus committed offences under the Employment of Foreign Manpower Act.

We are surprised at how TWC2 came to the conclusion that the rejection of the transfer was because of owed levies. Channels to clarify policies with MOM are available to them. We urge TWC2 to engage in truthful advocacy that involves verifying details of the case, instead of relying heavily on a one-sided account.

We don’t understand how MOM is “surprised”. We said very clearly in the article that it was from what Abedin Jaynal told us – that his transfer was rejected because of owed levies.

MOM in its statement said (in effect) that we should have known better, and that our article should have carried the “true” reason for the rejection.

Firstly, that’s not what the article was for. It was meant to convey the worker’s perspective and the issues that spring from them. It was not a story about MOM’s inner doings.

But more importantly, the “true” reason would in all likelihood have been unknowable, to both Jaynal and TWC2. We will explain why below. But the point is: It is completely unfair for MOM to slam us for not presenting the “true” reason when MOM jealously guards its non-transparency, as can be seen from its operating protocols and track record.

When MOM rejects a transfer application (such as in the case of Abedin Jaynal) MOM does not as a matter of rule inform the worker of the reason. MOM may provide some kind of reason to the employer, but even this is possibly haphazard and vague. We can see from a statement to Parliament made by none other than the Minister of Manpower a confirmation of this very policy of not providing the reason to the worker.

On 9 July 2018, the minister was asked what channels are open to the worker and employer to find out the reason for rejection of Work Permit applications. In her reply, Minister Josephine Teo said that “applicants can check with their employment agents or prospective employers.” There’s a glaring omission in her reply. She offered no avenue for a worker to obtain the reason directly from MOM. Thus, it’s clear that it is not MOM’s policy to communicate reasons to applicants (workers) themselves.

She added that “Where there are security concerns, the reasons for rejection may not always be specified” which thus also suggests that in some cases, there will be no clarity in the matter.

So, how can Jaynal be expected to know the true reason? He can only hear it from third parties, who, for any number of reasons including self-serving ones, may provide him a different or false answer or vague hints that could mislead. Jaynal cannot be faulted for being misinformed. In turn, our records show what he told us as to what he believed at that point in time.

There is no information — not even in MOM’s refutation — that Jaynal was ever informed that he had “committed offences”. As far as we know, he was not charged, nor was he given any due process to refute these accusations. On the face of what little has been revealed by MOM’s statement, it appears to be an internal judgement made by MOM that affected the man’s transfer application, and it’s not clear that it was ever conveyed to the worker at the pertinent juncture.

MOM in its “refutation” asserts that “Channels to clarify policies with MOM are available” for NGOs like TWC2 to find out facts.

In actual practice, TWC2 has observed that MOM does not often answer our questions to any useful degree of clarity even when we ask. Over the months, we have compiled a long list of questions that we have put in that have gone unanswered. In many instances, we do not even get an acknowledgement.

For MOM to boast of such channels is to lay themselves open to questions about façade and substance.

There have been other cases when we’ve asked, either through email or phone, why a particular worker’s transfer application was rejected, and the most common response we get from MOM is to advise the worker to check with the prospective employer. MOM has generally not revealed the reasons to us. It does not seem to be their practice. In fact, going by the minister’s parliamentary reply, they may even have a hard rule that they will not reveal directly to NGOs asking on behalf of workers, just as they will not directly inform workers. Why? We don’t know and MOM has not explained.

If MOM thinks that their query window is so effective, they might (a) explain why they have adopted a policy of giving non-transparent answers, and (b) actually begin to give precise and substantive answers for a change.

With particular respect to Jaynal’s case, the worker didn’t come to us asking for help in overturning the rejection. He came to us for help over his salary claim; the rejected transfer was water under the bridge by that point in time – a point made clear in our article. We would have no reason to ask MOM why the Work Permit application was rejected since it would have no bearing on the matter that Jaynal wanted help with.

But as the foregoing has explained, even if the matter had not been incidental to Jaynal’s case, we would have had no effective way of getting clarification from MOM given their track record of not answering such questions.

For MOM to now say we should have known and should have stated in our article the real reason for the transfer rejection is completely unfair and overlooks their own self-erected barricades to transparency and accountability.