Part 4: MOM begins at last to respond to changing circumstances

In Part 2 of this series, we described how workers with salary claims often pointed to the stated salaries in their In-Princple Approvals for Work permits (“IPA”) [footnote 1] as the basis for their claims. However, the Ministry of Manpower (“MOM”) itself took the stance that the IPA was not a contract and the ministry’s Labour Court [footnote 2] had no consistent method for determining correct salaries. Sometimes it referred to IPAs, sometimes it ignored them.

Workers who had misplaced their IPAs or had this document forcibly taken away by their employers faced an added difficulty in pressing their claims. MOM would not provide reprints of IPAs.

Then in November 2017, the High Court set down the rule that the salary stated in the IPA would be, at least prima facie, the correct salary.

In Part 3 of this series, we discussed how, prior to the High Court ruling, employers protected their interests through three means:

  • By asserting that an oral contract existed that had a salary different from the IPA;
  • By submitting a written contract which the worker said he never saw or signed (but sometimes bore a forged signature purported to be the worker’s);
  • By illegally altering the printed copy of the IPA before passing it to the worker so that the worker would not know what the true IPA said.

With the High Court ruling, the above strategems were, if not wholly eliminated, gravely weakened.

At the same time, it became necessary for MOM to provide courts with certified information about the salary as originally declared by the employer in the work permit application (and thus the IPA). Continued refusal to provide reprints of the IPA would not do.

There was also the introduction of the Employment Claims Tribunal (“ECT”) in 2017. Salary disputes were moved from MOM’s Labour Court to the ECT which came under the State Courts.

What then followed was a bumbling series of missteps as MOM tried to adjust to a new reality. Each step looked either like a quick fix that caused new problems or new uncertainties, or like a poorly thought-out solution in response to an imprecise order from higher-up. Observing what was happening gave us considerable insight into the work culture within the ministry.

The Employment Claims Tribunal

TWC2 has observed that unlike the manner in which Labour Courts used to handle salary disputes, the ECT has a more rigourous process. There was more regard to rules of evidence and procedure.

The rigour demanded by the ECT would boomerang on MOM. By design, a mediation stage conducted at MOM by the Tripartite Alliance for Dispute Mediation (“TADM”) was mandatory before a case could go to the ECT. TADM had to certify that mediation failed and also the claim amount.

Through most of 2017 and 2018, case after case had problems with the amount stated in the referral certificate. The manner by which MOM/TADM arrived at the claim amount just didn’t meet the standard of rigour required by the ECT. Partly, it was an institutional culture problem: MOM had never developed in its Labour Courts any standard method (grounded in law) for determining correct salaries or amounts owed, and the bad habits flowed into TADM.

In several cases that TWC2 helped workers with, we had to apply to TADM and the ECT for leave to amend the claim amounts that TADM came up with. We knew that the calculation behind the claim amounts in TADM’s referral certificates were not defensible if we went by law; they would seriously handicap the worker in pressing his salary claim.

We won’t go further in a discussion of this problem since it will lead beyond the scope of this series of articles. The only two points to take away is that the ECT would begin to pay more attention to

  • The IPA as the reference document for determining correct salary
  • The “Section 6A” requirement (which we will explain in Part 5 of this series)

Missteps on the way to unearthing the original IPA salary

Part 2 had described how, through many years, MOM refused to provide workers with reprints of IPAs. MOM never explained its stance to flabbergasted workers. With the High Court ruling in Lui Huaxi v Haniffa Pte Ltd, this became untenable. If the court needed to know the IPA salary in order to adjudicate a case, how could MOM refuse to provide?

We don’t know if this is the impetus or if it was just coincidental, but a new form appeared in the second quarter of 2018. Titled “Your Current Salary Details” and available to workers on request, it provided the salary details (as stored in MOM’s computer system) as at the date of request.

At left is an example of such a form, obtained by a worker we’ll call AHF. You will see (click to open) that the information provided was “as at 13/06/2018, 2:15pm”.

AHF started on this job on or around August 2017, ten months earlier. What was the use of details “as at 13/06/2018, 2:15pm”? What AHF wanted to know was the salary stated in the work permit application and IPA so that he could work out how much he was owed. The form he received didn’t satisfy AHF, nor would it satisfy the ECT which, guided by the Liu Huaxi ruling, would want to know the IPA salary too.

Maybe the salary “as at 13/06/2018, 2:15pm” was no different from the original IPA salary; maybe no amendment had been made since, but the form was totally silent on this.

This embarrassment of a form didn’t survive long. By late July or August 2018, another form surfaced. This one was titled “Your Salary Details”; example below.

And still it was fascinating, to put it euphemistically. In this case the worker, whom we’ll call MHI, actually commenced on the job around October 2017, but as you’d notice, the form he received (click on thumbnail at right) said

Your employer declared to the Ministry of Manpower (MOM) on 22/03/2018… that your salary is as follows

followed by a figure of $1,600.

The MOM officer who passed the form to MHI also told him that originally, the employer had submitted a salary figure of $750. But since the form had no place to state history, this fact was only delivered to him verbally.

More generally and troublingly, the information given verbally to MHI also indicated that employers could change salary information in MOM’s system at will. Or almost at will. Perhaps all it took was for the employer to notify MOM of a change and MOM officials would automatically key in the new figure. Even prior to MHI coming to us with his problem, TWC2 asked MOM how exactly this worked and what checks were applied; we did not get any meaningful reply. Instead, it was made known to us privately told that MOM resented our even asking these questions.

Nonetheless, this “Your Salary Details” form was an improvement over its predecessor. In MHI’s case at least, it established a basis for calculating salary since 22 March 2018, which was all he needed. But it was entirely fortunate that the change made by the employer in MOM’s records was an upwards revision. If it had been a downwards revision, it could fall foul of “Section 6A” and create another set of problems regarding its legality.

What is “Section 6A”? Part 5 will discuss this requirement and the further changes MOM made in 2018 in respect of this.

[1] The IPA process is almost entirely online. When an employer wishes to employ a foreign worker, he or his licensed employment agent logs into MOM’s system to make an application for a work permit for this worker. A host of details, including salary details, has to be provided.

If MOM approves the application, the employer or his agent can then print two versions of the IPA in paper form. One version is for the employer and the other is for the employee. The key details including those items listed above are the same, but there are some details that only show up in the employer’s copy, such as the amount in monthly levy, but not in the employee’s copy. And vice versa.

The employer or his licensed agent is supposed to send the employee’s copy to the prospective worker, so that he has it in hand when arriving at Changi airport. He needs to show it to immigration.

[2] The “Labour Court” is a colloquial term to mean a hearing before the Commissioner of Assistant Commissioner for Labour. It is an administrative tribunal under the aegis of the Ministry of Manpower.

Introduction

Part 1

  • Language and late passing
  • A very contingent market solution

Part 2

  • Salary terms
  • Regulatory confusion
  • Adding to the mess: opacity, forgery and witnesses with conflicts of interests
  • Widening purpose of the IPA and refusal to provide reprint
  • High Court ruling changed everything

Part 3

  • Getting around IPAs in salary disputes
  • Brazenly disavowing the salary figure in the IPA
  • Forged payment vouchers and contracts
  • Doctored IPAs
  • System defect?
  • Changes coming

Part 4

  • MOM begins at last to respond to changing circumstances
  • The Employment Claims Tribunal
  • Missteps on the way to unearthing the original IPA salary

Part 5

  • Section 6A requirement
  • New form: “Your employer reduced your salary”
  • Notification to the worker notwithstanding, it was all ‘not allowed’ anyway
  • Major policy change: no more reduction from IPA salary

Part 6

  • Where we are now
  • Transfer workers
  • Renewed work permits