Minister of State for Manpower Zaqy Mohamad put up a post on Facebook, 3 August 2020, saying:
In recent interactions, some expressed concerns about recent changes to work pass conditions that appear to empower employers to restrict their workers’ movements.
We have followed up to engage NGOs such as Migrant Workers’ Centre, HealthServe, Transient Workers Count Too – TWC2 and HOME: Humanitarian Organisation for Migration Economics amongst others, to clarify their concerns and assure them that this is not the case.
The new work pass conditions under the Employment of Foreign Manpower Act were introduced as part of Safe Working and Safe Living measures to facilitate the resumption of activities for migrant workers, post-circuit breaker.
Employers must ensure that their workers only leave the dormitory for work (if they are approved to work), or to seek emergency medical treatment or where required by the authorities to evacuate the dormitory. On all other occasions, employers cannot unilaterally impose further restrictions on workers, beyond the prevailing guidelines issued by the authorities.
(emphasis added by TWC2).
The matter being referred to here is the one that TWC2 and HOME raised in a joint public statement on 29 June 2020. See Post-Covid law makes migrant workers prisoners of employers.
In that statement, we pointed out that under the newly amended Regulations, workers may only leave their accommodation with employers’ consent. In effect, employers have now been given almost unfettered power over workers’ movement.
Zaqy Mohamad’s Facebook post clarifies that the law as written does not reflect the Ministry of Manpower’s intentions, and that, as we highlighted in the quoted passage above, “employers cannot unilaterally impose further restrictions on workers, beyond the prevailing guidelines issued by the authorities.”
The problem is that the amended Regulations do not say that. Here are the exact words from Section 2C of the Employment of Foreign Manpower (Work Passes) Regulations | Fourth Schedule, Part III
2C. The employer must not allow, or cause to be allowed, the foreign employee who is a resident of an unregulated dormitory or a licensed dormitory to leave the dormitory unless the employer is satisfied that the foreign employee —
(a) has permission from the Controller to do so; or
(b) is seeking medical treatment or help in an emergency, or is required by lawful authority to evacuate the dormitory,
and may grant or refuse consent to the foreign employee to leave the dormitory for this purpose.
In the first place, it is very badly drafted law. It is not at all clear what “for this purpose” refers to — and note, it is in the singular. Secondly, even if it is argued that “for this purpose” refers to the plural conditions of (a) permission from the Controller, (b1) medical emergency and (b2) evacuation, the plain words say that the employer may still refuse permission even if the Controller has granted permission. So if a worker has suffered a heart attack and presents a medical emergency, the employer is still empowered to deny permission for him to be taken to a hospital.
Following that line of argument, it can easily be argued that if the employer has unfettered power over the worker’s movement even in dire emergencies, it only stands to reason that the employer would have similar unfettered power over any other reason for wanting to leave the dormitory. Otherwise, it makes no sense to give the employer power over cardiac arrest situations, but not give him power over workers wanting to go shopping.
Admit the mistake, change the Regulations
Not only is the law badly drafted, now we have a reluctance by MOM to correct their mistake in a formal way.
A social media post does not override written law. Thus, despite Zaqy Mohamad and MOM trying to reach out to TWC2 to discuss the difficulty that has been created from the mismatch between intent and textual law, we do not think it sufficient merely to make statements on social media.
Just as this section of the Regulations was created, so it can be changed. Just as this section was drafted and enacted in double-quick time, so it can be changed in double-quick time too. Any other half-measure would be unsatisfactory. It would not be in MOM’s interest to give space to speculation as to why half-measures are preferred, speculation that can easily damage the ministry’s credibility.
All it takes is for the last line of Section 2C to be amended from the present
“and may grant or refuse consent to the foreign employee to leave the dormitory for this purpose.”
“and may not disallow or obstruct, or cause to disallow or obstruct, the foreign employee from leaving the accommodation under any other circumstances.”
At the same time, to avoid further confusion, Section 9(1) of Employment of Foreign Manpower (Work Passes) Regulations | Fourth Schedule, Part VI should also be removed. This section’s words referring to “the prior consent of the employer” likewise give unfettered power to employers to control workers’ movement, which MOM now says is not the intent.