Amendments to the Employment of Foreign Manpower Act (EFMA) were tabled before Parliament on Monday, 13 August 2012 by Acting Manpower Minister Tan Chuan-jin. It is likely that debate and passage will take place about a month later.
Transient Workers Count Too welcomes most of the proposed amendments; they represent important steps in the right direction to better empower the Ministry of Manpower in dealing with problems commonly faced by low-wage migrant workers in Singapore.
However, TWC2 is conscious of the fact that having broad powers in place does not by itself solve the problems. Legislated powers need to be operationalized through equally exhaustive by-laws (Regulations) and a demonstrated commitment to enforcement.
We believe the ministry will be updating its Regulations consequent to the amendments to EFMA, though at this point in time, we do not know what the intended changes to the Regulations will be. We also urge the ministry to strengthen its commitment to enforcement, for in the past even when powers were in place, many workers’ problems were left unattended to for lack of enforcement.
The changes that strike TWC2 as significant to our area of work relate to:
(a) Powers to attach conditions to in-principle approvals and work passes that relate to duties of employers both during employment and post-cancellation, revocation or expiry of the work passes;
(b) The creation of a new set of ‘prescribed infringements’ with financial penalties that can be imposed by the Controller of Work Passes.
(c) New proposed Section 20 that extends the liability of businesses for wrongdoing to individuals who make the decisions.
(d) Broader net cast as to who might be considered “associates” of a debarred person engaged in a business substantially similar to that of the debarred person;
(e) More explicit language banning employers from demanding or receiving payments as consideration for giving new or continuing employment;
However, there are a few areas of concern:
(f) Heavy penalties and presumption of guilt with submission of fake documents by employees, who may not be the primary actors in such offences;
(g) Heavy penalties on workers for being employed without a valid work pass, which can be a tool for traffickers to keep control over their victims;
(h) Illegal to bring in workers when there is no work and fail to employ them.
(i) Lack of a simple mechanism for workers to recover their owed monies and compensation even when so ordered by MOM.
(A) Attaching conditions to in-principle approvals and work passes
Pursuant to (a) above, TWC2 urges the Ministry of Manpower (MOM) to enhance the EFMA Regulations (First Schedule: Conditions of Work Permits) by attaching obligations and duties of employers relating to Work Permit holders during employment as well as post-cancellation, revocation or expiry.
During employment, conditions which will make salary disputes much easier to resolve, and will consequently reduce instances of non-payment of salaries are:
- Requiring accurate timesheets with copies given to employees on payday;
- Requiring itemized pay slips to be given to employees;
- Salaries should be required to be paid into employees’ bank accounts.
TWC2 urges MOM to add these conditions to all Work Permits issued.
Workers who have been injured or have unfulfilled salary claims, or who have been deprived of their jobs as a result of wrongdoing by employers (e.g. failure to pay levies on time) often stay on Special Passes for months, even years, for medical treatment and compensation or to await resolution of their cases. TWC2 has dealt with thousands of workers who have been denied prompt and necessary medical treatment, left with no income or means of survival, and left homeless.
TWC2 urges MOM to require, by means of new conditions to Work Permits, employers to provide such workers on extended stay
- all continuing necessary medical care,
- housing (to a standard consistent with other authorities’ requirements),
- a subsistence allowance sufficient for meals, transport, etc, pegged to the Public Assistance amount applicable to Singapore citizens (currently $400 for a single person per month, cash grant). If this amount has been judged to be the absolute minimum for a Singapore citizen to survive in this city, surely we also need to recognise that a foreigner in the same city, in similar circumstances of illness, injury, inability to work (due to MOM’s own Special Pass conditions) and absence of family support here, will need the same quantum. The difference should be that employers who brought these workers in be held responsible for these persons rather than the state.
These duties of employers should remain in place until the worker has been repatriated to his home country, or transferred to another employer. The duties (except medical care) may be suspended for the duration that a worker is successfully placed in a temporary job under the Temporary Job Scheme.
(B) The creation of a new set of ‘prescribed infringements’ with financial penalties that can be imposed by the Controller of Work Passes
TWC2 understands that MOM wants to improve the efficacy of enforcement, and in this connection, has created a set of administrative infringements that attract financial penalties. These infringements relate, inter alia, to failure to comply with conditions attached to work passes or in-principle approvals and employers deducting from salaries, demanding or receiving payments from workers for any cost or charge that ought to be borne by the employer.
If MOM attaches conditions to work passes and in-principle approvals along the lines as proposed by TWC2 in (A) above, enforceable through this provision (B), this will go some way to reducing instances of mistreatment of workers, and TWC2 urges MOM to do so.
(C) Extending the liability of businesses for wrongdoing to individuals who make the decisions
TWC2 welcomes the improved provisions for holding individuals who make business decisions responsible for the harm so caused. Many employers hide behind the limited liability of “private limited” companies when it comes to failure to pay salaries, provide medical care, buy insurance or pay injury compensation. They declare the business bankrupt and thereby evade their legal obligations.
The new Section 20 makes any officer of a body corporate equally liable as the business or company if the offence is attributable to his consent, connivance or neglect and the term “officer” is spelled out to include directors, partners, managers or anyone purporting to act in such capacity.
TWC2 hopes MOM will be using this new provision effectively to stamp out situations when limited liability companies fail to pay, provide medical treatment for, or compensate workers.
(D) Broader net cast for meaning of “associates” for purposes of debarment
Pursuant to (d), the additional language proposed by the Amendment Bill will help in providing guidance to the Controller in being watchful that previously sanctioned employers do not continue to hire foreign employees via new business fronts or with the help of other persons under their influence or control, such as relatives, spouses and Singaporean employees.
TWC2 hopes MOM use such powers unsparingly and will henceforth be more stringent about not allowing errant employers to continue receiving work permit quotas via associates or parallel business set-ups. While TWC2 does not have access to statistical data in official records, our anecdotal observations indicate that hitherto, MOM has used this power to debar employers when they failed to abide by MOM rules on levy payments, quota manipulation and worker deployment, but employers who have mistreated workers (but not flouted MOM administrative rules), e.g. through not paying salaries, not providing medical treatment or injury compensation, are free to hire new batches of workers, without even setting up new front companies. TWC2 has seen instances when new batches of workers are again similarly abused.
TWC2 urges MOM to view mistreatment workers as seriously as any violation of MOM”s administrative rules, and enough to warrant debarment. MOM should vigilantly apply the new powers against using associates to obtain fresh work passes.
(E) More comprehensive language banning kickbacks
TWC2 welcomes the more comprehensive language banning the widespread practice of employers receiving kickbacks for hiring foreign workers, or for renewing their work passes.
However, we remain acutely aware that the practice may be deliberately hidden away in cash transactions or under misleading documentation.
This practice will not be eliminated unless the authorities become a lot more proactive about enforcement on this front. TWC2 suggests that MOM enlists the help of the income tax authorities. In instances where prima facie evidence of such practices surface, e.g. in reports by employees of unusually high upfront fees or unexplained deductions from salaries, a tax audit should be conducted on both the employer and his employment agent.
There are a few items in the Amendment Bill that raise concerns.
(F) Submitting fake documents
TWC2 has encountered cases where employers, wanting to hire foreign workers doing menial jobs on low wages but finding themselves without the needed Work Permit quotas, resort to hiring foreigners on S-Passes and even Employment Passes. To do so, employers and their agents submit falsified qualifications and declare inflated salaries in order to meet the conditions of the S-Pass or Employment Pass.
The often-lowly educated worker is either unaware that fake qualifications have been submitted on his behalf or is led to believe that such deceit is widespread and normal practice, and that in any case, if he himself does not countersign the submissions whenever asked to, he would not be able to avail himself of that much-desired job. Moreover, foreigners, especially those still in their home countries prior to taking up their jobs, may not have access to knowledge of Singapore law, and to the severe penalties for such falsification.
The Amendment Bill enhances penalties for submission of fake qualifications, to a fine not exceeding $20,000 or imprisonment not exceeding 2 years, or both.
In addition, the Amendment Bill introduces a presumption that anyone who makes an application for a work pass, or any part of an application, has knowledge of any falsehood contained within. The burden of proving innocence falls on the applicant.
TWC2 is concerned that the realities inherent in the work pass application process, in the case of low-wage workers, may be glossed over by the law. Power differentials between employers and prospective employees and information asymmetry between them should surely change the balance of culpability.
On the other hand, TWC2 accepts that the law isn’t there to suit just the kinds of cases we see (i.e. among low-wage workers). There will be the occasional instance where a self-employed S-Pass or Employment Pass holder is solely responsible for submitting fake documents. In such a case MOM may need to have tough laws with heavy penalties. The law has to span all circumstances.
TWC2 urges that MOM and prosecutors be highly conscious of the possibility of extenuating circumstances – where power differential and information asymmetry indicate that employees could have been duped into submitting documents or signing off applications that contain false statements. In such situations, prosecutorial discretion needs to be exercised.
(G) Employment without a work pass
TWC2 is concerned about the longer jail term that can be imposed on employees working without a valid work pass, compared with that imposed on employers.
An employer, if an individual, who employs someone without a valid work pass is now liable to a fine not exceeding $30,000, or imprisonment up to 12 months, or both.
A worker, employed without a valid work pass is liable to a fine not exceeding $20,000, or imprisonment of up to 2 years, or both.
Why is the maximum jail term twice as long for the worker?
Such a heavy sentence can be used as a tool by traffickers to induce fear in persons they have under their control, or whom they have brought into Singapore without proper work passes. The worker or victim, fearing that exposure of the illicit arrangement he or she is under will lead to severe penalties on himself or herself will be deterred from blowing the whistle or seeking help.
(H) Illegal to obtain a work pass for a business or job that does not exist AND not employing the worker so brought in
The proposed new Section 22B of EFMA makes it an offence to “obtain a work pass for a foreign employee for a trade or business that does not exist, that is not in operation … and fails to employ the foreign employee.”
Indeed, TWC2 has seen cases that resemble such a situation. Companies whose object is to supply workers to other companies, in the marine or construction sector, sometimes buff up their foreign workforce but leave them idle and unpaid when they cannot get the requisite number of subcontracts.
However, making it necessary to prove both limbs of the proposed of the offence — that is, that the work does not exist AND fails to employ the worker – may undercut the usefulness of the law. An employer can argue that the work does exist, but is delayed outwith his control, or that he has employed the worker, only that salary payments have been delayed.
While TWC2 agrees with the intention of this new Section, we urge that the language not be so limiting.
(I) Law still inadequate in helping workers recover owed payments and compensation
TWC2 is disappointed that the proposed amendments do not address a major failing in the existing system. Errant employers ordered to settle owed payments, especially work injury compensation, have been seen by TWC2 to ignore and flout such orders with impunity. MOM tends to consider its role accomplished at the point of issuing such orders without ensuring that they are carried out.
Nothing in the proposed amendments creates a simple mechanism for workers to obtain satisfaction. Telling workers that they can hire a lawyer to sue employers in court and then insisting that the worker return to his home country is to ignore the impracticality of it and the reality that access to such justice is costly (often beyond the means of low-wage workers).
TWC2 urges MOM to design a better and simpler system for workers to obtain redress and due payments.