At the Migrant Awareness Week organised by students in the law school of National University of Singapore, 3 – 7 March 2014, a whole host of activities were on the calendar. For the forum of 3 March, TWC2 vice-president Alex Au (pictured above with HOME’s Celine Dermine on his left) gave a presentation. Below is the full text with slides.
The panel also included Kandhavel Periyasamy from the Ministry of Manpower, Vanessa Ho for Project X — whose mission is to work with sex workers — and Ronald Wong, a pro-bono lawyer from law firm Rajah and Tann.
The session was moderated by law students Sanjana and Wei Zhen (both pictured below).
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In today’s discussion, we must resist the seductive temptation to speak of law as text. Too often what the text says does not correlate with reality. How law operates, or does not operate, is what should concern us.
Today, I will focus on four ways “law” fails migrant workers in Singapore:
- Where law is needed to protect the rights of migrant workers, but no law exists, and the state resists enacting necessary law;
- Where legislation is ill-conceived or phrased in a muddled way, rendering it ineffective;
- Where the text of the law is straightforward, but administratively, civil servants impose an insurmountable burden of proof on the migrant worker, in effect denying him the prescribed remedy;
- Where clear legislation exists, but are not enforced.
For each case, I will give you an example.
These examples will be drawn from the cases we at Transient Workers Count Too see most often: male workers in the construction and marine industries. They make up a big part of our migrant workforce. The two main problems we see are salary issues and workplace injuries.
The first problem area is where no law exists. For this set of problems, my example is that of salary.
For years, TWC2 has been arguing that detailed itemised payslips should be mandatory, as well as payment through bank or electronic systems. Only recently has the government said that payslips will become so — in about two years’ time (see footnote 1). As for electronic payment – we haven’t heard anything yet.
Why are both limbs necessary?
A significant percentage of workers out there, perhaps a few hundred thousand of them, are paid in cash, often stuffed into re-used envelopes. A worker has no way to verify that the amount is correctly calculated. Unscrupulous employers use this perfectly legal method to defraud their employees.
Other employers are more brazen. They make employees sign payment vouchers that look like this mock-up — I can only show you a mock-up because employees are rarely ever given a copy of what they sign. Not only is the calculation equally opaque, but sometimes, the cash that is actually paid is lower than the salary figure shown on the voucher.
If the employee refuses to sign this voucher, it’s no problem at all. We’ll terminate him tomorrow and send him back home, and we’ll ask the office clerk to forge his signature.
Giro or bank payment is essential so that there is an independently-generated audit trail to show whether the calculated amount is actually paid.
Subsidiary legislation currently says:
The employer shall maintain a record of the monthly salary paid to the foreign employee and produce the record upon request by any public officer acting in his official capacity.
This is useless. There is nothing to prevent the employer from producing ‘records’ produced after the fact, or signed under duress, or with forged signatures. We need better laws. Now: Mandatory detailed itemised payslips, and mandatory payment through bank.
Secondly, where law is ill-conceived or phrased in a muddled way, rendering it ineffective. One example can be seen in injury cases.
Serious injuries take considerable time to heal. Employers often terminate injured workers as quickly as possible to avoid further costs, such as the monthly levy. But then, how is worker to survive without income? Where is he going to live?
Subsidiary legislation says:
The employer shall be responsible for and bear the costs of the upkeep (including the provision of food and medical treatment) and maintenance of the foreign employee in Singapore.
The employer shall ensure that the foreign employee has acceptable accommodation in Singapore. Such accommodation must be in accordance with the requirements in any written law, directive, guideline, circular or other similar instrument issued by any competent authority.
Sounds nice, right? The reality however is that providing food and accommodation is expensive. Many workers report that supervisors and managers make life difficult through harassment, and it quickly becomes impossible to continue staying in the dorm.
There is also the constant threat of repatriation agents coming in the middle of the night, seizing them and bundling them off to the airport. So the injured workers quit the dorms, and employers then think they are free of this legal obligation to provide food and lodging. Which in effect they are because the ministry doesn’t pro-actively enforce it. Nor does the ministry take much interest in the climate of fear that companies create in their dorms, and which serve to undermine the law.
I have yet to see in the press, any report of an employer being punished for hiring repatriation agents to seize and confine workers.
Injured workers out on the streets then have to find a way to survive. Obviously, they will try to work in the shadow economy, but when they are caught working illegally, they are punished. Here is the question: Does law serve to punish victims?
The law – 11A and 11B mentioned above — is badly conceived. It fails to recognise that in a typical injury situation, there is a conflict of interest between employer and employee. The employee wants to stay in Singapore and complete his medical treatment. The employer wants to avoid paying and wants him out of the country. To expect the employer to “take care” of the worker without trying all ways and means to avoid doing so is to live in la-la land.
TWC2’s position is that this legal obligation on the employer to provide upkeep, maintenance and accommodation should be monetised.
Pay the worker a monthly living allowance, sufficient for him to find his own accommodation, his meals and other daily outlays. It is easier for the State to monitor that this living allowance is paid, than to try to make unhappy workers stay with unhappy employers.
We made this proposal to MOM in October 2013 (see footnote 2).
Sometimes, the text of a law sounds straightforward, but administratively, civil servants impose an insurmountable burden of proof on the migrant worker, in effect denying him the prescribed remedy.
What happens when a worker complains that he was not paid his correct salary? Quite often he faces an evidential black hole, for he has not been provided any meaningful salary documents through the months of working. It is worse when the boss presents to investigating officers at MOM papers that the worker says were signed under duress or are fake. From the cases we have seen, MOM doesn’t seem to give any weight to the “signed-under-duress” argument – it treats such signatures as indicative of freely-given, informed consent.
And if signatures are said to have been forged, the ministry has a habit of asking the worker to provide proof that forgery occurred. How is he to do so? I sometimes wonder whether the ministry asks employers to prove that the documents are true.
Ideally, the ministry should mandate operational systems for employers of foreign workers that eliminate the possibility of misrepresentation, duress and forgery, but doing so is not priority at all, despite the glaring possibility of injustice.
As for injuries, TWC2 has seen an increasing number of cases where employers deny that an accident happened at the workplace. If bosses succeed in their denial, they stand to benefit from a lower limit on medical expense liability, and escape the need to pay medical leave wages and compensation for permanent incapacity.
When employers deny that an injury occurred at the workplace, MOM officers shift the burden of proof onto the worker. Once again he faces evidential hell.
Here are the common tactics employers use to buttress their side of the story, all based on multiple reports from workers themselves:
- The injured worker is held back at the worksite and not sent to hospital till after working hours, so that the hospital’s time-stamp will imply that the accident didn’t happen at work;
- The worker is forced to sign a piece of paper saying his injury was not work-related; he is told that if he doesn’t sign, he will be denied medical treatment;
- Senior company officials talk privately with the doctor and provide a fictional account of how the accident happened, something along the lines of “he slipped and fell in the dorm” or “he was fighting with another worker”, so that doctors’ notes will support the employer’s case;
- Co-workers who witnessed the accident are instructed by the employer to say they didn’t see a thing; any testimony that contradicts the employer’s account will result in them being terminated and repatriated forthwith.
Against this tsunami of evidence, injured workers are asked by MOM to prove that the accident occurred at work. How can he when the employer controls and influences so much?
TWC2’s view is that MOM is not paying sufficient attention to a widespread practice of evidence-tampering, and officials go too easy on employers, taking their so-called evidence (that an accident didn’t take place at work) at face value. Our fear is that many workers have been denied fair treatment and their rightful compensation.
Not only is a worker faced with having to prove his injury claim when his employer is in control of much of the evidence, but when he is unable to do so, he is then accused of making a false report. This worker is facing criminal charges for lying to MOM because MOM won’t believe him when he says he was injured at work.
The next category is where clear laws exist, but are not enforced.
Hussain Iqbel and his co-workers complained that they were paid less than was promised.
This is Iqbel’s In-principle Approval, sent to him by MOM, which states a monthly basic salary of $800, which translates to $4.20 an hour.
This is an extract from Iqbel’s pay slip. It is an example of a detailed itemised payslip, of a standard that TWC2 would be pleased to applaud. The only problem is that it shows the company paying him $1.50 an hour. As a result, his monthly gross salary including overtime is still lower than the promised basic salary.
Iqbel and his friends told TWC2 that at no time did they sign any new contract with lower salaries; at no time did they verbally agree to lower salaries.
I believe the case is now closed as far as MOM is concerned but we have no indication that in the negotiated settlement, the men received anything close to what they were owed (see footnote 3).
The law says:
The employer shall not reduce the foreign employee’s basic monthly salary or fixed monthly allowances to an amount less than that declared as such in the work pass application submitted to the Controller in relation to the foreign employee … except with the foreign employee’s prior written agreement. Before implementing such reduction or increase, as the case may be, the employer shall inform the Controller in writing of the proposed reduction…
In a letter to the Straits Times, published 13 Feb 2013, the ministry reiterated this. The letter said:
The Ministry of Manpower (MOM) protects foreign workers against employers who unilaterally reduce their salaries from what were declared in the In-Principle Approval letters without first obtaining the workers’ express written consent and notifying the ministry of the reduction. Such employers may be fined up to $10,000 per infringement under the Employment of Foreign Manpower Act.
In Hossain Iqbel’s case, were salaries unilaterally reduced? Yes. Were workers’ express written consent obtained? No. Was the ministry notified of the reduction before? Impossible, if there was no express written consent.
Yet as far as we know, this employer is not facing any prosecution.
As you listen to other speakers this afternoon, there will be much mention of law. But I’ll ask you, each time you hear such mention, to think along these lines:
- Is it even enforced?
- However well-intended, is there enough clarity and precision for the law to be operable?
- Are the deficiencies in the law such that it drives workers into the shadow economy, and consequently, in a technical sense, to criminality?
- Do we in effect punish the victims?
- Where lies the burden of proof and how heavy is it?
- What systems are in place to weed out false documents and coerced signatures?
- Or is the process indifferent to, unconcerned with tampered evidence?
The theme today may be law. The reality out there may well be lawlessness (see footnote 4).
How does one rectify lawlessness? By writing better laws? But as I have shown, the problems go deeper than that, we are developing a culture of circumventing and ignoring law.
We need more than mellifluous, comforting text, we need active, public-interest lawyering. We need lawyers who will step up to the plate, take on cases — pro-bono if need be — and sue. And not just to sue errant employers, but where warranted, to sue agents of the State too, for misapplication of the law (for an example, see footnote 5), for arbitrariness, or for inaction .
How’s that for a call to action?
1. In response to this point, Mr Kandhavel of MOM at the forum defended the two-year lead time for implementation by saying that not all employers are in a position to provide detailed salary slips. He gave the example of a hawker with a foreigner as a stall assistant. “How do you expect a hawker to provide salary slips?”
In TWC2’s view, this is an example of using a marginal particular to dismiss a general rule. In any case this marginal particular does not stand up to scrutiny either. Firstly, by implying that a hawker is incapable of drawing up a detailed salary slip, how is it then that we expect the hawker to comply in two years’ time? Secondly, how did the hawker comply with all the required paperwork to hire a foreigner in the first place if he or she cannot prepare a salary slip? (Actually, a close reading of MOM’s own rules suggests that hawkers aren’t allowed to hire foreign workers as stall assistants anyway, so it’s a rather strange example given by MOM).
2. In response to this point, Mr Kandhavel of MOM at the forum mentioned that there are employers who are happy to house injured workers. Why should they be required to pay the worker a monetised amount instead?
Again, it’s an example of using a particular to dismiss a general rule. Firstly, the cost of one over the other is not much different. Providing housing and meals in kind, as opposed to a monetised amount, is not cost-free. Secondly, how likely is it that a worker claiming work injury compensation would not be in conflict with his employer, thus necessitating a separation of living arrangements? Thirdly, one can easily design a system that provides some flexibility, but once an employer has had a record of threatening immediate repatriation, he forfeits the right to choose to house the workers himself.
3. In response to this point, Mr Kandhavel of MOM at the forum said the employer is currently “under investigation”.
This is at variance with what MOM said to the Straits Times a month earlier. The ministry said that no prosecution is planned since the “workers didn’t want to press charges”. To that, TWC2’s view was that the objective evidence was so clear, there was no need to require the workers’ agreement to press charges.
4. In response to our general point that one could characterise the situation faced by low-wage foreign workers as lawless, Mr Kandhavel of MOM mentioned a survey conducted in 2011 involving about 3,000 workers at the airport. He said 90% of them said they were “happy” working in Singapore.
This study has never been published as far as TWC2 is aware. We have no idea of the methodology or the phrasing of the questions asked. In any case, this is an example of citing the general to dismiss the particular. Just because the majority are “happy” — whatever that means — does not in any way invalidate the fact that thousands of workers face salary and other problems as described in this talk.
5. For an example of someone suing, see the case of Cynthia Monteverde. She was unhappy with the MOM Labour Court decision and appealed to the High Court. The High Court ruled that the Labour Court was wrong.