Continued from Part 1.
This second part of the JS Metal saga shows up defects in the Ministry of Manpower’s processes. From the many cases that TWC2 has seen, it appears that these defects spring mainly from the heroic assumption that when a case of salary non-payment or underpayment arises, it’s a “labour relations” dispute between two parties with claims that are roughly of equivalent validity in law, and the dispute is largely over interpretation or administrative detail.
At least with migrant worker cases, this assumption almost mocks reality. In almost all the cases TWC2 has seen, the employer has clearly wronged the employee in at least one or two line items of a worker’s claim. For example, a clearly stated basic salary is simply not paid, or a clearly illegal deduction is applied to his monthly pay packet.
MOM’s normal process — bringing both parties into mediation — is inappropriate under these circumstances. When an employer has failed to pay his worker, in effect he has stolen money from his employee. To treat both parties as equally right/wrong and ask them to compromise over a table, is like asking a robber to attend a mediation session in order to work out what fraction of the loot the robber might deign to offer to return to the victim.
Compromise is a misguided goal. Full restitution should be the litmus test.
‘Savings money’ returned
And yet, in the JS Metal case, MOM might quite well argue that they did the right thing — at least for the line item ‘savings money’. As detailed in Part 1, the employer had withheld $130 a month from each man’s pay packet. At their 14 April 2013 visit to MOM with their complaints, Bhuiyan, Titu, Shahjahan and Mahi Uddin were directed to go back to their employer to sort things out. The four men did so the following day. Their boss quickly refunded their ‘savings money’ deductions; their salaries for the first week of April were also paid up. While we don’t know it for a fact, it is more likely than not that the employer acted as quickly as he did after receiving a stern admonition from the ministry.
However, the employer also gave each man an airticket. They were told they must fly home on 18 April. If they missed the flight, they’d be in trouble with the police, they were told. Recalls Titu: “Company man say if we not go home on that day, afterwards company don’t care. They report police and we go to prison.”
The men came back to TWC2 in near panic. They certainly didn’t want to end up in jail, but how could they just go home when the other line items of their claims remained unsatisfied?
TWC2 quickly got in touch with MOM, pointing out that MOM themselves have given the men a meeting date of 24 April. How can an employer so blatantly repatriate the workers, thereby frustrating a meeting scheduled by MOM? To their credit, the ministry responded quickly, saying the men should not board the plane. Even so, it took two hours of cajoling before the men agreed to give the flight a miss. Whatever the employer had said to the men at the company office, it must have been so forceful and made them so scared, that even MOM’s instruction was not immediately convincing to them.
The ‘mediation’ of 24 April 2013.
The ‘mediation’ session held at MOM a week later left the men shattered again. They came straight to TWC2 as soon as it ended to give us a blow-by blow account of what happened, telling us that it was more ultimatum than mediation. Basically, the MOM case officer, A K Tan, who conducted the meeting, refused to accept that the contracts they had been compelled to sign within a week of coming to Singapore were invalid. As mentioned in part 1, these contracts stated substantially lower salaries compared to the in-principle approval letters (IPA) and salary discrepancy made up a biggish part of their claim.
The following are the notes the writer took when Bhuiyan, Titu, Shahjahan and Mahi Uddin gave their account of the meeting:
A K Tan largely adopted the attitude that the contracts were valid. At several points employer leveraged a clause or other from the contract to negotiate. Tan did not intervene. But each time the men raised the question of the validity of the contract, Tan dismissed the men’s argument.
Two stark moments:
1. Employer insisted that going by the contract, the men should give one month’s notice, and therefore he had a right to claw back one month’s salary. Men’s response: that would [only] be a valid argument if the contract were valid in the first place. A K Tan cut them off from pursuing this argument — Bhuiyan says
2. Employer pointed to clause in contract that said workers should pay their own airfare home, and therefore he should be clawing back the money. He said he had bought the men airtickets last week and the men did not board the plane, and now he had to pay 50% more to change the dates. Tan should have stepped in at the point to say it was MOM who instructed the men not to board the plane; the company was wrong to have attempted to repatriate the men in the first place. In any case airfare incurred by the employer cannot be used as a bargaining chip, since expecting workers to pay their own airfare home [is] against the law. “But A K Tan, he keep quiet, not say anything to help us.” — Bhuiyan.
Tan … discouraging them from fighting for their salaries. “He say many times, how long we can stay in Singapore?” — Shahjahan. “He say, we must pay room, pay food… how long we can stay?”
As to the last point, Tan seems to have forgotten that by MOM’s own rules, the employer should continue to provide housing. Instead he was telling the men that they’d be incurring huge costs to stay on in Singapore to fight for their salaries.
The men reported that it was a gruelling session. Finally, an offer was made by the employer. He’d pay each man a lump sum of $1,000 as full and final settlement of all their remaining claims. The four workers then felt enormous pressure to accept. “MOM officer, he say if we not accept this, he don’t care. He will not extend our special pass, and we anyway must go home,” recalled Bhuiyan.
And so, with heavy heart, they signed.
“But, didn’t the MOM officer tell you about TJS?” we asked the men, referring to the ‘Temporary job scheme’ — a program to allow workers with unresolved cases take up temporary jobs, so that they have continuing income while the case proceeds. No worker should have to suffer long periods of unemployment just because he wants to stand up for his rightful dues.
“Nobody say anything about TJS,” said Bhuiyan.
TWC2 had to go to the higher-ups at MOM to confirm that the men would indeed be allowed TJS. When the workers heard the positive news from us, they were flabbergasted. “Why case officer never say so earlier?” remarked Bhuiyan. “If we know have TJS, we not so fast settle.” Indeed, why did Tan not mention TJS to the men, instead of saying something to the effect that they would go broke staying on to fight?
It may be argued that once the men had signed the settlement, there was no ‘unresolved’ case left, so TJS shouldn’t apply. However, we had from the start also flagged this as a possible human trafficking case (as explained in part 1), and it was something that MOM should be investigating. MOM’s policy is that so long as investigations are continuing, the men should stay in Singapore and be allowed to work under TJS.
Cart before horse
This is where the criticism at the top of this article comes in. MOM’s process was wrong. They put the cart before the horse. They should not have conducted mediation without first determining if situational coercion had occurred to make the men sign new contracts soon after arrival. To any reasonable person, those contracts should not be considered valid since they were not freely entered into. Moreover, as stipulated in the United Nations’ Palermo Protocol, once deception is shown to have been used, “the consent of a victim of trafficking …. shall be irrelevant.”
The workers have every reason to feel unhappy with MOM (or at least that particular case officer); they felt that their argument that the contracts were not valid were given short shrift, thus fatally undermining their right to a fair outcome. The employer was in the wrong and should be made to pay full restitution in accordance with the IPA salaries.
MOM needs to have a better system wherein a case that has been flagged as having trafficking indicators, as this one was, should not rush to mediation and settlement. That MOM’s higher-ups had not quite ruled out trafficking can be deduced from the fact that they were ready to put the men on TJS, and thus that they felt this case was worthy of investigation.
The next section will detail why TWC2 felt that MOM could have come very quickly to a finding that the contracts should be treated as highly suspect and invalid. If MOM had acted quickly, it would have completely changed the tenor of any meeting with the employer.