Bhuiyan and friends defeated, part 4

Continued from part 3.

TWC2 stayed in contact off and on with the four men from JS Metal Pte Ltd through the months following the lodging of their claims at the Ministry of Manpower (MOM). For a while they had some work, all at temporary jobs “make furniture” with Delco Art Interior Decoration, located at Kallang Way. Although they were expecting to work six months — the usual duration of jobs under the Temporary Jobs Scheme (TJS) — they were laid off again at the end of June 2014 after only two months.

“Boss say no more job,” explains Bhuiyan. The job insecurity migrant workers experience is not something that most Singaporeans can imagine.

This writer met them for two longish sessions in early August 2014 to help them explore their options and arrive at a decision. The first problem was that they were being handled by two different case officers at MOM. Information and advice given to one man was different from that given to another. It was very confusing. We then wrote to MOM:

The four started on TJS with Delco Art Interior Decoration, but within two months they were laid off and their TJS work permits cancelled. They went back to MOM within the last 1 – 2 weeks but since they had different case officers, they tell us that they are getting different advice. One believes that he is allowed only to seek another TJS job, two tell us that they have been allowed to seek a one-year job, and one is unsure what he is allowed.

Is it possible to have a consistent position for all four men (so they don’t feel that there is any inadvertent unfairness) and could you kindly let us know — so we can inform them — what the position is?

There was no reply. But within days they men phoned us to say they’ve all been grouped under a new case officer Nasha and that they’ve been called to go see her. We quickly briefed the men to make sure they knew how to ask the right questions, and how to use the vocabulary that MOM officers use. It is an unfortunate fact, but at TWC2 we’ve heard of case officers using ministry-specific language when speaking to migrant workers without taking the trouble to explain terms clearly to workers. For example, what is the difference between “temporary job”, “change of employer”, “one-year job” and what are the pros and cons of each?

The men were also unable to make any plans. They didn’t know how long they had to look for new jobs (if they were allowed to do so), they didn’t know whether they could launch a Labour Court case against J S Metal, and if so, how long that would take. Nor did they know whether MOM might suddenly decide to send them home, overturning any plans they might make.

Anticipating these questions, we had also asked MOM in the same email:

Is MOM investigating JS Metal for breaches of the law? The four men want to know whether they may be required to stay as prosecution witnesses. If, for whatever reason, they are unable to find new jobs, are they free to go home?

As mentioned above, we did not receive any reply.

The Labour Court option

At the forefront of options to be considered was that of launching a Labour Court case against JS Metal. Bhuiyan and friends asked what their chances were. We said it was very hard to predict. “I don’t think your chances are better than fifty-fifty,” your writer said to them.

“What meaning — ‘fifty-fifty’?” Titu and Shahjahan asked. They weren’t familiar with the expression. Your writer explained it meant no more than a fifty percent chance of success.

While we felt the evidence was good, we also knew from previous cases that the Labour Court (which is not a judicial court, but an administrative tribunal that is not headed by legally-trained experts) sometimes arrives at surprising rulings (see High Court overrules MOM Labour Court on overtime pay for example). The Labour Court has also been known to take quite unexpected positions regarding admissibility of evidence. Our great concern was that the Court, unversed in trafficking issues, would actually admit the contract that the men were compelled to sign within days of arriving in Singapore as valid.

The biggest drawback, we told Shahjahan, Titu, Mahi Uddin and Bhuiyan, was that they had signed a “full and final” settlement in April 2014 (detailed in Part 2). Would they even be allowed to launch a Labour Court case now?

“But case officer A K Tan [from MOM] that time never tell us we can stay in Singapore for temporary job,” protested all four. “If we [knew] that, we not sign,” they stressed. “Why case officer only tell us one side, tell us that we will have no money if we fight, and not tell us the other information?”

The irony seems to be this:  As much as the men felt they were railroaded into signing lower-salary contracts soon after arriving in Singapore for their jobs with JS Metal, they also felt railroaded into signing a “full and final settlement” under the auspices of MOM.

Nevertheless, “Why don’t you make it a point to explore the Labour Court option when you meet with Nasha?” we suggested to the men.

After meeting with Nasha

After meeting with Nasha, the men were slightly up on their roller-coaster of emotions again. Apparently, Nasha said that she would check with her superiors whether the men could re-open the case at the administrative level (mediation level?), before considering going to Labour Court.  Meanwhile, the men were informed that they could look for new full-year jobs (i.e. not TJS), and that they’d have a month to do so. In MOM terminology, they had been put on “Change of employer” (COE).

A week later, they were down in the dumps once more. They told us that they had heard from Nasha again and that her superiors disagreed with re-opening the case. Furthermore, they were making no progress in their job search. Mahi Uddin looked particularly depressed.

COE is a hollow remedy without redesigning the whole system that encourages churn

The ineffectiveness of COE as a remedy is something TWC2 has been speaking up on. MOM may brandish COE as their compassionate solution to workers who had been “victimised”, but it’s just a paper remedy.  The majority of men who had been given this option fail to find a job at all. There are two huge hurdles:

• There is no easily accessible route by which workers already in Singapore can learn what job vacancies there are; they don’t know where to begin to search for a job.
• Even when they come across a job, through word of mouth or through someone posing as an agent (almost always unlicensed), somebody somewhere will demand an upfront payment of $1,000 to $2,000 for “recommending” or “giving” the job.

The second is illegal but the practice is rampant, perhaps because of the lack of enforcement. It is surely also linked to the fact that when workers are recruited from India, Bangladesh or China, thousands of dollars are paid to recruiting agents, with part of the profit often sent into employers’ pockets. It is a lot more profitable to hire fresh workers from abroad than take someone immediately available here in Singapore, e.g. Bhuiyan and friends. TWC2 has long argued that for COE to work as intended, MOM must start closing the door on fresh hires from abroad.

Issue raised several times in the past

For example, in TWC2 calls for comprehensive bill on labour trafficking we suggested that

… administrative policies should be implemented to limit the availability of fresh overseas hires (eg migrant workers recruited overseas) as opposed to migrant workers already in Singapore looking for new positions. Limiting the availability of fresh hires would help to improve the chances of obtaining a new job for workers already in Singapore…

Simply giving workers a right to seek a new job in Singapore may not be sufficient to redress the power imbalance that exists between employers and prospective migrant workers if employers can, without adverse consequences, discriminate against hiring workers who are already in Singapore. TWC2’s experience is that less-honourable employers prefer to hire fresh workers rather than workers who are already in Singapore, because they believe that the workers who are already in Singapore ‘know the law’ and are cognisant of their rights. This in itself is a red flag indicating a need for the government to counterbalance the tendency of some private employers to act in ways that undermine broader social objectives, including that of combatting trafficking.

Similarly, in October/November 2013, we submitted Proposals submitted for second phase employment legislation review, in which we wrote (in section 6.08):

Even when workers are allowed to seek new jobs locally without first being repatriated, take-up by employers may be too low, thus defeating the aim of retaining skills and experience. From TWC2′s viewpoint, some of the stumbling blocks are likely to be:

(i)    employers may believe the workers already here and looking for new jobs are more “difficult” workers; and
(ii)   employers still often ask workers to pay ‘kickbacks’ in exchange for being given a job or having their positions renewed;
(iii)  a belief amongst employers that, aside from the foreign-to-local manpower ratio, there is nothing which stands in the way of them bringing in ‘fresh’ workers, who may be more compliant, less ‘savvy’ to their legal rights and more willing to pay greater kickback amounts in return for their jobs.

For these reasons, in order to truly promote long-term stays by foreign workers in Singapore, measures must be taken to discourage the intake of ‘fresh’ workers from abroad. Accordingly we recommend that applications for Work Permits for persons who have never worked in Singapore before, or who have stayed away for more than three years, be subject to a slight delay in processing (say, sixty days). That way, employers will soon realise that to obtain the manpower they need — at least within a short time frame — they should look to hiring workers who are seeking change of employer locally.

This delay period could be lengthened or shortened as needed according to supply and demand considerations. In this regard we expect that MOM should have no difficulty in accessing real-time data on how many workers are looking for new jobs in Singapore, as MOM would be in control of issuing Job Search Special Passes and Job Search Extended Special Passes under our recommendations above.

A further benefit from encouraging employers to hire migrant workers who are already here in preference over those fresh from aboard, is that should an employer ask for or receive a kickback, the illegal act takes place within Singapore’s jurisdiction and thus can be readily prosecuted. By contrast, it is clearly very difficult for the Singapore government to police what transpires between foreign workers and intermediaries in the workers’ home countries. Furthermore, workers who have been in Singapore for a number of years may also be less fearful and more prepared to report errant employers to MOM.

 

As for improving access to the job market for workers already in Singapore, a recent article puts forward a fairly simple idea involving a digital platform on which all employers with Work Permit jobs must advertise their jobs, thus cutting out avaricious middlemen: Overhauling Singapore’s migrant labour system — an alternative plan

Defeated in the end

Since Nasha told them she could not reopen the case at the administrative level, would the men want to launch a Labour Court case? They then told us that Nasha’s view was also that their chances of success were “50/50”– they were now conversant with this expression. By now, they also understood that if they launched a Labour Court case, it might take months to conclude (see After an eight month slog through the Labour Court, Durai wins back his overtime pay). Coupled with the fact that they’ve had no success whatsoever in looking for new jobs despite MOM allowing them to do so, they eventually decided it was better to cut their losses than to go on fighting.

Monir Bhuiyan, Titu, Shahjahan and Mahi Uddin flew home to Bangladesh on Friday 12 September 2014.

Perhaps MOM case officer A K Tan was right way back in April: How can migrant workers hope to stay on and fight for their rightful salaries in Singapore? You won’t find any work, you’ll only get poorer by staying on. Better to give up than seek justice. But what this four-part story reveals is that it is MOM’s own regulations controlling migrant labour and the ministry’s defective mechanisms that have contributed to this inescapable bind.

As for whether JS Metal Pte Ltd will face prosecution, as of the time of writing (end September 2014), there is no indication.

Parts