By Alex Au
One afternoon late March 2015, an employer came to Transient Workers Count Too to see if we could help him. “He was almost in tears,” said my colleague Russell Heng who devoted more than half an hour lending him a sympathetic ear.
He was a contractor with over a hundred workers, but he was in deep cashflow trouble. Salaries are due, but he just does not have the money to pay. He explained to TWC2 that he was a third-rung subcontractor. Above him was a second-rung subcontractor and above them the main contractor. For reasons not entirely clear, the main contractor is withholding progress payments from the second-rung subcontractor. As a result, his company in the third-rung is not being paid either.
He explained to Russell that he had enquired at the Building and Construction Authority (BCA) and was pointed to the BCA’s Security of Payment (SOP) process. However, he was also given to understand that he’d have to engage lawyers to assert his claim and it could well cost him another $60,000. Needless to say, he didn’t have that kind of money.
We don’t yet know how this crisis will play out. If his workers start walking off their jobs and lodge salary complaints at the Ministry of Manpower, this employer’s problem will acquire another dimension. Without workers to complete the subcontract on time, he may be liable for liquidated damages.
On this website, we tell many stories where a worker’s problems can be traced to an abusive employer or one that refuses to discharge his legal responsibilities. We tell of cases where after a worker has suffered a workplace accident, the employer makes more effort trying to deny it ever happened and refusing medical treatment than live up to his obligations. We speak of unethical doctors and grubby lawyers. But equally, we at TWC2 also recognise that many injustices workers suffer can ultimately be traced to structural reasons, to the nature of a system — and that includes the regulatory system designed by the State — that is loaded against them. If they are not the sole cause, structural inequities certainly aggravate labour issues.
That day when the subcontractor came looking for help reminded me that it is time for us to be writing about this too.
The particular structural inequity that this employer and his workers suffer from is the multi-layered nature of the construction industry. Three rungs of contractors is the norm, if not four. Cashflow bottlenecks bedevil the system. The availability of work for the lowest-rung subcontractors is highly volatile. For example, a company may have mobilised all the necessary men to carry out a fire sprinkler installation contract, but if other contractors are behind time, they just cannot go in on the scheduled day to start work. The site is just not ready for them. But then what are the men to do?
Multiple layers of subcontracting create plenty of opportunities for the senior rungs to push business risk to the rung below. At the lowest level, the risk is pushed out to the workers themselves, in the form of not being paid even when they have done work. Or not being paid because of work volatility and their boss says, “Sorry guys, we have no site to go to today. And since we have no project in hand, I have no money to pay you.”
It is no wonder that although the 322,700 construction workers in Singapore at the end of December 2014 constitute 32.6% of the total number of Work Permit holders here (991,300), they make up the great majority of cases that come to TWC2 for assistance.
Contract layering is hardly the only structural inequity at play. The rule that workers must be tied to an employer and cannot change jobs without the employer’s consent (very rarely given to non-domestic workers) effectively denies them bargaining power. The widespread practice of placement agents asking for thousands of dollars upfront, coupled with the total freedom given to employers by the State to fire any worker any time with no need for justification, means employers get virtually a blank cheque to be abusive: their workers simply cannot afford to assert whatever little rights they have for fear of losing their jobs and being thousands of dollars in the red.
Even MOM’s dispute resolution system and work injury compensation system leave much to be desired. Here too there is a strong tendency to shift risk onto the migrant worker. For example, an injured worker may be asked to prove his injury occurred at work, but all the evidence and witnesses (fellow workers) are controlled by the employer. How is he to prove anything? We’ve also written about workers who were not paid their salaries, but when the employer is asked by MOM about it, the employer presents forged documents. MOM then asks the worker to prove that the documents are false. He makes a police report, but the police choose not to investigate. Where does that leave him?
Why does MOM not ask employers to prove that the documents are genuine? Why does MOM not require payment through bank, so that there is an audit trail and proof of payment or non-payment is readily at hand? Allowing employers to pay salaries in cash and then placing the burden of proof on the weaker party, the migrant worker, itself constitutes a structural inequity.
I met with an old friend recently and learnt that he too was involved in charity work. We compared notes, in the course of which he mentioned something along these lines: You guys at TWC2 are too outspoken. By that, he meant that we were too open about our criticism of systemic flaws, particularly policy defects.
We make no apologies for being outspoken. Helping individual workers can never be a whole solution, even though we do a lot of that as can be seen from our many programmes. Unless the structural defects that create these problems are cured, the problems will recur over and over again. Advocacy is a key pillar of our work. Raising awareness about the unlevel playing field, the shackles that bind workers, gilt by official dispensation, the blind eyes we turn towards unscrupulous agents, lawyers or doctors in our midst — this is as important a part of our mission as doling out food and charity.
One evening, the same week that the employer came to our office, I was with a newish volunteer at our meal programme. He had been a civil servant, he told me, although not in the Ministry of Manpower. In the course of his work, however, he had to deal with MOM officials. He too thought they were among the most harassed, and also the most prickly and defensive, of fellow civil servants. The two qualities by the way, are not unrelated, as I shall explain below.
MOM’s junior and middle-level officials face wave after wave of labour issues. They probably understand as well as we do the sources of these problems. Some may be as frustrated as we are as to how elusive are real and just solutions. Yet they have to toe the party-line, follow standard operating procedures and defend departmental policies. It should be no surprise that prickliness and defensiveness become their reflexes. Their problem, our new volunteer explained, is that they have no power to change any policy in any significant way, yet they have to deal with all the perverse effects these policies produce.
“Above them, there is just no political will to reform the system, to do the right thing.”
And that’s why it is important that we continue to speak out and draw attention to it.