What are the rules for housing injured workers?

The law as to who is responsible for workers’ accommodation is a dustball of words. The exact meaning is fuzzy and can be squeezed every which way. In practice however, the words are largely rendered moot. Employers have their own requirements for where to place their workers. Construction employers will want all their workers to stay in company-specified places, so that transport to and from work can be organised efficiently. Operational demands shape practice regardless of what the law may say.

However, when a worker is injured and essentially not wanted any more by the employer, things tend to get difficult. Without operational demands determining employer behaviour, much then depends on the ethical standards that a company management chooses to go by. There are very responsible employers who will continue to house their workers in the usual dormitories for as long as the worker needs to stay in Singapore. Transient Workers Count Too has also come across injured workers who report that although they were no longer housed in the usual dormitories, their employers were giving them cash to rent their own bunks outside. But there are also employers who will try various ways to push the worker out of the dormitory in order to save money on rent. See this post which contains a short video clip.

Is it a violation of law to, directly or indirectly, deny accommodation to injured workers?

The dustball of words in legislation does not help. The text is vague and open to interpretation. To look closer, one needs to dive into subsidiary legislation where can be found these clauses for various classes of workers outside of domestic work, e.g. the construction industry:

For non-domestic workers, issued with an In-Principle Approval for a Work Permit,

Employment of Foreign Manpower Act >> Employment of Foreign Manpower (Work Passes) Regulations 2012 >> First Schedule >> Part III, says

1. Except as the Controller specifies otherwise in writing, the employer is responsible for —
(a) the upkeep and maintenance of the foreign employee in Singapore, including the provision of adequate food and medical treatment; and
(b) bearing the costs of such upkeep and maintenance.

Comment by TWC2: The term “upkeep and maintenance” is not defined. Does it include housing? Since shelter is generally considered a fundamental human need, one might think so. However, accommodation is mentioned separately in Section 4:

4. The employer shall ensure that the foreign employee has acceptable accommodation. Such accommodation must be consistent with any written law, directive, guideline, circular or other similar instrument issued by any competent authority.

Comment by TWC2: If indeed accommodation is to be outside the meaning of ‘upkeep and maintenance’ in Section 1 now that it is separately mentioned in Section 4, this will exclude accommodation from limb (b) of Section 1 — which is that the employer shall bear the cost of it. But it can also be argued that accommodation is part of ‘upkeep and maintenance’ in Section 1, and that Section 4 merely supplements it by setting minimum habitation standards.

The trouble is its ambiguity.

For non-domestic workers, issued with a Work Permit,

Employment of Foreign Manpower Act >> Employment of Foreign Manpower (Work Passes) Regulations 2012 >> Fourth Schedule >> Part III, says

1.  Except as the Controller specifies otherwise in writing, the employer is responsible for and must bear the costs of the foreign employee’s upkeep (excluding the provision of food) and maintenance in Singapore. This includes the provision of medical treatment …

Comment by TWC2: Here again the term ‘upkeep and maintenance’ is used with no definition as to its scope. 

2. … The employer shall also ensure the foreign employee has acceptable accommodation. Such accommodation must be consistent with any written law, directive, guideline, circular or other similar instrument issued by any competent authority.

Comment by TWC2: A similar lacuna lies here. Section 2 lays down minimum housing standards but by doing so, it leaves open the question whether accommodation cost should be borne by the employer.

For non-domestic workers whose Work Permits have been cancelled (i.e. they are now on Special Passes),

Employment of Foreign Manpower Act >> Employment of Foreign Manpower (Work Passes) Regulations 2012 >> Fourth Schedule >> Part III, says

11B. 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.

Comment by TWC2: Once again, no mention of who should bear the cost.

16. Except as the Controller specifies otherwise in writing, the employer continues to be responsible for and must bear the costs of the upkeep (including the provision of food and medical treatment) and maintenance of the foreign employee in Singapore who is awaiting resolution and payment of any statutory claim filed before 1 April 2017 for salary arrears under the Employment Act, any tripartite mediation for salary arrears sought under the Industrial Relations Act (Cap. 136), any mediation request submitted or claim lodged for salary arrears under the Employment Claims Act 2016, or any claim for work injury compensation under the Work Injury Compensation Act. The employer must 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. These responsibilities cease upon resolution and payment of the claim for salary arrears or the work injury compensation.

Comment by TWC2: The above makes it clear that ‘upkeep and maintenance’ shall be the employer’s responsibility of the employer (including bearing costs) until such time as a salary or injury claim is resolved and paid. But just as in all preceding sections, it is not clearly stated whether housing falls within ‘upkeep and maintenance’.

Customary practice?

A review of practice does not shed light on the matter, due to huge variability. During productive employment (i.e. when no salary claim or injury has occurred), the responsibility for housing costs appears to be a contractual matter. Some employers absorb the cost of accommodation. Other employers have workers pay a share of housing costs. Quite often, the quantum that the worker has to pay — to be deducted from monthly salary — is stated in the In-principle Approval (IPA), and workers typically have no quarrel if clearly stated this way.

But the fact that an employer can, through contract, deduct a co-payment from employees — with no demurral by Ministry of Manpower (MOM) — would suggest that “upkeep and maintenance” does not include accommodation, because it it did, then limb (b), which states that the ost should be borne by the employer, ought to apply.

Moreover, there are many instance where the employer deducts an amount higher than stated in the IPA, and even then, MOM does not — from the cases TWC2 has seen — consider this a violation of contract, let alone a violation of law.

One might argue that whatever was the prevailing situation re housing costs pre-accident should, in the absence of any new agreement, continue post-accident. If the employee was paying, say, $150 a month for housing pre-accident, he should be expect to pay $150 a month post-accident. This is assuming that ‘upkeep and maintenance’ cited in the above extracts does not encompass housing. If it does, then limb (b) must necessarily kick in; the employer must bear the cost of it.

While logically elegant, the trouble with the above line of argument (that prevailing cost-sharing arrangement should continue) is that after an accident and the worker can no longer work, he may have difficulty paying any share of accommodation. He may be able to pay his share if he is receiving medical leave wages under the Work Injury Compensation Act — though even so, he will be financially stretched since in most cases medical leave wages are, by legislation, set at a level one-third lower than his previous monthly income.

But many workers don’t even receive medical leave wages, for one of two possible reasons:

(1) the doctor has not certified him for medical leave, yet the employer has cancelled his Work Permit, and thus he has no job to return to;

(2) some employers refuse to acknowledge that an accident took place at the worksite, and MOM can take a very long time  to determine whether it did or did not. In the interim, these employers would hardly be willing to pay medical leave wages.

In either scenario, where is the worker to have any means of paying his share of accommodation?

An employer who is not willing to acknowledge a worksite accident is unlikely to be an employer that will happily house the worker for free.

Guidance from MOM’s website?

MOM’s website, where one can glimpse how they interpret the legislation — not that any civil servant’s interpretation is necessarily authoritative, only the courts have the final word — provides little clarity.

At this page,  titled “For employers: what to do during a work injury claim”, it is stated:

If your worker holds a Work Permit, you must take care of them during their stay in Singapore, including providing adequate food and accommodation. Otherwise, your security bond may be forfeited.

The plain meaning of “providing”, it could be argued, is that the provider should bear the cost. But such an interpretation is not watertight. Moreover, this advice is conditioned “If your worker holds a Work Permit…” In many cases, the employer would have cancelled the Work Permit after an accident. The worker will be on a Special Pass. What happens then?

A different Q&A page  on MOM’s website, has a slightly different slant. To the question: “Am I still responsible for my foreign employee’s salary and accomodation [sic] if he’s represented by a lawyer for his Work Injury Compensation claim?”

MOM’s advice is:

Your injured employee should continue to stay in accommodation provided by you.

Again, the plain meaning of “provided by you” would be that employer has to bear the cost. This suggests that housing falls within the meaning of ‘upkeep and maintenance’. But this advice is tripped up by the qualifier “if he’s represented by a lawyer”. What if he is not? MOM itself advises worker for injury compensation claims, there is no need to engage a lawyer.

At yet another page addressed to injured employees, MOM says,

If your [sic] are a Work Permit holder, seek help from MOM if your employer doesn’t provide you with housing or food…

What if he’s on a Special Pass?

Overall, the sense one gets is that employers are supposed to be responsible for providing and bearing the cost of accommodation for workers with salary or injury claims, whether the worker is still on a Work Permit or has been issued a Special Pass, lawyer or no lawyer. In reality however, workers are often pushed out and left to fend for themselves.