By Isaac Ong, based on an interview in November 2017

“This is my wrong but I don’t want pay [you] money. Even if I go jail, [even if] I no company, but I still don’t want pay money”, Rafa (not his real name) was told by his boss.

49-year-old Rafa is practically a veteran of the Singapore construction industry. He has worked numerous construction jobs over his past twenty-one years in Singapore. Yet, he sits here with us today having spent five months doing a job completely unrelated to the one he was allocated, without receiving the high salary he was promised.

A job gone wrong

The recruitment process for his latest job in Singapore started just like all the others. An agent linked him up with a local company, and the necessary arrangements were made. Amongst them was an In-Principle Agreement (IPA), a document given to all migrant workers stipulating job details such as the nature of work and remuneration. Most prominently, Rafa’s IPA stated in bold that he would be paid $1,600 for a construction job — typical enough for an experienced worker like him.

What he was given in Singapore, however, was a different story altogether. Instead of a construction job, he was tasked to be a gardener. This in itself is a common problem, where many workers are employed in a job different from what is originally agreed upon, meaning that their previous years of experience and training is for naught.

At first, he did not mind it too much given the relatively decent pay. But within the first month, it became clear that the mismatch of skills was the least of his worries. He was paid only $750 as basic salary each month, less than half of what was promised.

Even more grating, Rafa was made to pay for his own transportation to and from his housing in Serangoon Road to his workplace in Bukit Timah daily. In addition, he had to pay for all his own meals. While he could sometimes save cash by cooking his own meals, he mostly had to rely on buying food from the canteen at his worksite. “Eating canteen very expensive, one day five or six dollars.”, Rafa explains, understandably frustrated. The collective transport and food costs are no small sum considering his salary.

Month after month, he approached his supervisors to ask for an explanation for being paid only $750 when it should be $1,600, but time and again, he emphasises, “Supervisor just say, see how, see how, but do nothing.” At his wit’s end after seeing no action being taken after three months, he finally approached MOM.

At a mediation session, his prospects continued to look pessimistic as his employer refused to agree on any sum of compensation for Rafa. This is where Rafa alleges his boss emphatically stated the quote from the start of this article, seemingly threatening that he would never get paid. Now, his only option is to bring this case to the Employment Claims Tribunal. The burden of proof will be on him to collate evidence to substantiate his claims in what is often a lengthy and daunting process, during which he is prohibited from seeking employment [see footnote].

Blatant deception

What is most disturbing in Rafa’s case, is the gaping disparity between the terms of his job that were agreed upon, and the reality he faced in Singapore. According to the Palermo Protocol on Human Trafficking, to which Singapore is a signatory, trafficking refers to

“the recruitment, transportation, transfer, harbouring or receipt of persons, by means of the threat or use of force or other forms of coercion, of abduction, of fraud, of deception… for the purpose of exploitation…”

Section 3 of our own Prevention of Human Trafficking Act uses very similar language, including the words “fraud” and “deception”. Failure to honour the agreed salary and the declared job scope may suggest a degree of deception, on the part of either the employer or agent.

Will he Ever Get Paid?

Comprehensive legislation, as mentioned above, does exist. However, more robust enforcement measures could deter such violations in the first place. This would prevent the need for a drawn-out mediation and legal process, while making best use of the skills possessed by experienced workers like Rafa. By the time the worker himself realises that he has been deceived, it could be too late.

Unfortunately, with the level of resistance he is up against, a jobless and disillusioned Rafa will face an uphill battle for his compensation.

As Isaac wrote, failure to honour the agreed salary and the declared job scope may suggest a degree of deception, on the part of either the employer or agent. Much depends on intent. Did the employer intend to pay him the basic salary of $1,600 and deploy him to a construction site? If he did, but somehow couldn’t later to do so, it is just a case of salary non-payment and illegal deployment. That said, both of these are still offences under the Employment Act and Employment of Foreign Manpower Act respectively. But if the employer did not have any intention of paying the basic salary of $1,600 or deploying him to a construction project, then the recruitment was deceptive.

Proving intent is often difficult. However, deception alone does not make for human trafficking. It could just be plain cheating.

This is where another limb of the Palermo Protocol becomes pertinent: It is that the deception should be “for the purpose of exploitation”. The bar for exploitation is set fairly high. For example, it may have to be something akin to forced labour which implies a restriction on the victim’s freedom of movement.

Rafa’s case does not meet this test. He wasn’t confined to a limited space. Quite the opposite: his grouse was that he had to find and pay his own way to work. It will be a stretch to say this was a case of human trafficking. At TWC2, we don’t go this far.

What TWC2 urges is that these practices — deceptive recruitment, under-payment of salary, etc — should be pursued vigorously by the authorities. A lax attitude allows these to flourish and gives employers a sense of impunity. Like how getting away with petty stealing from the till becomes temptation to larger theft, when deceptive recruitment and under-payment become routine, sooner or later we will find perpetrators going further with their lawlessness.

Law enforcers become confused where to draw the line. Expressed graphically, where is the line between black and white in illustration A when all we have on one side is gray?

In cases like Rafa’s, we should at the least be prosecuting the employer for violations under the other two laws, and not just resolving it as a civil conflict between employer and employee. Cheating is bad enough.

26 Jan 2018: This point is not exactly correct. The writer relied on the printed statement on the Special Pass that Rafa had in hand, which said he must not take up paid employment. In actual fact, around the time of the interview in November 2017, Rafa was informed by his case officer at MOM that he could begin to look for a new job. Should he be successful, which until now he has not been, his Special Pass that forbids employment would be replaced by a new Work Permit.