Parliament passed a new Work Injury Compensation Act 2019 (WICA) on Tuesday, 3 September 2019. It will come into force on 1 January 2020.

As yet, we do not have the full transcript of the debate in Parliament; we only have press reports. Below we highlight some points mentioned in the press, occasionally with our comments added.

Straits Times listed the key improvements of the new law compared to the old WICA.

The Bill will raise the maximum compensation amount from Jan 1 next year to $225,000 for death and $289,000 for total permanent incapacity. This is 10 per cent higher than the current caps.

The maximum compensation proposed for medical expenses also goes up to $45,000, from $36,000, to ensure it continues to cover more than 95 per cent of all medical expense claims under the legislation.

[snip]

Another change will give employees placed on light duties similar compensation as those placed on medical leave. Workers on light duties should be able to get their average monthly earnings, including overtime, bonuses and allowances, for 14 days, and then two-thirds of this amount for up to one year from the accident.

To protect workers’ interests, employers will have to report any instance of employees on medical leave or light duties due to a work injury.

“This is to address the concern that some irresponsible employers may try to avoid reporting work accidents by attempting to influence doctors to give fewer days of medical leave or light duties,” said Mr Zaqy.

Workers can also ask to change doctors if they believe the incapacity assessment is not being done fairly or they are not given enough medical leave.

[snip]

Permanent incapacity compensation should also be based on current incapacity at least six months after an accident, instead of waiting for an assessment of the degree of permanent incapacity to be made after a longer period.

— Straits Times, 4 September 2019, Higher payouts, greater transparency among changes to work injury compensation law (Paywall)

Under the old WICA, mandatory reporting of work injuries only kicked in if workers received more than three days of outpatient medical leave. If doctors prescribed only three days or less, or if workers were placed on Light Duty instead, there was no obligation for employers to report the incidents. Workers could still file for compensation claims though — but many did not know of this right.

The new WICA makes it mandatory to report a work injury so long as one day of medical leave or Light Duty is prescribed. In theory this will be a great improvement, but given the low level of enforcement historically even with the “3-days MC” rule — in all these years, TWC2 has not observed any employer punished for flouting the rule and not reporting — no one should pop the champagne just yet, until we see actual enforcement.

The newspaper also reported that “MOM will raise and add penalties for offences like not paying compensation or withholding necessary documents for claims processing.” This is interesting. We didn’t even know there were penalties under the old law for withholding necessary documents. There have been cases where employers did so but we’ve never observed any penalty. This too underlines the issue that isn’t really addressed: the inadequacies of the old WICA weren’t only in the text of the law, they are also largely a matter of weak enforcement. Going forward, unless enforcement improves, the new WICA may not be much better.

A useful statistic mentioned in the Straits Times report is worth recording here. The news article said “On average in the past three years, about 15,000 work injury compensation claims were awarded each year, with a total payout of close to $115 million per year for wage and lump sum compensation…”

—

Channel NewsAsia’s 3 Sept 2019 report gave space to questions and points made by members of parliament.

Nominated MP Anthea Ong said some migrant workers who get injured at work experience a delay in getting medical treatment because their employers refuse to pay for it.

She spoke of two migrant workers from Bangladesh and China who suffered injuries in the past five months – one hurting his back after carrying heavy construction material and another rupturing his cornea after getting hit by a large metal hook – but could not get follow-up treatment because their employers did not settle outstanding medical bills.

“In case we think these are just a couple of odd cases recently, it’s far more common than we think because more than a considerable number of migrant workers are affected,” she said.

Labour MP Patrick Tay said there have been reports in which injured workers could not seek medical treatment because employers did not provide them with a Letter of Guarantee (LOG), adding that they then had to go without treatment as they were unable to afford it.

In response, Mr Zaqy said no worker will be deprived of treatment for a work injury regardless of an ability to pay or if an LOG was provided.

“Employers are already required under the WICA to pay for their employees’ medical treatment for any work injuries. This includes for diagnostic work like MRI scans to assess the extent of injury,” he said in his round-up speech after the debate.

“Workers should report to MOM if their employers are not willing to furnish an LOG for work injuries. We will take action against employers who fail to meet their obligation to pay for medical expenses under the Act.

It needs careful reading, but Zaqy Mohamad is not quite answering the MPs’ questions. In his replies, he keeps referring to “work injuries”. At first sight, he is right to do so, but the MPs were referring to situations where employers exploit the loophole by contesting that an injury was work-related at all. TWC2’s observation from our casework is that the Ministry of Manpower can take months (even years) to decide whether an injury was work-related once an employer denies it. In the interim, since it is not (yet) classified as a work injury, MOM is reluctant to compel employers to provide medical treatment.

Zaqy’s reply and assurance that “Employers are already required under the WICA to pay for their employees’ medical treatment for any work injuries” is less than meets the eye because the issue is: What happens when work-relatedness of the injury is in doubt? Like the question of enforcement, the issue is not so much a textual one of what’s in the law, but one of MOM’s own process weaknesses.

MP Zainal Sapari pointed out that there are good reasons to suspect that some employers or insurers might deliberately drag cases to put themselves in a better bargaining position.

“They are aware the migrant worker will run into hardship and put the employers or insurers at an advantage to negotiate a lower quantum which the worker has little choice but to accept,” he said, noting that the CI assessment at six months will help overcome this.

“This (S$45,000 maximum) entitlement is independent of the medical assessment of either PI or CI,” said Mr Zaqy. “The introduction of CI assessment therefore allows foreign workers to recuperate and be with their loved ones earlier in their home countries.”

In general, TWC2 has not had issues with doctors’ assessments over the degree of permanent residual disability. We believe they are professional about it. Consequently, we’re not sure what Zainal Sapari was referring to in terms of “better bargaining position”.

That said, the scenario he described — of employers deliberately dragging out cases for negotiating advantage — is more common in salary claims. However, this is outside the scope of this post.

MP Louis Ng raised the issue of food and accommodation. He said,

“Employers are currently required to provide adequate food and acceptable housing for migrant workers during the entire work injury compensation process,” he added. “However, it is not clear what adequate food and acceptable housing means.”

Mr Zaqy reminded employers that they are still responsible for looking after their workers while they are in Singapore even after their work permits have been cancelled.

“They have to provide acceptable housing and adequate food – for example, three meals a day – for workers whose work injury claims are still pending,” he said.

Mr Zaqy noted that before Aug 1, MOM had permitted workers who do not want to stay at employer-provided accommodation to stay elsewhere.

“However, this has caused other problems, such as no control over the housing conditions where the workers stayed,” he added.

“From Aug 1, we have established higher standards for injured workers’ housing. Employers have to continue housing the workers at their dorms or pay for housing and upkeep in other MOM-approved dorms.”

On the issue of employees needing to know whether their employers have actually filed an incident report and commenced the claim process,

When it comes to incident reporting, Ms Ong and Mr Ng said it is unclear how workers will be notified once employers file an accident report.

While letters addressed to migrant workers are usually sent to the office address of their employer, Ms Ong noted that there have been cases where the employer had failed to pass the letters on. Mr Ng also asked if these workers could receive accident reports through existing mobile applications.

Mr Zaqy clarified that once an employer submits an accident report, the employee will receive a letter informing them that an accident report has been made, their rights and the steps they need to take to receive compensation.

Zaqy’s response does not appear to answer Anthea Ong’s question at all, though he seems to realise that. Channel News Asia added that:

When it comes to migrant workers, Mr Zaqy said MOM will explore how to provide other forms of notifications.

Then, a rather disturbing response:

“The content of accident reports will not affect employees’ amount of compensation under the WICA, so workers would not need their actual reports,” he [Zaqy] added.

We believe that what the MPs were referring to were the incident reports that employers must file. These reports have to include considerable detail about when and where the incident occurred and a description of how it happened. TWC2 has seen many cases where employers were less than accurate or truthful in these reports, they having a vested interest in describing the incident in a way that deflects attention away from their own safety lapses, or even denying that the incident occurred within their worksite altogether to avoid liability for compensation. Being a key stakeholder, workers should have easy access to these reports filed by their employers, and should have easy avenues to contest false or misleading statements made therein.

TWc2 is rather taken aback to read that the minister thinks workers do not “need” these reports. Is he not even aware of the abuses in the system? Does he believe that all employers are always, invariably truthful?

As mentioned above, our comments are based on media reports. As the official Parliament Reports come online, there may be a more complete picture of what was said in the debate and we may make additional comments.