By TWC2 volunteer Jasper, based on an interview in March 2019
Hanif Abu and Uddin Nasir joined Xing Dong Construction Pte Ltd in August and October 2018 respectively, but were so irregularly paid, they lodged a salary claim in January 2019.
Between 2017 and 2019, about 20 workers from this company came to TWC2 for help over their salary claims.
They look totally dejected. Even as they try to answer my questions, I sense that their thoughts are elsewhere. Finally, Uddin Nasir apologises and explains, “Sorry, I thinking my family how.” They have worries about medical treatment for an ill mother, and any number of other expenses. The worst part is that they don’t see much light at the end of the tunnel. How long must they wait for the claim process to conclude? Will they get anywhere near what they are owed? How to find another job in Singapore?
Like an increasing number of cases monitored by TWC2, Hanif Abu (pictured) and Uddin Nasir’s salary claims are not going down the prescribed route, which involves a mediation phase conducted by the Tripartite Alliance for Dispute Management (TADM) followed by (if mediation is unsuccessful) an adjudication phase at the Employment Claims Tribunal (ECT). This two-part process for salary claims was laid out by then-Manpower Minister Lim Swee Say when moving the Employment Claims Bill through parliament on 16 August 2016. He said:
If mediation is successful, parties will sign a settlement agreement and apply for the registration of the settlement agreement in the District Courts for it to be enforceable as a binding Court Order. If mediation is unsuccessful, the mediator will issue a referral certificate for the claimant to lodge a claim at the ECT.
Indeed, the process outlined by the minister has been incorporated into a graphic at the website of the Tripartite Alliance for Dispute Management (TADM), the approved mediation body. See http://www.tadm.sg/mediation-guide/
Flowchart from TADM’s website (screenshot taken on 30 Aug 2019)
At the time of writing (late March 2019) Nasir’s and Hanif’s salary claims are going nowhere. “Have three, four [mediation] meetings at TADM already,” Hanif says, “but boss never come.”
Adds Nasir: “MOM officer say this cannot settle, so we transfer or go home.” It could have been the TADM officer who told him that; workers can’t distinguish between MOM and TADM most times.
Nasir then mentions that if he chooses to go home, “maybe can get 30%” of his claim.
MOM has a kind of workers’ fund and officials seem to be able to draw against the fund to help workers. This may be what Nasir is referring to.
Hearing this, one of the senior volunteers at TWC2, who is sitting next to me, remarks, “This is strange.” Alex explains: “The process as laid out should be that their case goes to the ECT. Clearly, mediation has not been successful, so why are they not referred to ECT?”
One suspects that the officials handling the case are recognising the poor prospects of recovery of owed salaries. Why put the case through the courts if the chances aren’t good? — might be the reasoning. If the company boss is not even showing up at TADM mediation, is there any point in taking the matter to the courts? Officials may see that it’s best to get the workers partial payments from a fund and/or let them look for new jobs.
Alex says he can understand that line of thought. “But I am concerned about the integrity of process. I am concerned about how public money is accessed and dished out,” he explains.
“There is also the matter of continuing to hold the employer accountable for not paying salaries.”
His point is that it should be troubling when, instead of following through a process laid down by law, a short cut seems to have been taken. TADM or MOM appear to have decided that since the boss isn’t showing up at meetings, the men’s case shall be considered hopeless and is then truncated.
Nasir and Hanif’s case may be no isolated example. There is a mysterious fall-off in foreign worker cases at the ECT, as described in the article 27% fewer foreign worker claims at ECT in 2018 compared to 2017, Why?
There is value in following procedure, Alex emphasises. If the case is escalated to the ECT, even if the boss or company representative does not show up at court, the court can still issue a default judgement in the workers’ favour. It might not get them any nearer recovery of their salaries, but this serves the public interest. There would then be a formal standing Order against the employer as proof that a debt is owed. It can then be the basis for prosecution of the employer under section 34 of the Employment Act for failing to pay salaries promptly.
As it is, prosecutions of employers for failing to pay salaries are few and far between. This was stated as much by Manpower Minister Josephine Teo in Parliament on 6 March 2019 when she mentioned a figure of “1%”.
A formal Order, explains Alex, is also useful in other ways, remote though the chance of success may be. It may enable the workers to pursue other means of getting their money. It can be used to impeach the credit-worthiness of the employer at various financial institutions.
By contrast, the reported approach of MOM in this case — to give the men some money in return for closing the case — effectively lets the employer off the hook, with the public purse covering for him (at least partially). “However practical as a half-solution for the men,” adds Alex, “speaking as a citizen and taxpayer, I am concerned about deviation from institutional processes and a lack of proper accountability.”
Hanif Abu and Uddin Nasir listen in as Alex sets out his argument, but it’s not clear whether they understand the subtleties of his point. Their minds are preoccupied with the obstructions and uncertainties in front of them. They think there will be some money coming if what their MOM officer is telling them is correct, but it’s way short of what they are owed. There remains a big gap in the family finances and they don’t know what they can do.