It feels like a Christmas present.
Transient Workers Count Too is glad that one of our long-standing ideas has been adopted by the Ministry of Manpower (MOM).
In the Straits Times article titled “MOM tracking companies at risk of salary default; incidence of salary claims slightly lower last year” dated 11 October 2019, journalist Joanna Seow reported:
Another strategy is for TADM to place more weight on workers’ evidence or claims during disputes, if employers do not keep or produce legally required documents such as on working hours.
TADM stands for Tripartite Alliance for Dispute Management, and it is where employees with salary claims (and other employment-related claims) have an opportunity to have their claims mediated.
The source of the Straits Times story was the 2017/2018 Employment Standards Report released by MOM and TADM. Looking at page 8 of this report, we see this:
(b) Drawing adverse inferences: If an employer does not keep or produce the required employment documents, it would be difficult for claimants to prove their case. For example, without records on working hours that employers are legally required to maintain, an employee has to rely on his/her records to prove the number of overtime hours worked. Such personal records are often (i) incomplete because employees are not expected to do so, or (ii) disputed by their employers. TADM and ECT now draw adverse inferences against employers who failed to comply with employment laws, relying on the new section 21 of the Employment Claims Act.
The term “adverse inference” struck us as rather familiar. In December 2016, we wrote a story about Sohel Rana (link) to point out how the absence of time records from the employer created a hurdle for him in his salary claim. It is striking that MOM and TADM used a similar scenario in the paragraph cited above. We added,
TWC2 has also advocated (on separate occasions) that when an employer fails to present documents that he is obliged by law to provide, then an adverse inference should be drawn against the employer.
This December 2016 article wasn’t the first time we had suggested applying the principle of adverse inference. In February 2016, at the time TADM and the Employment Claims Tribunal (ECT) were being mooted, TWC2 made a submission (see link) in which, among other recommendations, we urged:
C3: The ECT legislation should provide guidance to Referees at tribunals to draw adverse inferences should (a) employers present as evidence documents such as contracts or salary vouchers, which at the time they were drawn up or executed, no copies were given to workers — this failure to provide copies to be seen as an attempt to disadvantage or conceal…
Our point was that when employers engage in behaviour that results in denial of information that legally or ethically should be shared with employees, we should treat their motives as suspicious. We should certainly not reward them for such obstructive behaviour.
Our recommendation appeared again in the research report Labour Protection for the Vulnerable published in June 2017. On page 63 of the report, we proposed:
Ensure Work Permit holders have access to the full range of documentation that may be needed to bring a claim.
Documents required for salary claims, including IPA, Standard Employment Contract or contract, key employment terms, time cards, pay slips, evidence of hours worked, rate of pay, and payment received;
– Legislation and guidance protocols should direct an adverse inference if an employer fails to provide these documents;
Likewise on page 8 of the Employment Standards Report, MOM and TADM say:
Enhanced enforcement approach on downward adjustment of salaries for foreign employees. The use of adverse inferences has been deployed in the new enhanced approach to deal with the problem of wrongful downward adjustment of salaries for foreign employees. Employers are required by law to (i) notify MOM of any downward adjustment to their foreign employees’ salaries, and (ii) seek their employees’ prior written consent. TADM draws adverse inferences against employers who failed to comply with these requirements, and mediates salary claims based on the original declared salaries.
Here again, this echoes our call in our February 2016 submission that said adverse inferences should be drawn against an employer when a worker’s salary is arbitrarily lowered without following due process, such as
(c) when an employer asserts that an employee “agreed” to a change in terms of employment in a direction adverse to the employee within 12 months of starting on the job.
This call was repeated in the research report Labour Protection for the Vulnerable (published June 2017) where, on page 59, we wrote:
Require that any changes to the IPA or Standard Employment Contract resulting in lower basic salaries or higher deductions be agreed to in writing by the employee and be reviewed and approved by MOM. This review and approval process should involve all parties and take into account the unequal bargaining power of migrant workers who have already committed substantial resources for their job in Singapore. Any move to disadvantage a worker’s contract terms should involve a tripartite approach in which migrant workers are able to consult with and rely on union and/or NPO support.
It’s been three years since 2016, but TWC2 is happy that MOM has come to see the drawing of adverse inferences as a necessary safeguard in the interest of justice for workers. In April 2019, this new Section 21(1A) came into effect in the Employment Claims Act giving substance to this policy change:
21(1A) A tribunal may draw such inferences as the tribunal thinks fit from a party’s failure to comply with any obligation of that party under any written law specified in the Fourth Schedule, including (but not limited to) an inference that any evidence that is not available on account of that party’s failure to comply with that obligation would, if produced, have been unfavourable to that party.
TWC2 develops advocacy proposals from our deep understanding of workers’ cases. Over the last ten years, we’ve handled well over ten thousand salary and injury claims and we have a front-row view of the problems workers face in getting remedies. Of course this would not have been possible without the support of our donors and the tireless work of our staff and volunteers. But moments like this, when we finally see progress, make it all … feel like Christmas.