Sumon (not his real name) filed a salary claim at the beginning of April 2020, barely a week before Singapore’s lockdown began on 7 April 2020. His claim was for a few months of unpaid salary, amounting to about $4,400.

As the first step in the claim resolution process, the Ministry of Manpower (MOM) would normally arrange for mediation sessions between employer and employee, held under the aegis of the Tripartite Alliance for Dispute Management (TADM). Under the lockdown, this clearly was not possible. Nonetheless, his MOM or TADM officer — in Sumon’s mind, they’re the same — kept in touch with him through the lockdown despite initial difficulties contacting the employer.

After several weeks, finally, there was movement. Sumon told TWC2 in mid June 2020 that the employer was found and had offered a settlement of $1,000. This was a far cry from his owed salary of $4,400, and Sumon rightly hesitated.

The salary claim process

At this point, it may be worthwhile to set out the salary claim process as provided by law. It’s a two-stage process involving first a mediation stage and if that does not result in a settlement, the case is sent to the Employment Claims Tribunal for adjudication. Below is a flowchart illustrating the process.

On the right side of the above flowchart, we’ve added notes about the permit or pass that a worker might be holding through the process. At the time when he lodges a claim, he will likely be still holding a Work Permit. But after the employer learns that a case has been filed against him, almost always the employer will cancel the worker’s permit.

The standing procedure at the Ministry of Manpower is to then issue the worker (the claimant) a Special Pass in order to legalise his continued stay in Singapore. Special Passes are issued under the Immigration Act and are generally intended for people with good reasons to remain here. Obviously, if a person is pursuing a case, that should be adequate reason in the interest of fairness.

Unlike holders of Work Permits, holders of Special Passes are not allowed to work for pay. Nonetheless, the Employment of Foreign Manpower Act makes it clear that the employer should provide the ex-employee with “upkeep and maintenance” for the duration of his stay until repatriation. “Upkeep and maintenance” includes accommodation, food and necessary medical care.

On the whole, the process as provided by law and usage is a reasonably good one. It ensures that the worker’s access to justice for unpaid salary is respected. While the outcomes may be far from satisfactory and few workers get full resolution, as observed from multiple cases that TWC2 has helped with, in its designed form, the process itself is not particularly lacking.

Slashed

Post-lockdown, MOM seems to have decided to slash and mangle the process. Exactly what is motivating them to do so is unclear.

In a space of a few weeks, several workers told us that their MOM officers had strongly urged them to accept whatever scraps their employers might offer as settlement because their route to the Employment Claims Tribunal (ECT) — the second stage should no amicable settlement be reached — would be extremely difficult.

The difficulty was ascribed to “backlog” at the ECT. The ECT had been suspended through two months of the lockdown, and this may account for the “backlog”. (See also the final paragraphs below).

As a result, the common thread from these worker’s accounts was that MOM/TADM was advising them their ECT dates were too far away and therefore they could not remain in Singapore.

TWC2 heard from these workers that their Special Passes would not be renewed; they would not be able to stay all the way to the delayed ECT dates. Instead they were to be repatriated if they did not accept whatever offers bosses made to them to settle the claim. If they did not accept the bosses’ offers, they could insist on escalating their cases to the ECT as provided by law but they’d have to go home and come back to Singapore when hearing dates are scheduled.

The fly in the ointment was that workers would have to pay for their own airtickets to come back to Singapore and pay for their own stay here.

This strikes TWC2 as a major roadblock to salary justice. Here are workers who had not been paid their salaries and who are now being asked to bear more expenses to get their cases heard. Their right to affordable due process is being hugely impaired by this change. The flowchart is now vandalised thus:

Listen to what Sumon told us with respect to his specific case  (1 minute 31 seconds). Transcript is just below.

Here is the transcript of the above audio file:

TWC2: … the case will go to the court, right? Did MOM say to you, your court date, how long you must wait for your court date?

Sumon: He said about September October. … the case go to court.

TWC2: Say that again, what month was that?

Sumon: three month or four month.

TWC2: September or October.

Suruj: Ya, ya,

TWC2: Can you stay in Singapore? What MOM say?

Sumon: MOM say this very long time, cannot give Special Pass, so have to go back to Bangladesh. Now, two option he give. This option is go back Bangladesh and after come back Singapore, is buy ticket myself, ownself.

TWC2: Yourself buy ticket.

Sumon: And stay here also myself.

TWC2: Stay here also must be yourself. How long can you stay?

Sumon: I don’t know.

Alex: 30 day, 60 day? MOM never tell you?

Sumon: Never tell, never tell. He say this court go case, case go court, then have to make, take lawyer.

TWC2: Must take lawyer? MOM say must take lawyer?

Sumon: Lawyer, ya, then how long, they also don’t know. Then he say he got another option is boss give the one thousand dollar and buy the ticket, you want to go back. Then I ask, my got some friends, this lawyer say MOM officer say talk like that. Give uh… Now go back and come back again, this one my friend say, ya, this one very difficult, better you don’t do this you go back first. Take one thousand and the ticket, go back…

Devilish details

Sumon’s mention that (as far as he understood) MOM said he had to find a lawyer to represent him is at variance with the Employment Claims Act 2016. The legislation expressly forbids legal representation. Individuals must represent themselves. Only in the narrowest of circumstances (as enumerated in the Third Schedule of the Employment Claims Regulations) can someone else represent the individual:

A claimant or respondent who is (in the opinion of the tribunal or the Registrar) unable to present his or her own case by reason of illiteracy or infirmity of mind or body (not amounting to a lack of capacity within the meaning of section 4 of the Mental Capacity Act (Cap. 177A))

We don’t know whether Sumon misunderstood what his MOM/TADM said or the officer conveyed erroneous information.

Another concern that arises is the worker’s right to re-enter Singapore and length of stay. Indians and Bangladeshis need to get visas before they can come here, even as tourists, and our observation is that visa applications are quite often refused, perhaps because applicants cannot demonstrate a solid financial background.

Will workers like Sumon be denied visas when their hearing dates come up? If they are, then their cases at the Tribunal may be summarily dismissed because they didn’t show up at court.

Related to this is the fact that at the ECT, there tend to be a series of case management conferences and hearings which can stretch for two months. Will the visas, even if given to the claimant-workers, be long enough to span the entire period? In any case, how is the worker to pay for his own accommodation throughout when he is not allowed to work?

We wrote to MOM in early June and followed up with additional questions too. MOM noted that these were important questions, but till date of publication — it’s been nearly four weeks — we have not received a substantive reply.

TWC2 is very concerned that migrant workers are being deprived to access to justice — a fundamental human right.

All power to employers, then

It will be no secret to employers that MOM/TADM is erecting virtually insurmountable barriers to the ECT route. Why then would employers make reasonable offers to settle unpaid salaries?

As can be heard from Sumon’s audio recording, is it any surprise that his employer only offered $1,000, less than a quarter of $4,400 in unpaid salaries?

Backlog?

And one more thing: Despite claims of a “backlog”, our observation is that there are hardly any cases at the ECT.

It’s like this: Pre-Covid, we’ve had salary cases germinating regularly. Right about the time of the lockdown, some of them would have matured to the point where they should be moving to the ECT phase. After the 2-month suspension due to the lockdown, one would expect that at least some of them would be now revived at the ECT, thereby resulting in a logjam of other cases coming up the pipeline.

But none are. Currently, as at the time of writing, we do not have any case actively before the Tribunal.

What is this “backlog” the ministry speaks of?

28 June 2020: As luck would have it, two days after this article was published, we came to know of two cases whose Employment Claims Tribunal phases of their salary claims are moving ahead, and they are not being repatriated immediately. The situation thus appears to be quite layered. It would be good if there were more clarity as to what policy is in effect and why claimants should have to bear the cost of their own return to Singapore if their ECT hearings are delayed.