By TWC2 volunteer Linus Chen based on an interview in December 2020

The law speaks of “salary”. The documentation issued by the Ministry of Manpower states two different salaries: “Basic monthly salary” and “Fixed monthly salary”. Which salary does the law apply to?

This is the nub of the problem as Tolack (not his real name) describes his grievance to us.

After paying $3,000 to an agent, Tolack secured a “customer sales executive” position with a food catering company. According to his In-Principle Approval for an S-Pass dating from May 2019, Tolack was promised a Basic Monthly Salary of $2,500 with a Fixed Monthly Allowance of $300, making a Fixed Monthly Salary of $2,800.

Initially, Tolack was paid in cash, but the employer switched to bank payments in April 2020.

At the same time, Tolack’s working conditions became increasingly difficult. Whereas he had previously been tasked to deal with customers and organise catering orders, during the Covid-19 lockdown, he was made to help out in the kitchen. “I cook rice” is how he describes his duties through the middle of 2020.

Between having to move sacks of rice weighing 50 kilograms and having to put in 14 to 15-hour days, the job became intolerable.

In December 2020, the job became even more demanding, with the boss expecting him to work 16 hours daily, says Tolack. It wasn’t right, he felt, that he should be asked to put in so much overtime, and not be paid for it. He had never been paid for overtime since he began with the company, but extra hours didn’t really become an issue for him till after March or April 2020.

Who is eligible for overtime wages?

The particular part of the law relevant to Tolack’s question is Part IV of the Employment Act which outlines the legally required compensation for work performed overtime or on rest days. However, it only applies:

(a) to workmen who are in receipt of a salary not exceeding $4,500 a month (excluding overtime payments, bonus payments, annual wage supplements, productivity incentive payments and any allowance however described) or such other amount as may be prescribed by the Minister; and

(b) to every employee (other than a workman or a person employed in a managerial or an executive position) who receives a salary not exceeding $2,600 a month (excluding any overtime payment, bonus payment, annual wage supplement, productivity incentive payment and any allowance however described) or such other amount as the Minister may prescribe.

— Employment Act, Section 35

Whether Tolack is entitled to overtime pay is thus not straightforward. Much depends on terms like “workman”, and “manager” or “executive”. Much also depends on whether one uses his basic salary or fixed monthly salary as the test of eligibility. To summarise:

Is Tolack a workman? Through previous court cases, the term is generally defined as someone who works with his hands. It doesn’t have to mean heavy labour; it can also mean someone with a technical skill applied through manual dexterity. Think dental technician, hairdresser or bus driver.

As a customer sales executive, with a job involving taking orders, it is unlikely that Tolack can be considered a workman. On the other hand, for the last few months — coincident with the claim period — he has been putting in many hours in the kitchen.

If despite this, he is not considered a workman, then the next question will be whether he is a manager or executive, and therefore outside the scope of Part IV of the Employment Act.

As settled in [2018] SGHC 128 Hasan Shofiqul vs China Civil (Singapore) Pte Limited, just giving an employee the title of “manager” or “executive” is not sufficient to make him one for the purposes of Part IV. Much depends on what his role and responsibilities are in the course of his work, not what his job title is. This prevents employers from exploiting a legal loophole by labelling all their workers as “executives” regardless of their position within the company hierarchy in order to avoid paying them for overtime work.

MOM has on this page of its website this explanation:

Who is a manager or executive

In general, managers and executives are employees with executive and supervisory functions.

Their duties and authority may include one or all of the following:

    • Making decisions on issues such as recruitment, discipline, termination of employment, performance assessment and reward.
    • Formulating strategies and policies of the enterprise.
    • Managing and running the business.

It does not seem as if Tolack can be considered an executive despite having this word in his job title.

The thorniest question may well centre on the cut-off of $2,600 in monthly salary in order to be entitled to overtime pay. Tolack’s basic salary is below this cut-off, but his fixed monthly salary is above it.

At the top of the Employment Act, in Section 2, (interpretation), “salary” is defined as all remuneration including allowances payable to an employee in respect of work done under his contract of service.

Notwithstanding this global definition of the term in the legislation, Section 35 itself says “… who receives a salary not exceeding $2,600 a month (excluding any overtime payment, bonus payment, annual wage supplement, productivity incentive payment and any allowance however described) …”

Therefore, the word “salary” appears to be given an exceptional meaning in Section 35 and for the purposes of Part IV. It seems to mean basic salary. If so, then Tolack’s basic salary of $2,500 a month will entitle him to overtime pay — quite aside from the question of whether he is a workman.

Going ahead with the claim

Some days later, having taken our advice to check with MOM, Tolack comes back to us to say that he is entitled to claim for overtime pay. Tolack cannot tell us why the officer said he was entitled. Was it because he was a workman or because they would use the basic salary as the measure?

Unfortunately, Tolack still faces the challenge of collecting sufficiently strong evidence for his overtime claim. The daily punch cards indicating the number of hours worked are held by his employer. Tolack has no access to these records.

Control of documentation opens another window for exploitation for employers, denying workers access to documentation that may support their salary claims.

How to get hold of that documentation? What arguments to make if the employer chooses to destroy evidence rather than hand it over?

The other claim (nearly) left on the shelf

Separately, close scrutiny of Tolack’s bank statements reveals that he has been underpaid for at least the past six months. Although his fixed monthly salary (before overtime) is supposed to be $2,800, the employer was only banking in about $1,500 monthly. Over the six months for which he has bank statements, he should be able to claim for the shortfall amounting to about $8,000.

The evidence from the bank statements is solid. Yet, throughout the conversation, Tolack’s mind seems to be completely focussed on overtime instead, where he may face difficulty building a strong case as to how many hours he actually put in.

We can understand that he feels particularly aggrieved at being asked to put in so many extra and exhausting hours, but we urge him to calmly prioritise the underpayment of the fixed monthly salary in his claim instead of overlooking it.

TWC2 urges workers facing salary underpayment to seek assistance from us as early as possible, before starting their salary claim process with MOM. We’ve seen workers try to press a claim which may be emotionally important to them but for which they have weak evidence, while forgetting to press another aspect of the claim for which they have strong evidence.

TWC2 offers advice to workers on the steps that they can expect in the claim process and how to prepare for them. We also point out what evidence they will need. We show them the relevant portions of Singapore law and discuss the arguments they can make to press their case.

Though Tolack’s case has only just begun and we don’t know what the conclusion will be, we wish him all the best and hope that he will receive the compensation that his hard work thoroughly deserves.