This is Part 2 of a six-part series about the long lockdown experienced by migrant workers following the onset of Covid-19 in Singapore. In this article, we will examine the legal basis for stopping workers from leaving their dormitories.

When Covid-19 cases rose exponentially among our migrant worker population living in mass dormitories, all were locked down in April 2020. Dorm residents were generally not allowed to leave. A select few, deemed needed to perform essential jobs such as sanitation, were moved out of the mass dormitories into temporary quarters, tested regularly and kept apart from other workers. These select few could remain working.

TWC2’s understanding is that in April 2020, the legislative basis for ordering the lockdown of the dorms was the Infectious Diseases Act. This gives the Ministry of Health’s Director of Medical Services the power to declare certain premises to be isolation areas and prevent the entry and exit of people to and from these areas. Although there existed a Foreign Employee Dormitories Act (FEDA), we can see no provision in there that gives such power to the Ministry of Manpower (MOM). Nor were such provisions present in the Employment Act or the Employment of Foreign Manpower Act (EFMA) – these being the other two major pieces of legislation governing migrant workers.

However, as Covid-19 cases subsided in the months following, it would not have been legitimate to continue to use the quarantine powers under the Infectious Diseases Act.

A new paragraph 2C

On 2 June 2020, MOM gazetted an amendment (reference 427/2020) to the Fourth Schedule attached to the Employment of Foreign Manpower (Work Passes) Regulations 2012 giving itself the power to deny exits to workers from their accommodation. The Regulations are subsidiary legislation to EFMA.

With this amendment, a new paragraph was added to Part III of the Fourth Schedule, and given the identifying number “2C”. This is how it read:

Movement to and from dormitory, etc.

2C.  The employer must not allow, or cause to be allowed, the foreign employee who is a resident of an unregulated dormitory or a licensed dormitory to leave the dormitory unless the employer is satisfied that the foreign employee —

(a) has permission from the Controller to do so; or

(b)   is seeking medical treatment or help in an emergency, or is required by lawful authority to evacuate the dormitory,

and may grant or refuse consent to the foreign employee to leave the dormitory for this purpose.

In plain words, this new provision requires employers to confine their employees inside dormitories unless MOM gives permission to let them out or if there is an emergency.

Immediately, there was an outcry from NGOs including TWC2.

It is pertinent to note that under the Palermo Protocol, one of the key indicators of human trafficking is coercion through “isolation, confinement or surveillance” of vulnerable persons. See page 4 of this web brochure issued by the International Labour Organisation. It is shocking that a government would enshrine in law such powers for employers.

Quickly amended three months later

On 14 September 2020, the above was overhauled (reference 783/2020). The revised version of Regulation 2C now said this (as at the time of writing, this is still the extant text):

Movement to and from dormitory, etc.

2C — (1)  If the foreign employee is a resident of an unregulated dormitory or a licensed dormitory, the employer must not stop or prevent, and must not cause the stopping or preventing of, the foreign employee leaving and remaining outside the dormitory —

(a) on any rest day of the foreign employee where the foreign employee has permission from the Controller (given by way of an electronic notification or otherwise) to do so; or

(b)   at any other time where the foreign employee —

(i)    is doing so for a special purpose approved by the Controller after giving prior notice to the employer, and to the Controller unless the Controller waives the notice;

(ii)   is seeking medical treatment or help in an emergency; or

(iii)  is required by lawful authority to evacuate the dormitory.

A further section 2C(2)  was also added, permitting the employer to stop a worker from leaving the dorm if there is an order issued under the Infectious Diseases Act. Although this appears quite legitimate, it is also overkill. The Infectious Diseases Act already contains provisions that enable lockdowns when necessary.

MOM tying itself in knots

Nonetheless, the foregoing 2C(1) quoted above needs some close scrutiny. It is an improvement over the horrid first version, but it is less than meets the eye.

The big change is in the reversal of legal obligation. Where the first (horrid) version required the employer to confine workers, the second version forbids the employer from confining workers – but only if certain conditions are met. 

What are those conditions?

(a)   if it is the worker’s designated rest day and if the worker has permission from MOM to leave the dorm;

(b) (i)   at any other time, the worker must get approval from MOM to leave the dormitory for a “special purpose” (not defined in the Regulations) and provided that the worker

  • has given prior notice to his employer, and
  • has given prior notice to MOM (unless MOM waives the notice).

As one can see, the conditions are pretty narrow, and require action (permission/approval) from MOM in each instance. If MOM does not actively issue an approval, then strictly speaking, the condition(s) are not met and the employer is no longer forbidden to confine his employees. To make it clearer, let’s remove the double negative. What it means is that if MOM does not issue an approval, the employer may confine his employees.

Regulation 2C was written for a time when the app-based Exit Pass system was in use. The app was run by MOM and when a worker got a green pass from the app, it signalled permission or approval by MOM.

However, after 24 June 2022, MOM retired the Exit Pass system. MOM is no longer issuing approvals.

One could argue that the “Advisory” of 17 June 2022 on the subject of Popular Places Pass and the “Advisory” of 21 June 2022 regarding Special Pass holders constitute blanket permission for all workers, including Special Pass holders. But they are poorly worded – starting with calling them “advisories” – and open to challenge as to whether they meet the requirements of Regulation 2C.

For example, if one wanted to be picky, one could point out that outside of workers’ rest days, even MOM is not empowered to give blanket permission. Regulation 2C says MOM’s approval must be for a “special purpose”. Any claim of blanket permission would be over-reaching.

In short, an employer determined to confine his workers in dorms can argue that Regulation 2C gives him the leeway to do so and that advisories are irrelevant.

A familiar pattern

Across many issues, observers have noticed a tendency of the Singapore government to reserve wide powers to themselves, but then discover that actually using those powers provokes much criticism, especially from foreign media. The Singapore government needs to look good in the eyes of Western governments and cannot afford to be too often seen as heavy handed.

The 7 June 2022 article in the Financial Times (mentioned in the footnote of Part 1) and the testy response of Singapore’s High Commissioner in London – a response which we have argued in the same footnote to be rather less than convincing in its facts or logic – is one such example.

In this specific matter of Regulation 2C, rather than keeping it and issuing contestable advisories, they should simply have removed it the same time when they retired the Exit Pass system. Better late than never. Do it now.