By Maya P

Islam Shariful thought everything was fine. He had been working with an employer for two years, and his Work Permit was set to expire 25 July 2022. About 38 days before that, he agreed with his employer on a renewal of his permit, and signed a letter to that effect.

Under the recently reinstated 40-21 day no-consent transfer period, he could have changed jobs without his employer’s consent 40 days to 21 days before the expiry date of his permit – what we call the “no-consent window period”. He liked his job and thought it was safe, so he did not try to find another one during that time. However, a week before his permit expired his employer canceled his Work Permit and tried to fire him. Renewal was clearly moot. At this point, the no-consent period had lapsed, and his employer knew it. Shariful had to be repatriated; he would not be allowed to transfer to another job .

Shariful went to the Ministry of Manpower (MOM), but they told him cancellation was purely a matter within his employer’s discretion. 

After TWC2 intervened, the Ministry of Manpower (MOM) “engaged Mr Islam and his employer”, MOM said. “Both parties have agreed upon the renewal of work permit”, the ministry added. However, the renewal came with a 30% pay cut. Trapped between a rock and a hard place, Shariful signed the contract. “My mother, father, brother, and wife depend on me,” he said. “So I signed — what can I do?”

Outside of the window period, the only way a worker can change employers is by obtaining their employer’s consent, which is rarely given. Alternatively, they can resign, be repatriated and then from the home country, look for another job here. However, being physically distant from Singapore after being sent home, they are greatly dependent on agents who tend to charge an arm and a leg, and thus, repatriation is often a dreaded prospect.

That’s why Shariful was so upset. Not only was he wronged by the employer’s bad faith, but he was faced with huge costs that would come with looking for another job.

During Covid-19, MOM scrapped the 40-21 day period in an attempt to dampen transfers, to help employers retain foreign workers. But there were still employers who cancelled Work Permits, or whose business was so poor that they were in no position to renew their employees’ permits. These workers, having lost their jobs, could join the Singapore Construction Association Limited (SCAL) retention scheme. Although it had many flaws, as we wrote about in Difficulties getting aboard the SCAL retention scheme in February 2022, it at least gave men a chance to get another job without having to be repatriated.

Post Covid, the reinstatement of the 40-21 day rule has been welcome, for the most part. If the window period operated as intended, workers would have some freedom to choose which company they wished to transfer to, unlike the extremely limited choices SCAL presented to workers on their scheme (which has since ended).

However, the 40-21 day rule is inherently open to abuse by employers.

As we see in Shariful’s case, employers can act in bad faith, first agreeing to renewal and then when the window period is over, abruptly reneging on it. MOM in effect endorses bad faith by telling workers that it’s within their employers’ discretion.

More seriously, employers don’t even have to wait for the window period to expire. They have complete freedom to cancel Work Permits at will at any time. If a worker finds his permit cancelled on the 41st day before the expiry date, he will not even enjoy the window period.

And that’s exactly what happened to Hossain Md Alamgir. He had been a faithful employee at a furniture company since 2010, and all he got for his 12 years of loyalty was to have his permit “cut” 41 days before expiry. He had no right to seek a transfer job.

An outsider may ask: why 40 days, and why 21 days? What is the justification for these numbers? Aristotle once said that the law is reason, free from passion. If that is true, then shouldn’t laws be reasonable? Employers should not be able to twist the law to blackmail and spite their workers. No worker in Singapore should be faced with the choice of losing their income or braving abusive employers and pay cuts.

The mark of a good law is its ability to withstand bad actors. The 40-21 day rule fails this test, when its intent – for Singapore to retain experienced and skilled workers – can be so easily thwarted by employers with ulterior motives.

TWC2 has long argued that a simpler, fairer system is to permit all workers who have lost their jobs a reasonable period of extended residency during which they can look for transfer jobs. The precise details are open to discussion. Singapore can follow the example of Qatar where the residency permit will remain live for 90 days after the cancellation of the work permit, allowing a worker time to find another job. This applies even if the worker was the one who chose to resign. See Qatar abolishes its kafala system, when will Singapore do so?

A more finely-grained proposal allowing 30 days’ residency post-cancellation, plus a further 30 days’ extension can be found in our Policy brief 2018, no. 4: Free up labour mobility, do more to retain skills and experience.

But the bottom line is this: If Singapore values its status as an internationally coveted working environment, it needs to strive to be one with fair rules, not sham rules that employers can make a mockery of.