In the September 2024 sitting of Parliament, there were a number of questions put to the Minister for Manpower pertaining to migrant workers. We list here three of those questions and replies.
On Change of Employer (COE) for migrant workers who are victims and non-culpable
10 September 2024
MP: Gerald Giam Yean Song
To ask the Minister for Manpower (a) what standards or thresholds are used to issue Change of Employer (COE)* letters to migrant workers who are victims of illegal acts or accused of wrongdoing but found not to be culpable at the conclusion of investigations; and (b) what are the most common reasons for not granting COE letters.
Answer:
1. Migrant workers are allowed to stay and work in Singapore if they have a permit to do so. They have no right to insist on staying in Singapore. The permits granted to foreigners are a privilege and not a right. Migrant workers may be denied permits before they come into Singapore, and sometimes, their permits may be cancelled. This might arise due to many circumstances, in particular, when their employers cancel the permit. When migrant workers become involved in law enforcement investigations, the workers are issued a Special Pass to allow them to remain in Singapore while investigations are ongoing.
2. Migrant workers who are victims of illegal acts or are found to be innocent of any wrongdoing are allowed to look for a new employer before their Special Pass expires. Where such a migrant worker indicates interest to work for a new employer, the Ministry of Manpower (MOM) will facilitate the work pass application for them after determining with the law enforcement agencies that it is not contrary to public interest to do so, and provided the prevailing work pass
criteria are met.
Comment by TWC2
MP Gerald Giam’s question is about MOM’s policy on issuing COEs to workers who have lost their jobs as victims of an illegal act, or have been accused, then later exonerated.
The meat of the minister’s reply is in his second paragraph. Whilst, initially, the minister appears to describe a blanket policy wherein those who are innocent “are allowed to look for a new employer before their Special Pass expires,” the minister then qualifies this statement by making it discretionary and dependent on “public interest”.
In practice, TWC2 has observed several aspects that are problematic.
Firstly, the Special Passes seldom have a duration of more than two weeks. Even when a worker is fortunate enough to be given a COE letter, he generally has only the remainder of his two weeks to look for a new job. MOM officers are known to be helpful in extending it by a further two weeks, but even then, to expect a worker to successfully land a new job with just 2 or 3 weeks at most is not realistic. TWC2 has seen many cases where workers just cannot find a new job in such a short period of time, and therefore the injustice of having been laid off from his previous job (as victims of an illegal act or wrongly accused of one) remains unremedied.
Secondly, the “public interest” exception can be abused. TWC2 has seen cases where a worker is suspected of something but no charges are pressed – presumably because the prosecution is not confident of proving its case. The worker is instead issued a Stern Warning. We have cases where the worker – who has to be considered innocent since he has not been proven guilty, nor even given a chance to defend himself in court – is denied COE as a result of the Stern Warning. See our article Stern warning – punishment without due process.
We have also come across cases where the employer lodges police reports against employees he is unhappy with, e.g. accusing the worker of theft of tools from the worksite. A typical instance would be one where the worker has grievances over non-payment of wages, and the employer is offended that the employee has the gumption to raise this issue. The police reports are false and malicious, and intended to block the worker from ever working in Singapore again. If the complaint is relatively minor, the police does not investigate, but then the report remains open and the worker is never officially exonerated. TWC2 has concerns that should MOM check with the police on “public interest” grounds, such reports could jeopardise the worker’s chance to look for a new job here. We can’t say for sure if there are real examples of such abuse since MOM does not disclose its reasons for refusing COE, but the potential for COE to be refused for this reason is impossible to dismiss, in which case, the MOM is open to accusations that it has (even if unintentionally) aided the employer in unfairly and maliciously blocking the worker from working here.
The only way such concerns can be banished is if MOM says categorically that only persons convicted in court will be barred, and Stern Warnings and not-investigated police reports do not count.
On wrongful dismissal claims for Work Permit and S-Pass holders
10 September 2024
MP: Gerald Giam Yean Song
To ask the Minister for Manpower (a) how many wrongful termination cases have been filed by work permit or S-pass holders in the last ten years; (b) in how many of such cases were the workers successful in their appeals; and (c) for successful cases, what redress has been offered to the workers; and (d) whether the majority of such workers have been allowed to continue working in Singapore.
Answer:
1. The Ministry, has over the years, made enhancements to its dispute resolution and claims management process. Prior to 2019, wrongful dismissal claims did not have to go through mandatory mediation, and we did not comprehensively track work pass types nor claim outcomes. From 2019, all wrongful dismissal claims must first go through mediation at the Tripartite Alliance for Dispute Management (TADM). Claims can be referred to the Employment Claims Tribunals (ECT) for adjudication only if mediation is unsuccessful.
2. From 2019 to 2023, there were about 400 wrongful dismissal claims (or about 80 a year) filed by work permit and S pass holders. About 50% were eventually withdrawn by the worker, 40% were successfully resolved by mediation, and 10% were adjudicated at the ECT. Of the adjudicated cases, about 30% were ruled in favour of the worker. Recourse for the worker throughout this process can include monetary compensation, converting the employee’s dismissal into a resignation, or the employer providing the employee with a service testimonial.
3. We do not track the number of workers who found another job after filing a wrongful dismissal claim.
Comment by TWC2
First, let’s break down the Minister’s numbers. Using his average of 80 claims year – the actual number surely pitches and dives considerably from year to year – we arrive at only about 8 cases reaching the Employment Claims Tribunal (ECT) annually. Of these, about 2 to 3 cases conclude with a ruling in the worker’s favour.
The Minister appears to have misapprehended the last part of the Member of Parliament’s question, “… whether the majority of such workers have been allowed to continue working in Singapore.” Instead, the Minister only said they have no data whether they moved on to new jobs.
We believe the question was about COE permission, which is of two kinds: consent for transfer by the employer and permission for transfer given by MOM.
It seems only fair that if a case is settled at mediation, then in the spirit of settlement, TADM (the unit responsible for conducting the mediation) should urge the employer to give a consent letter, failing which, TADM or MOM should be issuing one. And the ministry should be keeping records of the outcomes.
If the case goes to the ECT and the court concludes that the dismissal was wrongful, it should be a matter of course that the worker should be given COE by the ministry.
On the incidence of salary claims by work pass type and Work Permit holders by industry
9 September 2024
MP: He Ting Ru
To ask the Minister for Manpower in each year of the last three years (a) what is the number of incidence of salary claims with a breakdown by work pass types; and (b) what is the number of incidence of salary claims among work permit holders with a breakdown by industry.
Answer:
The incidence of salary claims by foreign employees with breakdown by work pass type from 2021 to 2023 is in Table 1. The incidence of salary claims by Work Permit holders for the top 3 industries with salary claims by Work Permit holders from 2021 to 2023 is in Table 2.
Comment by TWC2
On page 5 of the Employment Standards Report 2023, a report issued by from MOM and TADM, it was reported that
“Among foreign employees, the incidence of salary claims increased to 3.91 per 1,000 foreign employees in 2023 compared to 2.53 in 2022. This was driven by an increase in salary claims lodged by foreign employees in the Construction sector, in particular group claims from Construction firms facing business failures, financial difficulties or undergoing liquidation. The incidence of salary claims has remained higher for foreign employees compared to local employees…”
Although the report mentions the higher incidence of salary claims among migrant construction workers, there are no numbers. Instead the only number is a ratio for “foreign employees”, a term which includes high income Employment Pass holders, etc. On the other hand, for the purposes of this report, we believe domestic workers are excluded because this class of Work Permit holders are not within the scope of the Employment Claims Act.
When, through this Parliamentary question, the incidence of salary claims from construction Work Permit holders was revealed, we were not surprised that it was much higher than the overall incidence of 3.91 per 1,000 reported for “foreign employees”. As can be seen from the figures provided by the minister, it was 6.54 salary claims per 1,000 in 2023. Indeed, from TWC2’s casework, salary issues are among the top two issues, and they are nearly all from construction workers. The other sector with a high incidence of salary claims was the F&B sector, with an incidence of 5.25 in 2023. Here again, it is reflected in our casework – and in the case studies we write about on this site.
Numbers like these are not mere curiosities. They say something about employer behaviour in these sectors. As our case studies show, there is a lot of violation of basic rules, such as for payslips, overtime calculations, late payment, etc, that often go unpunished despite being outright violations of law. There is among too many employers a sense of impunity.
But it also means something can be done about it. The rules are already there. There’s the “E” word: enforcement.
Change of Employer (COE) is also known simply as Transfer by workers themselves. Normally, Work Permit holders are not allowed to move to new jobs unless their existing employer consents; otherwise they have to be repatriated when the Permit expires without renewal, or is cancelled. There are two exceptions: the first is the 40/21-day transfer window and when MOM itself (not the employer) gives the worker a COE letter. With the latter in hand, a worker can switch to a new job in Singapore without first having to go home.
Under the 40/21 day transfer window, Work Permit holders whose Permits are close to expiring, and who are not offered or not agreeing to renewal, are allowed to look for new jobs during a three-week “no-consent” period. See these pages from MOM’s website for more information: For Construction, Process and Marine shipyard sectors; For Manufacturing and Service sectors in the case of North Asian, Chinese and Malaysian workers.
See also our research study The 20-day obstacle course.