This story is a continuation from Part 1, about a Burmese baker (we shall call him Than Lwin) in a bakery chain we refer to here as Pane Rubati.

With the right evidence, salary claims should be fairly straightforward, since the regulations around how work should be compensated is laid out clearly by the Employment Act. Than Lwin had the required evidence (payslips, timecards and bank records), making his case a strong one.

Having evidence is one thing. Weighing the risk of losing the case and the job is another. And whether or not one is psychologically preprared to battle it out is important too.

Burmese workers like Than Lwin avoid going to the Ministry of Manpower (MOM) when they have issues at work. This is especially because favourable outcomes are not always guaranteed, even if the company is in the wrong (for not providing the payslips, or, in this case, for not paying a worker according to the law). Even if they win a good settlement, they may find themselves out of a job, and repatriation to Myanmar, now ruled by a military junta, is a risk too big to bear.

Than Lwin, however, had lined up a new job in Australia. With this plan in place, he was willing to resign and file a salary claim.

First contact at TADM with NTUC: Overtime pay issues

He found TWC2 on Facebook, and met us in our office in Bencoolen. With the help of our caseworkers, he worked out the details of the claim he would be making.

After TWC2 helped him to prepare the detailed calculations of his owed salary, he filed a claim with TADM after his last day of work. While most salary claims that TWC2 sees are filed at MOM’s Bendemeer office, Than Lwin was a union member (NTUC), and his claim exceeded $20,000. His claim was thus handled at TADM’s Jurong office at the Devan Nair Institute.

There, Than Lwin spoke to a lady whom he thought was a TADM officer. She was, however, an NTUC representative (as we later discovered) who would file the TADM claim on his behalf. While this misunderstanding is not TADM’s fault, it is significant because NTUC’s role as a tripartite body means that they are the gateway to the mediation process for their union members. The accuracy of the advice they give is important.

Than Lwin tells me how the NTUC representative provided ill-informed advice to him, suggesting that he did not have much grounds to claim for overtime pay because he was an S-Pass worker whose basic salary exceeded the threshold for overtime pay.

“She tell me, ‘Your case is weak’, and then, ‘You are not a workman’,” Than Lwin recounts.

Such advice is, however, wrong. The manual nature of Than Lwin’s job entitles him to overtime pay as a workman. On MOM’s website, it is stated that:

You can claim overtime if you are:
– A non-workman earning a monthly basic salary of $2,600 or less.
– A workman earning a monthly basic salary of $4,500 or less.

Section 2 of the Employment Act provides further information on what a workman is:

any person, skilled or unskilled, who has entered into a contract of service with an employer pursuant to which he or she is engaged in manual labour, including any artisan or apprentice, but excluding any seafarer or domestic worker;

Than Lwin’s job in the mixing room of Pane Rubati was very much a physically demanding one, and he was contracted for a basic monthly salary of less than $4,500. He spent most of his time on his feet, lifting sacks of flour and heavy lumps of dough, operating the mixing machines and moving trays of dough to the freezer. There is little ambiguity around the nature of his job, and his eligibility for overtime pay as a workman is difficult to dispute. 

The wrong advice could have cost a man nearly $30,000 of his hard-earned money.

Luckily for Than Lwin, he was prepared for this. As workers are not allowed to bring their own representatives to TADM, TWC2 had cautioned him beforehand that TADM officers may not be legally trained, and that their advice should be regarded as guidance rather than final judgements of a validity of a claim. Thus, despite the advice he was receiving from NTUC, he calmly told the union representative to file the claim the way he wished and declare him as a workman.

After his first visit to the Devan Nair Institute, TWC2 emailed TADM about the misinformation that Than Lwin had been provided. TADM clarified that it wasn’t their representative that Than Lwin had spoken to, but an NTUC person. TADM further confirmed that they would communicate the right information to NTUC. 

First mediation meeting: notice pay

A week later, at the end of September 2024, Than Lwin returned to the TADM office for his first mediation meeting. There were two mediation officers (TADM and NTUC), three representatives from the employer Pane Rubati, and himself. As expected, the atmosphere was frosty. Than Lwin told us after the meeting that a few aspects of the claim had been challenged, and removed. He also said that he wasn’t provided with an interpreter, despite having informed the NTUC representative, a week ago, that he would like one.

By this point, it was clear that his entitlement to overtime pay was indisputable. Pane Rubati’s representative said they would need more time on their side to verify his hours before agreeing to this aspect of the claim. However, another key aspect of his claim came into question at this point: his salary in lieu of notice of termination (notice pay).

When Than Lwin submitted his resignation letter to the HR department, he had been told that he would need to serve two months’ notice instead of one month, in line with the contract renewal that he had signed earlier in the year. As Than Lwin would be leaving after only one month’s notice, the company deducted one month’s salary from him as compensation in lieu of notice.

That might be correct – if the contract was still in force. We taught Than Lwin to point out that in this case, the contract had already been breached – by the employer the moment they had failed to pay him correctly for his work. He was thus entitled to resign without serving his notice period and that the extra month’s salary deducted by Pane Rubati should be returned to him. Moreover, because the employer’s breaching of contract (and thus termination of the employment relationship) through incorrect payment of salary was without forewarning, Than Lwin was the one who was entitled to the notice pay, not Pane Rubati.

Employment Act, Section 16
Liability on breach of contract
16. Subject to anything in the contract of service to the contrary, the party who breaks the contract of service is liable to pay to the other party a sum equal to the amount the firstmentioned party would have been liable to pay under section 11 had the firstmentioned party terminated the contract of service without notice or with insufficient notice.

In addition, a claim of this nature is within TADM’s jurisdiction to mediate, as it is a statutory claim listed under the Second Schedule of the Employment Claims Act (Item 15 of the Specified Statutory Dispute Matters).

However, Than Lwin recounts that at the meeting, the TADM mediator asserted that he could not claim the notice pay for breach of contract, because it was outside of TADM’s jurisdiction. He would have to claim it in the district court, by filing a civil lawsuit. The NTUC representative, he tells us, agreed with the mediator and told Than Lwin that they would have to remove that part of the claim. 

It is a ridiculous picture: a room of 6 people, including 2 official representatives, where it is the foreign worker who has to explain Singapore’s laws to them. Without an interpreter, however, Than Lwin tells us that it was difficult to express the technicalities of the law – to people who should be more familiar with it than he, no less. It is even more difficult to tell official representatives of governments and unions that they are wrong when they appear so certain in discrediting a claim.

Intervention by TWC2

Following the meeting, TWC2 emailed TADM to verify the events of the meeting. 

Their response was this: TADM’s evaluative approach to mediation means that their officers assess the facts and evidence around the claim, and advise the disputing parties of their rights and obligations based on existing laws.

Questions remain, however, around the laws this mediator had based his advice to Than Lwin on. Both the Employment Act and Employment Claims Act make clear that his notice pay claim was perfectly legitimate – it is difficult to understand how an “evaluative approach” could produce an evaluation that makes a worker feel like his claim should be withdrawn, contrary to written law.

Notwithstanding their email reply, they shortly restored his claims for salary in lieu of notice.

A week later, Than Lwin would attend his final mediation meeting, this time with an interpreter provided by the Devan Nair Institute. Around this time, the parties reached a settlement agreement, the details of which were made confidential.

But Than Lwin is smiling from ear to ear as we finish breakfast and as his story comes to what, from his face, appears to be a happy conclusion. He cusses quietly as he accidentally breaks the second yolk in his saucer of eggs, slurps it up with gusto, and thanks me for a great conversation. When he gets home, he has to start packing for a new life abroad. Onwards to better things, in Australia!

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