Besides construction and shipyard workers, TWC2 also sees many cases of salary conflict over rest day work among migrant workers in the F&B industry

Low-wage employees [footnote 1] in Singapore are safeguarded by the provisions in Part 4 of the Employment Act 1968, which include the right to weekly rest days and additional pay for work performed on rest days. For these employees, working on rest days is a means to earn extra income to supplement their modest wages. However, work on rest days must be treated cautiously, as inadequate rest can compromise occupational safety and employees’ physical and mental well-being.  Ensuring fair compensation for such work is crucial to upholding their rights and maintaining equitable and safe labour practices.

In our previous article Rest day pay disparity disadvantages low-wage workers (April 2023), we argued that the rules on rest day pay that depend on who requests the work were outdated and exploited the financial precarity of low-wage employees. We recommended repealing these rules and replacing them with a new one, entitling employees to double pay regardless of who requested the work. Notably, Malaysia, the only other country with a similar law, has already abolished it. Furthermore, the current rules are vague, creating ambiguity about what constitutes a “request”. Our article also highlighted the difficulty of proving who requested the work on rest days. 

While we still advocate for reforming rest day pay rules, this article shifts focus to a critical question under the existing rules: who bears the burden of proof?

Rules for rest day pay

Under the Act, low-wage employees are entitled to one non-paid rest day per week. Salary entitlement for work on rest day is found in section 37:

  • If an employee works on a rest day at the employer’s request, they are entitled to double the daily rate.
  • If the employee works on a rest day at their own request, they are entitled to only the single daily rate.

For example, if a low-wage employee earning $28 per day, works on a rest day:

  • At his employer’s request, he is entitled to $56.
  • At his own request, he is entitled to $28.

However, the Employment Act is silent on the meaning of “request” or who must keep records of rest day work requests. This raises questions about who bears the burden of proving which party it was who requested the work on a rest day.

The burden of proof – is it on the employee?

Generally, Singapore’s law places the burden of proof on a person who brings a claim (claimant), as stipulated in the Evidence Act (Section 105). According to this rule, if an employee files a salary claim for salary for rest days worked at the employer’s request, they have the burden of proof to show that they (a) worked on rest days and (b) the employer requested them to work.

105. The burden of proof as to any particular fact lies on that person who wishes the court to believe in its existence, unless it is provided by any law that the proof of that fact shall lie on any particular person.

Beyond this general rule, no law exists reversing the burden of proof on the employer. Moreover, there are no judicial or ministerial guidelines regarding the burden of proof or what constitutes a “request” under section 37. Accordingly, a plain reading of the law indicates that the burden of proof falls on the claimant—usually the employee. This means when an employee brings a claim for rest day pay worked at the employer’s request, it is on the employee to prove that the request came from the employer, even if the employer does not dispute that the employee worked on rest days.

However, imposing this burden on employees seems illogical. If it is undisputed that the employee worked on a rest day but contested who requested the work, it seems more logical to require the employer to justify paying a single rate, given that employers are better positioned to document and retain records supporting such claims. Imposing undue burden on employees also contradicts the legislative intent behind Part 4 of the Act, which aims to protect vulnerable low-wage workers.

The absence of judicial precedents on rest day pay rules does not imply that these rules are free from ambiguity. Instead, this lack of precedents can be attributed to their application limited to low-wage employees. For example, a salary claim concerning the dispute over rest day work—amounting to a modest sum of $780.40 for 38 rest days worked over a year—illustrates this point. Such disputes are typically resolved at the Employment Claims Tribunal (ECT) level, where appeals are exceedingly rare. Even when combined with other salary-related claims, the relatively small sums involved—though significant for an employee earning a monthly salary of $500—make it highly unlikely for these cases to reach the District Court or High Court, where judicial precedents could be established.

Rebuttable presumption

One approach to addressing the burden of proof is to introduce a rebuttable presumption. A rebuttable presumption allows the Court to assume a particular fact is true unless evidence to the contrary is presented. Given the power imbalance between employers and employees — especially low-wage workers covered under Part 4 of the Employment Act — it could be argued that when it is undisputed that an employee worked on a rest day, there should be a rebuttable presumption that the work was performed at the employer’s request. 

If the employer disputes the claim, asserting that the employee did not work on a rest day, the rebuttable presumption should arise once the employee presents prima facie evidence of having worked on the rest day. The employer would then need to rebut this presumption with evidence proving that the request originated from the employee. 

This presumption is well-founded for several reasons.

Firstly, it is far more common for employees to work on rest days at the employer’s request rather than their own. According to our rest day pay survey in 2023 – see article Lorryloads of workers driven through a legal loophole (April 2023) – about 80% of respondents gave one or the other of two types of answers: either (a) they said that it was clearly their employer who asked them to work, or (b) they gave unsure or mixed answers, indicating that requests from employers could be very subtle or written into contract or embedded as a condition of employment from the very start. With most of our respondents working in the construction industry, it is also important to understand how construction work is organised. Men work in teams, not individually, so logically, how can one ask to work on a rest day if the team is not scheduled to be working? But if the team is already scheduled to work (by the employer), how can one ask not to work? The reality is that workers have little choice in the matter.

Secondly, employers are legally required to maintain employee records, including details of payments made for rest day work [footnote 2]. Given this existing obligation, rebutting the presumption should not place an undue burden on employers. 

There is one more justification for a presumption: the additional challenges faced by foreign employees. Employers of work permit holders who are the lowest-paid foreign employees in Singapore hold considerable authority, including the power to deny these workers the right to transfer to another employer or cancel their work permit at any time. This dynamic fosters a fear of retaliation or job loss, making foreign employees especially vulnerable to pressures that may compel them to “volunteer” for rest day work, making it difficult to determine who requested the rest day work. A rebuttable presumption would help protect these workers by addressing the inherent imbalance in such employment relationships.

Our observation

Through our casework assistance, we have observed that the Tripartite Alliance for Dispute Management (TADM) under the MOM and the ECT — these being dispute resolution platforms available for small salary claims — appear to deviate from the basic rule of burden of proof and apply a rebuttable presumption in cases where an employee raises a salary claim involving a dispute over rest day pay. Based on our interviews with foreign employees filing salary claims, we often hear that TADM mediators accepted the employees’ assertions that they worked on rest days at the employer’s request without requiring documentary evidence to support such claims that the request came from the employer. However, when the employer challenges the claim and asserts that the request came from the employee, TADM mediators typically ask the employer to prove it.

When TADM mediation fails, and the claim escalates to the ECT, it appears that the burden is once again placed on the employer to prove that the employee requested to work on rest days. For instance, in one ECT case we assisted with in 2024, the ECT accepted the employee’s claim that he worked rest days at the employer’s request (the employer did not dispute that the employee worked on rest days). This was despite there being no evidence to support the request from the employer other than the employee’s testimony. Below is an extract from the employee’s statement submitted to the ECT.

7.   On Rest Day Work

(a) The Respondent’s workers, including myself, worked on rest days regularly at the Respondent’s instructions. Usually, for my group, my supervisor would give me work to do on Sundays. I believe this was a company-wide practice.

In the above quote, the term ‘respondent’ refers to the employer.

In explaining the decision, the ECT Judge reasoned that it should not be difficult for the employer to provide evidence of the employee’s request. The Judge pointed to possible sources of evidence, such as testimony from the employee’s supervisor or HR staff, but noted that the employer failed to provide any such documentation or testimony.

22    The Respondent (employer) should have no difficulty adducing evidence that shows that the Claimant (employee) had requested for work on his rest days, for example, the Claimant’s supervisor’s testimony or evidence from the Respondent’s HR personnel showing that the Claimant had requested to work on his rest days.

23    In the absence of any such relevant evidence, I am not satisfied that the Respondent has shown that the work was pursuant to the Claimant’s own request.

What can be inferred from this decision is that if an employee worked on a rest day and a dispute arises as to who requested it, the burden of proof resides with the employer, who is in a better position to keep the employee’s work record and to compel other employees to provide evidence.

TWC2 is encouraged to see both the TADM and ECT appearing to embrace the legislative intention of Part 4 of the Employment Act to protect vulnerable employees. However, admittedly, the above ECT decision is just one example. It does not represent the Tribunal’s judicial view, nor is it binding on future Trinbunal decisions. This makes it difficult for lawyers and NGOs to give accurate advice to employees who seek advice on salary claims for rest day work.

Moving forward

In our 2023 article, we advocated amending section 37 to provide employees with double the pay rate regardless of who requested the work, aligning with practices in countries like Australia and Malaysia. This would incentivise employers to improve work scheduling. The current rules, which depend on determining who requested rest day work, are outdated and prone to exploitation. Despite these issues, the relatively small sums involved in rest day pay disputes often keep these issues under the radar of lawmakers and legal experts while still significantly affecting the salary rights of low-wage employees.

Amending section 37 must remain the ultimate goal. While we continue to advocate for this amendment, we propose an interim solution: establishing a stronger consensus that if an employee worked on a rest day, there should be a rebuttable presumption that the employer requested them to work unless proven otherwise. The burden should lie on the employer to prove the request from the employee. 

1. Workmen who are in receipt of a salary not exceeding $4,500, or employees who receive a salary not exceeding $2,600 a month.

2. Employment (Employment Records, Key Employment Terms and Pay Slips) Regulations 2016, First Schedule, item 9.