Recent High Court judgments creating positive ripples for low-wage and migrant workers

SINGAPORE — Recent landmark High Court judgments involving foreign workers appear to have created positive ripples for lower-wage workers here, but non-governmental organisations (NGOs) and lawyers said more can be done to prevent disputes between employers and workers from landing in court.

The Ministry of Manpower (MOM) said on Monday (July 9) it may bar employers from paying foreign workers less than the amount stated in their in-principle approvals (IPAs), which are letters the companies receive from the MOM after their work-permit applications are approved.

The IPAs state key salary terms including basic and fixed monthly salary, and companies must send the letters to foreign workers before they depart for Singapore.

Since February this year, when mediating salary disputes, the Tripartite Alliance for Dispute Management (TADM) has insisted that employers provide documentary evidence that a worker has consented to any salary reduction. It no longer allows for arguments that a worker provided tacit or verbal consent, the MOM said in a parliamentary reply to Member of Parliament Louis Ng.

While the ministry made no mention of a High Court ruling in November last year, Justice Lee Seiu Kin had said in the absence of any other written agreement between employer and employee, the salary stated in the IPA should be paid.

"I would go so far as to state that even if there was a written contract of employment which provides for a monthly basic salary of less than the sum stated in the IPA, the burden would lie on the employer to show why the IPA figure does not reflect the true salary," Justice Lee said in the case involving a worker from China.

In another ruling in May, High Court judge George Wei said a Bangladeshi site supervisor was entitled to more overtime pay as he was "not employed in an executive or managerial position". The decision stirred public debate and prompted National Trades Union Congress assistant secretary-general Patrick Tay to chime in on the unfair practice of misclassifying workmen as "managers" or "executives".

The MOM said it takes a "serious view" of firms' attempts to misclassify their employees to avoid obligations, and warned that "stern action" would be taken against errant employers.

In handling such complaints, a ministry spokesperson said the MOM and TADM are guided by the law as interpreted by the courts. Where relevant, they would be guided by the judgment.

"The case started a discussion and created awareness in the public about this practice unfair to low-wage workers," said lawyer Ronald Wong of Covenant Chambers.

CLARIFYING GREY AREAS

The two High Court cases are significant because they clarify certain "grey areas" in the law, said lawyer Melvin Chan, who represented the workers in both cases and won.

NGO Transient Workers Count Too (TWC2) said it would welcome a "decided move" by the MOM to ban salary reductions from levels stipulated in IPAs for the duration of the work permit. The approach is much "cleaner" than the present scheme, which allows for salaries to be reduced with the workers' written consent and requires employers to inform the MOM. The current system has caused a lot of dispute and added to the workloads at MOM and the TADM, said TWC2 treasurer Alex Au.

On Minister of State for Manpower Zaqy Mohamad's concern that foreign workers who perform below par would get repatriated under the suggested approach – which the MOM will discuss with stakeholders – Mr Au said employers should be "nudged to invest" in retraining their staff. "It would align with Singapore's general idea of improving productivity," he said.

To guard against employers who may frequently repatriate and switch workers as a result, the authorities could model the scheme after the approach for hiring foreign domestic workers, said Mr Au.

Currently, the MOM considers employers who hire domestic helpers more than three times in a year as a cause for concern. Those who wish to hire a fourth domestic helper within the one-year period will either have to meet with the ministry's officials or attend the Employers' Orientation Programme before they can hire another worker.

The MOM could also design a safeguard to keep a closer watch on firms that prematurely terminate more than a certain percentage of its work permit quota. "There are plenty of ways in which we can nip in the bud the tendency to abuse the termination flexibility given to employers," said Mr Au.

MORE SAFEGUARDS?

The recent judgments are all the more significant, given the extra fortitude it takes for migrant workers to pursue their claims in court. For many, there is the fear of getting fired or repatriated.

"The overall system of resolving salary claims heavily emphasises conciliation, which tilts the outcome, in terms of opportunity cost, towards settlements rather than upholding legal rights," said Ms Desiree Leong, legal consultant at the Humanitarian Organisation for Migration Economics.

Since April last year, salary-related disputes for workers regardless of income levels have been heard at the Employment Claims Tribunals, which operate under the umbrella of the State Courts. Cases heard at the tribunals must first have undergone mediation at the TADM.

To appeal to the High Court against a tribunal order, one must obtain permission from the District Court.

To raise awareness of the recent court judgments, Mr Chan suggested the authorities convey relevant, precedent-setting court rulings to employees and workers through pamphlets or circulars.

Mr Au called for more safeguards to prevent disputes from happening, such as stronger enforcement against employers who fail to keep proper records of hours clocked and amounts paid.

He said: "We should strive for prevention measures to be put in place so that we don't have to bring matters to court in the first place."

CORRECTION: In the previous version of the story, Ms Desiree Leong was described as a volunteer at the Humanitarian Organisation for Migration Economics. She is its legal consultant. We apologise for the error.

Other recent High Court judgments that could improve the lot of foreign workers

DETERRING MAID ABUSERS

In March, a panel of three judges including Chief Justice Sundaresh Menon upheld the conviction of a married couple who abused their Indonesian maid and increased the sentence for the husband.

It laid out a sentencing framework for maid abuse cases that will, where relevant, identify the degree of physical and psychological harm caused in relation to each charge.

Chief Justice Menon had signalled in 2016 the need to calibrate sentencing benchmarks "upwards" for maid abuse offences.

ENCOURAGING PRO BONO WORK

In a 2016 judgment, the High Court ruled that legal costs could be awarded to the worker although he was represented pro bono. While many judges were already doing so prior to the ruling, the case provided a platform to "actively ask for costs", said lawyer Melvin Chan.

Such awards, however small, go a long way in helping impecunious litigants pay off administrative fees and eases the burden of lawyers from small firms.