From April 2020, COVID-19 began to affect large numbers of migrant workers residing in worker dormitories in Singapore. Dormitories were progressively placed under lockdowns from the beginning of April, affecting all dormitories by the end of the same month. Lockdowns were only partially lifted to enable workers to return to work in late August 2020, and as of October 2020, have not been fully lifted even though new positive cases of COVID-19 among migrant workers have been below twenty a day for weeks.
Despite a clear provision in legislation that regardless of whether there is actual work for the foreign employee, the entitlement to salary remains,1 the Singapore government issued obfuscating advisories through April and May 2020 that signaled official blessing for the reduction of salaries.2
While the statements hint at getting consent from employees before implementing salary reductions, in light of the much lower bargaining power of migrant workers, claims of having obtained consent should be seen as highly questionable.
In any case, Transient Workers Count Too (TWC2) and Humanitarian Organisation for Migration Economics (HOME) have received many reports from workers that their employers have unilaterally reduced their salaries or have not paid anything at all during the lockdown.
Some advisories issued by the government have further confused the issue of salary entitlements by linking them to levy rebates given by the government,3 even when legislation provides no such linkage. Yet, at other times, government statements continue to aver that salaries must be paid to workers,4 which add to the confusion.
Advisories from the government also indicated that employers should pay wages on the basis that the lockdown period be treated as consumption of the workers’ medical leave entitlement, thus leaving workers without medical leave should they later fall ill and need it.
By contradicting legislation, these statements suggest a reluctance on the part of the government to enforce legislation when it comes to salary entitlements and represent a regression of protections for migrant workers.
Freedom of Movement and Social Rights Decimated in the Wake of COVID-19
Migrant workers’ freedom of movement and social rights were decimated when migrant worker dormitories were locked down because of high infection rates of migrant workers starting April 2020. Workers were largely confined to their rooms shared typically by twelve to twenty men with consequently high risk of cross-infection.
More recently, dorm residents were allowed to return to work, albeit under tightly controlled transport arrangements, but they remain largely barred from leaving their dormitories for social activities and leisure. The only exceptions are for medical treatment and, in theory, a narrow window of only three hours per weekly rest day for going to “designated recreation centers” purpose-built for low wage workers, though it is envisaged that the hours will increase as COVID-19 recedes.
TWC2 found through a telephone survey that, in reality, very few workers have even enjoyed the three-hour rest day window.5 Rest days are assigned by employers and dorm residents may not leave their accommodation even in the hours after work (e.g., evenings) if it is not their assigned rest day. This ban on access to leisure and social activities outside of dorms has been in effect for six months and is still largely in effect as of October 2020.
The power to confine workers inside dormitories was formalized when, on 2 June 2020, the government amended legislation6 to require employers to confine dorm residents in their accommodation. Further amended in September 2020, the regulations still give the government the power to control when dorm residents may leave their accommodation, and this is being done through a phone-based digital application for “exit passes”.
The resulting effect is that much of workers’ freedom of movement, even to seek medical help where no prior appointment has been scheduled, has been placed in the hands of the government, their employers or dormitory operators. It can be very difficult for workers to reach the authorities or civil society organizations for help when they are physically confined.
It could be argued that such draconian measures are a necessary public health measure; the scientific or epidemiological necessity of this cannot be assessed by HOME or TWC2. But the reason for resorting to sweeping intervention affecting hundreds of thousands of people on the basis of their migration pass status, rather than on individual health risks, was the failure of the government to take effective action to control the contagion in migrant workers’ accommodation in the first place. The prior policies of promoting worker dormitories that house migrant workers in high density accommodation – often twenty men to a room in double decker bunks – likely created infection vulnerability. The workers have paid the price in terms of their health; and continue to pay a price extracted out of their freedom of movement, even as the rest of Singapore began resuming near normalcy in early June 2020 after only eight weeks of lock-down.
Employment Claims Tribunal: Multiple Barriers to Migrant Workers
Employment disputes, unresolved at the mediation stage, are escalated to the Employment Claims Tribunal (ECT) which adjudicates claims. The filing procedure at the ECT is formal and labyrinthine, requiring a high level of legal literacy. Because filing can only be done online and in English, digital literacy, suitable hardware and fluency in English are needed to accomplish the task -- none of which would generally be the case for low-wage migrant workers.
Most workers become completely dependent on the instructions of court or ministry officers; or, if available, the help of civil society organizations. Yet, some workers have reported that government officials discourage them for seeking help from civil society organizations.
Workers have been stripped of agency, autonomy and empowerment to take the case forward themselves, to choose their options and to decide exactly how to proceed. This is completely at odds with the systemic and structural assumptions of an adversarial adjudication model.
Not only are proceedings in English – which disempowers and disadvantages workers -- as the ECT has become more formalized and the procedures more “document-ized” over the few years of its operation, the process has tilted towards written submissions. At oral hearings, interpretation, however imperfect and inadequate, had been mostly available, but more and more, the ECT has been asking for “Hearing statements” in written form, thus emasculating the migrant worker and compromising access to justice.
Decisions of the ECT can only be appealed to the High Court on two narrow grounds, namely: if there is a question of law, or that the claim is outside the jurisdiction of the ECT.7 The former means that where the law on an issue is settled law (and therefore there is no question of law), even if the ECT has misapplied the law, no avenue of appeal is available. TWC2 and HOME have handled several cases that were stymied by this barrier.8
Poor Enforcement of Court Orders and Settlement Agreements
HOME and TWC2 have encountered many cases where a migrant worker, even when he or she has in hand a court order or court-registered settlement agreement, is unable to obtain payment of the stated amount.9
The Singapore government takes the view that enforcement of court orders is a private civil matter. When workers bring to officials’ attention that court orders or settlement agreements remain outstanding, the most common advice given to workers is to take out a Writ of Seizure and Sale, a process that incurs upfront costs with a poor success rate. For workers who have been owed salaries and are therefore short of money, this is an unrealistic course of action.
Even when TWC2 has tried, with the aid of pro-bono lawyers, to enforce a judgement, we have more often been met with failure rather than success.10
A potentially useful provision in the Employment Act is insufficiently used. Section 113A of the Act lifts the corporate veil and makes any director, partner, chief executive or any member of the management of a corporate body who is responsible for salaries and payments, personally liable under the law for offences committed under the Act. Penalties include fines and imprisonment.
Whilst making responsible persons in a company personally liable does not directly promote the payment of court orders and agreed settlements, a credible threat of criminal prosecution should motivate accused persons to honor court orders.
Unfortunately, the vast majority of salary claims, even when proved in the ECT, do not attract prosecution. For example, there were 1,301 claims heard at the ECT in 201911 (both migrant workers and locals) -- with the great majority being salary claims – and about 40 percent of cases resulted in money orders issued against employers,12 yet in 2019, there were only nine directors convicted for failing to pay salaries.13
The low rate of prosecution produces a sense of impunity among delinquent employers and is likely related to a poor success rate for workers collecting on their court orders and agreed settlements.
On 28 February 2020, the government told Parliament that they were “studying recommendations to streamline and simplify the enforcement of judgments and orders.” No details have yet been announced.
* The texts of this article are taken from the Joint submission HOME-TWC2 for UPR Singapore 3rd cycle, http://twc2.org.sg/wp-content/uploads/2020/10/Joint_UPR_shadow_report_HOME-TWC2_2020_v3.pdf, accessed on 29 September 2020.
The Humanitarian Organisation for Migration Economics (HOME) was established in 2004 and runs programs to uphold the rights of migrant workers in Singapore. Transient Workers Count Too (TWC2) is a non-profit organization registered in 2004 with a twofold mission: to assist migrant workers in difficulty and to advocate for better policies.
For further information, please contact: Transient Workers Count Too, 5001 Beach Road, #09-86, Golden Mile Complex, SINGAPORE 199588; ph +65 6247 7001; e-mail:info@twc2.org.sg; https://twc2.org.sg.
Endnotes
1 Employment of Foreign Manpower (Work Passes) Regulations 2012, Fourth Schedule, Part III, paragraphs 4, 4A, 4B, 4C and 4D
2 TWC2, 13 April 2020, “COVID-19: Media Statement,” 13 April 2020 (longer version).
3 TWC2, 4 May 2020, “Manpower Ministry’s advisory on circuit breaker still unclear,” http://twc2.org.sg/2020/05/04/manpower-ministrys-advisory-on-circuit-breaker-still-unclear/,http://twc2.org.sg/2020/05/04/manpower-ministrys-advisory-on-circuit-breaker-still-unclear/ accessed on 29 September 2020.
4 TWC2, 22 August 2020, “Does one minister even know what another minister is doing?,” http://twc2.org.sg/2020/08/22/does-one-minister-even-know-what-another-minister-is-doing/, accessed on 29 September 2020.
5 TWC2, 17 September 2020. “Research finding: Only a handful of workers have had rest days out from dorms,” http://twc2.org.sg/2020/09/17/research-finding-only-a-handful-of-workers-have-had-rest-days-out-fromdorms/, accessed on 30 September 2020.
6 Employment of Foreign Manpower (Work Passes) Regulations 2012, Fourth Schedule, Part III, paragraphs A, 2B and 2C.
7 Employment Claims Act, section 23(1).
8 TWC2, 25 June 2020, “Tribunal makes two errors in Liakat’s salary claim,” http://twc2.org.sg/2020/06/25/tribunal-makes-two-errors-in-liakats-salary-claim/, accessed on 30 September 2020.
9 TWC2, 5 September 2019, “Straits Times Forum: Bosses of foreign workers ignore court orders to pay up,” http://twc2.org.sg/2019/09/05/straits-times-forum-bosses-of-foreign-workers-ignore-court-orders-to-pay-up/, accessed on 5 October 2020.
10 TWC2, 17 June 2018, “When court orders are worthless: the Zach Engineering case”, http://twc2.org.sg/2018/06/17/when-court-orders-are-worthless-the-zach-engineering-case/, accessed on 5 October 2020.
11 State Courts Annual Report 2019, page 82.
12 Parliamentary reply by the Minister for Manpower Josephine Teo to Member of Parliament Walter Theseira on 18 February 2020, as reported in the Hansard, https://sprs.parl.gov.sg/search/sprs3topic?reportid=writtenanswer-5732, accessed on 10 October 2020.
13 Ministry of Manpower webpage: “Employers convicted under the Employment Act”. https://www.mom.gov.sg/employment-practices/employers-convicted-under-employment-act#/, accessed on 10 October 2020.