Salary claims: Victory's shadow, defeat's echo
For migrant workers in Singapore, salary-related issues remain a prevalent and persistent problem.
At HOME, the top complaints at our helpdesk are consistently salary-related. Migrant workers are inclined to voice their dissatisfaction regarding salaries, as their wages are crucial for their families' financial stability and serves as the primary motivation behind seeking employment abroad.
In 2023, HOME encountered 1649 instances of salary-related issues at our helpdesk for migrant workers.. These included claims for unpaid and delayed salaries, lack of overtime pay, illegal and unauthorised deductions, and salaries not paid in amounts that were previously promised to the worker.
Workers with salary claims have to first undergo compulsory mediation with the Tripartite Alliance for Dispute Management (TADM). If mediation is unsuccessful, the case will be escalated to the Employment Claims Tribunal (ECT).
Justice hindered is justice denied
Unfortunately, the ECT raises many challenges for low-wage migrant workers.
Claims at the ECT have to be filed online by way of written submissions, in English. The process can be difficult to navigate and requires a high level of English and digital literacy. ECT claims follow an adversarial civil procedure which is unfamiliar to workers, most of whom have never had a court case, much less represented themselves in court. Most ECT conferences and hearings are now conducted virtually via Zoom. This poses additional challenges to the migrant workers.
The ECT process is heavily reliant on documentation (e.g. payslips, in-principle agreements and timecards), which many workers lack because employers frequently withhold them. Fundamentally, the claimant must prove their claims. Many migrant workers are dependent on NGOs such as HOME to help them navigate the claims process. There are also administrative expenses, which can be difficult for workers whose salaries are low and are encountering wage issues, to pay.
Further, even if workers are successful in the ECT, they may not eventually receive the money that is owed to them. The two cases below highlight how even when migrant workers have successfully navigated the difficulties of the ECT and gotten judgments in their favour, they are at risk of not realising their victories.
Sid*
*name changed to protect worker’s identity
Sid was employed in a food processing company on an S Pass. His salary was $3100 monthly. From June 2022 to May 2023, he was paid this amount. From June 2023, his employer started to only pay him $1000. His employers assured him that they will eventually pay his full salary. However, in November 2023, he discovered that his work permit had been cancelled. In a panic, he approached HOME.
HOME assisted Sid in filing his salary claim. In addition to the short-payment of salary, he was also not receiving his overtime pay and rest day pay, despite working at least 14 hours per day.
Sid’s salary claim amounted to more than $20,000. During mediation at TADM, he was offered less than $3000. As his claim was worth far more than that, Sid rejected the offer and took his case to the ECT with HOME’s assistance.
The ECT eventually found in Sid’s favour and ordered his employer to pay him $19,702. However, a twist befell him: the employer insisted that he could only pay Sid in small instalments over 40 months due to financial difficulties. Even though Sid objected, the ECT, without asking to see evidence of the employer’s financial status, granted the employer’s request and ordered that Sid be paid $500 per month, with the final payment due in August 2027. That is a duration of nearly three and a half years.
Migrant workers do not have a right to long-term stay in Singapore. Their employment situation is precarious, as employers are able to terminate and repatriate them unilaterally. Sid will not be able remain in Singapore throughout the instalment period, and faces more expense and obstacles to access the money that is rightfully his. Even though it was Sid’s employer who had contravened the law, it is Sid and his family who have suffered through the employer’s non-payment of salary, and who will continue to suffer due to an onerous payment scheme Sid did not agree to.
Hossain Rakib
In December 2020, construction worker Hossain Rakib (“Rakib”) was given a letter stating that his salary was meant to be $1300 monthly.
The next month, his employer asked him to sign a document that was in English, telling him it was for the issuance of his work permit. Believing his employer, Rakib signed it.
Over the next few months, Rakib noticed that he was not being paid correctly, and was not receiving his overtime pay despite his long overtime hours. His employer was also verbally abusive (the employer would scream at him very loudly and hit furniture to intimidate him).
Rakib approached HOME, who assisted him in filing a salary case. Rakib discovered that the document he was made to sign was in fact an agreement to a lower salary of $850 monthly. Rakib said that he was not shown the entire document before signing, only the last page, so he did not know he was agreeing to a lower salary.
Unfortunately, Rakib could not argue for his salary on the basis of $1300 as he could not prove the deception by his employer. Thus, while the ECT held that Rakib was short paid his salary, the tribunal calculated the amount owed based on the lower salary of $850 a month.
Much to Rakib’s surprise, the ECT also held that since the law stated that the maximum hours of OT permitted is 72 hours per month, Rakib would then not be allowed to claim overtime pay beyond this limit. Rakib was devastated as he had worked much more OT hours beyond 72 hours: he believed that he would be paid fairly for the work that he had done, and was distressed that his employer could get away with paying his rightful salary by way of a legal technicality.
Rakib decided to appeal the decision of the ECT. Appeals from the ECT to the High Court are usually difficult as they can only be done with leave (i.e. “permission”), and can only be done on questions of law, not fact. Thus, as the ECT’s decision that Rakib’s salary was to be computed on the basis of $850 was a finding of fact, he could not challenge that decision.
Rakib only got permission to challenge the finding that his overtime pay would be limited to 72 hours monthly, but even if he was successful, he would receive an amount much less than his original claim.
HOME assisted Rakib in obtaining pro-bono legal representation for his appeal. Ultimately, he was successful, with the High Court finding that his overtime pay cannot be restricted to the statutory limit of 72 hours, and that he is entitled to receive overtime pay for all the hours he worked.
In particular, the judgement found that the limit on overtime hours was designed to protect employees, particularly vulnerable employees who are paid lower wages. Employers therefore cannot use this statutory limit as a sword to deny overtime wages for work that they have instructed workers to do, and which the latter would find difficult to reject:
It therefore appears from these parliamentary debates that the legislative purpose behind Part 4 is very much focused on the protection of the employee as opposed to the employer…. If Part 4 is indeed meant to protect the employee, then it would be an inconsistent outcome if the effect of s 38(5) is to potentially allow an employer to require an employee to work beyond the Overtime Cap, but then hide behind the provision he (the employer) has knowingly breached so as to not pay the employee any overtime pay beyond the prescribed cap….
….as stated earlier, Part 4 of the EA is intended to “[provide] additional employment protection and benefits for the more vulnerable employees who are engaged in manual labour or are paid lower wages”...As such, and with respect, the Judge’s view overlooks the very practical power imbalance between the employer and the class of vulnerable employees who are protected by Part 4 of the EA. It would not be realistic for an employee like the appellant, who has travelled all the way from Bangladesh to find manual work in Singapore, to be in a position to reject work required of him by his employer, the respondent. It would be patently unfair and unreflective of the legislative purpose of Part 4 of the EA if the employee who has, in effect, been compelled to work beyond the Overtime Cap is then told that he or she cannot claim the overtime pay concerned. This cannot be right.
Till today, however, a year after the High Court's judgement, Rakib has not received the outstanding overtime wages. His employer simply ignored the court orders. As Rakib understood his employer’s company was closing down, it was futile to pay the high cost of enforcement proceedings, which could run into hundreds or even thousands of dollars.
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Rakib and Sid’s cases reflect the hurdles that migrant workers face even when judgements are found in their favour.
Rakib’s case was groundbreaking: it clarified the law as regards overtime pay and has paved the way for other migrant workers to make similar claims. However, this victory rings hollow for Rakib, who is left empty-handed due to the refusal of his employer to comply with the ECT’s decision.
Even with pro-bono legal representation, Rakib’s court fees came up to a large amount, which he managed to pay with financial support from HOME. NGOs such as HOME make every effort to assist such cases, yet many workers still lack full access to remedies because of the financial barriers associated with pursuing legal claims.
Similarly, if Sid’s employer’s company winds up in the course of the next 40 months, or the employer simply refuses to pay, there is little recourse for Sid, as enforcing court orders is a costly and complex affair which migrant workers can ill-afford.
Recommendations:
Remove the requirement to pay filing fees at the ECT for work permit and S-pass holders. Low-wage workers should also be proactively allowed to file claims free of charge in the event of an employment dispute.
Take measures to ensure that workers whose employers default on ECT orders have accessible recourse. For workers who are unable to receive their salaries despite being successful in the salary claims, there should be a government-administered fund that workers can access. Companies who do not pay salary arrears should also not be allowed to hire new employees, and there should be financial penalties for individuals who have control over such companies.
The Ministry of Manpower, together with the Accounting and Corporate Regulatory Authority, should monitor entities which wind up without honouring ECT orders. The authorities should ensure these entities’ controlling individuals are not allowed to set up new companies without having first paid off the debts owed to their employees.
Currently, TADM and ECT do not have investigative or enforcement powers for regulatory breaches by employers. Mediation of salary-related disputes should thus come under the purview of the Ministry of Manpower, so that employers who are in the course of mediation found to be non-compliant with the Employment Act (or any other employment-related legislation), such as for the non-issuance of payslips, can be investigated and taken to task expeditiously.
Payment arrangements such as instalment payments should require the consent of the party to whom payment is owed, and should not be determined solely by the ECT.
Currently, the Employment Claims Act (ECA), which regulates the conduct of TADM mediation and cases in the ECT, states that the ECT “may” draw inferences from the non-compliance by the employer for not issuing key documentation such as payslips. Such a discretionary approach poses an imbalance to the claims process. HOME continues to see the same offences committed by the same employers. Thus, such adverse inference should be mandated in the ECA.
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Resources:
See here for a preliminary study done by HOME in 2018 on the challenges faced by migrant workers in accessing remedies at the ECT.