Powerful to Build, Powerless to Defend
Lim Wei Zheng
The silent builders of our home and economy have begun to vocalize their thoughts. The landmark SMRT Bus workers strike1 raised a few eyebrows, but raised more questions – as does the increase in migrant workers falling to their deaths2. What have they fallen into? What systemic pit have we built for these workers?
Their hands have painstakingly built the hardware and software of our country. Yet, these who are powerful to build and man the social frameworks of our society, are powerless to defend themselves against the socio-legal labyrinth they find themselves trapped in. The recent spate of workmen accidents and exploitation suggests that the element of control may undermine the freedom of contract in terms of the formation and enforcement of contract. The control imbalance between the employers and migrant workers severely skews the bargaining power workers have in negotiating and enforcing the terms of their contract.
This warrants first an examination of the control disparity between employers and migrant workers, and how this disparity is more pronounced for migrant as opposed to local workers. This will be followed by a discussion of the non-contractual remedies available in tort and statute. The impact of this control imbalance on the formation and enforcement of the contract, as well as the remedies available to the workers will then be examined. It is submitted that the private law system, in theory, does have legal recourse available to these workers, but the realities of control and evidentiary burdens render these unavailable. Instead, policy should work to equalize the disparity through imposition of legislative frameworks.
Indeed, locals and migrant workers may be subject to the same employers, but what is it exactly about these migrant workers that make them exceptionally vulnerable, as opposed to local employees? Beyond their unfamiliarity with our language and legal system, the answer lies in what these workers left behind – their homes. A nagging threat preventing transient workers from raising or enforcing legal claims they have would be the threat of repatriation – a threat that lacks the same force for local employees. Workers stand to lose too much in the face of repatriation – they have invested too much in the journey here that they would stand to lose much financially and emotionally were they to return empty handed. Too many shackles chain transient workers to their jobs in Singapore – even before they touch down at our sunny shores. Placement and agent fees leave them with debts3 that must be repaid before they may return home. Delays in payment of wages force them to remain in Singapore to pursue their claim. Arbitrary deductions for sick leave, informal saving schemes and rent compel them to work overtime to earn back what was lost4. The threat of repatriation is a very real one, as it prevents workers from pursuing any claims they have against their agents and employers5. Besides threatening their financial position, repatriation threatens their social status back home, due to the shame of returning as “failed migrants”, particularly for male migrant workers6. The threat is accentuated by the ease with which repatriation can be done legally or illegally. Legal means allow employers to unilaterally cancel or refuse to renew work permits7, rendering what was legal today, an illegal overstaying tomorrow. Alternatively, employers may enlist the services of repatriation officers, to forcefully repatriate8 workers who are unwanted, or to cause workers to disappear before their case may be heard before the courts9. This control imbalance, where workers have a compelling reason to stay in Singapore, but employers have the power to make them leave before their time is up, causes employers to have a stronghold over more than the workers’ pay – but also the workers’ safety.
This control imbalance has the power to exacerbate the workers’ physical, mental and economical safety. Repatriation in itself involves the tortious offences of battery; assault and false imprisonment, which threaten both the worker’s physical and mental safety. The motive behind forceful repatriation seeks to deny the worker his rightful claim to his due wages, threatening the worker’s financial safety. While in theory, workers may try seeking legal recourse by calling the police before filing criminal or civil claims10, in practice, repatriation companies are viewed as a legal means of safeguarding the employers’ security bond11, and thus enforcement agencies may be reluctant to intervene.
Beyond actual forceful repatriation, which may be a reality for a number of workers, the control imbalance caused by the threat of forceful repatriation further threatens the safety of many, when safety regulations imposed by statute12 go unenforced due to the threat. While in practice employers have an onerous, direct and non-delegable duty to ensure workers safety by imposing a safe system of work13 in statute and under common law, the control imbalance lends them license to not enforce such precautions, especially if it would save costs and time. Unfortunately, it does not save lives14. Definitely, not every employer is guilty of flouting such safety rules, but enough are, to pose a threat to the lives of the workers who pass through their hands15. In certain instances, threats of repatriation may even suffice to cease protests16 against commands to flout safety regulations17.
This problem is heightened when the flouting of safety regulations actually results in accidents. Under the Work Injury Compensation Act18, compensation seems to be a simple matter in that the claimant simply has to suffer from the respective afflictions. However, it is a complex issue in reality, where a heavy evidentiary burden lies upon the worker to prove the injury, as there are no formalized systems of documenting proof. There is no standardized procedure across the medical profession as a whole as to collecting testimonial evidence concerning the worker’s injury. For instance, there are no guidelines stipulating that both the workers and employers’ account of the accident should be noted down. It is understandable that in a large percentage of cases, doctors would prefer to hear an account of the accident from primarily the employers, as there is a smaller language barrier to surmount. Further, where concrete evidence such as closed-circuit television footage of the accident is available, they usually lie in the hands of employers, who can choose not to hand it over. The lack of formalized systems to help workers formally document proof, lend workers no avail when employers counter-claim that the employee’s injury was not work-related19.
Beyond legal recourse in criminal, statutory and tort law, workers theoretically have recourse in contract law. Firstly, regarding arbitrary deductions from the sum the worker is entitled to; employers are not allowed to unilaterally change the terms of the contract unless the other contracting party agrees. However, due to the control imbalance, most are afraid to persist in challenging such deductions, when they are unfamiliar with the Singapore’s legal system, and the threat of being sent home without receiving any pay looms overhead.
Secondly, contract law does not satisfactorily provide a resolution to the problem of salary delays. While salary delays are a breach of the terms of a contract, these salary delays are not conditions, as the time of payment will not be deemed as a condition in common law20. As these delays are not deemed as a breach of a contractual condition, this does not entitle the worker to the common law right to termination of the contract – which might be the next best remedy available to the worker after a long period of salary delay. The right to terminate would allow the worker to cut his losses when the employer clearly has no money to pay or will not pay the worker his salary, which would render the common law right to damages or sue for contract price a hollow one.
Thirdly, while salary delays are not breaches of contractual conditions, the Employment Act21 does stipulate that salaries must be paid within seven days of the agreed date of payment22, and that over time pay must be paid within fourteen days of the last salary period23. Thus, the law allows a form of settlement for wage disputes via the Ministry of Manpower (“MOM”) caseworkers and the Labour Court. However, in practice, while MOM has succeeded in helping workers receive their unpaid salaries, in most cases, where the employers themselves are penniless, the workers are still unable to recoup their losses24.
Fourthly, these salary disputes may arise out of duplicate contracts and documents, where different terms are incorporated into legal documents, which purport to be the same. For instance, in their home countries, workers sign documents which may be in their own native tongue, but when they reach their destination country of Singapore, they sign the same document in English. While the terms profess to be the same, in reality, due to the language barrier, the workers are unable to do their due diligence to ensure the contractual terms are the same. Further, the control imbalance raises questions of the equality of bargaining power between the employers and migrant workers. Having already paid their agent fees and airfares, any legal recourse available in the doctrines of mistake, misrepresentation or duress, upon discovery of the differences in terms of contract in Singapore, would be too little, too late. The differences in equality of bargaining power further undermine the true nature of the freedom of the migrant worker to contract on his terms. While local workers may lack freedom to negotiate the terms of our contracts, the ability of locals to wait out legal claims and easily switch employers without being encumbered by work permits provides local workers with a very real means of enforcing the terms of their contracts in the event of breach.
In sum, these salary delays, non-payment of medical compensation for work accidents and deductions do plague a good number of the low-skilled and semi-skilled migrant workers in Singapore. The question then is what form of legal recourse does statute or the private law system afford them and to what extent are these effective in light of the control imbalance? The answer, while dismal, offers some hope. Practically speaking, the control imbalance and the very real threat of repatriation pose a high barrier to successfully enforcing and proving any legal claims that workers have. However, the sound theoretical legal doctrines bring hope in that there are legal avenues to tackle each problem, and bring optimism that slight systemic changes may be able to address problems posed by the control imbalance.
Policy should be two-pronged: aimed at both reducing the threat of repatriation, and easing the evidentiary burden on migrant workers. Regarding the former, the Singapore Court of Appeal has been open to employers footing the travel expenses of their workers when their workers return to Singapore to pursue their claim25. This brings hope that the threat of repatriation will be eased in time, where workers need not fear being repatriated because they can return to Singapore for their case to be heard even after their Special Passes or Work Permits expire, as their employers will be responsible for their expenses. Systemic changes in the form of allowing workers to pursue their claims from their home countries, rather than Singapore, would be helpful in reducing the legal sting of the threat of repatriation. Regarding the latter, compulsory issuance of pay slips26, and streamlining the statement-recording procedures for doctors, will help reduce the level of evidentiary burden placed on workers in trying to prove the validity of their claims.
Clearly, a balance between fairness and certainty must be struck both in theory and in practice. The day where sound theoretical checks against the abuse of control imbalances can be enforced in reality is one where perhaps, these silent builders will truly be legally empowered to defend themselves fully.
[1] Fann Sim, “Singapore bus driver strike makes world news”, Yahoo! News (30 November 2012), online: <http://sg.news.yahoo.com/singapore-bus-driver-strike-makes-world-news-104247497.html>.
[2] Teckwah Tan, “Singapore’s Maids: No Respite?”, The Diplomat (05 August 2013), online: <http://thediplomat.com/2013/08/singapores-maids-no-respite/>.
[3] Kirstan Han, “Singapore’s Exploited Immigrant Workers”, The Daily Beast (11 August 2013), online: <http://www.thedailybeast.com/articles/2013/11/08/singapore-s-exploited-immigrant-workers.html>.
[4]“Debts, Delays, Deductions: Wage Issues Faced by Foreign Domestic Workers in Singapore”, Transient Workers Count Too (24 May 2009), online: <http://twc2.org.sg/2009/05/24/debt-delays-deductions-wage-issues-faced-by-foreign-domestic-workers-in-singapore/>.
[5] Fann Sim, “Chinese Worker Rescued from Being Repatriated by Employer” YahooNews – Singapore Scene (21 December 2012), online: <http://news.yahoo.com/blogs/singaporescene/chinese-worker-rescued-being-repatriated-employer-024508057.html>.
[6] Sallie Yea, “Troubled Waters: Trafficking of Filipino Men into the Long Haul Fishing Industry through Singapore” (2012) at 56. Online: Transient Workers Count Too <http://twc2.org.sg/wp-content/uploads/2013/01/Troubled_waters_sallie_yea.pdf>.
[7] Ministry of Manpower, Work Permit (Foreign Worker) Cancellation and Renewal, online: MOM
<http://www.mom.gov.sg/foreign-manpower/passes-visas/work-permit-fw/cancelation-renewal/Pages/pass-cancellation.aspx>.
[8] Philip Lim, “Missing Migrant Workers Hunted Down in Singapore”, The Jakarta Globe (3 August 2011), online: <http://www.thejakartaglobe.com/archive/missing-migrant-workers-hunted-down-in-singapore/>.
[9]Repatriation Companies – Manpower Minister’s Response Belittles the Efforts of Migrant Workers, Jolovan Wham, (30 November 2011), online: <http://www.theonlinecitizen.com/2011/11/repartriation-companies-manpower-ministers-response-belittles-the-efforts-of-migrant-workers/>.
[10] Ibid.
[11] Ibid.
[12] Workplace Safety and Health Act (Cap 354A, 2009 Rev Ed Sing).
[13] Chandran a/l Subbiah v Dockers Marine Pte Ltd [2010] 1 SLR 786; [2009] SGCA 58.
[14] Fiona Low, “More Workers in Singapore Falling to Their Deaths”, The Straits Times (4 November 2011), online: The Jakarta Post <http://www.thejakartapost.com/news/2011/11/04/more-workers-singapore-falling-their-deaths.html>.
[15] “Workplace Injuries, ill health ‘cost billions’”, TodayOnline (31 July 2013), online: <http://www.todayonline.com/singapore/workplace-injuries-ill-health-cost-billions>.
[16] Lim Wei Zhen, “Workers Told to Ignore Max Carrying Load Per Man Suffer Injury”, Transient Workers Count Too (19 August 2013), online: <http://twc2.org.sg/2013/08/19/workers-told-to-ignore-max-carrying-load-per-man-suffer-injury/>.
[17] Arjun Naidu, “Worker May Need Operation for Back Injury, Employer Wants to Send him Home”, Transient Workers Count Too (5 August 2012), online: <http://twc2.org.sg/2012/08/05/worker-may-need-operation-for-back-injury-employer-wants-to-send-him-home/>.
[18] (Cap 354, 2009 Rev Ed Sing).
[19] “Who Said What to the Doctor”, Transient Workers Count Too (6 December 2013), online: <http://twc2.org.sg/2013/12/06/who-said-what-to-the-doctor/>.
[20] Man Financial (S) Pte Ltd (formerly known as E D & F Man International (S) Pte Ltd) v Wong Bark Chuan David [2008] 1 SLR 663; [2007] SGCA 53.
[21] Employment Act (Cap 91, 2009 Rev Ed Sing).
[22] Ibid, s 21(1).
[23] Ibid, s 21(2).
[24] Andrew Loh, “Construction Workers in Yishun Demand Pay, Refuse to Work”, Yahoo (18 December 2012) online: <http://news.yahoo.com/blogs/singaporescene/construction-workers-yishun-demand-pay-refuse-063411977.html>.
[25] Selina Lum, “Insurer Rebuked for Wasting the Court’s Time”, Asiaone (30 November 2013), online: <http://news.asiaone.com/news/singapore/insurer-rebuked-wasting-courts-time>.
[26] Rachel Chang, Joanna Seow and Robin Chan, “Move for Compulsory Payslips Deferred”, Asiaone (15 November 2013), online: <http://business.asiaone.com/news/move-compulsory-payslips-deferred>.