Friday, 27 January 2017

Give Labour Court more power to protect workers

With the Labour Court expanding to become the Employment Claims Tribunals covering more workers, it's time to equip it with more power to enforce its own orders
By Toh Yong Chuan, Manpower Correspondent, The Straits Times, 26 Jan 2017

Two separate labour cases against employers. Both involving Bangladeshi construction workers.

Both workers won, yet they cannot get the payment orders enforced.

In the first Catch-22, Mr Islam Rafiqul was owed $7,363 in unpaid salary and the Labour Court last month ordered his employer, Geosray Engineering and Services, to pay up. The employer ignored the order.

The Ministry of Manpower (MOM), which runs the Labour Court, told Mr Islam to go to the State Courts to take action to seize the employer's assets to get the money back. This would involve him having to pay, out of his own pocket, legal fees as well as those for a bailiff and auctioneer, which he cannot afford.

In the other case, the Labour Court last September ordered local company Ridgeway Marine and Construction to compensate Mr Sujan Ahmed $11,625.

The company, which did not cover the worker with compulsory workplace insurance, made a small partial payment and stopped. To get the remainder, he has to take the employer to the State Courts.

These two cases highlight a gap in the law meant to protect foreign workers. And while these cases involve foreign low-wage construction workers, the limitations of the system affect all workers, since the Labour Court covers local ones as well.

The cases raise the question: Why can't the Labour Court enforce its own orders?

LABOUR COURT'S ROLE AND GOOD INTENTIONS

The Labour Court, despite its name, functions less like a court of law and more like an administrative tribunal.

Its "courthouse" is within MOM's premises and its powers are mostly drawn from the Employment Act, Singapore's main labour law that sets out the basic terms and conditions for workers. It hears employment-related complaints on issues such as disputes over salary, dismissal and leave.

The hearings are held behind closed doors and lawyers are not allowed to represent workers or employers. By cutting down on the legal paperwork and not involving lawyers, the fees for taking complaints to the Labour Court are very low: Employers pay $20 and workers pay $3. This makes the system accessible to all.

The mediation process also makes the dispute less combative, which is in line with the longstanding desire by the Government, unions and employers to keep industrial relations harmonious.

Other countries use a tribunal system to resolve labour disputes too. Hong Kong has its Labour Tribunal, offering "a quick, informal and inexpensive way of settling monetary disputes between employees and employers", says its website.

Here, Labour Court sessions are run by the Commissioner for Labour and his deputies, who are senior officials in MOM. Its primary goal is to settle disputes through mediation, not make rulings and enforce the decisions.

Mr Martin Gabriel, founder of human resources consultancy firm HRMatters21, says: "Employers see those chairing Labour Court sessions more as referees settling disputes rather than judges presiding over cases."

Mr Gabriel, a former MOM officer, has advised about 10 employers and represented five in Labour Court sessions over the past 15 years.

The court does not publish its decisions or an annual report, so little is known about the types of cases it handles.

Still, the MOM received about 6,000 complaints of salary disputes each year in 2015 and 2016. Half were resolved without the cases going to the Labour Court.

And of the 3,000 cases that went before the latter, 1,000 were resolved through mediation.

Manpower Minister Lim Swee Say said in a written reply to Parliament this month that in about 1,400 cases each year, the Labour Court had ordered employers to pay their workers.

However, the employers in about 350 cases ignored the Labour Court's orders. Workers in such situations have one recourse, laid out in 2013 by then Manpower Minister Tan Chuan-Jin in a reply to a parliamentary question: "(They) may enforce the orders by way of writ of seizure and sale through the Subordinate Courts."

This applies to payment orders across the different courts. Indeed, besides the Labour Court, the Small Claims Tribunals - which handle commercial and civil disputes of up to $10,000, or up to $20,000 if the parties consent to the higher limit - also follow the same process.

The limitations of the Labour Court in enforcing its orders has not escaped labour lawyers.

Having workers take their disputes to the Labour Court instead of civil courts only solves "half the problem", says Mr Vernon Voon, employment and labour relations partner at law firm RHTLaw Taylor Wessing. This is because the worker still has to go to the civil courts to enforce the order if the employer does not pay up.

"This requires time and financial cost, which an employee who is deprived of his salary can ill afford," says Mr Voon.

BEEFING UP THE LABOUR COURT

The Labour Court needs to do more to protect foreign low-wage workers as they are the most vulnerable to exploitation, says Mr Alex Au, an advocate for foreign workers' rights at Transient Workers Count Too (TWC2).

Indeed, the Government already recognises that some workers need more protection than others.

For example, the Employment Act covers all workers earning $2,500 and below a month, and manual workers on $4,500 and below.

And when the Employment of Foreign Manpower Act was amended in 2012, it gave more powers to the MOM to protect foreign workers. For example, the MOM can appoint Commissioners for Foreign Manpower who can impose fines on companies that breach rules in hiring foreign workers.

Boosting the powers of the Labour Court is a logical next step in protecting these vulnerable low-wage workers.

The Labour Court is due to be expanded in April when it becomes the Employment Claims Tribunals (ECT). The ECT will cover workers at all salary levels.

It will benefit professionals, managers and executives earning over $4,500 a month in particular, as they would otherwise have to file claims with the civil courts. The current Labour Court does not cover them. But one can imagine their disappointment if they were to obtain a court order and, in the event the employers refuse to pay, they are told they have to enforce the orders themselves.

Given the expansion of the Labour Court in April, it is timely to review whether it can give workers more help.

THREE WAYS TO GIVE IT TEETH

First, make it easier for the worker to seek legal recourse against employers which do not pay. They should not have to take the step of seizing the employers' assets, with all the jumping through legal hoops that it involves.

In Britain, a worker awarded payment by its Employment Tribunal can get help with enforcement. He can ask the court to force the respondent to pay by filling in a "penalty enforcement form". Respondents will be fined if they do not pay up within 28 days.

There is no need for the British worker to seize the employer's assets and sell them.

Second, punish employers which ignore the Labour Court orders.

Mr Voon notes: "Failure to pay compensation awarded by the Labour Court under the Work Injury Compensation Act is a criminal offence, and there is no strong policy reason why non-compliance with an order of the Labour Court issued under the Employment Act shouldn't be on the same footing."

The MOM already has the powers to charge employers in court for not paying salaries or injury compensation. The next logical step is to also punish the employers which ignore the court payment orders. This will reduce the non-compliance rate.

Third, for workers whose employers cannot pay up, the Labour Court can direct the workers to get financial aid.

In Hong Kong, there is a government-run Protection of Wages on Insolvency Fund that can pay workers if employers are bankrupt. Mr Au suggests another variation: a backstop fund which pays out the Labour Court orders first and claims from the employers later.

For foreign workers, there is already a little-known relief fund here. The Migrant Workers' Centre - which is backed by MOM, the National Trades Union Congress and the Singapore National Employers Federation - runs the Migrant Workers' Assistance Fund that has $457,706 as at March last year. It gave out $64,782 in assistance to workers in 2015.

Whatever the source and mandate of the relief funds, the idea is that it need not be solely a government effort. Non-governmental organisations can chip in too. In the longer run, the scope and powers of the Labour Court, and the ECT from April, cannot remain static.

Any move to review how the Labour Court can be enhanced to protect workers from the apparent injustice of not receiving their ordered payment or compensation cannot come too soon.



















Over $11,000 raised for foreign worker who was owed wages
Donations pour in from ST readers, donors on fund-raising site after report on his plight
By Toh Yong Chuan, Manpower Correspondent, The Straits Times, 26 Jan 2017

Bangladeshi construction worker Islam Rafiqul will be going home, thanks to more than $11,000 in donations.

His employer, Geosray Engineering and Services, had ignored a Labour Court order to pay him $7,363 in wages that he is owed.

The 42-year-old was stuck as he did not have the means to pursue other legal options.

Yesterday, non-governmental organisation Transient Workers Count Too (TWC2) handed him a $1,250 cash cheque, from donations by readers who had read about his plight in The Straits Times last week. He also received $10,160 in cash from online fund-raising website give.asia.

The website circulated ST's report and raised $10,462 from 263 donors, said co-founder Aseem Kumar Thakur.

A sum of $302 was deducted by banks to cover credit card processing fees for donors who used cards to donate through the website.



Mr Aseem, a permanent resident who runs the website on a voluntarily basis, said donors were moved to help. "Nobody likes stories of injustice."

A law firm, which asked to remain anonymous, has also offered to help Mr Islam recover the debt from his employer on a pro bono basis, TWC2 said.

Mr Islam said he was "very happy" with the help. "The Singapore people (are) good (to me)."

He plans to use the money to buy a plane ticket home next week and save the rest. He also hopes to return here to work again.

"I (have) worked here (since) 1998. I like working here, not all bosses (are) bad," he said.










Most bosses obey Labour Court orders, says group

Migrant Workers' Centre calls for action against 'very small group' of errant employers
By Toh Yong Chuan, Manpower Correspondent, The Straits Times, 28 Jan 2017

The large majority of employers obey Labour Court orders to pay their workers, an advocacy group for foreign workers said yesterday.

Those who do not comply with these orders - mostly related to salaries owed or injury compensation - often do not have the money to do so "due to forces beyond their control", Migrant Workers' Centre (MWC) chairman Yeo Guat Kwang told The Straits Times.

"These employers harbour little or no wilful intention to short- change or exploit their workers," he said in a statement. The "very small group of employers" with the means to pay workers, but who are "wilfully non-compliant", is of greatest concern to the MWC. "We call on the authorities to take stern action against them," he added.

Mr Yeo said the MWC works closely with the Ministry of Manpower (MOM) to see how current systems can be improved to better protect migrant workers.

He said the MWC has asked the authorities to widely publicise successful prosecutions of errant employers, "so that a strong example is made of offenders and a firm message of non-tolerance of such behaviour is sent to all employers".

It also suggested that MOM improve the monitoring and enforcement of work injury compensation insurance so that injured workers get paid.

Mr Yeo, a National Trades Union Congress (NTUC) assistant director-general, was responding to Straits Times reports this month on the plight of Bangladeshi construction workers Islam Rafiqul and Sujan Ahmed, whose employers did not pay them salary or compensation despite being ordered by the Labour Court to do so.

A commentary on Thursday also called for the Labour Court to be given more powers so that the workers do not have to enforce the payment orders themselves.

Mr Yeo said the MWC has helped migrant workers enforce such orders in the last two years. Workers get lodging and $1,000 to $3,000 in goodwill payments while waiting for complaints to be processed.

The MWC was set up by the NTUC and the Singapore National Employers Federation in 2009.

Earlier this month, Manpower Minister Lim Swee Say told Parliament in a written reply that the Labour Court heard 6,000 complaints of salary disputes a year in the past two years.

In about 1,400 cases each year, the Labour Court ordered employers to pay workers. But in about 350 cases, the employers defaulted on the Labour Court's orders.

Mr Yeo said of the current system: "It is important to note that while our system addresses the needs of most workers, there... remain cases such as that of worker Sujan Ahmed that fall through the cracks."





Non-payment of foreign workers: 'Ban errant bosses from starting firms'
Group cites cases of businesses winding up to avoid paying wages, among other abuses
By Toh Yong Chuan, Manpower Correspondent and Nur Asyiqin Mohamad Salleh, The Straits Times, 30 Jan 2017

Employers who hire foreign workers and default on their wages sometimes wind up their businesses, only to set up new ones later, just to avoid paying the money they owe.

A non-governmental organisation that advocates for the rights of foreign workers has called for such employers to be banned from starting new companies until they have paid the workers.

This will ensure that they cannot hire and exploit a new batch of foreign workers, said the Humanitarian Organisation for Migration Economics (HOME) in a research paper published this month.

It also urged the Ministry of Manpower (MOM) to proactively prosecute errant employers and give the new Employment Claims Tribunals more power.



HOME interviewed 2,009 work permit holders from China, Bangladesh, India and Malaysia who had sought its help in 2015 and last year. It found that unpaid wages and underpayment were the most common problems, with about half of the respondents citing these woes.

HOME acting executive director Jolovan Wham said this exploitation was akin to "wage theft".

"Wage theft is an appropriate and accurate term because in the majority of cases we have documented, there was a deliberate attempt by employers to underpay, ignore labour laws, deduct wages and manipulate payment methods," he said.

HOME also found "wage differences according to nationalities". It said new construction workers from Bangladesh or India typically earned $18 per day in 2015 and last year, a sum that had not risen since 1992, when the average daily wage of a new Bangladeshi worker was $16 to $19. But a new construction worker from China earned about three times more in 2015 and last year, getting about $50 a day.

Another problem was workers not being paid for overtime or for working on public holidays. One in three of those interviewed said he did not get overtime pay.

One in four workers said his employer made unauthorised cuts from his salary for purposes such as insurance premiums, safety equipment and even punishments for breaching the work contract.

HOME said some unauthorised deductions were termed loans and savings. Also, some employers recorded fewer hours worked, to punish the workers. "This is another means to exact a financial penalty on workers without having to make outright deductions," HOME said.

Some workers said they were deceived about wages and work conditions by employers.

There were also those who ended up in irregular work arrangements, in which they were not working for the employers listed in their work permits. These workers were brought in through "shell companies" set up for the purpose of profiting from recruitment fees and kickbacks.

Mr Wham said he hoped the paper would create greater awareness among the public and prompt MOM to change things.

Construction worker Sohag Fazlul Haque, 30, has had various unauthorised deductions made to his salary each month.

"Some people stay quiet, but I cannot. I want the workers not to have this problem in future. I want them to know the problems," he said.




ISSUES SOME LOW-WAGE FOREIGN WORKERS FACE

• Wage stagnation - salaries have not risen in over 25 years.

• Workers are not paid, or they receive their salaries late.

• They are not paid for overtime work, or for working on rest days and public holidays.

• Employers make unauthorised deductions from their wages.

• Employers declare a higher salary to the Manpower Ministry but pay less than that.

• Employers lie about salaries and work conditions.

• Employers ignore Labour Court orders to pay workers.



HOME RECOMMENDS...

• Manpower Ministry proactively prosecutes employers who break labour laws.

• Increase powers of the new Employment Claims Tribunals.

• Ban employers who owe workers' salaries from setting up new companies.

• Allow workers to switch employers temporarily when they have salary disputes with their current employers.

• Enact anti-discrimination laws at the workplace.

• Step up education for employers in sectors where there are high rates of labour law violations.

• Give free legal aid to foreign workers who make salary claims against employers.

• Lessen the burden on workers who have to prove violations by their employers.





'Wage theft' leaves workers in distress
By Nur Asyiqin Mohamad Salleh, The Straits Times, 30 Jan 2017

Since arriving in Singapore for work last August, welder S. Kumar has not sent a single cent home.

The 42-year-old was looking forward to supporting his wife and two young children back in India, but his hopes were dashed when his first pay cheque arrived.

He received just $200, less than half of the $530 monthly salary he was promised. The reduced sum is just enough to support himself.

His supervisors had different explanations for the disparity each month: The company was withholding part of his salary for safekeeping; it was for the dormitory; electricity bills had to be paid.

Mr Kumar said he was not informed of any extra expenses before he arrived here. He was also promised overtime pay, but does not receive it despite working 11-hour days.

"I came to Singapore thinking I could finally start a new life for my family," he said in Tamil. "But I haven't sent any money home."

Mr Kumar claimed he is not the only foreign worker in his company whose wages have fallen so far short of what was promised. It is the same for more than 60 of his colleagues. "But we don't want to create problems. We came so far, we have so much to pay back," said Mr Kumar, who had paid his agent $2,800 to come to Singapore.

He would have stayed silent. But last month, he was sent for surgery to treat a gastrointestinal perforation that was causing severe abdominal pains. His firm was not keen on paying for the follow-up checks and medication, he said.

After his supervisors told him this month that they planned to send him back to India to recuperate, Mr Kumar sought help from the Humanitarian Organisation for Migration Economics (HOME).

"My company told me, 'You're too expensive. Go back to India. Get well, and come back.'I told them that I'm not well yet. And I was scared that if they sent me to India, they wouldn't bring me back again. I didn't make money. I lost it. How can I go home?"

Mr Kumar is just one of the victims of what HOME has termed "wage theft". These workers find themselves receiving less than their legally or contractually promised wages.

Mr Sohag Fazlul Haque from Bangladesh was told he would be paid $20 a day, but learnt he would receive $17 daily instead upon reaching Singapore. He was not paid extra for overtime, and got 1.5 times his daily rate - instead of double the daily rate that he was entitled to - on Sundays.

His company, Glaziers Engineering, told him in December 2015 that he owed the company money for various reasons, from $950 for his levy, to $50 for office utility bills. This was deducted from his monthly salary in instalments.

"I say, like that, how to makan (eat)? Boss say, 'All men the same pay'," recalled Mr Sohag, 30. "He says, 'You don't like, you go home'."

Last February, his company informed him that it would deduct his entire salary to repay his outstanding loan. He was forced to borrow from friends for food that month.

In May, Mr Sohag hurt his back carrying a heavy glass panel meant to be handled by three men. His supervisor had set just two men on the job. Mr Sohag filed a work injury compensation claim and was awarded about $8,000. He suffered 5 per cent permanent incapacity of his back.

"Very hard work here. Heart pain, body pain," said Mr Sohag, who flies home to Bangladesh tomorrow. "That's why I don't want to come back to Singapore."






* Parliament: 158 employers convicted in last 3 years of not paying workers

95% of cases last year resolved; aim is to deter errant bosses by prosecuting serious cases
By Toh Yong Chuan, Manpower Correspondent, The Straits Times, 7 Feb 2017

The Ministry of Manpower (MOM) has hauled 158 employers to court in the last three years for not paying the salaries of their workers. All were convicted.

But Manpower Minister Lim Swee Say said his ministry does not intend to criminalise all such cases, especially in cases where employers cannot pay owing to business failures. Its main goal is to deter errant employers by prosecuting serious and repeated cases, he said in Parliament yesterday.



Last year, the MOM received about 9,000 complaints against 4,500 employers who failed to pay their workers. About 95 per cent of the cases were resolved by the ministry and the Labour Court, Mr Lim said in his reply to Ms Denise Phua (Jalan Besar GRC) and Nominated MP Kuik Shiao-Yin.

Of the salary claims against 208 employers that were not resolved, some involved 199 employers that had either ceased operations or were about to do so owing to money problems.

Workers of these firms had a slim chance of recovering the money owed from their employers, Mr Lim said, adding: "This is not because the employers could just refuse to pay up, but because they are mostly in deep financial difficulties."

For work injury compensation, five of the 15,679 workers injured last year got nothing as their employers did not insure them. They represented about 0.1 per cent of the work injury cases MOM handled last year.

Four of the workers are foreigners and one, a local. Their bosses are being prosecuted, Mr Lim said.

Employers who do not pay their workers are banned from hiring new foreign workers until they have settled their debt. The ban applies even if they set up new companies, he added.

Though nearly all the cases in the two types of disputes were resolved, MOM is still concerned for the small number left empty-handed, Mr Lim said. "Salary is hard-earned money," he noted. "When a worker is injured, it may affect his ability to work and to not pay him the compensation is unacceptable," he added. "We will continue to strengthen our support for them."



Local workers with salary claims can get financial help from a panel that will be set up in April by the MOM, National Trades Union Congress (NTUC) and Singapore National Employers Federation (SNEF) to settle pay disputes.

Singaporeans who are seriously injured and did not receive compensation can get financial aid from a Workers' Fund run by MOM.


Foreign workers can turn to the Migrant Workers' Centre set up by the NTUC and SNEF.

Workers with Labour Court orders in their favour and have hope of getting some payment by seizing their employers' assets have to apply to the State Courts to do so, Mr Lim said, adding: "This is the same process that applies to all unpaid Civil Court orders, including those made by the State Courts."

Mr Lim urged workers to bring their salary complaints to MOM immediately and not wait.

"This will greatly improve the chances of successfully resolving the claims before the employers reach dire financial straits," he said.



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