How the system failed this worker

workers

By Andrew Loh

For most of us, obtaining a court order in our favour would be the final vindication of our case. We would also expect that the judgement order be adhered to or be enforced. Otherwise, the court’s decision would be the result of nothing more than a worthless and meaningless legal process.

Unfortunately for Nepalese Rana Kumar Rai, the Labour Court’s decision in his favour – over a salary dispute with his employer – is precisely that, a seemingly worthless paper judgement in his favour.

This is his story and how the system here in Singapore has failed him.

Rana, who hails from eastern Nepal, first came to Singapore in September 2009. With a wife, a 4-year old son, elderly parents (father, 65; mother, 63), and 2 younger siblings to care for, he looked for better prospects to help lift his family out of the poverty they were in.

Borrowing from relatives and loansharks, he cobbled together some S$8,000 to pay an agent in Nepal to bring him to Singapore for work. Rana was told that he would be working 10 hours a day, and be paid a salary of S$1,000 per month. The contract he signed, however, indicated a salary of S$1,800. He was also told that he would be paid for overtime if he worked beyond 10 hours a day, and that he would get 2 days off per week.

After he arrived in Singapore, Rana was put to work at 326 F&B Coffee Shop Private Limited in Woodlands, slogging 18 hours everyday, from 5.30am to midnight. Despite working more than 10 hours daily, he was never paid for overtime. In fact, he tells publichouse.sg that his employer paid him only part of his salary each month after the first year. He was also never allowed any days off, contrary to the contractual agreement.

At some point he didn’t have enough money to buy food for himself and had to rely on the goodwill of the stall owners at the coffeeshop.

Worried that his family back home would not be able to survive without his earnings, he called the employment agency in Singapore to try to resolve the problem with his employer. The agency promised to speak to his employer but he never heard from them again.

Eventually, on the advice of the stall owners, he decided to approach the Ministry for Manpower (MOM) for help. At the MOM, Rana says he was told to return the next day instead. When he went back to his work place that day, his employer asked him where he had been. Rana told him that he had gone to the MOM. He also gave his employer an ultimatum – either he paid up the 14 months salary arrears or he would bring the matter to the courts.

Upon hearing this, his employer said if Rana brought the case to the courts, then he would not be able to work anymore with the company and thus he would no longer be provided food or accommodation either.Naturally, he turned to the justice system to seek redress. His case was heard at the Labour Court in October 2011. In the event, the Court decided in Rana’s favour and ordered his employer to pay up the S$6,865 owed to him by 10 November 2011.

However, the employer refused to pay up. When contacted by publichouse.sg, the Ministry explained that it had advised Rana “of the option to apply for a Writ of Seizure & Sale (WSS) at the Subordinate Court to enforce the Order and recover the sum due to him.”

Healthserve, a local non-governmental organisation, then found a lawyer – Mr Mohamad Baiross – to act on Rana’s behalf in the issuance of the WSS against the employer.

“On request through his lawyer, the Ministry had helped to prepare the WSS documents for [Rana] to submit to the Subordinate Court,” MOM says.

But enforcing the WSS is easier said than done, especially for a foreign worker whose dire financial situation is precisely the reason he is bringing the case to Court.

According to a 2010 joint-report by the Humanitarian Organisation for Migration Economics (HOME) and Transient Workers Count Too (TWC2) – the two NGOs which are at the forefront of providing aid to migrant workers in Singapore – there are other costs involved in enforcing a Court Order.

“The writ of seizure and sale requires a bailiff to seize from the debtor property to be auctioned for sale to settle a debt. MOM offers a service to help claimants pursue their claims through this channel. However, claimants have to pay for the stamp duty charge (S$270) and other costs such as the bailiff’s attendance fee, which is charged at a rate of S$50 per hour. In addition, a claimant is also required to make a minimum deposit of between S$150 to S$800, depending on the value of the debtor’s property.”

Lack of financial resources, however, is not the only limitation or obstacle facing migrant workers in such situations.

When a dispute arises and the worker makes a complaint, the employer would often terminate the worker’s work permit immediately – which can take effect within 24-hours or days, and without the worker being aware of this which then puts him at risk of being an overstayer in Singapore, subject to jail and caning if found out. Also, the employer would deny the worker accommodation, which means the worker will have to fend for himself. This is a real problem for any worker who has no money in his pocket. They may end up sleeping on the streets, for weeks or even months, until their cases are resolved – or they are sent home to their countries, whichever comes first.

For Rana, he faced another problem – being denied eligibility in being placed on the MOM’s Temporary Job Scheme (TJS). He had appealed repeatedly to the MOM to grant him a Temporary Work Permit (TWP) so he could find employment while awaiting the resolution of his salary dispute with his employer. This would also enable him to send some money home to his family which depends on his salary to survive. However, according to aid workers, MOM said “he is not from approved source country for TJS.”

In the meantime, the employer has sold off the coffeeshop to new owners. It is now called “326 Coffee Shop Pte Ltd” – with the original “F&B” removed. This makes enforcing the WSS on the employer virtually impossible. Indeed, Mr Baiross feels there is little chance of Rana being able to retrieve any money from the WSS, even if it is enforced as the employer is a private limited company which appears to have no assets. Moreover, the employer appears not to be trading anymore.

In November 2011, MOM initiated investigations into the employer for “infringement of the Employment Act (cap 91)”. The MOM provided Rana with accommodation as he was needed to help in the investigation.

In late April 2012, the MOM informed Rana that he was no longer required to remain in Singapore to assist in the investigations.

Ms Jacqueline Tan, a community worker with Healthserve, raised some money from friends and family for Rana. The Nepalese community here chipped in as well. At the initiation of the MOM, the Migrant Workers Center (MWC) gave Rana S$1,000 to purchase a return ticket to Nepal.

Rana is grateful for the help and the support from these groups and individuals. He has since returned to Nepal. Life is still very much a struggle for him and his family. Both his parents are ill and he faces societal and family pressure. Rana’s hope is to send his son, whom he had not seen since leaving Singapore when his son was just 4 months old, to a decent school in Nepal so he does not end up like him. But Rana has no money to do so, having been left high and dry working in Singapore, with a mountain of debt which he has no way of repaying.

He still owes his debtors close to S$5,700 in principle. With added interests on the loans, the amount he owes is more than S$11,000, a significant amount which he has no way of paying off back in Nepal where work is hard to come by.

In the meantime, his former employer in Singapore has been barred by the MOM from employing foreign workers. But that is small comfort to Rana because the wages he worked so hard for have not been retrieved. In any case, the employer can simply start-up another entity and have his friends or family use their names to register a new business.

“Even though he is no longer in Singapore,” MOM says, “the Labour Court Order remains valid for him to enforce against his employer through WSS.”

Instead of the worker himself enforcing such orders handed down by the courts, perhaps it would be more appropriate and indeed necessary for the authorities to do the enforcing, or to see where the loopholes can be closed. In the next article, we explore what some of these potential solutions are.

As for Rana, it is a travesty of justice that having put up his side of the bargain and worked hard at his job, he is allowed to be exploited and abused in such a manner. It is an even greater injustice that our justice system, which he looked to to right the wrong done to him, has let him down.

Why then would anyone want to take the risk of seeking justice if, in the end, even a court’s judgement is not enforceable, and one would lose one’s job and be repatriated? What faith would such a worker have in the very system of rules and legislations which was ostentatiously set up to protect him in the first place?

Read Part 2 on what MOM can do in cases such as these here: Making justice count.

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Special thanks to Woo Wei Ling and Stephanie Chok.

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