Making justice count
“MOM’s Labour Court recovers S$1.5 million for 1,500 Singapore workers in 2009.” (MOM press release, 8 February 2010)
“MOM’s Labour Court helped more than 700 workers recover about S$750,000 in first half of 2010.” (MOM press release, 28 September 2010)
The above headlines refer to local, or Singaporean, workers. The situation for foreign workers, however, remains unclear. According to non-governmental organisations (NGOs) which are involved in providing aid to migrant workers, many of these workers face salary disputes with their employers. And seeking recourse through the Ministry for Manpower (MOM) Labour Court is not always a fruitful exercise.
The case of Nepalese worker Rana Kumar Rai, highlighted here, is a case in point. Basically, he was made to jump through the hoops, from the MOM to the Labour Court, but to no avail in seeking to retrieve the money owed to him by his employer.
Rana had had a Labour Court judgement handed down in his favour but he soon realised that enforcing such a judgement was another matter altogether. In brief, he would have to enforce it through his own means.
And this is where the system of justice breaks down completely for workers like him in such situations. But the problems and obstacles Rana and others like him face are not new. They have been raised previously, even in Parliament.
But first, what exactly is the Labour Court and its purpose?
The Labour Court is empowered by law to inquire into and arbitrate disputes between workers and employers, if mediation between the parties does not yield any agreement. The decisions or orders of the Labour Court are enforceable judgements. However, what happens if, in spite of the Court’s decision, an employer refuses to comply with the order?
As far as migrant workers are concerned, this is where the problems start.
For one, to enforce the judgements, the worker will have to go to the Subordinate Court to apply for a Writ of Seizure and Sale on the employer or company to recover the sum due to him. This was what the MOM had advised Rana to do.
But to do that, the worker would have to fork out S$270 for the stamp duty charge, pay for the bailiff’s fee of S$50 an hour, and make a minimum deposit of between S$150 to S$800, depending on the value of the debtor’s property. These are debilitating fees for a worker who is in financial dire straits.
And since the worker would not be proficient in the language of the courts or be familiar with court procedures and documentation, he would need to engage a lawyer to help him do these things too. For workers who are already hard-pressed to even have enough money for food, to be able to afford these fees remains nothing more than a theoretical possibility, or a virtual impossibility.
And while going through this long tedious legal process, what is the worker to do to survive in the meantime? His employer would have terminated his work permit and left him with no food or accommodation, as in the case of Rana. And getting a special pass from MOM to remain in Singapore so that he can see through the resolution of the dispute is not always possible either. In fact, oftentimes, MOM will only issue the worker a special pass if he is involved in a MOM investigation. As in Rana’s case, his special pass was terminated once MOM had completed its investigation into his employer, while his salary dispute case was still unresolved. So, a worker would face repatriation, even if he decides to enforce the Labour Court’s orders. This is because enforcement of such orders is not considered within the ambit of the Employment Act, and therefore the worker might not be issued a special pass to remain in Singapore to see through the enforcement.
NGOs such as the Humanitarian Organisation for Migration Economics (HOME) and Transient Workers Count Too (TWC2) have offered suggestions to the authorities which could help in preventing such salary disputes in the first place, such as requiring employers to pay salaries directly into the workers’ bank accounts. This will leave an electronic trail which, when necessary, can be used to adjudicate salary disputes.
The NGOs have also made suggestions on what can be better done when non-compliance of court orders take place.
Some of the suggestions include:
Employer to pay Labour Court salary arrears in escrow
This means that the Labour Court’s powers be expanded to order an employer to pay the sum owed to the worker in escrow to the Court. The Court will then in turn pay the sum to the worker. Two things are achieved with this: one, employers would take such court orders more seriously since they would be dealing directly with the courts, rather than a disempowered, resource-less migrant worker; and two, failure to pay within the prescribed time frame would be made a contempt of court or an offence punishable by a substantial fine.
Dedicated enforcement unit
The MOM could set up a dedicated unit within its ministry to help workers enforce the Labour Court’s orders. Presently, this is left virtually entirely up to the worker’s own devices and means. MOM does help with the paperwork somewhat but this is woefully inadequate. This dedicated unit’s services would be provided free to the worker-claimant. However, costs can be recovered from the employers as legal expenses. To prevent an overload of work or a large number of cases swarming the unit, access to this unit’s services could be limited to low wage, foreign workers who are often disadvantaged plaintiffs.
The capability in enforcement is what gives teeth to the Labour Court’s orders. Otherwise, these orders would be nothing more than just worthless judgements.
When employers have the right to pursue similar claims that are already heard in the Labour Court, it puts low wage workers with limited resources at an unfair disadvantage. Such practices should therefore be disallowed.
Temporary Job Scheme (TJS)
As Rana’s case shows, resolution in salary dispute cases can drag on for lengthy periods of time. MOM should allow the worker to seek alternative employment in the meantime. The TJS should not be limited to those who are required to remain in Singapore as prosecution witnesses alone. It should be extended to those with Labour Court claims too.
Rana’s case is not an isolated one. It is thus important that employers do not get the impression that they can get away with exploiting these workers, or that a Labour Court’s order is a worthless piece of paper not to be complied with.
Clearly, there must be serious consequences for employers who disregard a court order.
The suggestions above by the NGOs and others should be seriously considered by the authorities. And really, there must be a recognition of the rights of the worker – based on the time-honoured principle of “an honest day’s work deserves an honest pay”. Unscrupulous employers must not be allowed to get away with such blatant disregard for the law and our courts.
For the moment, however, it would seem that workers like Rana have no recourse to retrieve what rightfully belongs to them, from years of hard work. If even court orders are easily ignored, then what really is the Labour Court for?