Singapore law abetted employer to cheat foreign workers
- From: "truth" <truth@xxxxxxxxxxxx>
- Date: Fri, 12 Dec 2008 14:52:05 GMT
http://www.yawningbread.org/
I'm sure readers would be interested in an update of the China workers
issue before I fly off.
Friday, 5 December: After the morning's interview with Yawning Bread,
the men went off to the Ministry of Manpower again, to ask for another
appointment date. They met with the same officer whom I called "Chen" in the
earlier article, but whose name I have now established, is Mr A K Tan.
Tan gave them a new appointment date for Wednesday, 10 December. He
issued a letter with four originals, one each for the four China workers who
were still free. As you will recall from the earlier article, two others
were already in detention at the Immigration and Checkpoints Authority
(ICA).
Each of the men had photocopies of the letter made. This letter should
be useful in case the employer's security agents nab them and hand them over
to the police.
Saturday, 6 December: Stephanie Chok, the tireless volunteer, received
word that Xue Hanming and Yang Zhiqiang were being held at Xuyi, the
employer's office. The employer wanted them to sign an agreement to be paid
(a sum that the men did not agree with) and repatriated. The men refused and
Xuyi was calling the police.
She and Russell Heng, treasurer of Transient Workers Count Too (TWC2),
rushed to Xuyi's Joo Chiat office. They arrived at about the same time as
two police officers. Two other police officers were already in the office.
Other China workers were in the corridor muttering their own unhappiness
with the employer.
A woman named Elsie, representing the company, objected to the
presence of third parties, so Stephanie and Heng had to wait outside. Soon
after, Radha Basu of the Straits Times arrived, but she didn't get much
co-operation from Elsie either.
Heng told the police that Xue and Yang had appointments at the
Manpower ministry on 10 December, and so they are not illegal overstayers.
They therefore shouldn't be taken into custody. Unfortunately, Xue only had
a photocopy of his letter in his possession and the police felt that they
had to take the both of them in pending sight of the original letter.
The two men were then handcuffed and led out. On the way out, Xue told
Stephanie to retrieve the original letter from among his possessions at a
Geylang hostel. This would prove a mistake, because the employer's
representative also heard it.
For some reason, there was a little delay before Stephanie called
another worker at the same hostel. It was too late! The worker there said
that Xuyi supervisor Tang Xuan had just arrived to take Xue's bag away.
(What is this? Do employers have the right to take personal property
away just like that? Isn't that theft?)
When Stephanie got there, she saw a few bags strewn about, but clearly
no letter. The other workers, even though they were witnesses, were however
reluctant to provide their names. "We have to earn a living," they said.
Stephanie and Heng then proceeded to Bedok Police Station where Xue
and Yang were being held. They couldn't get to see them, but managed to
speak to Winson Ng, the investigating officer. They briefed Ng about the
background to this matter, and Ng helpfully explained to them what his
station would be doing.
He said they would be in touch with the Ministry of Manpower to
establish the status of the men. He enquired if there were any Special
Passes issued for them, but when told that a certain Nigel from Manpower had
said the Special Passes had been issued to the employer (see previous
article), he remarked that he found it strange too.
(Later, I will explain why I think no Special Passes were ever
issued.)
Ng said that if the police manage to establish that the men were not
illegal overstayers, they would release them to their employer. Heng told
him that this would expose them to the risk of being detained by Xuyi's
security agencies and the whole drama would repeat itself. Agreeing, Ng said
sometimes the police may just release the men on their own recognition.
Sunday, 7 December: Russell Heng had a phone conversation with a Simon
Ho of Bedok Police Station. When Ho understood that while Xue's original
letter from the Manpower ministry could not be located, Liu Xiaoping had an
identical original, Ho agreed that Liu's letter would satisfy him of the
appointment at Manpower on 10 December.
Stephanie then went to get hold of Liu and his original letter, and
brought both to Bedok Police Station.
By the time she got there, the police had decided to release Xue and
Yang without even seeing the letter. This was because Ho had managed to
contact someone at Manpower to verify the facts. Ho also explained -- for
once, somebody does -- a little about the system.
Apparently, after an employer cancels a worker's Work Permit [1], the
police recognise a grace period of one month, to allow the individual to
sort out matters and leave in an orderly fashion. They won't arrest the
individual for overstaying during that one month.
In Xue Hanming's case, his Work Permit was apparently cancelled by his
employer on 7 November 2008 -- that's about as soon as Xue lodged his
complaint with the Ministry of Manpower. So on that same day as they were
speaking (7 December), his one month grace period had expired. However,
since he had a letter from Manpower setting an appointment date of 10
December, this would suffice for now.
In Yang Zhiqiang's case, the employer cancelled his Work Permit on 10
November 2008. He would be considered an overstayer after 10 December.
Stephanie thought that Ho's manner was genial. Xue and Yang too said
that the police were very civil throughout their stay in the lock-up. It was
clean, they said, and they were fed, though they felt the portions were a
bit small.
* * * * *
In the meantime, there has been no news whatsoever about Cheng Yuguang
and Xue Chengming, the two workers seized earlier by the employer's security
agents. The last anyone heard, they were being held at the ICA.
Have they been deported? No one seems to know.
The remaining two guys, Tian Suyun and Liu Xiaoping, have fled the
company-supplied accommodation and are staying with friends. They remain in
contact with TWC2 and Stephanie. Xue Hanming and Yang Zhiqiang are obviously
not going to return to the company-supplied accommodation either.
The men have made it clear that they have no intention of overstaying;
in fact they want to go home to China, but also want to be paid their just
amounts before they are sent home.
In the remaining few days, they will obviously have to try harder
through the Manpower ministry or other means, to get the matter resolved to
their satisfaction. What happens next, we shall see.
* * * * *
The picture is a little clearer now, but so are the crevices through
which workers can fall through.
We learn from this story that Work Permits can be cancelled at any
time by the employer, and apparently nobody has any responsibility to inform
the worker that his Work Permit has been cancelled, and his one-month grace
period is ticking. One morning, you can transition into an illegal
overstayer without even knowing it, and be liable for imprisonment and
caning.
By the way, the men's passports are still with the employer; the
practice is that employers keep all their workers' passports. It seems
strange to me that Singapore allows this to happen. There must be some human
right violated that a critical identity document should be taken out of a
person's hands.
It is doubtful if there were ever any Special Passes issued for these
workers. The information attributed to the "Nigel" from Manpower must be
defective. In any case, as I understand it, a Special Pass is normally
issued only to a foreign worker if he or she is needed to stay on in
Singapore as a prosecution witness in a criminal case; for example, if a
domestic worker needs to testify that she has been physically abused by her
employer.
These men are not bringing forward a criminal case (but see my
comments below). It would therefore seem odd that Special Passes appear to
figure in the story.
The men were at a disadvantage because they were ignorant of how the
system works, and they largely wasted their one-month grace period (which
they probably didn't know about) hoping that the Manpower ministry would
help them resolve their dispute with Xuyi.
The Manpower ministry probably felt it was not their job to pressure
the employer to solve the matter within one month.
As for the employer, my guess is that they probably thought they could
stonewall the workers' claims for one month and then rely on the police and
ICA to arrest and deport the men after that. Under duress, the men would
have to agree to whatever little the company was prepared to pay them.
The system is therefore loaded against the worker.
* * * * *
But why wasn't it made into a criminal case from the start? The men's
complaints were threefold:
a.. Their salaries had not been paid for three months;
b.. The employer was making deductions the men did not agree to;
c.. The employer was not computing for overtime in the salary
calculations, when they were working as many as 88 hours a week.
The second might be a civil dispute, but the first and third were
violations of the Employment Act.
Sections 20 and 21 of the Act says:
20. (1) An employer may fix periods, which for the purpose of this
Act shall be called salary periods, in respect of which salary earned shall
be payable.
(2) No salary period shall exceed one month.
(3) In the absence of a salary period so fixed the salary period
shall be deemed to be one month.
21. (1) Salary earned by an employee under a contract of service,
other than additional payments for overtime work, shall be paid before the
expiry of the 7th day after the last day of the salary period in respect of
which the salary is payable.
(2) Additional payments for overtime work shall be paid not later
than 14 days after the last day of the salary period during which the
overtime work was performed.
As for overtime pay, Section 38 (subsection 4) says,
38. -(4) If an employee at the request of the employer works
(b) more than 44 hours in one week.....
he shall be paid for such extra work at the rate of not less than
one and a half times his hourly basic rate of pay ...
As mentioned in the earlier article, the men had also worked every day
for months without a day off. This violates the Employment Act too.
36. (1) Every employee shall be allowed in each week a rest day
without pay of one whole day which shall be Sunday or such other day as may
be determined from time to time by the employer.
(2) The employer may substitute any continuous period of 30 hours as
a rest day for an employee engaged in shift work.
As for the deductions, this could conceivably be a criminal matter as
well, because the Act says,
26. No deductions other than deductions authorised under the
provisions of this Act shall be made by an employer from the salary of an
employee
The Act lists what it considers authorised deductions, including
accommodation, meals, absence from work, provident fund payments, etc. Since
I do not know the nature of the deductions the employer is making, I can
offer no view whether they are in violation of the law or not.
Still, it does seem strange, doesn't it, that the Manpower ministry is
merely trying to mediate the matter, when there is a case to prosecute the
employer under the Employment Act for delaying wages and not computing
overtime pay. Why hasn't it done so?
If it had, the employer could not then rely on the stonewall strategy.
It would have to settle fairly and promptly or face the law.
© Yawning Bread
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