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What's needed in new laws to ensure fair play at the workplace?

What's needed in new laws to ensure fair play at the workplace?

Source: Straits Times
Article Date: 13 Nov 2021
Author: Tham Yuen-C

Workers experience discrimination not because of foreign competition, but because of a small group of companies that are out to exploit the system.

After he spoke in Parliament in July about giving more teeth to Singapore's fair employment guidelines, labour MP Patrick Tay received many e-mails from workers who had experienced or witnessed discrimination at work.

There was the PME - professional, manager and executive - who saw a foreign human resources director recruit people from his home country for positions that Singaporeans could have easily filled, such as head of customer service.

It turned out that the human resources director himself had been hired because of his personal relationship with the chief executive of the company, and he was merely going by the same playbook.

Another PME said the multinational corporation she worked for preferred to bring in people from the company's home country, rather than grooming local workers, resulting in excessive applications for employment passes.

These were but two cases that Mr Tay highlighted in Parliament in which Singaporean workers felt they were passed over for people of other nationalities. Many other MPs recounted stories they had heard from residents and others.

Mr Tay, an assistant secretary-general at the National Trades Union Congress (NTUC) and the MP for Pioneer, says workers experience discrimination not because of foreign competition, but because of a small group of companies that are out to exploit the system.

He hopes Singapore's upcoming anti-discrimination workplace laws will send a strong message to these companies - that they will face consequences if they continue to play fast and loose on the matter.

Prime Minister Lee Hsien Loong announced during the National Day Rally in August that the Government will enshrine the Tripartite Alliance for Fair and Progressive Employment Practices (Tafep) guidelines in law, to give the guidelines more teeth and expand the range of actions that can be taken against errant companies.

He emphasised that this will protect workers against discrimination based on nationality - a continuing and growing concern among PMEs.

A Tripartite Committee on Workplace Fairness has been set up to define the scope of the future legislation. It aims to complete its work in the first half of next year, Manpower Minister Tan See Leng, one of three co-chairs of the committee, said this month in response to a parliamentary question.

The other two co-chairs are labour chief Ng Chee Meng and Singapore National Employers Federation (SNEF) president Robert Yap.

Dr Tan had told Parliament that the Government will consider the committee's recommendations and, if they are accepted, start work to prepare legislation and commit the necessary resources for the laws to be implemented effectively.

For now, what is known is that the laws will have a claims process where mediation will be the first and necessary step.

A tribunal will also be set up to hear claims, but that will be a last resort, Dr Tan said.

This is similar to how wrongful dismissal cases are handled under the Tripartite Alliance for Dispute Management framework.

Defining discrimination

An aspect of the laws that employers and employees will be watching out for is what kinds of discrimination they will cover.

Tafep was set up by the Ministry of Manpower (MOM), NTUC and SNEF in 2006 to address concerns over discriminatory employment practices.

These included, among other issues, bosses who dismiss pregnant staff and who are reluctant to hire women of child-bearing age.

Tafep took on the role of a fair employment watchdog, and spelt out guidelines that employers were encouraged to abide by.

Its current guidelines on fair employment practices prohibit discrimination based on age, race, gender, religion, nationality, language, marital status and family responsibilities, or disability.

Mr Tay and Mr Saktiandi Supaat, an MP for Bishan-Toa Payoh GRC, expect that these categories will also be covered under the anti-discrimination laws, sending a clear signal that these are red lines not to be crossed.

Discrimination based on nationality and age has been a bugbear, especially among PMEs.

Dr Tan had disclosed in Parliament that some 60 per cent of complaints about job discrimination are nationality-based.

Out of an average of 379 workplace discrimination complaints received each year from 2014 to the first half of this year by Tafep, 233 had to do with nationality.

Although the new laws will largely be based on current Tafep guidelines, some have asked if protections might be extended to categories not currently covered.

Some groups, such as the Association of Women for Action and Research (Aware) and Pink Dot SG, have asked for the laws to include protections for employees on the basis of their sexual orientation and gender identity and expression.

In many European countries, political beliefs are also afforded protection.

Lawyer Goh Seow Hui, who heads the employment practice at law firm Bird & Bird ATMD, said the inclusion of any other protected category must be viewed in the context of society's existing attitudes and beliefs.

Associate Professor Terence Ho, from the Lee Kuan Yew School of Public Policy at the National University of Singapore, says the categories should not be exhaustive, and believes the laws will probably have clauses general enough to encompass other unspecified categories.

"You don't want to swing to extremes or to raise expectations of local workers so much so that they think this is some kind of panacea or make frivolous claims," he adds.

Lawyer Ian Lim from TSMP Law Corporation, who specialises in employment and labour issues, says that if the wrongful dismissal regime is anything to go by, the legislation may just give examples of what may be considered discriminatory, indicating that the categories for discrimination are not necessarily closed.

This means that there may be leeway for people to make a case for other types of non-specified discrimination.

Seeking redress, punishing errant companies

Another area many will be watching is what kind of remedies and punishments the laws will provide for.

Currently, companies that fall foul of the Tafep guidelines may be subject to suspension of work pass privileges. This is what the MOM has used as an enforcement lever, and Mr Tay says this will continue.

But he adds that it may not always be a deterrent as not all errant employers hire foreign workers - for example, most micro enterprises do not hire them. The curtailing of work pass privileges may also be disproportionate for less severe HR lapses, he adds.

He says tripartite partners are considering other forms of penalties to deal with egregious employers. Mr Saktiandi reckons this could come in the form of fines. This is the case in any other jurisdiction with such laws, and in the rare case of Finland, company officers can even be jailed.

But Mr Lim believes that this is unlikely here, as a case would have to be very egregious for sanctions to be imposed on company officers under Singapore's laws.

Prof Ho says the new laws could potentially allow the authorities to go after individuals responsible for the discriminatory practices, such as through fines or restrictions on directors of companies.

Workers will no doubt also be watching out for the kind of remedies the laws may provide.

As with other jurisdictions, this will most likely include monetary compensation, or reinstatement to their roles.

Will it lead to more litigation?

Some have wondered if this might open the floodgates to litigation, and PM Lee as well as Dr Tan have also spoken of the danger of creating a litigious environment.

In other jurisdictions, such anti-discrimination legislation has led to more people taking their employers to court, such as in the United States, said Prof Ho.

Associate Professor Walter Theseira of the Singapore University of Social Sciences, previously a Nominated MP, notes that in the US, the law allows not just compensation for actual losses, but also punitive damages and compensation for emotional distress and harm.

"Whether you allow this in the legislation will influence what will happen in practice, and change the economic incentive of people affected by discrimination," he says.

But statistics show that workplace discrimination is not rampant in Singapore, and Prof Ho believes this means that there may not be a flood of cases.

Senior Minister of State for Manpower Koh Poh Koon had told Parliament in September that about two-thirds of reported cases of discrimination are not substantiated, and the majority of these are misunderstandings that are subsequently clarified and not pursued further by either party.

Yet, there is often a disconnect between the statistics and perceptions of discrimination.

For instance, in a 2019 study by the Institute of Policy Studies and OnePeople.sg, almost 60 per cent of Malays and 56 per cent of Indians who responded felt that they had been discriminated against when applying for a job or seeking a promotion.

This seems to indicate that discrimination may be more common than the statistics might suggest.

Some, like Aware president Margaret Thomas, put this down to the fact that workplace discrimination is often hard to substantiate. This does not mean it is not happening, but that it is not easily proved, she said in a letter to The Straits Times Forum page in September.

There is also the fear factor that holds victims back from complaining. Often, victims of workplace discrimination may not want to talk about it publicly for fear that they will be branded troublemakers, harming their employment prospects in the future.

Prof Theseira says: "Let's face it: If you're employing somebody and you do a Google search, and the person's name comes up linked to such cases, most people will think hard before hiring that person."

He adds that some form of protection for whistle-blowers will probably be necessary to protect complainants from reprisal, and suggests there may be a need to protect the identity of complainants.

Whether the anti-discrimination laws will lead to more lawsuits also hinges on how the legislation is designed.

Ms Goh says the employee complaints process could be designed such that grievances are handled in a non-adversarial manner, adopting a more conciliatory or investigative approach.

Mr Tay believes unions should still play a primary role in handling grievances and helping workers seek recourse under the legislation, in order to preserve amicable employer-employee relationships.

In fact, Dr Tan had said in Parliament that with mediation as the first step, there will be an opportunity for employers and employees to sort out any issues and close any gaps in their understanding before they even get to the tribunal.

Ultimately, how the anti-discrimination laws play out boils down to the nature of society and its people, says Mr Lim of TSMP Law.

"In some other countries with more litigious cultures, such laws could certainly lead to more lawsuits. But Singapore is not at that level of litigiousness, and we're probably not going to see that change just from the introduction of these new laws," he says, citing how the introduction of the Protection from Harassment Act has not resulted in a flood of harassment-related litigation.

Ms Goh adds that what is certain is that anti-discrimination laws will lead to greater accountability on the part of employers. Employers are likely to become more circumspect where HR processes are concerned.

But legislation is only one of the measures to deal with the issue, says Mr Saktiandi. "Legislation is a good signal to send to errant employers, but we will need to make sure that employees and employers work together to create a better working culture and environment for everyone."

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