By Vincent Law
The speech on amendments to the Employment of Foreign Manpower (Amendment) Bill by Mr Tan Chuan-Jin, Acting Minister for Manpower and Senior Minister for National Development, on 11 September in Parliament, is a step in the right direction, not just to "ensure that our Singaporeans remain at the core of our workforce" but also to prevent syndicates and errant employers from exploiting foreign workers while looking after their safety and healthcare interests as guests here.
A major change to differentiate "EFMA administrative infringements from criminal offences" by adhering to the principles of causing no harm or abuse to workers, not regarded as criminal activities and effectiveness in deterring errant behaviour, is laudable.
So, while decriminalising employers who fail to buy medical insurance premium for workers appears to short-change workers, however, Mr Tan clarified in the same speech that such administrative infringement may yet attract a jail term as well for the "failure to bear the cost of upkeep and maintenance of Work Permit holders, including medical treatment". This is indeed reassuring.
Such negligence by errant employers when workers fall ill or suffer injuries inevitably result in loss of man hours and lower productivity, in addition to adverse effects on the morale and well-being of the workers. Unlike Singaporeans, foreign workers do not have subsidised medical care and healthcare benefits and when they have fully utilised their insurance coverage, they are left vulnerable. HealthServe seesk to meet this gap by providing basic medical services at nominal rates.
Secondly, it is felt that the maximum fine of $6,000 imposed on persons involved in the illegal importation of workers are grossly disproportionate relative to the huge profits syndicates make.
Syndicate leaders are essentially businessmen who take risks for profits. Based on anecdotal accounts, foreign workers each pay between S$6,000 to S$10,000 to obtain employment in Singapore.
Assuming an average of ten workers, syndicates probably make profits in the range of $50,000 to $90,000 a month.
Illegal importation causes harm to many foreign workers who are deceived into incurring onerous debts. Their passports are retained unlawfully the moment they arrive. They are subject to psychological abuse in the form of harassment and because of fear of flouting local laws willingly submit to living and working in slave-like conditions under unwarranted threats of severe criminal punishment.
Thirdly, the presumption clause for submitting a forged or false certificate and the onus on workers to prove their innocence, does not have a harmful and abhorrent effect on society and hence, unjustifiable.
Common sense tells us that responsible employers would do due diligence in assessing the authenticity of the educational certificates submitted by the worker or his agent as they are running legitimate businesses and could ill-afford to hire workers with dubious educational backgrounds.
In the case of labour trafficking, foreign workers who apply for employment through agencies is likely (if they are aware of such forgery) to be under duress, lied to or placed under unconscionable pressure to allow the agency or employer to proceed with the work permit application. To be sure, submitting of forged certificates is an act that should not be condoned.
There have been anecdotes of workers hired for simple service jobs who later discovered that their agents had submitted post-graduate certificates without their knowledge. In these cases, it should have been obvious to the employer that the agent or the worker has forged certificates.
In fact, HealthServe has helped a Nepalese worker caught in such an unfortunate quandary. A Masters degree was submitted without his knowledge to apply for an "S" pass but he worked in an HDB coffee shop slogging 18 hours daily until his employer owed six months salary arrears. After he reported his employer to the MOM, he was barred from having a temporary work pass permit as he is not from an approved source country.
He was denied access to dignified work. He could not recover any money despite the court ruling in his favour. He had no money to send home. All his dreams of providing for his family were shattered. He went home a frustrated and broken man, empty-handed. [Read the story here: How the system failed this worker.]
Presumptions may be defended, as in the Misuse of Drugs Act, on the grounds that the misuse of drugs has an abhorrent effect on society while, on the other hand, the submitting of forged certificates clearly do not. Besides, by reason of parity against crimes such as rape or murder where such presumptions do not exist, it is unreasonable to have a presumption for a less morally repugnant offence. The said presumption is therefore unjustified.
Furthermore, it is unlikely that such a presumption would be a deterrent because in reality, foreign workers would not have known of or understood its significance. Innocent foreign workers might not be linguistically able to explain the circumstances of their employment application. The outcome would then be a high rate of questionable convictions.
It is important for the MOM therefore, to exercise discretion from prosecuting cases where the intent of forgery is not manifestly clear, or where strong mitigating factors are present. At the same time, the MOM needs to recognise that for many of the low-income foreign workers, the circumstances of their employment are tainted with fraud, duress or pressure from various other sources. More often than not, the worker is the victim in a much larger, oppressive scheme.
The writer is involved in accessing and developing community health resources for vulnerable migrants, disadvantaged local poor and needy.