Introduction
Mr Speaker, when the Workers’ Party participated in the general elections in 2020 to seek a mandate from the Singaporeans, the call to introduce anti-discrimination legislation was an important proposal in the Workers’ Party’s manifesto. Separately, and for some years now, several MPs, on both sides of the House, have also called for such legislation.
But as late as 2018, the Ministry of Manpower spoke out against the codification of Tripartite Guidelines for Fair Employment Practices (TGFEP) into legislation. It argued that doing so would not lead to superior employment outcomes; and separately, that the specific anti-discrimination legislation may have the unintended consequence of deterring businesses from hiring workers because these businesses would become fearful of dismissing workers even with legitimate reasons.
I spoke at some length about the importance of such legislation in my first speech as Leader of the Opposition during the debate after the opening of Parliament in 2020.
Mr Speaker, the reality is that the spirit of any anti-discrimination legislation does far more than just supporting and helping workers. This Bill sends a fundamental and powerful message.
It speaks to how the State deals with where Singaporeans stand at workplaces in their own country.
It speaks to how the State recognizes multi-racialism especially when minorities form about 25% of the population.
It is a powerful signal particularly when one considers the domestic context over the last decades. This would include, the fears of some Singaporeans becoming second-class citizens in their own country where some believe job prospects are better if you are a foreigner on an Employment Pass, than a local-born or naturalized Singaporean.
Mr Speaker, the Workers’ Party supports the Workplace Fairness Bill. I will speak on some issues the Bill raises and seek clarifications on some others. My colleagues Sylvia Lim, He Ting Ru, Faisal Manap and Louis Chua will also speak on this important Bill.
Singapore First
First on Clause 3, which covers the purpose of the Bill. It states four purposes to this proposed legislation.
First, to protect individuals from discrimination by employers on the grounds of the protected characteristics listed in Clause 8 covering age, nationality, sex, marital status, pregnancy, caregiving responsibilities, race, religion, language ability, disability, and mental health conditions.
Second, it establishes fair employment practices, including the codification of the fair employment framework and legislating how employers handle grievances.
Thirdly, and very significantly in my view, it ensures that Singaporeans and PRs are fairly considered for employment opportunities and continue to form the core of the workforce in Singapore, with foreigners as a complement. And finally, to preserve harmonious workplace relations.
Where does this Bill leave foreigners, who are critical complementary components in many sectors of the economy? This Bill, correctly, offers wide and significant protections to them as well, notwithstanding Clause 22.
Clause 22 reads that it is not discrimination to say that an employment opportunity is for a Singaporean or PR at the expense of someone who is a foreigner.
It is a simple exception, worded in the negative but clear in its intent. Employers must always aim to recruit Singaporeans and PRs first. And this must be so. Otherwise, how do we build and sustain a united people and nation heavily reliant on immigration which is a fault line in many parts of the world.
How do we convince Singaporeans that their National Service commitments are not in vain? How do we convince them that the State will always have their backs? Hence, employers should not see this legislation just as an administrative process, or worse, a burden. It is far more important than that. I would even go as far as to say that it is an critical piece of legislation with a view towards nation-building in the years to come where many of our challenges will be domestic.
What are “protected characteristics”?
Mr Speaker, the Bill is also significant in how it seeks to achieve certain important goals and to balance the relationship between workers and employers. It covers discrimination not just with respect to hiring decisions, but to in-employment decisions such as performance appraisals, promotion, training opportunities and finally, dismissals.
On the protected characteristics or the specific discriminatory grounds set out, Part three of the Bill seeks to define the meaning of eight out of the 11 characteristics. Clauses nine to 16 seek to clarify the ambit of these characteristics and must be read with exceptions at Part 5 to be properly contextualized and understood by workers.
Employers are allowed to consider a discriminatory hire if there are genuine job requirements, on the grounds of age, in favour of citizens and PRs, on religious grounds and on grounds of disability. In the main, the exceptions are fair and practical, and they provide significant operating space for employers to make employment decisions in the best interest of their corporate entities and companies.
However, I found the explanatory statement to Clause 17(3) intuitively problematic and odd, especially since this Bill addresses discrimination. This clause deals with what is commonly referred to as associated discrimination and it reads, “An employment decision made only on the ground of a protected characteristic of a relative or an associate of the individual is not discrimination.” This reads innocently until one peruses the explanatory statement to this clause at the end of the Bill which reads, “an employer does not discriminate against A if the employer dismisses A on the ground of the race of A’s husband”.
Prima facie and without more, this explanation makes it clear that A’s employer is a racist. What has the race of A’s husband have to do with A’s employment and dismissal? By extension, other extreme examples that would not be out of here would be when an A chooses to fire a worker if their spouse is a foreigner, or their parents are too old or their child is mentally disabled.
These examples show how ludicrous discrimination by association can be insofar as the explanatory statement is concerned. Can the Minister can clarify what this clause seeks to achieve in favour of the employer with concrete examples from TAFEP’s history, given that TAFEP has been around for close to 20 years now. Such examples may be more useful in explaining why this clause is necessary, compared to what the explanatory statement to this clause seeks to communicate.
How to lodge a claim?
Workers must note that for practical purposes, they would need to secure evidence to lodge a workplace fairness claim. I note the Tripartite Committee’s Workplace Fairness final report listed two key requirements to the end: First, the claimant should clearly cite the incident that led him/her to believe that he/she suffered an adverse employment outcome because of a protected characteristic; and the cited incident should show how the consideration of the discriminatory action, for example on the grounds of age or nationality led to the adverse employment outcome.
The report also says that documentary evidence such as emails, mobile phone messages and oral testimonies which are signed by witnesses will strengthen the claim.
These requirements are very likely to be a bridge too far for many workers, and discrimination on the grounds of the protected characteristics may well be quite difficult to prove, particularly at the moment of employment. I would be grateful if the Minister could share some examples of how TAFEP helped workers who made such complaints on the grounds of nationality and age at the moment of employment were successfully resolved in favour of the employee, so as to better help workers appreciate the evidentiary threshold to overcome.
To this end, the Tripartite Committee’s report does list out some helpful examples that would be useful to guide workers. In the absence of illustrations in the Bill, it would important for these examples to be profiled and updated as appropriate on easily accessible public resources on a public service website or channel, not just for the convenience of workers and employees, but for a more realistic understanding of what is perceived to be discrimination as envisaged by the legislation.
The fact that not all the illustrations that highlight the possibility of discriminatory treatment of workers in the committee’s report are determinative of discrimination, is a reminder that proving workplace discrimination is not always straightforward, and many workers will have to be alive to the reality of “indirect discrimination”.
Indirect Discrimination
The prospect of indirect discrimination was raised by my colleague Sengkang GRC MP Ms He Ting Ru in a parliamentary question in 2023 after the Tripartite Committee released its report. The Bill before the House does not cover indirect discrimination as the Tripartite Committee opined that it would impose very wide legal obligations on employers resulting in uncertainty for both employers and employees. In addition, the was a concern of an overly legalistic relationship between employer and employee.
While this perspective is not completely without merit, it must be remembered that there could be some cases of employment decisions that arise out of norms, culture or processes are nonetheless discriminatory. This would be one area to monitor closely going forward to better support workers who are commonly in a more inferior bargaining position compared to their bosses and employers who exert significant direct and indirect control over them.
I note that TAPEF welcomes complaints covering indirect discrimination even if this Bill does not list “indirect discrimination” as a “protected characteristic”. To this end, it would be critical for TAPEF to list out examples of such indirect discrimination which it should profile publicly to complement the Bill. My colleagues Sengkang GRC MPs He Ting Ru and Louis Chua will share how the common law has developed with regard to indirect discrimination in other jurisdictions which have a longer history of hosting anti-discrimination legislation to better address such problems. They will also speak on discrimination by denying workers “reasonable accommodations”.
Companies with less than 25 workers
Sir, the Ministry of Manpower’s press release on the first reading of the Bill states that small firms with fewer than 25 employees will be exempt from this Bill and that tripartite partners will monitor the situation and review the exception in five years time. If this Bill comes into force in 2026 for example, it follows that all our workplaces will only be covered in 2031 at the earliest. My colleague Ms Sylvia Lim will speak on the issue of timing and other matters in her speech.
This exemption was the subject matter of my parliamentary question to MOM in 2023 when I enquired how many discrimination-related complaints were made by individuals working in companies with a headcount of less than 25. While the intent of the Bill envisages that firms with less than 25 workers will continue to be covered by the TAPEF guidelines, the Minister confirmed that between 2018 and 2022, 35% of workplace discrimination complaints were received from those working in firms with headcount of less than 25. This is not an insignificant number. I have some queries in this regard.
For clarity, can the Minister confirm if the threshold number of 25 is to be understood on a group basis for companies that have a holding company and multiple corporate entities for corporate planning and risk management purposes but effectively operate as one entity, or for an individual corporate entity such as a company? And in addition to this, are the civil service and public service officers, including the uniformed services and statutory boards also be covered by the Bill?
More significantly, as provided for in Clause 28, the Bill provides not insignificant protections for workers when they raise grievances to their employer. As it stands, workers who are employed by companies with less than 25 individuals will not be covered by Clause 28 at least for the next five years. In view of the protections available for workers who make legitimate claims and the prospect of other civil relief which will be made known by the Government later in the year through sister legislation, I hope more resources can be placed at the feet of these smaller companies to help them come up to speed with the requirements of this legislation - by way of regular updates from TAFEP - so that all workers can be covered by this anti-discrimination law in good time.
I understand and respect the approach of the tripartite partners in taking a staggered approach out of practical necessity. However, a clear roadmap with intermediate goals towards compliance for companies with less than 25 workers would be necessary as the Bill today still does not cover 25% of our workforce. Why are such intermediate checkpoints important?
Sir, as I alluded to earlier, the Bill before the House today is not just a piece of manpower legislation. It is a social legislation too. For many Singaporeans, work takes up a significant part of most of our all lives. In a recent podcast last month, the Prime Minister Mr Lawrence Wong remarked and I quote: “In any multiracial society, it is harder to be a minority, than the majority.” PM urged those in the majority community to be sensitive, engage and to reach out to minorities across all aspects of life. These remarks are relevant to the Bill before the House and promotes the outcomes it seeks.
To this end, workers need to consider that some employers’ perceived lack of sensitivity may be down to ignorance, inexperience and a lack of exposure, as opposed to malice. For things to change, greater professionalism and mutual respect at the workplace must be promoted. Such human recourse improvements, welcomed through open conversations, can boost productivity if undertaken sincerely by both workers and employers. My colleague Aljunied GRC MP Mr Faisal Manap will speak on this point from a different perspective with a view to engender greater understanding for some of our workers and compromise from employers.
For SMEs with less than 25 employees that professionalise more swiftly and adopt workplace fairness practices, and are ready before the five-year exemption period is over, such workplaces may well generate greater interest from job-seekers. A “fair workplace ready” TAFEP accreditation scheme as workplace fairness-ready for workplaces with less than 25 employees may well be something the Ministry can consider as an intermediate option, before the review of this legislation comes up.
To that end, I hope the Government can pay close attention to the processes by which these smaller companies currently not covered by the Bill are educated about their obligations under the TGFEP after this Bill is passed, with a view to their prospective coverage under this Bill in future.
Administrative Penalties
Clause 31 details the administrative penalties that will be invoked when employers are issued with a contravention notice requiring them to pay an administrative penalty of a prescribed amount. The nature of the civil contraventions are wide, ranging from penalties for retaliation against complainants, to the publication of a discriminatory direction, to providing inaccurate particulars to the Commissioner, amongst others.
Can the Minister clarify if the Bill contemplates a specific penalty amount for each of the civil contraventions listed in Clause 31(1)(a) to (i), or is there an open-ended range of penalties for example up to $5000 for any contravention? For example, Clause 34 of the Bill covers the specific penalty amount that an employer will be imposed in the case of a serious civil contravention - $50,000 for a first order and $250,000 for subsequent cases. I hope the Minister can provide some clarity with respect to the dollar value of the administrative penalties under Clause 31 (1)(a) to (i).
Clause 34 (1) devolves significant powers to the Commissioner to determine what constitutes a “serious civil contravention” by the use of the term, I quote “whenever it appears” unquote. Can I confirm if these powers relate directly to what has been established as serious civil contraventions in Clause 30, or are there other serious civil contraventions which are contemplated and not captured by the Bill. If so, some guidance and clarity as to what these are would be useful to be stated for the record.
Naming the companies
The Bill requires workers to go for compulsory mediation before considering the prospect of legal recourse, ostensibly with a view to maintain harmonious industrial relations and to avoid a litigious culture. However, litigation can be necessary when egregious cases present themselves and workers are on the receiving end of the same. We know that between 2018 and 2022, the two protected characteristics that host the most number of complaints to TAFEP were discrimination by nationality and discrimination by age.
The legal process and legal proceedings would reveal the identity of the companies that commit such egregious discrimination or serious civil contraventions. To this extent, is it the intention of the Bill for the Commissioner to also reveal the names and circumstances of companies that are subject to administrative penalties as envisaged under Clause 31? TAPEF has hitherto been conservative in revealing the names of companies found to have violated the TAFEP guidelines.
Naming the employers who fall foul of this Bill is not to encourage a name-and-shame culture. On the contrary, such an approach would be useful in supporting the purposes of the Bill, educating companies and workers at large about discriminatory practices at the workplace and to nudge employers to take workplace discrimination very seriously to the benefit of workers. After all the only natural resource of Singapore is our human resource, and it is in our interest as a nation to ensure that all our workers receive protection from discrimination.
Conclusion
To conclude Mr Speaker, the Government has announced there will be a second Bill associated with workplace fairness which will introduce the procedural rights and processes for individuals to make private claims under this Bill. The Workers’ Party will debate this separately at its second reading. It is assumed that this will give better options for workers to pursue claims against unscrupulous employers.
The Bill before the house today marks a major philosophical shift in the PAP Government’s thinking on workplace discrimination. For some Singaporeans, the signalling of this philosophical shift that has taken too long, particularly when one recalls the deep discontent over the last decade or so of some Singaporeans over perceptions of being overlooked by some employers on grounds of nationality in particular. Late though it is, the change is for the better and the Workers’ Party will support it.
I look forward to the Minister’s responses to my clarifications.
