Jun 2nd, 2008
Barking up the wrong tree on FDW legislation?
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This entry was first published in Singapore Angle Perspectives last week and I’m reproducing it on my own blog for future reference.
Barking up the wrong tree on FDW legislation?
The Ministry of Manpower has once again refused calls for a law making it mandatory for employers to give their foreign domestic workers (FDWs) a day off every month and the refusal has led to some fairly negative reports and commentaries (see here and here).
According to a Channel News Asia report, acting Minister of Manpower Gan Kim Yong said accredited employment agencies are required to use a standard contract and that the contract already stipulates the number of rest days the employer is obliged to give every month (note: the range is 1 to 4 days), and if the employer wishes to engage the service of the domestic worker on their rest days, the employer has to compensate the domestic worker.
Curious about the terms of contract between an employer and a foreign domestic worker, I went to Case Trust website and dug up the employment contract and the explanatory notes (all are in MS-Word format). After reading the contract, I must say Gan does have a good point.
The standard contract drafted up by CASE is actually pretty comprehensive and detailed. It even specifies the nature and scope of jobs that the domestic worker should perform. If the domestic worker is not agreeable to the scope and nature of the job required by a potential employer, she can refuse to sign the contract, assuming there is no undue pressure from the agency.
And the contract, when signed, makes it compulsory for the employer to provide for the upkeep of the domestic worker at all times. Even if the employer decides to terminate the contract prematurely, upkeep has to be maintained until the worker either goes home or finds another employer. And, in the agreement between employer and agency, the employer has to agree not to obstruct the re-employment of the domestic worker in the event of termination.
The only reason as far as I can see for support of legislation mandating a rest day for foreign domestic workers is that such a law, if passed, will apply across the board, whether it’s a Case Trust accredited or non-accredited employment agency. The only concern is that foreign domestic workers working under non-Case Trust accredited agencies might be shortchanged by both agency and employer.
If that is the case, then proponents of legislating mandatory rest day for foreign domestic workers are barking up the wrong tree. They should really be calling for legislation making accreditation compulsory, i.e. licensing. The problem would be solved if only licensed employment agencies that adhere to the kind of standards set by Case are allowed to operate. Accreditation in itself is voluntary and has little bite unless either majority of employment agencies are accredited or employers mostly shun non-accredited agencies.
However, one can still argue that even though there is a legal contract, the domestic worker can still receive the short end of the stick because some of them are not well-versed enough in the English language to understand their rights under the contract. A translated equivalent of the contract in the worker’s native language in the same signed contract will resolve this issue.
I think the Case Trust accreditation scheme for employment agencies is certainly the right way to go. The only chink in the armour is that accreditation is not compulsory. If there is a way to make accreditation compulsory, then it might be unnecessary for a legislation mandating compulsory rest days for FDWs.
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Speaking as a layman, I feel that putting something in law and putting something in contract (even if the contract is made compulsory under the law) implies and signals different things.
Minimum rest days is at least a human-rights issue, and should rightly belong in a law, and not a contract. Contract, for example, is easier to change over time than a law. By putting minimum rest day into law is saying that we Singaporeans believes that this is an issue that belongs in parliament, and not just a negotiation point between CASE, agencies, employers and employees.
Heng-Cheong,
Good point. However, symbolism aside, I do think that a well drafted contract protects a foreign domestic worker more. If you read the standard contract drafted by CASE, the contract covers way lot more than just mandatory rest days. There are alot of other protections within a contract that beats having a law that governs only rest days. I think we have to ask ourselves what is it that we want. If we want greater protection for the welfare of our domestic foreign workers, I think a bunch of smart lawyers drafting up a solid contract beats a piece unwieldy law.
Besides, a law means that we have to allocate public resources to deal with complaints. With a contract, the State doesn’t get involved. I don’t know about your feel on this but with Mas Selamat still lurking around, I think we can deploy more officers to look for him instead of dealing with cases of ill-treatment by maids. I’m not trying to be insensitive here but I think that we can afford the same level of protection through the alternative of well-drafted contracts and free up policemen and state prosecutors to deal with more serious crimes which we have little other alternative methods of dealing with.
Besides, does it say less about Singaporeans’ belief in the equal treatment of non-Singaporeans if we legislate a law that makes licensing mandatory? Perhaps you might want to share why you think a law making a rest day compulsory sends a stronger signal that a law that mandates licensing? I do understand your point of view and in fact, I initially thought it’s a good idea for a compulsory rest day law. However, looking at the contract drafted by CASE, I changed my mind because I think contracts have potentially more room for protection, depending on how the contract is drawn up.
I would like to hear a lawyer’s view though. I am, like you, a layman so my views might be flawed. Any lawyer or law student kind enough to share some views?
The way I see it (again, I’m just a layman), having mandatory rest days in law does not negate the need for CASE’s contract standard. It does, however, mean that CASE and agencies cannot simply remove the mandatory rest days clauses from the contract standard in future without having parliament (read: the people) agreeing.
Contracts can provide more protection than what the law can provide, of course. However, we must also protect against CASE getting friendly with maid agencies and start “bullying” the employees in the future.
This is not merely symbolic.
P.S. Just because there is a Mas Selamat out there doesn’t mean that our State should stop protecting the minorities of our society, the weak and the powerless. (Does another Mas Selamat escaping means we should start, for example, removing hate crimes from our law?) What other “alternative methods” of enforcement are you proposing when it comes to ill-treatments of maids, once compulsory contract / licensing is in place?
You are talking about Indonesia maids with no bargaining power. You expect them to read a contract, choose to sign/not sign it…. and expect the employers / agents to enforce it?
You got to be kidding me. We need the help of the state / government to look into this and ensure the poorest, weakest people are looked after.
My feel is that Singapore’s system is slavery of the worst kind. An Indonesian maid may be working 365 days a year and the majority silently supports this.
While the govt feels that many maids come here willingly, I think their govts (Indonesia / Filipinno) should clamp down on the supply of maid until our govt take more concrete actions to improve the lot of these foreign workers.
It is a cycle of ‘being made use of’. The govt uses the women citizens to work and expect them to ‘rest’ at home. This leaves a system of indentured slaves at the beck and call of these working mothers. 24/7.
Heng-Cheong,
Sure, I agree that a law would be a nice complement to the standard contract set by CASE. However, I don’t think there’s a difference if the Ministry of Manpower has a licensing scheme that automatically removes the license to operate if the contract has less than X number of rest days a month. Also, I should think it’s much faster to make amendments via a licensing body than to make amendments to a law.
I think I’ve not been very clear in saying that what I think would be ideal is a government body that grants licenses using the standards set by CASE. I do believe that such a method will be able to achieve the same end result of greater protection for foreign domestic workers more efficiently since a license effectively makes or breaks an employment agency and they will have every incentive to do all that are within their means to resolve problems.
Also, I don’t think that foreign domestic workers should be treated any differently from other kinds of workers in Singapore. I am not aware of all the laws related to employment in Singapore but I think many of us who are working adults work on the basis of contract. All terms of employment are stated in the contract and both employer and employee are bound by it. Why should foreign domestic workers be given a mandatory one day off by law when the rest of us have no such provision? I am not being callous or insensitive here but I think we have to be fair to all workers in Singapore across the board.
Foreign domestic workers are not a special class of people. They should enjoy the same rights as other working Singaporeans. The problem is that some Singaporean employers have taken advantage of them because these workers might not be very aware of their rights. That being the case, we should really be looking at ensuring foreign domestic workers know their rights under the terms and conditions of employment in the contract.
Heng-Cheong,
I realised I forgot to address the last point about ill-treatment of maids under a compulsory licensing scheme. If the terms of employment were indeed violated, the domestic worker can sue for compensation and a few high profile cases of employers who make unreasonable demands outside of the employment contract being made to pay heavy compensation will keep employers on their toes. The employment agencies can also be fined and have their licenses revoked if they were found to be negligent in assist their employees.
If there are other forms of ill-treatment such as physical abuse, existing laws already cover such issues. I’m sure we’ve seen employers who were punished in the court of law for physically abusing their domestic workers. I really don’t see a compelling need for additional legislation, although it would be a nice gesture to have one.
family man,
Do the domestic workers have no bargaining power? Their bargaining power lies in the contract. Again, the problem is whether they are aware of their power and rights. Even if you have a law, if the existence of the law is not communicated and the domestic worker is unaware of the law, the domestic worker will still be shortchanged. Do you know all the laws in Singapore that protect your rights? I don’t. So, right now, I could very well be taken advantage of by someone without even know it. My point quite simply is that a law is not the end all and I believe that something should be made into a law if there are no viable alternative methods of achieving the same net result as effectively.
I also feel that you seem to have some assumptions about domestic workers usually being victims and employers usually being aggressors. Are there not employers who suffer from having a terrible domestic worker? What about the right of the employer to be protected from negative actions by the domestic worker? I think there are many dimensions to the issue and it’s problematic for me that many people seem to be putting halos on domestic workers and devil horns on employers.
Yes, I have heard of foreign maids pinching old grannies immobilised by stroke. Foreign maid do not have halos.
I sincerely do not think that the foreign maids (who are not employed in their countries,) will be in a position to ‘bargain’ for a better contract, no matter what your position is, Aaron.
No Singaporeans or foreign workers or humans should be made to work for 365 days a year - whatever your position on this, Aaron.
When you have a daughter or son, maybe your viewpoint will change. These are humans, someone’s daughter. And our society must be seen to be progressive and help the poorest of the lot.
And the govt, collecting billions of dollars all these years from the maid levy, should do something concrete to help these maids. If not, like a quote from somewhere recently, the govt is just ‘prostituting’ themselves from the sweat of the maids, and Singapore employers, and giving nothing in return to help the maids.
Maids bargaining for a better contract? You gotta be kidding me. These teens are just happy to get away from their immediate surroundings, to be held captive for 2 years here.
Aaron, I’m not sure where you get the wrong idea that setting mandatory rest days for maids in law is giving maids special treatment. In fact, the way I read the Employment Act, it seems that the law in fact discriminates against maids by not giving them mandatory rest days, but gives everyone else mandatory 1 day of rest day per week!
(The other exceptions: seamen are also singled out, so does workers earning more than $1,600 which probably are assumed to be able to fend themselves in negotiating employment contracts.)
Singapore Employment Act (Chapter 91)
PART IV
35. The provisions of this Part shall apply -
(a) to workmen; and
(b) to employees who are in receipt of a salary not exceeding $1,600 a month (excluding overtime payments, bonus payments, annual wage supplements, productivity incentive payments and any allowance however described) or such other amount as may be prescribed by the Minister.
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.
[...]
but made exception for maids:
PART I
2. In this Act, unless the context otherwise requires –
[...]
“workman” means –
(a) any person, skilled or unskilled, who has entered into a contract of service with an employer in pursuance of which he is engaged in manual labour, including any artisan or apprentice, but excluding any seaman or domestic worker;
[...]
Heng-Cheong,
Thanks for the info. I realised I’ve made some misguided comments. It is interesting that seamen and domestic workers are excluded and placed in the same category as those earning more than $1600 monthly. While I think that all jobs can possibly be governed using contract laws, since we have the employment act, we have to question ourselves as to why are there such exceptions. The case would have been more straightforward without the act. Now it gets a little more complicated and perhaps a law is necessary. However, I still think that licensing and a properly drafted contract affords greater overall protection to domestic workers although it won’t hurt to have a law as well.
Hi Aaron, familyman & Heng,
My views about this is already well known and I have already blogged about this here: http://nofearsingapore.blogspot.com/2008/05/no-days-off-for-fdw-foreign-domestic.html
MOM has replied to me with the usual perfunctionary statement that they have referred my letter to someone senior in MOM ( or something to that effect).
Guys, in an unequal power relationship ( eg Sg employer and a FDW from Indon who has already borrowed so much money to pay the many middle-men involved in coming here ), she is in no position to scrutinise the contract or even if she understands her contract, she can bargain for her day-off to be compensated with a reasonable amount?
Employers are still keeping the maids passports and sometimes even her bank book and if the maid so much as shows a black face, the employer packs her straight to the airport, cancels her workpermit and sends her back by the cheapest budget airline home. She still has to pay off her debts!
If Sg aspires to be a civilised society, how can we not protect the weak and defenceless ones in our midst?
I think if the govt does not do the right thing, NGO’s can do things like monitor that FDW’s are compensated decently for forfeited rest days and also that they indeed volunteerily gave up rest days in lieu of money. MOM or agencies can match those FDW’s who would forgo rest days for money with employers who are not willing to give rest days.
Or, FDW’s on rest days can be pooled to substitute those FDW’s families feel that a FDW is indispensable 365 days a year . Of course they must be paid and MOM must allow these FDW’s to work in another household in such special weekends!
I am disappointed by MOM, by Sgporeans lack of response and also that cyberspace is mainly just for ranting.
I would agree with the Dr here. The inequality of bargaining power would mean that the legislature should intervene to ensure that such a clause is incorporated into such contracts. Bargaining power does not lie in a contract, rather a contract, more specifically its terms; are a product of the bargaining powers of the parties. The legislature has intervened in many instances to regulate terms in contracts and there is no compelling reason why the legislature should not in this instance intervene.
If there is a problem with ignorance of rights then this problem should be tackled head on. One must not throw the baby out with the bathwater.
Anyway Aaron, contracts themselves are also governed by laws. No matter how well drafted contracts do lead to civil suits for whatever reasons (breach, interpretation of terms etc). Thus having a law or not doesnt result in more costs.
yes, it is the way our politicians are ruled by economic concerns - not human rights. We have a buddhist (Mr Khaw) Catholics (George Yeo) Christians (Vivien) and we still have a cabinet who will put maids in the same category as people earning above $1600 - so that they will not get their day off and work 365 days a year.
These folks are the poorest humans on earth, they are guests here and this is how we treat them. Now you know why MM Lee said if PAP was not in power our womenfolk could have become maids - because deep in his heart, he knows how bad a deal we Singaporeans are treating them, and we all get away with it with our govt blessings!
Indentured slaves, and we are so blind to it. And we continue to give ourselves reasons and justifications not to do the Right Thing, the Godly thing.
Just so that we keep the economy humming and not spoil the good life of the working moms…….
Hi,
Familyman & Nedstark, thanks for your support.
We should keep reminding our govt to do the Right Thing!
Not the Economically convenient thing! Not just guided by the Economic Imperative!
It should be so naturally that workers in civilised countries should have rest days but now we have to try so hard to explain this is needed( why?)
If only human beings can behave humanly all this ugliness will not surface. Some maids are just indispensable as reported in some earlier articles. So to have a law that makes it mandatory to give a day off is also not a solution. I agree some employers really dwell on slavery but it’s a more complex issue for some others. My maid goes for a full month for her home leave (contract says only 2 weeks) and she’s paid a full month that she’s away while i have to fork out extra to get a replacement. She gets a good cash incentive for Christmas and Chinese New Year. She can have a day off when she needs to run personal errands. She’s not required to do extra chores on Sat and Sun. After 6 years (3 contracts for 2 years each), I too had to send her packing as she had crossed the line.
I am not saying I am a saint but my point is I had done my part but I was short changed too. Am I cautious with my new maid? I am but I still accord her the same treatment that my first maid had. I just hope she can respond humanly. So back to my first sentence - if only human beings can behave humanly all this ugliness will not surface. Sad to say reality tells me otherwise.
There are always 2 sides to a coin.
Hi nancy,
It is good that you allowed her to go back for 4 weeks instead of 2 weeks but that is your prerogative. Whether she is paid or not during her leave is also subject to contract and if you wish to pay more than the contract is also your choice. Having said that, it does not mean that your maid is happy to exchange rest days for that extra 2 weeks and those cash incentives and for not doing extra chores on Sat/Sun!
Correct me if I am wrong but do you think that your maid would have wished for a rest day a week ( like everybody else) or even one day a month and not get extra 2 weeks leave and everything else as per the contract?
I imagine myself as a worker working for a boss who says I cannot have any rest day for the whole year, but he will give me cash incentives on Christmas and New Year, and if I need to run errands, he MAY allow me some time off and he will not make me do extra chores on Sat & Sun ( but no day off) and for my annual leave he will allow me extra 2 weeks instead of 4 weeks! I know what I will opt for.
After 6 years, why did you have to send her packing (back home)? If you do not want her to work for you anymore ( as you are entitled to do), why did you just ask her to find another employer who is willing to take her?
Yes there are 2 sides to every story, but whose story requires more protection from our govt?
Hi Dr Huang
Correct me if I am wrong. I thought the issue now is whether we should have a law to give a day off each week/month to our FDWs or monetary reward in lieu of it. My view is that each case is different because some employers need the maid 24/7, so this law does not hold. My sharing was that if everybody can treat each other humanely then this law is not required, but as shared, reality was not what I hoped. I did not ask if she was happy for those exchanges, but each request (more home leave; time off; all public holidays she could meet her friends if she asked) was granted. She did not ask for a fully paid home leave but she got it as I too have paid leave, why couldn’t she?
So do you think, she was happy? I cannot answer for her; neither can you assume otherwise.
I can sense you are passionate for the cause of the FDWs but again I say there are always 2 sides.
Now to answer your question as to why I still send her packing after 6 years -
Familiarity breeds contempt and it led to open defiance including adultery with a relative (his maid showed photos of my maid with my relative’s husband in outings to places of interests like Sentosa). He did not bother to bring his wife and kids yet brought MY maid ! During a gathering when I spoke about thingking to send my maid off due to open defiance (not about this case as I did not know at that point of time), he turned very cold towards me. Coupled with this revelation I made the decision to terminate her. On hindsight now I know why she was so defiant - because she thought that her lover could protect her. If her standard of work is not so good maybe we can transfer her to another employer (as expectations differ with different employers) but if it is a character flaw then it’s not responsible to burden another employer with this FDW. Didn’t mean to reveal so much but since you asked I let you know the reason.
So my point is if both employers and FDWs can act humanly, no such law is required - both parties need to know how to strike the balance. Unless you are in it yourself, you can never know the story.
One last note - my current maid goes to jalan jalan every Sat and Sun for 3-4 hours and a whole day if required e.g. to the embassy to celebrate whatever festivals they may organise. If she asks, she will get it. Not everything has to be settled with a law
is humaneeach household has diffethat she got it by accumulation.
6 years ago this was a non issue but we did it before time.
Sorry for the confusion. The above post should end with the sentence … Not everything has to be settled with a law.
The last 2 lines should be deleted. (this old lady, yours truly, has still to learn editing properly)
Hi nancy,
It is great that your maid get to go off whenever she requests.
However not everyone is like you.
How much easier if this day off is mandatory instead of waiting for the maids to ask their employers and depending on employers’ generosity!
For every reasonable employer like you there may be a few unreasonable ones who do not even allow their maids to go to the remittance or bank ( without shadowing them).
If all the employers are like you, I am wasting my time on this day-off issue as I know from the bottom of my heart that you will treat them humanely with or without laws.
Seriously even with laws, maids will still be abused!
I meant no disrespect when asking why you let your maid go after 6 years. Any offense meant is regretted.
Yes I also would not tolerate adultary with a family member ( or friend).
Cheers