(Delivered on 3 September 2019)
Introduction
Sir, the Work Injury Compensation Act or WICA is a critical piece of social legislation for all local and foreign workers in Singapore. Previously known as Workmen’s Compensation, the concept of providing compensation against workplace injuries via legislative fiat dates back to the late 19th century. In Singapore today, manual workers are covered regardless of salary. With the changes proposed under this Bill, non-manual workers receiving a salary of up to $2600 will also be covered in stages up from $1600 as is currently the case.
The case of R
Sir, this tabling of the public feedback consultation to this Bill early this year roughly coincided with a compensation claim under WICA that involved one of my residents, who came to seek my assistance at a Meet-the-People session. I will refer to him as R.
R was employed as an Industrial Relations Officer by a union. He was injured when he was on his way to attend a labour workshop some years ago. At the time of the accident, he did not make a claim under WICA. His employer informed him that they would take care of the medical costs arising out of the accident. The employer did the needful and incurred medical expenses which included a surgical procedure that saw four screws inserted into R’s spine.
R returned to work after his hospitalization leave. As he approached the age of 67 a few years after the accident, he was informed by his superiors that his employment would not be extended. The matter of his injury came up just before he left the employ of the union. His injuries had left him unable to find another employer who would hire him, and separately, in need of medical follow-up. R then decided to make a belated WICA claim to MOM. It was originally rejected due to it being out of time and because – in the Commissioner of Labour’s assessment – the accident he was involved in did not arise out of and in the course of his employment, and hence rejected for the purposes of a WICA claim. This position was in fact wrong in law, but the initial conclusion by the Commissioner of Labour could have turned on how R framed the circumstances of his injury. An appeal was thereafter made to the Commissioner of Labour which was successful. After the submission of a medical report which was initially challenged by the insurer, R eventually received a pay-out of 25% of permanent incapacity which amounted to $54,500.
Private settlement of WICA claims
Sir, I seek a few clarifications on the Bill and the application of the proposed amendments. Where useful, I will refer to R’s case in raising them. My first set of queries are general in nature. At the outset, a question that comes to mind in R’s case is why he did not file a claim independent of his employer. I put the question to R to which he replied – the matter did not cross his mind. R could have been under the mistaken belief that since the accident occurred outside his usual place of work, it was not claimable under WICA. Even if R was labouring under that presumption, his employer should have known better, which then begs the question why the employer did not proceed in making a WICA claim for him.
According to the former Minister of Manpower in a reply to a PQ in January 2018, out of the 33,000 plus WICA claims in the two years from 2016 to 2017, about 2500 claims were withdrawn either because workers received private compensation from their employers, chose to pursue a common law remedy or decided not to proceed with their claims. While I am not aware if R falls under the category of those who chose private compensation, it is a relevant question whether the support or compensation received from employers is adequate in all of these 2500-odd cases. To give the House a sense of the numbers involved, what was the percentage and absolute number of all successful WICA claims by foreign and local workers over the last five years, and separately, what is the breakdown of workers who chose a common law remedy, private compensation and did not proceed with claims respectively? To this end, does MoM follow up with employers and make the necessary enquiries with regard to private settlements and workers’ decisions not to proceed with claims so that workers are not worse off than they would be under the WICA framework? If it does so, how do cases like R’s slip through the cracks? More specifically, would MOM monitor private settlements between employers and workers under the amended Bill and would MOM consider a more activist approach in overseeing private settlements to ensure that workers get a fair deal?
The lived reality of Employer-Worker Relationships
Sir, employer-worker relationships are almost invariably weighted in favour of the employer. A power relationship exists, one that can be incredibly lopsided regardless whether local or foreign workers are involved. Very often, discussions over workers’ rights can gloss over this lived reality. Not all workers are vocal, some may wish not to make trouble for their bosses for the fear of being ostracized or labelled or sent home. Yet some others may fear for their jobs and simply bottle things up. Other more specific issues for specific groups of workers can also come up. In 2017, in a TODAY article, Transient Workers Count Too (TWC2), a well-known NGO reported that some lawyers pursue questionable practices with regard to foreign workers who are ill-informed about electing between a WICA claim on the one hand and common law remedy on the other. Separately, the Archdiocesan Commission for the Pastoral Care of Migrants and Itinerant People said foreign workers are sometimes “poorly informed about costs” involved in legal processes.
To that end, one of the main purposes of the Bill – that is to provide for a more expeditious process for workers to receive compensation for injuries suffered arising out of and in the course of employment is to be welcomed. In 1975, when this Bill’s predecessor, the Workmen’s Compensation Act came up for second reading, the intention to introduce an expeditious compensation regime was a key purpose of introducing changes to the law. In those days – in the words of then Manpower Minister Ong Pang Boon – some employers even ignored the notice of assessment and despite repeated reminders, would even delay the payment of compensation by disputing the extent of liability to pay compensation or the extent of the dependency of the claimants on the earnings of a deceased worker.
Sir, the WICA regime has moved significantly from the shortcomings of those days, thanks to both the commitment of not just employers, but the Ministry too. But as this House has heard in the past, most recently when the Act was amended in 2011 – the reality is that workers need enough information to assess how best to pursue their injury claims as not all are highly educated and informed or know of their rights and responsibilities.
What R’s experience suggests is that in spite of the various initiatives to make workers aware of their rights, much more can to be done, and the modified claims framework that underpin the changes proposed under this Bill is a good opportunity to review how WICA is communicated to all workers and employers.
Coming back this Bill, in view of the fact that most of the feedback on the public consultation to the Bill came from insurers, I would like to ask the Minister how MOM will ensure that all employers adhere to the new WICA processing regime? In 2008, MOM committed itself to raise worker awareness of avenues for compensation through the community, union leaders and employers so as to create awareness among employers and workers. How does MOM plan to engage employers and workers to further improve compliance to the new claims reporting framework and to better protect worker’s rights after the passage of the Bill?
‘Light Duties’ Reportable – Can all employers cope?
Sir, one critical improvement to the Bill seeks to make to WICA is the requirement for employers to report all injuries resulting in any instance of light duty or medical leave to be reported to MOM. The amendments see that an injured worker will be compensated up to their usual level of earnings if they are given light duties by a doctor, principally because they would not be able to undertake overtime work to boost their wages while on light duties, hence a lower Average Monthly Earnings (AME) calculation for the purposes of their claim. This is a progressive move.
The Ministry has stressed that such reporting will not be an administrative burden for employers and has provided for a simplified procedure for reporting injuries that result in less than 4 days of light duties or MC for the worker. Under the Bill, the responsibility shifts to the employer to file a WICA claim as employees now do not have to separately file a claim. This is a fundamental change in the claims framework and it requires a religious compliance commitment from employers for it to work smoothly.
In 2017, the Minister of State for Manpower in a reply to a PQ confirmed that it was mandatory and not voluntary for employers to report any work-related accidents resulting in an employee’s death, or hospitalization for at least 24 hours, or medical leave for more than three days. In that regard, MOS stated that MOM had taken enforcement action against errant employers for persistent late reporting of minor injuries after repeated reminders or delayed reporting of a serious work injury, with seven employers taken to task.
Sir, in view of the new claims framework which makes the burden of reporting injuries on employers more acute, I seek more information on how the Ministry manages errant employers. Are they issued warning letters, stern warnings or reminders in the first instance? It would appear that the regime is escalatory and calibrated to deal with egregious employers. Can I confirm this to be the case, and if so, how many warnings has MOM issued to employers over the last five years, from reminders to warnings, amongst others, and finally, prosecutions? And the case of R, what action would MOM typically take against an employer in his scenario under the new amendments?
Circumstances under which the Commissioner of Labour exercises powers?
Sir in R’s case, when he sought to revisit his WICA claim almost two-and-a-half years after his accident, unsurprisingly, it was met by a rejection from MOM for the two reasons, one of which was that he was out of time as the claim had to be made within a year. To that end, over the last five years, I would like enquire how many WICA claims were outside the one-year claims window and how many of these were successful claims?
It is probable that R would receive a similar response from an insurer in the first instance, that of being out of time, under the new claims regime proposed under the Bill. Clause 36 of the Bill gives the Commissioner broad powers to process a claim. Under the proposed amendments, insurers will now also process death and Permanent Incapacity claims, a function that was previously undertaken by MOM.
In view of this, what new or roles, if any, will MOM or the Commissioner of Labour play to support the claims process for workers? For example, would MOM consider all appeals that fall outside the claims window to be addressed by the Commissioner of Labour at the first instance, so that the workers can deal directly with regulator for advice and assistance? This would give effect to the Commissioner of Labour’s powers to override an insurer’s assessment under the amended Bill. Furthermore, such a work process would support its objective of making the claims process as worker-friendly as possible and position the the Ministry as a pro-active intermediary for all WICA claims. Can the Minister share a broadly exhaustive list of the circumstances under which the Commissioner of Labour will take over the processing of a WICA claim as opposed to insurers leading the process as envisaged under the Bill. This should exclude the instances where an employer has not purchased the relevant insurance, or if the employer in financial difficulty and the MOM dips into the Workers’ Fund.
Reviewing Compensation Limits more regularly
Mr Speaker, when Minister Josephine Teo spoke on the Bill as a backbencher about ten years ago, Minister sought to persuade the Government to review the WICA compensation limits once every 3 years, in effect allowing injured workers to receive a higher pay-out by virtue of a more frequent review of compensation limits. The proposal was agreed to by the then Minister of Manpower. Since then, I understand the Ministry has decided that WICA compensation limits will be reviewed once every four years instead. Would the Minister explain why this is the case and consider reverting to the three-year review window to give workers a higher pay-out, particularly those struck by permanent and debilitating injuries? Minister would agree that even though the new limits may not differ significantly from one year to another, a few thousand dollars can make an important difference for workers or their families.
Can workers choose their own doctors?
Sir, the NGO, the Humanitarian Organisation for Migration Economics or HOME, in its feedback to the Bill raised some useful feedback. Specifically, it raised clause 37 and medical examinations that a worker must surrender himself/herself to if injured in the line of work. A reality of Singapore’s workforce is that much of the manual work is carried out by foreign workers. In the last few years, we have read about doctors falling far below the standards of their profession, ostensibly because they are beholden to a worker’s employer. It is mind-boggling to wrap one’s conscience around some of the headlines and the stories that have appeared in the local mainstream media on this matter. In one story last year, the ST’s Senior Health Correspondent in a story titled, “Doctors reminded to give injured workers the rest they need” noted that the Ministry had reported three doctors to the Medical Council for not ordering the requisite rest or recovery period commensurate with the worker’s injury. A doctor wrote to the ST Forum page to state that doctors cannot be site inspectors to verify if a company is in a position to extend the appropriate light duties to a worker, as the reality may be that the employer has no light duties it can reasonably offer the injured worker.
Nonetheless, in view of the power imbalance between employer and worker, would the Commissioner of Labour consider giving effect to requests by workers to see a doctor of their choice, possibly one on a panel managed by the Ministry, as opposed to being restricted to choose a doctor of the employer’s choice? An important condition could be that the consultation fees and medical costs are within a stipulated range so as not to disadvantage the employer. Sir, on this point, the prospect of injured workers not being able to sufficiently recover partly because there are effectively no light duties for them to undertake is something that needs to be watched closely, particularly since workplace safety can be compromised when a worker is not medically ready to return to work. Such ongoing scrutiny and prospective improvements will ensure our manpower laws are effective, fit for purpose and protect our workforce.
Conclusion
Sir, the Workers’ Party supports the amendment Bill. In the main, the majority of workers should not face any difficulties with their claims. However, laws like WICA that are a critical expression of our social attitudes and shape our social compact – in this case towards manual workers and non-manual workers who earn less than $2600 – are often judged on where they fall short and the cases which slip through the cracks. As the new WICA claims processing regime comes into being, I hope the Ministry not only puts the welfare of the worker first but puts itself in the shoes of our workers and their lived reality as it operationalises the amendments to this Bill.