(Delivered in Parliament on 16 August 2016)
Madam Speaker, the setting up of the Employment Claims Tribunal is long overdue. This bill is a welcome relief for workers. I am sure there will be many refinements down the road to ensure that workers get paid their rightful salaries. For now I have a few issues that I would like to put to the Minister to address.
Limit on Claims Amount
First, the most important feature of the Employment Claims Tribunal is that it covers workers not covered under the Employment Act, especially Professionals, Managers and Executives who earn more than $4,500 a month. The setting up of the Tribunal finally recognizes that compelling PMEs to file their claims with the civil courts can be lengthy and costly, thus discouraging PMEs from the pursuing their just compensation and creating the unintended consequences of protecting unscrupulous employers. However, the obstacles faced by PMEs might return in another form with the Tribunal. This is the limit on claims amount. It was stated in the Ministry of Manpower’s public consultation exercise that claims amount would be capped at $20,000 per claim, or $30,000, if claimants go through the Tripartite Mediation Framework or MOM conciliation. I would like to clarify with Minister if this indeed would be the case.
If so, what is the purpose of differentiating the claims limit between the two types of claimants, and why give a higher allowance to claimants going through the Tripartite Mediation Framework or MOM conciliation when these claimants have more alternative avenues to resolve their salary-related issues? Secondly, is not the $20,000 cap too low for PMEs, this being less than 5 months of salary for those earning $4,500 a month?
Clause 12, subsection 8, gives the Government the flexibility to prescribe different classes of employees and employers and different claim limits for different classes of claimants and different circumstances. Rather than to prescribe different classes in terms of whether they go directly to Tribunal or through the Tripartite Mediation Framework, I believe the logical thing to do given the differentiated employment market is to prescribe different classes of claimants according to their salary range and set the different claim limits accordingly to ensure inclusive coverage of PMEs.
Better still, to ensure fairness to all workers, would the Minister consider a more dynamic claims limit that is pegged to 6 months of the claimant’s last drawn salary or $30,000 whichever is higher? The claims limit should not be pegged to the claims limit of the Small Claims Tribunal. Employment claims are by nature, by complexion and by quantum dissimilar to small commercial claims. It is very important that we send a signal to employers and employees alike that employment claims are NOT small claims.
Time Limit to Submit Mediation Request
The second issue is the time limit to submit a mediation request. Clause 3 subsection 2 sets out two different timings for claimants, six months after the last day of employment for disputes where an employment relationship has ended or one year after the occurrence of the dispute for other disputes, presumably where the employment relationship has not ended. This seems anomalous, as I would expect the majority of cases to fall under the former category where the employment relationship has ended.
The six-month timing is therefore potentially disadvantageous to the majority of claimants and also add extra burden to workers who find themselves in the unfortunate situation becoming unemployed and in an acrimonious salary dispute with their former employers. I believe the Government can be more liberal and understanding of the situation faced by unemployed workers by extending the timing from six months to one year. This will also equalize the timings among the different specified employment disputes under Clause 3 subsection 2, making it fair for all workers.
Representation before Tribunal
The third issue is the question of representation before tribunal. Clause 5 specifies that claimants must act in person and cannot be represented by an advocate and solicitor or by an agent, paid or otherwise. On the other hand, an officer or full-time employee could represent employers for the dispute. There is a potential imbalance here that would disadvantage claimants. Companies could send their in-house lawyers or professional human resource professionals at no cost to them. In such a situation, PMEs would also be disadvantaged, not to mention rank-and-file workers and foreign workers hampered by language differences and lack of knowledge. Discretionary powers should be given to the Tribunal to allow claimants representation by advocates or agents when it is apparent that claimants are in a disadvantage.
Question of Enforcement
The fourth issue is the question of enforcement. Clause 22 subsection 11 states that a claims order made by the tribunal may be enforced in the same manner as that made by a District Court. Minister for Manpower said in his reply to a parliamentary question in May 2015 that the Ministry cleared 1,630 cases of salary disputes in 2014, but one third of workers did not receive the full payment on the pretext that the companies who owed them salaries were facing financial difficulties. When the Ministry investigated further, 80 per cent of employers who did not make full payment were discovered to be able to make full payment.
It is apparent from this that the enforcement of the claims orders could be a major problem going forward and active enforcement on the part of the Ministry is the only way to minimize the problem. Minister said in his 2015 reply that the Ministry is looking into enhancing the protection for workers in this regard more holistically. Could we get an update on how the Ministry intends to do this to minimize non-compliance with claims orders?
Public Consultation Summary
Lastly, concerning the public consultation on the bill that closed on 23rd March this year, the summary of key comments received and the Ministry’s responses was not published on the REACH website or the Ministry’s website as promised. Would the Minister inform the House what are some of the key concerns the public had with the Bill and the Ministry’s responses to them? Would the Minister also please cause the summary of responses to be published online?
Notwithstanding the above issues, this setting up of the Employment Claims Tribunal is a good beginning. Madam Speaker, I support the Bill.