Introduction
Mr Speaker, the journey towards equality is a long and arduous one. The Bill that this House is debating today is a much-needed and long-overdue one, if we pride ourselves on being an open and inclusive society.
The passage of a Workplace Fairness Bill in Singapore is not just a legislative necessity; it is a moral imperative that addresses the longstanding issue of workplace discrimination that has affected many workers across various sectors. For too long, employees have faced barriers based on age, race, and other personal characteristics without adequate legal protections, which not only undermine their dignity but also hampers our nation’s commitment to meritocracy and equality.
In the Workers’ Party 2020 manifesto, we called for the institution of anti-discrimination legislation on the basis of gender, race, and age. Importantly, the manifesto also notes how the government’s strategy of issuing advisories and guidelines does not penalise employers sufficiently for adopting discriminatory practices.
The contents of this Bill largely reflect the Government’s approach towards the issue of fair employment practices and the focus on harmonious workplace relations in Singapore, and I will be touching on a few areas in which I believe there could be areas of improvement to consider, especially as we look to introduce a second Bill on this matter later in 2025.
Exclusions
The first broad point I wish to highlight is the issue of exclusions in this Workplace Fairness Bill. Granted, workplace fairness and the issue of discrimination are complex ones, and the Government may want to take an incremental and cautious approach towards legislation in this area.
However, if we are deliberately looking at discrimination in the narrow sense through careful scoping of this Bill, how confident are we in saying that this new legislation will be effective in addressing the concerns and discriminatory barriers of minorities? And how can we confidently say that workplace discrimination of any form should not be tolerated, but yet some forms of discrimination are legal while others are not?
Let me elaborate on each of the subpoints under the broader exclusion category.
Plugging the Gaps
Based on Clause 8 of the Bill, employers are prohibited from discrimination on the basis of 11 protected characteristics, which form 95% of the workplace discrimination complaints received by the MOM and TAFEP.
There are, however, several other classes of people who may face discrimination, but yet will not be covered by this Bill. Are we not then discriminating against this 5% in not according them adequate legal protection?
Physical Medical Condition
The first is on physical medical conditions, as I note that mental health conditions are a protected characteristic. I have met residents who have been through a period of medical illness, which has resulted in them being unable to work for an extended period of time and caused them to rack up a significant medical bill. What could be more distressing, however, is that they may face a major hurdle as employers may view their medical history as a liability.
For instance, a resident of mine is on follow up with a cardiologist for a cardiac condition. However, he was specifically certified by the doctor that from a cardiac perspective, he was fit to work based on the nature of his job scope. Yet despite this, he believes that he was being terminated more than once by different employers because of his medical condition, and especially when one of them only required him to perform guest services related duties in an indoor location.
The draft Health Information Bill, which was opened for public consultation in 2023, prohibits the usage of National Electronic Health Record (NEHR) data for non-patient purposes. It would also explicitly disallow data to be used to assess one’s suitability for employment.
Therefore, would this Bill also prohibit employers from discrimination based on one’s medical condition or medical history if unjustified?
Criminal History
Second, everyone deserves a second chance. Being an open and inclusive country, Singapore must also grant second chances to those who are keen on joining the workforce after a stint in prison. Although such members of our society are willing and motivated to contribute productively, a CNA article highlights that many of them face discrimination when job-hunting despite being qualified for the role. Therefore, it is only right that those with a past criminal record are also protected against workplace discrimination under this new law.
In certain instances, it could be arguable that restrictions are put in place, given the risks involved. For example, under Section 26 of the Child Care Centres Regulations, staff who have been convicted of offences such as child abuse and neglect are not allowed to be hired as staff of a childcare centre.
In the financial industry, in response to my PQ in August 2024, DPM Gan shared that the MAS does not restrict the hiring of ex-offenders in the financial industry in all instances. Rather, it issues prohibition orders to specific individuals who have committed serious offences or misconduct in the financial industry, and an ex-offender who has not been issued any prohibition order or an individual whose prohibition order has expired may be employed by an FI if he or she has been assessed to be fit and proper for the role.
Yet the assessment of whether a person is fit and proper can be a subjective one, and at present MAS does not track the number of ex-offenders hired by FIs or require FIs to inform MAS of the rejection of candidates.
Given that it has been more than 20 years since the Yellow Ribbon project was launched in June 2004, would the government also consider prohibiting discrimination on the basis of one’s criminal record? This would certainly open more doors for them to start afresh and rebuild their lives.
Indirect Discrimination
Beyond the issue of protected characteristics, one of the other glaring omissions in the Bill is that on indirect discrimination.
Aside from being difficult to detect, workplace discrimination comes in all shapes and forms. While this Bill covers direct discrimination, which refers to an instance where someone is treated less favourably than someone else in a comparable situation on the basis of a protected characteristic, my Sengkang colleague He Ting Ru observed that the proposed Bill does not cover discrimination by association, which is when someone is treated less favourably as they are acquainted with someone who possesses a protected characteristic. Furthermore, discrimination by perception, which is when someone is treated unfairly as they are falsely believed to possess a protected characteristic, is also beyond the remit of this Bill.
Crucially, this Bill does not protect workers against indirect discrimination, which refers to a policy or practice that while being neutral in appearance, results in a disadvantage for persons who may fit a certain criteria, unless it is justified by a legitimate aim and the “means to achieve that aim are necessary and appropriate”. Examples of indirect discrimination may include working hours that unnecessarily disadvantage employees with children, or perhaps an attire policy that unreasonably discriminates against employees from a particular racial or religious group.
According to a parliamentary reply by Manpower Minister Tan See Leng, he noted that including indirect discrimination as part of the bill would “impose very wide legal obligations on employers”, which results in “uncertainty for both employees and employers alike”. Instances of indirect discrimination could be reported to TAFEP instead. However, having 2 separate frameworks – one enshrined in law and the other based on guidelines – for handling discrimination may also cause confusion to both employers and employees alike. Instead of omitting it from the Bill entirely, I suggest that as an intermediary step guidance be provided to educate employers and their staff on indirect discrimination, its seriousness, and the importance of addressing it appropriately. This would only be beneficial for employers.
If we look at UK case law, it establishes a precedent regarding what constitutes indirect discrimination and how such cases are to be handled. According to a UK Supreme Court ruling, employees need not prove why a Provision, Criteria, or Practice (PCP) disadvantages people of a particular group in order to show indirect discrimination, but instead requires a causal link between the PCP and the particular disadvantage suffered by the group and the individual.
At the same time, it is open to an employer to show that their PCP is justified, and there will be no finding of unlawful discrimination unless the justification is not made out.
Persons with Disabilities and reasonable accommodation
One key instance of indirect discrimination would be the denial of reasonable accommodation, which would be useful for certain workers, such as those with disabilities and older workers.
Clause 15 of the Bill refers to someone with a disability as an individual who has any one or more of the following, namely autism, any intellectual disability, any physical disability, and/or any sensory disability.
Persons with Disabilities (PWDs) face an uphill climb when navigating through the various hurdles in society. The findings of the 2024 Disability Trends Report show that only 53.5% of the PWDs surveyed felt that they were included and not discriminated against. Worryingly, there was also a decrease in the percentage of respondents who expressed positive attitudes toward PWDs in the workplace compared to the last survey in 2019.
It is imperative that Singaporeans ought to cultivate a society where our PWDs could feel included. While mindset shifts are certainly crucial, we also ought to strengthen our legislative tools to create a barrier-free society.
The Bill’s coverage of Persons with Disabilities under clause 8 would certainly offer greater protection for PWDs against discrimination. However, one of the barriers that PWDs experience when seeking gainful employment is the lack of reasonable accommodations in their workplaces. According to the CRPD, reasonable accommodations are “necessary and appropriate adjustments” to ensure that in the workplace, PWDs would be able to function “on an equal basis with others on all human rights and fundamental freedoms”. Examples of reasonable accommodation include ensuring step-free access to workplaces for employees with mobility issues and work-from-home arrangements for workers with sensory impairments.
There have been governmental programmes to encourage business to implement reasonable accommodations for PWDs, such as SG Enable’s Job Redesign Grant. Moreover, a Tripartite Advisory on Providing Reasonable Accommodations to Persons with Disabilities – which is not legally-binding – would also be released.
However, the government has stopped short of enshrining the right to request for reasonable accommodations into law, with Manpower Minister Tan See Leng articulating that it could result in heavy litigation and prevent employers from hiring employees that require such accommodations.
This approach could be seen as being reliant on the moral suasion of employers and sends a signal that reasonable accommodations are “good to have” when it is a “must-have” for PWDs to carry out their tasks.
Therefore, the new Bill must reflect that aspiration by legislating the right for employees to request for reasonable accommodation, especially when Singapore has in 2013 ratified the UN CRPD. As pointed out in a report by the Disabled People’s Association, in their 2022 Concluding Observations to Singapore, the UN CRPD noted on more than one occasion within their recommendations to the Singapore government on the need to prohibit the denial of reasonable accommodations. For example, it is “concerned about the lack of recognition of denial of reasonable accommodation as a form of discrimination on the basis of disability” in Singapore and recommends that Singapore “Adopt legal provisions and create practice to recognise denial of reasonable accommodation as a form of discrimination in all areas of life, and include an express definition of reasonable accommodation consistent with article 2 of the Convention”.
To ensure its effective implementation, the Tripartite Advisory for Reasonable Accommodations could function as a source of guidance for employers and employees alike. Besides Persons with Disabilities, other workers such as those with caregiving duties, parents, and older workers, would also benefit from reasonable accommodations in the workplace.
TAFEP and more of the same
The second point I am concerned about is the requirement that TAFEP serve as the first port of call outside the firm for workers who experience discrimination. While this is a point to be covered under the second Workplace Fairness Bill, I hope that the Government can give this point due consideration, before it is being raised for first reading.
Now that we have made the all-important step to introduce legislation to combat discrimination, I am concerned that having TAFEP and TADM as the first port of call could mean that in practice, we are back at square one and there may not be much of a difference to the current means to deal with discrimination via the TAFEP guidelines.
While the articulated aim by the government is to preserve workplace harmony, in the case of a termination of employment, we can be clear that there is no intention by the employer to be in a continuing work relationship with the employee, much less a harmonious one, and it is more likely going to be an acrimonious than harmonious relationship after the termination.
Relying on mediation could place employees at a disadvantage, as they may lack the resources such as time, energy, money and support to effectively challenge powerful and well-resourced employers. Mediation can often also favour the more dominant party, leading to outcomes that do not adequately address the grievances of those who experience discrimination and wrongful termination.
Circumstantial Evidence and termination without cause
This brings me to the third point I wish to highlight is the ease at which employees can be terminated. Employment law in Singapore is such that an employer can terminate an employee’s contract without cause, simply by giving notice or by paying the employee his or her base salary in lieu of the notice period. No reason whatsoever needs to be given to the employee!
To successfully claim that a dismissal with notice is wrongful (where no reason is given for the dismissal), an employee must substantiate a wrongful reason for the dismissal (e.g. discrimination).
The point about circumstantial evidence is thus an important one, given the colossal task faced by employees in proving discrimination. It is not easy to detect workplace discrimination as employers would attempt to hide it. For example, employers would not indicate in black and white that an employee is being terminated due to their age. But rather, said employee would perhaps hear it via word-of-mouth from a fellow colleague. In fact, they might even hear it directly from their line managers in passing, but have no concrete recording of it, allowing him or her to subsequently deny having said such a thing at all. Hence, the employee would most likely have at best indirect or circumstantial evidence of any wrongdoing by the employer in such cases.
The establishment of a framework for the handling of indirect evidence would be helpful for workers who might be afraid of seeking redress as they feel that they lack substantial evidence.
For instance, in U.S. Case Law, the Mcdonnell Douglas burden-shifting framework places the burden of proof on employers to argue that there is a justification for their employment decision, after the employee has ascertained that they are rejected from a role despite being qualified for the job.
Fair Consideration Framework
Finally, let me touch on some other matters relating to the Bill such as the Fair Consideration Framework and the use of Artificial Intelligence.
A key tenet of this Bill is also to ensure that Singaporeans and Permanent Residents are fairly considered for employment. This is reflected in the implementation of the Fair Consideration Framework under clause 26 of this Bill.
The Fair Consideration Framework mandates that employers who are submitting Employment and S-Pass applications must first advertise that position on the MyCareersFuture portal. However, employers may also pre-select a candidate and go through the motions of interviewing applicants from the MyCareersFuture portal without considering them fairly. Hence, how is the government monitoring such employers and how would such employers be penalised? Would the government also consider implementing a mechanism that monitors the outcomes of job postings uploaded to MyCareersFuture?
Artificial Intelligence
On a related note, one crucial development in the HR industry is the proliferation of AI in the hiring process. For instance, an Applicant Tracking Software (ATS) could be used to filter out CVs based on the employer’s needs, while an AI-powered video-interviewing software could analyse the candidate’s speech and behaviour. However, AI could also perpetuate discrimination if the algorithm or data is biased.
In a parliamentary reply late last year, Minister Tan noted that candidates could approach TAFEP to seek recourse should A.I. usage result in discriminatory employment practices. The Minister also highlighted the Model AI Governance Framework for Generative AI, which encourages AI developers to adopt data quality control measures and to disclose information regarding the AI model’s make-up.
Instead of adopting a ‘soft touch’ approach towards AI usage in recruitment, we ought to pivot towards enacting robust legislation that would provide workers with greater assurance and transparency with regards to how AI is being used when hiring. After all, it is crucial to unpack the “Black Box” – that is AI – to ensure that it is not a tool deployed by employers to enable discrimination.
For instance, the EU AI Act imposes obligations on employers seeking to deploy AI systems as part of their HR practices. These obligations include – amongst others – instituting the right for candidates to request an explanation of AI’s role in the decision-making process, ensuring sufficient human oversight over the AI system, and adhering to data management practices that eliminate biases within the input data. Candidates must also be informed when AI is being used during the hiring process.
Aside from mitigating the risk of discrimination arising from the usage of AI systems, this would also help to assuage public scepticism towards AI’s usage in recruitment due to its perceived unfairness compared to a human recruiter.
Conclusion
On that note, while mindset changes amongst employers and employees are a key ingredient towards building a fairer workplace, the legislation that we pass in this House sends a signal about where our priorities lie and charts a direction in which society heads towards.
Advisories and guidelines hold little weight compared to legislation. Therefore, I am glad that we are finally putting forth this long overdue workplace fairness Bill, and I hope that the suggestions that my Workers’ Party colleagues and I will be taken into consideration as we await the second Bill to be passed.
As cliche as it may sound – if we wish to build a society that is “based on justice and equality” that ensures “happiness, prosperity, and progress for our nation”, then we should take greater strides in ensuring that within every facet of society, everyone will have the opportunity to thrive and flourish.