This Bill has been a long time in the making. After hesitation for several years, the government has heeded calls from several quarters, including from the Workers’ Party, to go beyond tripartite guidelines and to legislate against discrimination in the work place. Since the former Prime Minister announced the government decision to proceed with such legislation at the National Day Rally in 2021, more than three years ago, the day has finally come, at least for the first part of the legislation.
The Bill has several positive aspects. Two aspects should be mentioned. First, it covers all stages of employment from pre-employment hiring, and in-employment decisions to end-employment decisions. Second, when employers are assessed to have breached their obligations, there is a range of responses from financial penalties and corrective directions to state prosecution, with employers having recourse to the courts if necessary.
In my speech today, I would like to raise three questions related to the Bill.
When will the Workplace Fairness Act be Effective?
First, on the timing of implementation. We first understood that the anti-discrimination law was expected to be passed by the end of last year. When there was no indication by October last year that the law was being tabled, I was puzzled and filed a Parliamentary Question about this for the November sitting. The Minister replied then that the Workforce Fairness Bill would be tabled in Parliament that month.
Now we understand that the legislation is being tabled in two parts, the first part now and with a second part on employment claims, to be tabled later this year. Thus, the earlier-indicated timelines have been missed.
The government has announced that the provisions of both parts would be effective in 2026 or 2027 i.e. possibly two years from now. Could the Ministry be more specific as to the various milestones and approximate target dates, so that we can better understand why it will take so much time?
Employees Mis-labelled as Independent Contractors
My second question arises from the scope of the Act i.e. what situations are covered.
I note from Clause 4(3) that the Act does not cover contracts for service i.e. those who are engaged under arrangements that make them independent contractors. While I do not disagree with this, I wish to highlight ground feedback I have received about some unscrupulous employment practices. A resident told me that he had worked for his employer for years and when he was nearing retirement age, his work arrangement with the employer was converted from the status of employee to a contract for service i.e. he was re-hired as an independent contractor. This was despite the fact he was working at the same tasks.
Such a change in status from employee to independent contractor would deprive the worker of significant protections such as CPF contributions, work injury compensation insurance and soon, from the provisions of the Workforce Fairness Act as well. This is not acceptable as such a practice is tantamount to discrimination on the grounds of age. Is the Ministry tracking such situations of potential bullying of older workers, and if so, what is being done?
How Protected are the Protected Characteristics?
My last question relates to what the Bill calls “protected characteristics”. The Bill lists 11 protected characteristics, meaning that employers should not use those characteristics to discriminate against job-seekers and employees. These 11 protected characteristics range from age, sex and nationality, to marital status, race, and mental health condition.
My query relates to the pre-employment stage i.e. when the employer is deciding whether or not to hire an individual. Fundamentally, my question is this: what exactly are the restrictions on what the employer can or cannot do?
While the Bill states that the employer should not make an adverse employment decision based on any of the protected characteristics, it is silent on how the employment processes need to change. For instance, is the employer permitted to ask any questions about the protected characteristics? For instance, it is common in Singapore to see pre-employment forms asking potential hires for their marital status, race and whether they have been ever treated for any mental health condition. During hiring interviews, women especially are often asked about their caregiving responsibilities or potential parenthood plans.
Regarding what sorts of questions cannot or should not be asked during hiring interviews, a brief look at some other jurisdictions is useful. At one end of the spectrum, some jurisdictions such as South Korea and Denmark legally prohibit employers from asking for information on marital status and race. Mid-way in the spectrum would be other jurisdictions such as the US and UK, where questions about some characteristics are not permitted at all, like on disability and health; however, for other characteristics such as pregnancy or parenthood plans, employers are merely advised not to ask those questions, as such questions could be considered to be evidence of discrimination.
Is the Ministry’s intention to prohibit certain lines of questioning, or is the intention merely to discourage such questions? Will there be, for instance, subsidiary legislation covering prohibited questions, and what the consequences will be if they are asked? For questions that are to be discouraged, this change itself will involve overhauling long-standing hiring norms. How will MOM work with employers to adjust their hiring practices and to monitor whether practices have indeed changed?
For protected characteristics to be meaningfully protected, a strong framework needs to be in place. If questions about the protected characteristics continue to be asked, it opens the door for employers to make decisions based on those characteristics, but to disguise the real reason in more kosher language to avoid complaints and investigations. Such a loophole should be avoided where possible, as this would render the protection toothless.
Conclusion
The Bill has an important signalling effect that discrimination in the workplace will attract consequences for employers. The Workers’ Party supports the Bill. I look forward to the Ministry’s clarifications on the three points I have raised concerning timing of implementation, employers who disguise employment as contracts for service, and on what is permissible during the hiring process.