Speech by Mr. Louis Ng Kok Kwang, MP for Nee Soon GRC at the Second Reading of the Employment Claims Bill.
Read Minister Lim Swee Say’s response here.
Madam Speaker, I welcome this progressive Bill which expedites the resolution of salary disputes, thereby ensuring that our labour laws continue to provide better protection of workers. However, allow me to highlight five areas of concern.
Representation in proceedings
My first concern is on representation in proceedings in Clause 19. While most parties are expected to act in person before the Tribunal, the new Bill allows for certain individuals to be exceptions to this rule. Can the Minister clarify who these individuals will be?
According to Section 23 of the Small Claims Tribunal Act, certain parties need not act in person at Small Claims Tribunal proceedings. This includes low-wage elderly workers who have received little formal education and have a poor command of English. This group of vulnerable individuals should also be protected at the Employment Claims Tribunal.
In such cases, there is usually a significant power differential between employees and employers, even if interpreters are provided. Allowing them representation or assistance by solicitors, agents or McKenzie friends will ensure fair outcomes are achieved.
Migrant workers’ protection
Secondly, the Second Schedule sets out the specified statutory dispute matters that can be heard by the Tribunal.
However, the Employment of Foreign Manpower Act has not been included. Can the Minister explain the rationale for its exclusion?
Leaving out this Act would mean depriving migrant workers of the protections currently offered to them for salary-related claims.
Rules of evidence
Thirdly, on the rules of evidence. Under the Employment Act, there have been reports of inconsistent practices at the Labour Court as to the types of evidence and witness testimonies accepted.
It was previoulsy pointed out that Labour Court Commissioners have refused to accept material evidence such as video recordings of employers confessing to non-payment of salary.
Under Clause 33 (2) of the new Bill, Rules of Court provides for the summoning of witnesses and provision of evidence. It would be helpful if formal and clear rules can be put in place, and publicised, as to what types of evidence and testimonies are admitted. This would help claimants when preparing their cases.
Enforcement of court orders
Fourthly, I would like to highlight the need for stronger enforcement of court orders. According to charity workers, low-wage employees currently face difficulties when trying to enforce Labour Court orders or settlements obtained at the mediation stage.
Although legal mechanisms such as a Writ of Seizure and Sale are available, these involve high costs and are usually out of reach for low-wage employees.
In order to avoid payment, charities have reported that it is common for employers to declare bankruptcy and wind up their companies, only to set up a new company under another name.
As such, I would suggest stronger rules to be put in place for the enforcement of Tribunal orders and settlements:
a) Making it a criminal offence to default on these orders
b) If directors wind up companies and set up new ones, claimants should be allowed to return to the Employment Claims Tribunal to make directors, major shareholders and officers personally liable to fulfil the orders.
c) The Employments Claims Tribunal should hold the funds in escrow to be disbursed to the claimants. Employers are less likely to default on payments to be made directly to the court.
d) For bankrupted companies experiencing genuine financial difficulties, a fund could be created to help workers, financed by corporate taxes or the security bond paid by employers. One such model is Hong Kong’s Protection of Wages on Insolvency Ordinance.
Records of the Tribunals
Lastly, on access to grounds of decision. Clause 10 of the Bill provides for a Registry to keep all records of the Tribunals.
However, unlike Section 13 of the Small Claims Tribunal Act, it does not explicitly state that these records will be available to parties upon application. Can the Minister clarify if records will be made available?
Access to grounds of decision is important to allow employees to make informed decisions on further action to take.
Under the current Labour Court system, claimants have to pay $5 per page for these records. One charity has documented a case where a claimant had to pay almost $1,000 – a large sum for low-wage workers.
Can the Minister clarify if this sum will be made more affordable?
Madam Speaker, while I stand in full support of this Bill, I raise these points to ensure that the proposed Employment Claims Tribunal provides full protection for employees.