Mr Speaker Sir, I declare my interest as Assistant Secretary-General of NTUC and a member of the Tripartite Workgroup in the promulgation of this Workplace Fairness Bill.
I congratulate our tripartite partners, various stakeholders, and the AGC for working tirelessly over 3 years to see to the introduction of this Bill and its second reading today in Parliament.
I rise in strong support of this Bill. I have raised in this House since my maiden speech in Parliament in 2011 on this issue, the need to strengthen the Singaporean Core, and ensuring workers especially Professionals, Managers and Executives (PMEs) have a level-playing field. Since then, we have, in the past decade, introduced a compendium of legislative changes, tripartite guidelines, tripartite advisories, including new policies and now this bill to address this.
A Decade-Long Journey Towards Workplace Anti-Discrimination Law
It has been some years since I suggested introducing some form of workplace anti-discrimination law. This call was echoed during NTUC’s engagements with more than 10,000 PMEs, employers and stakeholders through the Joint NTUC-SNEF PME Taskforce from 2020-2021 which I co-chaired with SNEF.
The Taskforce found that 67% of mature PMEs aged 40 and above cited age-related bias as a key challenge in job search; and those in the Modern services sector i.e. Infocomm Technology, Professional Services, and Financial Services in particular thought current policies were insufficient in creating a level playing field with foreign PMEs. One of the key recommendations of the PME Taskforce was the need for a dedicated piece of legislation to prevent discriminatory practices that might arise from cost-driven or biased decisions, such as favouring foreign workers who may accept lower wages or are of a certain national origin.
For more than a decade, I have received numerous letters, emails and messages, as well as have had many coffee sessions with PMEs of various ages across different organisational levels and in different industries to hear their woes, frustrations, and anxieties. Their sentiments correspond with the nationally published stats that age and nationality discrimination were the top two complaints received by TAFEP and MOM from 2018-2022.
Anti-Discrimination Bill Expands Workplace Protections Throughout Employment
This Bill is watershed and landmark as it is a new and dedicated piece of legislation to address workplace discrimination across several important protected characteristics whether pre-employment, during employment, and post-employment such as during terminations or retrenchments.
This Bill will answer the Labour Movement’s long and consistent calls to ensure fair access to good work opportunities for our workers especially PMEs. It would confer protection for the most common types of discrimination faced by workers today; and our unions will now be able to better protect our members through the expanded suite of individual remedies and calibrated penalties for discriminatory employment practices.
All said, the success of this Bill will depend on five key factors which I call the 5Cs: Coverage, Clarity, Communication, Capability and Complement.
First “C” is Coverage – It is important that this piece of legislation will cover the majority and most common forms of workplace discrimination. The Labour Movement believes that no form of discrimination should be tolerated at the workplace. Workers must be treated fairly, based on merit and we want to see that employers do not run afoul of this new law.
Besides the protected characteristics, there may be fewer common areas not explicitly covered such as sexual orientation and gender identity or expression. Even if not covered by the new legislation, an employer who runs afoul of the Tripartite Guidelines for Fair Employment Practices (TGFEP) must be subjected to investigation and enforcement action/measures by MOM.
By the same token, MOM has planned to exempt smaller companies from this Bill for a start. I humbly submit that all companies and employers should be subjected to this new piece of legislation. Aside from giving more time for SMEs to prepare and comply with this new legislation, companies should not be exonerated from such responsibilities by virtue of size indefinitely. SMEs, like larger companies, have an equal responsibility to foster a fair and inclusive workplace for their workers.
During my ground engagements, I also realised that outsourced workers and freelancers including platform workers may be an underserved worker segment in this space. I envisage they should similarly be protected against discrimination in the course of their work.
However, as this is the first iteration of the workplace fairness legislation, I submit that, after passing as law, the legislation should undergo timely and regular reviews in keeping with possible changes in societal and social norms, in and outside the workplace, and a changing workforce profile. This constant and careful review of coverage and exemptions is imperative to ensure no ‘genuine’ victim of discrimination will be left in the lurch.
The Labour Movement will continue to listen closely to workers’ feedback, and lobby for further changes to the workplace fairness legislation, even after it is implemented, to ensure its relevancy and cater to the needs, expectations, and conditions of workers and the world of work.
Second “C” is Clarity – There has been much discussion on the topic of what is ‘fair’ and what is ‘discrimination’, whether the law should cover both ‘direct’ and ‘indirect’ discrimination, and what evidence needs to be produced to prove and substantiate a claim by a claimant or complainant. And for the protected characteristics, whether ‘disability’ covers ‘mental disability’ and if so to what extent? These are pertinent questions which should be exhaustively articulated in the legislation if not otherwise, through the relevant advisories/guidelines/illustrations/FAQs issued by our tripartite partners in a clear and succinct manner. This will provide clarity and certainty to HR, employment and industrial relations practitioners, lawyers and in-house counsels, unions, union leaders, and employers. This will further eradicate frivolous or speculative claims in addition to those already provided.
By the same token and for greater clarity, I have a number of clarifications regarding the Bill which I will go in order of the clause numbers for easier reference by Members of the House.
Clause 4(1)(b) states that the Act will not apply to “any prescribed employer or class of employers”. Could the Minister clarify if there are any current plans to exclude any employer or class of employers, and on what grounds would such employers be excluded?
In Clause 5(2), “asking for information or documents… for purposes of possible employment” is part of an employment decision. In job application forms, would employers have to remove fields asking for protected characteristics (such as age, race, sex, etc.)? Will job candidates also have the right to reject providing this information on the basis that it will “adversely affect” them, as defined in Clause 17?
In Clause 12, what is the age range for an “infant”? Clarity is important because if the maximum age for who is deemed to be an infant is too low, a female worker may lose her protection when breastfeeding an older child.
Clause 18 covers discrimination by employers’ direction, instruction or policy published in writing. I would like to ask the Minister how would unwritten discriminatory directions, instructions or policies be dealt with? The existence of such direction, instructions or policies may be substantiated by evidence (e.g. of witness testimonies). As currently worded, employers may get around Clause 18 by not putting things in writing.
Clause 19 prohibits discrimination by published advertisement or description. But employers can also discriminate by asking questions about protected characteristics during the job application process, even when not justified by any genuine occupational requirements. How would such behaviour be deterred?
Clause 20(2)(a) provides an exception if the nature of the job means it cannot be “reasonably performed by an individual unless the individual has (or does not have) the protected characteristic”. This is likely to be the most widely used exception, and I would call for clear guidance to prevent abuse. Some questions come to mind:
First, if some employees of the employer can only speak proficiently in a particular language, will proficiency of that language be regarded as reasonably necessary for the performance of the job, as otherwise communication would not be possible?
Second, can strong preferences by customers be considered reasonably necessary for the performance of the job? For example, parents strongly preferring female early childhood educators at kindergartens or female tutors at tuition centres to teach their young children. As the young pupils would be of different sexes, the preservation of modesty exception would not apply.
Clause 27 requires employers to develop processes in writing to inquire, review, inform, keep records of, and maintain confidentiality of grievances. I would like to ask the Minister:
First, will there be any prescribed standards or guidelines on what a “good enough” grievance handling policy should look like?
Second, given that it is crucial for there not only to be a grievance handling policy, but one that works well in practice – what are the safeguards in the law to ensure that employers not only have written policies but also abide by them in practice? Put another way, what recourse do workers have if they are dissatisfied with how their grievance was handled?
Third, under what circumstances would it be “reasonably necessary” for an employer to disclose victims’ identity and the inquiry details to any person (with reference to Clause 27(e))?
Clause 28 prohibits employers from taking any retaliatory action against employees who raise grievances or pursue claims under the Bill. I am heartened that the prohibition against retaliation also includes workplace harassment grievances. I would like to clarify:
First, for the definition of “retaliatory act” in Clause 28(2)(f), would that include pressuring the employee to agree to a variation of the employment contract which is less favourable?
Second, not offering re-employment is an adverse employment decision only if it is attributable to retaliation. In other cases where the employer did not offer re-employment, the affected employee can make representations to the Minister under the Retirement and Re-employment Act. In those other cases, would evidence of discrimination by the employer be relevant?
Third, would protections against retaliation by employers on the basis of grievances covered by the TGFEP levers be similarly strengthened for parity with the provisions on prohibition against retaliation under this new Workplace Fairness Legislation?
Finally, I would call for those facing discrimination covered under the TGFEP to similarly be protected from retaliation. Small companies (with fewer than 25 employees) who are exempted from WFL should be held accountable for any retaliatory acts against their employees who report discrimination under the TGFEP.
Looking at Clause 35(2), it appears that some cases may be regarded as both civil contraventions and serious civil contraventions. I would like to ask the Minister, under what circumstances would MOM pursue civil penalties (for serious civil contraventions), as opposed to imposing administrative penalties (for civil contraventions)?
Last clarification, in making a complaint to MOM for employers’ discrimination, could the Minister give guidance on what type of relevant evidence would workers need to produce or show before MOM will investigate further?
Third “C” is Communication - This landmark legislation will cover much ground, and its effective implementation and enforcement will not be easy or straightforward. At the onset, there will be questions from all quarters. These questions are opportunities to sharpen our approach and build trust and unity among all stakeholders. It is therefore imperative that we address all concerns and commence communication about this new law and how it will eventually be operationalised at the earliest opportunity. It is my hope that the nuts and bolts can be well cascaded to every employer as well as every union, union leader, HR and legal practitioner, and every worker operating in Singapore. Communication can come in various forms and channels such as a legal handbook, pocket series or guide or even a dedicated website with an exhaustive FAQs coupled with legal primers catered to the various levels of needs and segments.
Fourth “C” is Capability – To enhance workplace fairness and the knowledge in this space, more can be done to improve HR capabilities as well as practices on the ground. Echoing the recommendations in the PME Taskforce Report, there is a need to improve HR standards and increase take-up of Institute of Human Resource Professionals (IHRP) certification. It is essential for the HR fraternity to be familiar with tripartism, industrial relations, as well as this new workplace fairness legislation. It is submitted that the IHRP certification should also be updated after the Bill is passed to cover Workplace Fairness Legislation across all certifiable levels including as an additional module for HR Professionals with an internationally recognised certification and who may have missed covering topics such as WFL, tripartism and industrial relations in Singapore. I would like to reiterate my previous call in this House for the IHRP certification to be mandatory especially for companies that hire foreign manpower.
Fifth and final “C” is Complement – We need this Bill to complement existing legislation and other worker protections. In short, we need to create a safe environment for workers to report discriminatory practices. Mr Speaker, while the Bill will confer rights and protection on workers, they will need to feel safe to report any discrimination. According to MOM’s Fair Employment Practices Report, from 2022 to 2023, there was a decline in employees seeking help when faced with discrimination at work.
Despite the increased availability of formal grievance-handling procedures, workers did not feel safe enough to do so. According to the Report, the main reason was “the fear of being marginalised at work or making work relations awkward”.
I submit that this is where Unions can play a crucial role in supporting our members. Our Union Leaders are trusted and experienced peers and advocates who understand the challenges our members face and are trained to provide relevant support and advice. This is why it is critical to ensure that our unions are able to represent our PMEs when they face workplace discrimination. We therefore call for the Industrial Relations Act to be amended so that Unions can provide limited representation for PMEs regarding disputes under this Bill.
Mr Speaker, I am glad to see that in Clause 25, “grievance” includes harassment by the employer or by another employee. Indeed, there are many overlaps between harassment and discrimination. I have in the past made repeated calls to address workplace harassment.
While recognising that this Bill makes harassment a type of grievance and that some remedies are currently possible under the Protection from Harassment Act, I would call on the Government to complement existing harassment laws by enhancing extra-legal levers to strengthen protection against workplace harassment such as more research, education and awareness training on this important issue.
Conclusion
Mr Speaker sir, to conclude, while legislation must serve to punish and deter errant employers, it is ultimately another step in a continuous journey to foster a fair and inclusive Singapore. All of us – workers, employers, and members of society – will need to play our part to achieve this vision.
True progress requires a collective commitment to check our own biases at work, practice inclusion, and speak up when we spot that something is not right. There are available avenues to seek redress and NTUC, together with our unions, will continue to do our part to ensure that our workers are protected and have fair opportunities at work to fulfil their potential.
We stand ready to support our members and workers who face any challenging situations at the workplaces because #everyworkermatters
