WWLegal.com :: Consultation on Draft Employment of Foreign Manpower Act

Consultation on Draft Employment of Foreign Manpower Act
Posted on Tuesday, October 17, 2006 - 07:00 PM

Ministry of Manpower (MOM) will be tabling in Parliament the Employment of Foreign Workers (Amendment) Bill, which sets out the proposed amendments to the EFWA which seeks to consolidate under a single Act, the legislative authorities for the issuance and enforcement of Work Permits and S Passes under the EFWA, and Employment Passes under the Immigration Act (IA). With the consolidation, the EFWA will be renamed the Employment of Foreign Manpower Act (EFMA) to reflect its broader coverage. As the EFMA will have an impact on all current and prospective foreign employees and their employers, MOM would like to present a draft of the EFMA and invite feedback from all interested stakeholders and members of the public.

Background

At the Committee of Supply Debate in March 2006, Mr Gan Kim Yong, Minister of State for Education and Manpower, highlighted that the Employment of Foreign Workers Act (EFWA) (Chapter 91A) would be amended to increase penalties for selected offences, and introduce new offences. The objective of the changes is to complement the enforcement efforts by the Ministry of Manpower (MOM) to deter the illegal employment and deployment of foreign workers.

The Employment of Foreign Manpower Act

2. MOM will be tabling in Parliament the Employment of Foreign Workers (Amendment) Bill, which sets out the proposed amendments to the EFWA. This exercise seeks to consolidate under a single Act, the legislative authorities for the issuance and enforcement of Work Permits and S Passes under the EFWA, and Employment Passes under the Immigration Act (IA). With the consolidation, the EFWA will be renamed the Employment of Foreign Manpower Act (EFMA) to reflect its broader coverage. Selected IA provisions, such as the imposition and forfeiture of the security bond, will also be replicated under the EFMA. After Parliament passes the bill, the EFMA will be the key legislation governing the right of employment of all foreigners in Singapore.

3. the EFMA will have an impact on all current and prospective foreign employees and their employers [1], MOM would like to present a draft of the EFMA and invite feedback from all interested stakeholders and members of the public.

Key Changes to the Employment of Foreign Workers Act

4. The key changes to the EFWA are elaborated below:

a. Enhanced penalties for selected offences: For a greater deterrent effect, the penalties for the following offences will be increased:
i. Illegal Employment: Currently, the employment of a foreign employee without a valid work pass carries a maximum fine equivalent to 48 months of the levy or up to 12 months' jail or both. Instead of benchmarking the fine component to a variable based on levy dues, a maximum fine of $15,000 will be imposed as a deterrent penalty for illegal employment by employers. To prevent employers from risking the stipulated maximum fine where the period of illegal employment is long or where the applicable levy rates are high, the restitution of the levy evaded during the period of illegal employment will also be provided for.

ii. Active Deception Offences: The offences of providing false information to MOM, as well as the illegal trade and alteration of work passes, involve the applicant actively obtaining the right to employment under false pretences. Accordingly, the penalties will be benchmarked against that for illegal employment, and increased to a maximum fine of $15,000 or up to 12 months' jail or both.

iii. Composition of offences: The cap on the sum collected for the composition of offences will be raised from $1,000 to $2,000, which will bring it in line with provision in the Criminal Procedure Code (CPC) for any Act without specific composition provisions [2].
b. Introduction of a new offence: The EFMA will make it an offence for an employer or employee who has knowledge of false information provided to the Controller, to fail to notify the authorities. The offence will carry a penalty of a maximum fine of $5,000 or up to 6 months' jail or both.

c. Enhanced investigative powers of the Employment Inspectors: The investigative powers of Employment Inspectors will be augmented. Specifically, Employment Inspectors will be empowered to arrest without warrant both local and foreign suspects for EFMA [3] offences of greater severity, i.e. employment without a valid work pass, the provision of false information, the trading and forgery of work passes, the unlawful possession of forged work passes as well as the obstruction of MOM's investigations.

d. Additional powers for the Controller of Work Passes: The "Controller of Work Permits" under the current EFWA will be re-designated as the "Controller of Work Passes" under the EFMA, and will be granted additional powers to suspend all types of work passes.

5. The technical provisions defining the administrative requirements and characteristics of the various types of work passes (e.g. Employment Pass, Work Permit, S Pass etc) currently straddles the IA, the EFWA and their subsidiary legislations. With the legislative consolidation, these provisions would be re-enacted as a set of Regulations under the EFMA, allowing them to be regularly reviewed and updated in tandem with economic conditions and industry demand.

Scope of the Consultation Exercise

6. The primary aim of this exercise is to obtain feedback on areas of the draft legislation that require greater clarity or would facilitate compliance by employers and foreign employees. Through this exercise, we also hope to facilitate a better public understanding of the policies and legislative changes to be introduced. Once finalised, we will keep the public informed of the changes prior to their implementation.

Guidelines

7. To ensure that the consultation exercise is productive and focused, respondents are requested to follow these guidelines:

a. Please identify yourself, as well as the organisation you represent (if any) so that we may follow up to clarify any issues, if necessary.

b. Make your comments clear and concise.

c. Please use the prescribed template provided to help us understand your feedback better.

d. Your comments should focus on how the legislative amendments can be better written to make them clearer and to make compliance easier.

e. Please explain your points with illustrations, examples, data or alternative formulations of the amendments as far as possible.

8. This draft legislation is released only for the purpose of consultation and should therefore not be used for individual or business decisions as it does not represent the final legislation. All comments received during the consultation exercise will be reviewed thoroughly and, if accepted, will be incorporated in the amendment Bill for introduction in Parliament.

Period of Consultation

9. The draft Employment of Foreign Manpower Act is available for public consultation from 17 October 2006 to 6 November 2006. Comments received after 6 November 2006 will not be considered as they will be too late for incorporation into the final amendment Bill.

Feedback Channel

10. Please send us your feedback, using the prescribed template, by:

a. Email to: MOM_WPSD@mom.gov.sg (Subject heading: Consultation on Draft EFMA); or

b. Fax to: (65) 6534 0559; or

c. Post to: Workplace Policy and Strategy Division, Ministry of Manpower, 18 Havelock Road #05-02, Singapore 059764

11. We strongly encourage you to send us your feedback via e-mail for speed and ease of consideration.

Summary of Responses

12. We will publish on the MOM website a summary of the main comments we receive together with our responses by 28 November 2006. The summary will not disclose the identity of respondents, and will not separately address or acknowledge every comment received.

Documents to Download

13. For your convenience, the following documents relevant to the public consultation can be downloaded (from www.mom.gov.sg):

a. Draft Employment of Foreign Manpower Act
b. Employment of Foreign Workers Act (Chapter 91A)
c. Immigration Act (Chapter 133)
d. Criminal Procedure Code (Chapter 68)
e. Committee of Supply: Responses by Minister of State for Manpower, Gan Kim Yong, to Members of Parliament on: Employment Practices and Workplace Safety

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[1] This includes all Employment Pass, S Pass and Work Permit holders and their employers.
[2] 99A of the CPC states that for any Act without the provision for the composition of offences, the Authority shall be able to specify a maximum compoundable sum that shall not exceed ½ of the maximum fine for the offence, or $2,000, whichever is lower.
[3] Under the IA, MOM's officers are currently empowered to arrest without warrant any person for Employment Pass offences. Under the present EFWA, only foreign workers can be arrested in relation to the offence of illegal employment.

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