Work Injury Compensation (Amendment) Bill

5.00 pm

Order for Second Reading read.

BG [NS] Tan Chuan-Jin: Mr Speaker, Sir, I beg to move, "That the Bill be now read a Second time."

Sir, the Work Injury Compensation Act (WICA) is a piece of social legislation that aims to provide low-cost and expeditious resolution of work-related injury claims. MOM currently processes about 12,500 WICA claims each year. Two-thirds of these claims involve minor injuries. In such cases, the employer is liable to pay the injured worker his medical leave wages and medical expenses, upon being notified of the accident. Where the injury is more serious, involving permanent incapacity or death, MOM will ascertain the amount of compensation based on a medical opinion after the injury has stabilised, or upon death.

In 2010, a total of $76.5 million in compensation was awarded for permanent incapacity and death. On top of that, an estimated $20 million was paid out by employers and insurers for medical leave wages and medical expenses for both minor and serious injuries.

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Our Ministry last reviewed the then-Workmen's Compensation Act in 2008. The Act was renamed the WICA and its coverage was extended to all workers, compensation limits were increased and processes were streamlined. The amendments contained in this Bill are more technical and intended to improve the operation of the Act. MOM will also be making some amendments to the WICA subsidiary legislation, as part of an overall package of WICA amendments.

The changes proposed in the Bill are based on two key principles. The first principle is to strike a fair balance between compensation for the injured worker and obligations placed on the employer or insurer. The second principle is to ensure that the WICA framework remains expeditious and workers are able to receive compensation promptly.

Balancing the interests of the injured worker and the employer or insurer is critical because WICA is a no-fault regime, similar to other WIC regimes overseas. This means that injured workers will receive compensation as long as the accident occurred out of and in the course of work, regardless of which party was at fault. Therefore, the obligations placed on the employers and insurers in areas such as compensation and liability must necessarily be limited. Injured workers who feel they deserve higher compensation do have the option to file a civil claim, if they can prove negligence of the party they are claiming against. Three of the amendments are based on this principle.

First, MOM will be updating the WICA compensation limits as part of MOM's regular review of WICA compensation. MOM will increase the compensation limits for death and permanent incapacity by about 21% to account for the rise in nominal median wages since the compensation limits were last revised. The revised compensation limits will apply to all workers covered by the Act.

At present, the minimum limits are $47,000 and $60,000 respectively for death and total permanent incapacity, while the maximum limits are $140,000 and $180,000 respectively. With this change, the minimum compensation for death and total permanent incapacity will be increased to $57,000 and $73,000 respectively. The maximum compensation will also be raised to $170,000 and $218,000 respectively.

To illustrate, with the amendments to compensation norms, the family of a deceased 25-year old worker who earned $1,800 a month could receive $170,000, an increase of $30,000 or 21% more than the family would be eligible to receive currently.

WICA also covers medical expenses for work-related injuries. This coverage is capped at $25,000 per accident or for a period of one year from the accident, whichever is reached first. MOM will be increasing the dollar cap on medical expenses from $25,000 to $30,000 to address the increase in industrial accident medical bills since the last review in 2008. The updated dollar cap will cover more than 95% of all WICA claims where hospitalisation is required.

Second, clause 2 of the Bill amends section 3(5) of the Act to restrict compensation in cases involving work-related fights or attempted assaults. MOM currently receives about 20 claims arising from fights a year, of which three quarters are found to be work-related and hence, eligible for compensation. With this amendment, employers will not be liable under WICA to compensate workers who are injured in a fight or attempted physical assault, except in certain scenarios, which I will elaborate later on.

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Whilst the numbers are not large, the rationale for this amendment is that while work-related disputes between co-workers may arise from time to time, they should not resort to fights to resolve them, and employers should not have to bear the cost of injury. Singapore is not unique in doing so; there are overseas jurisdictions which restrict compensation for work-related fights.

However, MOM also recognises that workplace fights sometimes occur and there are several scenarios where an employer should remain liable for compensating a worker injured in a work-related fight. For instance, when the injured worker was a victim and did not participate in the fight, or when the worker was injured whilst exercising his right of private-defence, as defined in the Penal Code, or to defend against bodily harm or damage to property. In addition, a security officer who is sanctioned by his employer or principal to break up the fight or prevent the assault will remain eligible for compensation.

The amendment to section 3(5) specifies that workers involved in work-related fights who are injured in these scenarios will continue to receive compensation, while those who are primarily responsible for the aggression do not.

Third, clause 3 of the Bill amends section 4 of the Act to expand the scope of compensable diseases. Currently, diseases are compensable only when they are listed in the Second Schedule, for example, noise-induced deafness, or as a result of a specific accident at work, for example, a nurse getting infected after a needle prick injury. A new deadly flu strain would not be compensable until it is included in the Schedule.

With the amendment, diseases contracted as a result of work-related exposure to chemical or biological agents will automatically be compensable, including new diseases. To make a WICA claim, the worker must still prove that he was more likely than not exposed at work, and not as a result of community spread. The majority of workers would not be able to claim compensation for communicable diseases such as the common flu or chicken pox. However, certain categories of workers, such as healthcare workers, will generally be able to prove that they were exposed because of their work, and will receive compensation for diseases that they contract.

MOM will also be refining the Second Schedule of compensable occupational diseases. The amendments are technical in nature, mainly to update the list of occupational diseases and associated occupations. Examples include replacing the term "industrial dermatitis" with "occupational skin diseases", which has a broader scope, and the inclusion of "diseases caused by excessive heat" as a new occupational disease.

Sir, the second principle is to ensure that the WICA framework remains expeditious. This will enable the injured workers to receive their compensation as promptly as possible after the accident. Dragging out the resolution of claims also causes uncertainty for employers and insurers. Another three amendments are based on this principle.

First, MOM will prohibit work-related exclusion clauses in insurance policies via clauses 5 and 10 of the Bill which amend sections 23 and 45 of the Act, and upcoming amendments to the WIC Insurance Regulations.

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While section 23 currently requires employers to have insurance against all liabilities that they may have under the Act, MOM has encountered cases where the WIC insurance policy does not cover critical aspects of the scope of work carried out by the insured company. For example, an insurance policy for a spray-painting company excluding coverage for flammable substances, or an insurance policy for a construction firm excluding coverage for works exceeding one storey in height. Well, this could be due to several reasons: insurers may not have had the opportunity to explain the exclusion clauses fully or employers may have conveniently relied on their agents to secure the lowest quote without fully understanding the coverage.

When a worker gets injured, the insurer will disclaim liability and the employer will have to compensate the injured worker from his own pocket. If employers lack the financial ability to pay compensation, their injured workers may not receive compensation for their injuries. MOM sees about 200 cases a year where insurers dispute liability on the grounds that the work activity that caused the injury was excluded from the insurance policy.

With the amendments to section 23 and the WIC Insurance Regulations, insurers will be liable to compensate injured workers even if such exclusion clauses exist in the policy. Nonetheless, insurers will continue to have the flexibility to recover from the employer any such compensation paid out, if such recovery is allowed for in the insurance policy.

Second, MOM will insert a new section 25E via clause 6 of the Bill, clarifying liability allocation where there is more than one insurance policy in force for the same accident.

Sir, at present, certain industries have the practice of having multiple parties provide insurance coverage for workers. For instance, in construction, the main contractor may purchase a project policy covering all work relating to the project. At the same time, individual sub-contractors may purchase annual policies covering their workers. When there is an accident, the various insurers may dispute liability and claim that the other insurer should cover the accident. MOM sees about 400 such disputes annually. Compensation to these 400 workers is delayed unnecessarily while MOM sorts out which insurer is liable.

So, the new section 25E will resolve this issue by stating that when there are multiple insurance policies covering an accident, the employer's insurer may not object on the grounds that another policy covers the accident. Barring any other objections, this insurer will be made liable to pay compensation. This is consistent with the WICA principle that we hold the employer primarily responsible for work injury compensation.

However, in view of prevailing industry practice in sectors where the main contractor's insurer compensates the injured worker, MOM will allow third parties to pay compensation as long as they convey in writing to MOM the intent to pay compensation on behalf of the employer's insurer, before the notice of assessment is issued.

Finally, clause 4 of the Bill amends section 11 to state that workers who file a common law suit may not subsequently file a WICA claim for that accident more than one year from the accident.

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Currently, workers have to file their WICA claims within one year of the accident, unless there are extenuating circumstances. Having a time limit for filing a work injury claim is practised in other jurisdictions such as in Queensland, Australia where claimants have six months to file a claim and a number of US states (for example, Florida, California, Hawaii) where claimants have one year to file their claim. However, claimants who file their initial claim within one year of the accident and subsequently withdraw it, may re-file their claims with MOM at any time after the accident. MOM has processed claims which are re-filed some six years after the accident. This results in uncertainty for employers and insurers, and drags out the resolution of the claim. Claimants may also be tempted to "forum shop" in an attempt to get the maximum compensation for their injuries.

This amendment then provides a fixed timeframe of one year from the accident for claimants to decide if they wish to file either a common law or WICA claim for their injuries. Claimants may switch between common law and WICA within the one-year timeframe, but may not file a WICA claim after that one year if a common law claim was filed. One year should be sufficient time for the injured worker to make an informed decision about his compensation options.

There are some potential claimants who had previously filed a WICA claim for their injuries within one year of the accident, withdrawn that claim for common law, and still have not received compensation for their injuries. To ensure that such workers are not caught out by the amendment, MOM will provide a one-year grace period from the commencement date of this Amendment Bill, for such potential claimants to re-file their WICA claims. After this grace period, these potential claimants may no longer revert to WICA.

Sir, we will also be making some technical amendments to the Act. The first is that clauses 7 and 8 of the Bill amend sections 28 and 29 of the Act, to make clear that enforcement of orders and appeal against orders also apply to orders made by the Commissioner under section 25A. The second is that clause 9 of the Bill amends section 32 of the Act, to clarify that the enforcement of orders against an insurer includes orders made under section 28 of the Act.

Sir, in conclusion, MOM has tried to ensure that this package of WICA amendments is a fair package to all stakeholders involved in the WICA framework. MOM has consulted extensively with various stakeholder groups, such as NTUC, SNEF, General Insurance Association of Singapore, Singapore Contractors Association Limited, Specialist Trade Alliance of Singapore and Association of Singapore Marine Industries since December last year, and we thank them for their inputs and suggestions. As far as possible, we have taken onboard the feedback as we refined and finalised the proposed amendments. We would like to thank them for all their contributions.

The amendments will be effected on 1 June 2012, to give industry sufficient lead time to adjust to the changes. MOM will continue to educate employees on their rights under the Act as well as organise briefing sessions to the various stakeholders to help them comply with the revised legislative requirements. Sir, I beg to move.

Question proposed.

5.15 pm

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Mr Zainudin Nordin: Mr Speaker, Sir, I would like to share some thoughts on manpower issues. Sir, our interest must be to ensure that Singapore workers, and in particular Singaporean workers, enjoy good competitive wages and companies here have a highly skilled workforce who can help the company grow in a sustainable way.

I am happy that our approach has been to boost workers' productivity through education and training so that companies can pay higher wages for higher valued-added work. I think this is commendable and sustainable in the long term. In summary, highly skilled and productive workers deserve higher wages because they help their companies make more money. However, Sir, it seems to me that this is only one part of the equation.

The value of a worker and the worth of a person should not only be seen from the contribution or the perspective of what the workers can contribute to the company. I think it should also be seen from the way of how we look at an individual from the humanitarian and moral perspective. Our workers should feel that there are proper and up-to-date legislation, rules and regulation that are in place to protect their interests and also their safety. Sir, we know that work accidents compensation is a field where there is much scope for scholarly research. But, in reality, on the ground, the work injury compensation is also of great importance to all our workers because of the fact that it protects them. Every year, there are accidents and injuries at work. Thus, the relevancy of our WICA is very important.

I would like to thank very much the Ministry of Manpower for proposing this amendment. Firstly, I would like to raise two points. We need to assure our workers that there is enough information given to them so that with proper guidance following their injuries, if it ever happens, they can make an assessment of whether to pursue their claims under the common law or through the WICA framework that is proposed. I can understand that we do not wish to promote "forum shopping" but we should also not close legitimate avenues for redress for these workers, especially if these arose because the worker was not fully aware of his or her options. I would also like the Ministry to think of ways where injured workers – when they are certified fit, both physically and even mentally – will receive independent advice on their claims in a systematic and proper way. In this way, we can assure that we are doing the right thing for our workers who are injured because of their work.

The second point that I would like to raise is that it is good for us to make the process efficient so as to expedite the claims and the settlement process. But we should also be mindful that in doing so, we do not put undue pressure on workers to settle these issues. Often, it is the worker who is at a disadvantage. Perhaps it is because his injury has left him unable to work and he is at a disadvantage and in financial difficulty, with no source of income, and his ability to pursue his claim is diminished by his lack of resources. I hope that the Ministry will consider this aspect and see if further amendments are necessary to ensure that we support the workers beyond just ensuring the process of claims is expedited. Sir, with these few proposals, I support the Amendment Bill.

5.19 pm

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Mr Christopher de Souza: Mr Speaker, Sir, thank you for allowing me to join this debate.

Sir, I rise in support of this Bill. The Work Injury Compensation Act is designed to provide a simpler, quicker and more cost-effective way to settle compensation claims by avoiding protracted proceedings. The importance of this Act cannot be underestimated, especially insofar as it seeks to protect employees, who are the vulnerable parties in compensation disputes.

Under the common law, the injured worker has to initiate legal actions to claim damages from his employer. To succeed, the claimant has to prove that the employer had been negligent and therefore held liable. He will need to gather sufficient evidence to prove his case. These obstacles – the financial means required to take out legal claim, the burden of proof that rests on the claimant – are not easily surmountable, often placing the employee in an unfavourable position in relation to his employer. This is not helped by the fact that the employer-employee relationship may be an unequal one.

In contrast, an employee claiming under the Act is not required to prove that the employer is at fault. He only needs to show that his injury was sustained in the course of work. This greatly reduces the burden on the employee and goes towards ensuring his interests are protected against errant employers. A necessary corollary of the discussion centres on the compensation system itself and, in particular, the prescribed compensation limits under the Act.

As part of ensuring that the WICA framework continues to strike a fair balance between compensation for employees and obligations placed on employers, the system must be constantly reviewed and refreshed to be kept in tandem with the ever-changing employment landscape. In line with the stated rationale behind the Act, it is imperative that compensation norms be updated to keep pace with wage increases and changing circumstances. So I would urge the Ministry of Manpower to keep pace with wage increases and changing circumstances where the compensation mechanism is concerned. This would include regularly reviewing the cap on medical expenses so as to keep in step with rising healthcare costs. The bottomline is that the Government must continue to keep abreast of the quantum of awards given so that the compensation system currently in place can retain the requisite maximum flexibility to do practical justice to the parties concerned.

The goal of achieving a fair compensation quantum – for both the employer as well as the employee involved – can only be achieved if the compensation system continues to be relevant and serve as a sensible and viable alternative to the common law process. To this extent, the Government should remain proactive in considering whether the maximum and minimum limits specified in the Third Schedule of the Act are accurate reflections of current ground realities, and continue to engage the relevant stakeholders such as trade unions and employer federations through public consultation processes. With this, Mr Speaker, Sir, I support the Bill.

5.22 pm

Mr Yaw Shin Leong: Mr Speaker, Sir, the Bill made several improvements to the existing Act. The Act now covers exposure to chemical or biological agents and improves the insurance protection of the worker. This is commendable. To further safeguard the interests of our workers, I would like to suggest four changes to the Bill.

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Let me begin with the proposed amendment of section 11: removal of court action as a reasonable cause for delay in filling WICA claims. This amendment would effectively prevent injured workers from getting any compensation, if they go to court and lose or withdraw for various circumstances beyond their control. This amendment reverses the decision by the Court of Appeal in the case of Pang Chen Suan vs Commissioner of Labour. The Court of Appeal made it clear that an injured worker can choose to withdraw his claim under WICA to pursue his claim under common law and still be allowed return to WICA later. If there is no prejudice to the employer and insurer, the worker's choice to sue under common law is considered reasonable cause to make the WICA claim outside the one-year period.

The Ministry of Manpower's consultation paper states that they have "started to see an increase in WICA claims being re-filed more than one year after the accident, with some cases being re-filed even six years after the accident". In fact, MOM's intention is to discourage so-called "forum shopping". Is this increase in re-filing so large that it overwhelms the WICA's intention as a cap on liabilities? Why punish all workers just to prevent a small number of forum shoppers abusing the system? Why not preserve the current status quo of allowing MOM discretionary powers to decide the merits of each case? Do not throw out the baby with the bathwater. In the interests of our workers, the current form of section 11 need not be changed.

I will now touch on the proposed amendment of section 3, which would exclude compensation for injuries sustained in work-related fights. The proposed wording gives exceptions to the exceptions for compensation. This is complicated and puts the onus on employees to prove that they are entitled to compensation. Does this not undermine the intent of WICA to be a no-fault claim? The amendment should really be in line with the other stipulations in section 3 and be stated as an exception to compensation. It should simply state, "if the employee is shown by the proper authorities to have started the assault or destruction of property that resulted in his/her injury then the employer would not be liable", unquote. This shifts the burden of proof from the employee to the proper authorities for exceptions for compensation like the other stipulations in section 3. This will prevent anyone from making use of the law to deny compensation to all workers involved in a fight.

I would like to add that the fact this amendment has been proposed is very worrying. The amendment suggests that workplace fights are not uncommon occurrences today. Is workplace safety and security no longer a given in Singapore? Are our workers now more vulnerable to work-related fights? We hope that the MOM intends to address this problem beyond capping employer liabilities. I notice that the banners of the WSH Nation campaign are lining our streets. And I observe that thousands of our workers have gone online to create their 3D WSH Citizen (I am citizen No. 3005). Each citizen has an audio that says, "I pledge to end all risks at work." The risks should also include work-related fights. Excluding compensation for injuries due to fights will only make workers more anxious of this particular risk. It is not an effective deterrent if it is meant to be one. I ask that the MOM take a more positive approach in tackling this problem.

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Moving on to the next change, I support the expansion in coverage for occupational diseases that the amendment of section 4 brings. However, the limitation period for exposure to chemical and biological agents needs to be made equivalent to other occupational diseases. The start of the limitation period should be "no longer employed in the occupation", rather than "ceases to be exposed". The limitation period for exposure to chemical and biological agents should be three years, given that some Second Schedule diseases have three-year limitation periods.

Separately, the MOM is conducting a review on the limitation periods of occupational diseases to better align them with the actual disease development timeframe. What is the progress of the review? This should be a matter of urgency since more workers will be compromised by the current common standard of one-year limitation period with the delay of the review.

My final point is on the increase of WICA compensation limit in the Third Schedule. The MOM had agreed to this in the consultation paper. Could the Minister indicate when the new limits will be gazetted and when will they take effect?

In addition, in 2008, the Ministry of Health has further increased the burden on injured workers when they removed hospital subsidies for industrial accidents. The removal is supposedly in line with the principle that it is the employer's responsibility to ensure the safety and health of their employees at the workplace, yet any WICA compensation limit puts a price cap on this principle and transfers the employer's responsibility to the workers' burden instead.

For foreigners on S-Pass and Work Permit, the employer is fully liable for all medical treatment costs, even above the WICA limit. This is not so for injured Singaporean workers. After claiming from WICA, they are still liable for their own medical expenses above the WICA limit. Injured Singaporean workers with medical expenses above the limit have two choices: one, give up the WICA claim and take the risk of suing the employer under common law; or two, apply through the hospital's medical social workers for further assistance on a case-by-case basis. Why make this policy that results in Singaporean workers being worse off than foreign workers? With the interests of Singaporeans in mind, I propose the removal of the medical claims cap in section 5 of the Third Schedule.

Mr Speaker, to reiterate, I would like to say that the Bill adds much needed protection for workers who have been exposed to chemical and biological agents. However, it still requires tweaks to further the interests of our workers.

5.29 pm

Mr Yeo Guat Kwang (Ang Mo Kio): Mr Speaker, Sir, we all agree that work injuries are costly. The loss of a worker to injury means a loss of time and productivity to the employer, even if a substitute is found. But for the worker, it is worse. If he or she is injured badly or permanently disabled, it could literally mean the end of their breadwinning ability. On top of that, he or she would be faced with the nightmare of medical bills and cost of rehabilitation. Family members would be affected by the emotional stress and financial burden of long-term care. In such a scenario, the injured worker and family may not have the luxury of time, finances or energy for prolonged legal proceedings or the bureaucratic work to access compensation.

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With this in mind, it is important that we make sure that WICA really works to ensure that help can be rendered expeditiously. I note that MOM has proposed to prohibit work-related exclusion clauses, except for those pertaining to asbestos, from the insurance policy meant for injury compensation. This is the right step to take.

An estimated 200 injury claims are disputed annually by insurers on the ground that the work activities that caused the injury were in the exclusion clauses of the insurance policy.

This unduly delays the resolution of claims as employers and their insurers have to take time to resolve the dispute. In some cases, employers end up having to pay from their own pocket. Some even cannot afford to. In these cases, the injured worker suffers delay or non-payment of compensation.

An example of a case encountered with exclusion clause was where an employer in the business of the manufacture and repair of lifts and escalators insured his staff, including technician, engineer, manager, driver and administrator. However, the insurance policy excluded "work involving climbing in lift shafts and claims arising from working at heights exceeding 3 metres". This single clause negates the whole point of insurance, as the core work of lift installation and maintenance is to work in lift shafts and they have to work at heights.

In another case, a business for installing air-conditioning, mechanical and electrical installation in the marine sector on tankers and ships had a work insurance policy that excluded "work on board vessel".

These insurance policies, crafted to exclude the very risks that the workers have to face in their work, are rendered meaningless. I would like to ask the Ministry how it plans to enforce this section to ensure that the injured workers would not be denied their rightful compensations due to any "technicalities" such as these.

I also note that amendment would be made to limit the timeframe for claimants who have made a common law claim but subsequently wish to file under WICA to do so within one year of accident. I would like to ask the Ministry how many cases had been encountered that had been unduly delayed due to such switching to WICA claims. Would such an amendment have expedited injury claims significantly?

My concern is that the claimant may not be able to know exactly if he had a good case or a chance to win the common law claim within the one-year limit. If it drags on, he could potentially end up not being compensated at all. I would therefore like to ask the Ministry how it would ensure that this section is expedited so that the injured worker is not unduly disadvantaged.

Sir, I now wish to say a few words regarding the low-wage workers, including locals and migrant workers, whom I understand make up the majority of WICA claims. In my work as a labour MP and Chairman of the Migrant Workers Centre, I have had the opportunity to listen to many personal experiences related to me by these workers. They face numerous challenges when they suffer injury.

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Many of these workers feel they have no choice but to seek legal representation and, more importantly, incur the corresponding legal costs, just so they do not face the intimidating process alone. Even if the compensation is received, the lawyer's fees still have to be paid such that the compensation received actually ends up to be less than is fair.

To prevent this, I would like to ask the Ministry to consider setting up an upstream €˜Mediation or Consultation' panel. This perhaps can be led cooperatively by the tripartite partners who can cater to both local and foreign workers who are low-wage workers. The purpose of this panel would be to advise recently injured workers on the various compensation processes available to them at the outset, and ensure that they are adequately advised on the process that best suits their own interest.

Sir, I applaud the intent of the proposed amendments, especially those that are aimed to expedite and make more clarity. With these changes, much of the uncertainty of our low-wage workers and migrant workers will be removed, and it is my hope that they will have the trust in our system with MOM's facilitation. Sir, I will make a few points in Mandarin.

( In Mandarin ): [Please refer to Pg 657 for Vernacular Speeches.] Mr Speaker, WICA is the result of the collaboration of the Tripartite Partners. Unfortunately, many workers, especially the low-income ones, are not aware of the details and merits of this legislation. Therefore, we need to provide them a channel to get effective advice and understand which channel is the best to get compensation when they are injured, whether they need to take legal action or simply receive compensation under WICA. It is necessary for us to provide them such a channel.

Under WICA, employers are liable to compensate their workers and must buy insurance for workers earning below $1,600. However, WICA does not stipulate clearly the minimum amount to be insured. Quite often, when a worker suffers serious injuries, the insurance that his employer has bought for him is not sufficient. Under this circumstance, it is the worker who suffers in the end. MOM should consider how we can better safeguard the workers' interests in this area.

At the same time, we must make sure that the employers do their utmost to protect their workers' interests. Although WICA requires the employers to take responsibilities, the employers may in the end say, "Well, I don't have money and I didn't buy insurance." What can we do then? WICA requires that the employers must buy insurance for workers earning below $1,600. Should we not consider doing the same for workers earning more?

( In English ): Sir, financial compensation is just a short-term relief. I would like also to ask MOM to consider further strengthening WICA by adopting the provision that protects workers' right to return to work, just like the one in Ontario's Workplace Safety and Insurance Act. This Canadian legislation focuses on return to work, and places emphasis on facilitating Labour Market Re-entry, for the workers should be able to actually get back to work after the injury, in addition to the compensation they received. I think this is a right thing to do and I would like MOM to really consider this proposal.

Sir, the last issue I wish to raise is the plight of a large number of migrant WICA claimants that are placed on "Special Pass" to await the outcome of their claim, but not allowed to work to support themselves. While the law makes their employers responsible for their upkeep and maintenance, this is sometimes compounded by a breakdown in relationship between the parties, resulting in the workers having no one to support them. Being prohibited from working and having no one to support them, this dire situation can result in crime and anti-social behaviour.

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The Cuff Road Project, a soup-kitchen run by the NGO, Transient Workers Count Too, feeds about 400 hungry workers, most of whom are "Special Pass" holders. At the Migrant Workers Centre, we assist and support some 1,200 workers a year, of which the "Special Pass" holders also make up a significant proportion. I am deeply troubled by these social problems that could arise if the management of the "Special Pass" holders is left unchecked. I therefore urge the Ministry to give special priority in sourcing for a solution for this group of workers.

In conclusion, I reaffirm my support of WICA for its "no-fault" compensation. Our people, our workers, are our most valuable resource and the keystone to our economic success. It is only fair that those injured in the course of performing their tasks are well taken care of. That said, prevention is still better than cure. Employers should still do more to ensure that every worker has a safe place to work in. The labour movement looks forward to working closely with the various stakeholders to take up this mission of making our workplace safer, instead of just having to rely on compensation when accidents happen. In doing so, we can achieve the vision of the Labour Movement, that is, every worker goes home safe and sound at the end of every workday. Sir, I support the Amendment Bill.

5.41 pm

Mrs Lina Chiam: Mr Speaker, Sir, employees, whether they are Singaporeans or migrant workers, deserve fair compensation when they suffer from work-related accidents or occupational diseases. Therefore, I am encouraged to learn that this amendment will expand the coverage of the Work Injury Compensation Act to include diseases that are the result of an employee's exposure to chemical and biological agents.

Mr Speaker, could I just seek a clarification from the Minister what exactly counts as chemical and biological agents and what does not? Perhaps, the exact implications of the term "chemical and biological agents" will be immediately known to experts in the relevant industries but I am sure the public will benefit from such a clarification. Thank you, Mr Speaker.

5.42 pm

Assoc Prof Fatimah Lateef: Sir, this Bill represents an important, low-cost system that benefits both employers and employees. Employees can receive compensation without having to prove fault, and employers' liability can also be capped.

Sir, with the current practice, the timeframe for settlement still varies quite widely, even in cases where they do not have multiple insurers. So if we can tighten this, it would be indeed helpful to all parties concerned.

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I also welcome the review done to the Second Schedule of Occupational Diseases, with the better customisation of the time period for respective diseases. This is more comprehensive and makes more sense, especially with certain cancers and diseases related to radiation exposure, cadmium exposure, silicosis and so on, where it is known that the latent phase can indeed be prolonged.

This Amendment Bill, Sir, does not cover or mention about compensation for mental trauma injuries. I bring this up because these claims can very often be difficult to prove the cause and effect of. Decision can be challenging and it would be good to have some clause to address this, to set it straight and clear. There are Bills from other countries that clearly state, and I quote, "Mental injuries are compensable under workers' compensation law if induced by either physical injury or unusual or extraordinary conditions of employment." This is an example from New Zealand.

One more issue, Sir, is related to heart attacks. It should be compensable under this Act only, if it is induced by unexpected strain or over-exertion in the performance of duties of employment. From my experience of dealing with queries and requests from affected patients, I feel this is important to make clear in this Bill, especially this Amendment Bill, as we are fine-tuning it for subsequent times and also for future use.

Another scenario that sometimes arises is compensation for injury that happens whilst the employee is coming to or going home from work. This should be defined in more details, I feel. For example, the injury sustained during coming to or going home from work is compensable, if:

(1) the employer provides the means of transportation for the worker;

(2) the employee performs duties or tasks connected with his employment during the commute; and

(3) the way used is inherently dangerous and it is the exclusive way of ingress or egress to and from work.

With all these suggestions, Sir, I hope we can improve the clarity for this Amendment Bill, and I support this Bill.

[ Mr Deputy Speaker (Mr Seah Kian Peng) in the Chair]

5.45 pm

Mr Patrick Tay Teck Guan (Nee Soon): Mr Deputy Speaker, Sir, I rise in support of the Work Injury Compensation (Amendment) Bill. I am happy and laud the revision to the quantum of compensation limits and expansion of its scope. Notwithstanding, I intend to caution and bring attention to particular areas of the amendments which I appeal to the Ministry to handle carefully and pay special attention to in its implementation.

First, the Bill proposes a new exclusion that there will be no compensation for injuries sustained in workplace fights unless the employee was acting in self-defence, in the defence of another, or on the employer's instructions to break up a fight. The proof of self-defence or right of private defence is not as straight-forward as it seems.

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I am particularly concerned with this amendment because various things can happen in the heat of the moment, and it can be very difficult to tell who was at fault and culpable. For example, an employee who strikes the first blow could have been gravely provoked. If he is later injured, it would not be fair to deny him compensation. Not all workers are highly educated and informed, know their rights and responsibilities under the law and sit in air-conditioned offices. In some workplace situations and conditions, physical altercations may happen more easily. I therefore submit that the Ministry, in enforcing this new provision, should handle it carefully and to investigate thoroughly before disallowing any claims by an employee.

Second, it relates to employees who file a WICA claim within the one-year time limit, then withdraw it to pursue a common law claim in the civil courts, and subsequently revert to WICA when they find that the common law claim is unlikely to succeed. The new amendments propose that the employee must revert to the WICA claim within one year from the date of the accident.

Looking at this amendment, I recall the Court of Appeal's decision in Pang Cheng Suan v Commissioner for Labour (2008) , where the workman was allowed to reinstate the WICA claim after more than one year had elapsed. This was a case under the old Workmen's Compensation Act (WCA), but the same provisions have been retained in WICA after the 2008 amendments. What happened was that the workman was injured when a cylinder exploded. He filed a claim under the then WCA and then withdrew it and started a civil suit. Subsequently, a coroner's inquiry into the accident found that the fault probably lay with the cylinder's manufacturer. This made it very difficult for the workman to succeed at common law, as he had to show that his injury was caused by his employer's negligence. He then reinstated his WCA claim, but more than one year had elapsed. The Commissioner rejected his claim for being out of time. However, the Court of Appeal found in the workman's favour. It pointed out that "Parliament recognised that an injured workman would have foremost in his mind the quantum of compensation or damages he was entitled to recover in deciding whether to take up a common law action or to make a claim under the Act. €¦ [The Act], in a way, was not intended to penalise the workman for choosing to commence a common law action in preference to Workmen's Compensation which was invariably lower than damages." Under section 11(4), a workman could reinstate his claim after more than one year if the failure to do so in time was occasioned by "mistake, absence from Singapore, or other reasonable cause." The Court of Appeal held that "reasonable cause" should be given an expansive meaning and one that gave effect to the objective of the Act in providing compensation to injured workers as a first or last resort. Pang's decision to seek a higher recovery of compensation for his injuries at common law was by itself a reasonable cause under section 11(4) of the Act, especially when the Act itself specifically allowed him to do so, and when his employer and the insurer had suffered no prejudice, and their liability under the Act had crystallised.

I note the Ministry of Manpower's concern whether this decision would open the floodgates, with lawyers advising their clients to just file a WICA claim first, then try their luck in the civil courts, and revert to WICA much later when it looked like the civil case was unlikely to be successful. This would impose an excessive burden on the work for MOM.

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However, I wish to ask the Minister whether there was, in fact, an open floodgate of such claims or cases in view of the Court of Appeal's decision in 2008 and to share the findings with this House.

If indeed the "flood" had not happened, even though the decision was issued almost three years ago, this amendment in overturning the Court of Appeal's ruling may appear to be an over-reaction. Moreover, just like Pang's case, it may take some time before the employee knows whether he is likely to succeed in the civil claim. By then, the one-year time limit could well be over. The employee claiming compensation has been injured and this could seriously affect his earnings and future employment prospects. I am particularly concerned especially if the victim is a low-wage worker or sole breadwinner and/or doing manual work and also for his loved ones and family. It would be very unfair if he is left without any compensation at all. For these reasons, I share my concerns with this proposed amendment.

Mr Deputy Speaker, Sir, there have been concerns for a long time as to whether the existing coverage of the Second Schedule with regard to the 23 currently listed occupational diseases and injuries are sufficient. I am glad to note that in the latest proposed amendments, there will be an extension of compensation to diseases not covered in the Second Schedule but are directly attributable to exposure to chemical or biological agents in the workplace, arising out of the course of employment. For a start, I am sure many healthcare workers will benefit from this amendment. In the same vein, since the opening of the casinos or integrated resorts, there have been complaints from some employees of prolonged exposure to smoke-filled areas. We are all well aware of the perils of first or second-hand smoke leading to long-term ailments such as cancer, lung disease, respiratory issues, etc. Would such long-term exposure as part of work become a relevant consideration for claims under the Second Schedule?

Sir, my next point is on the exclusion clause relating to the cut-off of one year for claims relating to exposure to chemical or biological agents in their workplaces if the employee's incapacity commences or his death happens more than one year after the employee ceases to be exposed to that chemical or biological agent. Whilst I understand that this is enacted to stem the flow of possible fraudulent or vexatious claims, I would like to find out what are the safeguards in place to ensure that workers who suffered death or permanent incapacity after one year in such cases will not be unfairly penalised. This is in consideration that these workers could well be the sole breadwinners and low-wage workers.

Having a good law is a step forward but the proper execution, communication and implementation is vital. Workers need to be aware of their new rights and where to get assistance when they need it. I urge the Ministry of Manpower to pay particular attention to cascade and educate on the impact of these new amendments to workers and employers, including members of the legal profession who may act on behalf of clients in such cases. Sir, on this note, I welcome the new provisions in expanding the scope and compensation limits of WICA.

5.52 pm

BG [NS] Tan Chuan-Jin: Mr Deputy Speaker, Sir, let me first thank the Members who have spoken in support of the Bill. Allow me now to respond to some of the comments and questions. But before that, I think it is important to emphasise that our commitment is to ensure that workplace safety and health is paramount. We should continue to work on this, and we will try to ensure that our workers/employees do have a safe work area.

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First, on updating the compensation limits, I fully agree with Mr Christopher de Souza that the WICA compensation levels should reflect ground realities and, at the same time, remain acceptable to all the different stakeholders. MOM has, indeed, taken into account various considerations, such as the median income and the age of the claimant in determining the compensation levels, because the aim of the WICA is to ensure compensation for wages forgone as a result of the workplace injury. With the proposed increase in the compensation limits, the revised compensation levels are fair for a no-fault system. I assure the Member that MOM will continue to engage stakeholders and review the compensation limits to keep pace with rising income levels and other circumstances.

On the issue of compensation for work-related fights, I note the concerns of Mr Patrick Tay and Mr Yaw Shin Leong that it may be difficult to determine if a worker had acted in self-defence or was aggressive in a fight, and why do we have the adjustment in the first place. We handle about 20 cases a year. It is not a particularly worrying trend but we feel that this is a fair adjustment. Based on MOM's proposal, employees, and I reiterate, injured in a work-related fight will still be eligible for compensation, provided that these injuries were sustained in the act of self-defence; while defending another individual; while acting under the employer's principal instruction or consent to break up the fight or safeguard lives or properties, or maintain law and order; or as a result of an assault to which he did not retaliate. I think these are reasonable criteria upon which we would provide for compensation. MOM's proposal clarifies that only employees who deliberately participate in fights at the workplace, whether due to a dispute over work-related matter or not, and sustain injuries in the process are not eligible for work injury compensation. Since WICA is a no-fault system, we need to ensure that the burden of compensation is fair and reasonable. For example, employers are currently not liable under WICA to compensate employees who are injured as a result of wilful or self-destructive behaviour.

In terms of prohibiting work-related exclusion clauses, Mr Yeo Guat Kwang asked how MOM would enforce a prohibition of work-related exclusion clauses and ensure that the injured workers are not denied compensation. The regulations will be revised to prohibit all work-related exclusion clauses in the WIC insurance policies, thereby assuring the injured worker of compensation. However, insurers can contractually require that any such compensation paid out can subsequently be required from the employer. Employers should, therefore, review the terms of insurance policies carefully so that they are not caught unawares of such recovery clauses or lapses in coverage.

I would also like to thank Mr Yeo for his suggestion to stipulate a minimum amount of insurance an employer has to purchase to fulfil their obligation under WICA. Whilst MOM has not encountered instances where insurers provide partial indemnity for work injury compensation, we intend to amend the WICA insurance regulations to pre-empt potential inadequacy in insurance coverage. The regulations will be amended to require that the coverage of WIC insurance policy may not be less than the maximum compensation payable under the Act.

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Mr Yeo also suggested that MOM extend compulsory insurance coverage to higher-income earners. Our experience shows that generally higher-income earners tend to incur fewer injuries at the workplace due to their nature of work. As such, we do not think that it is necessary to extend the coverage of mandatory insurance. It is better to leave it to employers to decide with their employees how their risks should be covered. I understand that employers are already buying insurance for this group voluntarily, and MOM sees close to 95% of claims involving these higher-income earners being covered by insurance.

Assoc Prof Fatimah Lateef suggested amending WICA to compensate for mental trauma injuries and to compensate heart attacks where they are induced by unexpected strain or over-exertion. Currently, both post-traumatic stress disorders and heart attacks are compensable under WICA, if they result from an accident arising out of and in the course of employment. MOM will investigate such injuries, taking into account the expert opinion of doctors, to determine if they are compensable.

Mr Patrick Tay also asked about the safeguards in place to ensure that workers who suffer death or permanent incapacity from chemical and biological agents after one year are not unfairly penalised. The reason for the time limit is to cap the liability of employers as it would not be fair to impose unlimited liability on employers, given that WICA is a no-fault regime. This one-year time limit is consistent with existing time limits for occupational diseases listed in the Second Schedule. If the worker was diagnosed after the one-year time limit, the injured worker has the option to seek damages under common law. Low-wage workers may also apply for financial aid from the Workers' Fund administered by MOM. In terms of medical treatment or the limits set in place, WICA seeks to strike a fair balance between compensation for employees and the obligations placed on employers and their insurers. MOM has to set a clear limit on the payment of medical expenses in order to provide certainty for employers and insurers. The new limits for medical expenses will continue to fully cover more than 95% of claims where hospitalisation is required. The one-year cap is also quite adequate as most injuries typically stabilise within a year from the accident. Employees who wish to claim the full medical expenses beyond the cap can choose to do so under common law. Needy cases can also approach the hospital's medical social worker for assistance on a case-by-case basis.

Mr Yeo and Mr Patrick Tay asked about the number of cases which were delayed because of workers switching between common law and WICA, and if the amendment would have expedited injury claims significantly.

As I have explained, MOM has seen a significant increase in the number of claims being re-filed more than one year after the accident, with some claims being re-filed some five to six years after the accident. With this amendment, injured workers will have one year to make a considered decision on their compensation options. We think this is a reasonable period of time because WICA – apart from being a no-fault regime - cannot provide unlimited flexibility to allow injured workers to switch between WICA and common law at any time.

Mr Yeo and Mr Tay also asked how MOM would ensure that workers are not disadvantaged by this amendment, particularly since a common law claim may take more than one year to conclude. Both Members may wish to note that injured workers who are unsuccessful at common law are not without recourse. An injured worker who is unsuccessful at common law, can request that the courts assess the WICA compensation due to him minus costs, and direct the employer to pay compensation. However, it helps if workers are clear about their choices and consequences when they decide to opt for a common law suit rather than WICA. It is important to understand that the landscape includes both WICA as well as recourse under common law.

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In this regard, Mr Zainudin Nordin and Mr Yeo Guat Kwang have suggested providing workers with independent advice on the compensation options available to them. MOM currently provides assistance to WICA claimants through a variety of means. These include making information on the WICA claims process more accessible, including through flyers in hospitals, and letters to claimants. We also provide claimants with the contact details of their case officers so that they can reach them directly if they need help or clarity on the process. Having said that, I agree with Members that we can and should constantly strive to do better to assist workers. And we have taken note of Members' suggestions and will work with stakeholders on improving the way workers receive advice on compensation claim matters.

Mr Zainudin also cautioned against pressuring workers to settle their claims and Mr Yeo has also pointed out that workers sometimes feel that they have no choice but to seek legal representation to settle their claims. I would like to state that legal representation is not necessary to file a WICA claim. Members can also take comfort and have the assurance that MOM does not pressure workers to settle their compensation claims just to close a case quickly. We do need to pay attention to and be careful of ambulance chases. But, I will reiterate, there is no legal representation required to file such claims.

I would like to thank Assoc Prof Fatimah Lateef for her suggestion to clarify when a worker can be compensated if he is injured coming to or going home from work. Currently, WICA already explicitly provides compensation for workers injured when they are travelling on employer-provided transport. There is no requirement for the employee to be performing tasks connected with his employment during the commute or for the route to be inherently dangerous, for the injury to be compensable.

I would like to add that foreign domestic workers (FDWs) are not covered under the Act. Foreign domestic workers are employed by households and typically work and live in the same premises. As a result, it will be difficult to determine whether any injury sustained in the premises was due to work-related activities or otherwise. While FDWs are excluded from WICA, they are still protected under the Personal Accident Insurance that every employer is required to purchase for his foreign domestic worker. The Personal Accident Insurance has a wider scope of compensation than WICA. It provides compensation regardless of whether the accident was work-related.

Mr Yeo Guat Kwang also asked MOM to give special priority to resolve the issue of injured foreign workers staying in Singapore whilst awaiting the outcome of their claims. I am aware of this issue, having visited both the Migrant Workers Centre and TWC2's Cuff Road Project earlier this month. There were some promising ideas raised during my visit to resolve this issue, and MOM will be quite happy to work with Migrant Workers Centre and other NGOs to find practical solutions to this issue.

Finally, Mr Yeo suggested strengthening WICA to provide workers the right to return to work. Apart from legislation, there are also other approaches to promote and facilitate a return-to-work for injured workers. For example, other jurisdictions, such as in California and British Columbia, have implemented voluntary return-to-work programmes. MOM will need to study this issue further to see what approach best suits Singapore's context.

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Sir, I believe we have addressed a number of the concerns and queries. I would like to reiterate that MOM has tried to ensure that the package of amendments is fair to all stakeholders. These amendments will improve the operation of the Act and ensure that the injured workers are not delayed in receiving compensation for their injuries. Once again, I would like to thank Members of the House for their support of the Bill and I beg to move.

Mr Deputy Speaker: Do you have a clarification, Mrs Lina Chiam?

Mrs Lina Chiam: Clarification, Sir. I would like to ask the Minister whether he could answer the question that I asked. What exactly count as chemical and biological agents?

BG [NS] Tan Chuan-Jin: Mr Deputy Speaker, I can provide the details subsequently but I would just like to elaborate that diseases arising from prolonged exposure to physical agents at work – which include radiation, noise, compressed air and so on – are well-established and already listed. We are including a range of these chemical and biological agents for compensation. In terms of details, we can provide the Member with them subsequently.

Question put, and agreed to.

Bill accordingly read a Second time and committed to a Committee of the whole House.

The House immediately resolved itself into a Committee on the Bill. – [BG [NS] Tan Chuan-Jin].

Bill considered in Committee; reported without amendment; read a Third time and passed.