EMPLOYMENT OF FOREIGN WORKERS (AMENDMENT) BILL

EMPLOYMENT OF FOREIGN WORKERS (AMENDMENT) BILL: Debate resumed.

Er Lee Bee Wah: Mdm Deputy Speaker, those who have been following recent events in Singapore will know that the construction industry has emerged from the shadows of the past. It has, in fact, seen a growth of 7.3% at current market prices for the first quarter of 2007. This is a great achievement compared to the last nine years where demand was low and unmoving.

Various factors contributed to this increase; certainly, the Government's economic policy, the push for more infrastructure projects, granting licences for the Integrated Resorts, and so forth.

As a

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result, the property market also responded positively, and a host of en blocs added to the demand for more construction activities, and hence more foreign workers.

Broadly, I am in support of the Bill to amend the Employment of Foreign Workers Act. However, there are aspects of the proposed amendments which I would like to share my views.

The rapid demand for new hotels, offices and houses put a demand on the contractors and developers to meet pressing deadlines. What this means is that they have to get the materials and commit more workers to the site. Delays can be very costly and result in penalties. Nonetheless, I agree that this pressing need must not be met at the expense of social order and security by allowing illegal overstayers to continue working in Singapore. But I would like to address certain issues that I feel would require greater attention to.

The proposed Bill will empower the Employment Inspectors to arrest without warrant both local and foreign suspects for severe EFWA offences. Such offences include illegal employment and provision of false information, to name a few. This power is further set to be absolute in terms of enabling these officers to enforce the proper use of restraint similar to that in the Criminal Procedure Code. I find that it would be prudent that such actions, when necessary, be enforced solely on the offending foreign workers. The use of handcuffing, detention and respective actions under the state code paints a too harsh picture for employers and company staff. The restraints to be applied should take into account whether or not the suspect is likely to attempt to flee. I think this will not be necessary for Singapore employers. Such actions will only seek to demean an employer and punish his integrity and reputation, even

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before he is given a proper chance to explain.

Foreign workers, though wanting to provide a living to support themselves or their families or for whatever reasons, are fully aware that entering a country illegally is a crime in itself. Desperation may be a powerful weapon. The reasoning loses meaning for an offender to consider fleeing arrest. Therefore, I feel that this exercise of power should be used and authorised only by the Police or any other senior staff of the Employment Inspectorate on a case-by-case basis.

The amendments proposed will see harsher penalties enforced. A maximum fine of $15,000 or 12 months' jail or both will be added on top of the current illegal employment penalty. I urge the Minister to consider a reduction in the enhanced penalties. With the large workforce on sites, the multiplier effects of the original penalty would have dealt a serious blow to the financial performance of any contractor, let alone the enhanced penalties.

The objective of the proposed amendments, I believe, is to serve as a deterrence to would-be offenders. I feel that there is sufficient deterrence as of now. Unless the intention is to close down the contracting firms altogether, then imposing such heavy penalties will have the intended effect.

I know that owners of these companies often delegate the groundwork to their operational managers. It will be too heavy a price to put on the owners should there be an oversight on the part of their managers. The increase in penalties enforced without proper justification at first sight will be duly unfair to these companies and workers.

Next, I want to dwell on the need to return the work pass after its cancellation.

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Today, we have modern technology which can easily trace whether or not a work pass is valid or has been cancelled. Why is there a need to return the cancelled work pass, when what matters is that the data in the Government records is updated? We are putting an additional imposition on the employers to recover the cancelled work passes and forward them to the Ministry of Manpower. Even for our passports, when they expire, we can just get a replacement without having to return the one that is cancelled.

Lastly, I want to know whether the Minister will consider allowing the work pass to be more generic so that the holder can multi-task and be allowed to perform related tasks, when necessary. As a country, we encourage job enlargement and multi-tasking, and I propose that the work pass of foreign workers be given a more generic role. For example, a construction firm should be allowed to use a worker at a work site to service his machines and equipment at another premises, so long as it is owned by the same company.

Madam, on this note, I support the Bill.

4.22 pm

Prof. Thio Li-ann: Mdm Deputy Speaker, I rise to support the Bill in general, although I have concerns about certain amendments which relate to how administrative actors under the Employment of Foreign Workers Act are held accountable in the exercise of their statutory powers. My major concerns are with the amended section 7.

The current Government policy is to encourage both highly skilled and unskilled foreign workers to come and work in Singapore to meet the labour shortfall. Laws must be lined up with the objectives behind labour policies for this

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to be successfully realised. As a major labour importing country in Asia, Singapore should recognise and honour the contributions made by foreign workers to our economic growth. These include those employed in low-paying jobs as domestic workers and workers in the construction industry who often face hazardous work conditions.

As a nation and aspiring civil and civil rights society, we must ensure that aliens and strangers who come to work in our midst are not oppressed or mistreated as disposable commodities. Indeed, the need to address issues of migration and migrant labour is a global one. Closer to home, Singapore and other ASEAN states adopted the ASEAN Declaration on the Protection and Promotion of the Rights of Migrant Workers in January 2007. The Declaration acknowledges the need to promote the dignity of migrant workers, to redress abuses and recruitment malpractices they are vulnerable to and to ensure they enjoy decent working and living conditions. In translating these aspirations into reality, we have promises to keep and miles to go before we sleep.

The Employment of Foreign Workers Act underpins the regulatory environment for managing foreign workers. The Act was designed to deal with the problems caused by employers seeking to evade regulatory measures, like the foreign worker levy, by illegally employing foreign workers without work passes or overstayers.

The current amendments under scrutiny pay some attention to issues of enforcement. The new section 22 introduces new offences involving active deception in the sale, forgery or unlawful alteration of a work pass. Aside from heavier fines and lengthy imprisonment terms, the amendments also confer extensive powers upon administrative officials to arrest without warrant.

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Under the old section 21, a police officer or employment inspector may arrest without warrant any person reasonably believed to be employed in Singapore while not in possession of a valid work permit. The amendment to section 21 extends this power of arrest without warrant beyond illegal workers, to include employers hiring foreigners without work permits, or who flout existing work permit conditions. It adopts a more holistic approach of targeting all culpable actors.

The power to arrest without warrant is far reaching as it affects personal liberty through bodily restraint or physical incarceration. Personal liberty is a fundamental liberty guaranteed to citizens and non-citizens under Article 9 of the Singapore Constitution. This requires that in depriving a person of personal liberty, this must be done in accordance with law. Laws must satisfy a constitutional standard of fairness.

This sort of broad discretionary power conferred by the Employment of Foreign Workers Act reflects the general expansion of centralised powers wielded by the administrative state. Discretion is essential to any regulatory regime. It allows an administrative official a legitimate margin of autonomy to apply his professional expertise to a case to ensure a good decision. Nevertheless, in a rule of law state, the need for checks and balances must be appreciated as discretionary power may be misused.

This harks back to the old conundrum of the problem of power, which raises two issues. First, governments must be empowered to govern effectively. Second, governmental power must be restrained to prevent abuses. As James Madison, the father of the US Constitution, noted, "If men were angels, no government would be necessary." How

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ever, men are not angels. While citizens may hope for the best to be ruled by a wise and benevolent platonic philosopher king or Confucian jun zi, prudence requires precautionary measures.

Law and legal institutions must be constructed to deal with worst-case scenarios - to leash the leviathan or absolute sovereign state that Thomas Hobbes wrote about, which wields formidable power that may be a precipice deployed. How then shall we bind the leviathan? One way to prevent the arbitrary abuse of discretion is to set conditions identifying when discretion may be legitimately or unlawfully exercised. A popular conception of discretion must be compatible with the rule of law, and must appropriately balance the values of fairness and efficiency. A statute can provide clear guidelines in this respect, as in new sections 21A, B and C. For example, handcuffs can only be used for specified purposes, excluding punishment. Further, to be lawful, the power to arrest and to search arrested persons must be exercised with strict regard to decency.

I raise my reservations chiefly in relation to the amended section 7 which governs work pass applications. The Controller has the power to grant or refuse to issue these permits or to vary the conditions. Although there is no constitutional or statutory right to be given a work permit, this still represents an important interest or privilege at public law, as the grant or refusal of a work permit implicates livelihood issues. The Controller cannot wield absolute power in handling work permit applications and must be accountable for how power is exercised. It usually falls to the court as the independent and impartial branch of the Government to determine when administrative actors, like the Controller, are acting within the four corners of their statutory powers as a matter of administrative law. The court will seek to

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ensure that the decision-making process satisfies common law test of rationality and fairness. Indeed, this is a facet of the rule of law, as the Court of Appeal stated, in the case of Chang Suan Su versus Minister for Home Affairs , the notion of a subjective or unfettered discretion is contrary to the rule of law. All power has legal limits and the rule of law demands that the court should be able to examine the exercise of discretionary power.

Under the current Act, if, for example, the Controller refuses to issue a work permit, section 7(4) provides an aggrieved employer a statutory remedy of appealing to the Minister. The Minister's decision is said to be final and cannot be questioned by any court. If this finality clause is literally interpreted, it would seem that the buck stops with the Minister, as part of the Executive branch. As the statute is silent, it is unclear whether an aggrieved applicant could still go to the courts to apply for a judicial review of the Controller's decision. Or under section 7(4), did Parliament intend only the Minister could correct a defective decision made by the Controller? If so, the aggrieved individual would hit a dead end in terms of remedies if the Ministerial appeal fails, and there would be no significant judicial role in controlling the bureaucracy.

This sensitivity arises as case law from other jurisdictions suggests that while there is a presumption that the aggrieved individual should first use an available statutory remedy rather than go for judicial review, that individual can apply for judicial review after unsuccessfully exhausting a statutory remedy. So, if the Controller does not grant a work permit and if the Minister upholds the Controller's decision, the aggrieved individual can then take the matter to court. Indeed, there are Commonwealth cases which have allowed individuals in appropriate cases to proceed directly to courts without even using an available

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non-judicial remedy, such as appealing to a Minister.

If the Controller's decision under the terms of the Employment of Foreign Workers Act is subject to judicial review, what are the grounds on which a decision may be challenged? There are conventionally three grounds of judicial review or three arrows which an individual can shoot in challenging the making of a decision. There are two substantive grounds of review - illegality and irrationality - and one procedural ground of review, that of procedural impropriety which concerns procedural fairness. A decision found to be illegal, irrational or procedurally improper is ultra vires or unlawful.

In sum, under the existing Act, it was unclear whether an aggrieved person could bypass the section 7(4) procedure of appealing to the Minister and go straight to court to ask for judicial review on any of the three grounds as described. Singapore's case law is, I think, not conclusive on this matter.

Under the new statutory regime, the old section 7(4) is substantially retained and recast as the new section 7(5). Persons may still appeal to the Minister from an adverse decision of the Controller, and the Minister's decision shall be final. In addition, a new provision amending section 7(6) is introduced. This provides that judicial review in a court of law does not lie against any decision of the Minister or Controller except for questions relating to compliance with any procedural requirement of this Act governing such decision.

What is the effect of this new provision? Two points are worth mentioning. Firstly, if my reading is correct, it seems that this provision clarifies the problem of whether section 7 decisions made by the Controller and Minister concerning Work Pass applications are subject to judicial

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review. It appears that the answer is yes. Therefore, there are two remedies for section 7 decisions made by the Controller where an existing work permit is revoked. Firstly, an appeal to the Minister and also applying for judicial review. Secondly, the new section 7(6) is a limitation clause. While it allows the judicial review of the Minister's and Controller's decision under section 7, it also truncates or limits the scope of judicial review and therefore weakens this check on administrative action. As stated, there are generally two heads of substantive review and one head of procedural review. New section 7(6) limits judicial review by precluding the substantive review of section 7 decisions. Only limited review is allowed to ensure procedural requirements are complied with. Effectively, the two arrows of substantive reviews are not available and only one arrow remains to challenge the decision for non-compliance with procedural requirements. I wonder what these procedural requirements might be and hope that the Minister can clarify this.

At any rate, an aggrieved applicant under section 7(6) may only apply for limited judicial review. If the rule of law postulates that the court should generally have the final say in determining the limits of legal power, then section 7(6), to some extent, departs from this principle. So it is understood. The reason why courts are usually the final arbiter on questions of law flows from the constitutional principle of the separation of powers. In Singapore, where the Cabinet effectively controls Parliament, the Legislature and Parliamentary Executive are fused, rather than separated. Thus, the exercise of judicial review by an independent judiciary to control the Executive branch assumes greater importance. By limiting the role of judicial review in controlling administrative action, the rule of law is qualified in so far as it seeks to ensure meaningful legal

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restraints on the exercise of political or administrative power. This does not mean that administrative actors like the Controller are not subject to checks. It just means that faith is primarily placed in the hands of non-judicial bodies like the Minister to control the Controller and secondarily to the courts. The presence of political rather than legal checks is quite typical of countries where Parliament is supreme. But, in Singapore, the Constitution is supreme.

If substantive judicial review is ousted under section 7(6), one might imagine a worst case scenario where there may not be a judicial remedy for a double dereliction of duty. Hypothetically, what would happen if the Controller acts in bad faith or acts irrationally in cancelling a work pass because the applicant has frizzy hair which he personally dislikes. Allegations of bad faith or irrationality are substantive errors and cannot be reviewed under the Act which only allows judicial review for procedural errors. Further, what happens if an aggrieved applicant appeals to the Minister who does not apply his mind to the matter and just agrees with the Controller's decision without carefully re-examining the case. The Minister could be acting unlawfully by failing to use his discretion but, again, would be exempted from judicial review, as this is a matter for substantive review. What other remedies are then available?

Limitation clauses which curtail judicial review may be found in other statutes. One that springs to mind is the Internal Security Act. Under section 8(b)(2) of the ISA, no judicial review lies against decisions of the President or Minister except for questions relating to compliance with any procedural requirements set out in the ISA. The proposed new section 7(6) bears a strong resemblance to this clause. Here, again, the reduced scope of judicial review qualifies the rule of law. However, a stronger case for limiting judicial review under the ISA

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compared to other Acts on at least two grounds can be made. First, ISA is an extraordinary law whose chief goal is to deal with acts undermining state security. Many states today have enacted laws permitting detention without trial to deal with terrorist threats. Such laws substantially curtail due process rights, placing the state above rather than under law. However, this derogation from the rule of law is justified on grounds of necessity of national security. Of course, national security must not be lightly invoked as the justification for limiting basic rights, as this must relate to an exceptional rather than an ordinary state of affairs.

Many countries grapple with striking the appropriate balance between liberty and security, not just Singapore. In this process, it is argued that judicial review should be limited as judges are not security experts and should stick to questions of law, not politics or security. Indeed, such matters should be entrusted to the Minister who is expected to act in a politically responsible manner.

Secondly, the Constitution is the supreme law and under that, Article 149 gives Parliament extraordinary legislative powers to enact anti-subversion laws. The ISA was enacted and legitimated under this constitutionally mandated special power, even though the ISA clashes with other constitutional provisions as it limits judicial review and suspends the enjoyment of certain fundamental liberties. I am concerned that section 7(6) of the Employment of Foreign Workers (Amendment) Bill does not stem from this sort of extraordinary legislative powers stemming from Article 149 of the Constitution. While the Employment of Foreign Workers (Amendment) Bill is designed to serve the national interest of Singapore, it is surely not a matter of national security. I wonder if the Minister could elaborate on why it is necessary to limit judicial review in respect of decisions taken by the rele

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vant administrative actors under section 7 of the amended Act.

We should be careful not to depart too readily from the constitutional law principle that administrative action should generally be subject to the legal control of the courts through judicial review, rather than relying on non-judicial methods of control, such as ministerial appeals. Both of course can co-exist. In fact, this would enhance the prospect of ensuring fair dealing between the individual and administrative state.

My final point is a suggestion on how to strengthen the statutory remedy of appealing to the Minister in relation to section 7 decisions. By analogy, judges are required to furnish reasons for their judgements which enable counsel to decide whether there are sufficient grounds for appeal. So, too, an aggrieved applicant under the EFWA needs to know, for example, why the Controller decided to revoke a work pass or to debar a person from applying for a work pass for a fixed period. This would help the applicant to evaluate whether or not to make an appeal. In certain Commonwealth jurisdictions, the common law has evolved the duty requiring administrative actors to give reasons for their decision. Of course, an administrator may informally choose to give reasons. However, it would be prudent to follow the best administrative law practices abroad where the duty to give adequate reasons has been codified by statute. Giving reasons is one of the fundamentals of good, open and rational administration. Further, telling a person why his application was rejected is to treat him with dignity, rather than impersonally as a member of a faceless mass of people.

I hope these considerations will be taken into account, if not for this Act, for future laws which confer regulatory powers on the administrative state which affect the lives and interests of citizens

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and foreign nationals dwelling within our borders. Such procedural safeguards will enhance the construction of good administrative procedure, promote good governance, protect interest and fortify the rule of law.

Other than the reservations expressed, I support the amendments in general.

4.40 pm

Dr Ng Eng Hen: Madam, I appreciate comments from Members of this House. First, I thank Members for affirmation of the widespread support for this Bill. Mr Yeo Guat Kwang said he strongly welcomes it, and there are other similar supporting statements that we are moving in the right direction, and MOM appreciates that. If I may address certain issues directly.

Mr Yeo, and some other Members, asked whether this Bill does, through perception, give the impression that we are protecting foreign workers more than local workers. The answer is, of course, no. This is not the only Act that provides protection for our citizens. We have the Employment Act and other measures as well, in terms of the Workfare system, etc. So it should not be seen narrowly in that sense.

Mr Yeo particularly welcomed the mandatory one-month jail for repeat offences and asked why similar offences of fraud or deception did not have such onerous penalties. The penalties are never cast in stone. We review them from time to time to see whether they are sensible or not. If you take what Ms Lee Bee Wah said, in fact, she responded on the opposite end, that it was too harsh. So there is a balance to be struck. But since I touch on the subject, let me just say that the penalties are never crafted de novo . We have to take reference from

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what the previous penalties were as well as in reference to other countries.

So are our penalties harsher, which is a point asked by Ms Lee Bee Wah? The answer is no. For example, the first conviction is a fine of up to $15,000 or 12 months' imprisonment. For Taiwan, the penalty is three years' imprisonment. So it is certainly much harsher. In Malaysia, it has 12 months' imprisonment; in South Korea, it is the same. So there is, if you like, a benchmark. At the end of the day, we will see how effective it is. I agree with Members that this allows us to implement the framework for enforcement is also important.

Mdm Halimah asked some questions. First, let me thank her for saying that this is a more coordinated and coherent framework. We agree. We wanted to consolidate the Acts together. Members would know from the statements that the enforcement was in two Acts - the Immigration and Employment of Foreign Workers Acts. It was not only cumbersome but administratively complex sometimes. So we have consolidated them today. She asked for this new definition of "trainee", whether it was meant to liberalise our policy. The answer is obviously not. This is a legislation to tighten up enforcement. The reason is that we are pre-empting, in other words, as employer and employee relationship changes, for example, like the personalised Employment Pass. This is a legislative umbrella to bring all foreign workers into and to apply the framework. So that was the main reason, and is certainly not a liberalisation. In other words, they would still have to comply with our Work Pass rules. But somebody can claim that he is not designated. He is outside the system and, therefore, he is not under this ambit. That particular clause clarifies it. We can dictate what kind of relationship it is and what you are, and then put you under this umbrella. That was the purpose for it.

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Mr Seah Kian Peng basically agrees with the law and he supported it, and he said the majority will comply. I thank him for his comments.

Let me address some points made by Ms Lee Bee Wah, in terms of powers of arrest. Let me just state, as some Members have noted, that under the Immigration Act - this is not new - MOM Employment Inspectors are already empowered to arrest without warrant local employers for EP offences. We can already do so for Employment Pass offences. But that was because it was under the Immigration Act. The Immigration Act governs the Employment Pass whereas the S Pass, Work Pass are under the EFWA. Therefore, we have consolidated them. We have just broadened and rationalised this. This is not something new. But, in effect, yes, she is right. We can also arrest local employers who commit offences for Work Pass and S Passes.

There were some concerns that now that we are given these enhanced powers, she conjured up images of offenders being handcuffed and then found out to be wrong. That can happen, and I would say that we are also concerned about this. We deliberated long enough whether actually we wanted these powers. The issue is not whether he is senior or whether he is authorised. The issue is training. I want to assure Ms Lee Bee Wah that

MOM too is concerned. Therefore, for checks and balances, we have harmonised our procedures with the Criminal Procedure Code, which is put in sections 21A, B and C. But, more importantly, our employment inspectorate officers are also trained to discharge these new powers professionally. In other words, we are not Dirty Harry, running around and just handcuffing people. That is not the idea. We want to be bound by SOPs and to be fair and judicious in the use of the power of arrest, just as we have under the current Act. To minimise

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overnight detention, the Act actually provides for the release of arrested persons on bail or personal bond. So I am very mindful of this as Minister. I want to make sure, and I have asked my staff, "Are you comfortable? Have you benchmarked yourself with the police and other people?"

Indeed, we are not alone, in terms of enforcement agencies who have this power. There are other agencies who also have powers of arrest without warrant. Customs officers, you know, but IRAS officers too. IRAS officers are able to arrest without warrant but, of course, it is done by SPF or Immigration officers for persons caught leaving Singapore without paying outstanding tax payments. Yes, we are concerned and, therefore, we want them to be properly trained, so let me assure Ms Lee Bee Wah about that.

Ms Lee Bee Wah has also said that the penalties of $15,000 and 12 months' jail are too harsh. Let me just clarify that it is not imposed on top of the existing penalty. Basically, we just separated the levy restitution and, yes, we have stiffened that with a $15,000 fine and 12 months' jail, but, as I benchmark with other countries, as I have mentioned, it is not overly harsh.

Ms Lee also asked why we need to return invalid work passes. The main reason is so that they would not be used for fraudulent purposes. The work pass has a premium in the market. Even if you disfigure it, people can still say that, "This is a work pass." So, that is the main purpose. It is a practical one.

Ms Lee has asked whether MOM allows work permits to be used for workers in the construction sector to be used more generically. I have liberalised it. Previously, they were only allowed to work in one worksite. We have, firstly, liberalised that to say that they can work

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in any worksite. Secondly, MOM has liberalised it to say that, with the workers' consent, they can work for more than one employer. That is basically just to increase productivity, with the caveat that safety of the foreign worker is protected and that the foreign worker agrees to it himself. So, yes, we have liberalised it.

Let me now touch on the points which Prof. Thio Li-ann mentioned. Let me first thank Prof. Thio for that wonderful dissertation. That was a very useful lesson in legalities, and I was quite thankful I did not take up law. Medicine is much simpler - a patient is well, not well, alive. But it was a very useful thesis on how complex it is, and I take her point: how do we want to craft our legislation in this House, the Bills that we want to enact, how much discretion, what should be under judicial review, how much powers do we give, etc. These are weighty things which shape our society.

First, let me assure Prof. Thio that the Controller will not withhold a work permit for someone because he does not like the colour of the hair. I have not, but, if you do know of any case, please let me know and I will act upon it, and subject to your review. But the purpose for excluding certain aspects from judicial review has its reasons. And, as Prof. Thio rightly pointed out, this Act is not the only one; the Immigration Act is an example of one where we have to protect certain national interests.

Prof. Thio has asked - I stand corrected but this is what I understood it - what can be excluded from judicial review. Our intention was that the Minister's and Controller's decisions relating to the issuance, revocation and suspension of work passes are excluded from judicial review in this scope. The actions outside the scope of section 7(6) are still subject to review, and that due

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process has been observed can be subjected to it. The reasons for this are obvious. Supposing we have information that someone might be engaging in suspicious activities, it may be hard to prove. They went through due process, they applied for the work permit, but, based on that information, I might not want to give it to that person. I can be subjected, if we do not have this rule that the issuance of the revocation can be subjected to judicial review. There are other circumstances. But this is not meant for frivolous use. There are specific aspects which we find that this is useful.

With that, Madam, let me thank Members again for their comments.

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. - [Dr Ng Eng Hen].

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