We are pleased to share some “crystal ball” predictions on employment trends we expect to see in Singapore in 2018. Among other trends, the momentum of the #MeToo movement is likely to trigger Singapore companies to implement measures designed to maximize a harassment-free work environment, and to take a more proactive approach in reviewing harassment policies, response plans and practices, and workplace culture. 

This LawFlash discusses the legislative regime governing harassment in Singapore and touches on other developments in 2018 heralding increased protection for freelancers in the “gig economy” as well as a wide cross-section of employees. Mediation also is likely to play centre-stage in 2018 as a form of dispute resolution for employment-related conflicts.

Impact of the #MeToo Movement

In light of the increased vocalisation of sexual harassment experiences in the wake of high-profile allegations of workplace misconduct and the global #MeToo movement, we have received more queries from companies interested in creating a harassment-free workplace, including requests to conduct workplace audits and to help implement appropriate reporting and investigative policies within the Singapore legal framework.

We expect this trend to continue as companies become increasingly aware of the need to implement appropriate sexual harassment policies to address what has historically been a culturally taboo subject in Singapore. Accordingly, we expect more companies to take proactive steps to implement protocols or scrutinise and revise existing policies to get ahead of the curve on this issue. We also expect companies to seek advice on how to navigate workplace harassment crises when they arise, as this is unfamiliar territory for most boards of directors and shareholders. This new wave of expectation that employers will actively address issues of sexual harassment is likely to pick up in the Singaporean employment space in 2018.

The key legislation in Singapore that governs harassment, including sexual harassment, is the Protection from Harassment Act (POHA).¹ The enactment of POHA abolished the common law tort of harassment in Singapore and introduced the (general) offence of harassment as any act that causes “harassment, alarm or distress”, and provided civil remedies related thereto. While POHA does not specifically address sexual harassment (and as such, does not outline the elements required to establish the offence of sexual harassment), unwanted and inappropriate workplace sexual requests/advances may be subsumed under the broader offence of harassment, with each case turning on the facts.

It is possible to initiate both criminal and civil actions at the same time under the POHA regime, which provides for both criminal penalties and civil remedies. Note that only some forms of sexual harassment will amount to a criminal offence, including acts that amount to “insulting the modesty of a woman”, “outrage of modesty”, or “criminal intimidation” under the Singapore Penal Code. Criminal penalties upon conviction include a fine and/or imprisonment.

Redress

Under POHA, a victim may seek legal (civil) redress by suing the respondent to receive monetary compensation. Section 11 of POHA, titled “Action for statutory tort”, provides that victims may bring civil proceedings under Sections 3 and 4 against the perpetrator. In such proceedings, if the court is satisfied on the balance of probabilities that the respondent has contravened the relevant statutory section, the court may award such damages in respect of the contravention as the court may—having considered all the circumstances of the case—think just and equitable.

Additionally, the victim may seek civil remedies by way of originating summons against the respondent such as a Protection Order (PO) or an Expedited Protection Order (EPO) under Sections 12 and 13 of POHA, respectively. A PO may be granted for contraventions of the POHA provisions in situations where the harassment is likely to continue or a fresh contravention is likely to be committed. In situations where the harassment is additionally likely to occur imminently and have substantial adverse effects on the victim or the victim’s day-to-day activities, an EPO also may be sought.

Reporting Obligations

Companies in Singapore are not required by law to report workplace harassment, be it of a sexual nature or otherwise.

A guideline titled “Tripartite Advisory on Managing Workplace Harassment” was issued in conjunction with POHA in 2015 and purports to set out best practices in this area. The advisory is aspirational rather than prescriptive in nature, and recommends that employers follow up on all harassment complaints promptly and, if necessary, assist the employee to file a police and/or magistrate’s report (the mechanism of complaint under Sections 3 and 4 of POHA).

The advisory advocates that companies adopt a zero-tolerance policy toward harassment. It also recommends that companies implement appropriate response procedures such as investigations to ensure early intervention and fair treatment. Companies should put in place a comprehensive investigation protocol to effectively deal with harassment complaints.

Revision of Company Employment Handbooks

In light of the rapidly changing employment landscape, we expect and encourage companies to revisit their employment handbooks to update/introduce content relating broadly to, among other things, the following:

1. Harassment and antidiscrimination policies
2. Whistleblowing policies
3. Investigative procedures and protocols
4. Revised data policy laws to be issued later in 2018 (see our September 2017 LawFlash on this subject)

Public Consultation for the Employment Act

The Ministry of Manpower (MOM) recently closed a public consultation on the proposed review of the Employment Act (EA). The thrust of the review was three-pronged, with the MOM seeking views on

• whether core provisions of the EA (e.g., public holiday/sick leave entitlement, timely payment of salary, and redress for wrongful dismissal) should be extended beyond current coverage afforded to professionals, managers, and executives (PMEs) earning up to S$4,500 a month;
• whether additional provisions of the EA (e.g., hours of work, overtime pay, and annual leave) should be extended beyond current coverage afforded to rank-and-file employees earning up to S$2,500 a month and manual labor workers earning up to S$4,500 a month; and
• streamlining existing dispute resolution mechanisms that require disgruntled employees to go before separate bodies to resolve salary and wrongful dismissal disputes.

The outcome of this public consultation could potentially have wide-ranging impact on human resources policies. A key thrust of the consultation relates to extending the protective ambit of the EA—both in terms of core provisions and additional provisions—to a wider cross-section of employees in Singapore. It is likely that the MOM will strengthen existing provisions of the EA and extend protections to better support the rights of workers. This would be in line with the strong push by the MOM and the tripartite partners to (1) discourage employers from adopting unfair human resources practices, (2) strengthen the employment framework by issuing guidelines covering various issues, and (3) “step up” on education and enforcement initiatives.

Changes to Dispute Resolution Landscape for Employment Disputes

We foresee shifts in the dispute resolution landscape for employment disputes with a view toward streamlining processes and expanding the scope of compulsory mediation as a precursor to other dispute resolution mechanisms. Indeed, one of the key planks of the MOM’s public consultation for the EA relates to the streamlining of dispute resolution mechanisms, particularly where current procedures require disgruntled employees to go before separate bodies to resolve salary and wrongful dismissal disputes.

Further, in light of press statements by Manpower Minister Lim Swee Say, we anticipate that 2018 will see the mandatory mediation regime for non-salary-related disputes extended to cover other employment-related disputes, including wrongful dismissal claims and disagreements over performance appraisals. Wrongful dismissal claims by PMEs who are not covered under the EA likely will be prioritised, as such claims are amongst the most common non-salary-related disputes raised.

Currently, the Employment Claims Act only provides for mandatory mediation of salary-related disputes, with other disputes being dealt with through voluntary mediation. Employers and employees with salary-related disputes are required to first register their claims at the Tripartite Alliance for Dispute Management (TADM) for mandatory mediation. Claims that cannot be resolved through mediation are then referred to the Employment Claims Tribunal.

The TADM was introduced in April 2017 and is being hailed as an outstanding success. In its first six months of operation, it conducted voluntary mediation for an estimated 100 cases which are not covered by law but which could be guided by contract or industry norms. Of these 100 cases, 70 were successfully resolved via voluntary mediation. The success of this form of dispute resolution in non-salary-related disputes has served as impetus to further expand mandatory mediation to cover such situations.

Increased Safeguards for Freelance Workers

The recent emergence and growth of “sharing economy” platforms—particularly in the food delivery and transport industries—has seen more Singaporeans freelance as their primary or secondary source of income. The growing and evolving freelancing landscape in Singapore is placing increasing pressure on the MOM to safeguard the interests of such workers. We anticipate that 2018 will see increased protection of the rights of self-employed freelancers, with the expectation that some of the recommendations and best practices will be crystallised into legislation or formal Tripartite Standards.

In March 2017, the Tripartite Alliance for Fair and Progressive Employment Practices released a Tripartite Standard titled “Procurement of Services from Media Freelancers”. The rationale behind protecting media freelancers is that the project-based nature of the media industry lends itself to freelancing. This standard is intended to encourage fair and progressive company practices and to provide better support for media freelancers in four key areas—written contracts, timely payment, insurance, and dispute resolution. From 1 April 2018, companies need to adopt this Tripartite Standard in order to qualify for grants from the Info-Communications Media Development Authority and for funding for Public Service Broadcast content. Using the adoption of the Tripartite Standard as a qualifying criterion for grants sends a strong message about the increasing importance of the standards, even though they do not have the force of law and are aspirational in nature.

There is a growing urgency to extend similar protections to freelancers in other industries, including private tutors, private hire car drivers, working proprietors (e.g., photographers, blogshop owners, insurance sales agents, hawkers/stall holders, and others). Recognising the lacuna in both coverage and knowledge, the Singapore Law Society’s Pro Bono Services published a legal handbook titled “Advocates for the Arts” (AfA)². The aim of the AfA handbook is to contextualise and explain legal issues relevant to the creative arts industry to safeguard workers in the arts from common exploitative practices such as nonpayment or late payment.

Acknowledging the shortfall in protections afforded to freelancers, the Tripartite Alliance issued recommendations on 22 February 2018, which include the following:

• Offering insurance products that provide daily income during prolonged illness/injury
• Promoting the adoption of insurance in higher-risk jobs by making it a licensing requirement or a standard provision in government procurement contracts that such insurance is required
• Exploring a new Medisave model that allows freelancers to contribute to the medical savings scheme as they earn
• Issuing a Tripartite Standard recommending that companies publicly commit to using written contracts with freelancers which enshrine certain key employment terms, provide more avenues to mediate payment-related disputes through sector agencies, and extend the TADM’s voluntary mediation services to freelancers (see the section on mediation above)

We expect these safeguards to be crystallised in the form of a Tripartite Standard extending beyond just media freelancers and/or finding its way into the amended EA (we will be publishing a LawFlash dedicated to this topic soon).

Continued Focus on Singapore’s Local Workforce

Recent changes give us reason to expect a continued focus on developing Singapore’s local workforce, coupled with tighter controls on work passes and work pass privileges granted to workers from outside the country. On the heels of the increased salary qualifying criteria for Employment Pass holders from S$3,300–$3,600 that came into effect on 1 January 2017, 1 January 2018 saw the increased salary qualifying criteria for Dependent Pass privileges coming into effect. Under the revised criteria, work pass holders must meet a minimum fixed monthly salary of S$6,000 to sponsor spouses and children on Dependant Passes, and a monthly minimum of S$12,000 to sponsor parents on Long-Term Visit Passes.

This year looks to be an exciting one for the Singapore employment landscape, and we look forward to seeing which of our 2018 predictions materialise.

1. Chapter 256A, 2014

2.  Morgan Lewis Stamford is proud to have contributed two chapters to the AfA.