Singapore: Employment – Discrimination Laws, Progressive Wages and More Rule Changing Updates (August 2021)

In the past week, there have been important employment updates. At the National Day Rally, the Prime Minister (“PM”) announced various developments, and one game-changer is that workplace discrimination will soon be prohibited under legislation. We set out our comments on the highlights of these developments below, as well as on the update to the advisory on COVID-19 vaccination at workplaces, for your urgent attention. 

A.Workplace discrimination to be prohibited by legislation

1.Currently, the Tripartite Alliance for Fair & Progressive Employment Practices (“TAFEP”) sets out guidelines prohibiting workplace discrimination. Where employers violate the guidelines, they are subject to ‘soft’ measures, such as having their work-pass application privileges revoked. The Prime Minister (“PM”) has announced that these guidelines will be enshrined under hard law. A new tribunal, similar to the Employment Claims Tribunal, will be created to deal with workplace discrimination.This is a major and important development, signaling zero tolerance for workplace discrimination. With a clear avenue to seek legal redress for real or perceived issues, employees or job candidates will be more willing to do so. We urge employers to re-inspect their existing policies and ground operations to ensure that they do not practise discrimination or come across as such. This must be done very carefully.

B.Lower wage workers (“LWW”) to earn more under Progressive Wage Model (“PWM”)

2.The PWM sets out minimum wages for specific LWW.  Currently, the PWM covers the following sectors only: security guards, landscaping workers and lift maintenance workers. In 2022, the PWM will cover more sectors, including retail, food services, and waste management. The PWM will also cover specific occupations acrossALL sectors, starting with administrative assistants and drivers. The change to include specific occupations means thatALL employers are potentially affected, depending on how the specific occupations are finally defined. Employers must monitor these developments and plan ahead carefully.

C.Local Qualifying Salary (“LQS”) to be paid to all local employees; Tightening of Work Pass criteria

3.         Currently, employers hiring foreign workers pay a LQS to some of their local employees, depending on how many work permits or S-passes they require. Moving forward, so long as the employer wish to hire any foreign employee, the employer must payALL their local employees the LQS, which is currently S$1,400. With this change, employers must review the cumulative impact to cost if it wishes to hire a foreigner. As this will impact the number of work pass applications required, we highlight that businesses must plan ahead.

D.Updated Advisory on COVID-19 Vaccination at the Workplace (“Vaccination Advisory”)

4.          In other developments, the MOM has updated the Vaccination Advisory on 23 August 2021. Amongst other things, specific sectors will be subject to the “vaccinate or regular test” (“VORT”) regime. These are the healthcare, eldercare, settings with children 12 years and below, sectors that interact with customers in higher-risk mask-off settings (e.g. F&B establishments, gyms and fitness studios, and personal care service). The VORT regime comes into effect from 1 October 2021.

5.Apart from the specified sectors, the Vaccination Advisory also encourages all employers to consider voluntarily adopting the VORT regime, for current and new employees. Under VORT, employers may, in consultation with the unions (as may be applicable), adopt differentiated workplace measures for vaccinated and unvaccinated employees. This includes, amongst other things:

• subjecting unvaccinated employees to increased testing frequencies;
• requiring unvaccinated employees to undergo pre-event testing;
• redeploying unvaccinated employees to lower-risk job roles;
• requiring unvaccinated employees to pay costs such as for additional testing, or costs for SHN that are over and above those required for vaccinated employees, etc;
• requiring unvaccinated employees to use annual leave rather than medical leave entitlement in certain situations; and
• excluding them COVID-19-related medical benefits such as insurance coverage.

6.The Vaccination Advisory states and we emphasise that under “no circumstances should an employer terminate or threaten to terminate the service of an employee on the basis of vaccination status alone”. We highlight that businesses must consider whether the range of differentiated measures have been implemented before it goes down the road of termination. Otherwise, the risk of a wrongful dismissal claim is real.

7.In the above connection, the Vaccination Advisory states the employers may resort to contractual termination if unvaccinated employees do not comply with “reasonable” differentiated measures. We highlight that what is reasonable will depend on the specific facts. Businesses must consider each case on its own facts as they will be different, depending on the role, age and vulnerability of the employee, as well as the reasons for not vaccinating and not complying with differentiated measures. Businesses must also ensure that any differentiated measures are reasonable and implemented judiciously. Otherwise, another risk is that employees resign and later claims that he or she was constructively dismissed.

The above developments are very significant and have legal ramifications. If not already done, we strongly urge employers to review their: (i) policies and processes in relation to identifying and preventing workplace discrimination; (ii) forward plans, budgets and headcounts in relation to LWWs’ salaries and foreign worker headcounts; and (iii) COVID-19 plans on differentiated measures for non-vaccinated employees.

By Kala Anandarajah, RAJAH & TANN LLP, Singapore, a Transatlantic Law International Affiliated Firm. 

For further information or for any assistance please contact singapore@transatlanticlaw.com

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