22 recommendations for workplace fairness legislation in Singapore

This would include supporting employers in hiring persons with disability and seniors, and prohibiting retaliation against those who report cases of workplace discrimination or harassment.

Singapore's government has accepted the final set of recommendations by the Tripartite Committee on Workplace Fairness for the Workplace Fairness Legislation (WFL). 

As shared by the Ministry of Manpower (MOM), workplace discrimination remains "a concern" amongst some jobseekers and employees in Singapore today. The Tripartite Alliance for Fair & Progressive Employment Practices (TAFEP) received 264 complaints of discrimination in 2022. The most common grounds of discrimination were noted to be:

1. nationality,
2. age,
3. sex, marital status, pregnancy status, caregiving responsibilities,
4. race, religion, language, and
5. disability, mental health conditions.

As a way to strengthen the overall framework for workplace fairness, the Tripartite Committee released its interim report earlier this year in February, which broadly outlined its key recommendations for the WFL. Following this release, the final report had since benefited from consultation and engagement with stakeholders, including employers, employees and the HR community, MOM shared.

Apart from strengthening protections against discrimination and providing assurance to workers that they can come forward to report without fear of retaliation, the WFL will also ensure that employees and jobseekers have fair access to job opportunities. MOM affirms that the proposed legislation will benefit employers, employees and society at large:

1. For employers – By implementing fair employment practices, employers will benefit from a more productive and engaged workforce, a more harmonious workplace, and be better able to attract and retain talent, contributing to stronger business outcomes.
2. Fotr employees – The legislation will strengthen protections against discrimination and help ensure that workers are fairly considered for job opportunities. The legislation will also give more assurance to workers that they can report workplace discrimination or harassment without fear of retaliation.
3. For society – Social cohesion is strengthened when unfair treatment is addressed. This is especially important in a multi-racial, multi-religious society, and a diverse workforce.

With this in mind, the recommendations of the committee are guided by the following principles:

1. Introduce workplace fairness legislation to complement the TGFEP and not replace it. The TGFEP remain an important part of our workplace fairness framework that set out the positive principles of fairness for employers.
2. Scope legislation appropriately to foster strong employer ownership and support fair and just workplace outcomes for employees.
3. Give more assurance to workers that they can report workplace discrimination or harassment without fear of retaliation.
4. Support national objectives and permit genuine occupational needs to be considered in employment decisions.
5. Preserve workplace harmony and maintain a non-litigious workplace culture, with mediation as the preferred approach to resolve disputes.
6. Ensure that discriminatory employers face appropriate enforcement action, and provide redress to individuals who have been discriminated against.

There are a total of 22 recommendations, classified into four thrusts.

Key Thrust A: Strengthen protection against workplace discrimination

Recommendation one: Define discrimination as making an adverse employment decision because of any protected characteristic.

This newly introduced recommendation follows feedback that the definition of discrimination should be made clear. While legal drafting will commence after the final report, the Committee’s view is that the legislation will cover direct discrimination, which can be defined as making an adverse employment decision because of any protected characteristic.

Recommendation two: Prohibit workplace discrimination in respect of the following characteristics:

1. age,
2. nationality,
3. sex, marital status, pregnancy status, caregiving responsibilities,
4. race, religion, language; and
5. disability and mental health conditions (“protected characteristics”).

As affirmed by the Committee, providing stronger protection against discrimination on these grounds supports Singapore’s key social and economic objectives.

• Age: As an ageing society, supporting the employment of senior workers is critical.
  
  
• Nationality: Protection against workplace discrimination because of nationality helps ensure that the workforce in Singapore is fairly considered for job opportunities, while foreigners play a valuable role in complementing our local workforce.
  
  
• Sex, marital status, pregnancy status, caregiving responsibilities: Prohibiting workplace discrimination in these areas is important to increasing women’s participation in the workforce, promoting marriage and parenthood aspirations and supporting caregivers. For clarity, the Committee recommends that the definition of ‘pregnancy’ covers women during pregnancy, including the period of statutory maternity leave, and those who are breastfeeding. The protection also applies to women who express a desire to bear children.
  
  For the definition of ‘caregiving responsibilities’, the Committee recommends that it covers individuals who provide care for a family member in need, including but not limited to parents and in-laws, a spouse, biological and step-children.
   
• Race, religion, language: In a multi-racial and multi-religious country, MOM deems protection against workplace discrimination on the grounds of ‘race’, ‘religion’ and ‘language’ as fundamental.
  
  
• Disability and mental health conditions. Protecting against workplace discrimination on the grounds of ‘disability’ supports the national effort to help more persons with disability join and remain in the workforce. Protecting against workplace discrimination based on ‘mental health conditions’ is also important to the objective of strengthening the employment and employability of persons with mental health conditions, in line with national initiatives to support the mental health and wellbeing of individuals.

Recommendation three: Retain and enhance the Tripartite Guidelines on Fair Employment Practices (TGFEP) to work in concert with legislation.

While the new legislation will define prohibited discriminatory acts in respect of the protected characteristics, the TGFEP will continue to uphold overarching principles of fair and merit-based employment and stand against all forms of discrimination. Per MOM's belief, it is better to retain the TGFEP and set down expectations for employers to achieve these broad principles of fairness rather than require them to comply with what is specifically prescribed or proscribed in the law.

The Committee notes feedback that the levers under the TGFEP should be strengthened, as the current lever of suspension of work pass privileges may not be a sufficient deterrent to employers that do not hire foreign workers, or may be insufficient in very serious cases where stronger sanctions are warranted. While the employers TAFEP engages on workplace discrimination matters are generally cooperative and will abide by instructions to correct errant practices, Singapore will nonetheless find new ways to take stronger enforcement action against the small minority of non-cooperative employers.

Apart from suspension of work pass privileges, on a case-by-case basis, MOM may apply additional measures such as publicly naming employers involved in egregious cases.

Recommendation four: Cover all stages of employment, i.e., the pre-employment (recruitment), in-employment (e.g. promotion, performance appraisal, training selection) and end-employment (e.g. dismissal) stages (“employment decisions”).

Provision of employee benefits will not be covered under the legislation. This is to give employers the flexibility to continue to implement progressive practices such as providing additional leave or healthcare benefits for employees who need them more

Recommendation five: Prohibit the use of words or phrases in job advertisements that indicate a preference for a protected characteristic. 

This is so that job advertisements remain focused on job requirements. Still, the Committee recognises that there are jobs where an intrinsic preference for a protected characteristic can be a reasonable job requirement. For example, language teachers should be proficient in the language that they are teaching and the employer can state language proficiency as a job requirement in advertisements. However, the employer must state the job requirement (e.g., “Tamil-speaking”) as opposed to the protected characteristic that is not the job requirement (e.g., “Indian teacher”).

Recommendation six: Legislate the job advertisement requirement for submission of Employment Pass and S Pass applications under the existing Fair Consideration Framework.

The existing FCF sets out requirements for all employers in Singapore to consider the workforce in Singapore fairly for job opportunities. This new recommendation aims to continue to promote fair hiring and improve labour market transparency.

Recommendation seven: Prohibit retaliation against those who report cases of workplace discrimination or harassment.

For clarity on what constitutes workplace retaliation, the legislation would specify in law the retaliatory actions that would constitute a breach. 

The Committee recommends prohibiting the following retaliatory behaviours:

• Wrongful dismissal
• Unreasonable denial of re-employment
• Unauthorised salary deduction
• Deprivation of contractual benefits
• Harassment 
• Any other act done to victimise the individual who made the report (i.e., single out the individual for unjust treatment)

Employers who retaliate against individuals who report workplace discrimination and harassment should face enforcement action.

Recommendation eight: Update the TGFEP to clarify that service buyers (e.g., property management companies) and intermediaries (e.g., platform companies providing matching services) should not discriminate by selecting candidates based on characteristics that are not related to the job.

Work opportunities should be fair and merit-based. For example, buyers of security services should not specify discriminatory requirements in their tenders (e.g., security guards younger than a certain age), and platform operators should not discriminate when allocating work to platform workers.

Key Thrust B: Provisions to support business/organisational needs and national objectives

Recommendation nine: Allow employers to consider a protected characteristic in employment decisions if it is a genuine and reasonable job requirement.

Recommendation 10: Exempt small firms (<25 employees) from the legislation for a start, to be reviewed in five years.

This approach recognises that smaller firms may not have the expertise and resources to fully implement the legislated requirements at the start. With this exemption, the legislation will still cover 75% of employees.

The Committee also recognises the concern that this exemption may inadvertently lead to small firms prioritising other matters and failing to improve their HR practices and stamp out discriminatory behaviours. TAFEP and its partners, including SNEF, the Institute for Human Resource Professionals (IHRP), and Singapore Human Resource Institute will work together to support small firms in their journey to ramp up capabilities so that they are able to implement the legislated requirements in time to come. These measures may include:

1. TGFEP and workplace fairness legislation modules in the Fair and Progressive Employment Index for employers to check if their employment practices are in line with the TGFEP and legislation respectively. Employers will receive actionable insights as well as recommended resources, training and assistance that would be relevant to them.
2. A new one-stop resource page on TAFEP’s website to house all legislation-related resources to guide employers, employees and HR.
3. Briefings, clinics and webinars, including those catered specifically to small and medium enterprises (SMEs), to build understanding of the TGFEP and upcoming legislated requirements and their applications for organisations, as well as to share best practices.

Recommendation 11: Allow religious organisations to make employment decisions based on religion and appropriate religious requirements (i.e.,conformity with religious beliefs and practices).

This discretion will only be granted to the tightly scoped group of religious organisations set out above, and they should exercise this discretion responsibly.

Recommendation 12: Support employers in hiring persons with disability and seniors (55 years or above).

This, it was shared, is in line with the ongoing tripartite agenda to promote and facilitate employment opportunities for these groups.

Existing efforts to support fair representation in the workplace, such as through ensuring access to education, upskilling, and job opportunities will continue to support these groups.

"The Committee is supportive of policies that seek to make firms more inclusive. For example, some companies may have policies to address the under-representation of women in management roles. Such policies are acceptable so long as jobseekers and employees are treated fairly and objectively, and recruitment and promotion decisions are still merit-based.

"Employers can expand recruitment efforts to attract more female applicants, but cannot select a woman over a more qualified man for a position. Employers may also consider the unique strengths of each candidate, and the value of the diverse perspectives and experiences that they may bring to the team."

Recommendation 13: Issue Tripartite Advisory on providing reasonable accommodations to persons with disabilities.

Under this new recommendation, in addition to prohibiting workplace discrimination on the basis of disability, the Committee recommends issuing a Tripartite Advisory on providing reasonable accommodations to persons with disability. Reasonable accommodations are adjustments to the job or work environment that make it possible for employees with disabilities to perform their jobs, such as providing a hearing loop system for hard-of-hearing employees, and installing ramps for employees needing wheelchairs.

For clarity, ‘reasonable’ counts as when they help persons with disability perform essential job functions, do not impose undue burden to the employer, and do not change the fundamental nature of the business.

Key Thrust C: Processes for resolving grievances and disputes while preserving workplace harmony

Recommendation 14: Require employers to put in place grievance handling processes. Employers should also protect the confidentiality of the identity of persons who report workplace discrimination and harassment, where possible.

Having proper grievance handling processes at the firm level also prevents unnecessary escalation, in line with the guiding principle to maintain a non-litigious workplace culture.

The proposed grievance handling requirements to be legislated include:

1. Putting in place a proper inquiry and documentation process,
2. Informing employees of the firm’s grievance handling procedures,
3. Communicating the outcome of the inquiry to the affected employee, and
4. Protecting the confidentiality of the identity of persons who report workplace discrimination and harassment, where possible.

Recommendation 15: TAFEP continues to serve as the first port of call outside the firm for workers who experience discrimination.

MOM encourages employees to seek assistance within the firm through the firm’s internal grievance handling processes first before approaching TAFEP so that most cases can be addressed amicably within the firm.

To lodge a workplace fairness claim, as with most other employment disputes, the claimant should provide prima facie evidence to support the claim that discrimination has occurred:

1. The claimant should clearly cite the incident(s) that led him/her to believe that he/she suffered an adverse employment outcome because of a protected characteristic; and
2. The cited incident(s) should show how the consideration of the protected characteristic led to the adverse employment outcome.

Recommendation 16: Require compulsory mediation for workplace discrimination claims at the Tripartite Alliance for Dispute Management first, with adjudication at the Employment Claims Tribunals (ECT) as a last resort.

Such cases could be challenging to mediate, but the aim is still to resolve most cases at mediation, in line with the guiding principle to maintain a non-litigious workplace culture. In addition, seeking an amicable settlement supports the preservation of the employment relationship where it is still practicable.

Recommendation 17: Unions to continue to play a constructive role in dispute resolution for workplace fairness. Allow unions to support their members in the claims process similar to other employment claims today.

Union members facing discrimination may obtain advice from NTUC or their respective unions and associations. The Committee added that NTUC and its affiliated unions and associations can reach out to firms to help members resolve their cases at the earliest possible stage. Where cases remain unresolved, NTUC and its affiliated unions and associations can support members through the dispute resolution process.

As with other employment claims today, union members’ claims will also have a higher claims limit for in-employment and end-employment claims.

Key Thrust D: Ensuring fair outcomes through redress for victims of workplace discrimination, and appropriate penalties for breaches

Recommendation 18: At TADM mediation, the focus should be on educating employers on correct practices and mending the employment relationship where practicable, and not primarily monetary compensation.

Parties could explore non-monetary remedies, such as the employer reinstating an employment offer, the employer providing an apology and the employer committing to reconsider the employee for another job.

Recommendation 19: Provide for monetary compensation for eligible claims.

The Committee recommends that the ECT be allowed to order a compensation amount up to:

• S$5,000 for pre-employment (recruitment) claims. This compensation amount takes into account the discrimination act affecting the applicant, while acknowledging that there is no employment relationship yet.
• S$20,000 for non-union members and $30,000 for union-assisted claims in recognition of the role of unions in the claims process, for in-employment (e.g.,. promotion) and end-of-employment (e.g. dismissal) claims. These mirror the ECT’s limits for wrongful dismissal claims.

Recommendation 20: Empower the ECT to strike out frivolous or vexatious claims, and/or award costs against such claimants.

If there is no evidence to suggest that discrimination had taken place, TADM will inform the employer that he may attend mediation or opt to ‘fast track’ the case to the ECT for a more expeditious resolution of the case.

Recommendation 21: Where the claim involves a suspected serious breach of the workplace fairness legislation, allow the State to concurrently conduct investigations with a view to taking enforcement action.

This means that errant firms are liable for discrimination claims by individuals who seek redress, and additionally for enforcement action to penalise errant employers and deter others from similar breaches.

Recommendation 22: Provide a range of penalties including corrective orders, work pass curtailment and financial penalties that can be imposed against firms and/or culpable persons, depending on the severity of breach.

The Committee recommends the following enforcement levers, in order of increasing severity of the breach:

Low severity: Corrective Orders issued by the MOM requiring, for example, firms to review their hiring processes, and individual employees to attend corrective workshops. Such breaches are likely the result of individual actions and indicative of potential gaps in human resource processes.

Moderate severity: Administrative Penalties (APs) imposed by MOM, of up to a few thousand dollars. APs will generally be imposed for repeat breaches that indicate a lack of attention/care by both the firm and individuals on rectification of errant practices.

High severity: Civil penalties. For the most serious cases where a firm or decision maker shows clear intent to discriminate in a systemic manner, MOM may bring an action, against the firm/decision-maker in the Courts, where larger financial penalties may be imposed.

As a whole, the committee’s recommendations are aimed at entrenching the fair employment standards and strengthening key areas in Singapore's framework. The TGFEP will also be retained and enhanced to work in concert with legislation.

Minister for Manpower, Dr Tan See Leng, who co-chairs the committee, commented: “The Workplace Fairness legislation marks a significant step in Singapore employment law, and it will be scoped to achieve three wins: preserve harmonious workplaces, better protect workers, and support business growth in Singapore.

"Our approach places emphasis on giving redress to the worker who experienced discrimination while preserving workplace harmony and relationships."

Patrick Tay, Assistant Secretary-General, NTUC, a Committee member, added: "Legislation will serve as a deterrent to would-be perpetrators and provide a protected, economical, and accessible way to report and take action against discrimination in the workplace. We will require strong communication with both employers and employees, recognising and appreciating the provisions, processes and protocols of the legislation, in order for this upcoming new piece of law to be effective and successful."

Lead image / Minister for Manpower Dr Tan See Leng Facebook