Statutory Obligations of Statutory Obligations of Employers in Singapore – Part Employers in Singapore – Part

11Note: parts in bold are Note: parts in bold are

new and not reflected in new and not reflected in textbooktextbook

Seminar 6Seminar 6

Employment Act : CoverageEmployment Act : Coverage Among other things, the Employment Act, accords certain Among other things, the Employment Act, accords certain

protections to “employees”, a term which is defined in section 2 protections to “employees”, a term which is defined in section 2 of the Employment Act.of the Employment Act.

However currently, the following employees are excluded:However currently, the following employees are excluded: Government employeesGovernment employees Statutory Board employeesStatutory Board employees Domestic Workers Domestic Workers Any person employed in a managerial or executive position (but Any person employed in a managerial or executive position (but

note: note: if you are earning $4500 or less, you are covered, if you are earning $4500 or less, you are covered, even if you are a manager or executiveeven if you are a manager or executive).).

Why are “managers or executives” Why are “managers or executives” generallygenerally excluded? excluded? Who is a “manager or executive”?Who is a “manager or executive”?

If covered, does it matter that the employee is a foreigner or part-If covered, does it matter that the employee is a foreigner or part-time worker or on probation? time worker or on probation?

Case ExamplesCase Examples Stansfield v Stansfield v

MinsiterMinsiter Lecturer in private Lecturer in private

institutioninstitution No evidence of No evidence of

managerial duties or managerial duties or procession of procession of confidential confidential information.information.

Degree HolderDegree Holder

Brightway v Ang Brightway v Ang LilyLily

““Accountant”Accountant” No supervisory dutiesNo supervisory duties Did not have staff Did not have staff

under her control and under her control and did not have access to did not have access to confidential confidential information or trade information or trade secretssecrets

Diploma Holder.Diploma Holder.

Does the Employment Act entitle an Does the Employment Act entitle an employee to get the following?employee to get the following?

Minimum Wage?Minimum Wage? Retrenchment Benefits?Retrenchment Benefits?- Express Contractual RightExpress Contractual Right- Implied Contractual Right?Implied Contractual Right? Salary Increments/Adjustments? Salary Increments/Adjustments? - Express Contractual RightExpress Contractual Right- Implied Contractual Right?Implied Contractual Right? But whatever the legal right, But whatever the legal right, can still negotiate. In this can still negotiate. In this connection, note: National Wages Council connection, note: National Wages Council

(NWC)(NWC)

Part IV of the Employment Act: Leave/Hours of Part IV of the Employment Act: Leave/Hours of Work/etcWork/etc

Matters such as annual leave/hours of work/etc are contained Matters such as annual leave/hours of work/etc are contained in Part IV of Employment Act.in Part IV of Employment Act.

Part IV– only applies to employees as defined in the Part IV– only applies to employees as defined in the Employment Act and earning $2500 or less a month Employment Act and earning $2500 or less a month oror who are workmen and earning $4500 or less a month. who are workmen and earning $4500 or less a month.

Even then Part IV - does not apply to executives and Even then Part IV - does not apply to executives and managers.managers.

Who is a “workman”?Who is a “workman”? Eg: is a secretary earning $2700 covered?Eg: is a secretary earning $2700 covered? Eg: is a bus-driver or electrician earning $2500 covered?Eg: is a bus-driver or electrician earning $2500 covered? Breach of provisions of Part IV – involves commission of an Breach of provisions of Part IV – involves commission of an

offence.offence. For employees not covered by Part IV, such matters must be For employees not covered by Part IV, such matters must be

determined by looking at the express/implied terms of the determined by looking at the express/implied terms of the contract.contract.

Part IV of the Employment Act: Part IV of the Employment Act: Rest DaysRest Days

Entitled to one day of rest in a week. Entitled to one day of rest in a week. Rest day can be Sunday or such other day as Rest day can be Sunday or such other day as

determined by the employer.determined by the employer. Not entitled to be paid on rest day. Is this more Not entitled to be paid on rest day. Is this more

significant for daily rated workers or monthly significant for daily rated workers or monthly rated workers?rated workers?

However, if employee works on a rest day, However, if employee works on a rest day, entitled to more pay. The rate of pay varies with entitled to more pay. The rate of pay varies with whether the employer requests the work or the whether the employer requests the work or the employee requests the work and the number of employee requests the work and the number of hours workedhours worked..

Part IV of the Employment Act: Hours of WorkPart IV of the Employment Act: Hours of Work Generally cannot work more than 8 hours a day Generally cannot work more than 8 hours a day oror 44 44

hours a week. hours a week. - Eg: if you work for 8 hours, Monday to Thursday but 10 - Eg: if you work for 8 hours, Monday to Thursday but 10

hours on Friday, has the limit been exceeded?hours on Friday, has the limit been exceeded? However, there are exceptions to the rule; eg: 5-day work-However, there are exceptions to the rule; eg: 5-day work-

week; shift-work.week; shift-work. Does the maximum hours include: breaks (eg: lunch), Does the maximum hours include: breaks (eg: lunch),

handing/taking over shifts? handing/taking over shifts? If works more than maximum permitted: generally entitled If works more than maximum permitted: generally entitled

to overtime pay of at least 1.5 x basic hourly rate of pay.to overtime pay of at least 1.5 x basic hourly rate of pay. But note: But note: generallygenerally cannot be required to work for more cannot be required to work for more

than 12 hours in a day than 12 hours in a day or or do overtime work for more than do overtime work for more than 72 hours in a month.72 hours in a month.

If you work overtime, can they give you time-off instead If you work overtime, can they give you time-off instead of overtime pay?of overtime pay?

Part IV of the Employment Act: Part IV of the Employment Act: Annual LeaveAnnual Leave

Served more than 3 months:Served more than 3 months:- 7 days for 17 days for 1stst 12 months 12 months- Thereafter one additional day every Thereafter one additional day every

year subject to max. of 14year subject to max. of 14 Entitled to be paid in respect of leave Entitled to be paid in respect of leave

days.days. Can leave be carried forward? Can leave be carried forward? Generally can unused leave be Generally can unused leave be enchased?enchased?

Entitlement to Payment/Additional Entitlement to Payment/Additional Payment under the Employment ActPayment under the Employment Act

Where the employee is entitled to payments or Where the employee is entitled to payments or additional payments under Part IV or other Parts additional payments under Part IV or other Parts of the Employment Act:of the Employment Act:

Most of the payments are calculated on the basis Most of the payments are calculated on the basis of a of a gross rate of paygross rate of pay (eg: annual leave/sick (eg: annual leave/sick leave/maternity leave/child-care leave),leave/maternity leave/child-care leave),

But, some of the payments are calculated on a But, some of the payments are calculated on a basic ratebasic rate of payof pay (eg: working on a rest (eg: working on a rest day/overtime work).day/overtime work).

Basic rate of pay refers to the basic pay Basic rate of pay refers to the basic pay without without allowancesallowances. .

Gross rate of pay refers to the basic pay and Gross rate of pay refers to the basic pay and all all allowances except travel/food/housing allowanceallowances except travel/food/housing allowance..

Employees not Covered under Part Employees not Covered under Part IV or the Employment Act.IV or the Employment Act.

For employees not covered, as said, For employees not covered, as said, matters such as leave/hours of matters such as leave/hours of work/etc depends on the express or work/etc depends on the express or implied terms of the contract.implied terms of the contract.

For instance, in relation to number of For instance, in relation to number of hours, if the contract is silent, what hours, if the contract is silent, what could be an implied term?could be an implied term?

Non-Part IV Rights: Holiday LeaveNon-Part IV Rights: Holiday Leave

Entitled to leave on public holidays, though Entitled to leave on public holidays, though employer can substitute another day instead.employer can substitute another day instead.

Employee must be paid in respect of that Employee must be paid in respect of that public holiday or substituted day. public holiday or substituted day.

In addition, if works on a public holiday In addition, if works on a public holiday without a substituted day-off, generally without a substituted day-off, generally entitled to– about double pay.entitled to– about double pay.

What if holiday falls on rest day?What if holiday falls on rest day? What if holiday falls on non-working day?What if holiday falls on non-working day?

Non-Part IV Right: Sick LeaveNon-Part IV Right: Sick Leave If served for 6 months:If served for 6 months: 14 days sick leave in a year where hospitalization 14 days sick leave in a year where hospitalization

is not necessary,is not necessary, 60 days sick leave in a year (assuming the 60 days sick leave in a year (assuming the

employee has not taken non-hospitalization sick employee has not taken non-hospitalization sick leave) if hospitalization is necessary.leave) if hospitalization is necessary.

If less than 6 months, but more than 3 months, If less than 6 months, but more than 3 months, there is prorated sick leave:there is prorated sick leave:

- 3 but less than 4 mths: 5/15- 3 but less than 4 mths: 5/15- 4 but less than 5 mths: 8/30- 4 but less than 5 mths: 8/30- 5 but less than 6 mths: 11/45- 5 but less than 6 mths: 11/45- 6 months or more: 14/60- 6 months or more: 14/60 Can you get hospitalization leave if you are not in Can you get hospitalization leave if you are not in

hospital? hospital? Source: Microsoft Clipart

Non-Part IV Right: Sick LeaveNon-Part IV Right: Sick Leave Entitled to sick leave if employee gets a MC and Entitled to sick leave if employee gets a MC and

employer is informed.employer is informed. What if MC is from a dentist or TCM doctor?What if MC is from a dentist or TCM doctor? Must the employer bear the medical expenses Must the employer bear the medical expenses

related to the sickness?related to the sickness? Can the employer refuse to give or make it Can the employer refuse to give or make it

difficult take sick leave if conditions are difficult take sick leave if conditions are satisfied?satisfied?

Can the employer terminate the services of the Can the employer terminate the services of the employee during sick leave just to avoid making employee during sick leave just to avoid making payment?payment?

Non-Part IV Right: Maternity LeaveNon-Part IV Right: Maternity Leave

Employees falling under EA – can get Employees falling under EA – can get maternity leave if certain conditions. maternity leave if certain conditions.

Eg: of a condition - must have served Eg: of a condition - must have served for 90 days before delivery; but no for 90 days before delivery; but no requirement that child must be a requirement that child must be a Singapore citizen at birth or become Singapore citizen at birth or become one thereafter.one thereafter.

Entitled to 12 weeks of leave and 8 Entitled to 12 weeks of leave and 8 weeks of pay.weeks of pay.

Maternity Leave – under CDCAMaternity Leave – under CDCA Another statute which governs maternity leave is the Another statute which governs maternity leave is the

CDCA.CDCA. All All employees are covered by the this Act.employees are covered by the this Act. All employees covered by this Act are entitled to All employees covered by this Act are entitled to

maternity leave, maternity leave, ifif certain conditions are satisfied. certain conditions are satisfied. Eg: of a condition – must have served for 90 days before Eg: of a condition – must have served for 90 days before

delivery, delivery, child must be a Singapore citizen at birth or child must be a Singapore citizen at birth or must become one within 12 monthsmust become one within 12 months..

Entitled to 16 weeks of maternity leave, which Entitled to 16 weeks of maternity leave, which essentially can be taken in 3 different ways:essentially can be taken in 3 different ways:

(a) 4 weeks before delivery and 12 weeks after delivery.(a) 4 weeks before delivery and 12 weeks after delivery. (b) 16 weeks starting not earlier than 4 weeks before (b) 16 weeks starting not earlier than 4 weeks before

delivery.delivery. (c) 8 weeks starting not earlier than 4 weeks before (c) 8 weeks starting not earlier than 4 weeks before

delivery + up to 48 days to be taken within 12 months delivery + up to 48 days to be taken within 12 months of delivery.of delivery.

Maternity Leave – under CDCAMaternity Leave – under CDCA During leave, entitled to be paid.During leave, entitled to be paid. For 1For 1stst 2 deliveries – employer pays for the first 8 weeks 2 deliveries – employer pays for the first 8 weeks

(no limit). For the next eight weeks – the employer (no limit). For the next eight weeks – the employer must also pay. But this is subject to a limit and further, must also pay. But this is subject to a limit and further, the employer can get a reimbursement from the the employer can get a reimbursement from the government.government.

For 3rd and subsequent deliveries – what employer has For 3rd and subsequent deliveries – what employer has to pay is subject to a limit and the further, the to pay is subject to a limit and the further, the employer can get reimbursement from the government.employer can get reimbursement from the government.

Formally, maternity leave only applicable in respect of Formally, maternity leave only applicable in respect of 11stst 4 children. Now there is no limit. 4 children. Now there is no limit.

From 1From 1stst May 2013, a husband of a qualifying wife May 2013, a husband of a qualifying wife may claim one week of her entitlement. may claim one week of her entitlement. Husband’s employer can claim reimbursement in Husband’s employer can claim reimbursement in respect of this. respect of this.

Maternity leave – other matters applicable to Maternity leave – other matters applicable to both statutesboth statutes

No employee can be dismissed/contract No employee can be dismissed/contract cannot be terminated by the employer cannot be terminated by the employer during maternity leave. during maternity leave.

In addition, no employee can be dismissed In addition, no employee can be dismissed during pregnancy (during pregnancy (formally 6 months formally 6 months before deliverybefore delivery) – unless there is a ) – unless there is a sufficient cause for doing so.sufficient cause for doing so.

Can you not hire a female because she is Can you not hire a female because she is pregnant?pregnant?

Paternity LeavePaternity Leave As from 1As from 1stst May 2013, under the Child May 2013, under the Child

Development Co-Savings Act, fathers would Development Co-Savings Act, fathers would be entitled to one week’s paternity leave.be entitled to one week’s paternity leave.

However, this is subject to conditions such However, this is subject to conditions such as that the child must be a Singapore as that the child must be a Singapore citizen, the child’s parents must be married citizen, the child’s parents must be married and the father must have worked at least 3 and the father must have worked at least 3 months for the employer.months for the employer.

The employer who pays can claim The employer who pays can claim reimbursement from the government, reimbursement from the government, subject to a limit of $2500.subject to a limit of $2500.

Non-Part IV Right under EA: Non-Part IV Right under EA: ChildCare LeaveChildCare Leave

Applies to employees covered under the Applies to employees covered under the Employment Act provided they have served the Employment Act provided they have served the employer for a period of more than 3 months.employer for a period of more than 3 months.

Entitled to childcare leave of 2 days for a child Entitled to childcare leave of 2 days for a child below 7 years of age. below 7 years of age.

Entitled to payment in respect of days of child Entitled to payment in respect of days of child care leave.care leave.

Generally cannot be carried forward.Generally cannot be carried forward. Maximum that can be claimed is 2 per year, Maximum that can be claimed is 2 per year,

regardless of number of children.regardless of number of children. Must the parent produce a MC for the child Must the parent produce a MC for the child before claiming childcare leave?before claiming childcare leave?

Source: Microsoft Clipart

ChildCare Leave – CDACChildCare Leave – CDAC But alternatively: can claim under Children But alternatively: can claim under Children

Development Co-Savings Act. Development Co-Savings Act. Can get up to 6 days of childcare leave if child is “qualifying” child. Can get up to 6 days of childcare leave if child is “qualifying” child. - 3 to less than 5 months: 2 days3 to less than 5 months: 2 days- 5 to less than 7 months: 3 days5 to less than 7 months: 3 days- 7 to less than 9 months: 4 days7 to less than 9 months: 4 days- 9 to less than 11 months: 5 days9 to less than 11 months: 5 days- 11 months or more: 6 days11 months or more: 6 days Further, employer can get partial reimbursement.Further, employer can get partial reimbursement. Plus from May 2013, employees can also get extended Plus from May 2013, employees can also get extended

childcare leave (2 days) for a “qualifying child” below 13 childcare leave (2 days) for a “qualifying child” below 13 years. An employer who pays can get reimbursement from years. An employer who pays can get reimbursement from the government as well.the government as well.

SummarySummary The Employment Act confers various rights on The Employment Act confers various rights on

employees. However, not all employees are covered by employees. However, not all employees are covered by the Employment Act.the Employment Act.

In respect of employees covered under the In respect of employees covered under the Employment Act, they are entitled to various rights Employment Act, they are entitled to various rights such as child care leave, sick leave and maternity such as child care leave, sick leave and maternity leave.leave.

In respect of employees covered by Part IV of the In respect of employees covered by Part IV of the Employment Act, they are entitled to additional rights Employment Act, they are entitled to additional rights such as annual leave and overtime pay. such as annual leave and overtime pay.

For employees not covered by the Employment Act, For employees not covered by the Employment Act, their rights have to be determined by means of their rights have to be determined by means of express/implied terms in their contracts. Though in express/implied terms in their contracts. Though in some instances, such as in relation to maternity leave, some instances, such as in relation to maternity leave, by virtue of the Children Development Co-Savings Act, by virtue of the Children Development Co-Savings Act, all employees are entitled to the maternity leave if all employees are entitled to the maternity leave if certain conditions are satisfied.certain conditions are satisfied.

Where it is a statutory entitlement, a breach on the Where it is a statutory entitlement, a breach on the part of the employer would generally result in the part of the employer would generally result in the commission of an offence.commission of an offence.

ReadingReading Basic Text: Chapter 4 (4.9-4.16, 4.20, Basic Text: Chapter 4 (4.9-4.16, 4.20,

4.110, 4.113-4.115, 4.121-4.122, 4.110, 4.113-4.115, 4.121-4.122, 4.124-4.126, 4.128-4.129, 4.131, 4.124-4.126, 4.128-4.129, 4.131, 4.133-4.135, 4.137, 4.141, 4.145, 4.133-4.135, 4.137, 4.141, 4.145, 4.147-4.149, 4.154, 4.156-4.158, 4.147-4.149, 4.154, 4.156-4.158, 4.160-4.162, 4.171-4.173, 4.176, 4.160-4.162, 4.171-4.173, 4.176, 4.179, 4.181, 4.183-4.187, 4.192, 4.179, 4.181, 4.183-4.187, 4.192, 4.202-4.204, 4.207, 4.210-4.211).4.202-4.204, 4.207, 4.210-4.211).