The Singapore government recently accepted the Tripartite Committee on Workplace Fairness’s final set of recommendations on key aspects of the proposed Workplace Fairness Legislation (WFL) that is slated for passage in the second half of 2024. This will be the first piece of legislation in Singapore concerning workplace fairness and is intended to enhance the current tripartite guidelines and advisories.
The Singapore government published the White Paper on Singapore Women’s Development in April 2022, setting out 25 collective action plans by the government and community, including action plans to introduce the new WFL and entrench flexible work arrangements as a workplace norm.
Following this, the Tripartite Committee on Workplace Fairness published an interim report in February 2023 and, following public feedback, a final report in August 2023 with their recommendations for the WFL, which the government accepted. The final recommendations are organized into four key thrusts comprising 22 recommendations as detailed below.
The WFL will work in concert with the existing Tripartite Guidelines on Fair Employment Practices (TGFEP), which is recommended to be retained and enhanced to uphold overarching principles of fair and merit-based employment and provide protection against all forms of workplace discrimination. The government is working with the tripartite partners to implement the recommendations in 2024.
Key Thrust A: Strengthen Protections Against Workplace Discrimination
Recommendations 1–4: Legislate Protections Against Workplace Discrimination
The committee recommends prohibiting specified forms of discrimination in legislation while retaining the overarching principles of fair employment in the TGFEP for all employers’ adherence. In this regard, the committee’s view is that the WFL will cover direct discrimination, which can be defined as “making an adverse employment decision because of any protected characteristic.”
The recommended protected characteristics are nationality; age; sex, marital status, pregnancy status, [1] and caregiving responsibilities [2] ; race, religion, and language; and disability [3] and mental health conditions. [4]
It is recommended that the WFL prohibit discrimination on the protected characteristics at all stages of employment including the preemployment recruitment stage; in-employment promotion, performance appraisal, and training stages; and end-employment dismissal stage.
The provision of employee benefits and flexible work arrangements will not be covered under the WFL, giving employers flexibility to implement progressive practices, such as providing additional leave or healthcare benefits for employees who need them more, and design competitive and fair benefits packages that consider both employee and business needs.
Workplace harassment is also not covered under the legislation as there are existing legal protections against harassment, whether at the workplace or otherwise, including under the Protection from Harassment Act 2014 and Penal Code 1871.
Recommendation 5: Require Firms to Implement Fair Recruitment Practices
Because data shows that the recruitment phase is when most instances of workplace discrimination take place, the committee recommends prohibiting prospective employers from using words or phrases that indicate a preference based on any protected characteristic in job advertisements.
This does not include instances where a protected characteristic is a reasonable job requirement. The example provided was for a job advertisement for language teachers, who should be proficient in the language that they are teaching, and the employer can state language proficiency as a job requirement in advertisements (see also recommendation 9 below).
Recommendation 6: Ensure Fair Access to Opportunities for the Local Workforce
The committee stated that an employer’s preference to hire Singapore citizens and permanent residents owing to various genuine business and occupational considerations will continue to be permitted under the WFL. This is in accordance with the existing Fair Consideration Framework (FCF), which sets out requirements for all employers in Singapore to consider the workforce in Singapore fairly for job opportunities.
The committee recommends legislating the FCF job advertising requirement. Unless exempted, employers submitting Employment Pass and S Pass applications will need to first advertise the job vacancy on MyCareersFuture for a specified period and fairly consider all candidates that apply.
Recommendation 7: Protect Workers from Retaliatory Actions by Employers for Reporting Workplace Discrimination and Harassment
The committee recommends prohibiting employers from retaliating against those who report workplace discrimination or harassment and providing assurance to those who face workplace discrimination or harassment. The WFL would specify in law the retaliatory actions that would constitute a breach.
The recommended retaliatory behaviors are (1) wrongful dismissal, (2) unreasonable denial of reemployment, (3) unauthorized salary deduction, (4) deprivation of contractual benefits, (4) harassment, and (5) any other act done to victimize the individual who made the report (i.e., singling out the individual for unjust treatment).
Enforcement action is also recommended for employers that retaliate against individuals who report workplace discrimination and harassment.
Recommendation 8: Enhance the TGFEP to Cover More Workers
The committee declined to extend the WFL to protect workers other than employees (e.g., self-employed persons), but recommends that the legislation be scoped to protect employees (i.e., workers in an employment relationship).
In the meantime, the committee recommends including additional guidelines in the TGFEP to provide greater clarity that corporate service buyers, such as property management companies and intermediaries such as platform operators, should not discriminate based on characteristics that are unrelated to the job.
In other words, 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/Organizational Needs and National Objectives
Recommendation 9: Allow Employment Decisions to Be Made Based on Genuine Occupational Requirements
The committee recommends allowing employers to consider a protected characteristic in employment decisions if it is a genuine and reasonable job requirement. Examples include that a wellness establishment may hire female therapists as their job is to carry out personal body massages and spa treatments for female customers and that the role of an audio production manager may require candidates to pass a test of the candidate’s hearing.
Recommendation 10: Allow More Time for Small Firms to Develop Their Capabilities
The recommendation was also made that firms with less than 25 employees should be exempted from the WFL initially, to be reviewed in five years. The Tripartite Alliance for Fair and Progressive Employment Practices (TAFEP) and its partners, including the Singapore National Employers Federation, Institute for Human Resource Professionals (IHRP), Singapore Human Resource Institute, and Association of Small and Medium Enterprises, will work together to support small firms in their journey to ramp up capabilities to implement the legislated requirements over time.
Exempted firms will still be subject to the TGFEP and existing statutory protections on wrongful dismissal.
Recommendation 11: Recognize the Needs of Religious Organizations
The committee recommends allowing religious organizations—i.e., places of worship and religious entities with a solely religious purpose/function—discretion to make recruitment and employment decisions based on religion and appropriate religious requirements. Religious organizations should not be allowed to discriminate based on other protected characteristics where there is no religious basis to do so.
All other religion-affiliated entities that have a secular purpose/function or serve the general public (e.g., religion-affiliated charities, hospitals, schools, childcare centers) will continue to be allowed to make employment decisions based on religion only if it is a genuine and reasonable job requirement.
Recommendations 12–13: Enable Employers to Support Hiring Persons with Disabilities and Seniors
The committee recommends supporting employers that wish to hire persons with disabilities or seniors (i.e., persons aged 55 or above) and issuing a Tripartite Advisory (instead of legislating in the WFL) on providing reasonable accommodations to persons with disabilities.
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 hearing impaired employees and installing ramps for employees needing wheelchairs. They are “reasonable” when they help persons with disabilities 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
The Committee recommends requiring employers to put in place proper grievance handling processes so that aggrieved employees and their employers can attempt to resolve disputes amicably within the firm in the first instance.
The proposed grievance handling requirements to be legislated include the following:
Currently, the TGFEP requires employers to put in place proper grievance handling processes, and employers are encouraged to adopt and apply the Tripartite Standard on Grievance Handling.
Recommendation 15: TAFEP, Tripartite Alliance for Dispute Management, and Unions Should Continue to Play Roles in Addressing Grievances, Disputes, and Claims
The committee recommends that TAFEP continues to serve as the first resource outside the firm for workers who experience discrimination. Employees are encouraged to first seek assistance within the firm through the firm’s internal grievance handling processes before approaching TAFEP so that most cases can be addressed amicably within the firm.
As with most other employment disputes, to lodge a workplace fairness claim the claimant should provide prima facie evidence to support the claim that discrimination has occurred. The claimant should clearly cite the incident(s) that led them to believe they suffered an adverse employment outcome because of a protected characteristic, and the cited incident(s) should show how the consideration of the protected characteristic led to the adverse employment outcome. Documentary evidence or oral testimonies will help to strengthen the claim.
Recommendations 16–17: Require Compulsory Mediation for Discrimination Claims, with Adjudication as a Last Resort
The committee recommends that under the new legislation claims of workplace discrimination in respect of the protected characteristics first undergo compulsory mediation at the Tripartite Alliance for Dispute Management (TADM), with adjudication at the Employment Claims Tribunal (ECT) as a last resort. The committee also recommends that unions continue to play a constructive role in dispute resolution for workplace fairness.
Key Thrust D: Ensuring Fair Outcomes Through Redress for Victims of Workplace Discrimination and Appropriate Penalties for Breaches
Recommendations 18–19: Provide a Range of Monetary and Nonmonetary Remedies for Claimants
The committee recommends that TADM mediation focus on educating employers on correct practices and mending the employment relationship where practicable, and not primarily on monetary compensation. Parties could explore nonmonetary remedies such as the employer reinstating the employee, providing an apology, or committing to reconsidering the employee for another job. Monetary compensation may be appropriate in some instances.
At the ECT, remedies will be limited to monetary compensation, and reinstatement to the job for end-of-employment claims. The recommended maximum compensation amount for the ECT to order is (1) SGD 5,000 for preemployment (recruitment) claims and (2) SGD 20,000 for nonunion members and SGD 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 limits mirror the ECT’s limits for wrongful dismissal claims.
Recommendation 20: Safeguard Against Frivolous or Vexatious Claims
The committee further recommends empowering the ECT to (1) strike out frivolous or vexatious claims and (2) award costs of up to SGD 5,000 to be paid by the claimant whose claim was struck out to the respondent in these situations. Frivolous and vexatious claims are those where, for example, a claimant wilfully persists with a claim despite having no evidence of discrimination. If there is no evidence to suggest that discrimination had taken place, TADM will inform the employer that they may attend mediation or opt to “fast track” the case to the ECT for a more expeditious resolution.
Awarding of costs would be on a case-by-case basis as determined by the ECT (with or without a request from the employer) and with due consideration to not deter workplace fairness claims in general. Employers may take appropriate disciplinary action against claimants where the ECT has struck out the claim or awarded costs to the respondent on the basis that the claim is frivolous or vexatious.
Recommendations 21–22: Taking Appropriate Enforcement Action Against Workplace Fairness Breaches
The committee recommends that, where the claim involves a suspected serious breach of the WFL, the State may also concurrently conduct investigations with a view to taking enforcement action against errant firms.
The committee further recommends providing a set of enforcement levers, as set out below, that can be calibrated based on the severity of the breach. It is recommended that these enforcement levers be applicable to the firm and/or person responsible for the discriminatory decision resulting in a breach of the legislation.
Conclusion
The upcoming enactment of the WFL provides some clarity on rights and obligations in the employment context. The committee’s recommendations define what constitutes discrimination under the upcoming legislation and provides examples of what employers should do to ensure compliance. The recommendations also indicate some flexibility in that the proposed WFL has left to the discretion of employers certain employment practices such as employee benefits and flexible work arrangements.
In preparation for the WFL’s enactment in 2024, employers should begin putting in place appropriate policies and processes to facilitate compliance with the legislation.
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[1] “Pregnancy status” 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.
[2] “Caregiving responsibilities” 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.
[3] “Disability” is aligned to that of the Enabling Masterplan (the national roadmap that charts how society seeks to enable persons with disabilities to participate fully as integral and contributing members of society), which covers autism or any intellectual, physical, or sensory disability or any combination of any such disabilities with substantial impact on an individual’s ability to carry out day-to-day activities.
[4] “Mental health conditions” covers more serious forms of diagnosed mental disorders usually associated with distress or impairment in important areas of functioning.