MOM confuses tough questions with “false allegations”

The Ministry of Manpower felt their integrity was impugned by “serious allegations” that are “entirely false” in my recent article “Injured worker awarded $69,000 in compensation, employer not paying”. They issued a media statement Friday, 18 January 2013. You can see the statement in full here.

My article raised three key issues:

1. Uzzal was interrogated in a way he thought was hostile to him. He was also warned in the session that there would be “problems” for him if any of his answers didn’t completely agree with information he gave MOM soon after he was injured — which was two-and-a-half years ago. In my article, I asked why a worker, who had been awarded an order for compensation, was treated this way? Was the officer trying to undermine the court order? MOM shouldn’t confuse asking questions warranted by someone’s unpleasant first-hand experience with “false allegations”.
2. In the two months after he was awarded the labour tribunal order, Uzzal saw little help forthcoming from MOM. I argued that if MOM had moved quickly to prosecute the employer, not just as a company, but in terms of personal responsibility liable to imprisonment, he would be more forthcoming in settling Uzzal’s claims. How can an argument like that be a “false allegation”?
3. I mentioned that I know of workers who had been repatriated without receiving their compensation, and said that it is shocking that the ministry has not designed a better system. MOM in its response does not deny that there have been workers who had been repatriated without receiving their compensation, and yet accuses me of “false allegations”.

If you would bear with me, I will hereunder respond to MOM’s response section by section.

Getting compensation

MOM begins by saying that

Recovery of Mr Uzzal’s work injury compensation and prosecution of his employer for not making this payment are two separate processes.

To an extent, they are, but getting payment of the compensation is made extremely difficult if there is no concurrent threat of prosecution. It is also important to remember that for a worker who has no income, no accommodation, every passing day counts. To treat the prosecution decision as totally separate, taking its own time, is to pile great pain and suffering on the worker.

So here again, in MOM’s own statement, is a glimpse of the failure to understand with compassion the plight of the worker and the importance of timely enforcement.

Then MOM says:

The amount owed to Mr Uzzal is a civil debt. Like all non-payment of civil debts, Mr Uzzal would have to enforce the payment through the Bailiff Section of the Subordinate Courts. As Mr Uzzal has retained the services of a lawyer, this would have been clearly explained to him.

Precisely. If you were in Uzzal’s position, what you’d understand from the above is that getting payment is a matter for him and his lawyer and MOM has little role, because it “is a civil debt”. Which was what he felt (i.e. no real help from MOM) and what I said he felt in my article.

Notwithstanding this, the Ministry referred Mr Uzzal’s case to the Migrant Workers’ Centre (MWC) for assistance. MWC offered to provide all necessary assistance to Mr Uzzal to enforce the payment, including the filing of documents and payment of stamp fees and court expenses. Through his lawyer, Mr Uzzal declined MWC’s offer of assistance.

This was not known to me. In any case, as discussed below, the offer from MWC is moot, because the bailiff route is not seen to be meaningful.

In parallel, MOM also commenced an investigation with a view to prosecuting the employer for failing to pay compensation to Mr Uzzal, which is an offence under the Work Injury Compensation Act (WICA). To ensure fairness, MOM conducts such independent investigations to ascertain the facts of the case. Only when the investigation is complete can prosecution action be taken i.e. charges filed in court.

These are many, many words that attempt to explain what should be obvious. The labour tribunal’s order was dated 25 October 2012. The employer was given 21 days to make payment. This period lapsed 15 November 2012. What more investigation is needed? Either he has paid or he has not. One has every reason to be skeptical about MOM’s explanation. Is it more for media consumption than a genuine reflection of much hard work in November and December preparing charges?

Moreover, if we are to believe that MOM is always prompt and serious about prosecuting employers for not making payment, then why do I know of examples of workers repatriated without compensation, and without any news about prosecution either? How are we to believe that MOM is serious in Uzzal’s case when the record is so patchy?

As part of the investigation, MOM interviewed both the employer and Mr Uzzal on 26 Dec 2012. Importantly, Mr Uzzal was also briefed on his options for enforcing the compensation payment during this interview. Apart from the avenue of the Subordinate Courts, Mr Uzzal could enforce the compensation payment through application of Section 40 of the WICA. This option has two downsides. First, while this allows the courts to rule that compensation be paid to the worker if the employer is successfully convicted, payment is in fact not guaranteed. If the employer is unable to pay for whatever reason, the employer would be jailed in lieu of payment, and the debt would be extinguished. Second, the prosecution process would typically take longer than enforcement of payment through the Bailiff Section of the Subordinate Courts. Mr Uzzal was briefed on both options, and through his lawyer, Mr Uzzal asked that MOM apply Section 40 of the WICA when prosecuting the employer.

Are you not floored by the statement that the law allows the debt to be extinguished if the employer chooses jail? How is justice served to Uzzal? This is among the bases for me saying MOM should have designed a better system.

As for enforcement payment via the bailiff, I believe Uzzal and his lawyer feel that the employer may not have assets to seize. As it is, the company operates out of one room, I am told. Not only will there be additional costs (in the thousands of dollars, money Uzzal does not have) it can be a very lengthy process. For these reasons, it is quite understandable that they didn’t think the bailiff route would be meaningful. These are critical considerations MOM glosses over in their statement.

In the meantime, MOM has forfeited the employer’s security bond for the worker, and barred the employer from hiring foreign workers.

I am glad to hear that. I don’t think Uzzal knew that, and I surely didn’t know that, until MOM was compelled by my article to say something publicly.

Readers might also raise eyebrows when I tell them this: The forfeited $5,000 bond went into general government revenue. Not a cent of it went to Uzzal.

In addition, it is also worth noting that by barring the employer — a construction company — from hiring foreign workers, MOM has effectively made it impossible to carry on business. What assets will it then have for any bailiff to seize? How is seizure an effective route that MOM would advise Uzzal to take to obtain his compensation?

See what I mean by MOM failing to design a  better system? Things work at cross-purposes.

Prosecution for safety lapses

There is a separate and concurrent investigation with a view to prosecuting the employer under the Workplace Safety and Health (WSH) Act, and Mr Uzzal was interviewed in Jan 2013 in connection with this investigation.

This must be the interview in which Uzzal felt himself talked to — a feeling he related to several people including a mainstream media reporter.

Mr Uzzal recorded his statement in Bengali, with an interpreter present throughout the interview with the MOM officer. The interview focused on WSH questions such as whether Mr Uzzal received safety training and whether risk assessments were performed before work. It was not, as Mr Au made it out to be, related to the work injury compensation order. On two occasions, both the MOM officer and the interpreter highlighted to Mr Uzzal that the statement recorded was for the purpose of investigating the accident under the WSH Act.

Put yourself in his shoes. Does an ordinary construction worker understand the difference between this law and that law? All he wants is his money which is due to him, but all he was getting that day was four hours of interrogation that got him no nearer his compensation. Prosecuting the employer for safety violations is of no meaning to him now, so when he came out of the meeting, it was only natural for him to speak of the experience in terms of the compensation, or lack of it.

Clearly, I misunderstood the purpose of the interview — seeing it like Uzzal through the lens of compensation — but it’s not clear that Uzzal understood either.

As there were some inconsistencies in Mr Uzzal’s statement, the MOM officer had reminded him to state the truth, and that he may face prosecution if he provided false information.

There we go! Can you blame him for feeling that the interrogation was aimed at finding fault with him? For putting him and his compensation award in jeopardy?

I will also point out that if MOM was of a mind to prosecute the employer for safety lapses, it didn’t need to wait until December 2012. The accident took place in June 2010, and the employer could have been charged within months of the accident. Why didn’t the ministry do so? Does the delay in any way lead us to question the seriousness of the ministry’s resolve?

Re-interviewing Uzzal two-and-a-half years after the accident and warning him of dire consequences for the slightest inconsistency between the earlier statement and the present one, is terribly unfair. The passage of time clouds memory. If anything, too perfect a match would be more suspicious. It is wrong to thereby put the burden of responsibility for a successful prosecution on Uzzal’s shoulders; MOM shouldn’t have waited so long in the first place.

At no point did the MOM officer try to “harass” Uzzal or worse, “undermine” the work injury compensation order. This was confirmed by the interpreter, who was present throughout the interview.

That’s easy for MOM to say now, but who better to tell us how it felt to Uzzal than Uzzal himself? He repeated his experience in similar terms to several people, including a mainstream media reporter.

Work injury insurance

At this point, I shall point out that nowhere in the statement by MOM was there mention of prosecuting the employer for not having valid work injury insurance. I pointed this out to Amelia Tan of the Straits Times and she went back to MOM for their response. MOM told her, as far as I understand, that yes, they are “investigating” the employer for not having work injury insurance.

I said to Amelia that this answer is worth far less than it seems. Why?

Notably, they didn’t say they were prosecuting the employer, just investigating. But there is very little to investigate. Either the employer has valid work injury insurance or he hasn’t. The law is very clear that he should have a valid policy.

The fact that the employer didn’t pay within 21 days strongly implies that he does not, because insurance companies are typically quite efficient at paying out. It shouldn’t take more than a week after that to determine if the employer has breached the law. A threat of prosecution issued forthwith should help concentrate the employer’s mind and nudge him to pay Uzzal from his own pocket.

Instead, nothing seems to have happened at MOM for two months; not even a mention in MOM’s statement until the reporter asked them. Two months mean little to bureaucrats but it’s a long, long time to suffer when you’re the worker, destitute and anxious.

The key issue: no preemptive monitoring

The lengthy response by MOM clouds the key issue: All these problems for Uzzal, and now all this extra work for MOM, would not have arisen if the employer had valid work injury insurance that paid promptly. But what processes are in place to monitor compliance?  What early-warning system is there to spot employer who fail to take up insurance?

Uzzal’s and several other workers’ cases suggest that there is no system at all. The result is terrible suffering for workers as MOM tries to sort out the mess spilling out from industrial accidents. I said in my previous article that MOM failed to design better solutions. I still see no reason to change my view.

In conclusion

MOM is committed to ensuring that the [Work injury compensation] claim process is fair and expeditious. Our records showed that 80% of all cases are resolved within 3 months. Mr Uzzal’s case was among the exceptions. To accuse MOM of being “derelict in its duties”, as well as to insinuate that MOM was “unhappy with Uzzal going to the media” and using the “interrogation” as a way of “punishing him” is irresponsible of Mr Au. It would have been the responsible thing to come to MOM if Mr Au or TWC2 had any queries, and alert MOM, if he or TWC2 felt there were any issues with Mr Uzzal’s interview. But Mr Au did not do so, and chose to simply publish the inaccuracies without checking the facts of the case. Such inaccurate articles are unhelpful, and addressing these irresponsible allegations detracts from the Ministry’s day-to-day work of ensuring that workers are protected under the law and derelict employers are prosecuted.

I can see that MOM takes exception to my use of the phrase “derelict in its duties”, preferring that the word be reserved for employers (see fourth word from the end of the passage above), but I have shown in all the foregoing that the ministry’s performance is far from winning it prizes. It didn’t prosecute promptly for safety lapses and it didn’t indicate to anyone that it was planning to “investigate” the employer for not having insurance until the reporter asked — a fact that makes one wonder how serious the ministry was about it. Its tardiness prolongs the pain and suffering for an injured worker desperate for compensation money. And it doesn’t seem to have an effective early warning system with respect to insurance which could have prevented the whole mess.

MOM being unhappy with workers going to the media is nothing new. When another worker, named Shahin, spoke to the Straits Times in August 2012 about his salary arrears and how MOM had not made any progress for a year, the morning after the article appeared, he got a call from an MOM officer that took him to task for speaking to the media. This, Shahin told me personally the same afternoon. So when I postulate that MOM might have been unhappy with Uzzal telling his story to a Chinese newspaper, how can it be an “irresponsible” statement given this previous example?

As for Uzzal being justified in feeling that the interview was a rather punitive interrogation, I think MOM’s own words above have said it all.

Then, MOM’s final shot:

In light of the facts presented above, Mr Au should do the right thing and remove the inaccurate post immediately.

Another attempt at censorship?

Take a helicopter view and gauge the overall tone and thrust of MOM’s response and one more thing is unmistakeable: There is an apparent lack of concern for addressing the issue that most concern Uzzal: compensation for his injury. The ministry’s statement is written eloquently about MOM following proper procedures whilst taking much umbrage at “‘false allegations”, but there’s a glaring lack of concern for Uzzal despite this length of time — two and a half years. And still no straightforward procedure for satisfactory redress when the employer fails to abide by the regulations.

Ensuring that MOM escapes blame is different from ensuring that the worker is justly compensated.