On 29 August 2021, Singapore Prime Minister Lee Hsien Loong announced that the Government will enact new laws to formally enshrine the Tripartite Guidelines on Fair Employment Practices (“TAFEP Guidelines”) into statute.1
There are, at present, no specific laws in Singapore which directly regulate workplace discrimination. Employers are, however, expected to abide by the principles of fair employment and adopt the recommended good practices set out in the TAFEP Guidelines.2 These guidelines are promoted and maintained by the Tripartite Alliance for Fair and Progressive Employment Practices (TAFEP), which is an independent body established by the tripartite partners comprising the Ministry of Manpower (MOM), the National Trades Union Congress (NTUC) and the Singapore National Employers Federation (SNEF).
The TAFEP Guidelines are principally guided by five principles of Fair Employment Practices:
- Recruit and select employees on the basis of merit (such as skills, experience or ability to perform the job), regardless of age, race, gender, religion, marital status and family responsibilities, or disability.
- Treat employees fairly and with respect and implement progressive human resource management systems.
- Provide employees with equal opportunity to be considered for training and development based on their strengths and needs to help them achieve their full potential.
- Reward employees fairly based on their ability, performance, contribution and experience.
- Abide by labour laws and adopt the Tripartite Guidelines on Fair Employment Practices.
Although the TAFEP Guidelines are not legally binding, there are some avenues for recourse against errant employers who fail to comply with the recommendations.
- Complaints of employment discrimination may be filed against an employer to TAFEP. TAFEP will first contact the employer and counsel the employer to improve its employment practices. Recalcitrant or unresponsive employers may be referred to MOM for further investigation – if MOM finds that the employer has contravened the TAFEP Guidelines, the employer will generally receive a caution and be given an opportunity to rectify its actions. However, employers who continue to engage in discriminatory employment practices may be sanctioned by MOM by having their work pass privileges suspended for a period of time, depending on the severity of the case.3 The length of debarment ranges from 12 to 24 months and applies to both new work pass applications and work pass renewals.4
- MOM also proactively identifies employers with indications of discriminatory hiring practices, e.g., based on their workforce profiles. These firms will be placed on the Fair Consideration Framework Watchlist (“FCF Watchlist”).5 Employers placed on the FCF Watchlist will have their work pass applications more closely scrutinised for any discriminatory hiring practices and will receive counselling from TAFEP to improve their HR practices. Although the complete list of firms on the FCF Watchlist is not publicly available, MOM may from time to time publish official statements that identify the names of individual firms.6 Errant or uncooperative employers may have their work pass privileges suspended (see above).
- In addition, employers and/or key personnel who are found to have falsely declared in their work pass applications that they have considered all candidates fairly may be prosecuted under the Employment of Foreign Manpower Act (Cap. 91A). The penalty upon conviction is imprisonment of up to two years, or a fine of up to $20,000, or both.7
With the official announcement that the TAFEP Guidelines will be enacted into law, employers should potentially expect more robust enforcement powers and penalties, and potentially a more aggressive enforcement posture, to ensure compliance with workplace anti-discrimination obligations. As PM Lee indicated in his speech, “[p]hilosophically, writing TAFEP guidelines into the law is a major move. It signals that we [Singapore] do not tolerate discrimination at workplaces.”
It is expected that the new regime for resolving disputes regarding workplace discrimination will be modelled after those already in place for salary and wrongful dismissal disputes. On that basis, the broad approach is that disputes should still be aimed to be resolved, as far as possible, in an informal and amicable manner. Parties will be required to attend conciliation and mediation sessions in the first instance with a view to reaching an amicable resolution and clarifying misunderstandings – failing which, the matter may be heard and adjudicated by a tribunal which will be newly created to handle this category of cases. While the precise legal obligations to be introduced remain to be seen, we anticipate that the TAFEP guidelines will form the building blocks for the substantive legal obligations to be imposed on employers. Although not specifically addressed, it is possible that protections for whistleblowers against retaliation for raising discrimination concerns may be provided in the new laws.
Therefore, employers should review their existing employment and workplace policies and procedures to ensure compliance with the principles set out in the TAFEP Guidelines and to provide assurance to those who may raise concerns on issues of discrimination. Among other things, employers should apply relevant and objective selection criteria consistently for all aspects of employment and outsourcing, including recruitment practices, outsourcing tender requirements, remuneration decisions, service levels agreements, performance appraisals and promotions, disciplinary actions and dismissals, and grievances handling. Another key tenet of the TAFEP Guidelines is that Singaporeans must remain the core of the workforce and employers should therefore endeavour to build and develop a Singaporean core. In this regard, employers are advised to make reasonable efforts to attract and consider Singaporeans for job positions on merit, and to train and develop their potential and career. Some examples of these are provided under the TAFEP Guidelines:
- Ensuring that jobs advertised must be open to Singaporeans;
- Working with educational institutions, career centers and recruitment agencies to attract and recruit Singaporeans; and
- Developing skills and expertise of Singaporean employees for higher level jobs.
If you have any questions relating to the enactment of the new workplace anti-discrimination laws in Singapore, please do not hesitate to contact us.
5 https://www.mom.gov.sg/employment-practices/fair-consideration-framework; https://www.mom.gov.sg/-/media/mom/documents/press-releases/2013/factsheet-fair-consideration-framework.pdf?la=en&hash=AD2F7BD693022FC648789B6C4A8C841A
7 Employment of Foreign Manpower Act, section 22(1)(d); https://www.mom.gov.sg/-/media/mom/documents/press-releases/2020/0114-annex-updated-fcf.pdf