Commentary: Maids’ overtime pay is long overdue
Foreign domestic workers are a vulnerable group who deserve rest days, and compensation for the rest days they do not take, says one observer from Yale-NUS College.
SINGAPORE: In a landmark case in March, Singapore’s High Court increased the jail sentence of Singaporean Tay Wee Kiat, found guilty of inflicting “egregious” psychological and physical harm on his Indonesian domestic helper.
This abuse included slapping, punching, forcing their Muslim domestic worker to bow 100 times in front of a Buddhist altar, and shoving a plastic bottle inside her mouth. While Tay had initially been sentenced to 28 months’ jail time, the judges increased it to 43 months.
The three-judge panel also introduced a new and more severe sentencing framework to be used in maid abuse cases, acknowledging that maid abuse takes place “in circumstances of inequality and oppression”.
Singapore’s penal code already allows a court to sentence the employer of a domestic worker “one and a half times” the normal amount of punishment he would otherwise have been liable for, if he is found guilty of offences such as abuse, wrongful confinement, and sexual assault.
But the High Court determined that there can be just as much psychological abuse as physical abuse meted out to vulnerable domestic workers, and so proposed a revised sentencing framework that further increased the level of punishment depending upon the degree of psychological harm through sustained, humiliating and degrading abuse inflicted upon the worker.
The Court noted that domestic workers are particularly vulnerable because they are in a foreign land, “are in an inherently unequal position of subordination in relation to their employers,” and any abuse they experience typically takes place in the privacy of their employer’s home.
Why then do other aspects of Singapore’s laws and regulations not recognise the need for greater safeguards for foreign domestic workers?
IN THEORY AND IN PRACTICE, REST DAY REGULATIONS
Since 2012, under Singapore law, foreign domestic workers are entitled to a weekly rest day, but this can be negotiated away if there is a “written agreement mutually agreed between the employer and the foreign employee … for the foreign employee to be compensated for working in lieu of the rest day”.
A survey by the non-governmental organisation TWC2 of 232 foreign domestic workers in 2016 revealed that 44 per cent of those who arrived after 2014 did not take any rest days at all during the period when they were still undergoing salary deductions to pay off their exorbitant agency fees.
The rest day regulations imply that this can only happen if the domestic worker freely consents to giving up her rest day.
But 40 focus group discussions and one-on-one interviews with foreign domestic workers, employers and agency staff conducted by Yale-NUS student Margaret Schumann between 2016 and 2017, based on an earlier quantitative analysis of almost 4,000 online profiles of domestic workers, revealed that many agencies refuse to place new domestic worker applicants who ask for a weekly day off.
Research by the non-governmental organisation HOME found similar practices by agencies who present workers with “no rest day contracts” on arrival. This is particularly true for Myanmarese domestic workers.
Our research suggests it is an industry norm that workers submit to their employers’ preferences regarding the frequency of rest days, especially during their first two-year contract in Singapore. As a result, the worker has no “choice” to speak of.
Still, for many of them, the ability to earn even a little more money during their first six months of employment, when they are paying off the heavy debt they incurred to come to Singapore, is an attractive proposition.
LOW COMPENSATION FOR NO REST DAYS
Currently, Ministry of Manpower regulations stipulate that a domestic worker must be paid at least one day’s salary to compensate her for working on her rest day.
The compensation is calculated “by dividing the monthly wage by 26 working days” which would amount to S$19 for a domestic worker earning S$500 a month.
We can debate about whether S$500 a month is enough but surely less than S$20 is a paltry amount of compensation for giving up your only time for extended rest and privacy during the week.
Even this amount is not guaranteed. From interviews with 85 foreign domestic workers, HOME found that only 58 per cent of domestic workers were compensated for working on their rest day.
In contrast, the Employment Act, which governs the working conditions of most other categories of workers in Singapore, stipulates that workers who give up their rest day for more than half of their daily working hours should be paid two days’ salary if it was at the employer’s request.
If this is the standard applied to workers under the Employment Act, we should not have a lower standard for more vulnerable classes of worker, such as foreign domestic workers, who are currently excluded from coverage under this Act.
If we let the same rules apply to domestic workers, this would translate to roughly S$40 for a domestic worker giving up her weekly rest day. This amount, albeit small, is fairer compensation for foreign domestic workers who have little recourse when their employer asks them to give up their rest day.
Some might argue that S$40 per rest day represents so large a sum of money for domestic helpers that it would act as a perverse incentive, encouraging too many workers to give up their weekly rest days.
ONE MANDATORY REST DAY A MONTH
That is why this regulatory change should be accompanied by another change that mandates a non-negotiable, minimum monthly day off that employers cannot take away from their workers under any circumstances.
Without a way for a domestic worker to get away from her employer at least once a month, she is incredibly vulnerable to abuse without recourse to seeking help. When workers are so indebted, they may be tempted to give up all of their rest days, just keep working and stay quiet.
But, from the Government's point of view, there are mental health and welfare concerns that should dictate that foreign domestic workers must get some mandated rest.
Such a change should not be seen as a loss for employers. A regular day off can help them build a more positive and lasting relationship with their domestic workers.
Workers should still be entitled to a weekly day off, but the current loophole that allows an employer to make their domestic worker keep working seven days a week, four weeks a month, should be closed.
The bottom line is this: If we recognise that foreign domestic helpers are a special category of worker who are more vulnerable to exploitation and abuse, and therefore deserving of greater protections, it is past time that we fashion our laws and regulations accordingly. The High Court certainly seems to think so.
Anju Mary Paul is an associate professor of sociology and public policy at Yale-NUS College in Singapore. Her research specialises in labour migration patterns in Asia.