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SINGAPORE: I recently had a conversation with a relative who started work after completing her Higher NITEC Certificate and for many years worked in the F&B industry.

She now works as a restaurant manager, earns about S$2,300 a month and has been in this job for almost eight years now.

She shared with me that she has often been recalled back during public holidays, and have had to stay back after work to look into receiving supplies to the restaurant and when repairs to the air-conditioning had to be carried out.

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I casually asked if she was paid overtime and she answered in the negative. She shared that as recent as 2014, her boss amended her employment contract when they promoted her to a restaurant manager and included terms (such as the power to hire and fire, supervisory and managerial responsibilities) which suggested that she was a PME (Professional, Manager and Executive).

As such, they said she was outside the scope of Part IV of the Employment Act which excludes coverage of managers and executives. This meant that she was not entitled to overtime payments for her work in excess of the normal working hours.

Is this really a case of a proper classification of a PME? By and large, her job is no different from any of the sales and F&B staff serving customers, save for the responsibilities to ensure the till is correct and the supplies and shop are in order.

She may not have a senior management decision-making role at the restaurant as the onus still resides with the restaurant owner.

TIP OF THE ICEBERG

This is an example of a “disguised PME” scenario in that the worker is a de facto PME. While it is a personal anecdotal example, I am afraid this may just be the tip of the iceberg.

Considering we have more than 770,000 individuals in our resident workforce who are PMEs and 1,220,000 who are PMETs (Professionals, Managers, Executives and Technicians) based on Ministry of Manpower (MOM) figures as at 2017, it is estimated that there are more than 30,000 who are classified as PMEs earning less than S$2,500 per month.

We have also seen PMEs in similar situations coming to NTUC for workplace advisory. Although we have not monitored actual numbers, the most recent case was in May this year, involving a union member who works as a site engineer in an IT firm.

He earns S$2,000 a month and has been asked to work overtime based on operational needs but was not paid overtime pay in accordance to Part IV of the Employment Act. Instead, his contract stipulates an allowance for work after office hours.

We are still in the midst of assisting him in his claim against his employer and we hope to help him get the compensation he deserves.

patrick tay

MP for West Coast GRC Patrick Tay, who is also NTUC Assistant Secretary-General, in Parliament. 

WHO IS AN ‘EXECUTIVE’?

A fortnight ago, a High Court case reported saw Justice George Wei noting in the deliberation that “executive position” was not defined in the Employment Act. Black’s Law Dictionary defined “executive” as a “corporate officer at the upper levels of management”.

The judge also examined statements made by MOM in Parliament during the recent amendments to the Employment Act to extend coverage to junior managers and executives. In arriving at his decision for this case, he took into account Parliament’s view that managers and executives were persons who were in a better bargaining position, whereas Part IV was meant to protect the more vulnerable employees who were engaged in manual labour or paid lower wages.

Justice Wei pointed out the fact that a worker is in a supervisory role does not in itself make him an executive. Such a worker may even be a “workman”. Much would depend on the nature and level of the supervisory powers he is given, alongside other circumstances.

In this case, the claimant was in charge of a team and made decisions daily, including conducting toolbox meetings and confirming whether safety requirements were met before work could begin. But the tasks he undertook did not go beyond regular on-site routine administrative work.

Even though he had influence over his team members’ appraisals and could provide feedback on their performance, the judge found he did not have direct authority to hire, fire, promote, transfer, reward or discipline them.

The judge made it clear that an employee is not a manager or executive merely because he can give feedback and thereby “influence” his superior’s assessment of a team member.

In view of all these factors, it was decided that the claimant was not employed in an executive position, was covered under Part IV of the Employment Act and was therefore entitled to overtime payments.

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A food court employee in Singapore. (Photo: Gaya Chandramohan)

IMPACT ON UNIONS AND PME REPRESENTATION

Although this recent case touched on who is an executive, it also positively impacts how our unions are better able to represent PMEs. The Industrial Relations Act was amended in April 2015 to give all unions the ability to collectively bargain and represent PMEs across all companies.

We have made good progress in extending the scope of representation of PMEs across our unionised companies. However, this recent case is a stark reminder to all employers and human resource leaders to use the terms managers and executives with care and due diligence.

Some have been known to wrongly classify their workers to avoid them being represented by unions on the basis that they are in a conflicted position given their managerial and executive powers.

More importantly, all workers in any company or business must be aware that they can become union members. All workers can be represented (whether collectively or individually) by unions, save for senior management and selected conflicted roles.

REMEDIES, RECOMMENDATIONS

The proportion of PMEs have increased and will continue to increase. The proportion of the workforce with specialised qualifications has also increased over time.

Qualifications do not guarantee bargaining power as many low-earning employees with specialised qualifications are not deployed to jobs with managerial duties or decision-making powers.

I urge all workers whose employers classify them as PMEs, especially those whose monthly salary is lower and below $2,500, to re-examine their employment contract, job role, scope and powers as they may fall within Part IV of the Employment Act and be entitled to overtime payments.

Union members can approach their unions, and all workers can seek assistance from the Tripartite Alliance for Dispute Management (TADM) or MOM.

Tripartite partners can help to better articulate the case law position of who is a PME. Existing web content on MOM’s website on who is a manager and executive may also need to be revised to remove mention of professionals with tertiary education and specialised knowledge as well as provide clear examples of actual managers and executives who earn less than S$2,500 in basic salary.

Assessments must be based on the job scope instead of the job title. For manager and executive jobs, they should be in substantive positions of authority, including possessing an authority to hire and fire, being in charge of business units and functions, or directly managing and running the business.

Another way around this would be for Part IV of the Employment Act to cover all who earn S$2,500 and below, regardless of whether they are a rank-and-file office worker or a PME. This was something we floated with our tripartite partners in the latest review of the Employment Act.

With the exponential growth in PME numbers, I look forward to the day when we will eventually remove this dichotomy between the rank-and-file and PME workers. In the meantime, I hope for greater awareness among workers and employers so that workers are treated fairly, and the wrongful classification of workers as managers and executives is eradicated.

Patrick Tay is NTUC Assistant Secretary-General. This commentary first appeared in LabourBeat. Read it here.

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