In some cases, employers who find out may then deprive them of the package, but this is based on each company’s HR practice. “They usually go into mediation and find a compromise,” said Mr Supramaniam.
To avoid arriving at such a situation in the first place, Mr Cheong said that employees should, in practice, ask for explicit carve-outs so a clause does not apply to the following: TADM or ECT, the courts, the police, MOM or TAFEP and other regulators; unions, including consultations in unionised settings; disclosures required by law; and whistleblowing and complaints under the forthcoming Workplace Fairness Act (WFA).
“These carve-outs are standard market practice and consistent with MOM and tripartite guidance on responsible retrenchment and grievance handling,” he explained.
If an employer resists, the employee can point them to ECA and WFA statements and to MOM’s position on union involvement and retrenchment processes, added Mr Cheong.
What can the authorities do?
When such cases come to light, MOM has to intervene, said Mr Supramaniam.
Companies are free to draft the terms in their contracts, but just because they are legally drafted does not mean they can be read as fair, he added.
“Ultimately, the courts will interpret the disputes, and make a decision based also on the livelihood of the worker,” said Mr Supramaniam.
Mr Cheong noted that places like the United Kingdom, European Union, United States and Australia have laws protecting workers who whistleblow or make reports to the relevant authorities.
Singapore has no blanket regulation or legislation which makes it unlawful for employers to impose contractual obligations on employees, restraining them from making reports – including for retrenchments – to the relevant authorities, said Ms Kaur.
But a suite of measures exists to demonstrate MOM’s commitment to ensuring employees can seek external recourse for employment-related issues and grievances.
The WFA, which will come into effect as early as next year, also states that employers are prohibited from engaging in a retaliatory act against any employee who submits a grievance, or who has brought proceedings or given evidence against them under the Act.
“As such, while it remains to be seen how the MOM will treat employers who seek to contractually curtail employees’ rights to escalate employment concerns, we can expect them to adopt a similar approach … which values transparency and accountability,” said Ms Kaur.
