Employment of Foreign Workers (Amendment) Bill

Bill No. 34/1995

Read the first time on 27th September 1995.

An Act to amend the Employment of Foreign Workers Act (Chapter 91A of the 1991 Revised Edition).

Be it enacted by the President with the advice and consent of the Parliament of Singapore, as follows:

Short title and commencement

1. This Act may be cited as the Employment of Foreign Workers (Amendment) Act 1995 and shall come into operation on such date as the Minister may, by notification in the Gazette, appoint.

Amendment of section 2

2. Section 2 of the Employment of Foreign Workers Act (referred to in this Act as the principal Act) is amended —

(a)

by deleting the definition of “contractor”;

(b)

by inserting, immediately after the definition of “Controller”, the following definition:

“ “construction works” has the same meaning as in the Construction Industry Development Board Act [Cap. 51] and includes such other works or activities as the Minister may, by notification in the Gazette, specify to be construction works;”;

(c)

by deleting the words “, including a contractor,” in the first line of the definition of “employer”;

(d)

by inserting, immediately after the definition of “employment inspector”, the following definition:

“ “foreigner” means any person who is not a citizen or permanent resident of Singapore;”;

(e)

by deleting the words “a contractor who is carrying out building operations or construction” in the first and second lines of paragraph (b) of the definition of “occupier” and substituting the words “any person who is carrying out construction or other”;

(f)

by inserting, immediately after paragraph (c) of the definition of “salary”, the following paragraph:

“(ca)

any shift allowance, attendance allowance and any other allowance which is variable in nature;”; and

(g)

by deleting the words “or contractor” in the first and second lines of paragraph (d) of the definition of “salary”.

Amendment of section 5

3. Section 5 of the principal Act is amended —

(a)

by inserting, immediately after subsection (3), the following subsections:

“(3A) In any proceedings for an offence under subsection (1), it shall not be a defence for a defendant to prove that he did not know that the worker was a foreigner unless the defendant further proves that he had exercised due diligence to ascertain the nationality of the worker.

(3B) For the purpose of subsection (3A), a defendant shall not be deemed to have exercised due diligence unless he had checked the passport, document of identity or other travel document of the worker.”;

(b)

by deleting paragraph (b) of subsection (4) and substituting the following paragraph:

“(b)

on a second or subsequent conviction, be punished —

(i)	in the case of an individual, with imprisonment for a term of not less than one month and not more than one year and shall also be liable to a fine of an amount of not less than 24 months’ levy and not more than 48 months’ levy; and
(ii)	in the case of a body corporate, with a fine of an amount of not less than 48 months’ levy and not more than 96 months’ levy.”;

(c)

by deleting the words “found to be working” in the third line of paragraph (a) of subsection (5) and substituting the words “first employed by the defendant”;

(d)

by deleting subsection (6); and

(e)

by deleting subsection (8) and substituting the following subsections:

“(8) For the purpose of subsection (4)(b), all convictions against the same person for the contravention of subsection (1) at one and the same trial shall be deemed to be one conviction.

(9) For the purpose of this section, “employ” means to engage or use the service of any person, whether under a contract of service or otherwise, with or without salary.”.

Repeal and re-enactment of section 6 and new section 6A

4. Section 6 of the principal Act is repealed and the following sections substituted therefor:

“Presumption of employment

6. Where a foreigner is found at any premises, the occupier of the premises shall be presumed, until the contrary is proved, to have employed the foreigner.

Prohibition of foreigner without work permit entering or remaining at work place

6A.—(1) No occupier of a work place who has control of access to the work place shall permit any foreigner without a valid work permit to enter or remain at the work place.

(2) Where a foreigner without a valid work permit is found at any work place, it shall be presumed, until the contrary is proved, that the occupier of the work place —

(a)	had control of access to the work place;
(b)	had permitted the foreigner to enter or remain at the work place; and
(c)	had knowledge that the foreigner did not possess a valid work permit.

(3) The presumptions provided for in subsection (2) shall not be rebutted by proof that a defendant did not know that the person was a foreigner unless the defendant further proves that he had exercised due diligence —

(a)	to prevent the foreigner from entering or remaining at the work place;
(b)	to ascertain that the person was a citizen or permanent resident of Singapore by checking his passport, document of identity or other travel documents; or
(c)	to ascertain that the foreigner had at the material time in his possession a valid work permit by checking his original work permit.

(4) For the purposes of subsection (3)(a), a defendant shall not be deemed to have exercised due diligence unless he had taken all reasonable measures to prevent any foreigner without a valid work permit from entering or remaining at the work place, including all the measures prescribed under subsection (5) in respect of the work place.

(5) For the purposes of subsection (4), the Minister may, by notification in the Gazette, prescribe the measures that are required to be taken by the occupier of the work place.

(6) Any person who contravenes subsection (1) shall be guilty of an offence and shall be liable on conviction to a fine of an amount of not less than 24 months’ levy and not more than 48 months’ levy or to imprisonment for a term not exceeding one year or to both, and in the case of a second or subsequent conviction, to a fine of an amount of not less than 48 months’ levy and not more than 96 months’ levy or to imprisonment for a term not exceeding 2 years or to both.

(7) For the purpose of this section —

“levy” means the monthly rate of levy applicable to unskilled foreign workers working at the work place at the date when the foreigner without a valid work permit was found at the work place, and a certificate issued by the Controller and tendered in court shall be prima facie evidence of such rate;

“occupier”, in relation to a work place, means the principal contractor who undertakes any construction works at the work place and includes such other person as the Minister may, by notification in the Gazette, specify to be the occupier of the work place;

“principal contractor” means a person who has entered into a contract with an owner, a developer or a lessee of a property or his agent for the purpose of carrying out any construction works, or such other works or activities as the Minister may, by notification in the Gazette, specify;

“work place” means any place or premises where works are being carried out and includes any premises within the vicinity of the work place to which the occupier has control of access.

(8) Nothing in this section shall prevent any person from being prosecuted under any other provision of this Act for any act or omission which constitutes an offence under that other provision, but no person shall be punished twice for the same offence.”.

Amendment of section 10

5. Section 10 of the principal Act is amended by inserting, immediately after subsection (3), the following subsection:

“(4) For the purpose of subsection (2)(b), all convictions against the same person for the contravention of subsection (1) at one and the same trial shall be deemed to be one conviction.”.

Amendment of section 11

6. Section 11(5) of the principal Act is amended by inserting, immediately after the word “remit”, the words “or refund”.

Amendment of section 16

7. Section 16 of the principal Act is amended —

(a)

by inserting, immediately after the word “therein” at the end of subsection (1)(a), the words “or accommodated thereat or that evidence of the commission of an offence under this Act can be found therein”;

(b)

by deleting the words “of the employment of any person” in the second and third lines of subsection (1)(d) and substituting the words “relevant to the carrying out of the provisions of this Act”;

(c)

by deleting the words “concerning the employment” in the seventh and eighth lines of subsection (1)(d);

(d)

by deleting the words “of the employment of any person” in the fourth and fifth lines of subsection (1)(e) and substituting the words “relevant to the carrying out of the provision of this Act”;

(e)

by deleting paragraph (f) of subsection (1) and substituting the following paragraph:

“(f)	to take such photographs as he thinks necessary of the premises and persons reasonably believed to be acquainted with the facts and circumstances relevant to the carrying out of the provisions of this Act; and”;

(f)

by deleting subsection (2) and substituting the following subsection:

“(2) An employment inspector may require the occupier of any premises and his agents and any person found in the premises to furnish such means required by the employment inspector as necessary for any entry, search, examination or investigation, and the taking of photographs or the taking of articles into custody or otherwise for the exercise of his powers under this Act.”; and

(g)

by inserting, immediately after the word “premises” in the eighth line of subsection (4), the words “or who is the principal contractor”.

New sections 16A to 16D

8. The principal Act is amended by inserting, immediately after section 16, the following sections:

“Change of address

16A.—(1) Every employer shall inform the Controller in writing of any change in his address within 14 days of such change.

(2) Where the employer is an individual, he shall be deemed to have complied with subsection (1) if he had reported the change of his place of residence under section 8 of the National Registration Act [Cap. 201].

(3) Where the employer is a body corporate incorporated under the Companies Act [Cap. 50] or a sole proprietorship or a firm registered under the Business Registration Act [Cap. 32], the employer shall be deemed to have complied with subsection (1) if he had reported the change of the address of the registered office or place of business under section 143 of the Companies Act or section 12 of the Business Registration Act, as the case may be.

(4) The addresses as reported in subsection (2) or (3) shall, unless the employer informs the Controller in writing to the contrary, be deemed to be the last known address of the employer for the purpose of section 16B.

Service of notices

16B.—(1) Every notice, order or document required or authorised by this Act or any regulations made thereunder to be served on any person may be served —

(a)	by delivering it to the person or to some adult member or employee of his family at his last known place of residence;
(b)	by leaving it at his usual or last known place of residence or business in an envelope addressed to him; or
(c)	by sending it by ordinary or registered post addressed to the person at his usual or last known place of residence or business.

(2) Where any notice, order or document is served by ordinary or registered post, it shall be deemed to have been duly served at the time it would have been received in the ordinary course of post if the notice, order or document is addressed —

(a)	in the case of a company incorporated in Singapore, to the registered office of the company;
(b)	in the case of a company incorporated outside Singapore, either to the individual authorised to accept service of process under the Companies Act [Cap. 50] at the address filed with the Registrar of Companies, or to the registered office of the company wherever it may be situated;
(c)	in the case of an individual, a partnership or a body of persons, to the last known business or private address of such individual, partnership or body of persons.

(3) Where any notice, order or document is served by registered post in accordance with subsection (2), in proving service of the notice, order or document, it shall be sufficient to prove that the envelope containing the same was properly addressed, stamped and posted by registered post.

(4) Every notice, order or document to be given by the Controller under this Act shall be signed by the Controller or by some person or persons from time to time authorised by the Controller in that behalf and every such notice, order or document shall be valid if the signature or an official facsimile thereof of the Controller or of such person or persons is duly printed or written thereon, except that any notice or order under this Act requiring the attendance of any person or witness before the Controller shall be signed by the Controller or by a person duly authorised by the Controller.

Protection from personal liability

16C. No suit or other legal proceedings shall lie against the Controller or any employment inspector or other person acting under the direction of the Controller for anything which is in good faith done or intended to be done in the execution or purported execution of this Act.

Offence by body corporate

16D. Where an offence under this Act or any regulations made thereunder is committed by a body corporate, and it is proved to have been committed with the consent or connivance of, or to be attributable to any act or default on the part of, any director, manager, secretary or other similar officer of the body corporate, or any person who was purporting to act in any such capacity, he, as well as the body corporate, shall be guilty of that offence and shall be liable to be proceeded against and punished accordingly.”.

Amendment of section 19

9. Section 19 of the principal Act is amended by deleting subsection (2) and substituting the following subsection:

“(2) Where an occupier is charged for abetting another person who has employed a foreign worker in contravention of section 5(1), it shall not be sufficient for the occupier to prove in his defence that he had instructed the other person not to, or obtained from the other person an undertaking that he would not, so employ a foreign worker.”.

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