Harsher penalties on discriminatory employment practices in Singapore

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The Fair Consideration Framework (the FCF) was updated in January 2020 to impose harsher penalties on employers found to be engaging in discriminatory practices such as by favouring the hiring of foreigners over Singaporeans.

The FCF sets out requirements for all employers in Singapore to consider the workforce in Singapore fairly for job opportunities. Employers should not discriminate on characteristics that are not related to the job, such as age, gender, nationality or race. All employers are expected to comply with the FCF, the Tripartite Guidelines on Fair Employment Practices and the FCF job advertising requirements.

One of the main requirements under the FCF is that employers are required to first advertise the role on MyCareersFuture.sg, and consider all candidates fairly before making the relevant employment pass application. The only exceptions to the advertisement requirements are where (a) the company has fewer than ten employees, (b) the fixed monthly salary for the vacancy is SGD15,000 and above, (c) the vacancy is to be filled by an intra-corporate transferee as defined by the World Trade Organisation's General Agreement on Trade in Services or (d) the vacancy is short-term i.e. not more than one month. Additionally, the advertisement must inter alia, not contain discriminatory words or phrases such as words which favour a gender, race, religion, age, language or marital status.

Employers who are found to exhibit discriminatory practices will be barred from applying for new work passes for a minimum of 12 months and a maximum of 24 months, up from the prior maximum of six months. Additionally, such employers will also be prohibited from renewing any existing employment passes whilst they were previously able to renew such passes prior to the update. Given that most work passes are for a two or three year duration, one-third to half of the work passes cannot be renewed for a 12 month ban whilst up to all work passes cannot be renewed for a 24 month ban. In addition, the Ministry of Manpower (the "MOM") will prosecute errant employers or key personnel who make false declarations that they have considered all candidates fairly. Employers convicted of a false declaration under the Employment of Foreign Manpower Act will face imprisonment of up to two years, or a fine of up to SGD20,000, or both.

Since the changes to the FCF have been implemented, five employers have been penalized with the 12 to 24 month ban on hiring new foreign workers and renewing existing work passes. The MOM stated that these employers had either treated the FCF job advertising requirement as a paper exercise where they had pre-selected the employment pass applicant or failed to fairly consider local candidates.

Separately, employers can also be placed on a FCF watchlist if they have an exceptionally high ratio of foreign professionals, managers, executives or technicians or a very high concentration of a single nationality. These employers are given six months to improve their HR practices with the 'Tripartite Alliance for Fair Employment Practices' (TAFEP) help with the MOM curtailing an employer's work passes if they do not respond to the TAFEP's call to correct its processes.

Given the recent update, employers should examine their hiring practices and ensure that the FCF requirements including the advertising requirements are complied with such that local candidates are considered for the role. This could be substantiated practically with a thorough selection and interview process where the local candidates are considered objectively alongside the foreign employment pass candidate.

Disclaimer: DLA Piper is restricted for regulatory reasons from practicing local law in Singapore, as are most international law firms. Where advice on Singapore law is required, we will work with a local firm to provide such advice while leveraging our own knowledge and experience as international counsel in international advisory and transactional work.