The Employment Law Review: Singapore

Introduction

The Employment Act serves as the central piece of employment legislation in Singapore, outlining salient terms and conditions for employment, and the rights and responsibilities of employers and employees under contracts of service. The Act affords essentially all private sector employees in Singapore coverage under its core provisions, regardless of position or salary level. However, it excludes Singapore government or statutory board employees, seafarers and domestic workers from its coverage.

Part IV of the Employment Act provides additional protection (such as mandatory rest days, overtime pay and maximum hours of work) to select groups of employees, namely workmen (essentially manual labourers) earning a maximum of S$4,500 as a basic monthly salary, and those other than workmen and persons employed in managerial or executive positions (including professionals) earning a maximum of S$2,600 as a basic monthly salary.

In addition to the Employment Act, other statutes govern specific aspects of employment, including the Retirement and Re-Employment Act, the Child Development Co-savings Act (concerning parental leave), the Employment of Foreign Manpower Act, the Workplace Safety and Health Act, the Employment Claims Act 2016 and the Personal Data Protection Act 2012. Singapore's Tripartite Alliance for Fair and Progressive Employment Practices (TAFEP) also issues guidelines and advisories. While some are non-binding in nature and provide best-practice guidance, there are other guidelines that employers, the relevant courts and tribunals are statutorily required to have regard to, a notable example being the Tripartite Guidelines on Wrongful Dismissal. In practice though, given how TAFEP and the Ministry of Manpower (MOM) of Singapore have been actively looking into complaints relating to non-compliance with Tripartite guidelines and advisories, employers would be best served to try to comply wherever possible.

In addition to the Personal Data Protection Act 2012, which is enforced by the Personal Data Protection Commission (PDPC), the other employment-related statutes are primarily enforced by the courts (including the Employment Claims Tribunal (ECT), the Industrial Arbitration Court (IAC)) and the MOM. Certain types of employment-related claims may be heard at first instance before the ECT, a division of the state courts. The ECT was established under the Employment Claims Act 2016 to facilitate quick and affordable access to justice for employees who cannot afford legal representation. Employees may bring both salary-related and wrongful dismissal claims before the ECT, with each claim capped at S$20,000, or S$30,000 if the employee is assisted by a union. Before a claim can be made before the ECT, a request must be made for mediation before the Tripartite Alliance for Dispute Management (TADM).

Year in review

i New and updated advisories and guidelines

With covid-19 bringing major disruption to the economy and the livelihoods of many, the Tripartite Advisory on Managing Excess Manpower and Responsible Retrenchment (the Retrenchment Advisory) was updated twice in 2020. Notably, the latest version of the Retrenchment Advisory provides examples of cost-saving measures and a 10-step retrenchment checklist, offering important guidance to employers wishing to implement cost-saving measures or conduct a retrenchment exercise. Recognising the importance of employees' mental well-being, TAFEP also released a Tripartite Advisory on Mental Well-being at Workplaces in 2020, encouraging employers to support their employees' mental health and providing resources that employers, employees and self-employed persons can tap into.

Moreover, a multitude of covid-19 specific advisories were issued by the MOM, including Safe Management Measures aimed at minimising the spread of covid-19 in the workplace. These Measures have statutory force under the Covid-19 (Temporary Measures) Act and its subsidiary legislation, and non-compliance will be met with 'stop-work' orders and fines. The MOM has also issued various covid-19-specific advisories relating to cost-savings and retrenchment, which supplement the Retrenchment Advisory.

ii Retrenchment exercises

Not unexpectedly, there was a high number of high-profile retrenchment exercises in 2020, including those conducted by national carrier Singapore Airlines, iconic departmental store Robinsons, and tourism and hospitality heavyweight Resorts World Sentosa. Under close scrutiny by the relevant authorities, most of these employers duly abided by the Retrenchment Advisory and consulted trade unions, where applicable. That was not initially the case with aircraft maintenance company Eagle Services Asia, however, and it represents a useful case study on what could occur if the Retrenchment Advisory is not followed.

In July 2020, while conducting retrenchment-related negotiations with three trade unions, Eagle Services Asia abruptly and unceremoniously asked many of its employees to leave work. It was reported that some employees were also denied entry into the workplace.2 The trade unions involved stepped in quickly, making strong comments about the employer's lack of transparency and disregard for negotiations. Having conducted a secret ballot, the three unions involved then cleared the legal prerequisites to call a strike.3 Ultimately, and following further talks with unions, a strike was averted and the retrenched workers received a compensation package that was finally in line with the Retrenchment Advisory – one months' salary per year of service, capped at 25 months, among other benefits.4 This was very significant, as there has not been a union-endorsed strike in Singapore in more than 30 years.

With the increasing attention on retrenchment exercises and employee unions actively intervening in these exercises, employers in Singapore contemplating retrenchment exercises are strongly encouraged to comply with the Retrenchment Advisory and all other related advisories, notwithstanding that these are not strictly statutorily binding. This is discussed further in Section XIII.vii.

iii Refreshed work pass and fair consideration frameworks

Amid increasing concerns about the job security of Singaporeans in light of the pandemic, the MOM has tightened the applicable requirements for foreign workers to obtain work passes. Notably, the minimum salary for foreign professionals, managers and executives to apply for an Employment Pass (EP) was raised from S$3,600 a month to S$3,900 in May 2020, and then to S$4,500 in September 2020 (it was also clarified for the first time that more senior would-be EP holders in their 40s would need a salary at least double the minimum level). As of 1 December 2020, the minimum EP qualifying salary for the financial services sector was further raised to S$5,000. As for S Passes (suitable for skilled workers such as technicians), the qualifying monthly salary was raised from S$2,300 to S$2,400 in January 2020, and now stands at S$2,500 as of October 2020. Work passes are discussed further in Section VII.

Alongside this, the MOM has also revised its Fair Consideration Framework, seeking to ensure that due consideration is given to local job applicants before an employer hires a foreigner. Since October 2020, all employers have been required to advertise job openings on the national jobs portal MyCareersFuture.sg for 28 days (doubled from the previous 14 days) before they are allowed to apply for EPs or S Passes (previously, this only applied to EPs).

Anecdotal feedback also indicates increased scrutiny by the MOM of discriminatory hiring practices (e.g., when employers put up advertisements without actually considering applications from local candidates, having already selected a foreigner). Employers with discriminatory hiring practices may now find themselves unable to apply for or renew work passes for up to two years.

The year 2020 also saw the MOM's first prosecution of a company and its sole director who, in the course of submitting an EP application for a prospective foreign employee, falsely declared that it had interviewed and considered local candidates fairly. The company was fined S$18,000 and barred from applying for work passes for two years.5 Employers should therefore ensure that the Fair Consideration Framework and the relevant advertising requirements are complied with, both in form and substance.

iii Raising of retirement and re-employment ages

Employers are statutorily obliged to re-employ eligible employees who have reached Singapore's retirement age (presently 62) until they reach the statutory re-employment age (presently 67). Some employees, such as foreigners on work passes, are not eligible for re-employment. If re-employment is not feasible, an employment assistance payment (EAP) must be provided (see Section XIII.vi).

By 1 July 2022, the retirement and re-employment ages will be raised to 63 and 68 respectively. The Central Provident Fund (essentially a mutually funded mandatory social security scheme for Singaporean citizens and permanent residents) contribution rates for older workers will also increase from 1 January 2022, and the recommended EAP amount will increase from 1 July 2022.6 The statutory retirement and re-employment ages will be raised incrementally, up to 65 and 70 respectively, by 2030.

Significant cases

i Sameer Rahman v. Nomura Singapore Ltd7

In 2019, the introduction of the Tripartite Guidelines for Wrongful Dismissal and the amendments to the Employment Claims Regulations 2017 empowered the ECT and any courts hearing ECT appeals to award damages of up to six months' salary for wrongful dismissal per se (i.e. for loss of income and harm caused to the employee from the wrongful dismissal), as distinct from any claims for salaries, bonuses or retrenchment pay. (These types of claims are further discussed in Section XIII.v.) However, it did not address the question of whether courts of first instance could also grant such damages.

The 2020 High Court decision in Sameer Rahman v. Nomura Singapore Ltd is the first wrongful dismissal case decided since then. An employee who was dismissed without notice or salary in lieu of notice commenced a claim for wrongful dismissal and seeking, among other things, payment of two months' salary in lieu of notice and aggravated or punitive damages. The employer applied to strike out the employee's claim. On appeal, the High Court struck out the employee's 'obviously unsustainable' claim for aggravated or punitive damages, referring to a 2014 Court of Appeal decision8 that essentially held that it would be inconsistent with an employer's contractual right to terminate employment relationships if damages extending beyond the amount of salary payable for the contractual notice period were granted, even in a case of wrongful dismissal.9

Taking this High Court decision at face value, it would appear that wrongful dismissal damages are not claimable per se before the courts (as distinct from the ECT and ECT appeals). It is notable, however, that the employee here was dismissed in 2018, before the 2019 changes to the employment regime, and neither the Tripartite Guidelines for Wrongful Dismissal nor the Employment Claims Regulations 2017 were discussed in the case at all. The 2014 decision referred to by the High Court was likewise decided prior to the said guidelines and regulations. Nevertheless, this case is still the latest binding legal authority, and employees looking towards commencing wrongful dismissal claims outside the ECT because of the quantum of their claims (see Section XIII.v) should take note of this.

ii I-Admin (Singapore) Pte Ltd v. Hong Ying Ting and others10

Armed with clear evidence that former employees who had set up a competing business had taken its confidential information, payroll services provider I-Admin commenced proceedings against the former employees for breach of confidence (among other things). However, I-Admin could not show unauthorised use by the former employees of the confidential information in question.

The Court of Appeal held that, in a claim for breach of confidence, although the court should still consider whether the information taken had the necessary quality of confidence and was imparted in circumstances that created an obligation of confidence, a plaintiff does not need to go further to show that there was unauthorised use of the information. Instead, once the aforementioned requirements are fulfilled, a cause of action for breach of confidence is presumed, and the onus would be on the defendants to prove that their conscience was clear and to account for their suspected wrongdoing.11 On this modified approach, I-Admin succeeded in its claims for breach of confidence against its former employees.

This modified approach to breach of confidence claims accords with practical realities and removes the onerous requirement of showing unauthorised use even where there is clear evidence of confidential information being copied or removed. The court observed here that it is now significantly easier for employees to gain access to, copy and disseminate vast amounts of confidential information, such that 'if at some point they were to proceed to surreptitiously download this information for their personal use or to start a competing business, employers are likely to be none the wiser for a considerable time'.12

Basics of entering into an employment relationship

i Employment relationship

At common law, contracts of employment or of service (as opposed to contracts for service, which are independent contractor relationships) can be formed in writing, orally or by conduct. An employee does not necessarily need to sign a written employment contract for the terms of employment to be enforceable, though evidentiary issues may arise when there is no written contract.

However, employers in Singapore are now statutorily required to set out certain key employment terms (KETs) in writing, and to issue a copy of these written KETs to all employees covered by the Employment Act (those hired on or after 1 April 2016) within 14 days of commencing employment. The KETs must include provisions relating to, among other things, payment of salary, allowances and other salary-related payments, such as bonuses and incentives, leave entitlement and termination notice periods.

Employers should ensure that any onerous financial terms are set out expressly and unambiguously in employment contracts, and specifically brought to employees' attention where possible. This is important, as the courts have leaned in favour of the employee when construing onerous terms in employment agreements,13 and have also endorsed the concept of an implied duty of mutual trust and confidence between employers and employees.14

Fixed-term employment contracts are not uncommon and are enforceable, and may potentially be terminated prior to the expiry of the fixed term (depending on their provisions). In the absence of an agreement otherwise, the notice period for termination of a fixed-term contract should be not less than the minimum notice periods prescribed by the Employment Act (see Section XIII.iv).15

The distinction between independent contractors and employees is that 'independent contractors' include freelancers and gig workers, who are engaged through contracts for services and are not presently entitled to any statutory rights or protection under Singapore law in their capacity as independent contractors, whereas 'employees' are hired through contracts of service and entitled to statutory employee rights and protections. There is no bright-line test applicable to distinguish between the two categories; if engaged, the courts will determine the question holistically with regard to all relevant factors. Employers should exercise prudence, therefore, in determining whether an individual is an independent contractor or employee, and err on the side of caution when in doubt. Failure to provide employment benefits where they are due could result in claims by the individual or even prosecutions under the relevant statutes.

In Public Prosecutor v. Jurong Country Club and another appeal,16 the country club was convicted at the district court for failing to make Central Provident Fund contributions to an individual whom the district court held was an employee (and, as a Singaporean, ought therefore to have been receiving the contributions). On appeal though, the High Court overturned the conviction and agreed with the club's assessment that the individual was in fact an independent contractor (and accordingly not entitled to the contributions as a non-employee).

Another important distinction must be made between employees who are covered by Part IV of the Employment Act (and who are therefore entitled to additional protections) and employees who are not (see Section I). Employers ought also to exercise prudence in making this determination and refrain from making arbitrary classifications.

In the 2018 High Court decision in Hasan Shofiqul v. China Civil (Singapore) Pte Ltd,17 the employer had argued that an employee was not entitled to overtime pay under Part IV of the Employment Act because he held the title of construction site supervisor (and, therefore, was a manager or executive). However, the High Court disagreed and found that the employee was not employed in a managerial or executive position on the facts, and therefore entitled to statutory overtime pay. As a result, the employer was ordered to pay the employee all overtime accrued until his contract was terminated.

ii Probationary periods

Probationary periods are allowed and are generally between one and three months. The contractual notice period for dismissal is, in practice, shorter during probationary periods (e.g., one week, as opposed to one month post-probation). There are currently no statutory requirements in this respect, save that probationary periods must be expressly stated as a KET (see Section IV.i).

iii Establishing a presence

A foreign company must be registered in Singapore to carry on business in Singapore. In this respect, the hiring of employees (local or foreign, through an agency or another third party) or agents to conduct the company's affairs and operations in Singapore would generally be considered as carrying on business in Singapore. On the other hand, registration is unlikely to be required when only an isolated transaction is contemplated.

Carrying on business in Singapore or having a permanent establishment (PE) in Singapore is likely to attract corporate income tax liability as long as the income is accrued in or derived from Singapore, or received in Singapore from outside Singapore in respect of gains or profits. Singapore's Income Tax Act defines a PE as having a fixed place from where a business is wholly or partly conducted. A person is also deemed to have a PE in Singapore if that person has another person acting on his or her behalf in Singapore who has and habitually exercises authority to conclude contracts.

For employees, income tax is determined by the employee's residence status as well as the source of his or her income. Employers are obliged to report employee earnings to the Inland Revenue Authority of Singapore and withhold salary payments for tax purposes when the employment is terminated. For example, before a non-Singapore citizen employee ceases employment, the employer is generally required to withhold all moneys due to the employee until tax clearance with the Inland Revenue Authority of Singapore is completed.

Restrictive covenants

Under Singapore law, restraints of trade are generally contrary to public policy and, therefore, unenforceable. The exception, as held by the Court of Appeal in Man Financial (S) Pte Ltd (formerly known as E D & F Man International (S) Pte Ltd) v. Wong Bark Chuan David (Man Financial),18 is where a restrictive covenant (1) seeks to protect a legitimate proprietary interest of the employer, and (2) satisfies the twin tests of reasonableness, namely, that the clause is reasonable between the parties concerned and with respect to the interests of the public as a whole.

i Confidentiality, non-solicitation and non-poaching clauses

In Man Financial, the High Court recognised three legitimate proprietary interests in the employment context: (1) trade secrets and confidential information; (2) trade or business connections (clients and customers); and (3) the maintenance of a stable, trained workforce (staff). In practice, these are commonly protected through confidentiality, non-solicitation (of clients and customers), and non-poaching (of employees) clauses. Confidential information can also be generally protected at common law.

Care should be taken to ensure that the restraints are reasonable, though. For example, the court in Man Financial held that the courts will not sanction a covenant seeking to prevent an employee from exercising his or her own natural skill, talent and abilities, even if these were acquired or improved during the course of employment. Employers should also be mindful of the geographical scope and duration of any non-solicitation and non-poaching restraints, and should refrain from imposing blanket worldwide restrictions. Further, restraints should ideally be referable to individuals over whom the former employee had influence, and should also consider the types of employees that should not be poached. Periods of restraints of up to one year can be enforced. Although there is no clear prohibition against longer periods, and restraints of up to two years have been allowed in certain specialist industries,19 the length of the prohibition period may affect the overall enforceability of the clause.

ii Non-compete clauses

Under Singapore law at present, non-compete clauses are difficult to uphold and enforce if the three recognised legitimate proprietary interests identified in Section V.i are already protected by other clauses. In its 2005 decision in Stratech Systems Ltd v. Nyam Chiu Shin,20 the Court of Appeal found that the employer that sought to enforce a non-compete clause was unable to demonstrate any other legitimate proprietary interest that required protection, apart from the interests already protected by other restrictive covenants (in that case, a confidentiality clause). As such, the Court concluded that the main function of the non-compete clause was to inhibit competition and, therefore, was unenforceable. The Court of Appeal in Man Financial reaffirmed the principle in Stratech and took the view that it would apply equally in the context of other legitimate proprietary interests (i.e., not just confidentiality).21

The correctness of the Stratech proposition has since been doubted (although nevertheless still followed and applied),22 or otherwise not expressly considered in the High Court.23 There are also High Court decisions that apply the Stratech proposition in a straightforward manner.24 It would be interesting if an appropriate case were to be brought before the Court of Appeal for a fresh decision on whether the Stratech proposition remains good law. Until then though, given the binding nature of Court of Appeal decisions over the High Court in Singapore's legal system, employers should as a matter of prudence treat the Stratech proposition as continuing to apply.

Even when the Stratech proposition presents no bar to the enforcement of a non-compete clause (i.e., when some or all of the other restrictive covenants are absent), non-competition restraints will in any event only be enforceable if they are reasonable (as with other restraints). In this respect, the court will consider the types of employees sought to be restrained, over and above other common factors (i.e., the scope of activities restrained, the geographical scope of restraint and the period of restraint). Notably, the High Court in Powerdrive Pte Ltd v. Loh Kin Yong Philip and others25 observed and reaffirmed that a non-compete clause indiscriminately used against all employees (without regard to seniority, nature of work or access to information) would suggest that the true purpose of the clause was to restrain competition rather than protect an employer's legitimate interest, which would make the clause unenforceable. The Court further noted that the two-year duration of the non-competition restriction appeared to be 'arbitrarily selected' in that particular case.26

iii Severance

If a restrictive covenant is directed at protecting a legitimate proprietary interest but is too wide and unreasonable to be enforceable, the court may sever some portions of the relevant clause so that the remainder becomes reasonable and enforceable. This 'blue-pencil' test allows for severance by deletion but not addition or other amendment.

Significantly, in Smile Inc Dental Surgeons Pte Ltd v. Lui Andrew Stewart,27 the Court of Appeal indicated that it was not in favour of the 'notional' severance approach in which a court applies the flexible 'reading-down' test by modifying or adding to the clause as appropriate. As such, a restrictive covenant with an unreasonably long period of restraint (e.g., three years) cannot be notionally read down (e.g., to one year) and, therefore, could be struck out in its entirety as unreasonable. The subsequent High Court decision in Lek Gwee Noi v. Humming Flowers & Gifts Pte Ltd 28 also opined that cascading clauses, which consist of multiple overlapping periods and areas of restraint, to specifically allow the offending clauses to be blue-pencilled out, offend against public policy as they increase rather than reduce uncertainty. Employers should draft reasonable restraints at the outset, therefore, instead of drafting unreasonably long or cascading periods of restraint in trying to potentially obtain maximum protection, then subsequently relying on the courts to read down the provision to make it enforceable where necessary.

iv Deferred bonuses

A potential way to achieve a similar result to a non-compete clause may be to expressly incentivise employees not to compete, or disincentivise employees from competing, for a specific period after employment. However, the employer should take great care in doing so as the courts have held that clauses that deprive employees of vested rights (e.g., bonuses to which an employee is already entitled) can also amount to restraints of trade and can be unenforceable if unreasonable.29

v Springboard injunctions

Injunctive relief may also be granted to prevent a person who has obtained confidential information from using it as a springboard for activities detrimental to the person, including an entity, to whom the confidential communication belongs, or to gain an unfair advantage over, or a head start on, that person. Although similar in effect to an injunction based on express restrictive covenants, springboard injunctions originate from cases involving a breach of the duty of confidence, and do not exclusively arise in employer–employee situations. Accordingly, a springboard injunction may even be granted in the absence of any express restrictive covenants, although the presence of these would certainly be relevant. There has only been one reported instance of a springboard injunction being granted, though,30 and even that decision was overturned on appeal (there were no written grounds of decision rendered, so it remains unclear why and on what basis the decision was overturned). Employers should ensure, therefore, that where necessary, express, suitable and enforceable restrictions are included in an employee's contract.

Wages

i Working time

Generally, employees covered by Part IV of the Employment Act (see Sections I and IV, above) cannot be required to work for more than eight hours a day (or nine hours a day in a working week that is five days or fewer) or 44 hours a week, or work for more than six consecutive hours without a leisure period. Under exceptional circumstances (e.g., urgent work, or work essential for defence or security), these employees may be permitted to exceed the aforementioned daily limit, provided they still do not work for more than 12 hours a day.

Employees covered under Part IV of the Employment Act are also allowed one whole day (or for shift workers, any continuous period of 30 hours) as a rest day each week without pay. The employer can determine which day of the week the rest day shall be, which is usually Sunday by default. However, these employees may elect to work on, and be remunerated for, the rest day.

No statutory restrictions as to working hours, days or periods presently apply to employees not covered by Part IV of the Employment Act (see Sections I and IV, above, for a more detailed discussion of the distinction between employees covered by Part IV of the Act and those who are not), and any such restrictions would be a matter of contract between the employees and their employers.

ii Overtime

An employee covered by Part IV of the Employment Act (see Sections I and IV, above) must be paid for overtime at a rate of not less than one-and-a-half times the employee's basic hourly rate of pay, or twice the rate if the employee is requested by the employer to work on a rest day. Overtime payments must be made to the employee within 14 days of the last day of the employee's salary period.

In addition, an employee covered by the Employment Act, regardless of whether he or she is also covered by Part IV, and is required by his or her employer to work on any public holiday is entitled to an extra day's salary at the basic rate of pay. Alternatively, and provided that the employee is not covered by Part IV of the Employment Act, he or she may be given a day off or a part thereof in lieu of an extra day's salary.

An employee may work overtime at higher rates of pay for more than the aforementioned numbers of hours or on a rest day, provided that no employee works overtime for more than 72 hours in a month.

Foreign workers

The principal statutes governing employment of foreign workers are the Employment Act and the Employment of Foreign Manpower Act (EFMA). Under the EFMA, no foreign employee may be employed or work without a valid work pass (with limited exceptions depending on the type of work being carried out). In addition, all employers are required to keep a register of foreign employees to whom they have issued work passes. The more common types of work passes include Work Permit, S Pass and EP. These are valid only for the employer, type, place or time of employment expressly specified, and each work pass is issued with mandatory conditions that the employer and foreign employee must follow.

Work Permits are usually applicable to manual or unskilled workers (e.g., construction workers) or domestic helpers. They typically last two years, with limitations on quotas and maximum employment periods, depending on the industry sector, and an employee's skill level and nationality. S Passes are usually issued to skilled workers (e.g., technicians), and quotas are applicable to each employer. Unlike Work Permits, S Passes do not have maximum employment periods. EPs are suitable for foreign professionals, managers and executives, with no quota restrictions and maximum employment periods. Although not applicable for Work Permits, minimum monthly qualifying salaries are applicable for S Passes (at S$2,500) and for EPs (presently at S$5,000 for the financial services sector and S$4,500 for other sectors, with higher salaries required for more senior employees – e.g., double the minimum level for employees in their 40s).

Before applying for S Passes and EPs, employers are obliged to post the relevant job advertisements on MyCareersFuture.sg, the national jobs portal, to ensure fair consideration of local candidates. The job advertisements should remain available and open for 28 days, and foreign workers should not be selected before advertisements are posted. Non-compliance can be met with administrative action, and employers could find themselves barred from applying for or renewing work passes for up to two years, or even subject to prosecution.

Foreign workers are not entitled to benefits that only Singaporean citizens or permanent residents qualify for, such as Central Provident Fund contributions. As for taxes, employers are not required to pay taxes for foreign employees, but are required to observe the tax reporting and tax clearance procedures as explained in Section IV.iii.

Global policies

Singapore has no specific laws mandating the implementation of internal disciplinary rules and procedures by employers, though the Tripartite Guidelines on Fair Employment Practices require that employers (1) set out their disciplinary procedures and policies for breaches of conduct, (2) set up mechanisms to deal with complaints of discrimination and (3) communicate the foregoing clearly to their employees. Other materials, such as a Tripartite Advisory on Managing Workplace Harassment and Tripartite Standards on Grievance Handling, have also been published, with a Grievance Handling Handbook on requirements and guidelines on managing grievances within the workplace. Although these particular Tripartite advisories and guidelines are not legally binding per se, the MOM has warned that non-compliance may result in administrative actions, including the curtailment of an employer's work pass privileges.

In practice, many employers in Singapore, especially multinational companies, institute internal disciplinary rules and policies with respect to issues such as discrimination, corruption and sexual harassment. These policies are commonly made accessible to employees on a company's intranet or detailed in a company's human resources policies or employee handbook, and are usually expressly incorporated into employment contracts.

Parental leave

i Regimes under Employment Act and Child Development Co-Savings Act

Parental leave is governed by the Employment Act and the Child Development Co-Savings Act (CDCA). Generally, to qualify for parental leave under the Employment Act, an employee must have worked for the employer for at least three months; however, to be eligible for parental leave under the CDCA, the employee's child must be a Singapore citizen, which is generally the case if at least one parent is a Singapore citizen, and the child is either born in Singapore or (if born outside Singapore) the child's birth is duly registered in Singapore within a year. The employee must also have worked for the employer for at least three months before the child's birth or adoption (as the case may be).

Parental leave entitlements are generally greater under the CDCA, and employers may seek partial or full reimbursement from the Singapore government for payment of parental leave benefits of employees covered by the CDCA, although caps apply both to the sums an employer is obliged to pay to its employee, and to the government reimbursements available. Leave entitlements under the Employment Act are generally less favourable (see below), and no government reimbursements can be applied for to cover these benefits. Once an employee is entitled to parental leave under the CDCA, the employee will no longer be entitled to parental leave under the Employment Act.

There are also elements common to both statutory regimes. For example, under both statutes, it is not lawful for an employer to give a female employee notice of dismissal (or termination) while she is on maternity leave or such that the notice period will expire while she is on maternity leave. Although it is not entirely clear from the relevant statutes, this prohibition is also likely to apply to a dismissal issued with immediate effect by payment in lieu of notice (i.e., the notice period, if fully served, would have expired while the employee was on maternity leave).

Further, if an employer gives a female employee notice of dismissal (or termination) without sufficient cause (or on grounds of redundancy or reorganisation) while she is pregnant but prior to her maternity leave, the notice of dismissal cannot deprive the employee of any payments or entitlements that she would otherwise have received had she not been dismissed. This is the case even if the notice period would expire prior to the maternity leave. In other words, the employer would still have to pay the employee for her paid maternity leave.

A contract that purports to deprive a female employee of her statutory maternity benefits or reduce an employer's obligations in this respect will be null and void. It is also generally an offence to refuse to allow an employee to take parental leave. Over and above all this, an employee who takes the view that he or she has been dismissed for a wrongful reason (for example, because the employer was seeking to deprive the employee of his or her statutory entitlements) may commence a claim for wrongful dismissal against the employer (see Section XIII.v).

ii Types of parental leave

Singapore law affords the following types of parental leave, provided that the employee fulfils the relevant qualifying criteria under the relevant statute, as described below:

Type of leaveUnder the CDCAUnder the Employment ActApplicable to
Maternity16 paid weeks8 paid weeks, plus 4 unpaid weeksPregnant and qualifying working mothers
Adoption12 paid weeksNoneAdoptive and qualifying working mothers
Paternal2 paid weeksNoneQualifying working fathers
Shared parentalUp to 4 paid weeksNoneWorking fathers wishing to share in the working mother's maternity leave; the working mother's maternity leave will be reduced correspondingly
Infant care6 days of unpaid leave per yearNoneQualifying parents with children under the age of two
Childcare6 days of paid leave pear year2 days of paid leave per yearQualifying parents with children under the age of seven
Extended childcare2 days of paid leave per yearNoneQualifying parents with children between seven and 12 years of age

Parents who qualify for both childcare leave and extended childcare leave under the CDCA are also not allowed to take more than a combined total of six such leave days in a year.

Translation

Singaporean commercial contracts, including employment contracts, are generally in English, which is the language of business in Singapore. However, this does not mean that employment contracts not in English will not be upheld. In fact, employers are encouraged to adopt the language that its employees can understand, especially with respect to KETs. There is also no legislation or guidelines requiring translation of employment-related documents (if in another language) into English, though this would be necessary before such documents may be received, filed or used in the Singapore courts.

Employee representation

The Trade Unions Act allows employees to form or join trade unions to regulate their relationships with their employers through collective agreements. Professionals, managers and executives (or PMEs) may also be collectively represented by trade unions. That said, where the majority of a trade union's membership is made up of non-PMEs, it will not be able to collectively represent PMEs if there is a real or potential conflict of interest between the PMEs and the non-PMEs, or if management effectiveness may be undermined.

Once formed and registered with the Registrar of Trade Unions, a trade union may approach an employer for statutory recognition under the Industrial Relations (Recognition of a Trade Union of Employees) Regulations. Upon recognition, a trade union can invite the employer to negotiate a collective agreement for its relevant employees, pursuant to the Industrial Relations Act. This agreement would then govern the employment relationship between the employer and the unionised employees. The unions may also assist individual unionised employees in negotiating better bonuses, salary increments and other benefits. They could also facilitate collective negotiations and, as described in Section II.ii, unions have been seen to take quite an active role in negotiating retrenchment benefits. A fair number of larger companies and multinationals in Singapore have granted statutory recognition to, and negotiated collective agreements with, trade unions.

It is difficult for an employer to refuse to recognise a trade union at law in the long run. If an employer continually refuses, the MOM Commissioner for Labour may call for a secret ballot of the employees entitled to vote, and if a majority of those employees are members of that trade union, the employer must give it recognition. If the majority is not met, then the union is precluded from seeking recognition again for six months. If the employer refuses to negotiate a collective agreement, a statutory trade dispute will exist, which will have to be determined by the IAC, where legal representation is not allowed. Prior to that, the Commissioner for Labour from the MOM may intervene to facilitate reconciliation between the parties.

Technically, a registered trade union is also able to commence, promote, organise and finance a strike or industrial action, but it may only do so in very limited circumstances – the majority of affected members must consent to strike through a secret ballot, and under the Trade Disputes Act an industrial action is illegal if (1) it has any other object than the furtherance of a trade dispute, (2) it is in furtherance of a trade dispute of which the IAC has cognisance, or (3) it is designed or calculated to coerce the government either directly or by inflicting hardship on the community.

Union-led strikes are very rare in Singapore. In 2020, three unions did commence and fulfil the legal prerequisites to conduct a strike (in the case of Eagle Services Asia), but a strike was averted as, ultimately, the unions and the employer were able to agree on the retrenchment benefits to be provided to the affected workers. Apart from this, the last illegal strike in 2012 did not involve a union and the previous legal strike was in 1986, which lasted one day.

Data protection

The Personal Data Protection Act 2012 (PDPA) governs personal data protection and applies to all organisations except those in the public sector. It generally protects personal data, which is broadly defined as data about an individual who can be identified from that data, or in conjunction with other likely accessible information, through governing its collection, use and disclosure. Notably, amendments to the PDPA were passed in November 2020, although it remains unclear when the amendments will come into force (it may be as early as the first quarter of 2021). The PDPA is administered and enforced by the PDPC, which has also released substantive advisory guidelines informing the content and application of the PDPA.

i Requirements for registration and protection of personal data

The PDPA does not contain any express requirement for an organisation to register with the PDPC. However, it requires that an organisation designate one or more individuals to be responsible for ensuring that the organisation complies with it (i.e., a data protection officer (DPO)). The business contact information of at least one of these individuals must be made available to the public, and DPOs are encouraged to register with the PDPC.

The PDPA generally requires that an individual's consent be obtained before an organisation can collect, use or disclose personal data. This applies to all forms of relationships with companies, including clients, customers, suppliers and employees. However, the PDPA dispenses with the requirement for the individual's consent in certain situations, for example, where personal data is collected, used or disclosed for:

  1. the purposes of managing or terminating an employment relationship (the employee should still be notified of these purposes);
  2. evaluation purposes (which include determining the suitability, eligibility or qualifications of the individual for employment, promotion or removal); and
  3. investigations or proceedings.

Planned amendments to the PDPA will also allow, with some restrictions, the collection, use and disclosure of personal data without consent if this is (1) in the legitimate interests of the organisation, (2) for the purposes of business improvement or (3) for research purposes. The PDPA does not expressly differentiate between sensitive and non-sensitive personal data. The general obligation is to obtain appropriate consent before collecting, using or disclosing personal data, whether sensitive or not.

Organisations must also safeguard the personal data in their custody or control by making reasonable security arrangements to prevent unauthorised access, use, disclosure, copying, modification, disposal or other similar risks. They must destroy or anonymise personal data once the purpose for its collection has expired. Employers must also ensure that their employees understand and uphold the PDPA obligations regarding data privacy. Any conduct engaged in by an employee in the course of his or her employment is treated as also engaged in by the relevant employer, regardless of whether it was with the employer's knowledge or approval.

In 2019, the PDPC released a Guide to Managing Data Breaches addressing what organisations should do to prepare for and respond to data breaches. Among other things, organisations are required to contain any data breach that may occur, assess the data breach within 30 days of when it first becomes aware of a potential breach, and notify the PDPC within 72 hours of establishing that the data breach is likely to result in significant harm or impact to the individuals involved, or is of a significant scale. Affected individuals and other parties are also to be notified as soon as possible. The organisation should then evaluate its systems, reviewing and learning from the data breach incident to improve its personal data handling practices and prevent the recurrence of similar data breaches. These obligations will have statutory force once the amendments to the PDPA are implemented.

ii Cross-border data transfers

Under the PDPA, an organisation is not allowed to transfer any personal data to a country or territory outside Singapore except in accordance with requirements prescribed under the PDPA to ensure that organisations provide a standard of protection to personal data that is comparable to the protection under this Act. Insofar as the transfer may constitute disclosure of personal data to different organisations, consent would have to be obtained from the relevant individuals unless an exception applies. This is pertinent to multinational corporations as the personal data of employees is often transferred to offices outside Singapore.

The PDPC's Advisory Guidelines provide further guidance in this regard. Personal data may be transferred overseas provided that the PDPA's substantive data protection provisions are complied with. This may be done through ensuring that the recipient of personal data is bound by legally enforceable obligations to afford the transferred personal data a standard of protection that is comparable to that under the PDPA.

iii Background checks

Background checks are generally permissible. However, the general rule remains that an individual's consent must be provided before his or her personal data may be collected, used or disclosed, subject to certain exceptions.

Discontinuing employment

Employees may generally be dismissed in one of two ways: termination with notice or with payment in lieu of notice (i.e., dismissal without cause); or summary termination without notice or payment in lieu (i.e., dismissal for cause).

i Summary dismissal

Sections 11(2) and 14(1) of the Employment Act prescribe that termination without notice or payment in lieu of notice is only permissible (1) in the event of any wilful breach by the other party of a condition of service or (2) on the grounds of misconduct inconsistent with the fulfilment of the conditions of service. The Tripartite Guidelines on Wrongful Dismissal (the Wrongful Dismissal Guidelines) – which the ECT and the courts hearing appeals from the ECT are statutorily required to have regard to – further provide that misconduct is the only legitimate reason for dismissal without notice (it appears that the Guidelines may have subsumed the ground of wilful breach under 'misconduct'), and defines misconduct as conduct involving acts such as (non-exhaustively) theft, dishonest or disorderly conduct at work, insubordination and bringing the organisation into disrepute.

The Employment Act and Wrongful Dismissal Guidelines expressly require that an employer conduct a due inquiry process before dismissing an employee for misconduct. Although the term 'due inquiry' is not defined under the Employment Act, the MOM stipulates that, as a general guide, (1) the employee should be told of his or her alleged misconduct, (2) the employee should have the opportunity to present his or her case, and (3) the person or persons hearing the inquiry should not be in a position that may suggest bias. Though not having the force of law, the High Court has in the past referred to these guidelines in determining whether a due inquiry was carried out.31

For the purposes of conducting a due inquiry, an employer may suspend an employee from work for a period not exceeding one week, but the suspension cannot continue beyond a week unless the MOM approves a longer suspension. During the period of suspension, the employee must also be paid at least half his or her salary, and if the inquiry does not disclose any misconduct, the employer must immediately restore to the employee the full amount of salary that has been withheld.

Employers should also bear in mind that if an employee brings a wrongful dismissal claim before the ECT, the employer would bear the burden of proving that there was misconduct sufficient to warrant a summary dismissal. It would be prudent, therefore, for employers contemplating a summary dismissal to document any alleged instance of misconduct, the surrounding circumstances, the due inquiry process, as well as its final decision to summarily dismiss the employee.

ii Dismissal with notice or salary in lieu of notice

According to the Wrongful Dismissal Guidelines, legitimate reasons that may be given for dismissing an employee with notice include poor performance and redundancy. In these cases though, notice or salary in lieu of notice would still have to be provided. The employer would also need to substantiate the reason for dismissal, especially if poor performance is being relied on as a reason (and, given that it is the employer's burden to prove before the ECT that there was poor performance, the employer should have documented proof thereof). Redundancies are addressed in Section XIII.vii.

Employers are still at liberty to terminate an employee's employment with notice or salary in lieu of notice through a pure exercise of contractual rights. The Wrongful Dismissal Guidelines expressly state that this type of dismissal is presumed not to be wrongful. So, for example, and using an illustration set out in the Wrongful Dismissal Guidelines, if an employer dismisses an employee with notice without giving any reasons (and continues not to give any reasons even when asked), it would not be considered wrongful.

However, the presumption that a dismissal is not wrongful may be displaced if an employee is able to substantiate a wrongful reason for dismissal, such as discrimination (including on the basis of age, race, gender, religion, marital status, family responsibilities or disability), being deprived of an employment benefit (e.g. prior to a bonus payment), or if an employee is exercising his or her employment rights (e.g., to decline to work overtime, or possibly whistle-blowing). The Wrongful Dismissal Guidelines also provide that when an employer has provided a reason for dismissal with notice, but the reason given is later proven to be false, the dismissal may then be wrongful.

iii Termination by mutual agreement

A contract of employment can be brought to an end by way of an agreement, such as a separation or settlement agreement, between the employer and employee, which would normally contain release and discharge provisions, whether unilateral or mutual. The validity of this type of agreement is subject to provisions of the Employment Act and general common law principles. Importantly, a contractual release and discharge alone cannot bar a subsequent ECT claim, although its presence may then be taken into account by the ECT. However, a valid and enforceable contractual release and discharge should operate to bar a claim directed to the court or arbitration.

iv Notice periods

If an employment contract is silent as to the relevant notice period, the Employment Act prescribes minimum notice periods according to the employee's length of service: (1) one day for employees employed for less than 26 weeks; (2) one week for employees employed for between 26 weeks and two years; (3) two weeks for employees employed for between two and five years; and (4) four weeks for employees employed for five years or more.

v Employee recourse

Employers should also bear in mind that dismissal is statutorily defined in the Employment Act as including 'the resignation of an employee if the employee can show that the employee did not resign voluntarily but was forced to do so because of any conduct or omission, or course of conduct or omissions, engaged in by the employer'. This is a statutory recognition of the concept of constructive dismissal and, in these circumstances, employees may be regarded as having been dismissed even if it is the employee who had actually resigned.

Employees who feel that they have been dismissed without just cause or excuse (or who have other employment-related disputes) may submit the dispute for mediation before the TADM. If mediation is unsuccessful, the employee may then commence proceedings before the ECT. External legal representation is not allowed at the TADM and ECT.

Claims for wrongful dismissal must be submitted for mediation before the TADM not later than one month after the date of dismissal, and a claim before the ECT for wrongful dismissal must be lodged within four weeks of the date of issue of a claim referral certificate (which will be issued by the TADM if a dispute remains unresolved). Any party to the proceedings may, if it is dissatisfied with an ECT decision, also appeal against the decision to the High Court on the grounds that the claim was outside the ECT's jurisdiction, or on any ground involving a question of law.

The jurisdictional limit for claims brought before the ECT (and TADM) is S$20,000 per claim (or S$30,000 per claim if the employee is represented by a trade union), and an employee may potentially bring both a salary-related claim and a wrongful dismissal claim before the ECT (effectively doubling the aggregate limit to S$40,000 or S$60,000, as the case may be). The ECT may order the employer to reinstate the employee to his or her former position or compensate the employee with his or her lost wages, or both.

The Employment Claims Regulations 2017 essentially provide that where wrongful dismissal is made out, the amount of compensation to be awarded by the ECT for wrongful dismissal per se could range from zero to six months' basic salary, subject to the ECT's overall jurisdictional claim limits. This comprises compensation for the employee's loss of income and the harm caused to the employee as a result of the wrongful dismissal.

An employee is also at liberty to commence proceedings before the Singapore courts for damages. It would appear that the Singapore courts will not award damages for wrongful dismissal per se (see Section III.i), but the position remains slightly unclear. However, if other Singapore courts applying common law are to award damages for wrongful dismissal per se, this would require a change to Singapore's common law and jurisprudence on the subject.

vi Severance payments

With the exception of EAPs, which are payable under the Retirement and Re-Employment Act to eligible employees who have reached the statutory retirement age and are not re-employed, severance or redundancy payments are not statutorily required. Any contractual right to, and calculation of, severance pay will have to be set out in the employment contract, or any applicable collective agreement in the case of unionised employees.

Employers are generally obliged to re-employ employees who have reached the statutory retirement age (which is currently 62), provided certain criteria are fulfilled, which include the employee being assessed as having at least satisfactory work performance and being medically fit to continue working. If the employer is unable to find a suitable re-employment role for the employee (which should be for at least a year), then an EAP is statutorily required. The employer's re-employment obligations last until the employee reaches the statutory re-employment age (currently 67).

The Tripartite Guidelines on the Re-employment of Older Workers (to which employers are statutorily obliged to have regard) clarify that the intent behind the EAP is to help eligible employees who are not re-employed while they look for another job. It further suggests, among other things, that an EAP should be equivalent to 3.5 months' salary (subject to a minimum of S$5,500 and a maximum of S$13,000). In light of the diminishing obligation to re-employ a worker until the statutory re-employment age, older employees (between the ages of 64.5 and 67) may be provided with an EAP equivalent to two months' salary (subject to a minimum of S$3,500 and a maximum of S$7,500).

vii Retrenchments and redundancies

The terms 'retrenchment' and 'redundancy' are used interchangeably in Singapore. Although not defined statutorily, the Wrongful Dismissal Guidelines state that a redundancy occurs when an employer has excess manpower, a company is undergoing restructuring, a job no longer exists, or an employee's job scope has changed. The MOM defines retrenchment as the termination of employee contracts through redundancy or reorganisation of an employer's profession, business, trade or work, including situations where companies undergo liquidation, receivership or judicial management. Additionally, the MOM has stated in a covid-19 specific advisory that an employer who terminates an employment contract with no plan to fill the vacancy any time soon is presumed to have retrenched the employee.32

If a retrenchment exercise is being contemplated, employers should have regard to the Retrenchment Advisory. Though strictly speaking non-binding, the MOM, unions and employees may nevertheless take administrative, industrial or civil action in cases of non-compliance. The Retrenchment Advisory may also be considered by the ECT and the courts in determining the appropriate action. Employers should therefore follow it as a matter of prudence.

The updated version of the Retrenchment Advisory (published 17 October 2020) provides the following 10-step checklist for employers to consider when carrying out a retrenchment exercise:

  • consider whether the situation warrants a retrenchment;
  • tap into government support, and reskilling or deploy employees where possible;
  • implement other alternatives (i.e., cost-saving measures such as shorter work weeks and even no-pay leave);
  • use objective, non-discriminatory criteria to identify employees to be retrenched;
  • ensure that the proportion of local employees will not be lower after retrenchment;
  • discuss and agree the selection criteria and retrenchment benefit with any trade unions;
  • communicate the situation and the retrenchment plans to employees;
  • adhere to the applicable notice period for retrenchment (as set out in the employment contract, any collective agreement or the Employment Act);
  • provide retrenchment benefits in accordance with the Retrenchment Advisory; and
  • implement measures such as employment facilitation to support the affected employees.
  • The Retrenchment Advisory further suggests a scale of between two weeks' and one month's pay per year of service, with employees with less than two years' service granted at least an ex gratia payment. In the context of covid-19 though, the MOM has advised that employers in severe financial difficulties and who carry out retrenchment exercises to keep their businesses afloat could potentially provide a lump sum amount of between one and three months' salary instead.

    Employers who employ at least 10 employees are also required to notify the MOM if five or more employees are retrenched, or dismissed on the ground of redundancy or by reason of any reorganisation of the employer's profession, business, trade or work, within any rolling six-month period. This applies to both permanent employees and contract workers with full contract terms of at least six months.

    Transfer of business

    Section 18A of the Employment Act generally provides that when an undertaking (defined as including any trade or business) or part thereof is transferred (defined as including 'the disposition of a business as a going concern and a transfer effected by sale, amalgamation, merger, reconstruction or operation of law') from one entity to another, the contracts of service of the affected employees covered under the Employment Act will have effect after the transfer as if originally made between the new employer and the employee. The transfer of the undertaking does not break the continuity of the period of employment, and the terms and conditions of the relevant contract of service remain the same (i.e., a statutory novation essentially takes place). When unionised employees are affected, the old employer would also have to notify the relevant unionised employees and their trade unions so that consultations may take place.

    In practice, whether Section 18A applies to the relevant transaction is not always clear. The MOM has provided some guidance, stating that a Section 18A transfer could occur if the organisation is being restructured (which can involve a merger, takeover, sale of parts of a company or setting up a subsidiary company). The MOM has also clarified which transactions are not considered Section 18A transfers, namely pure transfers of assets, transfers of shares, transfers of operations outside Singapore, outsourcing of supporting functions and a takeover of the provision of services through a competitive tendering. Nevertheless, if it is unclear whether Section 18A applies or if the transferee wishes to change the transferring employee's terms, employers do effect contractual novations or terminations and rehires prior to completion rather than relying on a Section 18A transfer.

    Outlook

    Much of 2020 has been spent dealing with and adapting to the covid-19 pandemic. The repercussions of this black swan event may be far from over, though, and we may continue to see its effects on the employment landscape up to and potentially even beyond the availability of vaccines (e.g., the increasing prevalence of telecommuting arrangements).

    In terms of legal jurisprudence, it would be interesting to see how the ECT interprets the Wrongful Dismissal Guidelines and decides on the disputes brought before it (and the appropriate levels of compensation) as that would help provide some guidance and jurisprudence on the new regime, which is presently lacking. This should become clearer once ECT decisions are published. Guidance from the Court of Appeal on whether the Stratech proposition in restrictive covenants (discussed in Section V.ii) continues to apply would also be useful, not least given the conflicting cases emerging in 2019 from the High Court. Certainly, further guidance on the relevance (or otherwise) of the Wrongful Dismissal Guidelines and the Employment Claims Regulations 2017 (discussed in Sections III.i and XIII.v) before courts other than the ECT would also be very welcome.

    Measures specifically directed at concerns regarding protection and rights for gig economy workers and freelancers, an ever-expanding group of workers in Singapore who are not presently considered employees and have no specific statutory work rights, could also be on the horizon, especially now with so many affected by covid-19. Meanwhile and following changes to the Central Provident Fund contribution rates and the raising of the retirement and re-employment ages announced in 2019, we may also see further measures aimed at promoting the continued engagement of the ageing workforce.

    There has also been increased attention on mental health in the workplace during the past year, and as a corollary to that, renewed attention on workplace harassment. It is possible we may see amendments to legislation (e.g., Protection from Harassment Act, Employment Act or even a dedicated new piece of legislation). This bears watching.

    Finally, Singapore continues not to have overarching protections for whistle-blowers, and it would be timely for Singapore to consider introducing an omnibus whistle-blowing statute, or at least clarifying and confirming whether retaliation against whistle-blowers is a ground for employees to claim wrongful dismissal.

    Footnotes

    1 Ian Lim is a partner and Nicholas Ngo and Li Wanchun are senior associates at TSMP Law Corporation.

    2 See 'Eagle Services Asia says retrenchments not confirmed, all staff still on payroll', The Straits Times (28 July 2020), at https://www.straitstimes.com/singapore/manpower/eagle-services-asia-says- retrenchments-not-confirmed-all-staff-still-on-payroll (accessed 4 January 2021).

    3 See 'Strike averted after unions get aviation firm to correct retrenchment process', The Straits Times (30 July 2020), at https://www.straitstimes.com/singapore/strike-averted-after-unions-get-aviation-firm-to- correct-retrenchment-process (accessed 4 January 2021).

    4 id.

    5 See 'Logistics firm fined $18,000 for making false declaration on work pass application', The Straits Times (10 March 2020), at https://www.straitstimes.com/singapore/manpower/logistics-firm-fined-18000-for- making-false-declaration-on-work-pass-application (accessed 4 January 2021).

    6 Report of the Tripartite Workgroup on Older Workers: Strengthening Support for Older Workers, August 2019; see also https://www.mom.gov.sg/about-us/budget-highlights-2020.

    7 [2020] SGHC 176.

    8 Wee Kim San Lawrence Bernard v Robinson & Co (Singapore) Pte Ltd [2014] 4 SLR 357.

    9 [2020] SGHC 176 at [24]–[26].

    10 [2020] 1 SLR 1130.

    11 id., at [61]–[62].

    12 id., at [50]–[58].

    13 In Corinna Chin Shi Hwa v. Hewlett-Packard Singapore (Sales) Pte Ltd [2015] SGHC 204, the High Court observed that where an employer had used a standard form (as opposed to specifically negotiated) contract containing provisions that were ambiguous and obviously unfair without bringing these to the employee's attention, the employer may risk subsequently being unable to enforce those terms against the employee (this part of the High Court's decision was not disturbed on appeal).

    14 Wee Kim San Lawrence Bernard v. Robinson & Co (Singapore) Pte Ltd [2014] 1 SLR 1382; [2014] 4 SLR 357.

    15 Employment Act, Section 10(3).

    16 [2019] 5 SLR 554.

    17 [2018] 5 SLR 511.

    18 [2008] 1 SLR(R) 663.

    19 See Tan Kok Yong Steve v. Itochu Singapore Pte Ltd [2018] SGHC 85.

    20 [2005] 2 SLR(R) 579.

    21 [2008] 1 SLR(R) 663 at [92].

    22 See, e.g., Centre for Creative Leadership (CCL) Pte Ltd v. Byrne Roger Peter and others [2013] 2 SLR 193; Lek Gwee Noi v. Humming Flowers & Gifts Pte Ltd [2014] 3 SLR 27; and Powerdrive Pte Ltd v. Loh Kin Yong Philip and others [2018] SGHC 224.

    23 See, e.g., World Fuel Services (Singapore) Pte Ltd v. Xie Sheng Guo [2019] SGHC 54, in which the court enforced a non-compete clause to protect confidential information despite there being a confidentiality clause; and Solomon Alliance Management Pte Ltd v. Pang Chee Kuan [2019] 4 SLR 577, in which the court enforced two non-compete clauses against an independent contractor by finding novel legitimate proprietary interests apart from those discussed in Section VI.i.

    24 See for example HT SRL v. Wee Shuo Woon [2019] 5 SLR 245.

    25 [2019] 3 SLR 399.

    26 id., at [26], [40], [44] and [48].

    27 [2012] 4 SLR 308.

    28 [2014] 3 SLR 27.

    29 Mano Vikrant Singh v. Cargill TSF Asia Pte Ltd [2012] 4 SLR 371.

    30 Goh Seng Heng v. RSP Investments and others and another matter [2017] 3 SLR 657.

    31 Long Kim Wing v. LTX-Credence Singapore Pte Ltd [2017] SGHC 151.

    32 Advisory on retrenchment benefit payable to retrenched employees as a result of business difficulties arising because of the covid-19 pandemic issued on 20 May 2020.

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