Migrant Workers - Part 4

Back to the compare-and-contrast exercise of "Migrant Workers" in Singapore vs Canada. If you have not read my previous blog entries on this series, you can find them here (part 1, part 2 and part 3).

Read here, an article by Yawning Bread that shows what happens in Singapore when one dares to question the Ministry of Manpower (a government agency) on what seems to be an anomaly in their staff's actions.

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Let us look at how the Superior Court of Quebec, Canada, handled a case which challenges the Quebec Human Rights and Youth Rights Commission's dismissal of a complaint filed by PINAY (the "Organisation des Femmes Philippins du Quebec" or "Filipino Women’s Organization in Quebec") on behalf of 26 Filipina LICs (Live-In Caregivers). For more details on the case, please click here and here for the Press Releases from PINAY and here for a report from CRARR (Center for Research-Action on Race Relations).

Below is a brief of what happened, as extracted from the above PINAY Press Releases and CRARR report.

1. Over a 5 year period, at least 40 Filipina women paid an average of US$4,000 to John Aurora’s agency (Super Nanny) to obtain work permits and immigration papers to work as Live-in Caregivers (LIC) in Montreal, Canada. In addition to the fees paid to Aurora’s agency, these women had to pay their own airfare.

2. Between between 2004 and 2008, 16 were told upon arrival that their initial employer designated in the Quebec Employment Contract was no longer available, and they were never reimbursed.

[Note: For the Live-in Caregivers visa, the TFW (temporary foreign worker) must live-in at the premises of the specified employer designated in their employment contract and work permit. If they need to change employers for any reason, they must re-apply and wait for a new work permit to be issued for the new employer, which typically takes at least 4-6 months. LICs are strictly prohibited from working until their new work permit is issued. Click here and here for more about LIC visa.]

3. Many of the TFWs were required (i.e. made) to do unpaid labour for Aurora while awaiting the confirmation of a new LIC job offer and the issuance of a new work permit.

4. These TFWs were also pressurized to sign a lease to become tenants in Aurora's various properties, where many women would live in overcrowded and unsanitary conditions. Almost all tenants had to pay an illegal deposit of $150 for furniture, late fees and other penalties that are clearly forbidden by Quebec housing laws. They were also not given a copy of their tenancy agreement. They only realized that Aurora had secretly added clauses holding them jointly liable for the rent, without their knowledge, when they were brought to the Rental Board for breaking the lease or for rent owed. 

5. In May 2009, on behalf of 26 LICs, PINAY filed a civil rights complaint against Aurora and Super Nanny, his agency, with the Quebec Human Rights and Youth Rights Commission, claiming discrimination based on race, gender, ethnic or national origin, and social condition.

6. The Commission responded in June 2009 by contacting PINAY by telephone, for a follow-up. In August 2009, the Commission began its investigation into the case.

7. In October 2009, PINAY informed the Commission of the death of John Aurora. In early November 2009, the Commission wrote to John Aurora, summoning him to its office for investigation and requesting him to bring all pertinent papers.

8. In February 2010, the Commission met with 12 of the 26 women to obtain their declarations. However, it did not inform them of the damages they could claim and the possibility of citing John Aurora’s associates as co-respondents in the case.

9. In October 2010, the Commission interviewed John Aurora’s daughter and then notified PINAY of its intent to close the file due to John Aurora’s death, because of his daughter’s denial of involvement and the fact that Super Nanny was not an incorporated business. 

10. At this point, PINAY mandated CRARR to handle the case "due to what many see as a badly handled investigation" by the Quebec Human Rights Commission -- quote from CRARR. CRARR found that the Commission failed to:

• Explain to many of the 26 victims whom it interviewed, the remedies available to them, such as material, moral and punitive damages;
• Take into account the names of at least John Aurora’s four staff members who actively carried out many acts of discrimination, harassment and exploitation, who could have been held jointly responsible;
• Heed the fact that John Aurora’s daughter, in testimonies for rental board ligitation launched by her father against some caregivers over rent allegedly owed to him, did confirm her active and conscious participation in the management of her father's affairs and properties;
• Examine evidence that John Aurora’s daughter and family relatives acted as appellants in two appeals filed in March 2010 seeking to reverse rental board decisions, that were rendered in February 2009 in favor of caregivers and against her father;
• Properly identify PINAY as a complainant and send to PINAY the Commission's decision to investigate the case on the Commission's own initiative;
• Take into account PINAY President's report in mid-October 2010 of pressures from John Aurora's daughter and another staff member on some caregivers to withdraw their civil rights complaints, which is in and by itself a violation of Quebec human rights law.

11. In March 2011, CRARR presented an amended version of the May 2009 civil rights complaint to the Quebec Human Rights Commission, in which it cites Aurora’s associates as co-respondents and specifies the damages to be claimed.

12. In April 2011, the Quebec Human Rights Commission (through the same investigator -- who was accused of handling the case badly in the first place) reiterating its recommendation to close the file based on the same grounds: 

• the alleged facts of discrimination took place three years after the prescription for civil action (starting from the date of the amended complaint that cites additional respondents); 
• John Aurora’s death; 
• the fact that Super Nanny is not incorporated and that employees are not held responsible for the actions of their employer or personally responsible; and 
• that John Aurora’s daughter cannot be held liable (based on the Commission's own interpretation of the "proof of her active involvement in the management of her father’s affairs").

13. PINAY applied for judicial review to reverse the Commission’s dismissal of the complaint. In addition, PINAY asked for a total of $90,000 in moral damages against the Commission for gross negligence.

14. On October 16, 2012, the Superior Court of Quebec ruled in favour of 8 LICs and PINAY for a judicial review of the Quebec Human Rights and Youth Rights Commission’s negative decision about their case.

15. The judge rejected the Quebec Human Rights Commission's core arguments for dismissing judicial review, namely:

• The application for judicial review was filed more than 5 months after the decision was taken; 
• The Commission has fulfilled its duty of procedural fairness during the investigation; 
• The Commission enjoyed large discretion in its investigation and that the women could still sue the respondents in regular courts at their own expense.

16. The Superior Court and its judge:

• recognized that the circumstances in this particular case justify the delay of two months in filing the motion. 
• emphasized the serious prejudice that the Filipina women would suffer if their motion for Judicial Review was dismissed. 
• highlighted the importance of the present case and its potential for justice to present and future LICs. In fact, in the judge’s words, “the importance of the matter is further magnified by the fact that over and above the Plaintiffs, there are many Filipino caregivers arriving in Canada every day”.
• recognized that “plaintiffs’ rights could be seriously prejudiced if their motion is dismissed at this stage. While it is true that they could institute proceedings on their own, and might ultimately have to do so, such proceedings would be costly and there is potential for prescription.”

17. Ms. Evelyn Calugay, President of Pinay highlighted the social impact of the Superior Court's ruling, “The Court is sending a very important message to society as whole about the obstacles encountered by migrant and domestic workers in seeking protection against civil rights violations, something which the human rights commission seems to have problems understanding.”

18. The case is still on-going, pending a full hearing by the judiciary allow the Court to adjudicate on the validity of Plaintiff's [PINAY and the LICs] claims. The case is expected to cost the group several thousand dollars.

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In the case highlighted by Yawning Bread, the Singapore Ministry of Manpower (MOM) 

• did not assist the migrant worker in retrieving/extracting compensation from the "derelict employer" which its own Labour Court awarded, and its officers know that the employer had failed to pay.
• "requested" that blogger Yawning Bread, censor his blog post which draw media attention to the case (and thus, MOM's own failings).

[This paragraph is added on 01-Feb-2013.] As for unions, as Yawning Bread highlighted, the SMRT strike clearly indicated a lack of independent unions in Singapore. According to MrBrown, the NTUC (National Trades Union Congress) director of the Unit for Contract and Casual Workers (UCCW) criticized the striking migrant workers for acting without the knowledge of the NTWU (National Transport Workers' Union). In turn, the NTWU issued a press statement saying that it does not have the legal mandate to represent the PRC bus workers of SMRT as they are not union members. So which is the actual union responsible? The NTUC/UCCW or the NTWU? What does the National in NTUC and NTWU stand for? Only people of Singaporean nationality? In contrast, unionized workers in B.C. Canada are always advised, "Do not cross a picket line, even if it is not your union on strike. Call your union representative for advice." because independent unions support each other in solidarity against unfair and/or unjust employment practice. In addition, for unionized jobs, all workers are paid an equitable rate based on union negotiation with the employers. Lastly, from my personal experience, the union will fight for you even if you're not their full-fledged member yet, because allowing discriminatory practices against one segment of the workers may lead eventually to undercutting and/or undermining the compensation/benefits of ALL workers.

IMHO, labour protection and civil rights movements are comparatively weak in Singapore. Firstly, there isn't a Human Rights Commission (or ombudsman) in Singapore. As far as I know, there isn't any civil rights organization in Singapore with enough funding to conduct its independent investigations (like CRARR) and to bank-roll an application for judiciary review (like PINAY). Thus, as far as I know, there isn't any court cases upon which to compare the performance of the Singapore judiciary vs that of the Quebecois (Canadian) judiciary. At least in Quebec, Canada, the Superior Court sent "a very important message to society as whole about the obstacles encountered by migrant and domestic workers in seeking protection against civil rights violations". In contrast, when I read of how even the Acting Manpower Minister Tan Chuan-Jin seemed to be oblivious the challenges faced by migrant workers in obtaining justice and fair treatment, I doubt there would be any significant improvement to the Singapore system anytime soon.

[p.s. Anyone out there who knows of such migrant workers-related court cases in Singapore (i.e. not the criminal cases prosecuted by the Singapore Attorney General's Chamber whereby compensation to the migrant workers is not on-the-plate), please drop a note in the comments section. Thanks!]

A foreign workers' dormitory in Singapore