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Singapore – The Fair Consideration Framework: Considering Locals First.

4 September, 2014

 

Legal News & Analysis – Asia Pacific – Singapore – Labour & Employment

 

The Singapore Ministry of Manpower (“MOM”) implemented the Fair Consideration Framework (the “Framework”) to encourage fair employment, hiring and staff development practices that are open, merit-based and non-discriminatory. As of 1 August 2014, all firms submitting Employment Pass (“EP”) applications for foreigners (including EP holders changing employers) to work in Singapore are required to advertise these jobs on the National Jobs Bank a public platform to facilitate job matching between local individuals and employers.

 

The Framework

 

Essentially, the Framework comprises two key elements:

 

  1. advertising on the Jobs Bank; and
  2. scrutiny for selected firms.

 

Advertising On The Jobs Bank

 

Advertising Requirements

 

Prior to the submission of EP applications, employers must advertise job vacancies on the Jobs Bank in accordance with the following:

 

  • Advertisement must appear on the Jobs Bank for 14 days. Employers who submit their EP applications prior to the end of the 14 days will not be able to proceed with their application.
  • Closing date of job advertisement and submission of EP application must not be more than three months. (MOM permits a longer advertisement period of two years for the recruitment of fresh graduates given that graduate recruitment programmes often recruit students one or two years prior to graduation.)
  • Content of advertisements should be in line with the Tripartite Guidelines on Fair Employment Practices.
    • Advertisements should generally state job title, closing date, skills, qualifications and experience required, and salary range.
    • Advertisements should however avoid stating a preference for age, race, language, gender, marital status and religion.

 

Exemptions

 

As a concession to business realities and practicalities, the following jobs are exempted from the advertising requirement:

 

  • jobs in firms with less than 25 employees;
  • jobs that pay a fixed monthly salary of SGD 12k and above;
  • jobs filled by Intra-Corporate Transferees (“ICTs”1); and
  • short-term jobs for not more than 1 month (although no renewals would be allowed and the EP holder cannot apply for new EP for at least 3 months after the expiry of the short term assignment).

 

Errant Employers Beware!

 

Companies with heavy concentration of foreigners at management/executive levels or nationality-based hiring practices will be subject to scrutiny by MOM and other governmental agencies.

 

As part of the investigative process, employers will be requested to submit information to the MOM such as:

 

  • organisational charts with nationality information
  • recruitment processes
  • staff grievance handling procedures
  • framework for staff progression
  • plans to develop local internal staff to take on higher roles
  • plans to reduce reliance on foreigners

 

Failure to cooperate may result in greater scrutiny and curtailment of EP privileges. For example, in September 2013, 10 companies which had discriminatory hiring advertisements were required to issue public apologies and were banned from hiring foreign workers for six months. The objectionable hiring advertisements included stating a requirement for Singapore Permanent Resident or current Employment Pass/Dependent Pass holder, and a preference for Malaysians.

 

Implications For Singapore Employers

 

Employers should review their hiring procedures:

 

  • To seek out suitably qualified locals before extending search to foreigners
  • Advertise job vacancies via the government regulated Jobs Bank to address the mandatory 14 day advertising period
  • Job description and requirements should be carefully drafted and not be discriminatory or drafted to circumvent the Framework
  • To train HR personnel and management with recruitment responsibilities how to conduct interviews fairly and screen job applications to avoid allegations of discriminatory practices

 

In particular, the mandatory 14 day advertising period and the requirement that EP applications cannot be for jobs advertised more than 3 months ago will mean that an employer’s ability to fill urgent positions with foreign workers will not be possible. Companies will have to project manpower needs and plan resourcing strategies in advance.

 

End Notes:

 

An ICT as defined under the World Trade Organisation’s General Agreement on Trade in Services is a manager, executive or specialist who has worked for the firm outside Singapore for not less than one year before being posted to the branch, affiliate or subsidiary in Singapore. Entry for ICTs under the WTO GATS is limited to a three year period that may be extended for two additional years, for a total term not exceeding five years.

 

Clyde & Co

 

For further information, please contact:

 

Juliet Yeo, Clyde & Co

julia.yeo@clydeco.com

 

Homegrown Labour & Employment Law Firms in Singapore

 

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