Migrant worker wins $5,700 overtime pay after 2-year fight as High Court cites unlawful practice, Singapore News

In other words, the magistrate held that in months where Mr Gena’s overtime work calculated on an hourly basis was less than $300, he was entitled to the fixed sum of $300. 

But in the months where the overtime pay was more than $300, he was entitled to the excess of overtime worked over the fixed allowance.

The magistrate reasoned that since the employer labelled the $300 allowance as “overtime” in Mr Gena’s payslips, there was a contractual agreement between both that the allowance was for overtime work.

As a result, his claim was reduced from $5,711.11 to $3,254.84.

Dissatisfied, Mr Gena appealed.

“The appeal raised a simple but important point of law,” said Justice Jeyaretnam — whether overtime pay could be offset against a fixed monthly allowance under the Employment Act and related regulations.

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At the appeal, the employer maintained that it was lawful for the “others” allowance to be a fixed payment for overtime work done, regardless of the number of hours actually worked.

Justice Jeyaretnam disagreed.

“An employer cannot introduce a cap on or fixed sum for overtime payment,” he said, affirming the tribunal magistrate’s decision that workers must be paid based on actual overtime hours worked.

He noted that the employment terms in the MOM letter – basic monthly salary, fixed monthly allowances and fixed monthly salary — are defined under MOM regulations. 

Under those definitions, “fixed monthly allowances must not include any form of overtime payment”, Justice Jeyaretnam added.

“This meant that the ‘others’ allowance could not cover or subsume overtime payments that would be due to the employee for overtime hours worked.”

He also rejected the argument that the arrangement was administratively convenient.

“Regardless of what the employer might have considered to be administratively convenient, it was not open to the employer to include the employee’s overtime pay, whether in whole or in part, in the ‘others’ allowance,” he said, warning that allowing a fixed monthly allowance to offset overtime pay would effectively reduce the declared overtime rate.

The High Court reinstated the full claim of $5,711.11, calculated based on hours worked, and awarded $9,000 in costs against the employer.

Mr Gena was represented pro bono by lawyers Melvin Chan Kah Keen and Amelia Tan Han Ru from TSMP Law Corporation.

Justice Jeyaretnam commended their efforts: “Acting pro bono for clients who would otherwise be unable to afford legal representation exemplifies the best traditions of the Bar.”

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Mr Chan told The Straits Times on April 8 that Mr Gena has left Singapore. 

He added that his firm works with migrant worker non-government organisations Humanitarian Organisation for Migration Economics and Transient Workers Count Too to support migrant workers, and he came to know of Mr Gena’s case through the latter. 

He noted that while the sum may seem small to Singaporeans, it was significant to Mr Gena.

“Unfortunately, some employers may actually leverage this, thinking that the worker may not bother to claim, or more likely, may not be able to engage a lawyer who finds it worthwhile to pursue the claim,” Mr Chan added.

On taking the case pro bono, he said: “Simply put, if lawyers don’t help, then who will?”

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This article was first published in The Straits Times. Permission required for reproduction.