Over the past three years, about 30 foreign domestic workers (“FDW”) have been caught annually for willingly taking on second jobs, despite knowing that it is illegal for them to moonlight. An FDW is deemed to be moonlighting if she holds a second job besides working for her employer, including being self-employed.
The relevant statute in place governing FDWs is the Employment of Foreign Manpower Act (Chapter 91A) (“the Act”). FDWs who are Work Permit holders have a set of rules that they have to comply with, which also applies on their rest days.
According to the Ministry of Manpower (“MOM”), FDWs are not allowed to take part in any other businesses or start their own business. Section 12(1) and (2) of the Act also states that FDWs can only work in the occupation and for the employer specified in their respective work passes. However, moonlighting is risky and comes with serious consequences. If caught, all parties involved will be punished.
Punishment
FDWs who moonlight may be fined up to S$5,000 or face 12 months’ imprisonment or both. Subsequent offenders will face mandatory imprisonment. Since January 2010, MOM has removed employers’ liability if the FDW breaches Work Permit conditions that relate to her own behaviour.
FDWs are deemed to be working without a valid work pass if they hold a second job. If your FDW is found without a valid work pass, the consequences are even more serious. If convicted, Section 5(7) of the Act highlights that an FDW may be liable to pay a fine of up to $20,000 or to imprisonment for a term not exceeding 2 years or both.
An employer who illegally deploys an FDW may face a fine of up to S$10,000. If an employer is convicted, he/she may also be banned from employing FDWs. For employing an FDW without a valid Work Permit (for example, if you are someone who is hiring a part-time FDW illegally, the penalty according to section 5(6) of the Act is a fine of between S$5,000 to S$30,000, or 12 months’ imprisonment or both. Subsequent offenders will face mandatory imprisonment.
Frequently Asked Questions (FAQ)
What are moonlighting cases typically like? How severe is the punishment if one is caught (employer and FDW)?
Our experienced head lawyer Ms. Gloria James-Civetta has had cases where the FDWs or their employers have been investigated. The punishments can range from stern warnings to custodial sentences. In some cases, the employers were given a stern warning while in other cases, they were charged for deploying an FDW.
Several FDWs received a stern warning, while some had their work passes removed and deported to their home country. Even where the employers empathise with the financial constraints of the FDW, all parties should be aware of the legal consequences of moonlighting.
What is the rationale for prohibiting moonlighting? Why is moonlighting illegal? What is the purpose of the statute?
According to Ms. James, while seemingly stringent and impinging on the freedom of employers and employees, the reason for such laws in place is that allowing FDWs to work for multiple employers can very easily lead to exploitation and over-exhaustion.
There is also a safety and security issue – allowing FDWs to freelance makes it difficult to know where they are at all times. Not all of them may be familiar with the country. The statute looks to protecting what society deems as a vulnerable group.
Moreover, an FDW’s employer is responsible for nearly all aspects of her life. Should she be injured while working somewhere she is not supposed to, the question of liability comes to the forefront. Will liability falls on her legal employer, the one who is paying her insurance, or will it be on her part-time workplace employer if the injury was sustained there?
There are also concerns of whether, in desperation, the FDWs unwittingly enter into illegal business or vice trade. For example, there have been reports of FDWs freelancing as sex workers or “beer ladies”.
FDWs also need to be suitably protected because of their possibly limited literacy. For a bulk of them, English is not their first language. It can be difficult to know if and when they are being taken advantage of by another potential “employers”. This is especially so if FDWs become desperate for additional income to support their families back home.
There is also a possibility that the FDWs may be entangled in illicit or illegal dealings. A recent example was reported in the news sometime in September last year. Two FDWs were found to have been working illegally as middlemen for a moneylender. They assisted other FDWs to secure loans from a licensed moneylender and earned monthly commissions of between S$100 to S$400. As a consequence, they were fined S$8,000 and S$5,000 respectively, had their Work Permits revoked, and were barred from entering and working in Singapore.
Should it be allowed for FDWs to take on part-time jobs? Might it be more feasible if the part-time job involved consists of light labour such as buying and selling online as opposed to heavier physical labour like cleaning?
It is admittedly disappointing that everyone mainly has their own interests at heart. Instead of worrying about what would happen to themselves, employers should seek to understand the FDWs’ motivations for seeking additional work. Ms. James suggests that perhaps MOM could look toward establishing a minimum wage for FDWs, so they do not find themselves wanting more financially.
It would be ideal if there could be a regulatory body specifically established for part-time work for FDWs, so it can be sufficiently monitored. In such cases, the FDW’s own safety would then be a personal responsibility. Perhaps in the event that the FDW does get hurt, her medical expenses could be claimable up to a certain amount.
Ms. James also mentions that selling via an online platform is also a rather feasible option. They may choose to sell clothing or food items. For example, they can sell items that are exclusive to their home country that they recently purchased in bulk when they went back for a holiday. Ms. James herself has seen this among her own circle of friends who help their FDWs sell their cookies during the festive season in order for them to earn more money.
Ms James suggests that part-time work can also be limited to a few hours on off-days. Such clauses can also be worked into an FDW’s contract. A clause on possible injury and costs of the same can also be worked into the contract. Along with that, a different insurance or add-on can be facilitated.
There are also cases where an employer does not require the FDW to stay with them. Thus, the FDW has to incur at least $350 out of pocket per month for this. As they will be tight with money, I have seen such FDWs resorting to working part-time as a cleaner during their off-day and hours.
What are the legal implications for legalising part time work for FDWs?
As it stands, there are already uneven power and gender relations for FDWs, along with unregulated working norms and working hours. Abuse such as wrongful confinement and sexual assault could also be more rampant and/or difficult to trace if the FDW has more than one employer.
There would be obvious complications in the form of employer’s liability in the event an FDW is injured (i.e. insurance). Liability issues can also arise in the event that the FDW is engaged in anything unlawful, or which employer bears the responsibility should she contravene any condition of her work pass or is found with an invalid work pass.
Lastly, regarding compliance with rest day requirements (in accordance with the MOM regulations, every FDW is entitled to 1 rest day per week), there would be complications if there are more than one employer. Questions would arise as to how long the FDW spends at each place of employment, and thus how many off days a week she is eventually entitled to.
Should you require further legal assistance on this matter, feel free to contact our experienced criminal lawyers who will be able to guide you on this matter.
