Date Published: 23 March 2020
(a) Effect on employment in event of mergers, amalgamations and sale of business
In Singapore, redundancies, business transfers and reorganisations are generally subject to contract.
Under the EA, employees are statutorily protected in the event of a business transfer, including a disposition of a business as a going concern or a transfer effected by sale, amalgamation, merger, reconstruction or operation of law. Under section 18A of the EA, amongst other things, if an undertaking or part thereof is transferring from one person to another, the transfer shall not operate to terminate the contract of service of any person employed by the transferor in the undertaking or part transferred. Instead, there will be an automatic transfer the contract of service, with no break in the continuity of employment, and terms and conditions of service of the transferred employees will be the same as those enjoyed by them immediately prior to the transfer. The transferor also has an obligation to inform and consult employees and/or trade union of employees affected by the business transfer as soon as it is reasonable and before the business transfer takes place, such as through a notice to the affected employees.
(b) Retrenchment benefits
Legislation does not provide an employee with any right to retrenchment benefits on termination for redundancy or reorganisation of the employer’s business. In fact, while the quantum of retrenchment benefits (if any) may be agreed upon in the employment contract or collective agreement, the EA disentitles Part IV Employees (i.e. a workman on a salary not more than S$4,500 per month or a non-workman employee other than Managers and Executives whose salary is not more than S$2,600 per month) who have worked for 2 years continuously or less from being entitled to retrenchment benefits (if any). Even where an employee has been continuously employed for 2 years or more, under Singapore case law, that employee still does not enjoy an automatic right to retrenchment benefits as an employer in Singapore has no legal obligation to provide retrenchment benefits in such cases. Irrespective of whether the EA applies, an employee has no right to retrenchment benefits unless his or her employment contract or an applicable collective agreement so provides. If the employment contract or applicable collective agreement does not so provide, the quantum is to be negotiated between the employees (or via their union) and the relevant employer. Under the MEMRR Guidelines (see below), the prevailing norm is to pay a retrenchment benefit varying between 2 weeks to 1 month salary per year of service, taking into consideration the industry norm.
(c) Ex-gratia payments
In cases of termination for redundancy, an employer may make an ex-gratia payment to an employee. However, under Singapore common law an employer is not bound to make such a payment on the basis of its past practice of doing so.
(d) Length of notice of termination
Under the EA, there are no special requirements in relation to the length of notice to be provided in cases of termination for redundancy or reorganisation. The relevant notice period will apply (as discussed in 6(c) above). However, in cases of retrenchment, the MOM encourages employers as far as possible to inform affected employees of the impending retrenchment before notice of retrenchment is given.
(e) Union intervention
In cases where an employee is a trade union member, while trade unions may consult with the employer prior to the business transfer, section 18(2)(d) of the IRA prohibits trade union intervention/collective bargaining in relation to termination for redundancy or reorganisation or in relation to the criteria for such termination. Once the business transfer is completed, the new employer will also have to take over the previous employer’s rights, powers, duties and liabilities which are part of any contract or agreement with the employees’ trade union before the transfer.
(f) Tripartite Guidelines for Fair Employment Practices
The Tripartite Guidelines for Fair Employment Practices require (i) the selection of employees for retrenchment to be based on objective criteria, (ii) for the retrenchment exercise to be carried out responsibly in consultation with the trade union (if the employer is unionised), or with the employees affected (if the employer is not unionised), and (iii) reference to the Tripartite Advisory on Managing Excess Manpower and Responsible Retrenchment for alternatives to avoid or minimise the need for retrenchments.
(g) Tripartite Guidelines on Managing Excess Manpower and Responsible Retrenchment (the “MEMRR Guidelines”)
The Tripartite Advisory on Managing Excess Manpower and Responsible Retrenchment was updated in March 2020 in light of the negative impact on the global economy the COVID-19 pandemic has had and we will be making changes to the sections dealing with retrenchment to reflect the revised guidelines. A copy of the revised guidelines may be accessed here.
The tripartite partners – the MOM, National Trades Union Congress (“NTUC”) and Singapore National Employers Federation (“SNEF”) have formulated the MEMRR Guidelines for implementation. The MEMRR Guidelines suggest that as businesses adjust, they should consider alternative ways–to manage their excess manpower – such as upskilling and redesigning jobs. However, if retrenchment is inevitable, companies should do so in a responsible and sensitive manner. To achieve responsible retrenchment, key areas that the MEMRR Guidelines have identified include using objective criteria when evaluating employees for retrenchment, giving early notice to affected employees, provision of retrenchment benefits and re-employment facilitation. The MEMRR Guidelines state that employer companies should notify the MOM of impending retrenchments as soon as possible if a decision to this effect has been made and that as far as possible employing companies should inform affected workers of their impending retrenchment before notices of retrenchment are given.
Note that the guidelines are not mandatory but amount to strong recommendations to employers. Employers are encouraged to follow the guidelines set out in the relevant paragraphs to the extent it is practical to do so taking account of the requirements of their business. In order to maintain a strong Singaporean core, the MOM has indicated that it may cut the work pass privileges of employers who unfairly retrench Singaporeans.
(h) Mandatory retrenchment notifications
Since 1 April 2019, employers with 10 or more employees (at the time when a notice of retrenchment is given) are required to notify MOM if 5 or more employees are retrenched within any 6 month period. The notification must be submitted online and be in the form provided at the MOM website within 5 working days after the employee is notified of his/her retrenchment.
In this context, retrenchment means to terminate the employee’s contract of service at the initiative of the employer because of redundancy or any reorganisation of the employer’s profession, business, trade or work. This applies to permanent employees, as well as contract workers with full contract terms of at least 6 months. Failure to notify within the required timeline is considered a civil contravention under the EA and errant employers may be issued a contravention notice to pay an administrative penalty.
Please note that this section of the Employment Law Guide is a summary provided for general information purposes, aimed at aiding understanding of Singapore’s employment law as at the date of writing. It is not exhaustive or comprehensive and reading this memorandum is not a substitute for reading the text of the various statutes to fully understand the extent of the obligations owed. This guide should also not be relied upon as legal advice.
Get To Know The Authors
Pradeep acts for corporations, whether they are private or listed companies, on all aspects of their business including advice and drafting of documentation on investments, joint ventures, mergers and acquisitions and restructurings. With Pradeep co-heading the Employment and Immigration team, The Legal 500 Asia Pacific 2020 has commented that CNPLaw has “a solid reputation” for assisting local and foreign clients, who are employers or employees, with a range of issues.
Pei-Ling has over 23 years of experience in corporate and cross-border transactions, and has advised on investments, joint-ventures and commercial transactions in Singapore and Malaysia. Over the years, she has also developed a practice in the areas of data protection, technology and employment.