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2024-11-21 17:37:39
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PART 2
WORK PASSES
[24/2012]
Prohibition of employment of foreign employee without work pass
5.—(1) A person must not employ a foreign employee unless the foreign employee has a valid work pass.
(2) A foreign employee must not be in the employment of an employer without a valid work pass.
(3) A person must not employ a foreign employee otherwise than in accordance with the conditions of the foreign employee’s work pass.
(4) In any proceedings for an offence under subsection (1), it is not a defence for a defendant to prove that the defendant did not know that the employee was a foreigner unless the defendant further proves that the defendant had exercised due diligence to ascertain the nationality of the employee.
(5) For the purpose of subsection (4), a defendant is not to be deemed to have exercised due diligence unless the defendant had checked the passport, document of identity or other travel document of the employee.
(6) Any person who contravenes subsection (1) shall be guilty of an offence and shall —
(a) be liable on conviction to a fine of at least $5,000 and not more than $30,000 or to imprisonment for a term not exceeding 12 months or to both; and
(b) on a second or subsequent conviction —
(i) in the case of an individual — be punished with a fine of at least $10,000 and not more than $30,000 and with imprisonment for a term of not less than one month and not more than 12 months; or
(ii) in any other case — be punished with a fine of at least $20,000 and not more than $60,000.
[24/2012]
(7) Any person who contravenes subsection (2) shall be guilty of an offence and shall be liable on conviction to a fine not exceeding $20,000 or to imprisonment for a term not exceeding 2 years or to both.
[24/2012]
(8) Any person who contravenes subsection (3) shall be guilty of an offence and shall be liable on conviction to a fine not exceeding $10,000.
[24/2012]
(9) For the purposes of this section —
(a) to avoid doubt, where a person has been convicted of an offence under subsection (6), and the person has on a previous occasion been convicted for contravening section 5(1) of the Employment of Foreign Workers Act (Cap. 91A, 1997 Revised Edition) in force immediately before 1 July 2007, the firstmentioned conviction shall be considered a second or subsequent conviction under subsection (6); and
(b) all convictions against the same person for the contravention of subsection (1) at one and the same trial shall be deemed to be one conviction.
[24/2012]
Presumption of employment
6. Where a foreigner is found at any premises, the occupier of the premises is presumed, until the contrary is proved, to have employed the foreigner.
Prohibition of foreigner without work pass entering or remaining at work place
6A.—(1) An occupier of a work place who has control of access to the work place must not permit any foreigner without a valid work pass to enter or remain at the work place.
(2) Where a foreigner without a valid work pass is found at any work place, it is presumed, until the contrary is proved, that the occupier of the work place —
(a) had control of access to the work place;
(b) had permitted the foreigner to enter or remain at the work place; and
(c) had knowledge that the foreigner did not possess a valid work pass.
(3) The presumptions provided for in subsection (2) are not to be rebutted by proof that a defendant did not know that the person was a foreigner unless the defendant further proves that the defendant had exercised due diligence —
(a) to prevent the foreigner from entering or remaining at the work place;
(b) to ascertain that the person was a citizen or permanent resident of Singapore by checking the person’s passport, document of identity or other travel documents; or
(c) to ascertain that the foreigner had at the material time in his or her possession a valid work pass by checking his or her original work pass.
(4) For the purposes of subsection (3)(a), a defendant is not to be deemed to have exercised due diligence unless the defendant had taken all reasonable measures to prevent any foreigner without a valid work pass from entering or remaining at the work place, including all the measures prescribed under subsection (5) in respect of the work place.
(5) For the purposes of subsection (4), the Minister may, by notification in the Gazette, prescribe the measures that are required to be taken by the occupier of the work place.
(6) Any person who contravenes subsection (1) shall be guilty of an offence and shall be liable —
(a) on conviction to a fine not exceeding $15,000 or to imprisonment for a term not exceeding 12 months or to both; and
(b) on a second or subsequent conviction, to a fine not exceeding $30,000 or to imprisonment for a term not exceeding 2 years or to both.
(7) In this section —
“occupier”, in relation to a work place, means the principal contractor who undertakes any construction works at the work place and includes any other person as the Minister may, by notification in the Gazette, specify to be the occupier of the work place;
“principal contractor” means a person who has entered into a contract with an owner, a developer or a lessee of a property, or an agent of the owner, developer or lessee, for the purpose of carrying out any construction works, or such other works or activities as the Minister may, by notification in the Gazette, specify;
“work place” means any place or premises where works are being carried out and includes any premises within the vicinity of the work place to which the occupier has control of access.
(8) To avoid doubt, where a person has been convicted of an offence under subsection (6), and the person has on a previous occasion been convicted for contravening section 6A(1) of the Employment of Foreign Workers Act (Cap. 91A, 1997 Revised Edition) in force immediately before 1 July 2007, the firstmentioned conviction shall be considered a second or subsequent conviction under subsection (6).
(9) All convictions against the same person for the contravention of subsection (1) at one and the same trial shall be deemed to be one conviction.
(10) Nothing in this section prevents any person from being prosecuted under any other provision of this Act for any act or omission which constitutes an offence under that other provision, but no person shall be punished twice for the same offence.
Application for work pass
7.—(1) Every application for a work pass must —
(a) where the work pass belongs to any category of work passes prescribed by the Minister, be made by a person prescribed for that category of work passes;
(b) be in any form as the Controller may determine;
(c) be accompanied by the prescribed fee, if any; and
(d) be accompanied by such information, statements and documents as the Controller may require.
(2) On receiving an application under subsection (1), the Controller may —
(a) issue a work pass, with or without conditions —
(i) if the prescribed fee has been paid; and
(ii) if the Controller is satisfied that the foreign employee or self-employed foreigner to whom the work pass is to be issued is not a prohibited immigrant under section 8 of the Immigration Act 1959; or
(b) refuse to issue any work pass.
(3) The Controller may, before issuing a work pass under subsection (2), issue an in-principle approval of the application for the work pass subject to such conditions as the Controller may think fit to impose.
[24/2012]
(4) A work pass may, on payment of the prescribed renewal fee, be renewed by the Controller for any period as the Controller may determine, starting from the day immediately following the day on which the work pass would have expired but for that renewal.
(5) The Controller may at any time —
(a) vary or revoke any of the existing conditions of a work pass or impose new conditions;
(b) cancel any in-principle approval, or vary, suspend or revoke a work pass;
(c) reinstate a work pass which has been suspended or revoked, if the prescribed fee has been paid; or
(d) debar any person from applying for or being issued with a work pass for any fixed period of time as the Controller may determine.
[24/2012]
(6) For the purposes of this section, the Controller may, in relation to a foreign employee —
(a) impose conditions that the employer of the foreign employee must comply with —
(i) relating to the employment of the foreign employee; or
(ii) relating to the foreign employee, after the in‑principle approval or the work pass relating to that foreign employee is cancelled or revoked or expires; and
(b) impose conditions that the foreign employee must comply with relating to his or her employment as a foreign employee.
[24/2012]
(7) In the exercise of any power under subsection (5)(a) or (6), the Controller must not —
(a) vary or revoke any existing condition of a work pass to become inconsistent with any condition prescribed by the Minister by regulations under section 29(2)(c); or
(b) impose any new condition for a work pass that is inconsistent with any condition prescribed by the Minister by regulations under section 29(2)(c),
and any condition varied, revoked or imposed by the Controller which is so inconsistent shall, to the extent of the inconsistency, be void.
[24/2012]
(8) In determining whether a person should be debarred under subsection (5)(d) from applying for or being issued with a work pass, the Controller may have regard to such considerations as the Controller deems appropriate, including but not limited to —
(a) whether the person has acted, or is acting, in concert with or on the direction of a debarred person for or in connection with the employment of any foreign employee; or
(b) whether the person, as an associate of a debarred person, is engaged in a trade or business which is substantially similar to any trade or business of the debarred person.
[24/2012]
(9) For the purposes of subsection (8)(b) —
(a) a person is an associate of an individual —
(i) if the person is the individual’s spouse, or if the person is a relative, or the spouse of a relative of the individual or his or her spouse;
(ii) if the person is in partnership with the individual, or the individual is the spouse or a relative of any other person with whom the firstmentioned person is in partnership;
(iii) if the person employs the individual or the individual employs the person, and for this purpose, any director or other officer of a person that is a company must be treated as employed by that company;
(b) a person in his or her capacity as trustee of a trust is an associate of an individual if the beneficiaries of the trust include, or the terms of the trust confer a power that may be exercised for the benefit of, that individual or an associate of that individual;
(c) a company is an associate of an individual if that individual has control of it or if that individual and persons who are his or her associates together have control of it;
(d) for the purposes of paragraph (a), a person is a relative of an individual if the person is that individual’s brother, sister, uncle, aunt, nephew, niece, lineal ancestor or lineal descendant;
(e) any reference in this subsection to a spouse includes a former spouse;
(f) for the purposes of paragraph (c), an individual is taken to have control of a company if —
(i) the directors of the company or of another company which has control of it (or any of them) are accustomed to act in accordance with the individual’s directions or instructions; or
(ii) the individual is entitled to exercise, or control the exercise of, one-third or more of the voting power at any general meeting of the company or of another company which has control of it,
and where 2 or more persons together satisfy sub‑paragraph (i) or (ii), they are taken to have control of the company; and
(g) in this subsection, “company” includes any body corporate (whether incorporated in Singapore or elsewhere), and references to directors and other officers of a company and to voting power at any general meeting of a company are to have effect with any necessary modifications.
[24/2012]
(10) Any person who is aggrieved by a decision of the Controller under subsection (2), (4) or (5) may appeal to the Minister, whose decision is final.
(11) There is to be no judicial review in any court of any decision or act of the Minister or the Controller under this section, except in regard to any question relating to compliance with any procedural requirement of this Act governing such decision.
(12) In subsection (11), “judicial review” includes proceedings instituted by way of —
(a) an application for a Mandatory Order, a Prohibiting Order or a Quashing Order;
(b) an application for a declaration or an injunction;
(c) an Order for Review of Detention; and
(d) any other suit or action relating to or arising out of any decision made or act done pursuant to any power conferred upon the Minister or the Controller by this section.
Register of foreign employees to be kept by employer
8.—(1) An employer must keep a register of foreign employees to whom work passes have been issued under section 7.
[27/2015]
(2) The register must be in such form, and must contain such particulars, as the Controller may determine.
(3) The register must, at all reasonable times, be open to inspection by an employment inspector.
Termination of employment of foreign employees
9.—(1) Where the Controller has decided to suspend or revoke the work pass of a foreign employee under section 7(5), the Controller must notify the employer of the foreign employee of his or her decision and the employer of the foreign employee must, within 7 days of receiving the notification, terminate the employment of the foreign employee.
(2) Every employer of a foreign employee who intends to have the work pass of the foreign employee cancelled must —
(a) apply to the Controller to cancel the work pass; and
(b) if so required, return the work pass to the Controller within 7 days of such cancellation.
(3) Where any employer contravenes subsection (1), the Controller may impose on the employer a financial penalty of an amount, not exceeding $10,000, as the Controller may determine.
[24/2012]
(4) Any employer who contravenes subsection (2) shall be guilty of an offence and shall be liable on conviction to a fine not exceeding $10,000.
[24/2012]
(5) The termination of the employment of a foreign employee under subsection (1) is not to be —
(a) capable of negotiation with a trade union representing the foreign employee;
(b) a matter in respect of which any form of industrial action may be taken by any such trade union;
(c) the subject matter of a trade dispute or of conciliation proceedings or any method of redress whether or not under any written law; and
(d) any industrial matter within the meaning of the Industrial Relations Act 1960.
(6) Where in respect of the employment of any person there has been any contravention of subsection (1), that person is, by reason only of such contravention, not to be deemed to be employed under an illegal contract of employment.
Self-employed foreigners to apply for work passes
10.—(1) A foreigner must not be a self‑employed foreigner unless he or she has a valid work pass.
[24/2012]
(2) Any person who contravenes subsection (1) shall be guilty of an offence and shall —
(a) be liable on conviction to a fine not exceeding $20,000 or to imprisonment for a term not exceeding 2 years or to both; and
(b) on a second or subsequent conviction, be punished with imprisonment for a term of not less than one month and not more than 2 years and also be liable to a fine not exceeding $20,000.
[24/2012]
(3) For the purposes of this section —
(a) to avoid doubt, where a person has been convicted of an offence under subsection (2), and the person has on a previous occasion been convicted for contravening section 10(1) of the Employment of Foreign Workers Act (Cap. 91A, 1997 Revised Edition) in force immediately before 1 July 2007 or section 10(1) of this Act in force immediately before 9 November 2012, the firstmentioned conviction shall be considered a second or subsequent conviction under subsection (2); and
(b) all convictions against the same person for the contravention of subsection (1) at one and the same trial shall be deemed to be one conviction.
[24/2012]
Levy in respect of foreign employee or self-employed foreigner
11.—(1) The Minister may, by order in the Gazette, provide for the imposition of a levy of such amount as may be specified in the order on employers in respect of any foreign employee or class of foreign employees, or on self-employed foreigners or any class thereof, who have been issued with a work pass.
[24/2012]
(2) The levy continues to be payable unless the work pass —
(a) has expired;
(b) has been suspended or revoked by the Controller; or
(c) has been cancelled by the Controller on application by the employer.
(3) Any order made under subsection (1) may provide for the recovery of the levy in such manner and through such channels as may be specified in the order.
(4) Where the amount of the levy payable by any employer or self‑employed foreigner in respect of any month is not paid within such period as may be specified in the order, the employer or self‑employed foreigner shall be liable to pay a penalty on the amount for every day the amount remains unpaid starting from the first day of the month following the month in respect of which the amount is payable.
(5) The penalty under subsection (4) must be an amount determined in accordance with any rate or formula as the Minister may specify by order in the Gazette, but the total penalty must not exceed 30% of the amount of levy outstanding.
[24/2012]
(6) The Controller may, in any case in which the Controller thinks fit, waive, remit or refund in whole or in part —
(a) any levy imposed under subsection (1); or
(b) any penalty due under subsection (4).
[24/2012]
(7) Any levy and penalty due from and payable by any employer or self-employed foreigner is recoverable by the Controller, or any person duly authorised by the Controller to act on the Controller’s behalf, as a debt due to the Government.
(8) For the purposes of reimbursing any person authorised by the Controller to act on the Controller’s behalf for the expenses incurred by the person in the collection and recovery of the levy, the Minister may authorise the person to be paid an amount as the Minister may determine.
(9) In any proceedings for the recovery of any levy and penalty due thereon which any employer or self-employed foreigner is liable to pay, a certificate purporting to be under the hand of the Controller certifying the amount of the levy and penalty due thereon payable by the employer or self-employed foreigner is prima facie evidence of the facts stated in the certificate.
Extent of validity of work pass
12.—(1) A work pass for a foreign employee is valid only in respect of the employer and the foreign employee specified in the work pass, and —
(a) the trade, sector, occupation or type of employment —
(i) that is specified in the work pass; or
(ii) in any other case, that was submitted to the Controller in, or in connection with, the application for the work pass; and
(b) any trade, sector, occupation or type of employment not specified in the work pass, for which the foreign employee has the Controller’s approval to engage in.
[24/2012]
(2) A work pass for a self-employed foreigner is valid only in respect of the self-employed foreigner specified in the work pass, and —
(a) the trade, sector, vocation, profession or activity —
(i) that is specified in the work pass; or
(ii) in any other case, that was submitted to the Controller in, or in connection with, the application for the work pass; and
(b) any trade, sector, vocation, profession or activity not specified in the work pass, for which the self-employed foreigner has the Controller’s approval to engage in.
[24/2012]
(3) A work pass is valid for the period specified in the work pass unless it is earlier suspended or revoked by the Controller, or earlier cancelled by the Controller on the application by the employer or self‑employed foreigner, as the case may be.
Custody of work pass, etc.
13.—(1) A work pass holder must not allow any other person to have possession of his or her work pass.
(2) If required by the Controller, a foreign employee must hand over the work pass to his or her employer on the last day of his or her employment with that employer.
(3) An employer who is handed a work pass under subsection (2) must return the work pass to the Controller within 7 days of the date the employer receives the work pass.
(4) Upon demand by an authorised officer or employment inspector, a work pass holder must produce his or her work pass for inspection.
[24/2012]
Loss, etc., of work pass
14.—(1) When a work pass has been lost, destroyed or defaced, the foreign employee or the employer or the self‑employed foreigner (as the case may be) must report to the Controller within 7 days of such loss, destruction or defacement, and the Controller may issue a duplicate work pass on payment of the prescribed fee.
(2) Where the foreign employee or the employer or the self‑employed foreigner recovers possession of the work pass after reporting the loss of the work pass, the foreign employee or the employer or the self‑employed foreigner, as the case may be —
(a) may retain the work pass if no duplicate work pass has been issued by the Controller under subsection (1); or
(b) must immediately return the work pass so recovered to the Controller for revocation if a duplicate work pass has been issued by the Controller under subsection (1).
(3) A person who finds or comes into possession of a work pass other than his or her own must immediately deliver it to the Controller.
Burden of proof, etc.
15.—(1) For the purposes of section 7, and any proceedings in respect of any prescribed infringement or any offence under this Act —
(a) a person who makes an application for a work pass is presumed, until the contrary is proved, to have knowledge of the information provided in the application; and
(b) subject to subsection (2), the burden of proving the truth of the contents of an application for a work pass is on the person who makes the application.
[24/2012]
(2) Where any application for a work pass is made by more than one person, then for the purposes specified in subsection (1), each applicant bears the burden of proving the truth of the contents of the application that relate to the applicant.
[24/2012]
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