Section 38(5) of the Employment Act (“EA“) (“section 38(5)“) states that “[a]n employee must not be permitted to work overtime for more than 72 hours a month.” However, is the legislative purpose of this section to protect employees from onerous work hours? Or is it intended to prevent them from claiming overtime for hours worked above the limit of 72 hours a month?
In Hossain Rakib v Ideal Design & Build Pte Ltd [2023] SGHC 166, the appellant had been employed by the respondent as a construction worker, during which time he was required to work beyond the statutorily prescribed limit of 72 overtime hours per month. He brought a claim against the respondent for overtime pay for over 700 hours of overtime work between February 2021 and November 2021.
At first instance, the Tribunal Magistrate (“Judge“) interpreted section 38(5) as imposing a maximum cap of 72 hours that an employee may claim as overtime pay per month (“Overtime Cap“). His reasoning included that: (i) the Overtime Cap was introduced to limit workers from earning extra salary at the expense of allowing another person to be employed by the company; and (ii) employers already had a disincentive to agree to working beyond the Overtime Cap, as they would then be exposed to criminal liability.
Accordingly, the Judge found that the appellant could not claim for more than 72 hours of overtime pay per month. The appellant appealed, arguing that the proper interpretation of section 38(5) was to prevent an employer from requiring or allowing their employee to carry out more than 72 hours of overtime work per month, and did not act as a bar for claiming for overtime pay.
The answer lay in identifying the legislative purpose of section 38(5), and broadly Part 4 of the EA in which it resides. While the High Court found that both the Judge’s interpretation and the appellant’s interpretation were possible, it held that the latter was better aligned with the current legislative purpose of section 38 and Part 4 of the EA, namely, to protect an employee and not to prejudice his/her rights against the employer.
In coming to this conclusion, the High Court noted:
(a) Subsequent statutory amendments may be taken into account to ascertain the legislative purpose of a provision, even where the amendments do not relate to the provision in question. Taking into account relevant parliamentary debates and Second Reading Speeches, the Court agreed with the appellant that the original purpose of section 38(5) had been superseded by a new purpose of protecting employees in light of subsequent statutory amendments.
(b) Conversely, the Judge’s interpretation was premised on the previous legislative intention that had since been updated through subsequent amendments to both section 38(5) as well as Part 4 of the EA. It would be inconsistent to say that section 38(5) is meant to protect an employee from onerous overtime work hours, but then turn a blind eye when an employee is in fact working beyond the Overtime Cap and thereafter claims for overtime pay.
(c) With regard to the EA itself, section 38(5) did not expressly prohibit an employee from claiming for overtime pay beyond the Overtime Cap. Moreover, section 41A of the EA allows the Commissioner to exempt an employee from section 38(5), meaning it is possible for employees to work beyond the Overtime Cap and claim overtime pay for such work.
The High Court allowed the appellant’s appeal, finding that he was entitled to overtime pay beyond the Overtime Cap.
Employers should be aware that Part 4 of the Employment Act is intended to protect employees, and its provisions are therefore unlikely to constitute a defence against a claim brought by an employee. Should you require any advice on salary disputes or other employment law issues, please contact our Employment Law partners.
