The case of Hasan Shofiqul v China Civil (Singapore) Pte Ltd [2018] SGHC 128 (28 May 2018) is interesting as the first Singapore case that provides a test of what amounts to an "executive" for the purposes of the Employment Act. The Singapore High Court held that the claimant, who was a site supervisor in charge of the work of a team of about six to seven other construction workers was not an executive. He was therefore entitled to the protections of Part IV of the Employment Act, including being paid overtime and for working on public holidays.

Key takeaways are:

• Merely being in a supervisory position would not be sufficient to make the person an executive for the purposes of the Employment Act.
• The Court will consider whether the person is of a class of employees able to safeguard their own interests independent of legislation.
• Factors considered by the Court in this case included the complexity of the work, whether the work required specialised training, and whether the employee had actual decision making and control powers.

Facts and legal background

The Employment Act applies only to certain employees. Specifically, it excludes from its ambit, any person who is employed in a managerial or an executive position, unless that person earns a monthly salary of less than SGD4,500. However, not all of the provisions of the Employment Act apply to a manager or an executive earning less than SGD4,500. Part IV of the Employment Act, which mandates matters such as the payment for overtime and for working on holiday applies only to workmen and employees earning less than SGD2,500. Managers and executives, regardless of their pay level, are not protected under Part IV.

The claimant was a site supervisor in charge of the work of about six to seven other workers. His basic monthly salary was SGD2,200. His employer, the defendant, did not pay him overtime or for working on public holidays. The claimant claimed these sums from the defendant. As he was not contractually entitled to overtime pay or pay for working on public holidays, he would only be entitled to be paid these sums if he were covered by Part IV of the Employment Act. The question was, therefore, whether the claimant was an employee (and as his monthly basic salary was SGD2,200 he would be entitled to rely on Part IV of the Employment Act) or whether he was an executive and hence was not covered by Part IV.

The Assistant Commissioner for Labour had found that the claimant was an executive, noting that the bulk of his work involved supervising the work of the team of construction workers that he headed. Accordingly, he was not covered under Part IV. The claimant brought a claim in court.

The High Court’s decision

The Court held that the claimant was not an executive for the purposes of the Employment Act. It noted that Black’s Law Dictionary defined an "executive" as referring to "[a] corporate officer at the upper levels of management". It further noted that Parliament’s decision on whether to afford statutory protection to a class of employees depended heavily on whether that class of employees was able to safeguard its own interests independently of legislation. The courts will approach the question of whether an employee is employed in an executive position by looking at all the circumstances of the case.

The fact that the claimant was employed as a site supervisor was not sufficient by itself to lead to the conclusion that he was an executive. Much had to depend on the nature and level of supervisory powers that he has been given and all other relevant circumstances. While the claimant supervised six to seven workers, he did so at a very basic level that did not go beyond regular on-site routine administrative work. His work did not require any specialised expertise or training beyond the normal and routine. He also had to report to his superiors, the Project Manager and Senior Project Manager, who had overall management of the project and control over the site workers, including the claimant himself.

Comment

The case potentially expands the range of persons considered to come under the Employment Act. Two areas of impact, in addition to the application of Part IV, would relate to transfers of business undertakings under section 18A and claims for wrongful dismissal under section 14.

While the Employment Act is undergoing review to expand its scope to include professionals, executives and managers, it is likely that certain parts of the Employment Act will continue to apply only to a narrower protected class. The test set out in the case will likely remain pertinent, therefore, in deciding whether an employee is an executive for the purposes of the Employment Act.