Hossain Rakib v Ideal Design & Build Pte Ltd

Hossain Rakib, a Bangladeshi national, worked as a construction worker for Ideal Design & Build Pte Ltd from 14 December 2020 to 6 January 2022 under a contract dated 17 January 2021. Clause 6.4 provided for overtime pay beyond 8 hours a day or 44 hours a week and stated that total overtime should not exceed 72 hours a month; a salary package set an overtime rate of $6.80 an hour. Between February 2021 and November 2021 the company required him to work fixed long days, typically ferrying him to the worksite at about 8am and collecting him at 8pm or later.

In the Employment Claims Tribunal he claimed, among other sums, $6,387.50 for 625 hours of overtime and $511.85 for short payment on 145 hours. The company refused to pay for overtime above 72 hours in a month. The Tribunal Magistrate held that s 38(5) of the Employment Act 1968, which says an employee must not be permitted to work overtime for more than 72 hours a month, capped the overtime pay he could recover, reasoning that the provision originally aimed to spread work and reduce unemployment, and allowed only $516.80 on the overtime claim. With permission, he appealed to the General Division of the High Court in Employment Claims Tribunal Appeal No 1 of 2023, limited to that question.

1. Whether clause 6.4 of the employment contract prevented the employee from bringing the overtime claim.
2. Whether s 38(5) of the Employment Act bars an employee from claiming overtime pay beyond 72 hours a month when the employer required that overtime.
3. Whether later amendments to the Act changed the purpose of s 38(5) from its original 1968 purpose.

Clause 6.4 was no bar. The employee framed his claim as one for breach of that clause, and in any event the company had waived any duty on him to keep within it by requiring him to work beyond the cap. The judge did not, however, accept that s 132 of the Act itself showed that s 38(5) permitted the claim.

Applying the three-step framework in Tan Cheng Bock v Attorney-General [2017] 2 SLR 850, both readings of s 38(5) were possible. Its wording does not expressly bar a claim, the surrounding provisions focus on the employer's conduct, and s 41A allows the Commissioner to exempt employees from the cap, suggesting work beyond it can still be paid.

On purpose, later amendments may be considered. The 1968 aim of spreading employment was superseded when the cap was raised from 48 to 72 hours in 1972 amid labour shortages, and ministerial statements since then show both Part 4 and s 38(5) aim to protect vulnerable workers from onerous overtime. Reading the provision to deny pay would let an employer that knowingly breached the cap shelter behind it, ignoring the real power imbalance faced by a migrant manual worker. The judge did not need to decide whether the company could rely on s 38(5) as a defence, though he was inclined to think it could not.

Goh Yihan JC allowed the appeal on the limited basis that the employee was entitled to overtime pay beyond the 72-hour monthly cap. The case was remitted to the Tribunal Magistrate to compute the additional amount payable, and the parties were to write in on costs if they could not agree.