Former SMRT bus drivers, He Jun Ling, Gao Yue Qiang, Liu Xiangying, and Wang Xian Jie, were sentenced to jail for participating in a strike against the transport operator in November 2012. He was sentenced to seven weeks jail while Gao, Liu and Wang were sentenced to six weeks jail. The following is the mitigation plea submitted by He’s lawyers in court today, 25 February 2013.
IN THE SUBORDINATE COURTS OF THE REPUBLIC OF SINGAPORE
MAC 1161 & 1162
THE PUBLIC PROSECUTOR
HE JUN LING
PLEA IN MITIGATION
1. May it please the Court. I am Choo Zheng Xi and I represent the accused, Mr He Jun Ling.
2. To many Singaporeans, Jun Ling is the face of the first illegal strike in Singapore in 33 years. The Straits Times named him one of the news makers of 2012, alongside SMRT CEO Mr Desmond Kuek. For some commuters taking an SMRT bus on the morning of the 26th and 27th of November 2012, Jun Ling was the reason their busses did not run on time.
3. But to his 4 year old daughter, Jun Ling is a devoted father. And to his wife, he is a loving husband. Jun Ling’s wife is a cashier in a small factory in Qin Yang City, and together with the money he sends back, helps provide for the family. His young family has waited nearly two years for him to return to his home in Henan Province.
4. Jun Ling left school after high school, and worked as a bus driver in China before arriving in Singapore. Jun Ling was recruited into SMRT through an employment agency in Pu Yang district, and after undergoing a series of driving tests, was formally confirmed as an employee of SMRT on 17 May 2011.
5. Like many Singaporeans, Jun Ling is industrious and hard working. In the course of his employment, he was detailed driving shifts that started at 5 a.m, for which he had to leave his hostel at 4 a.m.
6. Jun Ling was happy to come to Singapore, in the hope of giving his family in Qin Yang a better life.
Events preceding the 26th and 27th November 2012
7. Unfortunately, the conditions and circumstances Jun Ling had to put up with in the course of his engagement with SMRT were more than him and his colleagues were able to tolerate.
8. The strike on the 26th and 27th of November did not occur in a fit of pique, but was the result of the collective accumulation of indignities, poor living conditions, and inadequate channels to convey such grievances that Jun Ling was put through for nearly one and a half years.
9. The issues that led to the strike have been extensively ventilated in the media over the course of the last few months, and the Defence does not propose to use this as the forum to traverse already well-worn ground.
10. It should suffice to say that the sub optimal working conditions for PRC drivers have already been acknowledged by the authorities and SMRT.
11. In the wake of the strike, Officers of the Ministry of Manpower Housing Enforcement Branch who visited the drivers’ dormitories in Woodlands and Serangoon noted that “housekeeping conditions of the rooms occupied by the SMRT drivers were below par as compared to other rooms in the dormitories. Bedbugs were also found in the rooms.”
[The New Paper, News Release, “SMRT moves to address drivers’ concerns” (30 November 2012).] See:
Defendant’s Bundle Of Documents (DBOD) at Tab 1.
12. More importantly, the PRC drivers did not have union representation. Secretary-General of NTUC Mr Lim Swee Say noted in public comments that “Right or wrong, they (the PRC bus drivers) have been given the impression that either there is no need to join the union, or (they have) no right to join the union”.
[Today, News Release, “Illegal Strike ‘could have been avoided” (7 December 2012)], DBOD at Tab 2.
13. SMRT has, in several public statements, admitted that it could have handled the entire situation better.
14. The final straw was Jun Ling’s despair at the continued gap between the wages of PRC bus drivers and their Malaysian counterparts, which persisted at least from 1 July 2012 until pay day on 23 November 2012. Again, this sequence of events is well documented and the Defence does not propose to re-litigate this episode.
As Jun Ling was unable to access the benefits of collective bargaining, he should not be unduly penalised for taking action in one of the few options available to him
15. At paragraph 12 above, the Defence adverted to Mr Lim Swee Say’s comments about the fact that the PRC drivers were given the impression that they had no right to join the union or that it would be unnecessary for them to join the union.
16. This is an important point.
17. The right to unionise and/or the knowledge of that right to unionise could have brought with it the benefit of collective bargaining.
18. As it stands, the collective agreement signed by the National Transport Workers’ Union (“NTWU”) and SMRT as of 5 April 2012 is specifically stipulated to apply only to “locally engaged employees in the Company’s service” and not to “temporary employees and contract employees”.
[CA 2012/083 SMRT CORPORATION LTD], DBOD at Tab 3.
19. This makes PRC drivers like Jun Ling unable to take the benefit of collective bargaining provisions under Part III of the Industrial Relations Act (Cap. 136) (“IRA”). Under Section 18 (1) of the IRA, only a trade union of employees which has been accorded recognition by an employer may serve on that employer a proposal for a collective agreement in relation to industrial matters.
[Industrial Relations Act (Cap. 136) (“IRA”), Part III], DBOD at Tab 4
20. This lack of union representation is key to understanding the vulnerability and frustration felt by Jun Ling and his colleagues: the PRC drivers did not have the leverage of being able to collectively negotiate the terms of their employment with SMRT.
21. Being able to collectively bargain for employment terms is significant as collective agreements are legally binding documents. Under Section 25 of the IRA, the collective agreement is signed on behalf of the workers by the union, agreed with management, and certified by a Court.
[Industrial Relations Act (Cap. 136) (“IRA”), Part III], DBOD at Tab 4
Court should consider comparative severity of the present industrial action in sentencing with reference to recent illegal strikes and industrial actions
22. Your Honour, in pleading for leniency on behalf of Jun Ling, the Defence humbly urges that the Court consider the severity and circumstances of the present action in comparison with previous industrial unrests in Singapore’s history and how such incidents were handled.
23. Ironically, if Jun Ling had been a union member, there would have been the possibility that he could be charged under Section 27 (4) of the Trades Union Act (Cap. 333) instead, which prescribes a much lower fine not exceeding S$2,000 for members of a trade union who “commence, promote, organise, participate or otherwise act in furtherance of any strike” where a majority of members have not consented by way of secret ballot.
[Trades Union Act (Cap. 333)], See: DBOD at Tab 5
24. This was the charge brought against 15 officials of the Singapore Airlines Pilots’ Association (“Siapa”) in the last illegal strike in 1980.
[The Straits Times, News Release, “3 sacked pilots and engineer charged” (10 December 1980).], See: DBOD at Tab 6
25. The charges brought against the SIA pilots were related to an industrial action launched by the Siapa around August and November 1980. As of 4 November 1980, four SIA flights had been delayed for 58 hours because of the industrial action. The pilots and first officers involved had taken sick leave on 9 occasions to press their claims for higher salaries, allowances and benefits.
[The Straits Times, News Release, “Four SIA flights lost 58 hours: Devan” (4 November 1980).], DBOD at Tab 7
26. Despite the arguably grave repercussions of the pilots’ actions on Singapore’s international connectivity and reputation, all 15 officials of Siapa were given an absolute discharge by District Judge Chandra Mohan on 11 February 1981.
[The Straits Times, News Release, “Siapa 15 get absolute discharge” (11 February 1981).] DBOD at Tab 8
27. In so ruling, DJ Mohan held in his oral grounds that the accused had “already been adequately punished by their appearances in court and the attendant press publicity and the “public chastisement” that they had been subject to.
28. The industrial action at SIA in 1980 was significantly more serious than the SMRT drivers’ strike. At stake in the SIA action was the international standing of a National airline that epitomised the Singapore spirit, and the connectivity of Singapore as a small nation connected to the rest of the World. Notably, air transport services are considered essential services under the First Schedule of the Criminal Law (Temporary Provisions) Act (Cap. 67).
[First Schedule of the Criminal Law (Temporary Provisions) Act (Cap. 67)] See: DBOA Tab 9
29. In comparison, the SMRT strike caused the company to call up reserve drivers to fill the positions of striking drivers, leading it to be able to operate at 90 percent capacity on 26 November 2012 and 95 percent capacity on 27 November 2012.
[Channelnewsasia, News Release, “No Show by SMRT’s bus drivers an ‘illegal strike’: Tan Chuan-Jin” (27 November 2012).] See: DBOA at Tab 10
30. Additionally, the grounds of DJ Mohan’s acquittal of the Siapa officials applies with even more force in the case of Jun Ling. He has been more than adequately punished by his unceremonious sacking from SMRT on 23 January 2013 and has had to live in a shelter provided by NGOs without gainful employment. He has also had to face immense and often negative media spotlight ever since the incident.
31. Unlike the SIA staff in 1980, Jun Ling does not have the option of returning to his job at SMRT. Nor, for that matter, is he likely to have an option of ever returning to any job in Singapore. Jun Ling will be hastily repatriated after serving his term in prison.
32. More significantly, Jun Ling and his colleagues felt that this was the only way in which they could express their grievances without union representation and leverage. The PRC bus drivers were in a much weaker and more vulnerable bargaining position than the Siapa officials in 1980.
33. Jun Ling and the PRC drivers were also in a uniquely vulnerable position by virtue of the fact that they were Work Permit holders. In reality, the 14 day notice period to initiate a strike under the CLTPA would be difficult for a Work Permit holder to avail himself of, as he would be at the mercy of his employer’s right to terminate his Work Permit with reasonable notice.
34. It is the humble submission of the Defence that lady justice should not look upon an airline pilot with more favour than a bus driver, and instead weigh in her scales the numerous disadvantages faced by the accused.
35. The breakdown in relations between SMRT and the PRC drivers was unprecedented, as were the consequences of this breakdown. Given the highly publicised fall-out from the November strike, and SMRT’s assurances that they will improve working conditions at the company, the possibility of copy-cat action, and correspondingly the deterrent value of a lengthy sentence, should not be over-stated.
Jun Ling’s remorse for his role in the strike
36. Out of respect for his fellow accused, it is our client’s instructions that he will not attempt to explain his relative blameworthiness or lack thereof in the entirety of events.
37. However, Jun Ling is deeply remorseful for the inconvenience he caused on the 26th and 27th of November. Jun Ling only asks that this Court empathize with the situation he was in, and extends his apologies to everyone his actions have affected.
38. It was never Jun Ling’s intention to startle or alarm the public, nor was it a calculated plan of his to unsettle labour relations in Singapore for personal gain. His actions came from a place of deep desperation and despair at his living conditions, discriminatory pay, and a lack of an outlet to express his grievances.
39. Jun Ling hopes that the Court can understand and relate to his struggle.
40. The first SMRT bus driver to participate in the strike, Mr Bao Feng Shan, was sentenced to 6 weeks in prison on 3 December 2012.
41. The Defence respectfully submits that as Mr Bao was self-represented and the present arguments were not placed before the Court, this Court is free to depart from its prior decision in considering the material we have cited in this mitigation.
42. In making a plea for leniency of Jun Ling, the Defence is not asking that the tripartism that forms the basis of Singapore’s industrial peace be ignored. Instead, the Defence asks that this Court to affirm these principles by tempering justice with mercy.
43. Even as workers, unions and employers bear responsibility for industrial stability, so too no one party should be singled out and punished in excess of another when the tripartite equilibrium is upset.
44. In particular, the weakest and the most vulnerable part of the tripartite arrangement should not bear the heaviest brunt of the law when the industrial equilibrium is upset.
Peter Low / Choo Zheng Xi
Peter Low LLC
‘Former SMRT bus drivers sentenced to at least 6 weeks’ jail for strike’, Yahoo! News, February 25, 2013.
‘Chinese bus drivers sentenced to between 6 and 7 weeks in jail in Singapore’, Xinhua, February 25, 2013.