[ESG] OSHA Amendments and Their ESG Impact in Malaysia
The recent amendments to the Occupational Safety and Health Act 1994 are set to come into effect on 1 June 2024. Beyond meeting legal obligations, these changes offer an opportunity for companies and businesses in Malaysia to strengthen and advance their ESG efforts.
If you have any queries, please contact the authors, Hoi Jack S’ng (hjs@lh-ag.com) and Tan Hooi Ping (hpt@lh-ag.com).
[EMPLOYMENT] Flexible Working Arrangements: A Comparative Analysis of the Laws in Malaysia and Singapore
Singapore introduced its Tripartite Guidelines on Flexible Work Arrangement Requests, set to take effect on 1 December 2024.
This article compares the regulatory approaches of Malaysia and Singapore, focusing on the similarities and differences, particularly in the examples provided for grounds for rejection of flexible work arrangement requests.
If you have any queries, please contact Associate, Summer Chong Yue Han (yhc@lh-ag.com), or her team Partner, Shariffullah Majeed (sha@lh-ag.com).
[TAX, CUSTOMS & TRADE] Special Alert: Too Early to the Party: Revenue’s Appeals Struck Out for Want of Locus | Taxpayers to Proceed with Legal Challenge to Seek Refund for Taxes Paid Pursuant to Unlawful Legislation
On 16.5.2024, the Court of Appeal (COA) unanimously struck out two appeals brought by the Inland Revenue Board (Revenue) against the Kuala Lumpur High Court’s (KLHC) decisions dated 13.9.2023. The KLHC had granted leave for two taxpayers to commence judicial review against the Revenue to seek refunds for taxes paid pursuant to Section 4C of the ITA, following the Federal Court’s decision in Wiramuda (M) Sdn Bhd v Ketua Pengarah Hasil Dalam Negeri [Rayuan Sivil No, 01(f)-38-08/2022(W)] that Section 4C of the ITA is unconstitutional. The COA agreed with the respondent taxpayers that the Revenue has no right of appeal as it was not yet a “party” at the leave stage. The COA’s decision is welcome in light of the Revenue’s practice of objecting to judicial review applications at the leave stage, rendering the “expeditious and cheap” process for seeking leave into a protracted and costly affair.
If you have any queries pertaining to applications for refunds of income tax erroneously paid, or any disputes with the Revenue arising from audits or investigations, please contact Consultant Dato’ Nitin Nadkarni (nn@lh-ag.com) or Partner Chris Toh Pei Roo (tpr@lh-ag.com).
[DISPUTE RESOLUTION] Special Alert: High Court Rules Against Former Group CEO Of MARA Corporation Sdn Bhd for Breach of Director’s and Fiduciary Duties
On 20.5.2024, the High Court allowed MARA Corporation Sdn Bhd’s (“MARA”) claim against the Defendant, MARA’s former Group Chief Executive Officer, for breach of director’s and fiduciary duties. MARA’s claim was founded upon, among others, the hiring of 25 employees within two weeks of taking office by the Defendant. The High Court ordered the Defendant to pay damages of RM 3.4 million and to indemnify MARA for all expenses incurred and to be incurred arising from the 25 employees’ industrial actions, if any liability is imposed against MARA.
MARA was represented by Partners Hoi Jack S’ng, Chng Keng Lung, Shaleni R Anpualagan, and Associate Teo Kah Min.
The High Court’s decision was also reported on The Edge Malaysia.
If you have any queries, please contact Partners Hoi Jack S’ng (hjs@lh-ag.com), Chng Keng Lung (ckl@lh-ag.com) or Shaleni R. Anpualagan (sra@lh-ag.com).
[EMPLOYMENT] Special Alert: Flexible Working Arrangements: Modern Practices for Contemporary Establishments
The prevalence of Flexible Working Arrangements (FWA) has increased significantly on a global scale, particularly in the aftermath of COVID-19.
This alert examines the diverse implementations of FWA across various countries. In Malaysia, recent amendments to the Employment Act 1955 now allow for FWA applications. Consequently, there is a pressing need for comprehensive FWA policies to address potential challenges such as performance management, confidentiality, cybersecurity, and occupational safety – underscoring the importance of structured implementation to achieve a balance between productivity and work-life harmony.
If you have any queries, please contact Associate, Ashreyna Kaur Bhatia (akb@lh-ag.com), or her team Partner, Amardeep Singh Toor (ast@lh-ag.com).
[ESG] Bursa Carbon Exchange to Host First Local Auction for Carbon Credits
Malaysian carbon credits are set to be up for auction this July by the Bursa Carbon Exchange. The carbon credits generated from the Kuamut rainforest project are hoped to generate greater interest among businesses to invest in carbon projects in Malaysia.
If you have any queries, please contact the author, Joyce Ong Kar Yee (oky@lh-ag.com).
[EMPLOYMENT] Special Alert: Turning the Tide: Malaysia’s Campaign Against Forced Labour in Foreign Worker Management
Despite being crucial to Malaysia’s industries, foreign workers encounter challenges such as forced labour, exploitation, and abuse, exemplified by recent incidents of unlawful deductions and other labour violations. These issues are rooted in factors like legal barriers, language disparities, and limited recourse, which not only tarnish Malaysia’s global image but also violate human rights.
In this alert, Partner Amardeep Singh Toor and Associate Jihan Azman address Malaysia’s conscious steps to combat issues associated with the management of foreign workers and to align itself with international labour standards.
If you have any queries, please contact Associate, Jihan Azman (jba@lh-ag.com), or her team Partner, Amardeep Singh Toor (ast@lh-ag.com).
[TAX, CUSTOMS & TRADE] Takes Two to Tango: Harmonising Income Tax Act and Other Legislation
Taxing legislation does not exist in isolation and must be interpreted purposively and harmoniously with other relevant legislation. In the recent case of Amlife Insurance Berhad v Ketua Pengarah Hasil Dalam Negeri, the Court of Appeal unanimously held that the current year losses suffered by insurance companies in the shareholders’ fund should not be set off against the statutory income of the life insurance fund considering, amongst others, the insurance companies’ obligations under the Insurance Act 1996 (now repealed).
Amlife Insurance Berhad was successfully represented by Dato’ Nitin Nadkarni and Ivy Ling Yieng Ping from the Tax, Customs & Trade Practice Group of Lee Hishammuddin Allen & Gledhill.
If you have any queries, please contact Consultant, Dato’ Nitin Nadkarni (nn@lh-ag.com), Partner, Ivy Ling Yieng Ping (il@lhag.com) or Associate, Jay Fong Jia Sheng (fjs@lh-ag.com).
[EMPLOYMENT] Special Alert: Employer’s Right To Offer The Option To Resign
It is trite industrial relations jurisprudence that employers have the liberty to offer poor performing employees the option to resign as an alternative to being placed under a performance improvement plan. The Court of Appeal’s decision herein, reaffirms that employers and employees may well enter into a negotiation for a severance of the employment contract on mutually agreed terms. As the employee in this case had resigned on terms mutually agreed upon in the absence of any threat of termination, the Court of Appeal agreed with the High Court and Industrial Court decisions that the employee had resigned voluntarily because it was beneficial to him to do so.
If you have any queries, please contact Senior Associate, Arissa Ahrom (aa@lh-ag.com), or her team Partner, Shariffullah Majeed (sha@lh-ag.com).
[EMPLOYMENT] Special Alert: Exorbitant Claim of RM4.7 Million for Constructive Dismissal Struck Out by the High Court
A former employee filed a RM4.7 million constructive dismissal claim against 7-Eleven Malaysia Sdn Bhd, alleging that he was constructively dismissed after discussions on a proposed restructuring exercise. The High Court found in favour of 7-Eleven in allowing its application for the former employee’s claim to be struck out.
This alert outlines key takeaways from the High Court’s decision in Abdul Nasir bin Ahmad v 7-Eleven Malaysia Sdn Bhd [No.: WA-22NCvC-565-10/2022], emphasising the meagre damages to which aggrieved employees will be entitled to at the civil courts when pursuing a claim for constructive dismissal, and the need to seek recourse through the Industrial Relations Act 1967 instead of civil courts. 7-Eleven was represented by Partner Amardeep Singh Toor and Associate Ashreyna Kaur Bhatia of Lee Hishammuddin Allen & Gledhill.
If you have any queries, please contact Associate, Ashreyna Kaur Bhatia (akb@lh-ag.com), or her team Partner, Amardeep Singh Toor (ast@lh-ag.com).