Doing Business In... 2021

Last Updated July 13, 2021

Malaysia

Law and Practice

Authors



Wong & Partners, member firm of Baker McKenzie International, is an award-winning full-service law firm. With 22 partners and over 40 associates, it is well equipped to assist across a comprehensive range of legal services, including on M&A, competition law, dispute resolution, equity and debt capital markets, employment law, joint ventures, tax and real estate law. The firm regularly acts for clients looking to conduct complex inbound and outbound investments, as well as foreign direct investments into the country. The firm's clients include some of the most respected multinational and domestic corporations across various highly regulated industries, including financial services, consumer goods, industrial manufacturing, technology, media and telecommunications.

The Malaysian legal system is based on the English common law system in which sources of law consist of legislation and case law precedents. Many Malaysian statutes draw upon equivalent legislation from common law counterparts, and English law continues to be strongly persuasive in cases argued in Malaysian courts.

There are five layers to the Malaysian civil court structure, namely the magistrates’ courts, sessions courts, high courts, the Court of Appeal and the Federal Court. Where civil claims are filed depends upon the subject matter and quantum of the claim. The magistrates’ courts and sessions courts are categorised as "subordinate courts", while the high courts, Court of Appeal and Federal Court are categorised as "superior courts".

The high courts have two separate co-ordinate jurisdictions, with the High Court of Malaya having jurisdiction to hear cases in Peninsular Malaysia and the High Court of Sabah and Sarawak having jurisdiction to hear cases in Sabah, Sarawak and the Federal Territory of Labuan.

Decisions of cases filed at the high courts in the first instance may be appealed to the Court of Appeal, and the decision of the Court of Appeal may be appealed to the Federal Court (subject to the Federal Court granting leave to appeal). The Federal Court is the final court of appeal for matters originating from the High Court.

The High Court has original jurisdiction to hear disputes where the amount claimed or the value of the subject matter in dispute is greater than that which the subordinate courts have jurisdiction to hear. The thresholds are as follows:

  • first class magistrates’ courts – up to MYR100,000;
  • sessions courts – up to MYR1,000,000 (except for civil suits in relation to motor vehicle accidents, landlord and tenant, and distress, over which a sessions court has unlimited jurisdiction); and
  • high courts – above MYR1,000,000.

In Malaysia, there is no blanket legislation specifically regulating foreign investment. Restrictions vary on an industry-by-industry basis. Whether approval is required therefore depends on the nature of the particular investment.

Background

The Malaysian government previously administered national policies aimed generally at securing the involvement of the Bumiputeras (ie, the indigenous population of Malaysia) in the economic life of the nation. A Malaysian body known as the Foreign Investment Committee (FIC) implemented guidelines limiting, among other things, foreign participation in acquisitions of equity interests, mergers and takeovers (the FIC Guidelines). However, as part of the Malaysian government's efforts to liberalise foreign investments in Malaysia, the FIC was abolished and the FIC Guidelines were repealed in June 2009. Nevertheless, various government ministries and agencies continue to restrict foreign acquisitions of equity interests in Malaysian companies in certain sectors pursuant to statutes, regulations or guidelines. In such industries, foreign investment is subject to the approval of the particular sectoral regulator.

Examples

For example, under the Distributive Trade Guidelines 2020 (DTG), proposals for foreign involvement in distributive trade in Malaysia require approval from the Ministry of Domestic Trade and Consumer Affairs. The foreign equity restrictions vary according to the distributive format (eg, a minimum of 30% Bumiputera ownership for hypermarkets and no foreign involvement allowed for mini markets and fuel stations). Similarly, the Malaysian Communications and Multimedia Commission restricts foreign equity participation in the telecommunications sector (permitted foreign equity ownership ranges from 30% to 100% depending on the type of licence required).

Need for Clarification

However, as regulations and policies on foreign equity investments are subject to policy changes, foreign investment restrictions do change from time to time and in certain cases require clarification.

Obtaining approval for foreign investment is generally a matter of consulting with and submitting an application to the relevant regulator. The consequences of investing without approval differ depending on what has been contravened and may result in administrative or legal sanctions.

Enforcement of Local Equity Participation

Legal control over local equity participation requirements may be enforced through powers conferred under statute or subsidiary legislation. For example, under the Industrial Co-ordination Act 1975, the Ministry of International Trade and Industry exercises legal control over the manufacturing industry by issuing operating licences and imposing, among other things, minimum equity conditions and notification requirements for any change in shareholding. Failure to comply with these conditions may lead to fines and/or revocation of licences, permits or approvals.

Sourcing Requirements

Due to sectoral regulation, the commitments required by the authorities depend on the particular foreign investment. While there is no overarching legal requirement, the authorities may condition their regulatory approvals or licences with local sourcing requirements. For instance, under the DTG a foreign equity-held trade company is expected to, among other things, implement hiring policies to reflect Malaysia's racial composition, formulate clear policies and plans to assist Bumiputera participation in the distributive trade sector, increase the utilisation of local airports and ports in the export and import of goods, and utilise local companies for legal and other professional services.

Equity Requirements

Foreign investment is also commonly regulated by the imposition of Bumiputera or Malaysian equity requirements, or local vendor or sourcing requirements. For example, in order to obtain a Petronas licence to carry out upstream oil activities, applicants must comply with certain equity participation requirements depending on the category of upstream activity. It is common for upstream activities to fall under a category that imposes a 51% Bumiputera equity shareholding requirement, in addition to requirements such as the obligation to maintain a minimum of 51% Bumiputera directors, management and employees.

Capital Requirements

In certain sectors, approval may also be conditional on minimum paid-up capital requirements. The required level of capital commitment is typically higher where there is foreign involvement. For example, a foreign-owned urban inbound travel agency and tour operator business is expected to commit MYR1.5 million in share capital, compared to up to MYR200,000 for a locally owned counterpart.

Investors may have a right of appeal if the specific legislation provides for appeals to higher administrative authorities or statutory tribunals against administrative decisions (such as the refusal to authorise an investment). Timing will depend on the provisions of the relevant legislation. For example, under the Town and Country Planning Act 1976, an appeal against the decision of a local planning authority must be brought within one month from the date of communication of the relevant decision.

Judicial Review

Apart from this, courts in Malaysia may judicially review the authorities' exercise of powers (where they are statutory and affect legally recognised interests, or where the powers are non-statutory but justiciable in nature). Where an investor brings a judicial review challenge in court, the courts will only consider whether the decision to refuse authorisation was legal (ie, whether in doing so the authority exceeded its powers, committed an error of law, breached the rules of natural justice, made a decision that no reasonable tribunal could have reached, or abused its powers).

An application for judicial review must be made promptly, within three months from the date the grounds for application first arose or when the decision was first communicated to the applicant. The court has discretion to extend this timeframe only where there is good reason for doing so.

In Malaysia, a business may be carried on through one of several corporate vehicles, the most common of which are:

  • locally incorporated companies;
  • branches of foreign companies;
  • representatives/regional offices; and
  • limited liability partnerships.

Locally Incorporated Companies

Locally incorporated companies are regulated under the Companies Act 2016 (CA). A locally incorporated company has a separate legal personality and the liabilities of the shareholders are limited by the amounts invested for shares of the company, or by guarantee. A locally incorporated private limited company must have at least one shareholder and there is a minimum capital requirement of one ordinary share. The company must also have at least one director who is resident in Malaysia. There is no blanket prohibition against the establishment of a wholly foreign-owned company as long as there are no foreign equity restrictions in respect of the particular business carried on by the company. 

Branches of Foreign Companies

Alternatively, a foreign company wishing to carry on business in Malaysia may register a branch under the CA. Registering a branch may be an appropriate form of operation for a foreign company that foresees that its operations in Malaysia will likely be on a short to medium-term basis. A branch does not have separate legal personality, so the liabilities of the branch are those of its parent company. A branch must appoint an agent in Malaysia who is answerable for all acts, matters and things required to be done by the branch under the CA and is personally liable for all penalties imposed on the branch unless the agent can satisfy the court that they should not be so liable. 

Representative/Regional Offices

A foreign company, especially one in the manufacturing or services sector, may also establish a representative/regional office in Malaysia. Representative/regional offices are not regulated under the CA but generally require the approval of the Malaysian Investment Development Authority (MIDA). Approval for a representative/regional office is usually given for an initial period of two years. Under the guidelines issued by MIDA, a representative/regional office is not allowed to engage in any form of commercial activity, lease warehousing facilities, sign business contracts for a fee or participate in the daily management of any entity within its corporate group in Malaysia. Permissible activities for a representative/regional office include planning or co-ordinating business activities, undertaking research and product development and other activities that will not result directly in actual commercial transactions.

Limited Liability Partnerships (LLPs)

An LLP is an alternative business vehicle that is regulated under the Limited Liability Partnership Act 2012. Unlike a traditional partnership, an LLP has a separate legal personality and the liabilities of the partners are limited in respect of claims against the LLP and the wrongful acts of other partners of the LLP. An LLP must be formed by no fewer than two persons, who may be individuals or bodies corporate. There are generally no limitations as to whether the partners of an LLP must be of local or foreign origin. However, an LLP must appoint at least one compliance officer, who must be a citizen or permanent resident of Malaysia and must ordinarily reside in Malaysia. 

In practice, foreign companies typically carry on business in Malaysia through a locally incorporated company. Many businesses have licensing or approval requirements (eg, distributive trade), which means that it is necessary to have a locally incorporated company in order to carry on that business. Where such requirements do not exist, a branch or LLP may be suitable, particularly for start-ups and SMEs, as these alternative business vehicles are not subject to the higher compliance requirements of locally incorporated companies and are thus easier to administer.

An application must first be submitted to the Companies Commission of Malaysia (CCM) to confirm the availability of the company name. Once the company name is approved, an application must then be submitted to the CCM to incorporate the company. All documents for incorporation must be lodged with the CCM within 30 days of approval of the company name, including details of the registered address, directors and shareholders. Once the CCM is satisfied that the requirements for incorporation have been met, the CCM will issue a notice of registration, which is conclusive evidence of the incorporation of the company.

The entire incorporation process can take approximately ten working days, or less if all the required documents are in order.

Companies incorporated in Malaysia must comply with the reporting requirements imposed by the CA, which include:

  • circulating audited financial statements and reports for each financial year to relevant persons, including the shareholders, within six months of the financial year end in the case of a private company, or 21 days before the annual general meeting in the case of a public company;
  • lodging audited financial statements and reports with the CCM within 30 days of the circulation of the same to the shareholders in the case of a private company, or within 30 days from the annual general meeting in the case of a public company;
  • lodging an annual return with the CCM within 30 days of the anniversary of the incorporation of the company;
  • notifying the CCM of any amendments to the constitution of the company and lodging a copy of the amended constitution within 30 days of the special resolution to amend the constitution; 
  • lodging the required statutory forms and documents with the CCM (eg, notice of increase in share capital, change in directors, change in shareholding and change in the interest of a substantial shareholder);
  • keeping accounting and other records to explain the transactions and financial position of the company sufficiently; and
  • keeping minutes of all meetings and resolutions of the shareholders and the board of directors.

From 1 March 2020 until the enforcement date of the Companies (Amendment) Bill 2020 (Transitional Period), all companies, except for: (i) public listed companies, (ii) companies whose shares are deposited in the central depository and (iii) certain other exempted companies, are required to identify, obtain and keep accurate and up-to-date information on their beneficial ownership. After the Transitional Period, companies are required to lodge their beneficial ownership information with the CCM within 14 days of the expiry of the Transitional Period, or such further extended timeframe as the CCM may determine.

In respect of public companies, substantial shareholders (ie, persons holding an interest of not less than 5% of the voting shares of the company) are required to notify the company and the CCM of their interest and of any changes to such interest.

Companies

Companies in Malaysia adopt a single-tier board system and the business and affairs of the company are managed by the board of directors. The board of directors may delegate certain functions to committees under the board (eg, an audit committee or a nomination and remuneration committee). Typically, the management team of the company is responsible for implementing the resolutions of the board of directors and for managing the day-to-day operations of the company.

LLPs

In LLPs, partners are responsible for managing the business. The rights and duties of the partners are governed by a limited liability partnership agreement entered into between the partners.

Directors' Liability

A director of a company may be held liable if the company commits an offence. Under certain statutory provisions, a director at the time of the commission of an offence by the company may be deemed to be liable. For example, the Employees Provident Fund Act 1991 provides that if a company fails to pay the required contribution with respect to the retirement benefits of its employees, the directors can be held jointly liable for the outstanding contributions, unless the director(s) can prove that the offence was committed without their consent or connivance and that they exercised all such diligence to prevent the commission of the offence.

In July 2020, the Securities Commission of Malaysia (SC) issued a set of guidelines (SC Guidelines) to regulate the conduct of directors of publicly listed corporations in Malaysia and their subsidiaries (irrespective of whether the subsidiary is incorporated in Malaysia). The SC Guidelines, among other things, reinforce the existing obligations in directors' fiduciary duties under the CA and common law.

In addition to directors, the SC Guidelines also apply to non-directors who are primarily responsible for the operations or financial management of the company (eg, chief executive officer, chief financial officer, etc).

With the implementation of the SC Guidelines (which came into force on 30 July 2020), the SC is now able to impose administrative sanctions against the directors and relevant senior management of publicly listed corporations and their subsidiaries for breach of directors' duties prescribed under the SC Guidelines.

Shareholders' Liability

It is a well-established principle in Malaysian company law that a company has a separate legal personality. As such, the liabilities of the company are distinct from those of the shareholders, who would not be held liable for the actions of the company. The Malaysian courts would only pierce the corporate veil and hold the shareholders liable in exceptional circumstances (eg, where the company is used as a vehicle to commit fraud or where the company is incorporated as a mere sham or facade).

The legal rules governing the employment relationship are principally derived from the following legislation (and, to a lesser extent, the common law) and apply to all employees, unless specified otherwise.

  • Employment Act 1955 (EA) – this governs and sets minimum standards on employment matters. It applies to eligible employees in Peninsular Malaysia, namely those with an income up to and including MYR2,000 a month; or those in certain categories of employment irrespective of salary (ie, manual labourers or their supervisors, persons who maintain or operate mechanically propelled vehicles, domestic servants, and persons in certain positions in seafaring vessels) (EA Employees). The equivalent pieces of legislation in East Malaysia are the Sabah and Sarawak Labour Ordinances, which apply to employees who earn below MYR2,500 a month (collectively with EA Employees and Protected Employees). 
  • Industrial Relations Act 1967 (IRA) – this governs relations between employers and employees, and the prevention and settlement of disputes.
  • Trade Unions Act 1959 – this regulates the registration, constitution, rights and liabilities of trade unions.
  • Employees Provident Fund Act 1991 (EPF) – this requires private sector employers and employees to contribute to a national statutory pension fund. The rate of contribution is 11% for employees and 12% to 13% for employers, depending on the monthly salary of the Malaysian employee. From 1 January 2021 to 31 December 2021, the statutory contribution rate for employees (below 60 years old) has been lowered from 11% to 9%, which isa 2% increase from the 7% statutory contribution rate implemented by the EPF effective from 1 April 2020 to 31 December 2020, as part of the Economic Stimulus Package 2020 announced by the Malaysian government in response to the COVID-19 pandemic. Foreign employees and domestic servants are exempt, but may contribute voluntarily.
  • Employees' Social Security Act 1969 (SOCSO) – this provides social security protection for Malaysian employees.
  • National Wages Consultative Council Act 2011 (Minimum Wages Order 2020) – this prescribes the minimum wage of MYR1,200 per month or MYR5.77 per hour for City Council and Municipal Council areas, including Kuala Lumpur, and MYR1,100 per month or MYR5.29 per hour for other areas as of 1 February 2020.
  • Minimum Retirement Age Act 2012 – this specifies that the minimum retirement age is 60 years.
  • Employment Insurance System Act 2017 (EIS) – this requires employers and employees to make contributions to provide protection to retrenched employees. 

An employer cannot contract out of the obligations imposed by the EA, EPF, EIS and SOCSO.

EA Employees

In Malaysia, employment contracts may be written or verbal, and expressed or implied. The terms of employment of EA Employees are subject to mandatory statutory provisions under the EA. For example, EA Employees may qualify for prescribed statutory entitlements, including annual leave, termination notice and sick leave (to varying degrees, depending on the employees' length of service). The entitlements and benefits of Non-EA Employees are governed principally by the terms of their employment contracts and the common law. However, they are equally entitled to maternity leave and sexual harassment protection under the EA.

Fixed-Term Employment

Malaysia recognises fixed-term employment contracts in so far as they are used for employees who perform project-based, short-term or seasonal work. Whether an employment contract is a fixed-term or indefinite contract is a matter of fact and degree, and Industrial Court decisions on unfair dismissals have indicated that in determining this issue, the court will assess factors such as the nature of the employer's business, the employee's responsibilities in relation to the employer's business requirements, and whether such contracts are routinely renewed.

Part-Time Employment

Part-time employment contracts are also recognised. A part-time employee is statutorily defined as a person whose average hours of work are more than 30% but do not exceed 70% of the normal work hours of a full-time employee employed in a similar capacity in the same enterprise. Part-time employees who are also eligible under the EA enjoy similar, but reduced, statutory protection.

Protected Employees cannot work for more than 48 hours per week and eight hours per day, or in excess of a period of ten consecutive hours beginning from when the employee commences work for the day, including any rest breaks. They are also entitled to a 30-minute paid break after every five hours of consecutive work. Overtime hours are permissible, subject to a total of 12 hours per day and 104 overtime hours per month. Protected Employees are also entitled to overtime pay prescribed as a percentage of their rate of pay. In the case of Non-protected Employees, their working-hour entitlements are governed by the terms of their employment contracts.

Malaysia does not recognise "at will" employment. As such, unilateral changes to "fundamental" terms and conditions of employment, such as termination notice and annual leave (as opposed to policies to regulate the workplace, such as IT usage policy), cannot be implemented without constructive dismissal risks and therefore require express, voluntary consent from the employee. All dismissals must be for "just cause or excuse" and if a former employer's decision is challenged in the Industrial Court, the former employer must show that there were proper grounds for dismissal (ie, redundancy, poor performance or misconduct), and that the former employer has complied with the relevant procedures and requirements specific to the ground for termination.

Selection for Redundancy

The courts view retrenchment by way of redundancy as a last resort. The employer must first consider and, if appropriate, carry out alternatives such as a reduction of overhead expenses and working hours. Thereafter, selection for redundancy must accord with the following established principles:

  • employees who have attained their retirement age must be selected over other employees;
  • casual workers and fixed-term employees must be selected over permanent employees;
  • within the same job scope, foreign workers must be selected over local employees; and
  • the employee with the least number of years’ service must be the first employee to be identified for selection (known as the "last in, first out" principle).

Termination Notice and Severance Payments

Subject to the specific ground of termination, dismissed employees are generally entitled to termination notice and fair severance payments, varying according to the employee's length of service. For Non-protected Employees, these are generally determined by the provisions of their employment contract. However, the prevailing market practice is to make an ex gratia payment of one month's salary per year of employment. Although there is no Industrial Court-recognised quantum of severance, the non-payment of ex gratia severance by an employer who was in a financial position to pay this could contribute towards the unfairness of the dismissal.

Generally, employment contracts in Malaysia do not provide for employees to be represented, informed or consulted by management.

In the context of termination of employment, an employer can mitigate the risk of a successful unfair dismissal claim against it by (i) informing employees of the possibility of termination as soon as possible, which may extend to consultation with the affected employees; and (ii) involving trade unions as much as possible during the termination process.

Under the Income Tax Act 1967 (ITA), income tax is imposed on income accruing in or derived from Malaysia, or received in Malaysia from outside Malaysia. Employment income is deemed to be derived from Malaysia for any period during which, among others:

  • employment is exercised in Malaysia;
  • the employee performs duties outside Malaysia that are incidental to the exercise of employment in Malaysia;
  • a person is a director of a company and that company is resident in Malaysia for the year of assessment; and
  • employment is exercised aboard a ship or aircraft used in a business operated by a person who is resident in Malaysia for the year of assessment. 

In other words, the source of employment (ie, the location of the employer) is not by itself conclusive for determining the issue of derivation. Individual income tax rates for residents range from 0% to 30%, while non-residents (other than companies) are taxed at a flat rate of 30%.

Employers in Malaysia have statutory obligations to make contributions to the Employees Provident Fund, the Social Security Organisation and the Employment Insurance System for applicable employees.

Residence of Companies

The test to determine the tax residence of a company is based on the "control and management" test. A company carrying on a business is resident in Malaysia for the year of assessment if at any time during that year, the management and control of its business is exercised in Malaysia.

Corporate Income Tax

Income tax is imposed on income accruing in or derived from Malaysia or received in Malaysia from outside Malaysia. The rate of income tax for resident and non-resident companies (except for SMEs; ie, companies with a paid-up capital in respect of ordinary shares of not more than MYR2.5 million and gross income not exceeding MYR50 million in a basis period of a year of assessment from all business sources) is 24%. SMEs are generally subject to income tax at a rate of 17% on the first MYR600,000 of chargeable income and 24% on the remaining chargeable income with effect from the year of assessment 2020. The chargeable income that is subject to tax comprises gross income, less permitted deductions.

Sales and Service Tax

Effective from 1 September 2018, the goods and services tax regime was repealed and replaced with a new sales tax and service tax regime. 

Sales tax is charged on taxable goods: (i) manufactured in Malaysia by a registered manufacturer and sold, used or disposed of by them, or (ii) imported into Malaysia by any person, at a rate of 5%, 10% or a specified rate depending on the category of taxable goods. 

Service tax is generally charged at 6% on taxable services, provided in Malaysia by a registered person in the course of business, and on imported taxable services. Taxable services include accommodation services, food and beverage services, and professional services. Credit card or charge card services are subject to different rates of tax (ie, MYR25 for principal credit or card).

Withholding Tax

Malaysia imposes a withholding tax on certain payments to non-residents, including, without limitation, royalties, technical fees, installation fees and rental of movable property. The rate of withholding tax is generally between 10% and 15% unless there is a double-taxation agreement between Malaysia and the country of the non-resident, in which case, the withholding tax rate may be reduced.

Taxes on Dividends

There is no further income tax on dividends received from a Malaysian company. Tax imposed on the company’s profits will be the final tax and dividends distributed to their shareholders will not be subject to further tax.

Real Property Gains Tax (RPGT)

RPGT is imposed on gains accruing on the disposal of any real property or shares in any real property company in Malaysia, and applies to all persons whether or not that person is resident in Malaysia. The rate of RPGT for companies ranges from 10% to 30% depending on the number of years since the date of acquisition of the real property, subject to certain exemptions.

The Malaysian government offers a wide range of tax incentives across various sectors in order to promote investment activity. Among the most significant tax incentives offered in Malaysia are Pioneer Status and the Investment Tax Allowance.

Pioneer Status and Investment Tax Allowance

Pioneer Status is an income tax exemption on 70% to 100% of statutory income for a period of five to ten years. The Investment Tax Allowance is an allowance of 60% of qualifying capital expenditure for a period of five years. Pioneer Status and the Investment Tax Allowance are mutually exclusive (ie, a company can only benefit from one of the incentives at a time).

Companies in the manufacturing, agricultural and tourism sector, or any sector that comprises a promoted activity or produces a promoted product may be eligible for Pioneer Status or the Investment Tax Allowance if the qualifying conditions are met.

Concessionary Tax Rate

Effective from the year of assessment 2021 onwards, a concessionary tax rate of not more than 20% has been introduced for persons carrying on business in respect of a qualifying activity under an approved incentive scheme, as well as the individual resident who is not a citizen employed under such qualifying activity, subject to the final rate, specified year of assessment and conditions prescribed. Such qualifying activities include hi-tech activities in the manufacturing and services sector, and other activities which benefit the Malaysian economy.

There are no tax consolidation provisions in Malaysia. However, the ITA provides for group relief for locally incorporated resident companies. The group relief is limited to 70% of the current year’s unabsorbed tax losses to be set off against the income of another company in the group, subject to certain conditions. With effect from the 2019 year of assessment, losses can generally only be surrendered after 12 months from the commencement of operations of the surrendering company and only for a period of three consecutive years of assessment.

Initial proposals to introduce thin capitalisation rules in Malaysia were abandoned but the government has introduced the Income Tax (Restriction on Deductibility of Interest) Rules 2019 (ESR), effective from 1 July 2019. The purpose of this is to restrict the interest deduction from the gross income of a person for any financial assistance in a controlled transaction in respect of their business income for the basis period for a year of assessment (YA) (Restriction). The ESR is applicable where the total interest expense on any financial assistance in a controlled transaction (ie, where one party has control over the other, or where both are under the control of the same third person) in the basis period for a YA exceeds MYR500,000. The interest expense that is deductible is not permitted to exceed 20% of the amount of tax-EBITDA of the person from each of its business sources for the basis period for a YA (subject to certain exemptions). Tax-EBITDA is derived from the total amount of adjusted income before the Restriction plus the total amount of allowable qualifying deductions plus the total interest expense incurred in relation to the gross income for any financial assistance in a controlled transaction. The ESR is not applicable to certain parties, including, without limitation, individuals, a licensed bank, a Labuan bank, and a Labuan investment bank.

The ITA contains transfer pricing provisions that govern transactions between related companies, requiring them to be conducted at arm's length. Failing this, the Inland Revenue Board (IRB) may disregard or make adjustments to such transactions, or substitute the price in respect of the transaction to reflect an arm's length price for the transaction. In this respect, the Finance Act 2020 has introduced a surcharge of up to 5% of the amount of increase in the taxpayer's income, or reduction of any deduction or loss (as the case may be), for such transfer pricing adjustments or price substitutions.

The Income Tax (Transfer Pricing) Rules 2012 (Transfer Pricing Rules) require the preparation of contemporaneous transfer pricing documentation for transactions between related companies. There is a penalty of a fine ranging from MYR20,000 to MYR100,000, and/or imprisonment for up to six months, for the failure to furnish transfer pricing documentation at the IRB's request.

There are also transfer pricing guidelines to provide taxpayers with further guidance on the administrative requirements in preparing transfer pricing documentation and the application of transfer pricing methodologies to related-party transactions.

Malaysia has also introduced country-by-country (CbC) reporting rules, which require relevant reporting entities to prepare and file a CbC report.

Reporting entities are defined under the CbC reporting rules as the ultimate parent entities of multinational corporations where:

  • the total consolidated group revenue is at least MYR3 billion in the financial year preceding the reporting financial year; and 
  • any of the group's constituent entities is incorporated, registered or established under Malaysian law and is resident in Malaysia, or is a permanent establishment in Malaysia.

The general anti-avoidance rule in the ITA applies to any transaction that has the direct or indirect effect of:

  • altering the incidence of tax that would otherwise have been payable;
  • relieving any person of any liability that would have arisen to pay tax or to make a tax return; 
  • evading or avoiding any duty or liability imposed under the ITA; or
  • hindering or preventing the operation of the ITA in any respect.

The IRB may disregard or vary such transactions and make adjustments with a view to counteracting the whole or any part of the effect of the transaction.

Malaysia Competition Commission (MyCC)

The Competition Act 2010 (MCA) is the principal statute governing competition law in Malaysia and it grants administrative and enforcement powers to the Malaysia Competition Commission (MyCC). The MCA currently does not provide for merger control rules. However, sector-specific voluntary merger control regimes exist in the civil aviation, and communications and multimedia industries.

Competition law amendments are expected to be tabled in parliament by the end of the year 2021, which includes giving MyCC the power to review merger activities, allowing it to approve or reject deals or to impose conditions on potential deals. MyCC has indicated that it is inclined to adopt a mandatory notification regime, which means that once certain thresholds are met, a legal obligation to notify MyCC in relation to a transaction will arise, and MyCC's approval must be obtained. It is currently unclear whether MyCC intends to implement a pre- or post-completion notification regime. 

Malaysian Aviation Commission (MAVCOM)

Mergers in the civil aviation industry fall under the purview of the Malaysian Aviation Commission (MAVCOM), established under the Malaysian Aviation Commission Act 2015 (MACA). MACA prohibits any merger that will substantially reduce competition in any aviation service market. Parties may voluntarily notify MAVCOM of the merger or proposed merger to determine if the merger in question will infringe the prohibition under MACA. 

Malaysia Communications and Multimedia Commission (MCMC)

Mergers and acquisitions in the communications and multimedia industry by licensees under the Communications and Multimedia Act 1998 (CMA) are regulated by the Malaysia Communications and Multimedia Commission (MCMC). The CMA prohibits transactions that have the purpose or will have the effect of substantially lessening competition in a communications market. Furthermore, the Guidelines on Mergers and Acquisitions issued by the MCMC on 17 May 2019 introduced a voluntary notification and assessment regime for transactions in the communications and multimedia market in Malaysia.

As the MCA does not currently contain general merger control provisions, there are no merger control procedures of general application in Malaysia.

Civil Aviation Industry

Merger parties are expected to carry out a self-assessment to determine whether any notification and application to MAVCOM is appropriate. As the notification regime is voluntary, the transaction can be closed before the notification is made to MAVCOM or before receiving MAVCOM's approval in respect of the application. The earliest time that a merger party may make such an application to MAVCOM is: 

  • for an anticipated merger – when the parties have a bona fide intention to proceed with the merger; details of the merger are available; and the merger will be or has been made public; or
  • for a completed merger – at any time after the merger has been completed.

The time taken by MAVCOM to assess an application will vary depending on the complexity of the issues and the completeness of the information provided in the application.

Communications and Multimedia Industry

The voluntary notification and assessment process can be done prior to or after completion of the M&A. Parties are required to conduct a self-assessment against thresholds established by the MCMC. If the parties opt to complete the transaction without obtaining the MCMC's view, they must bear the risk of an objection by the MCMC and enforcement actions under the CMA. The MCMC may require that a proposed M&A is halted and not completed. Where the M&A has been completed, the MCMC may issue directions to prevent further integration between the M&A parties, or to prevent the merged or acquired entity from trading.

The MCMC’s assessment will be conducted through a two-phase process. Both phases involve the assessment of whether the M&A has the purpose, or has or may have the effect, of substantially lessening competition in a communications market, but they are distinguished by the extent of the information sought from the parties and the nature of the assessment undertaken by the MCMC.

The MCA prohibits agreements between enterprises that have the object or effect of significantly preventing, restricting or distorting competition in Malaysia (Chapter One Prohibition). This includes both horizontal agreements (ie, between competitors) and vertical agreements (ie, between enterprises operating at different levels of the supply chain). 

Generally, anti-competitive agreements will not be considered "significant" if the parties to the agreement:

  • are competitors in the same market and their combined market share of the relevant market does not exceed 20%; or
  • are not competitors and each of the parties individually holds less than a 25% share in the relevant market.

Under the MCA, certain horizontal agreements are deemed to have an anti-competitive effect on the market and there will be no further assessment of their anti-competitive effects. These include agreements that have the object of:

  • fixing the purchase or sale prices, or other trading conditions;
  • sharing markets or sources of supply;
  • limiting or controlling production, market outlets, market access, technical or technological development, or investment; and
  • bid-rigging.

While no equivalent provisions exist for vertical agreements, MyCC has indicated that it will deem minimum resale price maintenance and other forms of resale price maintenance (including maximum pricing or recommended retail pricing) to be anti-competitive. MyCC has also indicated that it will be focusing its efforts on, and will be taking firm action against, bid-rigging (particularly in the public procurement space). 

Under the MCA, an enterprise may be relieved from liability for the Chapter One Prohibition if it is able to rely on the statutory defence that there are significant identifiable technological, efficiency or social benefits directly arising from the agreement that are proportionate, and that the detrimental effects on competition are proportionate to the benefits provided.

Where the enterprise is found to have infringed the MCA, MyCC may require the infringement to cease immediately, impose a penalty not exceeding 10% of global turnover over the period in which the infringement occurred, or give other directions as it deems appropriate. MyCC also has discretion to specify further steps or give other directions (collectively, Prohibition Sanctions).

The MCA also prohibits any conduct that amounts to abuse of a dominant position in any Malaysian market for goods and services (Chapter Two Prohibition).

The term "dominant position" refers to enterprises that possess such significant power in the market that they are able to adjust prices, outputs, or trading terms without effective constraint from competitors or potential competitors. MyCC's guidelines on the Chapter Two Prohibition states that a market share of above 60% indicates dominance, although market share is not in itself conclusive. The MCA contains a non-exhaustive list of factors indicating such abuse, which include predatory behaviour towards competitors; imposing an unfair purchase or selling price or other unfair trading conditions; limiting or controlling production, market outlets, market access, technical or technological development, or investment, to the detriment of consumers; and refusing to supply to a particular enterprise, or group or category of enterprises.

However, an enterprise in a dominant position can take steps that have reasonable commercial justification or that represent a reasonable commercial response to a competitor's market entry or market conduct.

Where the enterprise is deemed to have infringed the Chapter Two Prohibition, it may also be subject to the Prohibition Sanctions mentioned in 6.3 Cartels.

The granting of patents is governed by the Patents Act 1983 and Patents Regulations 1986. In order to obtain a patent, the invention must comply with the following requirements:

  • it must be a worldwide novelty;
  • it must involve an inventive step; and
  • it must have an industrial application.

An application for a patent is filed with the Intellectual Property Corporation of Malaysia (MyIPO). A preliminary examination will be conducted to check for formalities compliance. If the formalities are in order, a clear formalities report is issued. The applicant must then request a substantive examination. If this examination is successful, the patent will be granted and the registrar will issue the certificate and record the patent in the Register.

A patent is valid for 20 years from the filing date. The owner of a patent has the exclusive right to exploit the patented invention (eg, make, sell or use the product or process). A patent is infringed by any person who exploits the invention without the consent of the patent owner. Relief can be obtained by way of damages and an injunction to prohibit the infringement. It is also a criminal offence for any person to falsely represent that anything disposed of by them for value is a patented product or process.

Trade marks do not need to be registered to be protected in Malaysia, as the tort of passing-off will provide some protection. However, registration confers significant advantages, such as ease of enforcement.

The registration of trade marks is governed by the Trademarks Act 2019 and Trademarks Regulations 2019. In order to be registrable, the sign must be represented graphically and must be capable of distinguishing the goods or services of one undertaking from those of other undertakings. The legislation  recognises non-traditional marks such as colour, scent, sound, shape of goods or packaging, hologram, positioning, and sequence of motion as registrable signs and allow the registration of multiple classes of classification under a single application. Following Malaysia’s accession to the Madrid Protocol, a trade mark owner in Malaysia can now seek protection of its trade marks in over 120 countries by filing one application with a single fee.

An application for registration of a trade mark is filed with MyIPO. After the application is filed, it will be examined for registrability. If there are objections, the registrar will issue a letter and the applicant may then make representations, amend the application or provide further evidence. If the registrar accepts the application for registration, the application will be published in the Intellectual Property Official Journal. Upon advertisement, there is a period of two months for anyone to oppose the registration of the trade mark. If there is no opposition, the Registry will issue a sealed notification of the registration or a certificate of registration if requested. 

A trade mark registration is valid for ten years and can be renewed for subsequent periods of ten years. A registered trade mark is infringed by a person who, without the consent of the registered trade mark proprietor, uses a sign that is identical to the registered trade mark on identical goods or services, or uses a sign that is identical or similar to the trade mark on similar goods or services, resulting in the likelihood of confusion on the part of the public. Relief can be obtained by way of damages, an injunction to prohibit the infringement, and account of profits or additional damages where the infringement involves the use of counterfeit marks. 

Additionally, the owner of a registered trade mark may apply to the Registrar of Trademarks, objecting to the importation of certain goods that they suspect will infringe their trade mark in Malaysia.

Requirements for Registration

The registration of industrial designs is governed by the Industrial Designs Act 1996 and Industrial Designs Regulations 1999. In order to be registrable, a design must be new and have features, such as shape, configuration, pattern or ornament, that appeal to and are judged solely by the eye. A design must not include features determined by a method or principle of construction, or features such as shape or configuration that are dictated solely by the function that the article has to perform or that are dependent upon the appearance of another article, of which the article is intended by the creator/designer to form an integral part.

An application for registration must be filed with MyIPO accompanied by design drawings and a statement of novelty.

Infringements

A registered industrial design is initially valid for five years and can be renewed for a further four terms of five years each. It is an infringement if any person without the consent or licence of the owner applies the industrial design, or any fraudulent or obvious imitation of it, to any article for which the industrial design is registered, or imports such an article for which the industrial design is registered, into Malaysia for the purposes of trade, or to sell or hire such an article. Relief can be obtained by way of damages or account of profits and an injunction to prohibit the infringement.

Copyright protection is governed by the Copyright Act 1987 (Copyright Act). While there is no requirement to register copyright in Malaysia, copyright owners may make a voluntary notification of copyright to MyIPO. Copyright in a work arises automatically upon creation once the following criteria are fulfilled:

  • the work is original;
  • the work is recorded or reduced to material form;
  • the work belongs to one of the six categories of protected works (ie, literary works, musical works, artistic works, sound recordings, films or broadcasts) or derivative works; and
  • the work complies with the qualifications for copyright.

Term

The basic term of copyright is the life of the author plus 50 years. For published editions, sound recordings, photographs, films and broadcasts, the term of copyright is 50 years from the beginning of the year following the year in which the work was first published or broadcast. Performers have copyright protection to their live shows for 50 years from the beginning of the calendar year following the year in which the live performance was first given or recorded.

Infringement

Infringement of a copyright is both a civil wrong and a criminal offence. The Copyright Act also provides for the protection of the moral rights of the author of the copyrighted work. The author may sue for a breach of their moral rights to claim damages and the publication of corrections.

Extent of Copyright Protection

Copyright protection under the Copyright Act extends to computer programs (as "literary works"). Databases may also be protected under the Copyright Act as literary works or derivative works.

The tort of breach of confidence may provide protection for confidential information and trade secrets. The court will examine the type of information to determine whether it is of a confidential nature. The court will also look at whether the information was disclosed in circumstances that expressly or by implication imposed a duty of confidence on the recipient of the information.

The Personal Data Protection Act 2010 (PDPA)

The main legislation relating to data protection is the Personal Data Protection Act 2010 (PDPA), which came into force on 15 November 2013. The PDPA is a code of practice-based regime, pursuant to which various codes regulating data protection in the aviation, banking and financial, insurance and takaful, and utilities sectors have been approved and registered. The PDPA regime is supplemented by the Personal Data Protection Regulations and other subsidiary legislation such as the Personal Data Protection (Registration of Data User) Regulations 2013, which specify classes of data users who must register under the PDPA. Examples of these classes include banks, insurers and takaful operators, private healthcare facilities, private higher education institutions, schools and private educational institutions, licensed persons who carry on or operate a tourism training institution, tour operators, travel agents or licensed tourist guides.

Definition of "Personal Data"

The PDPA applies to any person who processes, has control over or authorises the processing of any personal data in respect of commercial transactions. Information qualifies as "personal data" where it:

  • relates to a data subject who is identified or identifiable from that information, or from that and other information in the possession of a data user; and
  • is capable of being processed by means of equipment operating automatically in response to instructions given for that purpose or recorded as part of a manual filing system, where specific information relating to a particular individual is readily available.

"Sensitive Personal Data"

The PDPA also recognises a separate category of "sensitive personal data", which is defined as any personal data consisting of information on a data subject's physical or mental health or condition, political opinions, religious beliefs or other beliefs of a similar nature; commission or alleged commission by the data subject of any offence; or any other personal data as the Minister of Communications and Multimedia may determine. Such data is more stringently regulated and the PDPA generally prohibits any person from processing or using sensitive personal data unless the data subject has given explicit consent.

The Seven Data Protection Principles

The legal framework on data privacy is based on seven data protection principles, which also form the basis of the PDPA. In general terms:

  • the General Principle prohibits the processing of personal data without the consent of the data subject;
  • the Notice and Choice Principle requires the data subject to be provided with a written notice containing specific information relating to the data processing as soon as practicable;
  • the Disclosure Principle prohibits the disclosure of personal data for a purpose other than the purpose for which the personal data was to be disclosed at the time of its collection or a directly related purpose;
  • the Security Principle requires the data user to take practical steps to protect personal data from any loss, misuse, modification, unauthorised or accidental access or disclosure, alteration or destruction in the course of processing personal data;
  • the Retention Principle requires the data user to take reasonable steps to ensure that personal data is destroyed or permanently deleted if it is no longer required for the purpose for which it was to be processed;
  • the Data Integrity Principle requires the data user to take reasonable steps to ensure that the personal data processed is accurate, complete, not misleading and updated; and
  • the Access Principle requires the data user to grant data subjects access to, and the ability to correct, their personal data where it is inaccurate, incomplete, misleading or outdated.

The PDPA applies only to personal data processed in Malaysia. It does not have any extraterritorial effect and does not apply to any personal data processed outside Malaysia, unless it is intended to be further processed in Malaysia. 

However, personal data may not be transferred to places outside Malaysia, unless such a place has been specified by the Minister of Communications and Multimedia. However, there are prescribed exemptions to this restriction (collectively called "Prescribed Exemptions") and data users may transfer personal data to places outside Malaysia if, among other things:

  • the data subject has provided consent to the transfer;
  • the transfer is necessary for the performance of a contract between the data subject and the data user;
  • the transfer is for the purpose of any legal proceedings or for the purpose of obtaining legal advice; or
  • the transfer is necessary to protect the vital interests of the data subject.

The Department of Personal Data Protection (PDP Department) falls under the Ministry of Communications and Multimedia. The PDP Department is the responsible agency in respect of data protection and is tasked with enforcing and regulating the PDPA in Malaysia.

A commissioner is appointed under the PDPA and is tasked with wide statutory functions, including:

  • advising on the national policy for personal data protection and related matters; 
  • implementing and enforcing personal data protection laws, including the formulation of operational policies and procedures;
  • promoting and encouraging representatives of data users to prepare codes of practice and to disseminate them to their members;
  • co-operating with bodies corporate or government agencies in order to perform his or her functions;
  • undertaking research into, and monitoring developments in, the processing of personal data in order to take account of the effects of data processing on the privacy of individuals' personal data;
  • monitoring and supervising compliance with the PDPA, and issuing circulars and enforcement notices as appropriate; and
  • promoting awareness and dissemination of information to the public about the PDPA.

Proposed Amendments to the EA

In late 2018, the Ministry of Human Resources (MOHR) proposed a list of significant amendments to the EA, with the objective of aligning Malaysia's employment law with the standards of the International Labour Organisation Convention. As at the date of writing, the amendment bill has not been tabled in parliament. 

The key amendments in MOHR's proposals include the following.

  • The expansion of the scope of the EA to cover all employees, irrespective of their salary or job scope. Certain protections relating to working hours and special rate payments for work conducted during overtime, rest days and public holidays will apply only to employees with a monthly salary below MYR5,000. 
  • The reduction of maximum weekly working hours from 48 hours to 44 hours. 
  • The removal of an employer's discretion to refuse an inquiry into any complaints of sexual harassment. The proposals suggest a mandatory obligation on both the employer and the Director General of Labour to investigate all sexual harassment complaints.
  • The introduction of express prohibitions on employers from discriminating against employees on the grounds of gender, religion, race and disability in the terms and conditions of employment offered. 
  • An increase in entitlement to maternity leave from 60 days to 98 days and the granting to employees of a right to paternity leave of three days.
  • The introduction of the right of employees to request flexible working arrangements, regardless of the terms of their contract of service. The proposals provide that an employer must consider the request, though an employer is not obliged to grant the request. However, if the employer refuses the request, the decision must be supported by reasons as specified in the proposed amendments, eg, that the employer is unable to hire additional employees to accommodate the employee's desired working hours.
Wong & Partners, member firm of Baker McKenzie International

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Rosli Dahlan Saravana Partnership (RDS) is a full-service commercial law firm set up by five founding partners: Datuk DP Naban, Rosli Dahlan, Bee Hong Ooi, S Saravana Kumar and Eu Jin Ong on 20 February 2020. Retired Court of Appeal Judge Dato’ Seri Hishammudin Yunus is a consultant with RDS. On 1 January 2021, RDS expanded and set up a branch office in Penang, Malaysia, headed by two partners, Chia Loong Thye and Tan Gek Im. RDS has a diversified client base, comprising high net worth business owners, government-linked companies, financial institutions, service providers, public listed companies and leading multinationals from the Asia Pacific region, the Americas, Europe and the Middle East. RDS is also emplaced as the panel solicitors of various financial institutions and leading housing developers. Dedicated to professional excellence, personal high-quality service and an efficient solution-orientated approach, the firm has more than 50 fee earners, including pupils-in-chamber and paralegals.

Steering Through the COVID-19 Pandemic: a Guide for Business Owners

The infectious coronavirus has brought about a global economic crisis like no other. When it hit the shores of Malaysia, the government implemented a nationwide lockdown through the Movement Control Order (MCO) – and along with it came a drastic change of consumer behaviour and critical supply chain disruption. Undoubtedly, businesses were knocked off balance. PwC’s Global Crisis Survey 2021 reveals that 83% of its respondents opined that their business was negatively impacted by the COVID-19 pandemic, and only 47% felt that they were well prepared for the crisis. 

In view of the uncertainties brought by the COVID-19 pandemic, this article seeks to elucidate the effect of the pandemic on businesses and provide a comprehensive guide to business owners on how to steer through the turbulent waters of COVID-19 in terms of contractual performance, taxation, employment and personal data protection in Malaysia.

Contractual performance

It is undeniable that COVID-19 has disrupted the performance of contractual obligations by business owners. If a party to the contract is unable to fulfil contractual obligations due to supervening events, it may want to scrutinise the force majeure clauses in the contract or explore the applicability of the doctrine of frustration.

Force majeure

Force majeure clauses often exist to protect parties from the inability to fulfil contractual obligations due to certain supervening events. Whether the COVID-19 pandemic constitutes a force majeure event will depend entirely on the scope of the force majeure clause in the contract. Words such as “pandemic”, “epidemic”, “outbreak” and “government lockdown” in a force majeure clause can be construed to cover the COVID-19 pandemic and the MCO. 

With force majeure clauses typically included in commercial contracts, including purchase agreements and supply agreements, companies should assess if the effects of COVID-19, or any response to it, including government-imposed lockdowns or restrictions in the export or import of goods, would fall within the scope of force majeure provisions in their contracts, and if so, the contractual parties’ respective rights, obligations and remedies should be carefully considered.

In particular, it should be noted that the courts will consider whether mitigating steps have been taken before allowing a defaulting party to invoke the force majeure clause. Accordingly, companies or business owners seeking to modify their contractual obligations in terms of force majeure due to the pandemic, should exhaust other alternative means of fulfilling their contractual obligations, even if they may incur additional cost.

Doctrine of frustration

In the absence of an express force majeure clause in a contract, Section 57(2) of the Malaysian Contracts Act 1950 recognises the doctrine of frustration which applies in a situation where, after a contract has been entered into: (i) it becomes impossible to perform the contractual obligation, or (ii) it becomes unlawful to perform the contractual obligation by reason of some event which a party could not prevent. In such situation, the contract can be rendered void.

As with the considerations for force majeure clauses, companies and business owners should carefully consider if the COVID-19 pandemic or any response to it (eg, any policy or standard operating procedures implemented by the government) have rendered the contractual obligations of parties to any contract either impossible or unlawful to perform, therefore rendering the contract void.  Alternatively, parties to the contract may wish to renegotiate the same and explore the possibility of varying the contractual terms and negotiate for price adjustments or extension of time.

Material Adverse Change clauses

Material Adverse Change (MAC) clauses are typically included in contracts to allow a party to terminate an agreement if an event or situation causes a material adverse change to the party’s finances or operations. The definition, scope and applicability of MAC clauses are unique to each agreement, therefore determining whether a “change” is materially adverse will vary on a case-by-case basis. 

As an illustration, in merger and acquisition deals, the inclusion of MAC clauses would entitle the buyer to walk away from the transaction between signing and closing, if a certain triggering event as stated in the MAC clause occurs. In this regard, companies entering into a transaction should negotiate for more specific carve-outs to exclude certain matters relating to the COVID-19 pandemic from constituting a MAC, thereby preventing the other party from finding an easy exit to the deal.

Additionally, in managing contractual obligations, it would also be prudent for business owners to take into consideration other relevant provisions in the contract, such as clauses relating to essence of time, consequences of delay and termination. 

Section 7 of the COVID-19 Act

On 23 October 2020, the government of Malaysia introduced the Temporary Measures for Reducing the Impact of Coronavirus Disease 2019 (COVID-19) Act 2020 (the "COVID-19 Act"). The main objective of this Act is to “provide temporary measures to reduce the impact of COVID-19” – the impact of which mostly arises out of the restrictions imposed under the MCO. 

Central to the Act is Section 7, which initially applied retrospectively from 18 March 2020 up to 31 December 2020. The applicability period was subsequently extended to 30 June 2021, and such period may be extended further by the prime minister. 

Pursuant to Section 7 of COVID-19 Act 2020, a party’s right to enforce its contractual rights will be suspended during the aforesaid prescribed period if the following criteria are satisfied:

  • there is an inability by the other party to perform a contractual obligation; 
  • the said contractual obligation arises from one of the nine categories of contracts specified in the Schedule to the COVID-19 Act 2020 (eg, a lease or tenancy agreement pertaining to non-residential immovable property; a credit sales contract under the Consumer Protection Act 1999; a professional services contract; and a construction work contract or construction consultancy contract and any other contract related to the supply of construction material, equipment or workers in connection with a construction contract); and 
  • the inability to perform is due to the measures prescribed, made or taken under the Prevention and Control of Infectious Diseases Act 1998 to control or prevent the spread of COVID-19.

Hence, companies and business owners should diligently maintain proper records of documents pertaining to the circumstances of their inability to perform contractual obligations due to the COVID-19 pandemic during the MCO, as such documents may determine the outcome of any future claims or disputes. 

Double taxation

The COVID-19 pandemic has forced governments worldwide to take unprecedented and drastic measures, such as implementing travel restrictions and border closures. In light of this, some employees may be stranded and compelled to work in locations outside the jurisdictions where they normally carry out their employment. The question then arises as to whether the displacement of employees to countries other than the country in which they normally work, due to COVID-19 travel restrictions, will lead to issues pertaining to double taxation? 

Double taxation refers to a situation where the same source of income is taxed twice – this can occur when the same income is taxed by different taxation authorities from different jurisdictions. In the context of international trade, it generally occurs when the source of income is subject to tax, both in the country of source where the income arises and the country of residence where the income is received.

In order to minimise or eliminate double taxation of the same source of income, countries have entered into double taxation agreements (DTAs). Most Malaysian DTAs follow the Organisation for Economic Co-operation and Development (OECD) model treaty with some modifications.

Creation of a permanent establishment

Article 7(1) of Malaysian DTAs generally provides that business profits are not to be taxed in the source country but only in the corresponding contracting country in which the business is located, unless the business has a permanent establishment (PE) in the source country. 

As such, to steer clear of being taxed twice on the same source of income, businesses should, among other things, circumvent the creation of a permanent establishment to the extent permitted by law. In this respect, the Inland Revenue Board of Malaysia (IRB) has provided some guidance for taxpayers by stipulating that where a company is not resident in Malaysia, the temporary presence of its employees or personnel in Malaysia due to COVID-19 travel restrictions does not result in the creation of a PE in Malaysia, provided that such company meets the following criteria: 

  • the company did not have a PE in Malaysia before the existence of COVID-19 travel restrictions; 
  • there are no other changes to the economic circumstances of the company, eg, the principal activities and business model of the company, the nature of the business operations and the conduct of the business in Malaysia and elsewhere, and the usual locations in which the company operates; 
  • the temporary presence of company employees or personnel in Malaysia is solely due to travel restrictions relating to COVID-19; and 
  • the activities performed by company employees or personnel during their temporary presence would not have been performed in Malaysia if not for the COVID-19 travel restrictions.

How to mitigate the risk of inadvertently creating a PE

To mitigate such risk, it is prudent for non-resident companies to keep all relevant records and documents – eg, employees' passport immigration endorsement records, travel schedule, and work order or instructions from the employer – to show that any temporary presence of its employees or personnel in Malaysia is solely due to travel restrictions relating to COVID-19, and that the activities performed during their temporary presence would not have been performed in Malaysia if not for the COVID-19 travel restrictions. Such documents should be kept and furnished to the IRB upon request.

PDPA Compliance

In the effort to detect, contain and prevent the spread of the novel coronavirus during the COVID-19 outbreak, the government of Malaysia has imposed a mandatory obligation on businesses to collect information about their visitors, so as to facilitate the speedy and effective identification of close contacts and, eventually, the entire infection cluster. Consequently, a vast amount of personal data has been and will continue to be gathered and processed. 

The handling of such personal data is legally regulated by, among other things, the Malaysian Personal Data Protection Act (PDPA) 2010. Hence, businesses which collect personal data for the purpose of contact tracing during the COVID-19 outbreak should be mindful of their statutory duties as embodied in the PDPA 2010, regarding the collection, processing, security and retention of personal data, as outlined here.

Collection of personal data

The Malaysian Personal Data Protection Department (“PDP Department”) has stated that for purposes of contact tracing, it is sufficient for businesses to collect only the visitor's or customer’s name, contact number, and date and time of visit, irrespective of whether such information is recorded manually or digitally. 

In addition, business owners should also be mindful that the purpose for which the personal data of their customer is collected is contact tracing, and they should ensure that the information collected is strictly limited and proportionate to such purpose and not for any other unrelated purpose (such as marketing). In this respect, a clear notice in relation to such purpose must be displayed in places which are visible to visitors/customers to inform them of the same. 

Processing of personal data

Business owners are prohibited from collecting, recording, holding, storing, altering, disclosing, correcting, erasing, retrieving or carrying out any operation on (collectively “processing”) the personal data of their visitors or customers, unless such customers have given their consent to the processing of such personal data. 

However, during the pandemic, it may be possible for business owners to invoke the statutory exception to the requirement for consent to be obtained from data subjects if the processing of data is necessary “for the exercise of any functions conferred on any person by or under any written law”. One apposite example is under Section 10(1) of the Prevention and Control of Infectious Diseases Act 1988, which imposes a duty on a person in charge of a company, upon becoming aware of the existence of a disease, to notify the officer in charge of the nearest district health office or government health facility or police station of the existence of such disease with the least practicable delay.

Security of personal data

To safeguard personal data collected for the purpose of contact tracing, the PDP Department has stated in an advisory titled "Advisory on the Procedure for the Handling of Activities relating to the Collection, Processing and Storage of Personal Data by Business Premises during the Conditional Movement Control Order" that the manual collection of such personal data must be done by the members of staff of the businesses, to prevent any inadvertent and unauthorised disclosure of the collected personal data. Furthermore, the physical manuscript used to record the personal data must be a document specifically used for such purpose only.

Retention of personal data

Business owners are only allowed to retain personal data collected for up to six months from the official end date of the MCO, which will be announced by the government of Malaysia in due course. All personal data collected must then be permanently destroyed or deleted in a manner appropriate to the data collection method employed by the businesses. 

As Malaysia grapples with the COVID-19 pandemic, data protection law should not hinder measures taken to combat COVID-19 infection. However, business owners are advised to review and update their personal data protection policies and regimes so as to be aligned with the principles encapsulated in the PDPA 2010 and the relevant laws and regulations. Failure to do so may attract a fine of not more than MYR300,000 or a term of imprisonment not exceeding two years, or both.

Employment: restructuring and retrenchment

In attempting to weather the storm, companies and organisations should actively optimise their workforce through restructuring, or even retrenchment, as a cost-cutting measure to maintain the solvency of their business. 

Employer’s right to organise its business

In Malaysia, an employer has the right to organise its business as it deems fit, which includes restructuring or downsizing the company to achieve maximum operational efficiency, cost effectiveness, and profitability. Such managerial power will not be interfered with by the court unless it is determined that the exercise of power was capricious, mala fide or actuated by victimisation or unfair labour practice.

Hence, the right to transfer an employee from one department to another or from one post of an establishment to another, or from one branch to another or from one company to another within the organisation, is the prerogative of the management. Generally, such right to transfer an employee is an implied right of the employer and, therefore, no express term in the contract is necessary, unless there is a term in the contract to the contrary.

However, it should be noted that in the recent case of Ng Bee Yoong v Capital Development Sdn Bhd (2016), involving the inter-company transfer of employees, the court held that an employer has no power to transfer an employee to another company when there is no essential unity of group enterprise between the two companies on the basis that, inter alia, “…the Claimant (the employee) had in evidence proved her contention that the proposed transfer was to a different company, to do a totally different scope of work, in a totally different industry...”

In any event, a transfer of employees which is actuated with improper motive will attract the jurisdiction of the court. Business owners are therefore advised to exercise their power to restructure their workforce during the COVID-19 pandemic within the limits of the following restrictions, ensuring that:

  • there is nothing to the contrary in the terms of employment; 
  • the management has acted bona fide and in the interests of its business; 
  • the management is not actuated by any indirect motive or any kind of mala fide; 
  • the transfer is not made for the purposes of harassing and victimising the workers; and 
  • the transfer does not involve a change in the conditions of service or employment.

Employer’s right to retrench employees

As a last resort, employers seeking to reduce operational costs may have to retrench employees whose role has become redundant due to the changes brought about by the pandemic. In the process of a retrenchment exercise, to avoid facing any unwarranted legal action, employers must take note of several key steps and considerations, as outlined below:

  • at least one month prior to the retrenchment, the employer must submit an employment notification retrenchment form (Form PK1/98) to the nearest Department of Labour;
  • an employer may not terminate the service of a local employee unless it has first terminated the services of all foreign employees employed by it in a capacity similar to that of the local employee; 
  • for employees falling within the purview of the EA 1955, employers are required to issue a written notice to the employee prior to the retrenchment and must provide termination benefits; for employees who do not fall within the purview of the EA 1955, the provisions relating to termination notice and termination benefits as stated in the employee’s employment contract must be complied with;
  • in effecting retrenchment, the employer should abide by the principle of “last-in-first-out”, unless there are valid reasons for a different approach; and
  • employers should, to the best of their ability, observe and follow the guidelines in the Code of Conduct for Industrial Harmony (“Code of Conduct”), as although the Code of Conduct is not legally binding, the Industrial Court often takes into consideration the guidelines in the Code of Conduct when adjudicating a matter and will most likely find a retrenchment to be genuine and done in good faith if the recommendations in the Code of Conduct were followed.

It is crucial for companies to carefully consider the above-mentioned points when they embark on an organisational  restructuring during the COVID-19 crisis, as failure to do so may amount to an offence under the EA 1955 or may lead to a claim of unfair dismissal. 

Conclusion

The COVID-19 pandemic has affected and will continue to affect the business landscape in Malaysia, especially during the period of enforcement of the MCO.

The government of Malaysia, in acknowledging the escalating adverse economic effects of the COVID-19 pandemic, has launched various stimulus packages such as the PERMAI, PENJANA and PEMERKASA packages, to provide financial support to employers and employees, to help hard-hit industries to stay afloat, and to boost economic growth. For example, under the Wage Subsidy Programme, companies in the tourism and retail sectors will be provided by the government with a subsidy for each of their employees who meets the prescribed salary rate for a certain period of time.

In addition to applying for such stimulus packages and reliefs, business owners should also seek professional advice to formulate business continuity plans for their businesses in the current economic climate; to address adverse legal, socioeconomic and financial implications; and to survive and even thrive in the market as they face the onslaught of challenges brought by the pandemic. 

Rosli Dahlan Saravana Partnership

Level 16 Menara 1 Dutamas
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No 1 Jalan Dutamas 1
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Kuala Lumpur
Malaysia

+603 6209 5400

+603 6209 5498

enquiry@rdslawpartners.com https://rdslawpartners.com/
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Wong & Partners, member firm of Baker McKenzie International, is an award-winning full-service law firm. With 22 partners and over 40 associates, it is well equipped to assist across a comprehensive range of legal services, including on M&A, competition law, dispute resolution, equity and debt capital markets, employment law, joint ventures, tax and real estate law. The firm regularly acts for clients looking to conduct complex inbound and outbound investments, as well as foreign direct investments into the country. The firm's clients include some of the most respected multinational and domestic corporations across various highly regulated industries, including financial services, consumer goods, industrial manufacturing, technology, media and telecommunications.

Trends and Development

Authors



Rosli Dahlan Saravana Partnership (RDS) is a full-service commercial law firm set up by five founding partners: Datuk DP Naban, Rosli Dahlan, Bee Hong Ooi, S Saravana Kumar and Eu Jin Ong on 20 February 2020. Retired Court of Appeal Judge Dato’ Seri Hishammudin Yunus is a consultant with RDS. On 1 January 2021, RDS expanded and set up a branch office in Penang, Malaysia, headed by two partners, Chia Loong Thye and Tan Gek Im. RDS has a diversified client base, comprising high net worth business owners, government-linked companies, financial institutions, service providers, public listed companies and leading multinationals from the Asia Pacific region, the Americas, Europe and the Middle East. RDS is also emplaced as the panel solicitors of various financial institutions and leading housing developers. Dedicated to professional excellence, personal high-quality service and an efficient solution-orientated approach, the firm has more than 50 fee earners, including pupils-in-chamber and paralegals.

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