Tuesday, 11 July 2017

Sales Tax Refund

This article was written by Jason Tan Jia Xin.

When the goods and services tax (GST) was first introduced to replace the general sales tax and service tax regimes in 2015, the overarching concern for businesses was the implementation and administrative aspect. As companies scrambled to understand the rules and procedures in order to facilitate the rollout of GST, many, if not all, would have neglected or overlooked the fact that this transition would trigger a double collection of taxes for goods still held as stock across both tax regimes.

The general sales tax was payable upon manufacturing or importation of the goods. Consequently, all stock still held by businesses in Malaysia as of the cut-off date (1 April 2015) would have been subject to sales tax. Provided that such stock was not part of the zero-rated or exempt supplies, they would also be subject to GST. This is a classic instance of double taxation.

Tuesday, 4 July 2017

Unfriending = unlawful?

Authors: Stephen Booth (Principal) and Lisa Qiu (Lawyer & Registered Migration Agent) (Coleman Greig Lawyers)

Sometimes it’s difficult to ignore a friend request from a work colleague. Once you’ve accepted, should you block or unfriend? A recent decision handed down by the Fair Work Commission may cause you to rethink your next move.

In only the second official stop bullying order handed down by the Fair Work Commission since the introduction of new anti bullying laws in 2013, the Commission has held that unfriending someone on Facebook was “belittling” and “aggressive” and constituted unreasonable behaviour that warranted a stop bullying order.

Ms Roberts, the applicant, was a real estate agent and had been working with VIEW Launceston, a real estate franchise in Tasmania, for approximately two years (strangely enough, the first official stop bullying order handed down by the Commission also concerned events which took place in a real estate agency). Mrs Bird, the alleged bully, was a Sales Administrator and the wife of Mr Bird, the Principal and Co-Director of VIEW.

Ms Roberts was able to prove unreasonable conduct on the part of Mrs Bird, including Mrs Bird:
          • Belittling Ms Roberts when she told her she wasn’t allowed to sign for parcels
          • deliberating delaying the processing of administrative tasks for Ms Roberts
          • deliberately attempting to damage the relationship between Ms Roberts and a client
          • acknowledging others in the morning and delivering photocopying and printing to them, but not to Ms Roberts.

Thursday, 29 June 2017

Similar Means, Different Goals to Achieve Same End: Customs Valuation and Transfer Pricing

This article was written by Jason Tan Jia Xin.

The enforcements of customs valuation and transfer pricing are the epitome of similar means and different goals to achieve the same end. The means of valuation and pricing are similar in the form of the valuation and pricing methodologies. However, the goals are at two ends of the spectrum: the former wants the highest appraised value of imports; the other, the lowest possible level to maximise taxable profits. Such paradoxical treatments are largely unregulated, not less due to regulators themselves being beneficiaries of the ultimate end in the form of higher revenue collection.

In recent years, Australian importers on the receiving end of such discrepancies have successfully pressured the Australian Taxation Office (ATO) and the Australian Border Force (ABF) to reform what most countries (including Malaysia) refuse to rectify: inconsistency in favour of uniformity. This article analyses the paradoxical treatments despite their similarities from a Malaysian perspective, as well as the rectifications made by the ATO.

Monday, 19 June 2017

Drug and Alcohol Abuse at the Workplace

Authors: Donovan Cheah (Partner) and Adryenne Lim (Legal Executive) (Donovan & Ho)

What are some of the issues that could arise when there is alcohol/drug use at the workplace?
Drug or alcohol abuse in the workplace may result in:
          • mistakes, accidents and injuries
          • damage to workplace equipment
          • absenteeism
          • a decrease in productivity
          • reputational damage
What are some of the relevant laws?
The Occupational Safety and Health Act 1994 (“OSHA”) requires employers to ensure, as far as practicable, the safety, health and welfare at work of all their employees. OSHA does not expressly state that employers must develop and implement policies relating to alcohol and drug related problems. However, it is arguable that the obligation to ensure employees’ safety and health is wide enough to cover such issues. This interpretation would be in line with the guideline issued by the Department of Occupational Safety and Health, Ministry of Human Resources (“Guideline”) relating to drug and alcohol problems in the workplace.
Depending on the circumstances, employers may also be vicariously liable for torts (eg: negligence) committed by impaired employees in the course of their employment, even if the impairment was caused by alcohol and/or drug use.
There are also other laws relating to the use of dangerous drugs, but they are not the subject matter of this article which relate to employers’ obligations.

Can employers impose a mandatory alcohol/drug test on employees?

Tuesday, 6 June 2017

Workplace bullying — what are my obligations?

Author: Brian Nathan (Duncan Cotterill)
Employer and employee obligations
Under the new Health and Safety at Work Act 2015 (HSW), a person conducting a business or undertaking (a PCBU) must ensure, so far as is reasonably practicable, the health and safety of workers who work for the PCBU, while at work. This includes protecting workers from harmful behaviour while at work such as bullying.
An employer’s failure to deal with issues in the workplace could lead to legal liability, including prosecution under the HSW, or more commonly, a personal grievance claim brought by affected employees.
Employees should also be aware that they can be individually liable under both health and safety legislation and human rights legislation if they have bullied others in the workplace.

What is bullying?

Monday, 29 May 2017

Cultivating Good GST Compliance Culture via CBOS 3.0

This article was written by S Saravana Kumar and Annie Thomas.

This article was first published in Tax Guardian (Vol 10/No 2/2017/Q2), the official journal of the Chartered Tax Institute of Malaysia.

When we ordinarily refer to compliance in goods and services tax (“GST”), what strikes our minds is the filing of GST returns and settling the GST due within the stipulated taxable period. It has been more than two years now since the implementation of GST in Malaysia. The compliance rate for GST filing thus far has been high, with an average rating of above 95%.[1] However, when it comes to the settlement of GST dues, the compliance rate is not as high as the GST filing rate. It has been reported that about one-third of the companies audited by the Royal Malaysian Customs Department (“RMC”) submitted incorrect returns by omitting information, understating output tax or overstating input tax.[2] This kind of non-compliance undermines the government’s revenue, distorts competition as it gives the non-compliant business an advantage in the form of cash flow and compromises equity as this may encourage further non-compliance in other aspects of GST. This article[3] aims to highlight the other aspects of compliance requirement under the GST Act 2014 and the sanctions that the RMC may impose in such circumstances.

Monday, 22 May 2017

Workplace Sexual Harassment: Are Laws Really The Savior?

Author: Sakshi Seth (Associate, PSA Legal Counsellors)


With more and more women joining workforce, ensuring an enabling working environment for women that is safe and secure has become a key concern, not only for their employers but also for the government. This is essential given the rise of sexual harassment at work incidents being reported. 

The landmark judgment of Vishakha and Ors v. State of Rajasthan1, lead to the enactment of the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 (“Act”), mandating every employer to provide a mechanism to redress grievances pertaining to workplace sexual harassment and enforce the right to gender equality of working women. The recent case, where a former employee of Uber wrote in her blog about the experiences of sexual harassment and gender bias during her year-long employment has, once again, brought the inadequacy of sexual harassment mechanism in place to the forefront.

This bulletin analyses the legal framework on workplace sexual harassment, practical issues in implementation and the recent developments therein.