Monday, 22 May 2017

Workplace Sexual Harassment: Are Laws Really The Savior?

Author: Sakshi Seth (Associate, PSA Legal Counsellors)

Background

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.

Thursday, 18 May 2017

Maternity Benefits in India


Authors: Rudra Srivastava and Ritika Modee (Singhania & Partners)

The Maternity Benefit Act, 1961 is social security legislation and was enacted “to regulate employment of women in certain establishments for certain period before and after child birth to provide for maternity benefit and certain other benefit”.

The Maternity Benefit (Amendment) Act, 2017 (hereafter “Act”) received the much awaited Presidential assent on 27th March, 2017 and was published in the Official Gazette of India on 28th March, 2017. The Central Government in exercise of powers conferred upon it under Section 1(2) of the Act has appointed 1st April 2017 as the date on which all the provisions of the Act shall become effective except for Section 5(5) which provides for “work from home” in certain cases which shall be effective from 1st day of July 2017. 1



Wednesday, 3 May 2017

Powers of the Customs investigator

 By Aaron Bromley, Dave Ananth

Source: https://nevadasmallbusiness.com/wp-content/
uploads/2015/06/How-to-Survive-a-Tax-Audit.jpg
The powers of the Royal Malaysian Customs Department (“RMCD”) to enforce the GST legislation are specifically provided for in Part X of the GST Act 2014 (“GSTA” or “the Act”). This article explores the enforcement powers of RMCD in investigating GST offences. It is acknowledged that Customs officers also have powers under the Customs Act 1967 and Excise Act 1976, but these are not within the purview of this article.

GST offences are complex in nature. Tax agents and legal advisors dealing with this relatively new regime in Malaysia need to fully understand the potential offences and the implications. Unlike the powers of the police, the extent to which RMCD can investigate potential offences and enforce the law is not as well-published in the local media, though we expect this will change in the near future. Sometimes, there is a perception that GST offences do not carry any period of incarceration or that Customs officers do not have adequate powers under the GSTA. Such a perception is clearly misplaced.

Pursuant to the GSTA, RMCD has a wide range of powers to enforce the law. There are offences which require mens rea and also strict liability offences. Non-payment of GST amounts and other offences can result in incarceration.  The Revenue Prosecutor in New Zealand calls it, “theft of government money”. We expect a similar approach in Malaysia.

Tuesday, 2 May 2017

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Tuesday, 18 April 2017

The Tourism Tax Bill and Airbnb

The recent passing of the Tourism Tax Bill was met with much concern from various tourism industry players and netizens. Essentially the tourism tax bill imposes a tax that is levied on tourists staying at any accommodation made available by an operator.

Hamzah Rahmat, the president of the Malaysian Association of Tour and Travel Agents (Matta) was concerned with the impact on local tourism and hoped the government could provide more details. Mr Cheah Swee Hee, the president of the Malaysian Association of Hotels (MAH), argued that the tourism tax would create an uneven playing field, driving local and foreign tourists to accomodations such as those offered through Airbnb and unlicensed hotels, which aren’t regulated by the law. And of course, netizens cried foul over the expected increase in prices.

While unlicensed hotels are effectively illegal and should be shut down anyway, Airbnb services are a different kettle of fish.

Tuesday, 11 April 2017

GST Update - Challenging the Royal Malaysian Customs on Director General of Customs' Decisions

This article is reproduced with permission, from the March 2017 Client Alert of Wong & Partners, member firm of Baker & McKenzie International.


Introduction

The Goods and Services Tax Act ("GST Act") 2014 came into force on 1 April 2015. Since its implementation almost 2 years ago, issues that surfaced in the early stages still remain with respect to the enforcement by the Royal Malaysian Customs Department ("Customs"), resulting in significant challenges for a number of taxpayers to comply with the GST requirements.

While Customs has made some effort to address some of the issues faced by taxpayers, the number of cases litigated on GST issues continues to rise.

Many of these issues pertain to differing interpretations of the GST Act, the role of guidelines ("Guidelines") and Director General's ("DG") Decisions issued by Customs, in aiding the interpretation of the law. Many aspects and details relating to the GST regime are not provided for expressly under the GST Act or subsidiary legislation, but are instead found in these various Guidelines and DG's Decisions. Are they absolute? Can they be challenged?

Wong & Partners have successfully represented clients before the GST Tribunal on this issue, and drawing from the Firm's experience, this client alert will focus on the viability of challenging the DG's Decisions.

Thursday, 30 March 2017

Are Malaysian companies being too laid back with MFRS 15?

I’ve been attending a few seminars recently in Malaysia on various current issues, such as the new Companies Act 2016, the Finance Act 2017 as well as transfer pricing developments. I was able to touch base with a few fellow delegates and we talked in general about the challenges facing their companies in this day and age. One topic that somehow kept being brought up was the implementation of MFRS 15 Revenue from Contracts with Customers.

I was rather astonished that most of their respective companies had not even started planning for it, despite the fact that we are now only nine months away. If you remember, MFRS 15 was originally slated to come into effect on 1 January 2017 before it got pushed back to 1 January 2018. Why was it pushed back? The International Accounting Standards Board acknowledged the complexity of the revenue standard and to allow more time for companies to properly implement it. Yet here we are, at the end of the first quarter of 2017, and many have still not started.