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.

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

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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