(a) No.
(b) No.
(c) No.
(a) No.
(b) No.
(c) No.
The proposed Gig Workers Commission Law aims to establish a commission to prioritize social protection, resolution of contract disputes and career advancement of gig workers in Malaysia. At present, the scope of the proposed law and when this law will take effect in Malaysia are not clear.
With the rise in digital platform services, we are seeing an increasing global trend in case law and legislation aimed at protecting platform workers' labor rights. For more insight on these developments, along with other employment law updates, click here.
The Malaysian Budget 2025 announcement is expected to be made in October by the Malaysian prime minister. The budget announcement usually includes tax proposals and changes that are anticipated to the tax regime for the coming year, which will typically be effective from 1 January 2025. After the Budget 2025 announcement and subsequent passage of the Finance Bill 2025 in Malaysia's Parliament, there may be further developments that may impact employment tax issues.
The main employment law risk is misclassification with potential liability exposure to unfair dismissal claims, claims for minimum standards/benefits under the Malaysian Employment Act and employment-related payroll contributions.
Whether an individual is an employee or contingent worker (i.e., independent contractor) will ultimately depend on the individual circumstances of the case, with reference to factors such as the degree of control and functional integration of the individual to the business operations, and the factors set out in the Malaysian Employment Act.
In successful misclassification cases (i.e., the contingent worker is categorized as an employee), the employer ("Deemed Employer") can be exposed to unfair dismissal awards amounting to — for each worker — a maximum of 24 months' back wages, plus compensation in lieu of reinstatement, which is typically calculated at one month's salary for each year of service.
Further, a Deemed Employer that fails to effect statutory employment-related contributions and income tax deductions can be liable for fines and/or imprisonment in addition to payment of outstanding contributions (with interest/dividends/late payment charges). Such liability can extend to any director, manager, secretary or similar officer of the employer entity.
There is a deemed employer provision in the Income Tax Act that allows the Malaysian Inland Revenue Board (IRB) to deem a person to be an employer, and this can lead to liability for the Deemed Employer for failing to deduct tax from the monthly remuneration of such individual and failing to notify the IRB of the individual's commencement of employment.
The IRB also published an Employer Audit Framework in October 2021 setting out the rights and responsibilities of tax audit officers, employers and tax agents during employer tax audits. This is indicative that employment tax is an area of focus for audits.
A Deemed Employer may be liable to a fine of between MYR 200 to MYR 20,000 and/or imprisonment for a term of up to six months.
Misclassification may result in liability exposure for failing to notify the Social Security Organization (SOCSO) of the employee's commencement of employment and for failure to effect the Deemed Employer's and employee's portion of the social security contribution to the SOCSO. The Deemed Employer must deduct the employee's portion of the contribution from the latter's monthly remuneration.
If the employer is a company, the directors, managers or similar officers of such company will be jointly and severally liable for failure to effect contributions.
A Deemed Employer may be liable to a maximum fine of MYR 10,000 and/or two years' imprisonment. Further, the Deemed Employer may be liable to pay interest charges for late payment of contributions at the rates determined by the SOCSO.
Misclassification may result in liability exposure for failure to notify the Employees' Provident Fund (EPF) of the employee's commencement of employment, and for failure to effect the Deemed Employer's and employee's portion of the statutory pension contribution to the EPF. The employee's portion of the contribution must be deducted by the Deemed Employer from the employee's monthly remuneration.
If the employer is a company, the directors, managers or similar officers of such company will be jointly and severally liable.
A Deemed Employer may be liable to a maximum fine of MYR 10,000 and/or three years' imprisonment. Further, the Deemed Employer would also be liable to pay dividends on such contributions and late payment charges at the rates determined by the EPF board.
Yes, the amount of tax that a Deemed Employer fails to deduct from the employee's monthly remuneration and pay to the IRB is a debt due from the Deemed Employer to the Malaysian government and recoverable by civil proceedings. If the Deemed Employer is a company, the directors of the Deemed Employer will be jointly and severally liable for such tax/debt.