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IRB’s Latest Guideline - Garis Panduan 2020 - 23 June 2020

Stamp duties on share transfer instruments for shares that are not listed on the KL stock exchange

Introduction

Recently, the Inland Revenue Board of Malaysia (“IRB”) revoked and replaced its previous guideline on
the stamping of share transfer instruments for shares that are not listed on the KL stock exchange
(“Garis Panduan 2019). The revised guidelines, (“Garis Panduan 2020”) was issued on 23 rd June 2020 in
IRB’s official website.
The new guidelines were ‘the result of amendments made on certain methods that were applied since
2001 (“Kaedah-Kaedah 2001”).
These amendments took into consideration, among other factors, a change in the method of
establishing the par value of a share , and centered on the Federal Court’s 2012 decision that the par
value of a share should be based on its initial date of issue and not the date of the ownership transfer.
Issued in the Malay language and we are happy to share the guidelines, “Garis Panduan 2020” for our
readers’ reference below

For detail please open link : http://lampiran2.hasil.gov.my/pdf/pdfam/GP_SAHAM_2020_23062020_1.pdf

CPA Group.

 

Case Law - Director’s Resignation Need Not Be Accepted By The Company - 14 June 2020

In the first case of Wong Kok Meng, the Court confirmed that a director’s resignation need not be accepted by the company and there need not be a resolution accepting such a resignation.

In the second case of Tan Kei Vin, it also dealt with the issuance of a director’s notice of resignation. That written notice took effect immediately when delivered to the company’s registered office.

I explain more on the two cases below.

The Case of Wong Kok Meng

In Wong Kok Meng v Preserver Bina Sdn Bhd [2019] 7 AMR 302, the plaintiff, Wong Kok Meng, was one of the three directors of the company, Preserver Bina.

The plaintiff tendered his resignation but the company refused to accept the resignation. Further, the company refused to lodge the Notification of Change in the Register of Directors, Managers and Secretaries under section 58 of the CA 2016

The company gave the reason that the plaintiff’s cooperation was still required to clarify matters in the audited accounts which had yet to be signed. The plaintiff’s case was that upon submitting the resignation letter, his resignation had become effective

Pursuant to section 208(2) of the CA 2016, the company’s consent was not required

The High Court agreed with the plaintiff’s arguments. First, the law does not require the consent of the company for the director to tender his resignation. All that was required of a director was to resign in accordance with section 208(2) of the CA 2016. Section 208(2) states: “a director may resign his office by giving a written notice to the company at its registered office.

Second, it was then for the company pursuant to section 57(1)(a) and (4) of the CA 2016 to lodge the necessary notice within 14 days from the director’s resignation. Section 57(4) reads: “If there is any change in the particulars of a director, manager or secretary the company shall effect the change in the register within fourteen days from the change.” Further, section 58 of the CA 2016 requires the company to notify the Registrar of Companies within 14 days from the date the change in particulars of a director or when a person ceases to be a director

Therefore, the Court granted a mandatory injunction against the company to compel the company to lodge the notice of change under section 58 of the CA 2016.

The Case of Tan Kei Vin

In the case of Tan Kei Vin & 2 Ors v Feed Me Love Sdn Bhd & 2 Ors [2019] 7 AMR 623, it was a situation of a race to resign first

The three plaintiffs were directors of the company, Feed Me Love Sdn Bhd.

At the time, there were four directors: the three plaintiffs and the second defendant in this case. The plaintiffs had tendered their resignations as directors through their written notices dated 15 March 2019 and delivered to the company’s registered address

Three days later, the three plaintiffs were informed by the company secretary that she could not lodge the Return Giving Particulars in Register of Directors, Managers & Secretaries and Changes of Particulars with the Registrar of Companies in the absence of a board resolution. This was due to the second defendant having also resigned her office as director on 18 March 2019

The plaintiffs’ case was that they had validly resigned on 15 March 2019. They wanted the records of the company and with the Companies Commission of Malaysia to reflect that. They argued that the second defendant was the sole remaining director after that date and could not effectively resign.

The second defendant resisted the court application. Some of the grounds she raised was that there was no acknowledgement of receipt of the notices of resignation and that she, as a director, had not received the notices of resignation

The Court held that there was no requirement of acknowledgement of receipt of such written notice. There is also no requirement that the notice of resignation must be served on the remaining directors, or that the resignation is subject to being accepted by the board of directors

The Court held that the three plaintiffs had validly resigned their office of director of the company on 15 March 2019. With the second defendant being the sole remaining director, the second defendant has not resigned as director on 18 March 2019.

Commentary

Two observations to note

The first is that like in the case of Tan Kei Vin, it is common to have a company secretary or a board of directors to insist that there must be a board resolution passed to accept the resignation of a director. It is also common to have a delay before the company formally updates its records and updates the Companies Commission of Malaysia records. If there is a dispute or a delay in the updating of records, the public at large would all assume that the individual is still a director.

Both these cases of Wong Kok Meng and Tan Kei Vin are useful reminders of the position in law

Under section 208 of the CA 2016, the notice of registration given to the company’s registered office would make the registration immediately effective. Company secretaries and directors should then ensure that the 14-day timeline under sections 57 and 58 of the CA 2016 are met

The second observation is the useful consequential relief and mandatory orders obtained in both decisions

In Wong Kok Meng, the Court granted an injunction to compel the company to lodge the “Notification of Change in the Register of Directors, Managers and Secretaries” under section 58 of the CA 2016. It would have been also useful to specifically specify a time frame for the company to do so.

In Tan Kei Vin, there were more extensive consequential orders

  1. A declaration that the company and/or the director lodge with the Registrar of Companies the “Return Giving Particulars in Register of Directors, Managers & Secretaries and Changes of Particulars” to reflect the plaintiffs’ resignation as directors of the company with effect from 15 March 2019 within 14 days from the date of the Court Order
  2. An order that the company and/or the director shall within 14 days from the date of the Court Order rectify the register of directors, managers and secretaries of the company to reflect the plaintiffs’ resignation as directors with effect from 15 March 2019
  3. An order that, in the event of non-compliance, the plaintiffs shall be entitled to sign and lodge with the Registrar of Companies the return for the change in particulars, or sign and lodge with the Registrar of Companies such other prescribed form to reflect the plaintiffs’ resignation as directors of the company with effect from 15 March 2019.

 

Case Law - Members’ Written Resolution - 14 Jun 2020

Case Law on Members’ Written Resolution 

The High Court in the case of Mohamed Zahid Yon bin Mohamed Fuad v Jason Jonathan Lo & Ors [2019] 3 AMR 824; [2019] Wong Chee Lin,  Judicial Commissioner gave its judgment on March 6, 2019 clarifying the interpretation of the members’ written resolution provision of the Companies Act 2016 (“the Act”). The Court held that more than half the number of shareholding of the members is required to pass the members’ written resolution. It is not more than half the number of the shareholders. Further, the case also emphasised how the Act applies even to companies which still retain Table A of articles of association under the Companies Act 1965 (“CA 1965”), simply because under this provision there is no words to indicate subject to the Constitution of the company. Therefore, the law shall prevail over inconsistencies in the memorandum and article of association. The company in question is Fat Boys Records Sdn Bhd, where Mohamed Zahid (the plaintiff) and Wong (the second defendant) are the only shareholders and directors of the company. The shareholders were Mohamed Zahid, who held 40% of the total paid up capital, while Wong held the remaining 60% of the share capital. The members’ written resolution of the company was signed by Wong was only carrying the 60% shareholding. Mohamed Zahid did not sign the members’ written resolution appointing Jason Lo as a director and challenged the validity of the appointment of Jason Lo as a director of the company by filing the originating summons and the notice of application to declare the appointment of Jason Lo as the director on 7 January 2019 as ineffective, void and invalid. Furthermore, it included an injunction to restrain Jason Lo from holding himself out as a director of the company.

The High Court dismissed the action, and examined the decision on the validity of the members’ resolution in writing. Although the Court agreed that the directors’ resolution was valid to appoint the new director because the articles of association of the company required such a resolution to be signed by all the directors, the Court made the following judgment.

(a) The Court considered the contention that the Act did not apply to the company as the memorandum and articles of association adopted the Fourth Schedule to the CA 1965. Mohamed Zahid’s argument was that the previous laws and provisions of the CA 1965 applied. This was because the rights and obligations of the parties arose under the CA 1965. Therefore, a members’ resolution in writing under s 152A of the CA 1965 that required all the members to sign the resolution should apply.

(b) The Court, however, disagreed with this argument but held that the Act applied since the members’ resolution was passed under the coming into force of the Act. Mohamed Zahid could not be said to have acquired any right, privilege, obligation or liability under s 152A of the CA 1965 which has been repealed after the coming into force of the Act. Further, s 619(3) of the Act also provides that memorandum and articles of association of an existing company incorporated under CA 1965 shall have effect as if made or adopted under the Act, unless otherwise resolved by the company.

(c) The Court next examined whether the members’ written resolution required more than half of the shareholding of the members or more than half of the number of members. This was made in reference with s 291(1) of the Act stating that an ordinary resolution of the members or a class of members of a company means a resolution passed by a simple majority of more than half of such members:

  • who are entitled to vote and do vote in person, or where proxies are allowed, by proxy at a meeting of members; or
  • who are entitled to vote on a written resolution.

In addition, s 293(1) states that every member shall have one vote in respect of each share when voting on a written resolution, and unless otherwise provided in the Constitution on a vote on a written resolution, every member shall have one vote in respect of each share or stock held by him.

The High Court further held that the words “more than half of such members” must be read to mean more than half the number of shareholding of the members and not more than half the number of the shareholders. As with the resolution in writing, Mohamed Zahid, the 40% shareholder, could not stop Wong, the 60% shareholder, from passing the members’ written resolution as the written resolution, although signed only by Wong, would be a valid ordinary resolution.

The High Court case seems to have confirmed a number of interpretations with regard to members’ written resolution as follows

(a) where the Act does not provide options between the company’s Constitution (memorandum and article of association) by specifying clearly the words “subject to the company’s Constitution” or “as specified in the Constitution”, then the provision shall prevail. Whatever set in the Constitution is considered invalid;

(b) it is the number of shares held by shareholders that should be counted to obtain the

majority;

(c) even one shareholder who holds the majority shares can signify the members’    resolution and shall validly pass the members’ resolution; and

(d) that the number of votes is derived from the number of shares held i.e. one vote for one share held and the signature of the shareholder represents that vote given in totality.

1. Incorporation

(For more information, please click on sub-paragraph / subject matter)

Why set up a Private Limited Company (Sdn Bhd) ?

 1. Financial Protection

Setting up a private limited company provides the business owner with a level of financial protection not available in a sole proprietorship. If a sole trader’s business fails, he is personally liable for its debts.

Furthermore, he risks personal bankruptcy if he can’t pay his debt.

On the other hand, setting up a limited company offers the business owner protection and security since the finances of a private limited company are entirely separate from those of its owner(s).

Its “Limited by shares” status means that the Company has shareholders, whose liability to creditors of the company would be restricted to the capital originally invested.

2. Credibility

A Private Limited Company adds important credibility to the business , and as a result,  face less difficulty raising money for expansion.

What are the requirements to incorporate?

To set up a private limited company,  you first need to register with the Companies Commission of Malaysia  ( Abbreviation in Malay is “SSM”) The Private Limited Company is required to have the suffix “Sdn. Bhd.” as part of its name.

 

1. Main Requirements

  • You need to select a suitable company name
  • A company must appoint at least one director / shareholder
  • A company with only one director / shareholder  must have a permanent  residential address in Malaysia
  • You must disclose the nature of your company’s intended business
  • The company must determine the number / percentage of shares to be held by each director (s)  & its shareholders
  • All directors need to  sign a statement of compliance

2. Director Qualifications

It would just require a minimum of 1 director (Non Malaysians is acceptable) to form a “Sdn. Bhd.”  Here are the following criteria of qualifications and requirements:-

(a)  A director must be 18 years old and above.
(b) A director must not be an un-discharged bankrupt.
(c) A director must not be convicted of an offence.
(d) In a scenario where there is only one non-Malaysian director,  he or she is required to have a permanent  residential address  in Malaysia
(e) A Director must give written consent before appointment
(f) A Director must disclose names of the next-of-kin in forms provided by SSM

3. Significant Changes (CA 2016)

  • Company may incorporate with Single Director cum Single Shareholder (Previously minimum 2 directors)
  • The maximum age criteria as a director was abolished ( previously 70 years)
  • No Constitution or “written rules” known as Memorandum of Association & Articles of Association (“M&A”) would be required as it is already imbedded into the new Act and shall be binding on the Company, its Director (s) , Shareholders,  Nevertheless the company is allowed to adopt a Constitution (Section 32) under the following conditions,

(a) The adoption shall be by way of Special Resolution

(b) The adopted constitution has no effect to the extent that it contravenes or is inconsistent with the provisions of the ACT

(c) Subject to the provisions of the ACT, the adopted constitution shall be binding on the company, its directors and its    members.

(d) The new constitution must be lodged with the Registrar within 30 days after its adoption, failing which, the Company and its officers are liable to be penalized with a heavy fine.

  • Common Seal & Share Certificates are optional

 

What are the incorporation services ?

 

1. Name Search 

The first step is to select your proposed company name and upon approval, it will be reserved for 30 days pending lodgement of the incorporation documents.

You must carefully choose a name for your private limited company which must end in the abbreviation “Sdn. Bhd.”

Example :  ABC Engineering Sdn. Bhd.
Your name can’t be similar or identical to another registered company’s name because it would  be rejected and consequently,  delay the process of incorporation.

SSM Guide For Naming A COMPANY
Take note that SSM prohibits the use of certain words (please refer to this link below for more information)

http://www.ssm.com.my/sites/default/files/guidelines/Guidelines%20For%20Naming%20a%20Company.pdf

The First Name Search is free. The next attempt costs RM50/- per search until successful.

Supporting Information for Name Search
Please send the following particulars to CPA Secretarial Services Sdn. Bhd.
(a)  3 proposed names for the new company
(b)  Nature of your Business
(c)  Photocopy of directors’ IC / Passport
(d)  Email Address

2. Documentation

Document preparation will commence upon successful application of your company’s name. This is then followed by the payment and signing of the documents by the director(s).

3. Document Submission

Document submission to the Companies Commission of Malaysia (CCM) will be done within 24 hours after signing by the director(s) . Notice of incorporation from CCM, where possible will  be relayed to the client within the same day.

2. Secretarial Services

Provision of Nominee Director(s)’ service

Companies are required to have at least one director having his/her principal or only place of residence within Malaysia. Responsibilities are quite onerous for all directors, including the nominee director.

If you do not have a  director to meet the requirement of the Malaysia Companies Act, you can engage our Nominee Director Service.

The job function and responsibilities of a nominee is as follows:
(a) The routine attendance at Board Meetings and General Meetings;
(b) The signing of Directors’ Circular Resolutions; and
(c) The signing of statutory returns in compliance with the Act and relevant statutory legislations.

Nominee Director will perform the above responsibilities according to the following provisions:-
(a) To assist the Company comply with the requirement of Section 122(1) of the Act (i.e. minimum resident director).
(b) The nominee director will not have any role other in the Company except to satisfy the statutory requirements of local resident director for your Company;
(c) Nominee Director will have little or no involvement in the day to day management of the Company;
(d) The nominee director will NOT be a signatory to the Company’s bank account nor will he/she manage the Company’s bank account         on behalf of the Company;
(e) Shareholders to sign a nominee director indemnity letter

 

Provision of a Registered Office Address

Section 46 of the Company Act 2016 makes it mandatory for a company to have a registered office in Malaysia with an address to which all communications and notices may be sent to.

Should there be any change in its registered address the, company must notify the Registrar within 14 days, failing which, the company and every officer who contravenes this regulation is deemed to commit an offence .

Therefore, it is often the practice of newly instituted private limited companies to have their registered offices fixed at the company secretary‘s office to fulfill the above requirements. ,

A point to take note of is that, the Registered Office Address should not be confused with the Business Address, the latter can be at any place in Malaysia.

3. Closing Down Services

Closing down introduction

There comes a time when the business journey has come to an end and then it becomes important for business owners to know how to close down a Company.

Getting everyone to agree to the closure at Members Meeting

You need to get a consensus from company directors and shareholders to agree, before you can start closing down a “Sdn. Bhd”.   Once you get an agreement from everyone, the way that you close the company depends on whether the company, is solvent or insolvent.

 If your company is solvent, there are two options to close your business i.e. Strike Off or Member’s Voluntary Liquidation (“MVL”)

Striking off Dormant Companies

 

You can apply to SSM to get the company struck of its name in its register because it is the cheapest way to close it. However there are other criteria that needs to be fulfilled which makes striking off not an easy process.

1. All these criteria must be met before striking off

  • The company must be dormant and not in operation
  • The company must get consent form the majority of the shareholders
  • The Company has no assets and liabilities.
  • The Company has no bank account
  • The Company has no outstanding tax or other liabilities including compound, fines with any government bodies such as EPF, SOCSO etc.
  • The company has no outstanding penalties or compound due to SSM
  • The company Is not involved in any ,legal proceedings within or outside Malaysia
  • The company does not have any charges in the Register of Charges
  • The company has not made any return of Capital to Shareholders
  • The company Is not a holding company or subsidiary of another company
  • The company Is not a Guarantor Corporation

2. Benefits of Striking-Off

  • Directors are allowed to change their mind regarding the closure of their company and be able to apply to the Court for recommencement of their business within 15 years after the name of their company has been struck of.
  • In order to ease the striking off procedure, SSM has provided guideline and practice note for striking off a company.
Members Voluntary Winding Up

The winding up of a company is known as “liquidation” and hence MVL is the liquidation of a solvent company whereby  the directors has formed an opinion that the company will be able to pay off its debts in full within a period of 12 months after the legal commencement of the winding up process.

Once liquidation has begun, it will be advertised in the main newspaper(s) to inform the public about the status of the company.

The responsibilities for winding up lies with a qualified person appointed by the company. He is called a liquidator and upon his appointment, all the powers of directors and shareholders shall cease and he will take charge to ensure that the company is properly dissolved.

Court Ordered Winding Up

 

If the company cannot pay its outstanding bills and creditors, it is classed as insolvent.

The court ordered winding up is triggered on the application of one or more parties. The process of winding up the affairs of the company is carried out by the Official Receiver currently known as the Director General of Insolvency or a liquidator.

Circumstances for Winding up

The circumstances that may lead a company to wind up include:-

  • The company cannot pay its debts to financial institutions , suppliers or any related parties
  • One or more if its directors has acted in his/her personal interest or unjustly to other directors or acted against the interest of the company and has been served a court order.
  • The court is convinced that it is equitable that a company should be dissolved
  • No business operations have been started since the day of registration (period of one year) or business operations is suspended for one year.
  • Where the Memorandum of Association and Articles of Association of the company sets an expiry date for the business.

4. Licensing & Permits

Department of Environment

If your business necessitates building a factory, it is important to know that factories must be sited at specific, allocated zone.  You need to undertake research to identify all potential locations that meets your needs as permitted by the law. Alternatively, we can provide the required information for you to decide on.

Siting a factory requires approval from the Department of Environment (DOE)

In Malaysia, manufacturing Industries have been differentiated into Light, Medium and Heavy Industries and because of this, a factory must be built on land that has specifically been earmarked as such and approved by the Department of Environment (DOE). (Refer to next chart)

Therefore any purchase of land for manufacturing purposes must be properly researched. Otherwise it could end up as a costly mistake for the investor.

FACTORY LOCATION

Identify your Industrial Zones

   Zone Location Characteristics
  Light
  • Near residential estates & build up Areas with minimum buffer zone of 30 metres
  • Non polluting
  • Minimal noise, air, gaseous emissions & effluent discharges
  Medium
  • Fair distance from residential estates and build up areas with buffer zone of 250 metres
  • Sited together and compatible with other similar type for industrial mixing
  • Produce water, noise, air & gaseous pollutants but which can be controlled
  • Usage of toxic and dangerous raw materials which can be treated on site
   Heavy
  • Far from residential and build up areas with minimum buffer zone of 500 metres
  • Located in industrial estate or designated industrial zones
  • Produce water, noise, solid wastes which can be toxic and dangerous
  • Pose high risks and hazard in terms of fire explosion, bio-exposure
Department of Occupational Safety and Health (DOSH)

THE OCCUPATIONAL SAFETY AND HEALTH ACT (OSHA) 1994 (ACT 514) makes it necessary for any new building / factory to obtain a clearance letter from the DEPARTMENT OF OCCUPATIONAL SAFETY AND HEALTH (DOSH) , a government department under the Ministry of Human Resources Malaysia, before it can commence operations. Site inspection by DOSH officers will be a prerequisite before approval is given. Moreover, the clearance letter constitutes an important supporting document, required by the Local Authority before approving the Business License

 

DOSH will ensure that employers, self-employed persons and all employees practice a good working culture and comply with existing legislation, guidelines and codes of practice through its enforcement and promotional activities. Their focus is to encourage high standards of safety and health at workplace.

The OSHA is applicable throughout Malaysia in the following industries:

  1. Manufacturing
  2. Mining and Quarrying
  3. Construction
  4. Agriculture, Forestry and Fishing
  5. Utilities
    • Electricity
    • Gas
    • Water
    • Sanitary Services
  6. Transport, Storage and Communication
  7. Wholesale and Retail Trades
  8. Hotels and Restaurants
  9. Finance, Insurance, Real Estate and Business Services
  10. Public Services and Statutory Authorities
Fire Department

A letter of clearance from the Fire Department is another important supporting document required by the Local Authority before approving your Business License.

Prior to on-site inspection by Fire Department Officers, these are the following supporting documentations required for submission to the Fire Department:

  • Certified True Copy (CTC) of Registration of Company
  • Applicant’s I/C or Passport (Photostat)
  • Photostats of H13/ Receipt of Fire Extinguishers
  • Photostat Plan of Original Building & CFO
  • Fire Certificate for Sprinkler System
Local Authority

The Local Authority, (Majlis), has the power to collect taxes (assessment tax), to create laws and rules (in the form of by-laws) and to grant licenses and permits for any tradein its area of jurisdiction, in addition to providing basic amenities, e.g. collecting and managing waste and garbage as well as planning and developing its area.

 

The Company must apply and obtain a Business And Signboard License from the Local Authority before commencing business by submitting the following documents:

  1. Cover Letter Authorizing representatives to submit all documents on behalf of the Applicant
  2. Letter Authorizing Company’s Senior Malaysian Employee to apply for the license on applicant’s behalf (if applicable)
  3. Photocopy of Applicant I/C or Passport
  4. Tenancy Agreement or Purchase Agreement
  5. Assessment for Current Year
  6. CFO of Factory
  7. Photo of Factory
  8. A4 Size drawing of Sign Board (Coloured); approved & verified by Dewan Bahasa Dan Pustaka
  9. CTC of Form 49, 24, 44, 9 or 13
  10. CTC of Memorandum and Articles of Association (M&A)
  11. Supporting Approvals Letters from Fire / Department of Environment / Department of Occupational Safety and Health
Malaysian Investment Development Authority (MIDA)

The investor who intends to build a factory must apply for a manufacturing license and then explore the possibility of getting investment incentives from as MITI (Ministry of Trade & Industry) and or its agency MIDA. (Malaysian Investment Development Authority) or SMIDEC

 

Type Remarks
Manufacturing License Must have at least 75 full-time employees or if its Shareholder’s funds exceed RM2.5 million
Manufacturing License Exception Apply for License Exemption if company does not meet the above criteria
Pioneer Status Enjoys a five year partial exemption from the payment of income tax. It pays tax on 30% of its statutory income
Investment tax allowances Alternative to getting Pioneer Status, a Company may apply for Investment Tax Allowance and be entitled to an allowance of 60% on its qualifying capital expenditure

For more detailed information, please refer to MIDA Website http://www.mida.gov.my/

Immigration

The Company will also need to apply work permits on behalf of its expatriate staff from the Immigration Department. Expatriate posts are categorized as follows:

  • KEY POSTS  :-High level managerial posts of foreign-owned private companies to safeguard their interest and investments
  • TIME POSTS [Executive] :- These are intermediate level of managerial and professional posts requiring professional qualifications, practical experience, skills  and expertise related to the respective jobs
TIME POSTS [Non Executives] :- These are posts for the performance of technical jobs that require specific technical or practical skills and experience

Employment Pass Basic Requirements

Work Permit applications (Employment Pass) must comply with the following equity conditions.

Equity Minimum Paid Up Capital
100% Local RM250,000/-
Combination of Local & Foreign RM350,000/-
100% Foreign RM500,000/-

Other conditions

  • Minimum age of applicant is 27 years old.
  • Minimum Salary declared to the Immigration Department is RM5,000/-
  • The post applied is for a minimum period of two years or more.
  • The Company must have a place of business with fixed telephone & fax line.
  • The applicant must be under the local payroll.

Timing / application procedures

The Malaysian Immigration Department vets information and documentation provided by the applicant along with corporate documentation provided by the sponsoring company in Malaysia.

There are 2 stages to the application:

  • DP10 Application

Authorization and approval of the position in Malaysia by the Malaysian Immigration Department. Processing time for citizens from certain countries (e.g. India, China etc.) may be longer as there are additional procedures to comply with Employment Pass Endorsement.

  • DP11 Application

For restricted nationalities, the applicant is required to remain outside Malaysia while the application is being processed and is only permitted to enter Malaysia on a Single Entry Visa . This is a visa with reference – upon approval of his application.

 Professional Visit Pass (“PVP”)

  • A Professional Visit Pass (PVP) can be issued to foreigners with acceptable professional qualifications or possess specialist skills for the purpose of providing services to a Malaysian company on behalf of an overseas company .
  • The PVP is a Temporary Work Permit that does not exceed 12 months. Under this scheme, the applicant must not be in Malaysia at the time of application. The foreign worker is still employed by their company in their home country.
  • PVP can be extended for another 12-month period, but only after a break of three months after the first 12-month period has expired. A new application must be made for all extensions.
  • The PVP application is made to the Malaysian Immigration Departmentby the Malaysian company that is acting as a sponsor. Foreign workers must stay in their home country until the visa has been approved. Processing takes from seven to fourteen working days.

Expatriate Posts in Manufacturing Companies

 (a) Manufacturing companies with foreign paid-up capital of US$2 million and above
      1. Automatic approval is given up to 10 expatriate posts, including five key posts
2. Expatriates can be employed up to a maximum of 10 years for executive posts, and 5 years for non-executive posts

 (b)  Manufacturing companies with foreign paid up capital of more than US$200,000 but less than US$2 million 
All employment passes are valid for the period approved for the post.
However, for key post holders, employment passes will be issued up to five-year renewable basis except in circumstances

where:

  1. The validity of the expatriate’s passport is less than 5 years.
  2. The expatriates’ employment contract is less than 5 years.
  3. The employer requires the services of the expatriate for less than 5 years

Employment of Foreign Worker

In Malaysia, foreign workers can be employed in the manufacturing, construction, plantation, agricultural, services and domestic help sector. Services sector consists of eleven sub sectors: (restaurant, cleaning services, cargo handling, launderette, caddy in golf club, barber, wholesale/retail, textile, metal/scraps/recycle activities, welfare homes and hotel/resort island.

Only nationals from the specified countries below are allowed to work in the selected sectors:

Approved Sectors        Nationals of:
 

  • Manufacturing
  • Plantation
  • Agriculture
  • Construction
  • Services sector
 

  • Indonesia
  • Cambodia
  • Nepal
  • Myanmar
  • Laos
  • Vietnam
  • Philippines (male only)
  • Pakistan
  • Sri Lanka
  • Thailand
  • Turkmenistan
  • Uzbekistan
  • Kazakhstan
 

  • Services (cooks, wholesale/retail, barber, metal/scraps/ recycle, textile)
  • Construction (fixing of high voltage cable only)
  • Agriculture
  • Plantation
 

  • India

Approval is based on the merits of each case and subjected to conditions that will be determine from time to time.

Applications to employ foreign workers will only be considered when efforts to find qualified local citizens and permanent residents have failed.

An annual levy on foreign workers is imposed as follows:

Approved Sectors Annual Levy
Manufacturing RM1,850
Construction RM1,850
Plantation RM 1,850
Agricultural RM 640
Services RM 1,850
– Welfare Home- Island Resort- Others  

RM 1,850

All applications for foreign workers should be submitted to the One Stop Centre, Ministry of Home Affairs except for applications for foreign domestic helpers which should be submitted to Malaysia’s Immigration Department.

Source:  Adapted from the MIDA website