Immigration Procedures & Employment

(1) What is the main applicable legislation that regulates the employment relationship in respect of foreign nationals working in Malaysia?

The main applicable legislations includes (without limitation) the following:
(a) Employment Act 1955 (Act 265);
(b) Employees Provident Fund Act 1991(Act 452);
(c) Industrial Relations Act 1967 (Act 177);
(d) Workmen’s Compensation Act 1952 (Act 273);
(e) Immigration Act 1959/63 (Act 155);
(f) Employment (Restriction) Act 1968 (Act 353); and
(g) Employment (Restriction) (Employment Permit) Regulations 1969.

(2) What are the procedures or approval required for foreign nationals to work in Malaysia? What are the information or documents required to be filed at the Malaysian authority before foreign nationals could lawfully start work?

There are two stages in an application for Employment Permit/Pass, namely:-

(a) application for a post; and
(b) application for employment pass.

Stage 1: Application for a Post

The first stage is for a company to submit its application for expatriate posts. There are six authorized bodies or agencies appointed by the Malaysian Government to evaluate and approve the expatriate posts and they are:-

(a) Malaysian Industrial Development Authority (MIDA)

Expatriate post in the private sector in the fields of manufacturing company which is involved in expansion plans, manufacturing related services, hotel and tourism industry and research and development sector;

(b) Multimedia Development Corporation (MDeC)

Expatriate post and skilled foreign worker in information technology based companies which have been granted “Multimedia Super Corridor” (“MSC”) status;

(c) Public Service Department (PSD)

Doctors and nurses working in government hospitals or clinics, lecturers and tutors employed in Government Institutes of Higher Education (“IPTA”), contract posts in public services and recruitment process jobs offered by the Public Service Commission (“SPA”) or government related agencies;

(d) Central Bank of Malaysia (BNM)

Expatriate posts in the sectors of banking, finance and insurance;

(e) Securities Commission (SC)

Expatriate posts in securities and share market; and

(f) Expatriate Committee (EC)

Expatriate posts in private and public sectors other than those under MIDA, MDeC, PSD, BNM and SC’s jurisdiction.

For more information relating to the application, please refer to http://www.imi.gov.my/index.php/en/pegawai-dagang/application-guide-for-jkpd-committee.html

Stage 2: Application for Employment Pass

Subsequent to the approval of the expatriate posts by the approving agency, the company has to submit an application to the Immigration Department to apply for an Employment Pass for the foreign national concerned. Once the employment pass has been issued and endorsed, the expatriate can be hired and employed.

For more information relating to the application, please refer to http://www.imi.gov.my/index.php/en/pass.html?id=228

Further, based on section 60K(1) of the Employment Act 1955, an employer who employs a foreign employee has to furnish particulars of the foreign employee to the Director General of Labour within fourteen days of the employment.

Work passes

There are a few work passes as below:-

(a) Employment Pass: An employment pass is issued to the expatriate to enable him to stay and work legally in Malaysia. Before the employment pass can be issued, the employment of the foreign worker must be approved by the Expatriate Committee or the relevant regulatory agency. An employment pass is valid for a period of not exceeding two years (Section 11(2) of the Employment (Restriction) Act 1968).

(b) Temporary Employment Pass: A temporary employment pass is for unskilled or semi-skilled workers in the manufacturing, agriculture, construction and services fields.

(c) Professional Visit Pass: Issued to foreign nationals who remain employed by the company in the home country but are required by a Malaysian company to provide certain services.

(3) What are the penalties or offences committed by the employers under the Immigration Act 1959/63 if the employers employed or harboured illegal foreign workers in the premises of the employers?

Offence

?

Penalty
Employing a non-citizen who does not have valid employment permit. fine not exceeding RM5,000.00 or to imprisonment for a term not exceeding one year or both.
Employing one or more persons, other than a citizen or a holder of an Entry Permit, who is not in possession of a valid Pass fine of not less than RM10,000.00 but not more than RM50,000.00 or to imprisonment for a term not exceeding twelve months or to both for each such employee
Employing more than five employees who are not in possession of valid passes at the same time. imprisonment for a term of not less than six months but not more than five years and shall also be liable to whipping of not more than six strokes.
Permitting any illegal immigrant, including the illegal foreign worker, to enter or remain at any premises. fine of not less than RM5,000.00 and not more than RM30,000.00 or to imprisonment for a term not exceeding twelve months or to both for each illegal immigrant found at the premises;

in cases of a second or subsequent conviction, fine of not less than RM10,000.00 and not more than RM60,000.00 or to imprisonment for a term not exceeding two years or to both for each illegal immigrant found at the premises.

Harbouring any person whom he knows or has reasonable grounds for believing to have acted in contravention of the Immigration Act 1959/63. fine of not less than RM10,000.00 and not more than RM50,000.00 for each person harboured.
Harbouring more than five persons at the same time whom he knows or has reasonable grounds for believing to have acted in contravention of the Immigration Act 1959/63. imprisonment for a term of not less than six months but not more than five years and shall also be liable to whipping of not more than six strokes.
Employing any person who is not in possession of a valid Pass or harbouring any person whom he knows or has reasonable grounds for believing to have acted in contravention of the Immigration Act 1959/63. liable for the expenses of removing that person from Malaysia and for reimbursing the Government the expenses incurred in respect of the detention and maintenance of that person.

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