Kesatuan Kebangsaan Pekerja - Pekerja Bank Malaysia v Lembaga Pertubuhan Keselamatan Sosial (WA-25-209-04/2022)

1.

DATUK SERI M SARAVANAN

SENATOR TENGKU DATUK SERI UTAMA ZAFRUL BIN TENGKU ABDUL AZIZ (DALAM KAPASITINYA SEBAGAI MENTERI KEWANGAN) ... RESPONDEN-RESPONDEN GROUNDS OF JUDGMENT Introduction

In the wake of an unprecedented national emergency, now commonly known as the Covid-19 pandemic, the Government introduced three programmes to mitigate and alleviate the challenges posed to affected employees. These programmes were facilitated through the Social Security Organisation (“SOCSO”).

The Applicant contends that SOCSO’s involvement in and facilitation of the programmes and the use of SOCSO funds was ultra vires the Employees’ Social Security Act 1969.

Leave was granted to commence judicial review proceedings on 16.6.2022. Salient facts

The Applicant is a trade union registered under the Trade Union Act 1959 with members who are contributors to the SOSCO scheme.

SOCSO is a body corporate incorporated under the section 59A of the Employees’ Social Security Act 1969 (“SOSCO Act”). The 1st Respondent is the SOCSO Board established under section 59B of the SOCSO Act. Pursuant to section 68 of the SOCSO Act, there shall be a Social Security Fund (“SOCSO Fund”) into which shall be paid moneys as stipulated in the provision, including contributions from employers and employees. At all material times, the administration of the SOSCO Fund is subject to the provisions contained in the SOCSO Act.

In the aftermath of the Covid-19 pandemic, the Federal Government implemented measures to address the impact on public health and economic disruption to lives by implementing the following programmes:

(i) The Wage Subsidy Programme or otherwise known as the Program Subsidi Upah (“PSU”). PSU was an initiative of the Federal Government which extends financial assistance by way of subsidy to employers for each employee. The initiative was to support employers whose operations have been affected by COVID-19 with continuing operations and retaining employees.

The PSU and the Penjana Kerjaya were fully funded by the Federal Government under the Covid-19 Fund established under section 4 of the Temporary Measures for Government Financing (Coronavirus Disease 2019) (Covid-19) Act 2020 (“Covid-19 Act”) [Act 830].

Section 5(1) of the Covid-19 Act provide that the moneys in the Covid-19 Fund were to be applied and appropriated for the programmes under the economic stimulus packages specified in the Schedule. The PSU and the Penjana Kerjaya fell under Item 1 in the Schedule, referred to as “Wage subsidy, job retention and workers hiring incentive and training assistance programmes.”

Although the PSU and Penjana Kerjaya were not funded by SOSCO, it however, acted as a facilitator to channel funds provided by the Federal Government to the entitled applicants.

Only the PSP was implemented using monies in the SOSCO Funds. Grounds for review

It ought to be mentioned that when the judicial review application was filed, the Applicant proceeded on the factual premise that the SOCSO Fund was used for all the three programmes. On this misconception, it then alleged that the SOCSO Fund was misappropriated for these programmes, hence the relief for an order that the monies utilised for these programmes to be returned.

Upon the grant of leave, all the Respondents filed affidavits to refute the factual allegation and adduced evidence that the PSU and Penjana Kerjaya were in fact fully funded by the Federal Government.

In view of the correction made to the evidential basis of its application, the Applicant now contends as follows:

(i) The PSU, Penjana Kerjaya and PSP fall outside the remit of the objective of SOCSO under section 40 of the SOCSO Act. The SOCSO Act was enacted for the purpose of providing social security in contingencies such as invalidity and death arising from workplace injuries and occupational diseases. At the time of its enactment, the Covid-19 pandemic was not envisaged nor contemplated as a contingency to be dealt with. Putting it another way, the involvement of SOCSO in the three programmes following the Covid-19 pandemic was ultra vires the SOCSO Act; and

It therefore seeks the following reliefs:

(i) a declaration that the use of SOCSO as an organisation to facilitate the following programmes and SOCSO Fund in the hands of the 1st Respondent administered by the 1st Respondent for the following purposes was unlawful, void and have no effect: a. Wage Subsidy Programme; b. Covid-19 Screening programme known as Program Saringan Prihatin (PSP) PERKESO; and c. A job portal known as Penjana Kerjaya

The reliefs have to be now viewed against the factual matrix that the PSU and Penjana Kerjaya were not funded with monies from the SOCSO Fund. Contention of SOCSO

SOSCO takes the following position:

(i) it is empowered to facilitate the three programmes which were measures for the improvement of the health and welfare of the insured person. The facilitation fell squarely within its powers under section 40 (1) of the SOCSO Act;

The stance of these Respondents in the main, is the same as SOCSO. They defend the implementation of the programmes and the funding for the PSP by SOCSO as falling within the ambit of sections 40, 59I and 71 of the SOCSO Act.

In addition, these Respondents question the locus of the Applicant to proceed with the substantive judicial review. The application for judicial review was filed under the mistaken belief that the PSU and Penjana Kerjaya are funded by SOCSO. The allegation of misappropriation of funds appear to be the main thrust of their application. In addition, the reliefs sought were premised on the allegation of misappropriation of funds.

As the evidential basis is now non-existent since the SOCSO Fund was not used for the PSU and Penjana Kerjaya, the Applicant has no perceivable grievance and cannot be said to be a person adversely affected. Analysis and decision

I shall first deal with the point raised by the 2nd and 3rd Respondents that notwithstanding that leave has been granted, the Applicant is not a person adversely affected as it has now abandoned the allegation of misappropriation of funds.

In my view, the abandonment of the allegation that monies from the SOCSO Fund were misappropriated only affects the reliefs sought, namely the monies expended for the PSU and Penjana Kerjaya to be returned to the SOCSO Fund. The Applicant’s case is still premised on whether the provisions of the SOCSO Act permit the facilitation of the three programmes. It contends that as its members are contributors to the SOCSO Fund, they are entitled to question the involvement of SOCSO in the three programmes. In addition, one of the programmes, namely the PSP, was funded using the SOCSO Fund. In view of the premise of its challenge, I find the Applicant has locus and is a person adversely affected. It is entitled to maintain the action for judicial review.

I shall now deal with the central issue of this case.

The respective contention of the parties brings into focus the provisions of sections 40, 59I and 71 of the SOCSO Act. The determination of the Applicant’s case turns on a proper construction to be given to these provisions.

To recapitulate, the Applicant contends that the SOCSO Act does not empower SOCSO to facilitate the three programmes; in doing so, it had acted ultra vires the SOSCO Act.

I find the contention ignores the import of section 40 which provides as follows: Organization’s power to co-operate with existing institutions or promote measures for health, welfare, etc., of insured persons

(1) The Organization may, in addition to the scheme of benefits specified in this Act, promote measures or co-operate with existing institutions for the improvement of the health, occupational safety and welfare of insured persons and for the rehabilitation and re-employment of insured persons who have been disabled or injured and may incur in respect of such measures expenditure from the funds of the Organization within such limits as may be prescribed by the Minister.

The Applicant argues that Penjana Kerjaya and the PSU are not in any way related to the welfare of insured persons. The word “welfare” in section 40(1) must ultimately relate to the contingencies envisaged in the Act, namely employment injury, occupational diseases and invalidity. Penjana Kerjaya was an incentive given to employers to hire unemployed persons and training of such persons. The same argument is made in respect of PSU which was a wage subsidy. Both have no nexus to the word “welfare” as envisaged under the Act.

My view is this. It cannot be denied that the Covid-19 pandemic brought significant adverse effects on the health and welfare of individuals. It has also disrupted economic stability. Jobs were lost, affecting household incomes. The effects of Covid-19 went beyond merely impacting health; individuals were also affected economically.

The implementation of the programmes was targeted at mitigating the negative impact of Covid-19 pandemic. The PSU and Penjana Kerjaya was to safeguard the well-being of the individual from the negative economic effects. The screening test under the PSP which SOCSO funded, catered for health of the insured.

To my mind, the words “welfare of insured persons” in section 40(1) should be construed to include not only physical health but also the mental wellbeing of the insured. It is undeniable that the pandemic particularly where it has led to a loss of income, would have an adverse impact on an individual’s mental wellbeing.

To contend that the SOCSO Act at the time it was enacted did not envisage the Covid-19 pandemic, would be straight jacketing the provisions of section 40(1). It would be unduly restricting the Act from adapting to new and unforeseen situations. The pandemic is one such situation.

Further the words, “in addition to the scheme of benefits specified in this Act” in section 40(1) suggests that SOCSO is not to be limited to the existing scheme which caters for contingencies set out in the Act. If warranted by new situations which arise, it has powers to implement measures for the welfare of insured persons.

I am therefore of view that the SOCSO Fund can be used to promote other measures apart from the scheme of benefits in the Act which can legitimately include the PSU and Penjana Kerjaya. These are programmes to promote job creation and gainful employment, which ultimately serves the objective of welfare.

With regard to the PSP, it cannot be denied that medical screening and supply of the Rapid Antigen Test Kit was implemented to promote safety at the workplace by ensuring it was free from the Covid-19 virus. To my mind to contend that it was not justified under section 40(1) is untenable.

In considering the provisions of section 40(1), I have considered the principle of interpretation housed in section 17A of the Interpretation Acts 1948 and 1967 which provides as follows:

Regard to be had to the purpose of the Act In the interpretation of a provision of an Act, a construction that would promote the purpose or object underlying the Act (whether that purpose or object is expressly stated in the Act or not) shall be preferred to a construction that would not promote that purpose or object.

The application of the above principle of construction is even more compelling given that the SOSCO Act is a social legislation. An expansive construction to the provisions must be taken.

I find much guidance on the approach to take from the Federal Court case of PJD Regency Sdn Bhd v Tribunal Tuntutan Pembeli Rumah & Anor and other appeals [2021] 2 MLJ 60 which held that in interpreting such social legislation, courts must give effect to Parliament’s protective intent. Judges are obliged to adopt a liberal, purposive construction that secures the maximum protection for the class of persons the law was designed to benefit.

Summarising the principles on the interpretation of social legislation, the Federal Court in PJD Regency explained as follows:- [36] From the above, we would summarise the principles on the interpretation of social legislation as follows:

(a) statutory interpretation usually begins with the literal rule. However, and without being too prescriptive, where the provision under construction is ambiguous, the courts will determine the meaning of the provision by resorting to other methods of construction foremost of which is the purposive rule (see the judgment of this court in All Malayan Estates Staff Union v Rajasegaran & Ors [2006] 6 MLJ 97);

(b) the literal rule is automatically displaced by the purposive rule when it concerns the interpretation of the protective language of social legislation; and

(c) for the avoidance of doubt, it is important to emphasise that even where a term or provision of a social legislation or a statutory contract enacted thereunder is literally clear or unambiguous, the court no less shoulders the obligation to ensure that the said term or provision is interpreted in a way which ensures maximum protection of the class in whose favour the social legislation was enacted.”

Therefore, to contend that the contingencies in SOCSO Act refer only to invalidity, disablement or injuries suffered during employment would be adopting a narrow construction which does not advance the objective of the Act. It is my view that SOCSO’s powers are not limited to such incidents only.

Although at the time the SOCSO Act was enacted, it appeared to address a specific category of contingencies, this does not preclude the Act from being extended to new situations as they arise provided the language is broad enough to accommodate such developments. Bearing in mind that the SOCSO Act is a social legislation, a broad and purposive approach should be taken to further the purpose of the Act. On that basis, I find section 40 to be wide enough to apply to the three programmes.

Section 59I was also the premise upon which the three programmes were implemented by SOCSO. The provision states as follows: Board to give effect to Minister’s directions

(1) In the exercise of its powers and the performance of its duties and functions under this Act, the Board shall be responsible to the Minister who may, from time to time, give directions not inconsistent with this Act, and the Board shall as soon as possible, give effect to all such directions.

In facilitating the three programmes, SOCSO acted on the instructions of the Minister of Human Resources, to whom it is responsible. This fact is not in dispute. The Minister adequately explained in his Affidavit In Reply that the three programmes was the Government’s plan of action in response to the Covid-19 pandemic.

In particular, the justification for involving SOCSO in PSU and Penjana Kencana was elaborated at length in the Affidavit filed on behalf of both the Minister of Human Resources and the Minister of Finance. The material contents are as follows:

6.3 walaupun program PSU dibiayai sepenuhnya oleh Kerajaan, pelaksanaan program PSU adalah dikendalikan oleh PERKESO dalam menyalurkan dana PSU. Ini adalah kerana:

(i) PSU adalah bantuan kewangan yang dibayar kepada majikan setiap perusahaan bagi membantu majikan yang terkesan dari segi ekonomi akibat COVID-19 supaya dapat meneruskan operasi syarikat serta mengelakkan pekerja hilang pekerjaan dan punca pendapatan. Tujuan PSU adalah selaras dengan niat hasrat Akta Keselamatan Sosial Pekerja 1969 (Akta 4), Akta Sistem Insurans Pekerjaan 2017 (Akta 800), dan/atau Akta Keselamatan Sosial Pekerjaan Sendiri 2017 (Akta 789);

4.0), sebelum 01.01.2022 (untuk PSU 5.0). Syarat-syarat ini telah jelas dimaklumkan dalam bentuk ‘Soalan Lazim’ (‘FAQ’) melalui pengumuman rasmi oleh PERKESO dari semasa ke semasa. Maka program PSU adalah selaras dengan niat hasrat Akta 4;

(v) pelaksanaan PSU oleh PERKESO tidak melibatkan sebarang kos tambahan / administratif di pihak PRKESO; dan

6.4 Program Penjana Kerjaya adalah dibiayai sepenuhnya oleh Kerajaan tanpa melibatkan / menggunakan dana Kumpulan Wang PERKESO. Sumber peruntukan bagi membiayai program Penjana Kerjaya disediakan di bawah Kumpulan Wang COVID-19 (KWC-19) yang ditubuhkan di bawah seksyen 4 Akta Langkah-Langkah Sementara bagi Pembiayaan Kerajaan (Penyakit Koronavirus 2019 (COVID- 19) 2020 (‘Akta 830’). Program Penjana adalah antara program yang secara jelas diperuntukkan di bawah seksyen 5(1) dibaca bersama Program No. 1 di bawah Jadual Akta 830 di mana jumlah RM16,800,000,000 telah mula-mula di peruntukkan pada tahun 2020. Susulan kepada pindaan pada tahun 2021, amaun ini telah dinaikkan ke RM31 billion. Pembekalan kewangan untuk program ini boleh jelas dilihat di Eksibit MOF-1 yang telah dikemukakan sebelum ini di atas. …

6.6 Tujuan program Penjana Kerjaya adalah selaras dengan niat hasrat Akta Keselamatan Sosial Pekerja 1969 (Akta 4), Akta Sistem Insurans Pekerjaan 2017 (Akta 800), dan/atau Akta Keselamatan Sosial Pekerjaan Sendiri 2017 (Akta 789). Saya turut menggunapakai pernyataan saya di perenggan (6.3) di atas sebagai alasan kenapa program Penjana Kerjaya ini dikendalikan oleh PERKESO.

To conclude on the issue whether the three programmes were permitted under the SOCSO Act, I am of the view that sections 40(1) and 59I of the SOSCO Act when read together, support the facilitation of the three programmes by SOSCO. In other words, SOCSO’s role in the three programmes was clearly contemplated by the Act.

In the circumstances, the contention of the Applicant that SOCSO’s involvement in the three programmes is ultra vires the SOCSO Act has no merit.

The final contention of the Applicant pertains to the use of the SOCSO Fund for the PSP.

The use to which the SOCSO Fund can be expended is provided for in section 71 as follows: Purposes for which the Fund may be expended

Subject to this Act and of any regulations made thereunder, the Social Security Fund shall be expended only for the following purposes, namely: …

The PSU was subject to the condition that the employer and employee must be registered with SOCSO. The employer would first have to bear the screening cost. The employer then makes a claim to SOSCO where the subsidy was capped at RM150 per employee.

The Applicant contends that whilst the Covid-19 pandemic can be arguable linked to health in paragraph (vii), it was not a contingency envisaged when the Act was enacted. Again, this argument is premised on a restrictive approach to interpretation, which ought not to be adopted for social legislation.

I am therefore of the view that the use of the SOCSO Fund to facilitate the PSP clearly fell under the ambit of section 71(vii).

There is one final point which I find necessary to deal with. SOCSO contends that the application for judicial review is frivolous as it has now been established that there is no misuse of SOCSO funds for both the PSU and Penjana Kerjaya programmes. The Applicant’s remaining complaint in respect of the PSP therefore falls within the de minimis rule, and the court ought not to concern itself with a trifle complaint. It should instead proceed to dismiss the complaint.

The Applicant’s response is that as leave had already been granted by this court, it puts paid to the argument that its application is frivolous.

The answer to the Applicant’s response is this. When leave is granted to commence judicial review proceedings, the court considers the averments of the Applicant in the affidavit in support, which is taken to be true. The threshold for the grant of leave is also low. It was only subsequent to the grant of leave that the facts on the funding of the three programmes was clarified by the Respondents through the affidavits filed in opposition. The complaint of misappropriation of funds for the PSU and Penjana Kerjaya was then found to be untrue.

In view of what is now known, and the fact that the utilisation of SOCSO Fund for the PSP can be easily justified under section 71(viii), I find merit in the SOCSO’s contention that the only remaining complaint is of a de minimis nature.

Having said that, this does not detract from my findings on the validity of the three programmes viz a viz sections 40(1) and 59I of the SOCSO Act. Conclusion

Premised on the above, I find that the Applicant has failed to discharge the burden of establishing a case for judicial review.

In the circumstances, the application for judicial review is dismissed. I order that costs of RM 10,000.00 be paid to the 1st Respondent and costs of RM 10,000.00 to be paid to the 2nd and 3rd Respondents. Dated: 23rd July 2026 -sgd-Alice Loke Yee Ching Judge High Court Kuala Lumpur Counsels for the Applicant: Dato’ Malik Imtiaz Sarwar (En. Arvin Kumar Mohan & Cik Abby Si Xinyi together with him) Tetuan NEKOO Counsels for 1st Respondent: En. Vijay Raj (Pn. G. Ratha and En. Muhammad Suhaib bin Mohamad Ibrahim together with him) Tetuan Skrine & Co. Counsel for 2nd & 3rd Respondents: Pn. Fauziah binti Daud Senior Federal Counsel Jabatan Peguam Negara