PRIVATE EMPLOYMENT AGENCIES (AMENDMENT) ACT 2017

This Act comes into operation on a date to be appointed by the Minister by notification in the Gazette.

Amendment of section 2

in the shoulder note, by deleting the words “and exemption”;

and

by substituting for subsection (2) the following subsection:

“(2)  This Act shall not apply to the Federal

Government and State Governments.”.

PRIVATE EMPLOYMENT AGENCIES

(AMENDMENT) ACT 2017

Amendment of section 3

by substituting for the definition of “private employment agency” the following definition:

‘ “private employment agency” means a body corporate which is incorporated under the Companies

Act 2016 [Act 777] and is granted a licence under this Act to carry on recruiting activity;’;

in the definition of “prescribed”, by inserting after the word “Minister” the words “by regulations made under this Act”;

by substituting for the definition of “fee” the following definition:

‘ “fee” means the fee as specified in the First

Schedule;’;

in the definition of “advertisement”, by substituting for the words “or any document and any announcement made orally or by any means of producing or transmitting light or sound” the words “, invitation or information which has been disseminated, published or displayed in relation to recruiting activities by any means or form including oral or written communication by means of print, electronic or any other media”;

by substituting for the definition of “Director General”

the following definition:

‘ “Director General” means—

in respect of Peninsular Malaysia, the

Director General of Labour appointed under subsection 3(1) of the Employment Act 1955

[Act 265];

Private Employment Agencies (Amendment)

in respect of Sabah, the Director of Labour appointed under subsection 3(1) of the Labour

Ordinance [Sabah Cap. 67]; or

in respect of Sarawak, the Director of Labour appointed under subsection 3(1) of the Labour

Ordinance [Sarawak Cap. 76];’;

by substituting for the definition of “licence” the following definition:

‘ “licence” means a licence granted under section 9a;’;

by substituting for the definition of “employer” the following definition:

‘ “employer” means any person who engages a private employment agency to recruit an employee for himself;’;

in the definition of “Minister”, by substituting for the words

“labour and manpower” the words “human resources”;

by inserting after the definition of “private employment agency” the following definition:

‘ “recruiting” means activities which have been carried on by any person, including advertising activities, as intermediaries between an employer and a job seeker to—

offer to look for an employment, offer an employment or obtain an employment, for a job seeker; or

offer to look for an employee, offer an employee or obtain an employee, for an employer.’;

by inserting before the definition of “licence” the following definition:

‘ “labour officer” means the officer appointed under subsection 3(2) of the Employment Act 1955, subsection 3(1a) of the Labour Ordinance [Sabah Cap. 67]

or subsection 3(1a) of the Labour Ordinance

[Sarawak Cap. 76], as the case may be;’;

by deleting the definition of “worker”;

by inserting after the definition of “fee” the following definition:

‘ “job seeker” means a person who is registered with a private employment agency for the purpose of looking for an employment or is offered an employment or has accepted an offer of employment, but not including a non-citizen;’;

by deleting the definition of “mass media”; and

by inserting after the definition of “Minister”, the following definition:

‘ “money guarantee” means a guarantee in the form of cash or financial guarantee issued by a licensed bank under the Financial Services Act 2013 [Act 758]

or a licensed Islamic bank under the Islamic Financial

Services Act 2013 [Act 759] but not including a licensed international Islamic bank, which is deposited pursuant to section 14c;’.

Substitution of section 4

A labour officer shall not exercise any of the functions and powers of the Director General under this Act unless he is in possession of an authority card signed by the Director

General authorizing him to exercise such functions and powers.”.

Deletion of section 5

The application shall be accompanied by the processing fee as specified in the First Schedule.

Private Employment Agencies (Amendment)

Upon receiving an application under subsection (1), the

Director General may require the applicant to provide further particulars, information or documents as he thinks necessary.

If any particulars, information or documents required under subsection (3) are not provided by the applicant within the time determined by the Director General, the application shall be deemed to have been withdrawn without prejudice to a fresh application being made by the applicant.

If an application under subsection (1) is withdrawn at any time before the application is approved or refused, the processing fee paid under subsection (2) shall not be refunded.”.

Substitution of section 9

The Director General shall issue to the applicant a written notice of his decision whether to grant or refuse to grant a licence under subsection (1).

If the application under subsection (1) is approved, the applicant shall, within thirty days from the date of the notice under subsection (2), pay the licence fee as specified in the First Schedule and deposit the money guarantee as specified in the Second Schedule for the purposes of granting the licence.

If the applicant fails to pay the licence fee and money guarantee within thirty days as specified under subsection (3), the Director General may refuse to grant the licence without prejudice to a fresh application being made by the applicant.

Private Employment Agencies (Amendment)

11

Power to impose conditions 9b.  Subject to this Act, the Director General may impose any conditions as he thinks necessary upon granting a licence under section 9a and may amend the conditions imposed.”.

Substitution of section 10

The Director General may, after giving consideration to the application for the renewal of licence under subsection (1)—

If the Director General renews the licence, he shall notify the applicant of his decision by written notice and the applicant shall, within thirty days from the date of the notice, pay the licence fee as specified in the First Schedule and deposit the money guarantee as specified in the Second

Schedule.

The Director General shall refuse the application for the renewal of licence if—

If the renewal of licence is refused under paragraph (2)(b), the Director General shall notify the applicant of his decision by written notice.

An application under subsection (1) may be withdrawn at any time before the application is approved or refused but the fee paid under subsection (1) shall not be refunded.

The Director General may consider any application to renew the licence which is received after the specified period under subsection (1) but before the expiry of the licence.

If the Director General renews the licence under subsection (7), a processing fee as specified in the First

Schedule at double the rate shall be imposed for the purpose of the renewal.”.

Private Employment Agencies (Amendment)

13

New section 11a

has contravened or failed to comply with any of the provisions of this Act or any regulations made ​

under this Act;

has failed to comply with any conditions imposed by the Director General;

has been convicted of an offence under this Act or the director of the private employment agency has been detained under any written law in relation to anti-trafficking in persons and forced labour;

has wound up or otherwise dissolved;

has failed to comply with any written directions issued by the Director General under this Act;

has induced the granting of the licence by a false representation of fact;

has used the licence granted under this Act for an unlawful purpose; or

has ceased to carry on recruiting activities.

The Director General shall not suspend or revoke a licence unless he is satisfied that, after giving the private employment agency an opportunity to make any representation in writing as to why the licence should not be suspended or revoked within the period specified in the written notice, the licence should be suspended or revoked.

After the expiry of the period specified in the written notice and after considering the representation made under subsection (2), the Director General shall decide whether or not to suspend or revoke the licence.

The Director General shall inform a private employment agency of his decision under subsection (3) by written notice.

The private employment agency shall after receipt of the written notice on the suspension or revocation under subsection (4)—

If a licence has been suspended under subsection (3), the Director General shall require the private employment agency to remedy the contravention or to take corrective action within the period as specified by the Director General.

If the Director General is satisfied that the private employment agency has failed to remedy the contravention or take corrective action as required under subsection (6), the Director General shall revoke the licence of the private employment agency.

A private employment agency may, within twenty-one days from the date of receipt of a revocation notice from the Director General, appeal to the Minister.

If a licence—

by renumbering the existing section as subsection (1);

in the renumbered subsection (1), by substituting for the words “where the business is carried on” the words “as specified in the licence”; and

by inserting after the renumbered subsection (1) the following subsection:

“(2)  Any private employment agency which contravenes subsection (1) commits an offence and shall, on conviction, be liable to a fine not exceeding fifty thousand ringgit.”.

New sections 13a, 13b, 13c, 13d, 13e, 13f and 13g

The application under subsection (1) shall be accompanied by the processing fee for replacing the licence as specified in the First Schedule.

Any private employment agency which contravenes subsection (1) or (2) commits an offence and shall, on conviction, be liable to a fine not exceeding ten thousand ringgit.

Assignment or transfer of licence 13b.  (1)  A private employment agency shall not assign or transfer any licence granted under this Act to any person unless with the prior written approval of the Director General.

Any private employment agency which contravenes subsection (1) commits an offence and shall, on conviction, be liable to a fine not exceeding one hundred thousand ringgit or to imprisonment for a term not exceeding two years or to both.

Rent or lease of licence 13c.  (1)  A private employment agency shall not rent out or lease any licence granted under this Act to any person.

Any private employment agency which contravenes subsection (1) commits an offence and shall, on conviction, be liable to a fine not exceeding one hundred thousand ringgit or to imprisonment for a term not exceeding two years or to both.

Identification document 13d.  (1)  A private employment agency which has been granted a licence under section 9a shall apply to the Director General, in such form and manner as determined by the Director

General, for an identification document of its employees who carry out recruiting activities.

The private employment agency shall give the identification document to its employees who carry out recruiting activities.

The Director General may impose any condition for the purpose of granting an identification document to the private employment agency.

Any private employment agency which contravenes subsection (1) or (2) commits an offence and shall, on conviction, be liable to a fine not exceeding ten thousand ringgit.

Private Employment Agencies (Amendment)

Any employee of a private employment agency who fails to produce an identification document when required while carrying out any recruiting activity commits an offence and shall, on conviction, be liable to a fine not exceeding two thousand ringgit.

If an identification document is lost, destroyed or damaged, the private employment agency shall apply for a replacement of the identification document to the Director

General and the application shall be accompanied by the processing fee as specified in the First Schedule.

Any private employment agency which contravenes subsection (6) commits an offence and shall, on conviction, be liable to a fine not exceeding ten thousand ringgit.

Establishment of branch 13e.  (1)  A private employment agency which intends to establish a branch shall make an application to the Director

General for a licence to carry out recruiting activities in the branch.

The conditions as specified under section 9 shall apply for the application of licence under this section.

Every application of licence for establishment of the branch shall be made to the Director General in such form and manner as determined by the Director General and shall be accompanied by the processing fee as specified in the

First Schedule.

The Director General shall issue the applicant a written notice of his decision whether to grant or refuse to grant a licence under subsection (1).

If the application under subsection (1) is approved, the applicant shall, within thirty days from the date of the notice under subsection (4), pay the licence fee as specified in the First Schedule and deposit the money guarantee as specified in the Second Schedule.

If the applicant fails to pay the licence fee and money guarantee within thirty days as specified under subsection (5), the Director General may refuse to grant the licence without prejudice to a fresh application being made by the applicant.

Any private employment agency which contravenes subsection (1) commits an offence and shall, on conviction, be liable to a fine not exceeding two hundred thousand ringgit or to imprisonment for three years or to both.

Application for changing category of licence 13f.  (1)  A private employment agency may apply to the

Director General to change its category of licence in accordance with the categories of licences as specified in the Second

Schedule in such form and manner as determined by the

Director General and the application shall be accompanied by the processing fee as specified in the First Schedule.

The Director General may, after considering the application made under subsection (1), approve or refuse the application.

If the Director General approves such application under subsection (2), the Director General shall issue a written notice to the applicant, and within a period of thirty days from the date of a written notice, the applicant shall pay the licence fee as specified in the First Schedule and deposit the money guarantee as specified in the Second Schedule.

If the applicant fails to pay the licence fee and money guarantee within thirty days as specified under subsection (3), the Director General may refuse to grant the licence without prejudice to a fresh application being made by the applicant.

If the Director General refuses the application under subsection (2), the Director General shall notify the applicant by a written notice of his decision.

Private Employment Agencies (Amendment)

19

Notice of cessation of operation 13g.  (1)  A private employment agency which intends to cease operation at any time before the date of the expiry of the licence or does not intend to renew the licence shall, within the period of at least sixty days from the date of cessation of operation—

Any private employment agency which contravenes subsection (1) commits an offence and shall, on conviction, be liable to a fine not exceeding one hundred thousand ringgit or to imprisonment for a period not exceeding two years or to both.”.

Amendment of section 14

in subsection (1)—

by inserting after the words “any service rendered a fee” the words “on the job seeker and non-citizen employee”; and

by deleting subsection (2).

New sections 14a, 14b, 14c, 14d, 14e and 14f

The placement fee imposed under subsection (1) may be paid by an employer of the job seeker or non-citizen employee.

If the placement fee is paid in accordance with subsection (2), no placement fee shall be demanded by the private employment agency from the job seeker or non-citizen employee.

Money guarantee 14c.  Upon the grant of a licence by the Director General under section 9a, a private employment agency shall deposit a money guarantee to the Director General in accordance with the category of licence as specified in the Second Schedule.

Utilization of money guarantee by the Director General 14d.  (1)  The Director General may, upon giving prior notice to the private employment agency, utilize the money guarantee deposited under this Act for the purpose of ensuring the

Private Employment Agencies (Amendment)

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responsibilities of the private employment agency to the job seeker, non-citizen employee or the employer has been fulfilled.

If the Director General uses the money guarantee under subsection (1), the private employment agency shall issue additional deposit in the form of money guarantee so that the total sum of the money guarantee shall be maintained at all times to be of the value as specified in the Second

Schedule after receiving the notice for additional deposit from the Director General.

If the private employment agency fails to deposit the additional money guarantee within the period specified in the notice referred to in subsection (2) issued by the Director

General, the Director General may issue a notice to suspend the private employment agency’s licence.

If the private employment agency fails to deposit the additional money guarantee within the period as specified in the suspension notice, the Director General shall revoke the private employment agency’s licence.

Return of money guarantee 14e.  (1)  The Director General may return a money guarantee to a private employment agency, subject to any deduction, upon a written application from the private employment agency when—

The Director General may impose any terms and conditions on the private employment agency upon receiving the application under subsection (1) for the purpose of approval.

Upon the approval of the application under subsection (2), the money guarantee shall be returned within ninety days to the private employment agency from the date of the approval.

Notwithstanding subsection (2), the Director General may, return the money guarantee to a private employment agency as soon as possible where there is a change in the category of licence of the private employment agency.

Forfeiture of money guarantee 14f.  (1)  If a private employment agency has ceased operation or its licence has been revoked or has expired, the private employment agency shall claim its money guarantee within twelve months from the date of the cessation of operation or expiration of licence.

If the private employment agency fails to claim its money guarantee within the period specified in subsection (1), the Director General shall, by notification in the Gazette, notify the relevant private employment agency that their money guarantee will be forfeited after the expiration of three months from the date of the Gazette.

The money guarantee which is forfeited under subsection (2) shall be paid into the Federal Consolidated

Fund.”.

Deletion of sections 15, 16 and 17

in paragraph (1)(b), by substituting for the words “vacancies, qualifications thereof and terms and conditions of employment” the words “the advertisement”; and

Private Employment Agencies (Amendment)

in subsection (2), by substituting for the words “in breach of subsection (1) shall be guilty of an offence under this Act” the words “which contravenes subsection (1)

commits an offence and shall, on conviction, be liable to a fine not exceeding fifty thousand ringgit or to imprisonment not exceeding one year or to both”.

Substitution of section 19

information relating to all the records under section 19;

the director who is named in the application form who is in charge of the affairs of the private employment agency; and

any other information or a written explanation as required by the Director General, in respect of any information furnished by the private employment agency.”.

Deletion of section 20

by renumbering the existing section as subsection (1);

in the renumbered subsection (1), by deleting the words

“whose decision shall be final and shall not be questioned in any court of law”; and

by inserting after the renumbered subsection (1) the following subsections:

“(2)  The Minister may, after considering the appeal under subsection (1), confirm, reverse or vary the decision of the Director General.

For the avoidance of doubt, an appeal made under subsection (1), does not suspend the decision being appealed against.”.

Substitution of section 27

Total Fee

For establishment of private employment agency