The Temporary Measures for Reducing the Impact of Coronavirus Disease 2019 (COVID-19) (Amendment) Act 2022 (‘the Amendment Act’) which amends the Temporary Measures for Reducing the Impact of Coronavirus Disease 2019 (COVID-19) Act 2020 (‘the Principal Act’) comes into operation today, 14 January 2022 (‘the Enforcement Date’).
 
A summary of the main amendments is set out below.
 
Section 9 – Mediation
 
Section 9 of the Principal Act which provided for non-mandatory mediation of claims arising from the inability of parties to perform any contractual obligation under the categories of contracts specified in the Schedule to Part II due to measures prescribed, made or taken under the Prevention and Control of Infectious Diseases Act 1988 to control or prevent the spread of COVID-19 (‘a Relevant Action’) has been amended by the Amendment Act and non-mandatory mediation may now be conducted in respect of the inability of any party to perform any contractual obligation by reason of a Relevant Action under any contract.
 
New Part XIA – Housing Development Matters
 
A new Part XIA (sections 38A to 38F) has been inserted into the Principal Act. A summary of the new provisions is as follows:
 
Key definitions: Section 38A provides that for the purposes of Part XIA, the expression: 

Based on the definition of ‘first agreement’, it is possible that a purchaser under a sub-sale agreement may not be entitled to the reliefs provided in Part XIA which apply only to a first agreement.
 
Late Payment Charges: The new section 38B(1) prohibits a developer from imposing late payment charges against a purchaser who fails to pay any instalment under a first agreement for the period from 1 January 2021 to 31 December 2021 due to a Relevant Action. This relief will only apply in respect of a first agreement entered into before 31 May 2021.
 
Delivery of vacant possession: The new section 38C(1) allows a developer to apply to the Minister of Housing and Local Government (‘Housing Minister’) to exclude any period from 1 January 2021 to 31 December 2021 from the calculation of the time for delivery of vacant possession of a housing accommodation or completion of the common facilities in a housing development (as the case may be).
 
The Housing Minister may exclude any period from 1 January 2021 to 31 December 2021 from the calculation of time for delivery of vacant possession of a housing accommodation or completion of the common facilities (as the case may be) if he is satisfied that the developer was unable to deliver vacant possession or complete the common facilities in accordance with the agreement due to a Relevant Action (section 38C(2)). This relief is only available in respect of a first agreement entered into before 31 May 2021. Further, the Housing Minister is precluded from considering an application made after the expiry of the time period for delivery of vacant possession or completion of the common facilities (as the case may be) specified in the agreement.
 
Liquidated damages: Any period excluded by the Housing Minister under section 38C(2) will not be taken into account for the purposes of assessing the liquidated damages payable to a purchaser due to the failure of the developer to deliver vacant possession of a housing accommodation or complete the common facilities  (as the case may be) (section 38C(5)).
 
Taking vacant possession: A purchaser who is unable to take vacant possession of a housing accommodation within the time prescribed for doing so in the notice from the developer during the period from 1 June 2021 to 31 October 2021 due to a Relevant Action shall not be deemed under section 38D to have taken such vacant possession.
 
Defect liability period: Section 38E provides that the period from 1 June 2021 to 31 October 2021 shall be excluded from the calculation of: 

Saving: The modifications in sections 38B to 38E shall not affect any legal proceedings commenced, or any judgment or award obtained, to recover late payment charges payable by the purchaser or liquidated damages payable by the developer or any other sum during the period from 24 October 2020 until the Enforcement Date. Further, any late payment charges paid by the purchaser or liquidated damages paid by the developer before the Enforcement Date shall be deemed to have been validly paid under the Housing Development Act (Control and Licensing) Act 1966 and its regulations and shall not be refunded to the payer.
 
New sections 40A and 40B – Industrial Relations Matters
 
A new section 40A which is deemed to have come into operation on 1 June 2021 excludes the period from 1 June 2021 to 31 December 2021 from the calculation of the following: 

Further, a new section 40B which is deemed to have come into operation on 10 June 2020 provides that the period which an employer, workman, trade union of employers or trade union of workmen is in a place that is subject to an enhanced movement control order shall be excluded from the calculation of the relevant periods specified in section 9(3), section 9(4) and section 20(1A) of the IRA mentioned above.
 
Section 42 – Private Employment Agencies
 
Section 42 of the Principal Act is replaced by a new provision which provides that the period from 18 March 2020 until the expiry period or the extended expiry period of the operation of the Principal Act, but in any event not exceeding 31 December 2022, shall be excluded from the calculation of: 

New Parts XIIIA and XIIIB – Sabah and Sarawak Labour Matters
 
A new Part XIIIA which is deemed to have come into operation on 1 June 2021 provides for the matters under the Sabah Labour Ordinance (‘Sabah LO’).
 
A new section 42B stipulates that the period from 1 June 2021 until the expiry period or the extended expiry period of the operation of the Principal Act, but in any event not exceeding 31 December 2022, shall be excluded from the calculation of the 60-day period for making a complaint to the Director of Labour under section 7A(3) of the Sabah LO.
 
Further, a new section 42C(1) provides that the period which any employee is in a place that is subject to an enhanced movement control order shall be excluded from the calculation of the 60-day period for making a complaint to the Director of Labour under section 7A(3) of the Sabah LO.
 
A new Part XIIIB which is deemed to have come into operation on 29 May 2021 provides for the matters under the Sarawak Labour Ordinance (‘Sarawak LO’).
 
A new section 42E stipulates that the period from 29 May 2021 to 31 October 2021 shall be excluded from the calculation of the 60-day period for making a complaint to the Director of Labour under section 8A(3) of the Sarawak LO.
 
Further, a new section 42F(1) provides that the period which any employee is in a place that is subject to an enhanced movement control order shall be excluded from the calculation of the 60-day period for the making of a complaint to the Director of Labour under section 8A(3) of the Sarawak LO.
 
Section 59 – Statutory meetings
 
Section 59(1) of the Principal Act confers power on the Minister charged with the responsibility under any Act to provide for alternative arrangements for the holding and conducting of any statutory meeting under the relevant Act if he is of the opinion that it is not possible to hold and conduct such statutory meeting during the period from 18 March 2020 to 9 June 2020 due to a Relevant Action. The Amendment Act extends the last day of this period from 9 June 2020 to 31 December 2021.
 
Comments
 
Most of the amendments under the Amendment Act seek to address in a fair and equitable manner, issues that arose from the Relevant Actions taken by the Malaysian Government to control or prevent the spread of COVID-19 since 18 March 2020.  
 
It remains to be seen whether the extension of the non-mandatory mediation process provided under the Principal Act to all contracts will increase the popularity of mediation as an alternative form of dispute resolution.
 
Alert by Kok Chee Kheong (Partner) and Tan Wei Liang (Senior Associate) of the Corporate Practice of Skrine.