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C4: The Company Secretary (Qualification, A person must: (If qualified :…
C4: The Company Secretary
Traditional role
restricted to being a mere liaison agent between co & CCM
Evolving role :
1) Sec 139A in Act 1992 - No person shall act as a secretary of co unless he is a member of a professional body
2) Sec 132(2) in Act 2007 - secretary prohibited against improper use of company’s property, position, corporate opportunity or competing with the company
3) Code of CG issued by SC in 2007 - secretary as a guardian of Corporate Governance
Qualification, A person must:
1) Full age (18 years and above)
2) Principal and only place of residence in Malaysia
3)
A member of any prescribed professional bodies:
i) MAICSA
ii) MIA
iii) MICPA
iv) Malaysian Bar Council
v) Persatuan Peguambela Sarawak
vi) Persatuan Undang- Undang Sabah
vii) MACS
4)
A person licensed, not bankrupt, not criminal, resides in Msia, above 18 & min qualifications:
i) SPM/STPM, 5y work exp
ii) Holder certificate/dipl/degree (in Law/CSP/Management/Biz Admin/Acc), 3,2,1 y work exp respectively
If qualified :
Apply to CCM using Form 48B
Attend an interview with CCM – assess knowledge in relation to co law and co secretarial practice (CSP)
If successful, CCM will issue Form 48D (Company Secretary Licence) – valid for 3 years
Application for renewal using Form 48C
Position
1) Sec 139 of CA 1965 - Every co registered with CCM must appoint a co secretary
2) Sec 139(1A) of Act - Name of first secretary to be named in the AOA of the newly formed co
Disqualification
:red_cross:
1) He is undischarged bankrupt
2)
Convicted, within or outside Malaysia of:
offence in connection of promotion, formation or management of corp
offence in fraud/dishonesty punishable (imprisonment 3m or more)
offence involving dishonesty & lack of reasonable diligence in discharge of duty
insider tradind
proper acc are not kept
3) Sec 139A of Act - Ceases to be a member of the professional body
4) Sec 139B of Act - Ceases to hold a valid licence issued by CCM
if continue :
Disqualified under Sec 139C - he & director who give him permit are guilty of an offence
.
Office of Co Secretary :
Any changes (appointment or vacancy) must be notified to CCM – Form 49
Sec 139(3) - Appointed by directors
Register of directors, managers and secretaries must be updated
Sec 139(6) of Act - Form 48F (Declaration by a person before appointment as secretary) – consent to act as secretary
If appointed as secretary and director at the same time, not allowed to sign both as director and secretary
Sec 139(1B) - Based at the registered office (offence to leave the office vacant for more than one month), if any case not able – authorized officer act on behalf
Resignation & Removal
Board resolution for removal, notify CCM through filing Form 49 (1 month from effective date of removal)
Reasonable grounds for removal:
Disclosing confidential information
,bribery, fraud, gross misconduct, serious negligence in carrying out his duties
Secretary may resign and may be removed by the board at any time
Vacation of Office
Lodge Form 48E (Notice of intention to vacate the office of secretary) – on the grounds that none of the directors can be communicated at the last known address
Cease to be the secretary of the company on the expiry of one month from the date of the notice
Sec 139(1B) – Secretary cannot vacant office more than 1m. If so:
Sec 139(1E) - Secretary shall not be relieved from liability for any act or omission done before the secretary vacated the office
Core duties
Administration
- contract obligation as agreed
Board meetings
- organize board & committee meetings, formulate meetings agenda, ensure meetings are minute
General meetings
- Ensure AGM held accordance to Act & AOA, issue notice of meeting
MOA & AOA
- ensure co coplies AOA & MOA
Bursa Malaysia Listing Requirements
- ensure co comply, release info to market, make application of add share
Statutory registers
- maintain statutory register
Statutory returns
- filling info with CCM for certain changes
Shareholders and share capital
- payments of div, handling transfer & other matter affecting s/h
Governance role
The Code of CG issued by the SC outlines the expected role of the company secretary in the context of best practices of CG:
Director should point Sec & Removal is a board matter
capable of carrying the duties
support the chairman in ensuring the effective functioning of board
responsibility to advise the board of directors on the code of CG (conflict of interest between shareholders and management)
facilitate induction programme for new directors and assist in providing opportunities for CPD programme
Ensure effectiveness of board committees
Code of Ethics
.
Professional competency
Care and due diligence
Objectives of the company
Powers and restrictions
Meetings
Confidential information
Regulatory bodies
Whistle blower
Internal control
Compliance
Present in person
Conflict of interest
Reporting
Secretary for meetings
Memorandum and Articles of Association
Abuse of position
Liaison with authorities
Limit of secretaryship
Stakeholders interest
The Code of Ethics is formulated to enhance the standard of CG and to instill good corporate behaviour in order to achieve the following aims:
To instill the practice of professionalism amongst co
sec based on tenets of moral responsibility, competency
& effectiveness in administration
To uphold the spirit of responsibility and social accountability
in line with legislation, regulations and guidelines for administering a company
Liability of Sec
Liable for negligence including giving wrongful advice to the board which may have caused them to breach the laws regulations
Making representations on behalf of the company with expressed authority from the board (Failing which, the company will be bound by his acts, but the company secretary may be held personally liable by the company for any loss incurred)
Legal restriction as an officer
Sec 132(2) - prohibit sec without consent/ratification of GM, gain benefit for himself/other person:
use property of co
use info acquired by virtue his position
engage in biz (competitors)
If failed, liable for any profit , imprisoned/fined