Appointment of a Company Secretary
The first company secretary of a company at the point of incorporation is proposed in the Articles of Association. The company secretary submits the incorporation documents, including his name as the company secretary on Form 49 to the SSM. The Registrar of companies will then record the name in the Companies Register within one month of receiving the form.
If the board of directors need to appoint more than one director, a simple resolution will suffice. The name is proposed, listed in the minutes and submitted on Form 49 to the Registrar of Companies. He will record the new company secretary within one month of receiving the new name(s).
When the company takes up office, he is required to be fully involved in running of the company either personally or through representation, in hours accessible by the general public.
Appointment of an External Company Secretary
A small company may not have the resources to keep a fully-fledged legal department headed by a company secretary. In this case, the company can engage corporate secretarial services to carry out the duties of a company secretary.
Roles and Duties of a Company Secretary
The company secretary has a broad responsibility in matters that touch on the company’s finances, legal and human resource matters.
Role in the Company Incorporation
The procedure for company incorporation requires that the incorporation documents be handled by a licensed company secretary.
The company secretary ensures that all documents are verified and accurate before submission to the SSM.
The company secretary prepares the Articles of Association as well as the Memorandum of Association to ensure that all statutory details are captured.
He also takes the directors through the process of declaration for avoidance of conflict of interest as well as compliance with the Companies Act on directorship.
Advisory Role on Compliance with Statutory Requirements
- The company secretary has the imperative duty to ensure that the company in Malaysia is always compliant with the legislation outlined in the Companies Act 2016 at all times. In this role he acts as the official contact point for communication, preparation and submission of Statutory Returns between the company and the Suruhanjaya Syarikat Malaysia (SSM), which is the Registrar of Companies.
- File all the company’s statutory information and fully document as required in the appropriate forms and lodged with the registrar of Companies within the required period of time.
Role in the Company Meetings
A Malaysia Certified Company Secretary has the duty of preparing for the company meetings as well attending the meetings to record Boards and Members’ Resolutions.
With regards to these meetings, the company secretary has the role and duties of:
- Attending company board meetings and advising the board on various matters touching on legal compliance and corporate governance
- Acting as a link between the shareholders and the company. In this regard, he prepares and reads important documents and puts out information during the Annual General Meeting or Extraordinary General Meetings. This information is included in notices (circular resolutions), annual reports and other publications needed by the shareholders. The company secretary communicates dates for these meetings to shareholders, as agreed by the board of directors.
- Ensuring that the annual returns are passed during the Annual General Meeting, and lodging these returns with the Malaysian company registrar, and do it in time set by the Companies Act 2016.
Role in Keeping Company Books
The company’s books are kept by the company secretary. He is expected to keep all statutory books right from company’s incorporation in Malaysia. These books include Register of Directors, Register of Members, and the Company Certificate etc.
These books must be updated, accurate and secured from tampering. The company secretary is responsible for security and accuracy of all company documents including share certificates, meeting minutes, memorandum and article of associations and other crucial documents.
Qualities of the Company Secretary
The Companies Act sets out guidelines that should be used when appointing a company secretary. It should not be forgotten that a company secretary is an officer of that company and an adviser to the board. The desirable qualities of the company secretary include:
- Be well familiarised and have an understanding of the provisions of the Memorandum and Articles of Association of the company.
- Be conversant and in compliance with of different statutory and regulatory bodies.
- Ensuring correct procedures are followed and adherence to it in accordance with the Company’s Memorandum and Articles of Association (M&A) and the Companies Act, 2016.
- Advise the board and ensuring the interests of the board and the company are always taken care of
- A person to be appointed to the position of company secretary must be at least 18 years old, the person should have a residence in Malaysia.
- The appointee must be either a member of a professional body approved by the Ministry, or a licensed secretary granted by the SSM Malaysia (Companies Commission of Malaysia, CCM) as listed above
- The person must not be bankrupt or convicted of any offence in or outside Malaysia under the Companies Act.