Colloquially known as the ‘administrative servant’ of a company, the Company Secretary carries out a very active role in advising and adhering to corporate governance. As outlined in the Companies Act 2014, there are numerous obligations and regulations that the company officers rely on the Company Secretary to look after.
The Board of Directors have the responsibility to ensure that the secretary has the requisite knowledge and experience to carry out the functions of the secretary of the company and to maintain the records as required by the Act.
However, as Section 223(1) of the Companies Act outlines, the duty to comply still falls upon the Directors of the company and they cannot solely rely on the secretary to do this.
What specific requirements must a Company Secretary meet under Companies Act 2014?
Every Irish company must appoint a Company Secretary, no matter the company type.
Section 129 of Companies Act 2014 outlines the regulations regarding the requirements of a Company Secretary and should be considered when appointing or amending company officers.
129. (1) A company shall have a secretary, who may be one of the directors.
(2) Anything required or authorised to be done by or to the secretary may, if the office is vacant or there is for any other reason no secretary capable of acting, be done by or to any assistant or deputy secretary or, if there is no assistant or deputy secretary capable of acting, by or to any officer of the company authorised generally or specially in that behalf by the directors.
(3) Subject to section 25 (5), the secretary shall be appointed by the directors of the company for such term, at such remuneration and upon such conditions as they may think fit; and any secretary so appointed may be removed by them.
(4) The directors of a company shall have a duty to ensure that the person appointed as secretary has the skills or resources necessary to discharge his or her statutory and other duties.
(5) The cases to which subsection (4) applies includes the case of an appointment of one of the directors of the company as secretary.
(6) Where a company has only one director, that person may not also hold the office of secretary of the company.
(7) In subsections (2) to (6) references to a secretary include references to joint secretaries.
So, who can be a Company Secretary?
There are a number of conditions a Company Secretary and the Company must meet, this includes;
- Section 131(1) of The Companies Act and Section 26 of Companies (Corporate Enforcement Authority) Act 2021 outlines how only a person above the age of 18 years can be appointed as either Secretary or Director.
- The Company Secretary must have the skills and resources required to carry out their duties, as outlined in Section 129(4) of the Companies Act, although no formal qualifications are required.
- The Company Secretary does not have to be a natural person as per S.130 CA2014, a Company Secretary can also be a body corporate acting in this capacity. It is common for a firm of solicitors, accountants, or consultants to be appointed in this role. If you are engaged in such practice it is important that anti-money laundering requirements are followed as it may be likely you would be defined as a ‘designated person’ under S.35 CJA.
- There is no requirement that a natural person or a body corporate, who is not an Irish resident or Irish incorporated company, be appointed as Company Secretary.
Who cannot be appointed as Company Secretary?
There are specific restrictions on some people acting as Company Secretary, such as;
- Persons under the age of 18,
- an undischarged bankrupt - Section 132 Companies Act,
- the company's own statutory auditor, or
- a disqualified or restricted person – Section 838 Companies Act
It must be noted that the Company Secretary cannot be the auditor of the same company within a period during which accounts are due to be audited by him or her.
What exactly does the Company Secretary do?
While the role of The Company Secretary is not defined in Companies Act 2014, the powers are often delegated by the Directors. The Company Secretary has many roles and responsibilities and although all quite administrative in practice, they are vital to ensuring compliance with corporate governance. Each Company Secretary will take on the task of carrying out procedures and processes to promote and upkeep good corporate governance, and the documentation of same.
The Company Secretary is there to guide the company’s Board in the effective management of the company procedures and processes, ensuring the presentation of high-quality up-to-date information in advance of meetings. Scheduling notices and agendas, ensuring timely distribution of relevant reports and documents to the Board or company shareholders, drafting minutes, and filing relevant documents with the Companies Registration office following any preceding’s at the meeting are only some of the many tasks carried out by the Company Secretary on a regular basis.
The following legal duties may include annual procedures and compliance, such as organising the AGMs and Annual Returns, Maintenance of the Company Register, filing RBO etc. The Company Secretary can add value to these procedures by highlighting and applying best practice governance requirements on behalf of the company, however, it is important the expectations of the role are clearly outlined by the Directors
Simply the role of the Company Secretary can be broken down into two pillars; an Administrative role and a Legal Role.
While not an exhaustive list, Included in the Administrative role of a Company Secretary may be;
- maintaining the company’s registers,
- arranging the company’s general,
- organising meetings of the board and its sub-committees,
- preparing the minutes,
- registration of share certificate,
- signing the annual return
- making the company’s registers, minute book and other relevant documents available for inspection by the board and the public,
- sending updated information and documents on time to the (CRO), publishing legal notices in the media, and
- keeping custody of the company seal
As required under Companies Act 2014, the Secretary must also disclose personal information in order to be registered as such, this includes Onappointment;
- details of any shares or loans they have in the company or a related company in which they have an interest.
Companies Act 2014 does not define Fiduciary Duties for a Company Secretary in the same manner it does for Company Director. Company secretaries can be penalised if a court finds that they or the company have breached (disobeyed) the Companies Act. They can be made liable for any loss resulting from their own negligence.
Are there any special requirements?
In order to be eligible to become the secretary of a Public Limited Company the person must satisfy at least one of the following three qualification conditions:
- the person, for at least 3 of the 5 years immediately preceding his or her appointment as secretary, held the office of secretary of a company; or
- the person is a member of a body recognised for such purposes by the Minister for Enterprise, Trade and Employment6; or
- the person is a person who, by virtue of his or her holding or having held any other position; or his or her being a member of any other body, appears to the directors of the PLC to be capable of discharging the duties as a company secretary
If you require assistance or advice regarding any Company Secretarial queries, please submit your details using our request form here and one of the dedicated team will be in contact with you.
The contents of this article are meant as a guide only and are not a substitute for professional advice. The authors accept no responsibility for any action taken, or refrained from, as a result of the material contained in this document. Specific advice should be obtained before acting or refraining from acting, in connection with the matters dealt with in this article.