In the past the role of company secretary was often held by the Chief Financial Officer (CFO) with many of the mandatory company filings and lodgements being financial in nature. However, more often it is now the Chief Legal Office (CLO) or General Counsel taking this position, to provide an even greater focus on governance practices and to be a key adviser to the board over the resulting transparency, disclosure, and accountability expectations.
Of course, each company and its expectations, requirements and needs from a company secretary will differ depending on the structure (public, private, not-for-profit, etc.), size and composition of the company and the board, and the processes for appointment and responsibilities will depend largely on the individual constitution of the company.
In this article we explore some of the key things to be aware of and to ask yourself before accepting the company secretary role within your business.
1. Board & Committee Meetings
Do you enjoy scheduling meetings, preparing agendas and pre-reads, and drafting meeting minutes? If not, you may want to reconsider becoming company secretary as these are all crucial and important functions of the company secretary. Meetings must be scheduled in line with constitutional requirements (e.g. timeframes, delivery methods and attendance methods), set in a way that allows board members to understand and discuss key issues, facilitated in a way that allows directors to meet their duties and obligations (e.g. care and diligence), and documented to show appropriate governance (e.g. fiduciary obligations).
Organisation and time management are vital skills in the company secretary role, as you will have to liaise with stakeholders to get board packs finalised, and in some companies you will take the role of preparing the board packs themselves. From experience, this often requires chasing up people within the business - it’s rare for a board paper to appear in your inbox without at least one or two requests!
Minutes are also different to just taking notes. Taking minutes doesn’t involve writing everything down - it’s not a transcript of what is being said in the meeting. Rather you need to listen to the conversation, concentrate on what has been decided and who is responsible for actioning that decision. One thing that can be useful is preparing draft minutes before the meeting, based on the agenda and the board papers. That way during the meeting all you need to do is add notes of what is discussed, and the minutes can be finalised relatively quickly and easily once the meeting is concluded.
2. Director Liaison
The company secretary plays an important role in advising directors on good governance practices, guiding the board on orientations and succession planning, reminding and flagging director independence requirements (e.g. conflicts), supporting the board to establish relevant committees (including structure and charters), highlighting industry best practice and changes (e.g. industry trends on remuneration frameworks), facilitating board evaluation processes and updating governance policies and practices. The directors need to feel comfortable approaching you, and vice versa.
3. Company Records
A fundamental responsibility of the company secretary is to keep and maintain records and registers including share certificates and minute books (e.g. agendas, minutes, and resolutions). Organisation is key here as you must be able to retrieve and disseminate these records easily if required or requested.
4. Legal Duties
Company secretaries have legal responsibilities that are similar to those of a director. You should be aware of these responsibilities to ensure that you are taking all reasonable steps to ensure compliance. There are some great training courses available that can help provide further information as to what your obligations as a company secretary are.
If your organisation doesn’t already have anything in place, you can look at getting software to help in the management of the company secretary role. This is particularly useful in more complex environments. There are platforms available that can help collate documents you’ve created and create an agenda, that board members can look at on any device where they can annotate and vote etc within the platform itself. This can then help prepare the base for the minutes and the actions are already recorded. There are also platforms that help actually create the documents themselves.
There are also several “watch-outs” if you will play the dual role of in-house lawyer and company secretary, including:
A. Conflict of Interest
While there are of course operational efficiencies of having the same person fulfil both of these functions (which can overlap), having a single person do both can increase the risk of potential conflicts of interest and this is something that you must be conscious of.
Both roles independently can be time consuming and demanding, it’s important to consider whether there is actually enough time and resources to perform both roles by the same person.
C. Legal Professional Privilege (LPP)
When holding both roles, directors and senior managers may confuse situations where you are giving legal advice as the in-house lawyer versus non-legal governance and business advice as the company secretary, triggering challenges with managing and enforcing LPP.
D. Liability Protection
Consider getting a deed of access, indemnity and insurance from your company first to protect yourself against personal liability in defending a claim for duty breaches and ensure the company has appropriate directors’ and officers’ insurance!
While many of these points are relevant whether you’re the first company secretary in the business, or whether you’re being handed this role over from someone else, if you are the first company secretary, there are other things to consider.
- Training. A training course can be useful to learn the basics if someone isn’t handing this role over to you. This sort of training is worthwhile if you’ve never undertaken the company secretary role before, even if you’re not the first company secretary in the business.
- Preparation. It can be a big administrative task to set up the company secretary role. However it is worth spending the time in the beginning to get things right. It might feel tough to begin with, however you will thank yourself down the track when you don’t have to play catch up as you’ve had things set out effectively from day one.
- Templates. Templates can be really useful and can save time and effort in the long run.
- Getting to know the directors. Meet the directors and find out a bit about them. How do they like working? How much involvement do they want? How do they like communications to come through?
- Read the Constitution. This might seem like a really simple one, but it’s vital that you know what the Constitution says and it will help guide what needs to be done, and how.
If you haven’t officially been appointed the company secretary, but you’re finding you’re taking on this role more and more, this isn't uncommon. However, make sure you’re aware of the obligations of the company secretary and that you’re not exposing yourself to unnecessary risk.
The company secretary role plays a vital role in the governance and administration of a company. It can be a challenging role, but also very rewarding. Best of luck, and enjoy!
The SLO SIG is a network designed to be a place where lawyers who are the sole in-house counsel for their organisation can gain additional support, benefit from tailored learning opportunities and have the opportunity to acquire knowledge from, and network with, other lawyers who are in a similar position. If you are interested in participating in the special interest group or contributing ideas, please contact firstname.lastname@example.org.
Secretary: Courtenay Zajicek, Chief Counsel, Nando's Australia
Courtenay is the Chief Counsel for Nando’s Australia, has worked as an in-house lawyer for over 9 years, and as a YOLO for at least 6 years in these roles. Courtenay practices predominantly in franchising, property, industrial, commercial and contract law, with a focus on contract negotiation and drafting, compliance matters and risk mitigation strategies with a key focus on providing commercial solutions to legal and risk mitigation strategies for the business.
Member: Kate Sherburn, Legal Beagle (Senior Legal Counsel), Who Gives a Crap
Kate is the Legal Beagle at Who Gives A Crap, and has been the first and sole in-house lawyer in her two most recent roles. Kate’s experience is predominately in the corporate advisory space, compliance, commercial and contract law, IP and privacy, but as a YOLO she covers everything that gets thrown her way. In her current role, she is creating the legal function from the bottom up (pun intended!).