All You Need to Know about Malaysian Company Secretary & Incorporation
Hiring a company secretary is a legal obligation in Malaysia for a business to be considered legitimate. In today’s article, we’ll be talking in depth about what a company secretary is, what they do, and how to appoint one. Whether you’re just starting to incorporate a business in Malaysia or looking for an expert whom you can consult, this article might help you shed some light on the topic.
What is a Company Secretary?
A Company Secretary is a professional whose function in a corporate setting is to provide advice on regulatory and compliance matters under the Malaysia Companies Act, 2016 and ensure that all paperwork, resolutions, statutory documents, and procedures that occur within the company are compliant with Malaysian government regulations.
A Company Secretary must be at least 18 years old and a member of any professional body prescribed by the Ministry of Domestic Trade, Cooperatives, and Consumerism. This individual must also have a residency in Malaysia.
Can a company secretary be appointed at the point of incorporation?
The appointment of a company secretary is not necessary at incorporation but a company secretary must be appointed within 30 days of the company’s date of incorporation, according to section 236 of the Companies Act 2016.
Importance of a company secretary
Under the Companies Act, 2016, every organisation must appoint a qualified company secretary. Being an advisor to the board of the company, the company secretary needs to have the required skills and knowledge to ensure legal and regulatory business protocols are implemented and that the organisation is operating in compliance with the legal guidelines and regulations. The Companies Act, 2016, for example, requires companies to submit certain documents to the registrar by specified timeframes, which is the job of company secretaries.
A more practical and cost-effective solution for business owners to ensure corporate compliance is to engage outsourcing corporate secretarial services, which will allow them to focus on the day-to-day running of the business. They will also have peace of mind because the corporate secretarial matters will be handled by a team of professionals. You should consider outsourcing if and when these issues are a priority:
- Specialist expertise
- Reliability and impartiality
- Reduced Risk of non-compliances and penalties
Who can be a Company Secretary?
According to Section 235 of Companies Act 2016, the requirement to become a Company Secretary shall be:
- A natural person
- 18 years of age and above
- A Malaysian citizen or Permanent resident in Malaysia (who resides in Malaysia by having a principal place of residence)
- A person licensed by the Companies Commission of Malaysia under Section 20G of the Companies Commission of Malaysia Act 2001 or a member of any one of the professional bodies prescribed by the Ministry of Domestic Trade, Cooperative and Consumerism
- Is not convicted of any crime or declared as bankruptcy
The professional body prescribed by the Ministry of Domestic Trade, Cooperative and Consumerism include those who have licence from:
- Malaysian Association of Company Secretaries (MACS)
- Malaysian Institute of Chartered Secretaries and Administrators (MAICSA)
- Malaysian Institute of Certified Public Accountants (MICPA)
- Malaysian Bar (BC)
- Malaysian Institute of Accountants (MIA)
- Advocates’ Association of Sarawak (AAS)
- Sabah Law Association (SLA)
How can a Company Secretary be appointed?
In accordance with Section 236 of Companies Act 2016, a Company may appoint a Company Secretary:
- The Board of Director shall appoint a secretary and determine the terms and conditions of such appointment
- The appointment of the first Company Secretary should be done within 30 days from the date of incorporation of a Company.
Engaging the correct person to assist with the formation is the simplest approach for a company to choose a Company Secretary. There will be no delay in the appointment of the First Company Secretary in this manner.
The Role of a Company Secretary in Your Business
The most common misconception about a Company Secretary’s job responsibilities is that this person is only responsible for the company’s annual compliance. A Company Secretary is also responsible for advising the Board of Directors on legal concerns and ensuring the Company complies with government regulations, which is not far from the truth.
Advises on registration and governance of a Company
Even if a person can incorporate a company on his own, it is always preferable to hire a licensed Company Secretary to start the process. This is to keep the procedure from becoming complicated.
A Company Secretary holds a crucial position within a business to ensure that you are well prepared to meet your corporate responsibilities. The Company Secretary must be able to provide expert resources to enable you to be fully compliant and have access to opportunities to grow your business. Areas of advisory for a company secretary may cover business restructuring, mergers and acquisitions, sound corporate governance, and the procedure for striking off or winding up a company.
Ensures the Company abide by the rules and regulation imposed by the Government
The Companies Act of 2016 has made it easier to run a private limited company (Sdn. Bhd.). A company must comply with not only the Companies Act 2016, but also other requirements such as the Tax Act, licences, EPF, SOCSO, and so on. To provide necessary services, the Company Secretary can suggest the client contact relevant governing authorities.
Documents meetings minutes and resolutions
A Private Limited Company (Sdn. Bhd.) is no longer required to hold an Annual General Meeting under the Companies Act 2016 (AGM). However, it is not the case for a Public Limited Company (Berhad). As a result, the Company Secretary must attend any meeting called by the Board of Directors. They will need to ensure:
- Preparation of meeting agenda is done accordingly
- Ensure meetings are properly called, constituted, and carried out in accordance with the Companies Act and/or constitution of the company
Upon conclusion of the meeting, the Company Secretary shall prepare the minutes and record all decisions and conclusions made by the Company in the said minutes.
Ensures Company details are up to date
The company information, such as directors, shareholders, shares, and the constitution, is promptly updated. A Company Secretary must notify SSM within 30 days of the date of event or a resolution being passed if any modifications occur. The Company Secretary keeps other documents such as the constitution (if any), minute books, financial accounts, meeting minutes, and resolutions at the registered office.
Records Financial Year End (FYE) of a Company
The financial year-end date is when the company’s annual financial account is closed. The Company Secretary should be notified after the board has decided on the Company FYE so that a resolution can be prepared to record the decision. Normally, this is done before the preparation and audit of the year-end financial statements.
Appointment of Auditor
Even though a Private Limited Company (Sdn. Bhd.) can choose to have its financial statements audited if they meet the following criteria:
- Dormant companies
- Zero-revenue companies
- Threshold-qualified companies
As a company grows, it is still necessary to hire an auditor. Before offering services, the auditor must be appointed and give his or her consent to act.
Verification of stakeholders’ identity and lodge declaration of beneficial ownership
Going through the Know Your Client (KYC) protocol is one of the first steps in forming a company. This stage is for the Company Secretary to verify the identity of the directors, shareholders and beneficial owners as required under the Anti-Money Laundering and Counter-Terrorism Financing requirements of Malaysia.
Following the receipt of information from stakeholders, the Company Secretary will need to obtain and keep records of declarations and identification documents of the stakeholders.
Lodge of annual compliance as per required by SSM
The Malaysian Companies Commission – Suruhanjaya Syarikat Malaysia (SSM) has mandated that each Company Secretary file two documents:
- Annual return – filed every anniversary (incorporation) date annually
- Financial statement (audited / unaudited) – filed within 6 months after FYE
These documents must be filed within the stipulated deadline. For companies that fail to comply with the Companies Act 2016’s requirements, the directors shall be committing an offence under the law and on conviction, will be liable to a fine or imprisonment. The deadlines provided must be strictly adhered to by the companies.
In conclusion, if you want experienced, cost-effective, and dependable company secretarial services, you can consider outsourcing company secretarial services. Choosing to outsource is a wise move for business owners. It allows you to entrust professionals with the company’s day-to-day operations and to promptly handle issues relating to the company’s core activities.
Thinking of setting up a company in Malaysia or looking to appoint a company secretary? Reach out to us at Ledgen Group and see how we can assist in your business journey. Ledgen has been operating for about 20 years, armed with experience in providing statutory compliance services.