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Meetings and documents – FED

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COVID-related changes which affected the way companies deal with meetings and documents have been made permanent.

Companies and registered management investment schemes are now permanently able to use technology to hold meetings and execute documents under the Corporations Act 2001.

The Corporations Amendment (Meeting and Documents) Act 2022 makes permanent the previous COVID-related changes in the Treasury Laws Amendment (2021 Measures No. 1) Act 2021.

Meetings

A company can choose to hold a meeting:

  • in one or more physical locations;
  • as a hybrid at one or more physical locations and using technology;
  • virtually, if expressly permitted by the company’s constitution.

Members are to be provided with a reasonable opportunity to participate in meetings s 249S. Appropriate notice and provision of sufficient technology for members to participate and vote is required.

Documents

At least once each financial year members may elect to receive documents either electronically or in paper form. A member can request not to be sent any document prescribed in the regulations. The company is required to make notices available on a website and take reasonable steps to provide the member with any requested documents.

The following documents may be provided by the company in electronic or physical form:

  • notices of meetings;
  • resolutions;
  • matters to be considered at a meeting; and
  • minute books.

Execution

Corporate documents can be signed and executed electronically, with company signatories no longer required to sign the document in the presence of a witness physically.

A copy or counterpart of the document can be signed instead of the original therefore split execution is permitted.

Where there is a sole director, but no company secretary, a document is validly executed if:

  • the sole director signs the document; or
  • the sole director witnesses the fixing of the seal.

Where the new rules are followed people dealing with companies are entitled to assume that a document is validly executed.

The permanent changes apply to documents sent and meetings held on or after 1 April 2022.

The By Lawyers Companies guide has been updated to reflect these changes in the way companies may deal with meetings and documents.

COVID measures for companies – FED

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COVID measures for companies have been further extended. These temporary measures are currently set to expire on 31 March 2022.

Company execution

The Treasury Laws Amendment (2021 Measures No. 1) Act 2021 (‘the 2021 measures’) commenced on 13 August 2021. They extend and expand on the measures previously introduced in 2020.

A company can execute a document electronically under s 127 of the Corporations Act 2001. Signatories can sign separate counterpart copies.

The method used must:

  • be appropriate in the circumstances,
  • identify the person in the electronic communication, and
  • indicate the person’s intention in respect of the contents of the document.

The measures also allow for alternatives to execution normally requiring a common seal.

Company meetings

The 2021 measures also extend and expand on the previous COVID measures for companies holding meetings. They modify the provisions of the Corporations Act 2001 and the Corporations Regulations 2001, or any equivalent provisions in a company constitution, that require or allow a meeting to be held, or that regulate giving notice of a meeting, or the conduct of a meeting. The provisions include:

  • a meeting can be held using one or more platforms such as Zoom, Skype or Microsoft Teams;
  • all persons participating electronically are taken for all purposes, including quorum requirements, to be ‘present’ at the meeting;
  • a vote taken at the meeting must be taken on a poll, and not on a show of hands, by using technology to give each person entitled to vote the opportunity to participate in the vote in real time or in advance;
  • persons attending the meeting to speak, such as asking questions, can do so using technology;
  • a proxy may be appointed using technology specified in the notice of the meeting; and
  • notice of a meeting may be given by using technologies. For example, a company could send members an email attaching a notice of a meeting and other material, or provide a link to the notice and the other material for viewing or download.

The By Lawyers Dealing with COVID-19 legal issues – Some practical information publication has been updated accordingly. This helpful summary guide to COVID measures in all states is available at the top of all By Lawyers matter plans.

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