Officers of the company
Let’s start with basic information.
The Accounting and Corporate Regulatory Authority (ACRA) determines the roles and responsibilities of officers in companies incorporated in Singapore. While they have wide-ranging duties to ensure that all companies comply with the Singapore Company Law, the following description provides a description of who they are and what their roles entail.
Who are Company Officers According to the Companies Act?
In accordance with the Companies Act, specifically Division 2 of Pt V, the legislative framework governing directors and officers is clearly defined therein. When you also look at Section 4(1), the acceptable and legal definition of the term “officer” is:
- A company director;
- A company secretary;
- A manager and receiver of a company;
- An executive of a corporation; and
- A liquidator hired by a company winding up voluntarily.
However, in accordance with the Companies Act, the following persons are excluded and you cannot consider them officers: They include:
- A company receiver who does not have a managerial role;
- Any court-appointed receiver and manager;
- A court-appointed judicial manager; or
- Any court-appointed liquidator or one hired by your company creditors.
Thus, from the above explanation, you can easily tell that you can have a number of officers in your company.
Types of Officers in a Singapore Company
This chapter discusses the following 3 types of officers of a company:
- Directors;
- Secretaries; and
- Chief Executive Officers (CEOs)
It is important to identify the offices held or managed by your company officers in order to determine the level at which they execute their duties.
While the Companies Act specifies duties which are only imposed on directors, the Companies Act also contains other duties that applies to company secretaries and any other “officer” of the company.
In accordance with the Companies Act, these duties are discussed under Section 157(2), which can help your company officers to avoid abuse of office by using their position to acquire information for selfish gain at the expense of your company.
Director
A director can be described as an employee whose job description mandates him or her to manage, direct and/or supervise the day-to-day business dealings and operations in the company.
Since most Singapore corporations usually have more than one director, the “board of directors” (“Board”) is the collective term that describes them.
Section 4(1) of the Companies Act defines a company “director” as any individual who assumes the position and role of a director irrespective of the title given to them by the company.
When you appoint an individual to take up roles, directions or instructions that match that of a company director, the registrar of companies in Singapore considers him/her a substitute director.
That being said, you can divide all your company directors into the following categories:
- Executive director, including managing director;
- Non-executive director, including an independent director;
- Chairman of the Board;
- Nominee director;
- Alternate director;
- De facto director; and
- Shadow director.
However, your company may also use the word “director” to describe a particular office and not necessarily in relation to the appointment of a person as a director who is an officer of the company.
For example, if your company has an individual who is referred to as a “sales director”, he/she may just be an employee whose responsibility is to oversee your sales operations. Such an employee may not have been appointed as a director of your company under the procedures described below and your company may not have the intention of making such a person to be one of its directors who sits on the Board.
So how do you differential a company director from “other” directors of operations?
To determine whether an individual is a company director or merely an employee with a “director” designation, check the register of your company directors, CEO, secretaries and auditors or check with Accounting and Corporate Regulatory Authority’s (ACRA’s) database through BizFile+.
The Companies Act does not expressly define or differentiate between the categories of directors in the list above and all directors are charged with the same duties, including fiduciary duties, the duty of care and skill and other statutory duties.
It is also important to understand that even if a person who is not named as a director but who has assumed the status and function of a director is in fact deemed as a director under the law. Such person, although not formally appointed, is known as a de facto director.
Company Secretary
Every company in Singapore is required to appoint a minimum of 1 company secretary. Your company Board of Directors are expected to take up this task.
Generally, the eligibility criteria of appointing a Corporate Secretary in a Singapore company must reflect the following precepts:
- A natural person;
- A Singapore resident;
- Not the sole director of the company;
- The requisite experience, academic and professional credentials; and
- No ineligibility directive by the Registrar on the date of appointment.
ACRA emphasises that during working days and hours, your company secretary must be available at the registered office. If not, a qualified agent or clerk must shadow his/her requisite roles because a company secretary is legalized to communicate to the board directly.
If you have more than one company director, you appoint one of them to serve as a company secretary.
In addition, if both a director and secretary is required to attend to a specific matter, one individual acting in a dual capacity must get it done. For example, in the witnessing of the affixation of the common seal on a document, the person acting in dual capacity can sign only once, either in the capacity as a director or secretary.
The other key functions and duties of a company secretary include, but are not limited to:
- Prepare, maintain and update legal registers and records;
- Prepare board resolutions;
- Prepare and advise directors on the agenda for scheduled meetings;
- Prepare documents with detailed information on upcoming meetings;
- Attend meetings and record minutes;
- Certify copies of minutes;
- Oversee voting process in a proper and democratic manner;
- Prepare and distribute financial reports;
- Distribute proxy reports
- Communicate with shareholders effectively.
Thus, it can be seen that a company secretary has extensive duties and responsibilities. It is common practice that companies engage professional companies such as accounting firms and corporate secretarial companies to provide secretarial services and undertake compliance work.
Under such an arrangement, the professional firm would enter into an agreement to provide secretarial service and permit their staff to be named as the client’s secretary at a retainer fee. The company secretary is therefore an “outsourced person”.
Chief Executive Officer (CEO)
You need to note the even though most companies appoint a person to be the CEO although such an appointment is not a legal requirement.
By definition, in accordance with the Companies Act, Section 4(1), a CEO is:
- in direct service of, or acting for a corporation; and
- mainly in charge of the company’s management and its business operations partly or wholly.
As can be noted, the title accorded to an employee is not conclusive as to his/ her position in the company and the employee can be deemed to be a CEO in the situations aforementioned.
Prior to 3 January 2016, you could not give a CEO the same responsibilities as those of a managing director, even though their roles usually overlap inclusing statutory duties.
The Companies Act was amended to impose some statutory duties on CEOs from 3 January 2016 to address this overlap. Generally, a CEO is not a director under the Companies Act. A CEO is seen as an employee under contract with a company. It is up to your company’s discretion to hire a CEO and on decide the terms he/she is being appointed.
The service contract of a CEO will stipulate the scope of the CEO’s powers, the obligations that the CEO undertakes and term of appointment, inter alio. It is also common for the contract to restrict the CEO’s interest in any competing business.
Register of Directors, CEOs, Secretaries and Auditors
In the olden days, the Companies Act required a company to maintain a register of its directors, managers and secretaries at its registered office. Such register was required to be open for inspection to both shareholders and non-shareholders.
With effect from 3 January 2016, when the second phase of Companies (Amendment) Act 2014 came into force, a company no longer needs to maintain a register of its directors, managers and secretaries.
Nowadays, ACRA keeps an electronic register of your company directors, CEO, secretaries and auditors (if any). Thus, a company is only required to notify ACRA of the appointment or the change in appointment of its director, CEO, secretary or auditor within fourteen (14) days of such appointment or change in appointment.
If your company was incorporated prior to 3 January 2016, ACRAs electronic register will retain the name and particulars of your directors, secretaries or auditors unless you inform them about any changes.
With regard to CEOs, Section 173D(2) provides that, where a company was incorporated prior to 3 January 2016, the name and particulars of the manager(s) lodged with ACRA will be maintained in the register of CEOs unless you inform them about any changes.
Conclusion
If you are a company owner in Singapore and you need guidance on matters concerning the appointment of Directors, Secretaries; and Chief Executive Officers (CEOs), contact our experts at Tianlong Services today and we will offer expert guidance to ensure your company remains in compliance with Singapore law as it grows and expands. Contact us today for a free consultation.