Due to the risk to public health posed by COVID-19 coronavirus and the resulting restrictions put in place on public gatherings to help prevent its spread, some co-operatives may find it difficult to comply with some of the Co-operatives Act 2009 (the Act) provisions.
The Registrar of Co-operatives has provided this information as guidance for co-operatives. However, co-operatives are advised to consult their rules and ensure that members are kept informed of any changes that impact them.
Meetings and resolutions
Holding Annual General Meetings (s190)
All co-operatives are required to hold an Annual General Meeting within 5 (five) months after the end of their financial year. For co-operatives that have an AGM due soon, which may be impacted by restrictions in place on gatherings, the following options might be considered:
- Hold the meeting using technology. The manner of conducting the AGM is set out in each co-operative’s rules (also referred to as a constitution). Although some rules require meetings to be held in person, others may permit meetings to be conducted using instantaneous communication (e.g. teleconference or video conference). Where technology can be used, co-operatives may wish to consider holding the AGM electronically.
- Adapt how the meeting is conducted. Consider holding the meeting if you can safely do so while following the current restrictions on the gathering sizes. If the rules permit it, utilising postal ballot or proxy voting might help to minimise the number of people required to be in attendance.
- Delay or postpone the meeting. If the co-operative finds it necessary to delay or postpone its AGM more than five months after its end of financial year, it may seek the Registrar of Co-operatives’ approval to extend the period. To apply, complete the Form 12 - Application for extension or abridgment of time form and email it to firstname.lastname@example.org.
Meetings of the board of directors (s201 & s202)
The Act allows directors to take part in meetings by telephone, video link, or another form of communication that allows reasonably contemporaneous and continuous communication between those taking part.
The Board’s business transactions can also be facilitated by circulation of papers without need for the directors to be physically present together. Circulation of the papers can occur using mail, facsimile, email, or other method of transmission.
Written resolutions can be approved in writing by a majority of the directors.
Resolutions by circulated document in place of a resolution at a general meeting (s184)
Where a decision requires a resolution to be passed at a general meeting, such as appointing an officer or auditor, if a co-operative has fewer than 50 members it may vote on the matter through circulation of the proposal document.
To be passed, the circulated document must state that the members are in favor of the resolution and be signed by every member.
Insolvency relief (s316 and s337)
Temporary changes have been made to the Corporations Act 2001 (Cwth) under the Federal Government’s COVID-19 response. These amendments include:
- increasing the minimum threshold for creditors issuing a statutory demand from $2,000 to $20,000;
- providing relief from normal insolvent trading provisions untill 31 December 2020; and
- directors being relieved of their duty to prevent insolvent trading with respects to debts incurred in the ordinary course of business.
The Registrar of Co-operatives has made a declaration to ensure that these changes are to apply to co-operatives registered in Western Australia.
This will afford more time for the co-operative’s directors to consider the best options for managing any debts. A co-operative’s directors still need to prudently manage their operations and should seek professional advice if unsure of what the changes mean to them.