Room to improve?
How to get your meeting agendas
and minutes right
Better Boards Conference 5 July 2013
MELBOURNE SYDNEY BRISBANE
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Agenda
Getting agendas and minutes right:
1. Why is it so important?
2. James Hardie Case
3. Putting it into practice
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1. Why is it so important?
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1.
Why is it so important?
• Recent cases about the actions of directors send a clear
message:
1.
increasing trend of holding company directors
accountable for the actions of a company
2.
contents of agendas and minutes have
considerable weight
• Same principles apply to boards of not-for-profit
companies and to committees of associations
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1.
•
Why is it so important? (cont)
Consequences of poor agendas and minutes:
1.
reputational damage
2.
fines and penalties
3.
potential loss of endorsements from the
ATO or the ACNC.
Get your agendas and minutes right!!!
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2. James Hardie case
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2.
James Hardie Case
•
May 2012 James Hardie case highlights the
importance of getting meeting agendas and minutes
right
•
Board meeting, February 2001 - directors approved
announcement to the ASX about a corporate
restructure, announcement released, part of
restructure did not eventuate
•
ASIC considered statement in the announcement was
misleading and issued proceedings against the
directors for breaching their duty of care and diligence
under the Corporations Act
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2.
James Hardie Case (cont)
•
Court proceedings - High Court held in May 2012
that the former James Hardie directors had breached
the Corporations Act.
•
Decision essentially turned on:
•
factual finding that the directors had approved
the announcement; and
•
signed minutes of the board meeting had a
significant part to play in the Court’s decision.
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2.
James Hardie Case (cont)
Getting the AGENDA right:
•
Court said the directors had a non-delegable duty to
approve the announcement as part of its responsibility to
be involved in monitoring the company.
•
Courts yet to fully consider the boundaries of nondelegable duties in relation to the obligation to approve
certain announcements BUT
the Court indicated boards may be required to approve
announcements/press releases that relate to matters that
are of considerable importance to the company’s
future and/or matters of importance to stakeholders.
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2.
James Hardie Case (cont)
Getting the MINUTES right:
•
Minutes were signed by the chairman at the next
board meeting in April 2001 - breaching section
251A(1) of the Corporations Act because this was
more than 1 month after the meeting
•
The minutes therefore lost their special evidentiary
status, highlighting the importance and probative
value of minutes
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2.
James Hardie Case (cont)
Getting the MINUTES right (cont):
•
Court cautioned directors
to make sure they read
minutes properly before
approving them.
•
Accurate recording of
events at a meeting is
important.
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3. Putting it into practice
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3.
Putting it into practice
Getting the AGENDA right:
•
Purpose of the agenda is to set out the subject matters that
are for discussion at your board/committee meeting
•
Following on from James Hardie, it is clear that
directors/committee members should:
1. read all board/committee papers – make sure you
understand the underlying facts
2. speak up if you do not understand something
3. beware of non-delegable duties and how to mange
them
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3.
Putting it into practice (cont)
Agenda checklist:
1. Put the organisation name at the top of the document
and the fact that it is a board / committee meeting
2. List the agenda items in a table format – include item
numbers, page numbers, person responsible, action
required
3. Include:
•
welcome and attendance
•
declaration of interests
•
minutes of the last board/committee meeting
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3.
Putting it into practice (cont)
Agenda checklist (cont):
3. Include (cont)
•
matters arising from previous meeting
•
action items
•
circulating resolutions
•
CEO report
•
general business - matters that need critical and
detailed attention
•
date of next meeting
•
time the meeting concludes
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3.
Putting it into practice (cont)
Getting the MINUTES right:
1. Official record of proceedings and resolutions – primary
evidentiary source of what occurred at meeting
2. Getting it right is two-fold:
•
Protect the interests of the organisation
•
Protect the interests of individual directors/committee
members
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3.
Putting it into practice (cont)
Minutes checklist:
1. Use the past tense and active voice
2. If minutes are prepared before a meeting, prepare them at
the same as papers and include substance and amendments
after the meeting
3. Scrutinise for accuracy, address concerns before approving
4. Enter minutes into minute book within 1 month after meeting
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3.
Putting it into practice (cont)
Minutes checklist (cont):
5. Record details of discussions about:
• Attendance
• Welcome
• Declarations of interest
• Minutes of previous meeting
• Action items
• CEO, financial, committee reports
• General business
• Next meeting
• Closure
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4. Questions
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Vera Visevic
Partner
Phone: + 61 2 8298 5812
Email: vvisevic@millsoakley.com.au
www.millsoakley.com.au
Melbourne
Level 6, 530 Collins Street, Melbourne VIC 3000
P.O. Box 453, Collins Street West, Melbourne VIC 8007
DX 558 Melbourne VIC
+61 3 9670 9111 Phone
+61 3 9605 0933 Fax
Sydney
Level 12, 400 George Street, Sydney NSW 2000
P.O. Box H316, Australia Square NSW 1215
DX 13025 Syd-Market St NSW
+61 2 8289 5800 Phone
+61 2 9247 1315 Fax
Brisbane
Level 14, 145 Ann Street, Brisbane 4000
P.O. Box 12608, George Street, Brisbane QLD 4003
DX 40160 Brisbane Uptown QLD
+61 7 3228 0400 Phone
+61 7 3012 8777 Fax
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