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Companies Act 2014

The genesis of this new Act, which is the largest in the history of the State, can be traced back to the establishment of the Company Law Review Group (CLRG) in 2000. The CLRG was mandated to make recommendations on the updating, consolidation and simplification of company law in Ireland to bring it to world class standards.

This was achieved by shifting the emphasis of company law away from Public Limited Companies and on to the workhorse of Irish commercial life, the Private Company Limited By Shares. It was further achieved by a re-ordering of existing law into a more logical and user friendly format, along with the introduction of a number of common sense innovations.

The most frequent comment made is that this Act is ‘old wine in a new bottle’. Accordingly, existing company law knowledge is not entirely lost, but rather re-packaged and made easier to access.

The company types under CA 2014 are as follows;

LTD – New model private company
DAC – Designated Activity Company
PLC – Public Limited Company
CLG – Company Limited By Guarantee
PUC – Public Unlimited Company
PULC – Public Unlimited Company w/out share cap.
ULC – Private Unlimited Company
SE – Societas Europaea
External Companies
Unregistered Companies
Investment Companies
Joint Stock Companies

As such the 1,448 Sections of CA2014 has been constructed so that the legislation relating to each company type can be found in one location in the Act. Parts 1-15 relate to ‘Ltd’ companies

KEY FEATURES OF NEW MODEL PRIVATE COMPANY LIMITED BY SHARES (LTD)

This simplified company type is expected to be the corporate form which the vast majority of Irish companies will take either on incorporation or by way of conversion. The key features are as follows:
1 to 149 Shareholders (up from a maximum of 99)
May have just one Director (but must have a separate Company Secretary)
Must have a Company Secretary (may not be sole director)
Shareholder(s) only liable for unpaid portion of share capital
Name must end in ‘Limited’ or ‘Teoranta’
No main objects clause (rule of Ultra Vires is gone)
May register any person who can ‘bind’ the company, in the CRO
Must have company seal
Cannot list any securities(inc. debt securities)
May become Audit Exempt/Dormant
Can dispense with the holding of physical AGM
‘Majority’ written resolutions permitted (but with 7/21 day cooling off period)

May dispense with having a specified Authorised Share Capital

KEY FEATURES OF DESIGNATED ACTIVITY COMPANY (DAC)

Despite being a ‘new’ company type, the DAC will closely resemble a Private Company Limited by Shares as registered under the Companies Acts 1963 to 2013.

  • 1 – 149 members/shareholders
  • Can be limited by shares or by guarantee
  • It will have a two document constitution very similar to a Memorandum & Articles of Association
  • Must have TWO Directors
  • May become Audit Exempt/Dormant
  • Can dispense with holding of physical AGM ONLY where there is a sole member/shareholder
  • May list debt securities

Existing companies which are envisaged as becoming DACs would include trustee companies, Joint Venture companies, charities, companies limited by guarantee having a share capital and companies which are incorporated for a specific purpose for which the shareholders want the capacity of the company to be clearly stated. Also, companies which have heavily negotiated Articles of Association are unlikely to want to go through the process again.

CONVERSION OF EXISTING PRIVATE COMPANIES TO EITHER LTD OR DAC DURING TRANSITION PERIOD

Once the Act has been commenced on 1st June 2015 , there will be an 18 Month ‘Transition Period’ during which existing companies will have to decide on which form they wish to take i.e. either LTD or DAC.

Where Shareholders do NOT engage with this process and actively convert, there is then an obligation on the Directors to take action. They must prepare a minimal new form constitution, circulate it to the shareholders for consideration and then file in CRO with the relevant Form N1. CRO will then issue a new Certificate of Incorporation. Failure to do this will leave the Directors in default of their general obligations to keep their company compliant with company law.

VERY IMPORTANT NOTE:

Where Directors/Shareholders are not pro-active in completing the conversion process to either LTD or DAC their company will automatically ‘convert’ to the new form LTD at the end of the transition period.

However, it is strongly recommended that companies do not allow this to happen for the following reasons. Because of the deeming provisions of CA 2014 their governing instrument as filed at the CRO (their previous Memorandum & Articles of Association)will become practically unintelligible as a stand-alone document.

Apart from being poor corporate governance this may impact the subject company’s dealings with its own shareholders, with banks, potential investors, Enterprise Boards and any other third parties. Directors may be exposed where shareholders have been prejudiced by inaction. Companies wishing to become ‘single Director’ must convert to being a LTD. Accordingly, companies would be well advised to address this issue as quickly as possible. We will continue with part 2 of this article in the next issue.

Workplace Health & Safety – Who’s Responsible?

In light of the importance of workplace health and safety it is imperative that people are aware of the liability they assume by attending at a place of work.

The Safety, Health and Welfare at Work Act 2005 (“the Act”) expanded the scope of the health and safety duties imposed upon both employers and employees, as well as increasing the reach of personal liability for directors and managers for health and safety offences. The framework of the Act clearly anticipated greater scope for personal liability and this has been reflected in the prosecutions brought by the Health and Safety Authority since the coming into force of the Act.

There are a number of ways in which you can be found to be personally liable for a health and safety offence such a (1) where you are a sole trader or partnership, you will be responsible for discharging all the duties of the employer in your personal capacity; (2) where you assume a duty in your personal capacity which can capture both the employer company and an individual working within that company; and (3) where you, as an employee or director or manager or another person engage in acts in connection with work activities.

In relation to point three above it is important to note the following:

  • Employees – The Act significantly expanded the duties imposed upon employees so that all employees comply with all relevant statutory requirements and take reasonable care to ensure their own safety, and that of others who may be affected by their acts or omissions at work. The scope of this duty will be largely determined by the role and responsibilities in the particular job.
  • Managers and Directors – Prior to the enactment of the Act potential exposure already existed for managers and directors but the scope has now been expanded. A manager or director can be held liable for an offence if he/she consented to or is otherwise responsible for the neglect leading to the offence. A statutory presumption was introduced by the Act such that a manager or director whose duties include making decisions that could affect the management of the company to a significant extent, will be presumed to be responsible for the acts of the company unless the contrary is proved.
  • Duties imposed on persons in connection with work activities – The Act also ensures that individuals, who are neither an employee nor a manager or director, can also have an obligation to health and safety duties. There is a duty on all persons not to intentionally, recklessly or without reasonable cause, interfere with anything provided for securing health and safety at work.

    The implications of being convicted of a health and safety offence can include a criminal record, imprisonment, inability to work in a specific role, and an application being made for a director to be disqualification to act in that role. The Act is far reaching and imposes a responsibility for health and safety on each person at every level in an organisation.

Budget 2015

Welcome to the Noone Casey Budget 2015 summary.

Noone Casey is offering you a free financial review to assess the key financial issues you are facing as a result of Budget 2014.

Contact Anthony Casey to arrange a review of your post- Budget 2015 financial affairs.

Our Budget 2015 Newsletter is now available to download in PDF format (304kb).

Click below to watch our Budget 2015 Highlights video.

Budget 2014

Welcome to the Noone Casey Budget 2014 summary.

The Minister for Finance Michael Noonan has presented the 7th Austerity Budget. This however is the 1st Budget in recent times to be noticeably pro-business and pro-job creation.
The question is however whether the 26 measures aimed at the business sector will be enough to enable Ireland grow out of the recession.
Noone Casey is offering you a free financial review to assess the key financial issues you are facing as a result of Budget 2014.

Contact Anthony Casey to arrange a review of your post- Budget 2014 financial affairs.

Our Budget 2014 Newsletter is now available to download in PDF format (660kb).

Click below to watch our Budget 2014 Highlights video.

Budget 2013

Welcome to the Noone Casey Budget 2013 summary.

As austerity measures kick in & disposable income reduces, we are very conscious of the ongoing struggle to keep business afloat. Noone Casey is offering you a free financial review to assess the key financial issues you are facing.

Contact me to arrange this review.

Our Budget 2013 Newsletter is now available to download in PDF format (273kb).

Click below to watch our Budget 2013 Highlights video.
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