Contact Consumer Protection
Tel: 1300 30 40 54
consumer@demirs.wa.gov.au
See all Consumer Protection office locations
The Co-operatives Amendment Act 2016 (the Act), was reformed in 2017. The changes aligned co-operatives law in Western Australia with co-operatives legislation in other states and territories and allow Western Australia to participate in the Co-operatives National Law (CNL).
In preparation for the commencement of the Act an information sheet describing the main changes that will result from the commencement of the CNL in Western Australia was forwarded to all registered co-operatives. This information is outlined below.
Amendments to the Co-operatives Act 2009 (WA) will take effect on 1 January 2017 along with changes to the Co-operatives Regulations 2010, to allow co-operatives registered in Western Australia to benefit from state’s participation in the Co-operatives National Law (CNL). This guide addresses questions that co-operatives may have about WA co-operatives law after 1 January 2017.
The CNL has been developed to make it easier for co-operatives to operate in more than one state and to remove the competitive disadvantages that exist in comparison to companies operating under the Corporations Act 2001 (Cwth). For WA co-operatives to access these CNL benefits it was necessary to amend the Co-operatives Act 2009 (WA). Importantly those amendments are not expected to impact greatly on the day-to-day operations of existing co-operatives, but the potential benefits will be considerable.
Yes. There will be no need for currently registered co-operatives to re-register.
If currently a small co-operative, a co-operative will continue to be a small co-operative under the amended Co-operatives Act 2009 (WA). In some instances, a co-operative that is currently a large co-operative may be classified as a small co-operative.
As from 1 January 2017, to be classified as a small co-operative, a co-operative need only satisfy any two of the following three criteria for the relevant financial year:
The asset and employee tests are applied on the last day of a co-operative’s financial year, with the revenue threshold being the revenue for that financial year.
As such, a change to small co-operative status could be effective as of the financial year next ending after 1 January 2017.
All co-operatives currently registered as ‘foreign co-operatives’ in this State will become ‘participating co-operatives’ under the amended Co-operatives Act 2009 (WA) and can continue to operate in the same way as before.
There will be some changes to processes and terminology and all co-operatives should review their Registered Rules i.e. the rules currently lodged with the Department of Energy, Mines, Industry Regulation and Safety. In the event of inconsistency between the legislation and a co-operative’s Registered Rules, the legislation will override the rules. So it is in the interests of a co-operative and its members that the board ensure the co-operative’s rules are updated and accurate.
If, after reviewing the Registered Rules, the only changes required are those to give effect to obligations under the Co-operatives Act 2009 (WA) as amended, the changes can be initiated by a board resolution – there is no requirement for a special resolution of the members. If the rules are to be altered in this way the board must lodge the changes with the Department of Energy, Mines, Industry Regulation and Safety. It is only when the Department registers the changes that they take effect. Once the changes are registered, members must be notified writing of the alterations as soon as practicable but in any event not later than the day when notice is given to the members of the next Annual General Meeting.
All co-operatives will continue to provide an annual return to the Registrar of Co-operatives within 28 days after their annual general meeting. A new annual return form is available from the Department of Energy, Mines, Industry Regulation and Safety website.
There will not be any significant change to the contents of the annual return. Large co-operatives will be required to lodge their audited financial reports but small co-operatives need only lodge financial reports if they are directed by their members or the Registrar to do so.
There will be some changes to the responsibilities of officers as from 1 January 2017. All board members, the secretary and senior management staff of a co-operative have responsibilities as ‘officers’. The amended Co-operatives Act 2009 (WA) will align those responsibilities with those that apply to officers of a corporation registered by ASIC.
It is very likely that WA co-operative directors and officers are already meeting the required standards. However penalties for contravening the Co-operatives Act 2009 (WA) can be severe and it is recommended that all co-operatives ensure that their directors, their secretary and senior management staff, i.e. their officers, are provided with information and advice about their duties and responsibilities.
In general terms, there are three duties:
The requirement that a co-operative appoint a secretary is unchanged. The secretary of a co-operative must take all reasonable steps to ensure that the co-operative complies with its obligations under the Co-operatives Act 2009 (WA) as amended. In some circumstances, a failure by the co-operative to meet the requirements of the Act may also be an offence by the secretary.
Further information on this topic can be obtained from the Department of Energy, Mines, Industry Regulation and Safety website.
The following changes may affect existing WA co-operatives:
No. There will be no additional fees and no increases to fees as a result of amending the Co-operatives Act 2009 (WA). As is currently the case, fees will be reviewed periodically in the future. However, for co-operatives having to amend their rules so they align with the Co-operatives Act 2009 (WA) as amended, there will be the standard small one–off document lodgement fee of $38.50.
The CNL has been implemented in Western Australia by amendment of the Co-operatives Act 2009 and the Co-operatives Regulations 2010. The amended Co-operatives Act 2009 and new Regulations can be viewed or downloaded free of charge from the State Law Publisher website.
For more information about the changes in other states and territories visit New South Wales Fair Trading.
Last modified: