Credit Unions Act 2010
FA E R
N
AT F
TQUO U
BERMUDA
CREDIT UNIONS ACT 2010
2010 : 43
TABLE OF CONTENTS
PART 1
PRELIMINARY
Citation
Interpretation
International principles and standards
PART 2
REGULATION AND SUPERVISION OF CREDIT UNIONS
Bermuda Monetary Authority
Powers and duties of the Authority
Authority's statement of principles
Minister to issue directions to Authority
Licensing
Prohibition on operating unlicensed credit union
Applications for licences
Grant of licences
Form, display and register of licences
By-laws
Name of credit union
Fees
Restriction of licence
Revocation of licence
Winding up on petition from the Authority
Notice of restriction or revocation of licence
Restriction in cases of urgency
Surrender of licence
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
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CREDIT UNIONS ACT 2010
Directions to protect interests of members
Notification and confirmation of directions
Appeals
Rights of appeal
Constitution of tribunals
Determination of appeals
Costs, procedure and evidence
Further appeals on a point of law
Appointment of Administrator
Appointment of administrator by court
Financial Statements and Audit
Appointment of auditors
Duty to prepare annual statements and accounts and to audit
Auditor to communicate certain matters to Authority
Information and Reports
Annual returns
Matters required to be notified to the Authority
Power to obtain information and reports
Power to require production of documents
Right of entry to obtain information and documents
Investigations
Investigations on behalf of the Authority
Investigation of suspected contraventions
Powers of entry in cases of suspected contraventions
Obstruction of investigations
Regulations
Regulations
Civil Liability of Members
Liability of members for debts of credit union
Offences
Obstruction
Offences by bodies corporate
PART 3
FINAL PROVISIONS
Repeals
Transitional - Conflict with private Act
Transitional- B.I.U Members Credit Union Co-Op Society
Consequential amendments
Commencement
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CREDIT UNIONS ACT 2010
SCHEDULE 1
Requirements for By-laws
SCHEDULE 2
Minimum Criteria
SCHEDULE 3
Prudential Requirements
SCHEDULE 4
Consequential Amendments
WHEREAS it is expedient to modernize Bermuda’s legislation governing credit
unions by strengthening the regulatory framework for their supervision and assigning
supervisory and licensing responsibility to the Bermuda Monetary Authority;
AND WHEREAS credit unions are distinctive financial institutions committed to
meeting the international credit union safety and soundness, good governance, consumer
protection and operating principles issued by the World Council of Credit Unions;
Be it enacted by The Queen's Most Excellent Majesty, by and with the advice and
consent of the Senate and the House of Assembly of Bermuda, and by the authority of the
same, as follows:
PART 1
PRELIMINARY
Citation
This Act may be cited as the Credit Unions Act 2010.
Interpretation
In this Act, unless the context otherwise requires —
“approved auditor” means an auditor who is a member of one of the professional
bodies for the time being declared to be approved for the purposes of section
46(6) of the Banks and Deposit Companies Act 1999;
“Authority” means the Bermuda Monetary Authority established under the
Bermuda Monetary Authority Act 1969;
“Board” means the Board of Directors of a credit union, established pursuant to its
by-laws;
“credit union” means an incorporated non-profit financial cooperative, owned and
controlled by its members, that may accept savings deposits and provide credit
and other financial services to them;
“member”, in relation to a credit union, means an individual who meets the criteria
for membership established by the credit union;
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2
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CREDIT UNIONS ACT 2010
“minimum criteria” means the criteria for licensing specified in Schedule 2;
“Minister” means the Minister of Finance;
“officer”, in respect of a credit union, includes members of all Committees
established under the credit union’s by-laws;
“PEARLS” means the International Prudential and Operating Standards and
Monitoring System produced and approved by the World Council of Credit
Unions, establishing standards for credit unions in respect of protection,
effective financial structure, asset quality, rates of return and costs, liquidity
and signs of growth;
“prescribed” means prescribed by regulations made under section 40;
“prudential requirements” means the reserve funding, liquidity and lending
requirements and requirements for external borrowing specified in Schedule 3,
but does not include the criteria respecting the prudent conduct of a credit
union’s business referred to in paragraphs 4 to 8 of Schedule 2;
“senior executive officer” means a person other than the chief executive officer of a
credit union who, under the immediate authority of the chief executive
officer —
exercises managerial functions; or
is responsible for maintaining accounts or other records of the credit
union.
International principles and standards
Every credit union shall endeavour to conform to the cooperative principles
approved and published by the World Council of Credit Unions and to operate in compliance
with PEARLS.
A credit union conforms to the co-operative principles if—
each member or delegate has no more than one vote;
no member or delegate is entitled to vote by proxy;
its membership is open, voluntary and available without any artificial
restriction or any unlawful basis of discrimination, to any person who can
use its services and is willing to accept the responsibility of membership;
its business is carried on primarily as an economic activity for the benefit
of its members;
its primary concerns are its institutional capacity and financial strength,
including adequate reserves, retained earnings and internal systems
designed to ensure continuous growth and service to members;
it utilizes any surplus arising out of its operations—
to strengthen its business;
(a)
(b)
3 (1)
(2)
(a)
(b)
(c)
(d)
(e)
(f)
(i)
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CREDIT UNIONS ACT 2010
to provide or improve common services to its members;
for the payment of dividends on permanent ownership capital
purchased by its members;
among its members in proportion to the business done by each member
with the credit union;
to educate its members, employees, directors, committee members and
the general public in the principles and techniques of financial,
economic and democratic cooperation; and
for non-profit, charitable, benevolent or cultural purposes;
it pursues co-operation with other credit unions;
it provides for continuing financial education, counselling and training;
it contributes to the social and economic development of its community;
and
it adopts the safety and soundness, good governance, consumer protection
and operating principles approved and published by the World Council of
Credit Unions.
PART 2
REGULATION AND SUPERVISION OF CREDIT UNIONS
Bermuda Monetary Authority
Powers and duties of the Authority
The Authority shall have the powers conferred on it by this Act and the duty
generally to supervise all credit unions licensed in Bermuda.
Authority's statement of principles
The Authority shall as soon as practicable after the coming into force of this
Act publish in such manner as it thinks fit a statement of principles in accordance with
which it is acting or proposing to act—
in interpreting the minimum criteria and the prudential requirements;
in exercising its power to grant, amend, revoke or restrict a licence; and
in exercising its power to obtain information and reports and to require
production of documents.
If the Authority makes a material change to its principles, it shall publish a
statement of the change or the revised statement of principles in the same manner as it
published the statement under subsection (1).
(ii)
(iii)
(iv)
(v)
(vi)
(g)
(h)
(i)
(j)
4
5 (1)
(a)
(b)
(c)
(2)
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CREDIT UNIONS ACT 2010
Minister to issue directions to Authority
The Minister may from time to time give to the Authority general policy directions
not inconsistent with this Act as to the performance of its functions under this Act and the
Authority shall give effect to such directions.
Licensing
Prohibition on operating unlicensed credit union
No person shall operate a credit union in or from Bermuda unless the credit
union is for the time being licensed by the Authority under this Act.
A person who contravenes this section is guilty of an offence and liable—
on summary conviction to a fine of $100,000 or to imprisonment for a
period of two years, or to both;
on conviction on indictment to a fine of $250,000 or to imprisonment for a
period of five years, or to both.
Applications for licences
A credit union shall make application to the Authority for a licence in such
manner as the Authority may direct, and shall provide the Authority with —
a copy of a notice of the application that has been published in the Gazette;
such other information, documents and reports as the Authority may
reasonably require for the purpose of determining the application; and
the application fee prescribed under the Bermuda Monetary Authority Act
1969.
An application may be withdrawn by notice in writing to the Authority at any
time before it is granted or refused, but in any such case the application fee shall not be
refunded to the applicant.
Grant of licences
The Authority may, on an application made in accordance with section 8, grant
a licence to a credit union if—
the applicant is a body corporate incorporated in Bermuda;
the applicant`s by-laws and name meet the requirements of sections 11
and 12 respectively;
the Authority is satisfied that the minimum criteria and the prudential
requirements are fulfilled with respect to the applicant; and
the Minister has advised the Authority that he is satisfied that the grant of
the licence is in accordance with the economic and financial policy of the
government.
6
7 (1)
(2)
(a)
(b)
8 (1)
(a)
(b)
(c)
(2)
9 (1)
(a)
(b)
(c)
(d)
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CREDIT UNIONS ACT 2010
The Minister, acting on the advice of the Authority, may by order amend
Schedule 2 or 3 by adding new criteria or requirements or by amending or deleting the
criteria or requirements for the time being specified in it.
An order made under subsection (2) is subject to the negative resolution
procedure.
Form, display and register of licences
A licence shall be in such form as may be prescribed and shall set out the credit
union’s permitted business activities.
A licence remains in force until it is revoked by the Authority.
The Authority shall cause a notice to be published in the Gazette of every grant
of a licence.
The Authority shall compile, maintain and publish in such manner as it thinks
fit a register containing, in respect of each licence, such particulars as may be prescribed.
A licensed credit union shall, at all times, keep its licence on display at its
principal place of business in Bermuda.
By-laws
Every credit union licensed under this Act shall have by-laws that comply with
the requirements of Schedule 1 governing the organization and operation of the credit
union.
A provision in a credit union’s by-laws is of no effect to the extent that it is
inconsistent with Schedule 1.
Name of credit union
Every credit union licensed under the Act must include the words “credit
union” in its official name.
Only a credit union licensed under this Act may use a name containing the
words “credit union,” may represent itself as a credit union, or may conduct business as a
credit union.
Any person who contravenes this section commits an offence and is liable on
summary conviction to a fine of $50,000.
Fees
Every credit union licensed under this Act shall pay the annual fee prescribed
under the Bermuda Monetary Authority Act 1969 in each calendar year on or before 30
April, beginning in the year after the year in which the credit union`s licence was granted.
A credit union shall also pay a fee on the grant of its licence, in an amount
equal to the annual fee multiplied by the number of months in the period from the date of
the grant of the licence to 31 December next following divided by twelve, counting part of a
month as one month for the purpose of calculating the fee.
(2)
(3)
10 (1)
(2)
(3)
(4)
(5)
11 (1)
(2)
12 (1)
(2)
(3)
13 (1)
(2)
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CREDIT UNIONS ACT 2010
A credit union that fails to pay a fee required to be paid under this section is
liable to a civil penalty in the amount of $500 for each week or part of a week that the
payment is outstanding.
The Authority may recover a fee or civil penalty payable under this section in
any court of competent jurisdiction as a debt owing to it.
Restriction of licence
The Authority may restrict a licence if—
it is satisfied that a ground of revocation specified in section 15 is met but
that the circumstances are not such as to justify revocation;
it has given a credit union notice that it proposes to revoke its licence at
any time after such notice has been given to the credit union; or
the credit union has served a notice surrendering its licence with effect
from a later date.
The Authority may restrict the licence by imposing such conditions as it thinks
desirable for the protection of the credit union's members or potential members and for
safeguarding its assets or otherwise, and may in particular—
require the credit union to take certain steps or to refrain from adopting or
pursuing a particular course of action or to restrict the scope of its
business in a particular way;
impose limitations on the acceptance of deposits, the granting of credit or
the making of investments;
prohibit the credit union from soliciting deposits, either generally or from
persons who are not already members;
prohibit the credit union from entering into any other transactions or class
of transactions;
require the removal of the chief executive officer, a senior executive officer
or any director; or
specify requirements to be fulfilled otherwise than by action taken by the
credit union.
Any condition imposed under this section may be varied or withdrawn by the
Authority.
The Authority may, on the application of a credit union, vary any condition
imposed on its licence.
A credit union that fails to comply with any requirement or contravenes any
prohibition imposed on it by a condition under this section is guilty of an offence and is
liable on summary conviction to a fine of $50,000.
The fact that a condition imposed under this section has not been complied
with (whether or not constituting an offence under subsection (5)) shall, where the
(3)
(4)
14 (1)
(a)
(b)
(c)
(2)
(a)
(b)
(c)
(d)
(e)
(f)
(3)
(4)
(5)
(6)
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CREDIT UNIONS ACT 2010
restriction has been imposed pursuant to subsection (1)(a), be a ground for the revocation
of the licence in question but shall not invalidate any transaction.
Revocation of licence
The Authority may revoke the licence of a credit union if the Authority is satisfied
that—
any of the minimum criteria or prudential requirements are not or have not
been fulfilled, or may not be or may not have been met in respect of the
credit union;
the credit union has failed to comply with any obligation imposed on it
under this Act;
the Authority has been provided with false, misleading or inaccurate
information by or on behalf of the credit union or, in connection with an
application for a licence, by or on behalf of a person who is or is to be a
director, chief executive officer or senior executive officer of the credit
union; or
the interests of the members or potential members of the credit union are
in any way threatened by the manner in which the credit union is
conducting or proposes to conduct its affairs or for any other reason.
Winding up on petition from the Authority
On a petition presented by the Authority by virtue of this section, the Supreme
Court may wind up a credit union in respect of which a licence is revoked, if the court is of
the opinion that it is just and equitable that the credit union be wound up.
Part XIII (Winding Up) of the Companies Act 1981 shall apply to the winding
up of a credit union under this section.
Notice of restriction or revocation of licence
Where the Authority proposes to —
restrict a licence under section 14(1);
vary a restriction imposed on a licence otherwise than with the agreement
of the credit union concerned; or
revoke a licence under section 15,
the Authority shall give to the credit union concerned written notice of its intention to do
so.
If the proposed action is within subsection (1)(a) or (b), the notice under that
subsection shall specify the proposed restriction or, as the case may be, the proposed
variation.
15
(a)
(b)
(c)
(d)
16 (1)
(2)
17 (1)
(a)
(b)
(c)
(2)
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CREDIT UNIONS ACT 2010
A notice under subsection (1) shall state the ground or grounds on which the
Authority intends to act and give particulars of the credit union's rights under subsection
(5).
Where—
the ground for a proposal to impose or vary a restriction or for a proposed
revocation is that it appears to the Authority that the criterion in paragraph
1 of the minimum criteria is not or has not been fulfilled, or may not be or
may not have been fulfilled, in the case of any person; or
a proposed restriction consists of or includes a condition requiring the
removal of any person as chief executive officer, senior executive officer or
director,
the Authority shall give that person a copy of the notice mentioned in subsection (1),
together with a statement of his rights under subsection (5).
A credit union which is given notice under subsection (1) and a person who is
given a copy of it under subsection (4) may make representations in writing to the Authority
within the period of 14 days beginning with the day on which the notice was given (or such
other longer period as the Authority may allow).
After taking into account any representations made under subsection (5), the
Authority shall decide whether—
to proceed with the action proposed in the notice;
to take no further action;
if the proposed action was to revoke the credit union's licence, to restrict
its licence instead; or
if the proposed action was to restrict the credit union's licence or to vary
the restrictions on a licence, to restrict it or to vary the restrictions in a
different manner.
The Authority shall give the credit union and any person mentioned in
subsection (4), written notice of its decision and, except where the decision is to take no
further action, the notice shall state the reasons for the decision and give particulars of the
rights conferred by subsection (9) and section 22.
A notice under subsection (7) of a decision to restrict a licence, to vary the
restrictions on a licence or to revoke a licence shall, subject to sections 22(3) and (4), have
the effect of restricting the licence or varying the restriction in the manner specified in the
notice or of revoking the licence.
Where the decision notified under subsection (7) is to restrict the licence or to
vary the restrictions on a licence otherwise than as stated in the notice given under
subsection (1), the credit union may within the period of seven days beginning with the day
on which the notice was given under subsection (7) make written representations to the
Authority with respect to the restrictions and the Authority may, after taking those
representations into account, alter the restrictions.
(3)
(4)
(a)
(b)
(5)
(6)
(a)
(b)
(c)
(d)
(7)
(8)
(9)
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CREDIT UNIONS ACT 2010
A notice under subsection (7) shall be given within the period of 28 days
beginning with the day on which the notice under subsection (1) was given; and if no notice
under subsection (7) is given within that period, the Authority shall be treated as having at
the end of that period given a notice under that subsection to the effect that no further
action is to be taken.
Where the Authority varies a restriction on a credit union's licence with its
agreement or withdraws a restriction consisting of a condition, the variation or withdrawal
shall be effected by written notice to the credit union.
The Authority may omit from the copy given to a person under subsection (4)
and from a notice given to him under subsection (7) any matter which does not relate to
him.
The Authority shall publish in the Gazette, in such form as it thinks fit, notice
of every revocation of a licence under this Act.
Restriction in cases of urgency
No notice need be given under section 17 in respect of the imposition or
variation of a restriction on a credit union's licence in any case in which the Authority
considers that the restriction should be imposed or varied as a matter of urgency.
In any such case the Authority may by written notice to the credit union impose
or vary the restriction.
Any such notice shall state the reason for which the Authority has acted and
particulars of the rights conferred by subsection (5) and section 22.
Section 17(4) shall apply to a notice under subsection (2) imposing or varying
a restriction as it applies to a notice under section 16(1) in respect of a proposal to impose
or vary a restriction; but the Authority may omit from a copy given to a person by virtue of
this subsection any matter which does not relate to him.
A credit union to which a notice is given under this section of the imposition
or variation of a restriction and a person who is given a copy of it by virtue of subsection (4)
may, within the period of 14 days beginning with the day on which the notice was given,
make representations to the Authority.
After giving a notice under subsection (2) imposing or varying a restriction and
taking into account any representations made in accordance with subsection (5), the
Authority shall decide whether —
to confirm or rescind its original decision; or
to impose a different restriction or to vary the restriction in a different
manner.
The Authority shall, within the period of 28 days beginning with the day on
which the notice was given under subsection (2), give the credit union concerned written
notice of its decision under subsection (6) and, except where the decision is to rescind the
original decision, the notice shall state the reason for the decision.
(10)
(11)
(12)
(13)
18 (1)
(2)
(3)
(4)
(5)
(6)
(a)
(b)
(7)
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CREDIT UNIONS ACT 2010
Where the notice under subsection (7) is of a decision to take the action
specified in subsection (6)(b), the notice under subsection (7) shall have the effect of
imposing the restriction or making the variation specified in the notice and with effect from
the date on which it is given.
Surrender of licence
A credit union may surrender its licence by written notice to the Authority.
A surrender shall take effect on the giving of the notice or, if a later date is
specified in it, on that date; and where a later date is specified in the notice the credit union
may by further written notice to the Authority substitute an earlier date, not being earlier
than that on which the first notice was given.
The surrender of a licence is irrevocable unless it is expressed to take effect at
a later date and before that date the Authority by notice in writing allows it to be withdrawn.
Directions to protect interests of members
The Authority may give a credit union directions under this section at any time
after its licence is revoked or surrendered.
Directions under this section shall be such as appear to the Authority to be
desirable for safeguarding the interests of the credit union's members.
No direction shall be given to a credit union under this section after it has
ceased to have any liability in respect of deposits for which it had a liability at a time when
it was licensed; and any such direction which is in force with respect to a credit union shall
cease to have effect when the credit union ceases to have any such liability.
A credit union which fails to comply with any requirement or contravenes any
prohibition imposed on it by a direction under this section is guilty of an offence and
liable —
on summary conviction to a fine of $25,000; or
on conviction on indictment to a fine of $75,000.
Notification and confirmation of directions
A direction under section 20 shall be given by notice in writing and may be
varied by a further direction; and a direction may be revoked by the Authority by a notice
in writing to the credit union concerned.
A direction under section 20, except one varying a previous direction with the
agreement of the credit union concerned—
shall state the reasons for which it is given and give particulars of the credit
union's rights under subsection (3) and section 22; and
without prejudice to section 20(3) shall cease to have effect at the end of
the period of 28 days beginning with the day on which it is given unless
before the end of that period it is confirmed by a further written notice given
by the Authority to the credit union concerned.
(8)
19 (1)
(2)
(3)
20 (1)
(2)
(3)
(4)
(a)
(b)
21 (1)
(2)
(a)
(b)
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CREDIT UNIONS ACT 2010
A credit union to which a direction is given which requires confirmation under
subsection (2) may, within the period of 14 days beginning with the day on which the
direction is given, make written representations to the Authority; and the Authority shall
take any such representations into account in deciding whether to confirm the direction.
Appeals
Rights of appeal
A credit union which is aggrieved by a decision of the Authority —
to restrict its licence, to restrict in a particular manner or to vary any
restrictions of its licence; or
to revoke its licence,
may appeal against the decision to a tribunal constituted in accordance with section 23.
Where —
the ground or a ground for a decision within subsection (1)(a) or (b) is that
mentioned in section 17(4)(a); or
the effect of a decision within subsection (1)(a) is to require the removal of
a person as the chief executive officer or a senior executive officer of a credit
union,
the person to whom the ground relates or whose removal is required may appeal to a
tribunal constituted as aforesaid against the finding that there is such a ground for the
decision or, as the case may be, against the decision to require his removal.
The tribunal may suspend the operation of a restriction or a variation of a
restriction pending the determination of an appeal in respect of the decision imposing or
varying the restriction.
The revocation of a credit union's licence pursuant to a decision against which
there is a right of appeal under this section shall not have effect—
until the end of the period within which the appeal can be brought; and
if such an appeal is brought, until it is determined or withdrawn.
Constitution of tribunals
Where an appeal is brought under section 22, a tribunal to determine the
appeal shall be constituted in accordance with this section.
The tribunal shall consist of a chairman, or in his absence a deputy chairman,
and two other members.
The chairman and the deputy chairman shall be appointed by the Minister for
a term not exceeding three years, and shall be barristers and attorneys of at least seven
years' standing.
(3)
22 (1)
(a)
(b)
(2)
(a)
(b)
(3)
(4)
(a)
(b)
23 (1)
(2)
(3)
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CREDIT UNIONS ACT 2010
The Minister shall appoint a panel of not less than nine persons with relevant
experience in accounting and finance to serve as members of the appeal tribunal.
The chairman, or in his absence the deputy chairman, shall select the two other
members of the tribunal from the panel appointed by the Minister in such a manner as to
ensure that at least one member of the tribunal has credit union experience.
A person shall not be eligible for appointment as chairman, deputy chairman
or member of the tribunal if he is or has at any time during the period of three years ending
with the date of his appointment been an officer, servant or agent of the Authority, of any
credit union licensed under this Act, or of a company licensed under the Banks and Deposit
Companies Act 1999 as a bank or deposit company.
Determination of appeals
On an appeal under section 22(1) and (2) the question for the determination of
the tribunal shall be whether, for the reasons adduced by the appellant, the decision was
unlawful or not justified by the evidence on which it was based.
On any such appeal the tribunal may confirm or reverse the decision which is
the subject of the appeal but shall not have power to vary it except that —
where the decision was to impose or vary any restriction the tribunal may
direct the Authority to impose different restrictions or to vary them in a
different way; or
where the decision was to revoke a licence the tribunal may direct the
Authority to restrict it instead.
Notice of a tribunal's determination, together with a statement of its reasons,
shall be given to the appellant and to the Authority; and, unless the tribunal otherwise
directs, the determination shall come into operation when the notice is given to the
appellant and to the Authority.
Costs, procedure and evidence
A tribunal may give such directions as it thinks fit for the payment of costs or
expenses by any party to the appeal.
The Minister may make regulations with respect to appeals and those
regulations may in particular make provision—
as to the period within which and the manner in which such appeals are
to be brought;
as to the manner in which such appeals are to be conducted, including
provision for any hearing to be held in private and as to the persons entitled
to appear on behalf of the parties;
as to the procedure to be adopted where appeals are brought both by an
institution and by a person who is to be a controller or senior executive of
an institution, including provision for the hearing of the appeals together
and for the mutual disclosure of information;
(4)
(5)
(6)
24 (1)
(2)
(a)
(b)
(3)
25 (1)
(2)
(a)
(b)
(c)
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CREDIT UNIONS ACT 2010
for requiring an appellant or the Authority to disclose or allow the
inspection of documents in their custody or under their control;
for requiring any person, on tender of the necessary expenses of his
attendance, to attend and give evidence or produce documents in his
custody or under his control and for authorising the administration of
oaths to witnesses;
for enabling an appellant to withdraw an appeal or the Authority to
withdraw its opposition to an appeal and for the consequences of any such
withdrawal;
for taxing or otherwise settling any costs or expenses which the tribunal
directs to be paid and for the enforcement of any such direction;
for enabling any preliminary or incidental functions in relation to an appeal
to be discharged by the chairman or, as the case may be, the deputy
chairman of the tribunal; and
as to any other matter connected with such appeals.
Regulations made under subsection (2) shall be subject to negative resolution
procedure.
A person who, having been required in accordance with regulations made
under this section to attend and give evidence, fails without reasonable excuse to attend or
give evidence shall be guilty of an offence and liable on summary conviction to a fine of
$10,000.
A person who without reasonable excuse alters, suppresses, conceals, destroys
or refuses to produce any document which he has been required to produce in accordance
with regulations under this section, or which he is liable to be required to produce, shall be
guilty of an offence and liable—
on summary conviction to a fine of $50,000 or to imprisonment for six
months or to both; and
on conviction on indictment to a fine of $100,000 or to imprisonment for a
term of two years or to both.
Further appeals on a point of law
A credit union or other person who has appealed to a tribunal may appeal to
the Supreme Court on any question of law arising from the decision of the appeal by the
tribunal and an appeal on any such question shall also lie at the instance of the Authority;
and if the court is of the opinion that the decision was erroneous in point of law it shall
remit the matter to the tribunal for re-hearing and determination by it.
No appeal to the Court of Appeal shall be brought from a decision under
subsection (1) except with leave of that court.
(d)
(e)
(f)
(g)
(h)
(i)
(3)
(4)
(5)
(a)
(b)
26 (1)
(2)
15
CREDIT UNIONS ACT 2010
Appointment of Administrator
Appointment of administrator by court
The Supreme Court may, on application of the Authority, make an order
appointing a person with appropriate experience to manage and administer the business of
a credit union if –
the Authority has restricted the credit union’s licence so as to require the
removal of the chief executive officer or senior executive officer or the
appointment of an officer to replace one or more of those officers;
the credit union has failed to comply with the restriction referred to in
paragraph (a); and
the court is satisfied that the chief executive officer or senior executive
officers are not fit and proper persons to hold the positions that they hold.
An administrator appointed under subsection (1) shall, in managing and
administering the business of the credit union, take such action as will protect the interests
of the members of the credit union but shall not take on any new business.
The Court may from time to time give such directions to the administrator as
it considers appropriate to the performance of his functions under this section.
With effect from the date of appointment of the administrator—
every person who is a chief executive officer, senior executive officer, or
director of the credit union shall cease to hold office; and
the administrator so appointed shall take over and be solely responsible
for the management and administration of the credit union’s business.
An administrator appointed under subsection (1) shall receive such
remuneration as the Court may determine and that remuneration shall be charged to, and
be payable by, the credit union.
Financial Statements and Audit
Appointment of auditors
At each annual meeting, a credit union shall appoint an approved auditor for
the credit union.
If the credit union fails to appoint an approved auditor under subsection (1) or,
at any time, fails to fill a vacancy for such auditor, the Authority may appoint an approved
auditor and shall fix the remuneration to be paid by the credit union to such auditor.
A credit union shall forthwith give written notice to the Authority if the credit
union—
proposes to remove an auditor before the expiration of his term of office; or
27 (1)
(a)
(b)
(c)
(2)
(3)
(4)
(a)
(b)
(5)
28 (1)
(2)
(3)
(a)
16
CREDIT UNIONS ACT 2010
proposes to replace an auditor at the expiration of the term of his office
with a different auditor.
A credit union that fails to comply with subsections (1) or (3) commits an
offence and is liable on summary conviction to a fine of $50,000.
No person having an interest in a credit union and no member, officer, servant
or agent of a credit union shall be eligible for appointment as an approved auditor for that
credit union and any person appointed as an auditor who subsequently acquires an interest
in the credit union or becomes an officer, servant or agent of that credit union shall cease
to be an approved auditor.
Duty to prepare annual statements and accounts and to audit
A credit union shall cause unaudited financial statements to be prepared and
shall provide copies of them to the Authority no later than 30 days after the end of each
quarter.
A credit union shall prepare in accordance with this section annual financial
statements or accounts in respect of all transactions and balances relating to the credit
union’s business and shall cause them to be audited annually.
The credit union shall provide the Authority with a copy of the audited financial
statements no later than four months after the close of the credit union’s financial year.
Both the audited and unaudited financial returns must include a balance
sheet, income statement, and statement of cash flows and are to be prepared in accordance
with one of the following standards or principles—
International Financial Reporting Standards (“IFRS”);
generally accepted accounting principles (“GAAP”) that apply in Bermuda,
Canada, the United Kingdom or the United States of America; or
such other GAAP as the Authority may recognise.
The credit union shall, at each of its offices in Bermuda —
keep a copy of its most recent audited financial statements together with
the auditor's report on the financial statements; and
make the copy of the financial statements and report available for
inspection by any person, on request, during normal business hours.
A credit union that fails to ensure preparation of annual financial statements
or which fails to cause the financial statements to be audited annually as required by this
section is guilty of an offence and is liable on summary conviction to a fine of $25,000.
Auditor to communicate certain matters to Authority
The auditor of a credit union shall give written notice to the Authority of the
following matters as soon as they arise —
(b)
(4)
(5)
29 (1)
(2)
(3)
(4)
(a)
(b)
(c)
(5)
(a)
(b)
(6)
30 (1)
17
CREDIT UNIONS ACT 2010
the auditor’s resignation, if he resigns before the expiration of his term of
office;
the auditor’s intention not to seek to be re-appointed;
a decision to include a modification of the auditor’s report on the credit
union's financial statements and in particular, a qualification or denial of
his opinion, or the statement of an adverse opinion.
An auditor of a credit union shall forthwith give written notice to the Authority
of any fact or matter of which he becomes aware which is likely to be of material significance
for the discharge, in relation to the credit union which he is an auditor, of the Authority’s
functions under this Act.
An auditor who fails to comply with subsection (1) is guilty of an offence and is
liable on summary conviction to a fine of $25,000.
No duty to which an auditor of a credit union may be subject shall be regarded
as contravened by reason only of his communicating in good faith to the Authority, whether
or not in response to a request made by the Authority, any information or opinion on a
matter to which this section applies and which is relevant to any function of the Authority
under this Act.
Information and Reports
Annual returns
Every credit union shall deliver to the Authority a return, signed by the chief
executive officer or secretary of the credit union, made up to 31 December of each year.
Each return shall contain the name and address of every person who—
is a director, chief executive officer, senior executive officer or officer of the
credit union on the date to which the return was made up; or
has ceased to be a director, chief executive officer or senior executive officer
of the credit union since the date to which the last return was made up (or,
in the case of a first return, since the registration of the credit union).
If a credit union fails to deliver an annual return in accordance with this section
before the end of the period of 28 days after the return date, the credit union is guilty of an
offence and liable on summary conviction to a fine of $10,000 and in the case of a continued
offence to a daily default fine of $1,000.
Matters required to be notified to the Authority
A credit union shall notify the Authority of the following—
failure of the credit union to meet any prudential requirement, minimum
licensing criterion or other obligation imposed on it under this Act;
actual or suspected fraud in relation to the business of the credit union;
new business initiatives or any other material change to its business;
(a)
(b)
(c)
(2)
(3)
(4)
31 (1)
(2)
(a)
(b)
(3)
32 (1)
(a)
(b)
(c)
18
CREDIT UNIONS ACT 2010
the fact that any person has become or ceased to be a chief executive
officer, senior executive officer or director of the credit union;
any matter that may have a significant impact on their operations.
A notice required to be given under subsection (1) shall be given before the end
of the period of 14 days beginning with the day on which the credit union becomes aware
of the relevant facts.
A credit union which fails to give notice as required by this section is guilty of
an offence and liable on summary conviction to a fine of $50,000.
Power to obtain information and reports
The Authority may by notice in writing served on a credit union—
require the credit union to provide the Authority (or such person acting on
behalf of the Authority as may be specified in the notice), at such time or
times or at such intervals or in respect of such period or periods as may be
so specified, with such information as the Authority may reasonably
require for the performance of its functions under this Act; or
require the credit union to provide the Authority with a report, in such form
as may be specified in the notice, by the credit union's auditor or by an
accountant or other person with relevant professional skill on, or on any
aspect of, any matter about which the Authority has required or could
require the credit union to provide information under paragraph (a).
The person appointed by a credit union to make the report required under
subsection (1)(b) shall forthwith give written notice to the Authority of any fact or matter of
which he becomes aware which is likely to be of material significance for the discharge, in
relation to the credit union, of the Authority’s functions under this Act.
Power to require production of documents
The Authority may—
by notice in writing served on a credit union require it to produce, within
such time and at such place as may be specified in the notice, such
information or documents of such description as may be so specified;
authorise an officer, servant or agent of the Authority, on producing
evidence of his authority, to require any such credit union to provide him
forthwith with such information, or to produce to him forthwith such
documents, as he may specify,
being such information or documents as the Authority may reasonably require for the
performance of its functions under this Act.
Where, by virtue of subsection (1), the Authority or any officer, servant or agent
of the Authority has power to require the production of any documents from a credit union,
the Authority or that officer, servant or agent shall have the like power to require the
production of those documents from any person who appears to be in possession of them;
(d)
(e)
(2)
(3)
33 (1)
(a)
(b)
(2)
34 (1)
(a)
(b)
(2)
19
CREDIT UNIONS ACT 2010
but where any person from whom such production is required claims a lien on documents
produced by him, the production shall be without prejudice to the lien.
The power under this section to require a credit union or other person to
produce any documents includes power—
if the documents are produced, to take copies of them or extracts from
them and to require that credit union or person, or any other person who
is a present or past director, controller or senior executive of, or is or was
at any time employed by or acting as an employee of, the credit union in
question, to provide an explanation of any of them; and
if the documents are not produced, to require the person who was required
to produce them to state, to the best of his knowledge and belief, where
they are.
The Authority may by notice in writing served on any person who is or is to be
a director, chief executive officer, senior executive officer or officer of a credit union require
him to provide the Authority, within such time as may be specified in the notice, with such
information or documents as the Authority may reasonably require for determining whether
he is a fit and proper person to hold the particular position which he holds or is to hold.
Any person who without reasonable excuse fails to comply with a requirement
imposed on him under this section is guilty of an offence and liable on summary conviction
to a fine of $10,000 or to imprisonment for a term of six months or to both.
Nothing in this section shall compel the production by a barrister and attorney
of a document containing a privileged communication made by him or to him in that
capacity.
Right of entry to obtain information and documents
Any officer, servant or agent of the Authority may enter any premises occupied
by a person on whom a notice has been served under section 33(1) or 34(1) for the purpose
of obtaining there the information or documents required by that notice and of exercising
the powers conferred by section 34(3).
The Authority may authorise one of its officers, servants or agents to enter any
premises occupied by any person on whom a notice could be served under section 33(1) or
34(1) for the purpose of obtaining there such information or documents as are specified in
the notice, if the Authority has reasonable cause to believe that if such a notice were served
it would not be complied with or that any documents to which it would relate would be
removed, tampered with or destroyed.
The officer, servant or agent of the Authority shall produce evidence of his
authority to enter the premises, if required to do so.
(3)
(a)
(b)
(4)
(5)
(6)
35 (1)
(2)
(3)
20
CREDIT UNIONS ACT 2010
Investigations
Investigations on behalf of the Authority
If it appears to the Authority desirable to do so in the interests of the members
or potential members of a credit union the Authority may appoint one or more competent
persons to investigate and report to the Authority on—
the nature, conduct or state of the credit union's business or any particular
aspect of it, or
the ownership or control of the credit union,
and the Authority shall give written notice of any such appointment to the credit union
concerned.
It is the duty of every person who is or was a director, chief executive officer,
senior executive officer, officer, employee, agent, banker, auditor or barrister and attorney
of a credit union which is under investigation, and any person appointed to make a report
in respect of that credit union under section 33(1)(b)—
to produce to the persons appointed under subsection (1), within such time
and at such place as they may require, all documents relating to the credit
union concerned which are in his custody or power;
to attend before the persons so appointed at such time and place as they
may require; and
to give those persons all assistance in connection with the investigation
which he is reasonably able to give,
and those persons may take copies of or extracts from any documents produced to them
under paragraph (a).
For the purpose of exercising his powers under this section a person appointed
under subsection (1) may enter any premises occupied by a credit union which is being
investigated by him under this section; but he shall not do so without prior notice in writing
unless he has reasonable cause to believe that if such a notice were given any documents
whose production could be required under this section would be removed, tampered with
or destroyed.
A person exercising powers by virtue of an appointment under this section
shall, if so required, produce evidence of his authority.
Any person who—
without reasonable excuse fails to produce any documents which it is his
duty to produce under subsection (2) ;
without reasonable excuse fails to attend before the persons appointed
under subsection (1) when required to do so; or
without reasonable excuse fails to answer any question which is put to him
by persons so appointed with respect to a credit union which is under
36 (1)
(a)
(b)
(2)
(a)
(b)
(c)
(3)
(4)
(5)
(a)
(b)
(c)
21
CREDIT UNIONS ACT 2010
investigation or a company which is being investigated by virtue of
subsection (2),
is guilty of an offence and liable on summary conviction to a fine of $10,000 or to
imprisonment for a term of six months or to both.
A statement made by a person in compliance with a requirement imposed by
virtue of this section shall not be used in evidence against him.
Nothing in this section shall compel the production by a barrister and attorney
of a document containing a privileged communication made by him or to him in that
capacity.
Investigation of suspected contraventions
Where the Authority has reasonable grounds for suspecting that a person has
contravened section 7, the Authority or any duly authorised officer, servant or agent of the
Authority may by notice in writing require that person or any other person—
to provide, at such place as may be specified in the notice and either
forthwith or at such time as may be so specified, such information as the
Authority may reasonably require for the purpose of investigating the
suspected contravention;
to produce, at such place as may be specified in the notice and either
forthwith or at such time as may be so specified, such documents, or
documents of such description, as may be specified, being documents the
production of which may be reasonably required by the Authority for that
purpose; or
to attend at such place and time as may be specified in the notice and
answer questions relevant for determining whether such a contravention
has occurred.
The Authority or a duly authorised officer, servant or agent of the Authority
may take copies of or extracts from any documents produced under this section.
Any officer, servant or agent of the Authority may, on producing if required
evidence of his authority, enter any premises occupied by a person on whom a notice has
been served under subsection (1) for the purpose of obtaining there the information or
documents required by the notice, putting the questions referred to in paragraph (c) of that
subsection or exercising the powers conferred by subsection (2).
Any person who without reasonable excuse fails to comply with a requirement
imposed on him under this section is guilty of an offence and liable on summary conviction
to a fine of $10,000 or to imprisonment for a term of six months or to both.
A statement made by a person in compliance with a requirement imposed by
virtue of this section shall not be used in evidence against him.
Nothing in this section shall compel the production by a barrister and attorney
of a document containing a privileged communication made by him or to him in that
capacity.
(6)
(7)
37 (1)
(a)
(b)
(c)
(2)
(3)
(4)
(5)
(6)
22
CREDIT UNIONS ACT 2010
Powers of entry in cases of suspected contraventions
A magistrate may issue a warrant under this section if satisfied on information
on oath laid by an officer of the Authority or laid under the Authority's authority that there
are reasonable grounds for suspecting that a person has contravened section 7 and—
that the person has failed to comply with a notice served on him under that
section;
that there are reasonable grounds for suspecting the completeness of any
information provided or documents produced by him in response to such
a notice; or
that there are reasonable grounds for suspecting that if a notice were
served on him under that section it would not be complied with or that any
documents to which it would relate would be removed, tampered with or
destroyed.
A warrant under this section shall authorise any police officer not below the
rank of inspector, together with any other person named in the warrant and any other police
officers—
to enter any premises occupied by the person mentioned in subsection (1)
which are specified in the warrant, using such force as is reasonably
necessary for the purpose;
to search the premises and take possession of any documents appearing
to be such documents as are mentioned in subsection (1)(c) or to take, in
relation to any such documents, any other steps which may appear to be
necessary for preserving them or preventing interference with them;
to take copies of or extracts from any such documents; or
to require any person named in the warrant to answer questions relevant
for determining whether that person has contravened section 7.
A warrant under this section shall continue in force until the end of the period
of one month beginning with the day on which it is issued.
Any documents of which possession is taken under this section may be
retained—
for a period of three months; or
if within that period proceedings to which the documents are relevant are
commenced against any person for any such contravention as is mentioned
in section 33, until the conclusion of those proceedings.
Any person who intentionally obstructs the exercise of any right conferred by
a warrant issued under this section or fails without reasonable excuse to comply with any
requirement imposed in accordance with subsection (2)(d) is guilty of an offence and
liable—
38 (1)
(a)
(b)
(c)
(2)
(a)
(b)
(c)
(d)
(3)
(4)
(a)
(b)
(5)
23
CREDIT UNIONS ACT 2010
on summary conviction, to a fine of $10,000 or to imprisonment for a term
of six months or to both;
on conviction on indictment, to a fine of $50,000 or to imprisonment for a
term of two years or to both.
Obstruction of investigations
A person who knows or suspects that an investigation is being or is likely to be
carried out—
into a suspected contravention of section 7; or
under section 37,
is guilty of an offence if he falsifies, conceals, destroys or otherwise disposes of, or causes
or permits the falsification, concealment, destruction or disposal of, documents which he
knows or suspects are or would be relevant to such an investigation unless he proves that
he had no intention of concealing facts disclosed by the documents from persons carrying
out such an investigation.
A person guilty of an offence under this section is liable—
on summary conviction, to a fine of $10,000 or to imprisonment for a term
of six months or to both;
on conviction on indictment, to a fine of $50,000 or to imprisonment for a
term of two years or to both.
Regulations
Regulations
The Minister may, acting on the advice of the Authority, make regulations
generally for the implementation of this Act and prescribing anything which may be
prescribed under this Act.
Without prejudice to the generality of subsection (1), regulations may in
particular—
for the purposes of section 30(2), prescribe the facts or matters which are
likely to be of material significance for the discharge of the Authority’s
functions under this Act;
regulate advertising and the soliciting of deposits by credit unions by
whatever means (including electronic soliciting); and
prescribe penalties not exceeding $10,000 for any breach of the
regulations.
Regulations made under this section are subject to the negative resolution
procedure.
(a)
(b)
39 (1)
(a)
(b)
(2)
(a)
(b)
40 (1)
(2)
(a)
(b)
(c)
(3)
24
CREDIT UNIONS ACT 2010
Civil Liability of Members
Liability of members for debts of credit union
A member is not personally or individually liable for the payment of the credit
union’s debts in excess of the amount of his individual ownership of shares.
Offences
Obstruction
Any person who intentionally obstructs a person exercising rights conferred by
section 33(1), 34(1) or 35(1) is guilty of an offence and liable on summary conviction to a
fine of $10,000 or to imprisonment for a term of six months or to both.
Offences by bodies corporate
Where an offence under this Act committed by a body corporate is proved to
have been committed with the consent or connivance of, or to be attributable to neglect on
the part of, any director, senior executive, secretary or officer of the body corporate, or any
person who was purporting to act in any such capacity, he, as well as the body corporate,
shall be guilty of that offence and be liable to be proceeded against and punished
accordingly unless such person shows that he took all reasonable steps to avoid the
commission of an offence.
Where the affairs of a body corporate are managed by its members, subsection
(1) shall apply in relation to the acts and defaults of a member in connection with his
functions of management as if he were a director of the body corporate.
PART 3
FINAL PROVISIONS
Repeals
The Credit Unions Act 1982 and Credit Unions (Delegation of Minister`s Functions)
Order 1989 are repealed.
Transitional - Conflict with private Act
Where the provisions of a private Act incorporating a credit union conflict with the
provisions of this Act, the provisions of the private Act, other than any provision that
conflicts with the minimum criteria, shall prevail until such time as the private Act is
amended.
Transitional- B.I.U Members Credit Union Co-Op Society
On the coming into operation of this Part, the Authority shall grant a licence to
the B.I.U. Members Credit Union Co-Op Society, a credit union registered under the Credit
Unions Act 1982.
41
42
43 (1)
(2)
44
45
46 (1)
25
CREDIT UNIONS ACT 2010
Upon the grant of the licence under subsection (1), this Act shall apply to the
B.I.U. Members Credit Union Co-Op Society in the same manner as if the Society had made
an application under section 8 and had been granted a licence by the Authority under
section 9(1).
Consequential amendments
The enactments specified in column 1 of Schedule 4 are amended as specified in
column 2 of that Schedule.
Commencement
The provisions of this Act come into operation on a day or days to be appointed by
the Minister by notice in the Gazette.
(2)
47
48
26
CREDIT UNIONS ACT 2010
SCHEDULE 1
(section 11)
REQUIREMENTS FOR BY-LAWS
Matters to be included in by-laws
The by-laws shall—
define the credit union’s objects, membership, board, committees, scope of
activities and services;
provide for the rights of members, meetings, the duties and responsibilities
of credit union officials, operational management and any other matter
specified in this Schedule; and
adopt the safety and soundness, good governance, consumer protection
and operating principles approved and published by the World Council of
Credit Unions.
The by-laws shall not be rescinded or altered except at a general meeting of the
members, and no rescission or amendment of the by-laws shall take effect until approved
by the Authority.
Membership of a credit union
The by-laws shall set out the requirements for membership in the credit union
including the criteria for membership, the number of shares to be subscribed by members,
membership fees and the grounds for the expulsion and withdrawal of members.
The membership criteria shall set out the pre-existing common bond of
association or community of interest among the individuals who belong to the credit union,
including individuals—
who have a similar occupation or profession or are employed by a common
employer or within the same business district or market area; or
who have common membership in an association or organization,
including, but not limited to, religious, social, cooperative, labour or
educational groups.
Provision shall be made for societies, associations, partnerships and
companies composed primarily of individuals eligible for membership to be admitted to
membership in the credit union.
Provision shall be made for members to have the exclusive right to save or
borrow from the credit union.
Meetings
The by-laws shall require the holding of an annual general meeting of the
members of a credit union no later than four months after the close of the credit union’s
fiscal year.
1 (1)
(a)
(b)
(c)
(2)
2 (1)
(2)
(a)
(b)
(3)
(4)
3 (1)
27
CREDIT UNIONS ACT 2010
The by-laws shall provide for the time, place and manner of holding the annual
general meeting and special meetings called by the members, the Board, the Supervisory
Committee or the Credit Committee and shall specify the minimum number of members
that must be present to conduct business at the meetings.
Provision shall be made, at the annual general meeting, to set the maximum
liability that a credit union may incur in respect of loans and deposits from members.
Provision shall be made for the election, at the annual general meeting, of the
Board, the Supervisory Committee and the Credit Committee from among the members of
the credit union.
Provision for voting shall be made that—
entitles every member who is 18 years of age or over to vote at the meetings;
entitles a member to vote by absentee ballot, mail or other method provided
in the by-laws; and
prohibits a member from voting more than once or voting by proxy.
Board
The by-laws shall require the Board—
to be responsible to the members for directing and controlling the
business, funds and records of the credit union; and
to meet regularly and report annually to the members on its governance of
the credit union.
The by-laws shall provide for—
the election by the members of a Board consisting of an odd number of
directors, not less than five in number;
the holding of office by the directors for one or more fixed terms of three
years, which shall be staggered so that an approximately equal number of
terms expire each year; and
the expulsion from the Board, at its discretion, of any director who has
delinquent loans or who has failed to attend three consecutive Board
meetings.
Provision shall be made outlining the roles and responsibilities of the Board,
its committees and officers including —
the process for the election of members of the Board, the Supervisory
Committee and the Credit Committee, and for the establishment of other
committees;
the duties of the executive officers;
the temporary filling of vacancies occurring on the Board or in any
committee until successors are elected at the next annual meeting; and
(2)
(3)
(4)
(5)
(a)
(b)
(c)
4 (1)
(a)
(b)
(2)
(a)
(b)
(c)
(3)
(a)
(b)
(c)
28
CREDIT UNIONS ACT 2010
the delegation of authority to the executive officers to act collectively on
behalf of the Board between Board meetings, and the conditions or
limitations that apply to such delegation.
Committees
The by-laws shall provide for the election, from the membership of the credit
union, of—
a Supervisory Committee, whose functions shall be—
to examine the financial affairs of the credit union, including
examining, at least once per quarter, financial records and statements
and producing an annual report of its audit to be presented to the
members at the Annual General Meeting;
to oversee the credit union’s internal control system and assess the
adequacy of internal controls; and
to monitor compliance with laws, regulations, by-laws and the rules to
prevent money laundering and the financing of terrorism; and
a Credit Committee, whose functions shall be —
to approve and supervise loans to members and to ensure compliance
with the lending policy; and
to verify the ability of borrowing members and their guarantors to meet
their obligations under the terms of their loans.
Provision shall be made precluding any member of the Board from being elected
to, or being a member of, the Supervisory Committee.
The by-laws shall allow the Board to establish, in accordance with the by-laws,
such additional committees as it considers necessary to conduct the business of the credit
union.
Executive Officers
The by-laws shall provide for the election by the Board, from among its
members of the executive officers of the credit union, namely the chairperson, vice
chairperson, treasurer and secretary. The election shall be held within 30 days following
the annual meeting.
Provision shall be made for the executive officers to serve for a term of one year
or until their successors are chosen, and for their election for any number of terms.
Chief Executive Officer and Staff
The by-laws shall provide for the Board to appoint a chief executive officer and
senior executive officers of the credit union, to whom it may delegate the authority and
responsibility for managing the credit union’s operations.
(d)
5 (1)
(a)
(i)
(ii)
(iii)
(b)
(i)
(ii)
(2)
(3)
6 (1)
(2)
7 (1)
29
CREDIT UNIONS ACT 2010
Provision shall be made for the Board to authorize the chief executive officer to
employ any additional persons needed to administer the business of the credit union.
The by-laws shall require the chief executive officer to ensure that the credit
union has an effective control culture which promotes—
an appropriate and effective control environment that supports the
effective and prudent management of the credit union’s operations, and of
the risks to which it is exposed;
reporting procedures to ensure the Board is provided with timely, relevant,
accurate and complete reports that will enable it to assess whether the
credit union is operating effectively; and
appropriate and effective processes for assisting the Board in assessing
whether a credit union is meeting the prudential requirements and the
minimum criteria.
Remuneration of officers, directors and committee members
The by-laws shall provide that no elected officer, director or committee member,
other than the chief executive officer when serving as a director, may be compensated for
services to the credit union by means of a salary.
Provision shall be made that, notwithstanding subsection (1), a person referred
to in that subsection may be reimbursed for necessary expenses incurred that are incidental
to the performance of the business of the credit union.
(2)
(3)
(a)
(b)
(c)
8 (1)
(2)
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CREDIT UNIONS ACT 2010
SCHEDULE 2
(section 2)
MINIMUM CRITERIA
Directors and officers to be fit and proper persons
Every person who is, or is to be, the chief executive officer, a senior executive
officer, an officer or a director of a credit union shall be a fit and proper person to hold the
particular position which he holds or is to hold.
In determining whether a person is a fit and proper person to hold any
particular position, regard shall be had to—
the person’s qualifications, training and previous conduct and activities in
business or financial matters;
the person’s probity, reputation and character;
the competence and soundness of the person’s judgement for fulfilling the
responsibilities of that position; and
the diligence with which the person is fulfilling or likely to fulfil those
responsibilities.
Without prejudice to the generality of the foregoing provisions, regard may be
had to the previous conduct and activities in business or financial matters of the person in
question and, in particular, to any evidence that the person has—
committed an offence involving fraud or other dishonesty or violence;
contravened any provision made by or under any enactment appearing to
the Authority to be designed for protecting members of the public against
financial loss due to—
dishonesty, incompetence or malpractice by persons concerned in the
provision of banking, insurance, investment or other financial services
or the management of companies; or
the conduct of discharged or undischarged bankrupts;
been censured or disqualified by any professional or regulatory body;
engaged in any business practices appearing to the Authority to be
deceitful or oppressive or otherwise improper (whether lawful or not) or
which otherwise reflect discredit on his method of conducting business;
engaged in or has been associated with any other business practices or
otherwise conducted himself in such a way as to cast doubt on his
competence and soundness of judgement.
In assessing whether a person is fit and proper for a particular position in light
of evidence of past misconduct, regard shall also be had to the lapse of time since the
misconduct and the person's subsequent conduct.
1 (1)
(2)
(a)
(b)
(c)
(d)
(3)
(a)
(b)
(i)
(ii)
(c)
(d)
(e)
(4)
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CREDIT UNIONS ACT 2010
Business to be directed by at least two individuals
At least two individuals shall effectively direct the business of the credit union.
Composition of Board
The directors shall include such number (if any) of directors without executive
responsibility for the management of the credit union’s business as the Authority considers
appropriate having regard to the circumstances of the credit union and the nature and scale
of its operations.
Business to be conducted in a prudent manner
A credit union shall conduct its business in a prudent manner, with integrity
and the professional skills appropriate to the nature and scale of the credit union`s
activities.
A credit union shall not be regarded as conducting its business in a prudent
manner unless it has sufficient resources to support its activities and meets the
requirements set out below.
A credit union shall not be regarded as conducting its business in a prudent
manner unless it maintains adequate accounting and other records of its business and has
adequate systems of control of its business and records.
A credit union shall not be regarded as conducting its business in a prudent
manner unless it has or will have appropriate insurance arrangements in place.
A credit union shall not be regarded as conducting its business in a prudent
manner unless it maintains sufficient institutional capital to protect members’ savings, to
cover possible losses from loans and investments and other contingencies, and to be
available to creditors on winding up.
A credit union shall not be regarded as conducting its business in a prudent
manner unless it maintains sufficient liquidity on hand to meet operating expenses and
day-to-day demands for withdrawals, having regard to the relationship between its liquid
assets and its actual and contingent liabilities and to the times at which those liabilities
may fall due and its assets mature.
For the purposes of subparagraph (6), the Authority, in assessing liquidity,
shall focus on the ability of a credit union to cope with unexpected events and may take
into account as liquid assets—
assets of the credit union; and
facilities available to the credit union that are capable of providing liquidity
within a reasonable period.
Requirements respecting investments
A credit union shall not be regarded as conducting its business in a prudent
manner unless it adopts a reasonable and prudent approach to investments in order to
avoid undue interest rate risk and concentration risk, while obtaining a reasonable return.
2
3
4 (1)
(2)
(3)
(4)
(5)
(6)
(7)
(a)
(b)
5 (1)
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CREDIT UNIONS ACT 2010
The Board is responsible for formulating, reviewing and adjusting an
investment policy, which shall address the following—
the purpose and objectives of the investment activities;
the types of investments that can be made;
who has authority to make the investments and the extent of the authority;
the need for adequate investment diversification across investment type or
entity; and
the need to review the investment policy annually and from time to time as
needed.
Lending Requirements
A credit union shall not be regarded as conducting its business in a prudent
manner unless it has a lending policy, approved by the Board, which sets out the policies
and procedures for the management of arrears and for the proper recording and reporting
of past due loans, including—
the lending policy’s objectives;
eligibility requirements for receiving a loan;
classification of loans offered;
required loan documentation;
acceptable types of collateral;
interest rates, terms and repayment conditions;
maximum loan amounts;
how to determine the borrower’s ability to repay the loan; and
the identification of the loan approval authority.
A credit union shall not be regarded as conducting its business in a prudent
manner unless it manages unsecured loans prudently.
Requirements respecting arrears
A credit union shall not be regarded as conducting its business in a prudent
manner unless it has in place a documented arrears management policy, setting out the
procedures and process for dealing with borrowers who fall into arrears.
A credit union shall not be regarded as conducting its business in a prudent
manner unless it reviews its arrears management policy regularly, identifies the types of
loans which commonly fall into arrears and makes appropriate amendments to the policy.
(2)
(a)
(b)
(c)
(d)
(e)
6 (1)
(a)
(b)
(c)
(d)
(e)
(f)
(g)
(h)
(i)
(2)
7 (1)
(2)
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CREDIT UNIONS ACT 2010
Provisioning Requirements
A credit union shall not be regarded as conducting its business in a prudent
manner unless it reviews loans to customers to ascertain the level of risk of default for loans
that are in arrears and includes a section in its arrears management policy on provisioning.
A credit union shall not be regarded as conducting its business in a prudent
manner unless it makes every effort to collect delinquent loans and to recognize losses on
delinquent loans so that its financial statements represent its true financial position.
8 (1)
(2)
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CREDIT UNIONS ACT 2010
SCHEDULE 3
(section 2)
PRUDENTIAL REQUIREMENTS
Reserve Funding Requirements
A credit union shall maintain a reserve fund and other institutional capital not
less than 10% of its total assets.
At the close of each financial year, 25% of the credit union’s net surplus shall
be placed into a reserve fund until such time as the institutional capital is equal to 10% of
the credit union’s total assets.
A reserve fund shall not be distributed to members unless the credit union is
dissolved.
In this paragraph, reserve fund means a fund that belongs to a credit union
that is used for repayment of shares to members and to recoup losses.
In this paragraph “institutional capital” means the aggregate of—
the credit union's statutory or other non-distributable general reserves;
the credit union's earnings retained after distribution of surplus; and
such other funds which may be received by the credit union by way of non-
refundable donations for no specified purpose, which are not available for
distribution.
Liquidity Requirements
A credit union shall maintain a minimum liquidity ratio of 15% of withdrawable
savings in cash or highly liquid assets.
Lending Requirements
The maximum period for which a credit union can lend to any member is ten
years.
A credit union shall not lend an amount exceeding 10% of its institutional
capital or 2% of aggregate withdrawable shares, whichever is less, to any individual member
and its total loan portfolio shall not exceed 80% of the credit union’s total assets.
Requirements for external borrowing
A credit union shall not borrow an amount exceeding 10% of its total assets or
fourtimes its retained earnings and its reserves, whichever is less.
1 (1)
(2)
(3)
(4)
(5)
(a)
(b)
(c)
2
3 (1)
(2)
4
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CREDIT UNIONS ACT 2010
SCHEDULE 4
(section 47)
CONSEQUENTIAL AMENDMENTS
Column 1 Column 2
Banks and Deposit
Companies Act 1999
In paragraph 1(d) of the First
Schedule, delete the words “registered
under the Credit Unions Act 1982”
and substitute the words “licensed
under the Credit Unions Act 2010”
Foreign Currency Purchase
Tax Act 1975
In paragraph 1(f) of the
Second Schedule delete the words
“registered under the Credit Unions
Act 1982” and substitute the words
“licensed under the Credit Unions Act
2010”
Bermuda Monetary Authority
Act 1969
In the definition “credit union”
in section 1(1) delete the words “Credit
Unions Act 1982” and substitute the
words “Credit Unions Act 2010”
Government Authorities
(Fees) Act 1971
Proceeds of Crime Regulations
(Supervision and Enforcement) Act
2008
In Part B of the First Schedule
insert in its appropriate alphabetical
order “Appeal Tribunal constituted in
accordance with section 23 of the
Credit Unions Act 2010”
In paragraph (b) of the
definition “regulatory Acts” in section
2(1) delete the words “Credit Unions
Act 1982” and substitute the words
“Credit Unions Act 2010”
[Assent Date: 26 July 2010]
36
