E.A. & Branches, Opinion 2020
'Stuff ' just keeps dissappearing on Facebook and Forums!
'Stuff ' just keeps dissappearing on Facebook and Forums!
| 2020 | 2015,2012 | 2010-2018 | 2014-2018 | History | 2020 -V.A. | 2020 -V.A. | 2020 | Branches | Branches |
| 2020-2021 | 2022 | 2012-2022 | Comment | Dec 2021 | 2022 | FEBRUARY 2022 |
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Sport Australia required to arbitrate un-resolved issues between E.A. and the State Branches
Sport Governance Standards
MORE ON THE EQUESTRIAN AUSTRALIA REFORM PROCESS
HIGH PROFILE ELITE COMPETITOR HEATH RYAN SPEAKS OUT ON THE
VOLUNTARY ADMINISTRATION PROCESS
Was E.A. really insolvent?
#Voluntary Administration, #EQ, #process, #veto, #tribunals, #Justice, Ricky MacMillan, #secrect, #Sport Australia, #insolvency, #injustice, #Heath Ryan, #blindsided, #timing, #transparency, #funding, #lies,#timeline, #inequality, #deception, #Insurance, # Board, #ordinary members
Heroic Heath has never shrunk from expressing his opinion and in these three excerpts he doesn't hold back the punches. I'm personally thankful that Heath's opinions support mine and the evidence and vice versa. Heath also poses some curly questions regarding solvency. Take special notice of Heath's opinion that E.A. was not dependent on the Sport Australia funding, without the high-performance component of governance Equestrian Australia could be self-sustaining on members levys.
RIDERS FOR REFORM
STATE BRANCHES IGNORE 500+ MEMBERS SIGNATURES AGAINST THE VETO ELEMENT OF CLAUSE 40
THE STATE BRANCHES EVEN IGNORED A DIRECT PLEA FROM THE EA DRESSAGE COMMITTEE
STATE BRANCHES SPEND MEMBERS MONEY TO FIGHT THEIR MEMBERS CALL FOR REFORM
Voluntary Administration actually saw the State Branches ‘lawyered -up’ to fight against their own members wishes to fight reform . -
The Australian, Olivia Caisley, Reporter
The five state branches revolting against the administration of Equestrian Australia have made a last-ditch attempt to free the national body of receivership ahead of a creditors meeting on Tuesday that will determine whether the embattled organisation is closed down or reformed.
KORDA MENTHA GAINS VOTING RIGHTS FOR GRASS ROOTS MEMBERS AT THE CREDITORS MEETINGS
As I understand from Craig Shepard, the Branches wanted to stop their Branch Members from having any involvement or vote regarding the voluntary administration process. Thankfully, Korda Mentha found a way to grant members minimal voting rights.
Unfortunately, the final outcome of this process has seen the State Branches able to legally deny their members the power of an unencumbered 1 vote per member on constitutional changes regarding Equestrian Australia. This evidences this on-going unconscionable behaviour by the State Branches despite hundreds of their members signatures supporting the un-encumbered 1 vote 1 member on all matters, especially constitutional changes.
However, there is light at the end of this tunnel, there is a way for individual members to achieve the 1 Vote 1 member result the Voluntary Administration process failed to achieve regarding the E.A. Constitution- Here's how.
READ DENZIL O'BRIENS TAKE ON E.A. HISTORY AND THE CURRENT SITUATION
Denzil O’Brien is a former CEO of E.A. from early 1996 to early 2001 and was in the chair when Australia’s eventing teams won Gold Medals at two Olympic Games, including one on home soil.
SO HOW DID ALL THIS GO ON FOR SO LONG WITHOUT SANCTIONS
FROM GOVERNMENT ORGANISATIONS ?
Equestrian Australia and the State Branches are incorporated entities and should operate under the CORPORATIONS ACT, I.M.O. many of the governance issues covered in these pages contravene the Act. E.A. was also under the scrutiny of the Australian Olympic Committee, Sport Australia and ultimately the federal Minister for Sport. So just how has EA avoided official sanctions right up to May 2020 after years of turmoil?
LIES WITH THE CORPORATIONS ACT AND ASIC
NOTE - The contents of this website are not made by a legally qualified person and represent personal opinion and suggestions only, based on research.
12 MONTHS ON - THE WASH-UP FROM E.A. IN ADMINISTRATION
WHERE WE ARE AT - 23/12/2021
STATUS QUO - THE STATE BRANCHES STILL CONTROL THE E.A. CONSTITUTION
The entire EA administration process appears to have delivered nothing of any real consequence to members other than a massive financial and energy expenditure. The State Branches still essentially maintain major control of EA. because they control the constitution and ASIC isn’t interested despite this, nor is it in their remit to do anything regarding infractions under the Corporations Act. despite ASIC being the body that oversees the Corporations Act. See also 'scuttelbutt'
EQUESTRIAN AUSTRALIA IS A COMPANY LIMITED BY GUARANTEE
ASIC has no pathway for members of Companies Limited by Guarantee to lodge complaints against their boards for disobeying the Corporations Act. This is a major issue for any club or incorporated body that is a not for profit organisation and should be fixed.
WHAT ABOUT THE STATE BRANCHES?
AS I interpret this as a person with no legal qualifications using my computer to research this issue: pretty much the same applies regarding the State Branches, ASIC, the Corporations Act and Constitutions. However, it could be possible for the individual members State Branches who are Company Type- Associations , to pursue constitutional issues through their State's regulator which for Associations appears to be the various relevant consumer protection agencies for each state. (Query Equestrian Victoria though!).
The problem with this is that this would take committed groups of members in each state to pursue the issue, this would not be fast and the outcome uncertain. Mounting a case with evidence (plenty on this site), would be time consuming. The primary arguments as I see it could focus around the State Branches vote on the E.A. Constitution regarding Clause 40 ( the Veto) and include other Constitutional infractions, many of which are listed here on this site. Cross referencing the constitutions and various applicable consumer protection acts will be tedious but very necessary. In my opinion this route is way to labour intensive and circuitous.
THE STATE BRANCHES CONTROL THE E.A. CONSTITUTION
VIA THE ABILITY TO BLOCK RESTRUCTURE - CLAUSE 40
Controlling the constitution is powerful, the State Branches hold this power due to Clause 40 - The Veto Clause. Any Participating Members resolution can be vetoed by 2 State Branches, which effectively removes the 1 Member ! Voting right required by the Participating Members and is a key feature of Companies limited by guarantee according to ASIC. It could possibly be argued that State Branches have used their own constitutions, policies and By-Laws against their own members, as a weapon to silence criticism and free speech, which is surely not the intent these documents?. Specifically, the ‘Bringing the sport into disrepute ‘ clause is open to abuse; used to shut members up, to muzzle free speech; especially if it involves criticism of the board’s behaviour. This clause was cloaked in the failed promise of ‘protecting the sport’. Ask yourself how often E.A. and State Branch Boards actions have appeared in the media in less than flattering terms, who is bringing the 'Sport into disrepute'?
A KEY FEATURE OF A COMPANY LIMITED BY GUARANTEE IS 1 MEMBER - 1 VOTE. This is a starting point for motions that will clear the path for total reform
SPORT AUSTRALIA 'TAPPED E.A. WITH A FEATHER'
Sport Australia (whatever it was called back 25 years ago) forced sporting bodies who received government funding to become incorporated under the Corporations Act. This was a requirement for organisations seeking government funding and allegedly made their governance more accountable.
Did / do the E. A. and State Boards govern under these principals?
It's almost funny that 12 months after tE.A.'s Voluntary Administration ended this April 30 2013 Document remains un-revised: Memorandum of Understanding between: Equestrian Australia Limited (“EA”) and its Member Branches ("the Branches"). Even funnier is when the State Branches push back against a possible members motion for E.A. to terminate the Branches E.A. membership , Sport Australia may be dragged back into the ruckus again :
THANKS FOR NOTHING (MUCH) SPORT AUSTRALIA
Thanks Sport Australia, for nothing much. Allegedly the removal of Government Funding administered by Sport Australia for Elite Competitors/competitions was the primary reason the Board placed E.A. into Voluntary Administration (Supposedly, insurance difficulties had nothing to do with problems). This process lightened E.A. coffers significantly and delivered very little for members and virtually nothing by way of reform . Sport Australia has its own Governance Principals, replaced by Sport Governance Standards for sporting bodies but are extremely slow to act on any non-compliance. Read the standards and judge E.A.'s performance currently (December 2021) for yourself.
I understand that the government funding to Equestrian Australia has been re-instated despite no real evidence of reforms that meet the individual members’ needs or comply with the Sport Governance Standards; therefore, the likelihood of organisational stability is slim. Furthermore, due to the current inter-relationship between E.A. and the State Branches, the State Branches all receive government funding from Sport Australia via Equestrian Australia to support their Elite competitors and yet there was no requirement for reform of the State Branches as a consequence of E.A. being placed in voluntary administration due to (allegedly) the withdrawal of Government Funding. Again, we have the corporatisation of the individual State Branches and E.A. as separate corporate entities , to thank for this situation.
What about the recently formed Sport Integrity Framework - disputes resolution process (tribunal) you ask? Can’t they protect equestrian members? Well they have a very, VERY, limited scope at the moment, which does not include board behaviour. They appear to have a focus on ‘bullying’ and ‘clean sport’. I know this because I wrote to them.
However, thinking logically, surely some of the equestrian boards behaviour in pulling out the ‘disrepute’ card where members criticise Board actions could have no other interpretation than bullying? Isn't this action abusing the intent of their ‘bringing the sport into disrepute’ rule?
Regarding members rights to use the Sport Integrity Tribunal to adjudicate disciplinary matters that are within the tribunals (limited) remit; I understand that currently the board (of individual State Branches / E.A.) involved in the dispute would have to agree to use this tribunal, permission is not always granted. What purpose does it serve these organisations to use their own tribunal path with the threat of lengthy, costly legal action for the parties involved. Go figure!
INEQUALITY OF POWER
The ability of E.A. boards to use funds generated by members and possibly even government grants for lawyers representing E.A. , acting against self-funded members demonstrates an inequality of power and fairness.. Boards should only pull out the 'lawyers card' against members in the most serious matters and as a last possible resort. So far members have been prepared to take this lying down, until it affects them personally.
FAILURES UNDER THE CORPORATIONS ACT
As 1 Member 1 Vote is meant to be a key feature of Companies Limited By Guarantee under ASIC and the Corporations Act, and E.A. is such a company , shouldn't the E.A. Board have made concerted efforts to remove the Veto Clause 40 or remove the problem (the State Branches). The Veto clause effectively negates the power and intention of 1 Member 1 Vote. The participating members dissatisfaction with this clause should have propelled the E.A. Board into action.
All State Boards (except EQ) voted against their own members specifically expressed wishes in the case of clause 40 (control of the constitution).
So far, the Corporations Act and constitution has only served to protect the E.A. Board and The State Branch Boards. Any ‘reform’ of E.A. was stymied because of the existence of clauses in the old constitution that were instrumental in maintaining the status quo – the State Branches control the new constitution. It was inevitable that the State Branches would not risk voting themselves out of existence, hence their insistence on Clause 40. The tide may be changing, See also 'scuttlebut' .
Do I trust this change in attitude? No way.
There should be no issue with removing Clause 40 if the Branches have changed their tune, let's try it.
This action will prove how sincere the State Branches are regarding co-operation regarding reforms. If this motion fails as a consequence of the/ any State Branches using their Veto then their action provides evidence against these Branches for further actions.
AN UN-COOPERATIVE E.A. BOARD
It could be argued that the actions of the E.A. Board December 2021 regarding a members' motion (disallowed) have shown the members that the current E.A. Board is not likely to willingly co-operate with the members regarding complete reform and restructure.
Any actions to address the structure and nuts and bolts for the type of reform and restructure Participating Members require can only be implemented if the E.A. Board and the State Branches agree to co-operate, the Corporation Act does not compel them to do so.
Based on the State Branches and E.A. Board's past actions, be be prepared for them to lawyer up against their Members, again!
Clause 40 of the E.A. Constitution does not deliver the material affect of this
No requirement to comply with
REFORM IS A GOOD THING
OR DO YOU WANT E.A. TO CONTINUE 'AS IS'?
POSSIBLE POSITIVES DELIVERED REFORM AND RESTRUCTURE
A fairer more equitable sport.
A 'Member' focused and driven organisation.
A more direct route for members input
More predictable streamlined processes and governance.
Removal of management 'double-ups'.
Possible cheaper membership.
Communication that is information rich.
More direct accountability by the Board to Members.
Direct and speedy consequences for Board infractions.
DO WE REALLY NEED THE STATE BRANCHES?
Ask yourself who delivers the majority of on-site services and competitions on your State?
Do the clubs, volunteers, E.A. Sub Committees, judges, course builders and private enterprises such as Boneo Park and Willinga Park do most of the work regarding competitions?
Who is responsible for the rules and tests that competitions are run under (E.A) ?
This Attachment to Memorandum of Understanding between: Equestrian Australia Limited (“EA”) and its Member Branches ("the Branches") defines the Roles and Responsibilities of both parties.
How much money could Equestrian save by eliminating the State Branches and being administered by our Peak Body (Whoever this may end up being?) Think about the possible significant reductions in membership fees as a consequence.
A NEW E.A. CONSTITUTION –
LEARN FROM HISTORY
Any new E.A. Constitution should address issues that have been problematical in the old constitution whilst complying with the Corporations Act; members should be mindful that ASIC will not intercede in disputes between the Board and Members. It is essential that any re-writes of the Constitution and other governance and policy documents address this issue where possible (Replaceable rules in the Corporations Act). Recourse to court action by either party is costly and should be resorted to in the most serious matters when all other avenues have been exhausted.
IDENTIFY PAST PROBLEMS – ADDRESS THEM:
Some example issues for consideration-
Impartiality - definition , application re directors, members of tribunals, ground juries, etc. ability for members to challenge impartiality re tribunals.
Directors interests – definition- tighten the clause that allows directors participation once an interest has been declared.
Members Motions – compel the Board to enact motions that receive a majority vote at AGM/ SGM , unless these contravene The Act or are manifestly unsafe / ill-advised: financially, legally, have possible unforeseen impact on management or governance. Require the board to publicly detail reasons for refusal to enact. Specify a review process.
Members Motions at AGM’s , SGM’s - Board required to allow all motions submitted by members at if submitted in correct time frame. No censorship.
Board Selection – selection committee -major issue!
Skills of Board Members
Elected Board Members and Board Selected Members - ratio
Use of legal advice/ lawyers by the Board, tribunals against members.
What constitutes ‘bringing the sport into disrepute’, define, quantify , application re Boards, tribunals and members, consequences to include boards.
What constitutes abuse of power, bullying , abuse of power, coercion by the Board against Members, consequences for.
More streamlined process for removing the Board / individual Board Members.
Issues regarding more comprehensive AGM financial report expenditure itemisation, limit total under categories miscellaneous / other, legal expenditure to be identified.
REFORM - HOW COULD THIS BE ACHIEVED ?
The one major benefit that the E.A. Voluntary Administration process delivered to individual members of their State Branches was membership and voting (limited) rights with E.A. However there are a number of road-blocks that make using their voting power to achieve major reform tricky. Based on the State Branches and E.A. Board's past actions, be be prepared for them to lawyer up against their Members, again! The path will be long, tricky and tactical.