E.A. & Branches, Opinion 2020
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| 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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Page 12 -contents
16 February 2022
IF STEP 1 FAILS
IF STEPS 1 & 2 FAIL
Yes, dear members the explanation is wordy, this is a complicated process. You have been well and truly 'out-foxed' before, this time BE PREPARED.
Rest assured that it will take you less time to read this than it took me to research it and add it to this website
UNCONVINCED? Read this first then.
THE ROAD TO REFORM E.A.
The Aim of E.A. Reform - A Member focused , served and driven organisation.
Complete reform of the governance, processes, structure of E.A. based on the requirements and input, on-going, of the grass roots members who are recognised as the reason E.A. exists.
To generate results :
a balanced , equitable and fair focus on the different segments of competitive equestrian sports engaged in by the E.A. members,
a Board that is required to listen to members input and implement majority suggestion where feasible (and if not feasible ; comprehensive, verifiable reasons given), with direct pathways for members input, not just at AGM's and SGM's.
a board that is accountable to the members with consequences for failing members,
a board and C.E.O that members can trust and respect, with no unsavory baggage,
members knowing where they stand (clear definitions) regarding rules, impartiality, feasibility, vested interests, fairness, failing members, transparency, members rights, legal rights,etc.,
clear, frequent, information rich and timely communication from the Board and Sub Committees (or other governance groups) to the membership, with specific reasons given for decisions.
a rationalised, efficient national structure that aims at directing expenditure back to the members sport rather than management, staff and lawyers.
an organisation that has a legal structure that protects creditors, staff, members and the board.
a constitution that empowers all of the above and favors the majority of members.
elections where representatives and board members make their position on issues clear.
My suggestions encompass :
What is possible legally under the applicable legislation and the current E.A. constitution.
The logical sequences, steps, wording, procedures and processes required to achieve the outcome
Please note that Horses Mouth has no legal qualifications, these suggestions are a result of extensive research, long term exposure to E.A. and the Branches and using my brain
3 OPTIONS - IT'S A TWISTY ROAD
Reform will probably require attempting all 3 options in succession, due to the 'road blocks' outlined on page 11. As I see it, and have outlined on this site (with multiple E.A. Document clause references, ASIC, Sport Australia etc )
Naturally the format and Constitutional requirements for the motions will have to be followed to a 'T' and then some.
STEP 1 SOFT OPTION
Click to see first draft of these motions and further explanations
Aim of this Special Resolution-
1 Vote 1 Member,
hand back E.A. to the members,
facilitate full reform and restructure without the State Branches ability to block.
SCENARIO - IF / WHEN the resolution fails due to State Branches / E.A. refuses tabling Special Resolution 1 at the AGM / SGM/ any other reason for failure
OFFICIAL COMPLAINT- Call on the E.A. Board to remove Clause 40 and sanction those State Branches that insisted on retaining clause 40 (ref Special Resolution)
THEN IF SUCCESSFUL IN REMOVING CLAUSE 40
SPECIAL RESOLUTIONS - MULTIPLE - REVISE THE EA CONSTITUTION & RESTRUCTURE - INCLUDING ALL CLAUSES THAT PROVIDE ADDITIONAL POWER TO THE STATE BRANCHES , NOMINATIONS COMMITTEE ETC.
To be implemented when all challenges to Special Resolution 1 and the Official Complaint have been exhausted -
Revise the E.A. Constitution and other policies and agreements
WHY BOTHER WITH STEP 1 ?
Because failure of due process and fairness could be used to block the harder options where the soft option wasn't offered first. Give them a chance to co-operate - Steps 2 and 3 are the "or else" options if they don't. Special Resolution 1 sets up the State Branches to commit a fresh infraction of the Corporations Act and the EA Constitution allowing the Official Complaint to be lodged within the required 14 days. Also, if by any remote chance, the members take this issue to court; the court takes a dim view of members of companies limited by guarantee not helping themselves using all actions open to them before resorting to court.
STEP 1 SPECIAL RESOLUTION - Due process ,Soft Option- Gives the State Branches and/ or the E.A. Board an opportunity to back down /show their true colours.
There will probably be a time gap between motions being carried and enacting them, the State Branches and E.A. will likely protest the legality . Natural justice and the law probably require that the Branches are given the time and option to utilise the measures open to them to block implementing special resolutions and motions; assuming they are carried by members at the meeting
If State Branches try to use their Veto power to retain clause 40, this action will evidence our other arguments.
If sincere, State Branches vague undertakings to not use the Veto clause should see them posing no impediment to removing Clause 40, by the Branches voting to support removing the clause; and afterwards not using Clause 40 (circular argument, I know) to block its removal.
It is probable that the State Branches either individually or Jointly 'lawyer up' and/or the E.A Board will also 'lawyer up'; using members funds to fight their own members. It would be refreshing if the lawyers advice fell on the side of the members. Either way the State Boards will owe (and be asked for by) Participating Members a comprehensive explanation of the legal impediments to removing Clause 40 or the other motions as suggested in Step 1.
By submitting an Official Complaint regarding Clause 40 instead of further motions the E.A. Board is prevented from using their powers to discard members motions as "invalid to be put to the Members at a meeting due to a number of defects in the way the Motion is framed; and/or it contains elements which, if adopted, are incompatible with certain requirements of the EA Constitution and the Corporations Act 2001 (Cth)"/ other excuses. The members must call for a detailed explanation from the E.A. Board ,requiring the exact applicable Constitutional and Corporations Act clauses . Bear in mind the ASIC information makes it likely that the E.A. Board will challenge the members right to direct their board.
THE E.A. BOARD COULD CO-OPERATE WITH MEMBERS IF THEY CHOOSE TO
The E.A. Board under the current E.A. Constitution and the Corporations Act, has no enforceable duty to act on members input. Members motions are termed non enforceable suggestions if they refer to a governance issue, therefore any motion that can be interpreted as a direction regarding E.A. governance can legally be ignored by the E.A. Board. This is why an Official Complaint will require action and can be escalated on several levels within E.A. Unfortunately, one of those levels is possibly not the Sport Integrity Tribunal. However, the Boards actions regarding this complaint could be viewed as bullying members; then it would fall within their jurisdiction. This does not preclude the E.A. Board making the decision to co-operate with Participating Members. If the Corporations Act excuse is offered by the E.A. Board as an explanation, there's no point trying other motions that rely on the Boards co-operation.
'What If Actions' i.e. Step 1 fails- MOVE ON-
IF THE OFFICIAL COMPLAINT FAILS - MOVE ON TO STEP 2
Expel each member of the EA Board. These are motions that the Board must obey, the Corporations Act is clear in how this process must be executed. There is a time lag and many issues regarding members ability to vote for a member friendly board.
MOVE ON TO STEP 3
AVOIDING THE COURT ROUTE
Currently, other than mediation, the only way members can legally, under the Corporations Act ,challenge board decisions is in court when mediation fails. Essentially the Corporations Act and Constitution offer no 'cheap' ways to allow Participating Members input.
Members will not want to lodge a member funded court battle against E.A. to achieve their aims, especially where E.A. can use the organisation funds (largely generated by members) to fight their members in court. (Remember this for Constitutional Reform!). If E.A. and/or State Branch opposition offers no other option for Members to achieve reform of their organisation, there is no other (cheap) option, but as previously stated the court takes a dim view of members of companies limited by guarantee not helping themselves using all actions open to them before resorting to court.
MOTIONS (X9) TO REMOVE EACH INDIVIDUAL MEMBER OF THE E.A. BOARD
The Members remove each director of E.A. in the manner prescribed by the Corporations Act Division 3 - 203D
Note - this motion will involve new Board elections. Be careful that all the new Board Members are solidly behind reforming E.A. and will not oppose the re-submission of the following motions seen in Step 1
Unfortunately the E.A. Constitution and Corporations Act place many blocks to members achieving a 'member friendly board'.
If the director was appointed to represent the interests of particular shareholders, the resolution to remove the director does not take effect until a replacement to represent their interests has been appointed.
Unfortunately the E.A. Constitution requires the Nominations Committee to vet candidates, we know how this goes!
The Constitution also states that Board Members can appoint Board Members to fill casual vacancies (No member input!) and that E.A. requires a minimum of 4 Board Members to operate.
The Corporations Act requires :Notice of intention to move resolution for removal of director/s must be given to the company at least 2 months before the meeting is to be held.
THE CIRCULAR ARGUMENT WILL PROBABLY PREVENT REFORM
IMO it all circles back to the E.A. Constitution and clause 40,and without removing / restructuring the Nominations Committee and reducing the State Branches many other constitutional increases of power beyond the individual members, members will get more of the same type of Board Members.
IF, A MIRACLE OCCURS AND A MEMBER FRIENDLY BOARD IS APPOINTED :
Then we go back and re table SPECIAL RESOLUTION 1 and if this fails again re lodge the OFFICIAL COMPLAINT , hopefully under a more 'Member Friendly' tribunal. Only if Clause 40 is removed can we progress onto :
SUCCESS? - MULTIPLE SPECIAL RESOLUTIONS - Reform the structure of E.A and the E.A. Constitution
IF /WHEN THIS MOVE FAILS THERE IS REALY ONLY ONE OTHER ACTION :
HARD LINE SERIOUS
NO MOTIONS TO E.A. REQUIRED - MEMBERS ACTION
The state branch members stop paying their memberships of their state branches on their renewal dates in a coordinated action, with a new organisation functional and ready to take over equestrian sport administration in Australia. Functional enough to allow competitions to commence under their jurisdiction.
This move will only work if the majority of State Branch members are solidly behind this action and will act accordingly, quit their State Branch and pay membership to the new organisation. It is reasonable that they will only support this move if there is a functional organisation in place to take on the E.A. functions
PLEASE CONSIDER THIS OPTION
Before you completely discard this option, take time to read how it could be executed as smoothly as possible with replacement services, competitions, policies and affiliations in place, a new organisation in place that is controlled by the members.