Change is in the air

[coljones]

Coljones. What you say in upper case may be correct in theory, but it doaesn't seem to be working in practice. the constitution is being ignored by the board and i think the members are being similarly treated.

Yenn, there is a new board, with one new face, and with an unknown bent. The troika has been augment and is now a board of 7 so there is a possibility that things will change. I think Kasper's proposals were unsupportable. It is now time to sit back a bit and see what this new board delivers for us. If we don't like it we can call a meeting and instruct the board of how it should be. With the change to the Constitution there was, increasingly, a need for speed as progress had become glacial because of vested interests and groups out there castrating mosquitoes. Apart from some procedural issues like elections and notices for meetings all the rest looked moderately OK for a document crafted by lawyers (they can make it much worse and even more undemocratic). My big problem was the size of the board, I always and still feel It should be bigger than 7. Given that the membership was in general support for a board of 7, resistance was futile. If you had a problem with the way RAA in the past blame the old board. If you have the problem with the direction that RAA is heading complain to the new board or just ring Eugene. Let it settle a bit so that all might become clear. You can't become an ELAAA thingy just yet so you might as well hang with the devil you do know for a while longer. If you are impatient, read the Constitution, work out your resolutions, start your petition and call a meeting - if you do call an EGM, please hold it in Sydney, I'm all travelled out this week. Otherwise, enjoy the flying.

 

 

[turboplanner]

Yes,And the 21 days notice of a resolution is a definite requirement of the new constitution and the Corporations Law AFAIK. The fact that falls on a weekend means the Board cannot provide the required notice to members unless received on a business day in time to get the resolution to members. Its is unfortunate the new constitution is sloppy in this area, so it needs to be fixed.

Clause 27 from the Constitution says:

 

"27 Members’ resolutions and statements

 

"27.1 Where the Company has called for resolutions, any current Member with voting rights may give: (a) written notice to the Company of a resolution they propose to move at the general meeting (Members’ resolution), and/or (b) a written request to the Company that the Company must make available to its Members a statement about a proposed resolution or any other matter that may properly be considered at a general meeting (Members’ statement).

 

"27.2 A notice of a Members’ resolution must set out the wording of the proposed resolution and be signed by the Members proposing the resolution.

 

"27.3 A request to distribute a Members’ statement must be given to the Company at least seven (7) days prior to a general meeting and set out the statement to be distributed and be signed by the Members making the request.

 

27.4 Separate copies of a document setting out the notice or request may be signed by Members if the wording is the same in each copy.

 

"27.5 If the Company has been given notice of a Members’ resolution under Clause 27.1(a), the resolution must be considered at the general meeting for which the resolution was called.

 

27.6 This Clause does not limit the right that a Member has to propose a resolution at a general meeting under the Corporations Act.

 

"28 Company must give notice of proposed resolution or distribute statement

 

"28.1 If the Company has been given a notice or request under Clause 27: (a) in time to give notice of a proposed Members’ resolution or a copy of the Members’ statement to Members with a notice of meeting, it must do so at the Company’s cost, or (b) too late to give notice of a proposed Members’ resolution or a copy of the Members’ statement to Members with a notice of meeting, then the Members who proposed the resolution or made the request must pay the expenses reasonably incurred by the Company in giving Members notice of the proposed Members’ resolution or a copy of the Members’ statement. However, at a general meeting, the Members may pass a resolution that the Company will pay these expenses." Source: Constitution of Recreational Aviation Australia Limited.

 

(a)

 

In the Meeting Notice, did the Company call for resolutions in accordance with Clause 27?

 

If so, then 27.1, 27.2, 27.3, 27.4, 27.5, 27.6, 28, 28.1 apply

 

 

 

If the Company did not call for resolutions, then the member is covered by 27.6 which notes that Clause 27 does not limit the right that a Member has to propose a resolution at a general meeting under the Corporations Act.

 

 

 

There are no 21 day limits mentioned here, just 7 days

 

(b)

 

If it isn't practical for the Company to include the resolution details with8ing the 21 day time limit for announcing the meeting then 28.1 (b) kicks in; the resolution is distributed before the meeting.

 

"28 Company must give notice of proposed resolution or distribute statement

 

"28.1 If the Company has been given a notice or request under Clause 27:

 

(a) in time to give notice of a proposed Members’ resolution or a copy of the Members’ statement to Members with a notice of meeting, it must do so at the Company’s cost, or

 

(b) too late to give notice of a proposed Members’ resolution or a copy of the Members’ statement to Members with a notice of meeting, then the Members who proposed the resolution or made the request must pay the expenses reasonably incurred by the Company in giving Members notice of the proposed Members’ resolution or a copy of the Members’ statement. However, at a general meeting, the Members may pass a resolution that the Company will pay these expenses."

 

I don't see any room in that to refuse to accept a Member's written Notice.

 

 

[David Isaac]

Clause 27 from the Constitution says:"27 Members’ resolutions and statements

 

"27.1 Where the Company has called for resolutions, any current Member with voting rights may give: (a) written notice to the Company of a resolution they propose to move at the general meeting (Members’ resolution), and/or (b) a written request to the Company that the Company must make available to its Members a statement about a proposed resolution or any other matter that may properly be considered at a general meeting (Members’ statement).

 

"27.2 A notice of a Members’ resolution must set out the wording of the proposed resolution and be signed by the Members proposing the resolution.

 

"27.3 A request to distribute a Members’ statement must be given to the Company at least seven (7) days prior to a general meeting and set out the statement to be distributed and be signed by the Members making the request.

 

27.4 Separate copies of a document setting out the notice or request may be signed by Members if the wording is the same in each copy.

 

"27.5 If the Company has been given notice of a Members’ resolution under Clause 27.1(a), the resolution must be considered at the general meeting for which the resolution was called.

 

27.6 This Clause does not limit the right that a Member has to propose a resolution at a general meeting under the Corporations Act.

 

"28 Company must give notice of proposed resolution or distribute statement

 

"28.1 If the Company has been given a notice or request under Clause 27: (a) in time to give notice of a proposed Members’ resolution or a copy of the Members’ statement to Members with a notice of meeting, it must do so at the Company’s cost, or (b) too late to give notice of a proposed Members’ resolution or a copy of the Members’ statement to Members with a notice of meeting, then the Members who proposed the resolution or made the request must pay the expenses reasonably incurred by the Company in giving Members notice of the proposed Members’ resolution or a copy of the Members’ statement. However, at a general meeting, the Members may pass a resolution that the Company will pay these expenses." Source: Constitution of Recreational Aviation Australia Limited.

 

(a)

 

In the Meeting Notice, did the Company call for resolutions in accordance with Clause 27?

 

If so, then 27.1, 27.2, 27.3, 27.4, 27.5, 27.6, 28, 28.1 apply

 

 

 

If the Company did not call for resolutions, then the member is covered by 27.6 which notes that Clause 27 does not limit the right that a Member has to propose a resolution at a general meeting under the Corporations Act.

 

 

 

There are no 21 day limits mentioned here, just 7 days

 

(b)

 

If it isn't practical for the Company to include the resolution details with8ing the 21 day time limit for announcing the meeting then 28.1 (b) kicks in; the resolution is distributed before the meeting.

 

"28 Company must give notice of proposed resolution or distribute statement

 

"28.1 If the Company has been given a notice or request under Clause 27:

 

(a) in time to give notice of a proposed Members’ resolution or a copy of the Members’ statement to Members with a notice of meeting, it must do so at the Company’s cost, or

 

(b) too late to give notice of a proposed Members’ resolution or a copy of the Members’ statement to Members with a notice of meeting, then the Members who proposed the resolution or made the request must pay the expenses reasonably incurred by the Company in giving Members notice of the proposed Members’ resolution or a copy of the Members’ statement. However, at a general meeting, the Members may pass a resolution that the Company will pay these expenses."

 

I don't see any room in that to refuse to accept a Member's written Notice.

Talk about thread drift ... LOL

 

I assume you didn't read the following ... my underlining ...

 

21 Notice of general meetings

 

21.1 Notice of a general meeting must be given to:

 

(a) each Member entitled to vote at the meeting, and

 

(b) each Director.

 

21.2 Notice of a general meeting must be provided at least twenty-one (21) days before the meeting.

 

21.3 Notice of a general meeting must include:

 

(a) the place, date and time for the meeting (and if the meeting is to be held in two or more places, the technology that will be used to facilitate this),

 

(b) the general nature of the meeting’s business,

 

© if applicable, any resolution that is to be proposed and the words of the proposed resolution, and

 

(d) a statement that Members have the right to appoint a proxy.

 

 

[coljones]

Talk about thread drift ... LOLI assume you didn't read the following ... my underlining ...

 

21 Notice of general meetings

 

21.1 Notice of a general meeting must be given to:

 

(a) each Member entitled to vote at the meeting, and

 

(b) each Director.

 

21.2 Notice of a general meeting must be provided at least twenty-one (21) days before the meeting.

 

21.3 Notice of a general meeting must include:

 

(a) the place, date and time for the meeting (and if the meeting is to be held in two or more places, the technology that will be used to facilitate this),

 

(b) the general nature of the meeting’s business,

 

© if applicable, any resolution that is to be proposed and the words of the proposed resolution, and

 

(d) a statement that Members have the right to appoint a proxy.

Where will I find the proxy paper¿

 

 

[David Isaac]

Where will I find the proxy paper¿

33.4 An appointment of proxy (proxy form) must be in the form prescribed by the Company and must be signed by the Member appointing the proxy and must contain:

 

(a) the Member’s name and address

 

(b) the Company’s name

 

© the proxy’s name or the name of the office held by the proxy, and

 

(d) the meeting(s) at which the appointment may be used.

 

 

 

33.5 The proxy form must be delivered to the Company at its registered address or the address (including an electronic address) specified in the notice of the meeting and must be delivered to the Company at least 48 hours before the meeting.

 

 

[turboplanner]

Talk about thread drift ... LOLI assume you didn't read the following ... my underlining ...

 

21 Notice of general meetings

 

21.1 Notice of a general meeting must be given to:

 

(a) each Member entitled to vote at the meeting, and

 

(b) each Director.

 

21.2 Notice of a general meeting must be provided at least twenty-one (21) days before the meeting.

 

21.3 Notice of a general meeting must include:

 

(a) the place, date and time for the meeting (and if the meeting is to be held in two or more places, the technology that will be used to facilitate this),

 

(b) the general nature of the meeting’s business,

 

© if applicable, any resolution that is to be proposed and the words of the proposed resolution, and

 

(d) a statement that Members have the right to appoint a proxy.

Yes, I did read the following.

 

The clause I quoted clearly points out how a request, which is not in time for the 21 day Notice point, is to be handled.

 

The applicable resolutions sent out with the Notice of Meeting would be those in hand at the Notice send out.

 

As someone mentioned earlier, you have to get a Notice of a Meeting to know there's one on, and you may well decide to submit a resolution in response to something in the Notice.

 

You can do this via clause 27 right up to the meeting to the end point where the Company can no longer reasonably deliver the resolution(s) to all members prior to the meeting.

 

 

[David Isaac]

Yes, I did read the following.The clause I quoted clearly points out how a request, which is not in time for the 21 day Notice point, is to be handled.

The applicable resolutions sent out with the Notice of Meeting would be those in hand at the Notice send out.

 

As someone mentioned earlier, you have to get a Notice of a Meeting to know there's one on, and you may well decide to submit a resolution in response to something in the Notice.

 

You can do this via clause 27 right up to the meeting to the end point where the Company can no longer reasonably deliver the resolution(s) to all members prior to the meeting.

I don't think that is correct Tubz. Neither is it fair or equitable to not give ALL members 21 days notice of any resolution especially if it involves significant issues and I think you will find the 'model rules' require a company to give all members 21 days notice of a resolution no matter what the individual constitutions state ... not to mention Corporations law.

You should not read clause 27 in isolation of clause 21.

 

 

[kasper]

Where will I find the proxy paper¿

There is no proxy for drafted and issued by the RAAus under this constitution - confirmed by calling RAAus prior to drafting my proxy that complies with the requirements set out in the Constitution as to elements and timing.

 

 

[turboplanner]

I don't think that is correct Tubz. Neither is it fair or equitable to not give ALL members 21 days notice of any resolution especially if it involves significant issues and I think you will find the 'model rules' require a company to give all members 21 days notice of a resolution no matter what the individual constitutions state ... not to mention Corporations law.You should not read clause 27 in isolation of clause 21.

I can understand 21 days notice of a Meeting; which allows people to make arrangements to travel etc.

 

However if you're suggesting that members will need 21 days to make their mind up I would suggest a cattle prod or two.

 

Clauses 27 and 21 are not co-dependent, Clause 27 clearly shows the pathway.

 

You said not to mention Corporations law, but can you point to something which would overturn Claus 27 in this Constitution.

 

 

[kasper]

I don't think that is correct Tubz. Neither is it fair or equitable to not give ALL members 21 days notice of any resolution especially if it involves significant issues and I think you will find the 'model rules' require a company to give all members 21 days notice of a resolution no matter what the individual constitutions state ... not to mention Corporations law.You should not read clause 27 in isolation of clause 21.

The problem is that the Constitution as written allows a member resolution under 27 and 28 after the 21 day notice period and SPECIFICALLY allows for that communication to members to be at the cost of the member putting the resolution forward - it is impossible to read our Constitution as requiring 21 days for ALL resolutions and have any legitimacy to the clauses 27 and 28.

In addition the fact that from a procedural timing point of view the 21 days for Member Resolutions TO RAAus AND the 21 days FROM RAAus to members creates an impossibility WAS noted to the former board on the draft and I was ignored.

 

And the fact that the 21 days FROM RAAus to members can't be complied with on the 21st day due to weekends is also a problem noted to them and ignored.

 

What SHOULD be in there is:

 

Member resolutions to be communicated at RAAus cost to member should have

 

1. a requirement that RAAus notify the members of the call for them 48 days before the meeting

 

2. all resolutions to be with RAAus 26 days before meeting

 

etc

 

All of this if properly stepped through would have avoided the situation where for admin reason (in part) the board are ignoring the Constitution.

 

 

[David Isaac]

The problem is that the Constitution as written allows a member resolution under 27 and 28 after the 21 day notice period and SPECIFICALLY allows for that communication to members to be at the cost of the member putting the resolution forward - it is impossible to read our Constitution as requiring 21 days for ALL resolutions and have any legitimacy to the clauses 27 and 28.In addition the fact that from a procedural timing point of view the 21 days for Member Resolutions TO RAAus AND the 21 days FROM RAAus to members creates an impossibility WAS noted to the former board on the draft and I was ignored.

 

And the fact that the 21 days FROM RAAus to members can't be complied with on the 21st day due to weekends is also a problem noted to them and ignored.

 

What SHOULD be in there is:

 

Member resolutions to be communicated at RAAus cost to member should have

 

1. a requirement that RAAus notify the members of the call for them 48 days before the meeting

 

2. all resolutions to be with RAAus 26 days before meeting

 

etc

 

All of this if properly stepped through would have avoided the situation where for admin reason (in part) the board are ignoring the Constitution.

Agreed,

So lets draft some resolutions to fix it.

 

 

[David Isaac]

I can understand 21 days notice of a Meeting; which allows people to make arrangements to travel etc.However if you're suggesting that members will need 21 days to make their mind up I would suggest a cattle prod or two.

Clauses 27 and 21 are not co-dependent, Clause 27 clearly shows the pathway.

 

You said not to mention Corporations law, but can you point to something which would overturn Claus 27 in this Constitution.

NO ... because I don't have time, I am supposed to be finishing reports and invoicing before we go on a holiday to Sth Oz tomorrow and if Shirley catches me on this forum I am dead meat . LOL.

 

 

[turboplanner]

NO ... because I don't have time, I am supposed to be finishing reports and invoicing before we go on a holiday to Sth Oz tomorrow and if Shirley catches me on this forum I am dead meat . LOL.

I was going to write something but I can't stop laughing.

 

 

[coljones]

33.4 An appointment of proxy (proxy form) must be in the form prescribed by the Company and must be signed by the Member appointing the proxy and must contain:

(a) the Member’s name and address

 

(b) the Company’s name

 

© the proxy’s name or the name of the office held by the proxy, and

 

(d) the meeting(s) at which the appointment may be used.

 

 

 

33.5 The proxy form must be delivered to the Company at its registered address or the address (including an electronic address) specified in the notice of the meeting and must be delivered to the Company at least 48 hours before the meeting.

I am still waiting for the agenda and proxy form to turn up. Telstra sends me these. Isn't RAA playing with the big boys now? I think that RAA has to stop thinking about a flying as an excuse to hold a meeting when in fact they should be thinking that a meeting could be used as an excuse to hold a flying. If they don't want my resolutions moving receipt of the Annual Accounts and the Auditors report thereon and the other one thanking the board then they will have to wait.

 

The problem is that the Constitution as written allows a member resolution under 27 and 28 after the 21 day notice period and SPECIFICALLY allows for that communication to members to be at the cost of the member putting the resolution forward - it is impossible to read our Constitution as requiring 21 days for ALL resolutions and have any legitimacy to the clauses 27 and 28.In addition the fact that from a procedural timing point of view the 21 days for Member Resolutions TO RAAus AND the 21 days FROM RAAus to members creates an impossibility WAS noted to the former board on the draft and I was ignored.

 

And the fact that the 21 days FROM RAAus to members can't be complied with on the 21st day due to weekends is also a problem noted to them and ignored.

 

What SHOULD be in there is:

 

Member resolutions to be communicated at RAAus cost to member should have

 

1. a requirement that RAAus notify the members of the call for them 48 days before the meeting

 

2. all resolutions to be with RAAus 26 days before meeting

 

etc

 

All of this if properly stepped through would have avoided the situation where for admin reason (in part) the board are ignoring the Constitution.

No, only allowing 48 hours for members to respond to a proposal is not fair as on contentious issues there would be the need to arrange attendance or to instruct proxies and submit them. IMHO the agenda, the accounts (full year or 6 months), all proposals and the proxy forms should be in the hands of the members at least 14 days prior to the meeting, subject to the act. The notice of meeting should be some time in advance to permit the proposals to be in the hands of the secretary, for vetting, collation etc, and in sufficient time to get through Australia Post and into the hands of members as required. Lack of notice and lack of agenda is a fraud on the rank and file.

 

 

[facthunter]

To treat members properly NOTICE of agenda items (other than the usual reports) for the meeting should be in their hands at a "reasonable" time prior to the notified time of the specific meeting. This process allows them to fully prepare material to be part of the discussion. The agenda item comes up for discussion and amendments etc are accepted (if in order. An amendment which is the negative of a resolution is out of order normally) and the matter is voted on when the debate is closed by the chair or by resolution from the floor. IF other resolutions are later accepted for inclusion on the agenda, prior to the meeting or even at the meeting how are members given the required minimum notice under the rules to argue and debate the matter. If you allow this Gazumping the members is likely. Nev

 

 

[David Isaac]

A resolution put to meeting of members under the notice provisions of the constitution cannot be amended at the meeting; It either succeeds or fails. That is why you need to put carefully considered resolutions with good explanations with due notice if you expect them to be understood clearly and passed by those present or by proxy. Put up a bad resolution that doesn't have good support or good explanations and watch the proxies come out of the woodwork and rightly so.

 

This is particularly so when you propose a special resolution to change the constitution or an organisation's rules.

 

 

[David Isaac]

I can understand 21 days notice of a Meeting; which allows people to make arrangements to travel etc.However if you're suggesting that members will need 21 days to make their mind up I would suggest a cattle prod or two.

Clauses 27 and 21 are not co-dependent, Clause 27 clearly shows the pathway.

 

You said not to mention Corporations law, but can you point to something which would overturn Claus 27 in this Constitution.

Hi Tubz,

Shhh, Shirley is not watching ...

 

I found this on the ASIC website about model rules. It seems that 21 days is required at least for Special resolutions.

 

http://www.asic.gov.au/for-business/changes-to-your-company/company-resolutions/

 

"Company resolutions

 

A resolution is the formal means by which decisions are made by a meeting of company members. There are two types of resolutions: ordinary and special. The Corporations Act 2001 (the Corporations Act) requires many decisions that affect a company to be made by resolution, some of which must be by special resolution. In addition, the constitution of a company may also require that other decisions be made by either an ordinary resolution or a special resolution.

 

 

 

General requirements for passing resolutions

 

 

 

The general requirements under the Corporations Act for the passing of any resolution are:

 

• The resolution—
   
   
  is passed at a meeting, which is properly convened and satisfies the quorum requirements, and
   
   
  
• is entered in the books kept by the company for that purpose within one month after the meeting is held.
   
   
  

 

 

[*]The minutes must be signed by the chair of the meeting at which the resolution was passed or by the chair of the next meeting.

 

Non-compliance with these requirements could invalidate the outcome of the resolution.

 

 

 

Voting on resolutions

 

 

 

Where a company has share capital, a member has one vote for each share held subject to any rights or restrictions attached to any class of shares.

 

 

 

For a company without share capital, every member is entitled to one vote. The chair has a casting vote, and if a member, also a member’s vote.

 

 

 

Proxy documents for members of listed companies

 

 

 

A notice of meeting for a meeting of members of a listed public company:

 

 

• must specify a place and a fax number; and
   
   
  
• may specify an electronic address for the purposes of receipt of proxy appointments.
   
   
  

 

 

Listed companies are required to record the total number of proxy votes exercised validly and how those votes were exercised in the minutes of meeting of members, in respect of each resolution in the notice of meeting.

 

 

 

These requirements apply despite anything in the company’s constitution.

 

 

 

Ordinary resolutions

 

 

 

Ordinary resolutions are not specifically defined in the Corporations Act and require only a simple majority to pass (i.e. more than 50% of the members present at the meeting, either in person, or by proxies, if allowed by the constitution).

 

 

 

Some of the matters on which an ordinary resolution is sufficient are:

 

• election/re-election of directors
   
   
  
• appointment of an auditor
   
   
  
• acceptance of reports at the annual general meeting
   
   
  
• strategic, commercial decisions
   
   
  
• increase or reduction in the number of directors
   
   
  
• passing a board limit resolution (for public companies)
   
   
  

 

 

Special resolutions

 

 

 

Calling a meeting of members of a company or registered scheme

 

 

 

The notice of meeting sent to members advising them of the meeting must set out an intention to propose the special resolution and state the special resolution. This is in addition to the other information required to be provided in a notice of a meeting including the place, date and time of the meeting, the general nature of the meeting’s business and information about proxy votes where applicable.

 

 

 

Generally, notice of a meeting to members of a company must be given 21 days before the meeting is to be held. A listed company must give a least 28 days notice. Shorter notice can be given where members with at least 95% of the votes that may be cast at the meeting agree beforehand. However, the provision for shorter notice does not apply to a resolution to remove or appoint a director or to remove an auditor.

 

 

 

Notice of a meeting to members of a registered scheme must be given at least 21 days before the meeting is to be held. Registered schemes can’t give shorter notice.

 

 

 

Passing a special resolution when holding a meeting

 

 

 

At least 75% of the votes cast by members entitled to vote on a special resolution must be in favour of the resolution for it to be passed. However, it will not always be necessary for the members to physically meet in order to consider the resolution.

 

 

 

Passing a special resolution without holding a meeting

 

 

 

A proprietary company with more than 1 member can pass a resolution by circulating a document and having all the members entitled to vote sign a statement on the document that they are in favour of the resolution. Where two or more people hold shares together, each member of a joint membership must sign. The resolution is passed when the last member signs (i.e 100% of members entitled to vote agree). A ‘circulating resolution’ cannot be applied to a resolution to remove an auditor. The 75% requirement for votes in favour of the special resolution only applies when a company holds a physical meeting.

 

 

 

A proprietary company with only one director who is also the only member of the company can pass a resolution just by signing a document setting out the resolution.

 

 

 

Advising us about special resolutions

 

 

 

In most cases, the passing of a special resolution must be lodged with us on Form 205 Notification of resolution or Form 2205 Notification of resolutions regarding shares. ....."

 

 

[kaz3g]

NO ... because I don't have time, I am supposed to be finishing reports and invoicing before we go on a holiday to Sth Oz tomorrow and if Shirley catches me on this forum I am dead meat . LOL.

Shirley not?

 

Kaz

 

 

[David Isaac]

Shirley not?Kaz

Ha ha ha Kaz ... she is out LOL.

Hope you are doing well m'dear and that Auster as well.