RAAus AGM member resolution - request for proxy

[kasper]

Letter from Michael Linke dated 28 September received today. Following is the verbatim letter - errors as to year of emails and inconsistent capitalization is per the letter received. I will post a comment to this letter in a separate post to this thread - this is the letter:

 

"Dear Mr Sutton

 

I am directed to respond to you by the Chairman of Recreational Aviation Australia Ltd (RAAus) concerning your direction of 18 May 2016 where you stated:

 

"In summary all email addresses held by the company at 1 July, the company website and the member portal section of the company website may not be used by the company to provide any form of notice under the constitution to me as a member of the company."

 

I am today in receipt of your emails dated Friday 23 September 2015 with a time stamp of 8.08pm and 7.40pm. As the emails were received after business hours on Friday after the RAAus office had closed, as it does at 5.00pm each day, and it was a public holiday in Canberra on Monday 26 September. As a result they were not able to be actioned until today.

 

These emails propose a series of resolutions coupled with a member's statement which you have requested are circulated to members.

 

In the August 2016 edition of Sport Pilot (which was mailed to your address as requested as it contained notice of the AGM and called for member resolutions) the following notice was printed:

 

"Any member intending to submit a resolution should do so in writing prior to September 23" Page 7.

 

This date was not selected by accident. This date was selected to ensure our constitutional responsibilities were met. Clause 21 requires 21 days-notice be given to members regarding the holding of a general meeting. Further 21.3© requires any resolution that is proposed fall within this 21 day limit. As your resolutions and note were not received in proper time, being both late and after our pre advertised deadline you gave RAAus no time to circulate these resolutions and note to members within the 21 day limit.

 

For that reason your proposed resolutions cannot be sent to member for the forthcoming AGM. If you wish your resolutions and not to be considered at a future meeting of members you are invited to resubmit them at that time within the timeframes provided by the Constitution.

 

Yours faithfully

 

Michael Linke

 

Chief Executive Officer"

 

 

[kasper]

My issues with the reasons given for rejection of the resolutions and member statement:

 

1. the Constitution does not give the power to the CEO or the Directors to nominate a date for member resolutions being day 23 prior to a general meeting. Whilst it definitely may be administratively more simple and convenient it is not a power that is within the Directors or CEEO. It is 21 days prior to the meeting per the Constitution and and as noted by the CEO they were received on day 22 prior to the nominated date for the AGM.

 

2. the Constitution sections quoted are all about notice of the AGM itself and are NOT the sections that limit timing for Member resolutions which are under 27 and 28 of the Constitution. Under the Constitution EVEN if the resolutions were not provided in time to be included in the AGM notice (they were but even if they had not) they MUST still be put to the members - this is very clearly envisioned in section 28(1)(b):

 

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.

 

The Directors do not have the authority to reject the resolutions at all on a 21 day basis

 

And the Member statement is not even limited to 21 days for Company distribution to members - under 27.3 it's 7 days before the AGM

 

So there you go. My estimation is that the Directors either really have never bothered to READ the Constitution or they really do not wish to have resolutions that are calling for them to be censured to be distributed to members ahead of a meeting because they are not following what are very clear words in the Constitution.

 

Great member organization we have.

 

I am going to call the CEO to raise these with him tomorrow but I expect that the response will be simply no - we have legal advice we are right and you will just have to sue the company - and of course you can't see that advice.

 

 

[Admin]

If your emails were received at 4:55pm they still would not have been acted on as Linke states the office closes at 5pm. Also, it stated the date NOT the time i.e. "prior to 5pm...." therefor to me it is a real cop out and an attempt to find any little thing to not have the issue see the light of day...if they wish to quote the constitution and stand by that then you again are also right as it also does not state a time only "DAYS".

 

I am finished with RAAus much like so many others I have spoken to recently...Linke and Monck have destroyed any passion I had for them

 

 

[terryc]

I'm amazed that they don't know the constitution that they fought so hard for and spent time and money going around collecting yes votes to get it passed.

 

I find it hard to believe these guys. What makes a man misquote the constitution to try to make his point. The other option is that his just plain dumb, I don't think so.

 

 

[bull]

If your emails were received at 4:55pm they still would not have been acted on as Linke states the office closes at 5pm. Also, it stated the date NOT the time i.e. "prior to 5pm...." therefor to me it is a real cop out and an attempt to find any little thing to not have the issue see the light of day...if they wish to quote the constitution and stand by that then you again are also right as it also does not state a time only "DAYS".I am finished with RAAus much like so many others I have spoken to recently...Linke and Monck have destroyed any passion I had for them

You are not alone............

 

 

[01rmb]

I'm amazed that they don't know the constitution that they fought so hard for and spent time and money going around collecting yes votes to get it passed.I find it hard to believe these guys. What makes a man misquote the constitution to try to make his point. The other option is that his just plain dumb, I don't think so.

In my years of consulting I have been amazed by how many dumb decisions are made by people, including many senior execs and board members. The lesson I learnt is never to under estimate the fact that people can be 'just plain dumb'!

 

I believe this to be a case of reading the message they want into the document not reading what it actually says.

 

 

[bull]

Well I for one would like an explanation about this matter from our CEO or board , so to this end I have emailed RAA admin with the following email.and I advise all members concerned by this disreguard of our new constitution to do the same................ .....Dear, sir/madam As a concerned member, member number 012031 it has come to my attention that Michael Linke has miss understood or disregarded the wording of the new constitution of RAA by denying the resolutions put forward by a concerned member {in advance of the required 21DAYS, not hours or times but DAYS]as per the wording of the new constitution that he fought so hard to get passed .As this is a blatant breach of our new constitution i along with many members was wondering if you would be so kind to explain this seamingly attempt to not have his resolutions put forward at the next agm as well as notice to members distributed out to all members ,be this by snail mail or email[which would not cost the quoted $10000 dollars of MEMBERS FUNDS that we entrust to the ceo and board] to be to either" ,1, cover up a breach of our constitution or, 2,To cover up a mistake made by our ceo or ,3, To totally disreguard members wishes afforded to members by your new constitution.A timely answer to my enquiry would be greatly appreciated Thank you, Scott Evans member number 012031 [ps a copy of this email will be distributed via social media to other members for comments]

 

 

[01rmb]

I would contend they have breached member's rights by limiting resolutions to the 23rd September since I still believe the time for a member to propose a resolution is 7 days according to 27.3. Clause 21 is totally for the board to call a general meeting. If the board provides notice of a general meeting at 21 days notice - how could a member provide a member's resolution within the same time frame? That is why there has to be a period of time after the notice of a meeting and the close off time to receive a member's resolution.

 

If ASIC really had any teeth they would surely bite at the board blocking a member's ability to raise a resolution in accordance with the constitution. I would love to see the legal advice that says that is okay!

 

 

[bull]

This morning I was contacted by the CEO Michael Monck by phone about the matter of the resolution notice times and why Kasper,s resolution motions where disallowed. He was very straight forward and helpful and I now have no more questions about this matter,and whole heartedly apologise to the CEO and the board for any perceived blame or improprietry to anyone. I will now publish his reply to all in full here thankyou.

 

www.raa.asn.au

 

www.raa.asn.au

 

 

Hi Scott,

 

Your email has been forwarded to me to respond to as a lot of the staff (including the CEO) are in Narromine putting in considerable effort to ensure that upcoming airshow goes as planned for members. As discussed this email is just a follow up to our chat on the phone. It’s rather lengthy so stick with me!

 

With respect to the topic at hand, Michael Linke has not misinterpreted the constitution. He, and the board, have implemented it in the correct manner and, it is worth noting, in the same way that it has always been implemented.

 

The 21 day requirement is imposed on the company (RAAus) and not the members. Clause 21.1(a) of the constitution compels the organisation to give each member notice of a meeting and clause 21.2 says that this notice must be given “at least twenty-one (21) days before the meeting”. With this in mind it is worth considering the dates of the upcoming meeting and how this clause requires us to act.

 

The meeting is planned for 15 October 2016 which is a Saturday. We hold meetings on a weekend to facilitate the attendance by members despite the fact that staff will have to forego family time and this creates a wrinkle. The preceding Friday, 14 October is one day before the meeting, the Thursday is two days and so forth. This means that 21 days before the meeting is Saturday 24 September. So you can see, meeting our obligations under the constitution immediately means that 21 days notice becomes a minimum of 22 days. That is, in order to meet the minimum notice we are required to give we need to send, in this case, the notice on Friday 23 September 2016. This is not an issue as we are still compliant with the “at least” portion of the constitutional requirement and will meet the timing requirements contained therein.

 

We then need to consider another administrative aspect of this requirement – the receipt of member resolutions. In order to send out notice in the required timeframe we need to have the notice finalised and ready to go prior to that. Receiving a request from a member a few minutes before close of business on that same day would not be reasonable and similarly, requiring members to submit such a request weeks in advance is not reasonable.

 

In light of this, and not knowing how many requests would be received, an administrative decision was made to ask members for their requests a day prior to our obligation. This allows us a full working day to compile the requests and get the notice distributed within the required timeframe. To this end we published many calls asking for such a notice to be sent to us “prior to September 23”. This notice was published on 2 August in the magazine and several times again in subsequent magazines, enews, etc. This amounts to us having given around 7 ½ weeks notice for resolutions to be submitted by members. Making such a request is well within the rights of the board and management.

 

The strategy that was implemented was designed to give members ample time to gather their thoughts and prepare any submissions in order for other members to an equally ample amount of time to consider those submissions. Moreover, this allows other members to have their say on any proposed resolution and have their statement published in accordance with clause 27.3. This clause says that a member who wishes to comment on a proposed resolution that was published 21 days prior to the meeting, can request RAAus to publish their statement but in order to do so, they must make this request 7 days before the meeting.

 

So we have the following:

 

· A call for resolutions – made 2 August and several times after.

 

· Publication of any proposed resolutions – must be at least 21 days prior to the meeting.

 

· Opportunity for members comments – for 15 after the publication of the notice.

 

· Publication of member comments – requests must be made 7 days prior to the meeting.

 

· The meeting itself – voting on any proposed resolution will take place.

 

We only received one set of proposed resolutions for the upcoming meeting and these were received at approximately 8pm on 23 September, well after the office had closed and staff had left for the weekend (many of whom had gone on a short holiday owing to it being a long weekend). Had we sent notice of this resolution to members it would not have been until Tuesday 27 September (Monday was the public holiday) meaning we would have breached members rights by only providing 18 days notice. Perhaps, if the notice had been received before the close of business it could have been accommodated but given it was some hours later, calling staff back from holiday plans was not feasible.

 

There seems to be a conspiracy theory that the board and staff are out to get members and is somehow self serving so at this juncture it is worth considering a few points. I myself am taking time to respond to your email and I don’t get paid for this. In fact it costs me money as I can’t bill my clients for this time. I won’t moan about this but simply mention it to highlight the fact that board members get little, if anything, out of performing this task. The staff, as I mentioned in my opening paragraph, are currently working away from home and their families to coordinate efforts for the upcoming flyin at Narromine. They will give up their weekend in an effort to deliver an event that members have requested. Moreover, on the following weekend they will repeat this exercise and give up another weekend for the general meeting. It seems to me to be quite the contradiction to the paranoia that a select few members display when they level serious allegations against staff and the board.

 

As a final point keep in mind that the process we have followed for the general meeting, the elections that the resolutions relate to and so forth is in keeping with the advice that we have received from professional legal practitioners. While we have had accusations of impropriety made against us, none of these have come from anyone who holds the appropriate qualifications and practising certificates to give such advice. That said, when we do receive comments from members (such as the one you sent in) we do consider it and give it the attention that it deserves. In fact, when we received the late notice of proposed resolutions we sought legal advice as to what action should be taken. Not only did we pay for that advice, we heeded it so as not to impinge on other members rights for the benefit of one.

 

As I noted above, I am open to discussing this matter with you further. Feel free to give me a call or, if you are attending the flyin this weekend, track me down. I’ll be there from tomorrow (again, at personal expense to me) and will be happy to take the time to chat. I’d also ask that if you publish your email then you give me the same right of reply by publishing this response in its entirety in the same forum for all to see and I’ll reserve the right to do the same.

 

I look forward to hearing from you or crossing paths at an airfield sometime soon.

 

Cheers,

 

Mick

 

 

 

 

 

[Geoff13]

Looks simple to me if the proposed resoloutions were so imortant, why leave them to the last minute. We were told prior to 23 Sep, that was obviously to leave time to then follow their constituional obligations.

 

If the resoloutions are worth following, then submit them for the next meeting in a more timely manner. At the moment this appears to me to be a witch hunt wasting board and staff time and as a result our money.

 

 

[jetjr]

So no conspiracy or rampant lawlessness? ASIC may not be a silly as indicated

 

 

[kasper]

Why were the resolutions left so late?

 

1. I was waiting for ASIC to finish looking at the election issues raised with them by me as soon as Mr Monke told me they were going ahead with the elections without regard or compliance with the Constitution - it took them a while to come back with its not right bu you have the ability as a member to go through the constitution to hold them to account

 

2. when I got this back I was 2 days off leaving the country for 5 weeks - my first holiday in 2 years - and my husband rightly wanted me to focus on the holiday and unwinding - so I did

 

3. I planned to do the resolutions whilst on holiday but again husband and holiday were my priority

 

4. the resolutions were provided on day 22 prior to the AGM and no administrative need allows the 21 day limit in the Constitution to be restricted to 23 or more days before

 

And again the RAAus is not by actual living so I did not get to call them today to discuss the letter and Constitution 27 and 28 because I actually had work that pays my bills to do.

 

 

[jetjr]

Not much justification for wasting RAA time and members money.

 

Was also some pretty harsh accusations thrown around too.

 

 

[kasper]

Not much justification for wasting RAA time and members money.Was also some pretty harsh accusations thrown around too.

only a waste if you believe the members have no right to raise a resolution under the constitution that is in relation to the operation of the organization and the application of the constitution.

 

 

[01rmb]

I still defend a member's right to raise a resolution and for the constitution to be followed by all. At best the constitution is poorly worded around the timing for a member's resolution.

 

No conspiracy - just a case of not wishing to see member's rights diminished.

 

 

[Riley]

So no conspiracy or rampant lawlessness? ASIC may not be a silly as indicated

jetjr. I remind you that kasper's points of query were not (and probably won't be) the only areas where RAA has jumped the gun by denying/ignoring member's concerns with either the presentation of the Constitution or content of the Maintenance Manual. In this resolution instance the Board has a pyrric victory but it does little towards espousing new feelings that our higher paid help is looking after our, the member's, interests as opposed to CYA for their apparent bulldozing. Until I see that all member's concerns are being addressed in an efficient and effective manner, I shall remain in the Doubting Thomas box.

 

 

[kasper]

Well having spoken to Mr Monke and Linke today about the reasons for the refusal to distribute the member resolutions and member statement the following is the factual position:

 

1. If you did not provide the member resolution before day 23 before the AGM they were never going to distribute it

 

2. If you did not provide the member statement before day 23 before the AGM they were never going to distribute it

 

3. even when I offered today to pay for the distribution of the member resolution as provided in Constitution 28(1)b it was an absolute no - they will not distribute either the resolutions or the members statement

 

So effectively the Directors have applied Constitution 21.2 to mean they can set 23 days for administrative reasons and Constitution 27.3 allowing 7 days prior to for member statement means nothing because they are ignoring it and 28.1 (b) means nothing because they refuse to accept payment to allow later distribution.

 

There we go. Regardless of how you feel about the merits or otherwise of my resolutions here is a factual situation where the directors are explicitly ignoring the very clear words of the Constitution to remove member powers and rights written into the Constitution.

 

Now the fact that the words of the Constitution concerning 21 days in member resolutions and a 21 day notice of a general meeting was one of the administrative errors that were in the Constitution on and highlit by me more than a year ago - the fact that the first time they actually go to apply the two they find that they need to change the days to for 1 to allow them to meet the other is simply their own drafting coming home to roost.

 

But to apply the 21 days to Constitution 27 and 28 where they are very clearly NOT applicable and to ignore a direct offer to pay for the distribution is just wrong.

 

Again they stated that they have legal advice that they are correct (well why bother having 27 and 28 eh?) and that they would not be distributing anything.

 

They did say that the legal adviser was going to be at the AGM and I did ask them to vise him/her that I will be directly asking for comment and clarification as to how 27 and 28 are ever to operate given the application of the 'rules' this time.

 

Please do not be surprised if there are several points of order raised at the AGM and I am also minded to move a motion to adjourn the AGM when it comes to anything relating to the election and appointment of directors to allow the resolutions properly put to the Company to be distributed and discussed openly ahead of a vote on them.

 

 

[aro]

I would think there is a requirement for a period after the notice of meeting where members can provide their resolutions. The assumption should be that before the notice of meeting is sent out the members are unaware of the meeting - and so cannot be expected to provide resolutions.

 

Otherwise, you need a notice of a notice of meeting, with a defined period for resolutions to be provided before the notice of meeting is sent out.

 

The intent of the constitution seems to be to allow members to notify resolutions after the member receives the notice - which makes sense. That doesn't seem to be the procedure being followed according to the response copied above.

 

 

[David Isaac]

.... Was also some pretty harsh accusations thrown around too.

Agree and if rational heads had been held we could have discussed this in a more constructive manner. However, in fairness to Kasper, this issue has highlighted the constitution needs amendment to tidy up some clearly confusing clauses. The members should stop bitching about it and put up constructive resolutions for the change. We have done it many times before and it is a relatively simple process if you hold a rational head.Michael's letter explains the dilemma and even though the constitution appears to imply that a member resolution can be put to members with less than 21 days notice, I don't think Corporatuions Law permits less than 21 days notice to members of any resolution and rightly so. Corporations Law will always override our constitution. That in fact may have been part of the legal advice.

 

 

[Keith Page]

Agree and if rational heads had been held we could have discussed this in a more constructive manner. However, in fairness to Kasper, this issue has highlighted the constitution needs amendment to tidy up some potentially confusing clauses and the members should stop bitching about it and put up constructive resolutions for the change. We have done it many times before and it is a relatively simple process if you hold a rational head.

The problems were high lighted early in the process. There was a long time before the voting happened to correct the constitution and no interest was demonstrated to correct the problems.

As I have said here many times have the planning correct before we start on the journey none of this correcting on the trip.

 

KP

 

 

[David Isaac]

The problems were high lighted early in the process. There was a long time before the voting happened to correct the constitution and no interest was demonstrated to correct the problems.As I have said here many times have the planning correct before we start on the journey none of this correcting on the trip.

KP

Keith, Constitutions are NEVER set in stone. Our last one had many changes. It is not unreasonable to change ours as needed and it is NOT a major process. The members should just stop bitching and put up the appropriate changes. But put up balanced and proper resolutions or they will not succeed.

 

 

[Keith Page]

Keith, Constitutions are NEVER set in stone. Our last one had many changes. It is not unreasonable to change ours as needed and it is NOT a major process. The members should just stop bitching and put up the appropriate changes. But put up balanced and proper resolutions or they will not succeed.

Why not have it correct to start with?

KP

 

 

[David Isaac]

Why not have it correct to start with?KP

I agree, but I think you mean as correct as possible ... nothing is 'correct' first time that is why there are provisions for change within the constitution. A constitution is a dynamic set of rules that changes as needed and agreed by the members. When there are 10,000 members the differing opinions can be interesting. But the test is fair and equitable for the members and within the restraints of Corporations Law.

 

 

[jetjr]

Casa have been trying to get new regulatory frame work "correct" for decades and billions of dollars

 

Still a mess

 

Is this the approach you prefer?

 

 

[turboplanner]

Agree and if rational heads had been held we could have discussed this in a more constructive manner. However, in fairness to Kasper, this issue has highlighted the constitution needs amendment to tidy up some clearly confusing clauses. The members should stop bitching about it and put up constructive resolutions for the change. We have done it many times before and it is a relatively simple process if you hold a rational head.Michael's letter explains the dilemma and even though the constitution appears to imply that a member resolution can be put to members with less than 21 days notice, I don't think Corporatuions Law permits less than 21 days notice to members of any resolution and rightly so. Corporations Law will always override our constitution. That in fact may have been part of the legal advice.

Must have been a good night up there; members are irrational?