4. External grievance procedures
Most grievances and disputes can be resolved using internal informal and formal procedures. In some cases, however, it might be necessary to use a process outside the association to resolve a matter.
An application can be made to a court to settle certain disputes, for example, where a committee member has mismanaged association funds. However, resolving disputes through court action is likely to be costly and may not have the desired outcome. Courts are generally reluctant to interfere with the internal management of associations, particularly where the members have the power to resolve matters themselves.
4.2 Consumer Protection
Consumer Protection’s role is to ensure compliance with the Act. Associations, or more correctly, committee members, not complying with the Act can be investigated and prosecuted. Under certain circumstances, Consumer Protection can also initiate proceedings to have an association wound up or cancel an association's incorporation.
If there has been a breach of the Act, a formal complaint can be made to Consumer Protection. For example, if a committee member refuses to make the members' register available for inspection.
Consumer Protection will only investigate where it appears a possible breach of the Act or the Regulations has occurred.
The following details should be included in the complaint:
- the name of the association and its registration number (if known);
- a postal address for the association;
- full details of the alleged breach of the Act;
- any documents that support the allegation; and
- the name, address and contact of the person making the complaint.
Consumer Protection will not:
- Investigate a breach of the association’s rules. It is not Consumer Protection’s role to resolve internal membership disputes concerning the application of the rules of association that are outside the requirements of the Act. The Association must deal with such matters using the internal or external grievance procedures. Examples of matters which need to be dealt with by members include the admission or expulsion of members, renewal of memberships, the conduct of committee meetings and the inspection of records other than those referred to under the Act, being the register of members, rules and list of office bearers.
- Provide interpretation of the association’s rules. Consumer Protection cannot adjudicate on what an association’s rules mean. This should be dealt with as provided under the rules or otherwise is for members to determine.
- Investigate disputes between individual members of the association or an individual and the association. Consumer Protection cannot adjudicate on disputes concerning individual grievances.
4.2.1 What to expect
Consumer Protection assesses all complaints against the requirements of the Act and considers whether there is sufficient information and documentation provided to investigate the complaint further. Priority is given to dealing with complaints according to the seriousness of the conduct identified. Consumer Protection will send acknowledgment of the complaint and may request further information and documentation from the person raising the concerns.
An association will always be given an opportunity to comment on any allegations made in a complaint.
Consumer Protection has considerable investigative powers and provided that the circumstances indicate that there has been a failure to comply with the Act, can:
- order the production of association’s records;
- require an association to be audited;
- direct the association to comply with the Act;
- cancel an association in certain circumstances; and
- in the most extreme case can apply to the Supreme Court to have an association wound up.
Consumer Protection can also prosecute individual committee members if they have:
- failed to take reasonable steps to ensure the association complies with its obligations under the Act; or
- failed to declare when they have a pecuniary interest and abstain from deliberating or voting.
Consumer Protection can also prosecute anyone who knowingly presents false or misleading documents in any material respect to Consumer Protection or to a meeting of members.
Be aware that even in cases where it appears after investigation that there has been a breach of the Act, if the breach does not appear to be deliberate or fraudulent and the association agrees to comply with its obligations in the future, Consumer Protection may form the view that formal action is not in the public interest.
4.3 Professional dispute resolution services
An association can make use of professional mediation and dispute resolution services that are available. These services provide intervention in the form of negotiation, mediation and arbitration. This may avoid court action and the services are generally less time consuming and costly.