Resolving complaints and disputes

During the life of an association there are bound to be times when a person has a concern about the running of the association. This chapter outlines some processes available to the committee and members for dealing with disputes.

Managing internal grievances and disputes as well as complaints from the public is an important task of the management committee. The committee has a duty to act in the best interests of the association and this may require they make decisions for the greater good of the association in achieving the objectives of the association.

Most concerns are resolved by simply contacting the appropriate person in the association or by discussing the issue with other members. Failure by an association to allow its members to be heard and ensuring their concerns are understood and given due consideration can result in relatively minor issues escalating.

Key Points

  • Disputes do happen in associations and it is advisable to have a simple procedure in place for resolving complaints.
  • Members and the committee share the responsibility for ensuring that the association operates in accordance with its rules.
  • Most concerns can be resolved through informal processes and members are encouraged to discuss their issues with the appropriate person within the association.
  • All incorporated associations are required to include a dispute resolution process in the rules which may be required to resolve more complex or serious matters.
  • The aim of a dispute resolution process is to reduce disharmony in an association and to provide a fair, consistent and timely approach to dealing with complaints and disputes.

Sources of disputes

Concerns about an association may be brought to a committee’s attention by:

  • members of an association;
  • employees of the association; or
  • external clients or organisations. 

Grievances arising from within the membership may relate to a range of issues including the conduct of individual members, the functioning of the management committee, how the association operates, membership and non-compliance with the rules of association.

In addition to these forms of internal grievances, employees, volunteers or members may initiate complaints against associations under specific Acts of Parliament governing such areas as employment, discrimination and incorporation/governance.  For example, a discrimination complaint may be possible under the Equal Opportunity Act 1984.

Where associations deal with the public by offering any form of service, there is also the potential for external grievances to arise for example, over the extent or quality of the service provided.

Enforcing the rules of an association

The rules of an incorporated association outline how the organisation will operate and manage its affairs. The rules represent a binding agreement between the association and its members.

Members and the committee share the responsibility for ensuring that the association operates in accordance with its rules. Disputes about the interpretation or application of the rules should be dealt with by the association using the internal dispute resolution processes.

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).

Dispute resolution procedures

In many cases, associations can resolve complaints and disputes internally and successful outcomes are usually achieved when the association has a well-publicised and simple procedure. The primary purpose of a dispute resolution process is to set out the steps to be followed in dealing with a grievance or dispute internally and to ensure a fair and timely response.  

The process does not need to be complex and a fair process can often avoid having to resort to more drastic measures such as calling general meetings or the suspension/expulsion of members. Given the potential expense, not just in monetary terms, but in time and effort as well, it is worth taking the time to develop a dispute resolution process that encourages people to use it as a first step.

Some disputes may be subject to procedures set out in existing awards, employment agreements or contracts.  This may apply to internal disputes either in conjunction with, or instead of a dispute resolution procedure. 

What to include in the rules

The Act requires that an association’s rules include a procedure for dealing with any dispute under or relating to the rules.  It is up to the committee and members to decide on the procedure to be adopted but care should be taken to make sure that the chosen process gives each party to the dispute an opportunity to be heard on the matter and ensure that there is an unbiased decision maker.

At a minimum it is recommended that the rules include procedures that:

  1. inform the member or association of the complaint including details of the issues along with copies of any supporting materials. Information about the possible outcomes of the complaint should also be included;
  2. invite the member or association to respond to the issues raised (this may include opportunities to make written submissions or speak at a meeting called to decide the issue);
  3. inform the respondent of the outcome of the complaint and any consequences or penalties; and
  4. inform the respondent of any rights to appeal the outcome and how these might be exercised.

If an association is unsure how to develop its own process it may wish to adopt the procedure included in the Model Rules. Rules 17 to 25 of the Model Rules outline the procedure for dealing with disputes and include:

  • a requirement for the parties to try and resolve the dispute themselves first;
  • powers for the committee to consider and determine the matter if a resolution cannot be reached by the parties; and
  • opportunity for a mediator to be appointed to assist in the matter. 

Resolving disputes internally

Informal communication is the most common method for resolving a problem. However if informal discussions fail, then it may become necessary to use the formal dispute resolution process outlined in the association’s rules.

Try to resolve the concern informally

  • The person making the complaint approaches the chairperson or a committee member to discuss their concerns and outline the outcomes being sought. It is often useful to put this information in writing to help ensure the issue is clearly explained.
  • The person receiving the concern may need to obtain further information in order to evaluate the issues and explore options for resolution. They may be able to provide an explanation or direct the person to additional information which addresses the concern. Alternatively, the committee might decide that the issue needs further consideration and look to make changes to how the association conducts itself.
  • The person making the complaint should be advised of their right to use the dispute resolution process in the rules if they are not satisfied with the decision and outcome of the informal process.

Using the process in the rules

It is important that the members and committee utilise the association’s dispute resolution procedures where the issues cannot be resolved informally. All incorporated associations are now required to ensure their rules contain a procedure for dealing with internal disputes involving members and the association (associations have until 1 July 2019 to update the rules to meet this requirement).

If the association’s rules don’t include a dispute resolution process yet the committee may wish to consider using the procedure in the Model Rules as an interim measure. This is better than delaying the complaint until the rules are updated but the agreement of both parties should be obtained first if this approach is taken.

If the dispute resolution processes in the rules are exhausted and the complaint remains unresolved it may be necessary for the parties to explore other options such as making an application to the State Administrative Tribunal for orders or calling a special general meeting of the membership.

Calling a special general meeting

The rules of an association may provide for members to call a special general meeting of the association. The rules will set out the minimum number of members that need to sign a request for a general meeting and you should also check the rules of the association to see if there are any specific timeframes to be followed. The request must state the purpose of the special meeting.

Upon receipt of a request for a special general meeting the committee should confirm that it meets the requirements of the rules and make the necessary arrangements to convene the meeting. If the request is deficient in some way, the committee should advise the requesting member of the deficiencies and provide guidance on the steps to be taken to correct the request.

If there is a collective grievance or dispute, the group should nominate a representative to present the grievance and represent the group at the meeting. Normal meeting procedures should be followed at the special general meeting in accordance with the rules of association (see Meetings).

Removal of a management committee member

Grievances and disputes may arise as a result of the conduct of one or more management committee members.  For example, a committee member may not be acting in the best interests of the association or a committee member may be causing discontent amongst the committee, making it difficult for the management committee to operate.

An association may generally remove a committee member by means of a resolution in a general meeting or a special general meeting.  If a member is to be removed, the chairperson (unless the chairperson is the one being removed, then the deputy chairperson), must inform the member of the motion to have the member removed and the reasons for the removal.

The committee member must be given the opportunity to submit a written response, giving reasons why he or she should not be removed.  The response is sent to all the members of the association or is read at the general meeting.  The resolution is put to the meeting and voted on.  The process for removing a committee member should be set out in the rules of the association.

The association should then take steps to appoint another member. This may be done by a vote of the members at the same meeting or the committee may fill the position using the casual vacancy process (the procedure to be used will depend on the association’s rules).

Suspension and expulsion

In some situations, it may be necessary for an association to suspend or even expel a member including a member of the management committee.  Members may be expelled for a number of reasons such as serious criminal conduct, failing to comply with the rules of the association and bringing the association into disrepute.  Expulsion should be seen as a last resort, when all other options to resolve the problem have been exhausted. 

The process for suspension and expulsion are normally set out in the rules of association and must be followed precisely.  Courts have on occasion ruled expulsions invalid where the process is not followed.  As a matter of natural justice, the member being suspended or expelled must be given a fair opportunity to be heard (to state their case) and to appeal against a decision.

Important information for members and committees

As a suggestion when working to resolve a complaint or dispute within an association (whether informally or using the dispute resolution process), committees and members should be mindful of the following:

For members

  • The committee should be given an opportunity to respond to an issue before the concerns are raised with external parties.
  • It is important to understand that committees are generally made up of volunteers with limited time and resources available to them. Be realistic about the timeframes in which your concerns can be dealt with.
  • If you intend to raise concerns or allegations about an individual you should always make sure you have some proof to support your claims.
  • Be respectful in your discussions and communications with the committee and association.

For committees

  • Members have the right to raise concerns about their association and seek the support of other members to effect change. Members should not be punished for speaking up about an issue.
  • The committee have a responsibly to ensure that complaints are given proper consideration and the process used to resolve the dispute is fair and unbiased.
  • If the concerns relate to a particular member of the committee it is not appropriate for that person to act as the decision maker for the complaint.
  • Complaints should be responded to in a timely manner and any agreed timelines should be followed.

Be respectful in your discussions and communications with the member or complainant.

Seeking external assistance

Most grievances and disputes can be resolved using internal procedures. Occasionally, these processes fail and a dispute can only be resolved using a process outside the association, usually by the Courts or an external mediator.

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.

State Administrative Tribunal

Where a dispute between individual members or members and the association relating to the rules cannot be resolved through the dispute resolution process as set out in the rules, an application may be made for the dispute to be heard by the State Administrative Tribunal (the SAT).

The SAT has powers to:

  • refer the dispute for mediation;
  • give orders:
    • directing for the rules to be followed.
    • declaring and enforcing the rights and obligations between members.
    • declaring and enforcing the rights and obligations between the association and member.

There are fees associated with applications to the SAT and more information about the application and hearing processes can be found at www.sat.justice.wa.gov.au or by calling 1300 306 017.

You can also find more information in fact sheets Going to the State Administrative Tribunal and Mediation in the State Administrative Tribunal.

Courts

An application can be made to a court to settle certain disputes, for example, where a committee member has mismanaged association funds.  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. You should seek your own independent legal advice about the avenues available.

Other government regulators

Depending on the nature of the concerns, some government departments may be able to provide assistance or advice. For example if the problem relates to:

If the association receives funding and your concerns relate to matters within the funding agreement you may wish to discuss the matter with the funding body. 

Consumer Protection

Consumer Protection’s role is to ensure associations comply with the Associations Incorporation Act 2015.  If there has been a breach of the Act, a formal complaint can be made to Consumer Protection.  For example, if the association fails to present annual accounts at its Annual General Meeting.

It is highly recommended that members and committees make all reasonable attempts to resolve any complaints themselves, whether informally or through the dispute resolution process in the rules, prior to lodging a formal complaint.

Lodging a complaint

Consumer Protection will only investigate where it appears a possible breach of the Act or the Regulations has occurred and information about what the Department will investigate is also included at the end of this chapter. Anyone thinking of lodging a complaint against an association should read this information carefully before submitting their 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 its internal dispute resolution processes.

  • 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.  If an association is unable to resolve the dispute using its own internal processes some matters may be considered by the State Administrative Tribunal.

If your concerns relate to a potential breach of the Act a Complaint Form for Incorporated Associations may be submitted along with copies of any supporting documents.  

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.

Please note, even in cases where it appears after investigation 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.

Key provisions of the Associations Incorporation Act 2015

If your concerns do not relate to any of the matters listed below Consumer Protection is not able to consider your complaint. Please refer to the other sections of this chapter for information about the avenues available to resolve such concerns.

Meetings

Annual General Meeting to be held within 6 months after the end of the association’s financial year.

s50

Decisions of the committee

Committee members are required to disclose any material personal interests they have in matters being considered at meetings of the Association’s committee.

s42

Disclosed material personal interests to be recorded in the minutes.

s43

Committee member to leave the meeting while the matter is discussed and voted on.

s43

Committee member to disclose their material personal interest to the members at the next general meeting occurring after the relevant committee meeting where the matter was considered.

s42

Committee members and officers have duties to act with care and diligence and in good faith and for a proper purpose. Committee members and officers must not improperly use their position or information to gain an advantage or cause detriment to the association.

s44 - 47

Rules of association

The association keeps an up to date copy of its rules.

s35

Each new member of the association is provided with their own copy of the rules when they join the association.

s36

The rules are made available to members to inspect and copy if requested.

s35

A copy of the rules or any particular part is given to a member, free of charge, if requested.

s36

Changing the rules

Written notice specifying the proposed special resolution(s) to alter the rules and detailing the time and place of the general meeting given to all members in accordance with the rules.

s51

Proposed special resolution(s) passed by 75% majority of members who are eligible to vote at general meeting

s51

Amendments to the rules lodged with Consumer Protection within one month of passing the special resolution

s30

Register of members

The association to keep an up to date register of members

s53

The Register of Members is updated to include any changes in membership within 28 days of the change occurring.

s53

The Register of Members is made available to members to inspect  and copy if requested

s54

A copy of the Register of Members is provided to a member if requested in writing (subject to any requirements to pay a reasonable fee or provide of a statutory declaration).

s56

Accounting records and reporting

Accurate accounting records kept that record and explain the financial transactions

s66

Annual accounts prepared in accordance with the requirements of association’s Tier

s68,71,74

Annual accounts presented to the members at the AGM

s70,73,76

For Tier 2s – The annual accounts are to be reviewed

s72

For Tier 3s – The annual accounts are to be audited

s75

All financial records are to be kept for at least 7 years.

s67

Other record keeping requirements

The association keeps an up to date Record of Office Holders.

s58

The Record of Office Holders is made available to members to inspect and copy if requested.

s58

All records belonging to the association in the possession of an outgoing committee member are returned to the association as soon as practicable after their appointment ceases.

s41