Most (if not all) club constitutions will only allow clubs to discipline members who engage in unacceptable conduct (such as conduct which is unbecoming of a member or prejudicial to the interests of the club) by conducting disciplinary proceedings against those members.
What are common issues with disciplinary proceedings?
We have assisted many clubs with disciplinary matters. A number of clubs have raised concerns and issues with disciplinary proceedings, including that:
- the process of conducting disciplinary proceedings is time consuming, cumbersome and costly.
- disciplinary matters are sometimes seen as operational matters which should be dealt with by the CEO and not the Board.
- disciplinary proceedings can distract the Board from its strategic role;
- a number of members do not attend their disciplinary hearing.
Put simply, there are many clubs that would like to discipline members for unacceptable conduct without having to commence disciplinary proceedings against members.
How can clubs deal with disciplinary matters in a simpler way?
A possible solution is for club boards to grant their CEOs specific powers to deal with certain types of disciplinary matters (in particular, minor matters) and to issue certain penalties without the need for formal disciplinary proceedings. Whether or not this is appropriate is a matter for the individual club boards to determine after discussions with their CEO and senior management.
For example, clubs could (in most cases, by an amendment to the constitution) implement the following procedure.
- The CEO (or his or her delegate) can issue a penalty to any member who has engaged in unacceptable conduct (for example, a suspension of membership for say three months, a year or even longer).
- If the CEO exercises the above power, then he or she must notify the member;
- of the penalty imposed by the Club (for example, that the member has been suspended and the length of their suspension);
- that the member can “appeal” the CEO’s decision and have the matter dealt with by the Board by way of formal disciplinary proceedings;
- if the matter is “appealed”, the Board will deal with the disciplinary matter and make a final decision on the disciplinary matter, including the penalty to be imposed on the member (if any); and,
- If a member elects to have their disciplinary matter dealt with by the Board, the Club will need to conduct formal disciplinary proceedings against the member and the decision of the Board will be final.
What are the benefits of granting greater disciplinary powers to the CEO?
The benefits of granting greater disciplinary powers to the CEO are that:
- clubs have greater flexibility when disciplining members;
- the onus is placed on the member to take active steps to have their disciplinary matter dealt with by the Board as opposed to this being the default position; and,
- many disciplinary matters will not require formal disciplinary proceedings.
However, this approach means that members can still elect to have their disciplinary matter determined by the Board if they wish to do so.
Furthermore, these powers do not limit or otherwise restrict clubs from exercising their rights to remove patrons from the Club’s premises in accordance with section 77 of the Liquor Act.
How can clubs grant their CEO greater disciplinary powers?
As indicated above, club constitutions generally only allow clubs to discipline members by commencing disciplinary proceedings against them.
Accordingly, clubs must amend their constitutions to include provisions in their constitutions which, amongst other things, confer greater disciplinary powers to the CEO.
An amendment to a club constitution requires a special resolution to be passed by eligible members at a general meeting (including an Annual General Meeting).
After (but preferably before) a club amends its constitution to confer on the CEO greater disciplinary powers, the Board and CEO should discuss the framework for the use of these enhanced powers. For example, the CEO may only be authorised by the Board to use the disciplinary powers in respect of certain types of offences (for example, low level offences) or after consulting with a senior director of the Club.
If clubs grant their CEO greater disciplinary powers does this mean that boards cannot conduct disciplinary proceedings?
No. There may be specific types of matters that the Board wishes to deal with itself (as opposed to the CEO exercising a right to discipline members).
Accordingly, if there is a matter that the Board wishes to deal with, it can simply instruct the CEO to commence disciplinary proceedings against the member (as opposed to the CEO exercising their right to discipline members).
Further information and contact details
If you wish to discuss the contents of this article or would like us to review and amend your constitution, please contact any member of the Clubs team on (02) 8251 7777 or by email:
Bruce Gotterson: b.gotterson@pigott.com.au
Ray Travers: r.travers@pigott.com.au
Tony Johnston: t.johnston@pigott.com.au
John Ralston: j.ralston@pigott.com.au
Michael McCluskey: m.mccluskey@pigott.com.au
Julian Hawkins: j.hawkins@pigott.com.au
This publication is produced by Pigott Stinson. It is intended to provide general information only. The contents of this publication do not constitute legal advice and should not be relied upon as legal advice. Formal legal advice should be sought from us in respect of the matters set out in this publication. Liability limited by a scheme approved under Professional Standards Legislation.