If a striker continually finds himself offside, or a goalkeeper keeps dropping the ball the chances are the coach will drop the player concerned. Yet somehow when it comes to the administration of the game of football the same mistakes can continually be made, and no one is held responsible.
“You can never make the same mistake twice because the second time you make it, it’s not a mistake, it’s a choice,” is a quote attributed to Business Broker Steven Denn, and it is hard to disagree with him.
Football in Western Australia had one of its lowest moments at the end of 2016 with the debacle surrounding relegation and promotion from the State League to the National Premier Leagues of WA. It was a situation that no one wants to see repeated. Therefore one would expect all of the rules and regulations for the coming season to be looked at promptly, adjusted and signed off before the start of the extended new season in 2017; the league has been expanded from 12 to 14 teams. Yet the clubs have apparently been advised that the review will not be completed until late April, when the new NPL season will have already started! Why the delay, and why would the clubs agree to kick off another season before everything is in place and agreed upon?
This does not come as a surprise to many followers of the game, as it is regularly a case of deja-vu when it comes to football in WA.
Take for instance the matter of an Annual General Meeting. In 2016 Not the Footy Show ran a piece titled “Another Fine Mess” which highlighted that Football West had broken the law by failing to hold an Annual General Meeting in the calendar year of 2015, and had lost the right to request an extension.
Incredibly Football West applied for an extension on the 11th of January three days after our article was published and the Australian Securities and Investment Commission (ASIC), who had advised that no extension could be granted now the year had passed, did in fact issue an extension on the 25th of January 2016.
The Corporations Act states in section 250P that an extension can only be granted if “If the company applies before the end of the period within which the company would otherwise be required to hold an AGM, ASIC may extend the period in writing. ASIC must specify the period of the extension.” Football West were bound by the Corporations Act to hold their AGM before the end of the calendar year 2015. They did not apply for an extension until after 2015 had ended, therefore ASIC did not have the power to issue an extension under the rules laid out in the Corporations Act.
After that happening at the end of 2015 who would believe that Football West would then in 2016 make exactly the same mistake again, and not hold an Annual General meeting? Can you remember the quote above? “You can never make the same mistake twice because the second time you make it, it’s not a mistake, it’s a choice.”
A call to ASIC at the start of 2017 confirms that no application for an extension has been lodged at the time of writing, and as they did in 2016 they confirmed that despite holding the 2015 AGM late, and in 2016, Football West were obliged under the Corporations Act to hold their AGM for 2016 before the end of 2016.
No doubt Football West will once again apply late for an extension and no doubt ASIC will break regulation protocols and issue one. The Department of Sport and Recreation will again shrug their shoulders and say that as far as they are concerned there is nothing untoward despite Football West receiving over $2.7million in registration fees from members of the public, and just under half a million from referees. Surely all these people deserve the organisation to adhere to Australian law?
Where the board may feel they have a leg to stand on is the fact that they moved their reporting period for financials to the end of October, rather than as it had been in the past, September. The Corporations Act states that the Accounts must be presented within five months of the end of the financial reporting period. So now they must be presented to the members by the end of February 2017.
Section 250N of the Corporations Act is very clear about the legal situation. This section reads “A public company must hold an AGM at least once in each calendar year and within 5 months after the end of its financial year.” Having requested a legal opinion and spoken to ASIC both parties have advised that the AGM MUST be held in the calendar year, and if the accounts are not ready in that period then a seperate meeting must be convened within that five month period to present the financials. So the Financial Report must now be presented before the end of February 2017 but the AGM must still be held in the calendar year.
This is the second year in a row that no AGM has been held in a calendar year, it is also the second year in a row that no request for an extension has been lodged before the end of that reporting period. This is a serious breach of the corporations Act, not once but twice. Just to show how serious these offences are, the penalty for failing to hold an AGM is a Criminal Act and a fine or three months in prison is the penalty.
It will be interesting to see if anything happens in relation to these breaches.
When the AGM does eventually come around there will be more things for the Members, the Standing Committees and Zone reps to consider, as there should be a complete overhaul of the Board under the rules of the constitution.
Interestingly the new Football West website no longer has the Constitution available, (Lucky we saved a copy) neither does it list the Board members and when they were appointed.
In the Football West Constitution Under “section 10.16 Appointed Directors” it states:
“(c) An Appointed Director hold office for a term of two years or such shorter term as may be determined by the Directors, and subject to approval by the Nominations Committee under article 10.21, is eligible for re-appointment.”
This means that all three appointed Board members must step down. Sherif Andrawes was appointed in July 2012, and should have actually stepped down by now. Rob Mackay was appointed after having served two terms as an elected Board Member in January 2015. Anna Liscia was appointed in 2014.
When we look at the make up of the elected members of the Board, under the constitution half of them must be rotated. Under section 10.7 Rotation of directors it states:
“(a) Despite article 10.6, at the annual general meeting relating to the financial year ended 30 September 2006 and at each second subsequent annual general meeting one-half of the Elected Directors must retire from office.
(b) If the number of Elected Directors is not a whole number which is a multiple of two, the number of Elected Directors is to be rounded down to the next whole number.”
It is important to remember that any AGM held at the start of 2017 will in fact be the one relating to 2016, which falls in that two year cycle.
Ms Janette Spencer comes to the end of her two allowed periods of four years on the Board, so must step down.
Chairman Liam Twigger was also elected in 2008 and to some it may appear that his two terms of four years have passed, and so he must step aside as well, but as he was appointed Chairman in 2013, when Bob Kucera stepped down, he has not served two full terms as Chairman.
Under section 10.12 of the constitution looking at exceptions to the rule when it comes to the stepping down of Directors its states:
“(a) if an Elected Director has served two consecutive terms as a Director but has not served as Chairman, or has served only one of those terms as Chairman, that person is eligible for election as Chairman for one further consecutive four year term. After the end that further term, they may not be elected again as a Director until the second subsequent annual general meeting;”
So if he wishes to stay on as Chairperson, and the Board wish him to hold such a position, Mr Twigger may remain in the role for another four years.
What it would mean however is that the next longest serving member of the elected Board members would have to step down even if they have not reached the end of their second four year term. As the constitution states “one-half of the Elected Directors must retire from office.”
With three Board members having to step aside Deputy Chairman Henry Atturo who was appointed in 2010 would be one who would be forced to step down. Along with him must go one more of the appointed Board members, as there are currently six appointed members.
Mr Lui Giuliani was appointed to the board when Mr Kucera stepped down in 2013 but was only elected at the AGM in 2014 along with Mr Gary Adshead and Mr Jason Petkovic. Some would argue that Mr Giuliani is therefore the one who should step aside, however as it is based on how long each member has served as an elected Board Member, it will come down to who of the three wishes to step aside, or which is voted to leave.
Of course throw into the mix that with three Board members stepping down there must be advertisements for applications for three new Board members to be published, then under the the Constitution due process must be followed:
“(a) A Member or a Director may nominate a person to stand for election as a
Director (Proposer).
(b) Another Member or Director must second the nomination (Seconder).
(c) A nomination must be in a prescribed form as determined by the Company and signed by the Proposer and Seconder and delivered to the Company no later than a date specified by the Company in any year in which an election of Directors will be held in accordance with this Constitution.
(d) The nomination must be accompanied by a statutory declaration made by the nominee confirming that, to the best of their knowledge and belief, they are not disqualified from standing for office as a Director by virtue of anything in article 10.4.”
A Nominations Committee needs to be created and they must vet the applications and if necessary interview those who have been nominated prior to the AGM to ensure that they meet the required criteria, and are not involved with any clubs in Western Australia in any official capacity.
This is yet another reason why the failure to hold the Annual General Meeting in the calendar year is such a major issue. It means that everything is pushed back and opens the game’s governing body to possible legal challenges. Not again many will say. However, sadly it does as any decisions made now, after the past year has come to a close, and Board members terms of office have legally expired, decisions made can be challenged as being unconstitutional.
One has to wonder how twelve months down the track the game finds itself having not learned the lessons of a year ago and has once again not held an AGM. Why have the Standing Committees and Zone Reps not questioned this fact?
We are only three days into 2017, but surely the running of the game has to improve. Hopefully in 2017 more people with an understanding of the legal meaning of a Constitution will find voice or be elected to the vacant positions on the board, and we will find the game, and the various competitions run according to the rules that have been put in place to safeguard both.
To be honest Ashley I don’t believe what the Standing Committees or Zone Reps have achieved is up for conjecture at all. If you were to ask anyone who has followed the local game for 10/15 years+ or cast an eye on the various social media outlets discussing the game it is abundantly clear these entities haven’t achieved anything of note at all and most punters are aware of this. Further supporting this notion is your statement that the former FW CEO, no less, claiming it wasn’t in the interest of FW to have these entities working functionally. In hindsight, I guess he did achieve that at least.
Let’s be clear though. This isn’t so much a question as to what the Standing Committees/Zone Reps offer but more so the overriding concern that the general stakeholder evidently has NO established (official) representation to channel concerns and grievances about how the game is administered and that in itself is totally unacceptable.
Therefore we may blog til the cows come home and online forums can continue to go into overdrive about just how poor Football West manage the game in this state but until FFA or the State Govt (who provide funding) or anyone else for that matter intervenes then FW will continue doing exactly what they want to do unchallenged and with no threat of reprimand whatsoever.
Thank you FL and compliments of the season to you and your family.
The point that you raise is a very valid one. We all know what purpose the Zone Reps and Standing Committees are supposed to serve but whether they have achieved that in WA is open to conjecture. Sadly as the former CEO said to me it is not in his interests for them to be functional. I think it shows how the board wants to ‘control’ or influence the Standing Committees that they have representatives sitting in on meetings. That is not the role of the Board, yet the various committees welcome these people at their meetings.
I am all in favour of restructuring the decision process but tat is never going to happen. This is now a national structure and so we are stuck with it. What we need are the right people who understand their responsibilities and who are held accountable.
As you quite rightly say if they are not going to hold the administrators accountable and are not going to drive the direction of the game we may as well abandon the system altogether. Currently the Board seem to be driving things, yet their role is to ensure that the organisation is run properly in every area and that all the checks and balances are in place. Is it and over domineering board who has sucked the life out of the Standing committees or is it weak standing committees who have handed the Board the power to influence things that should not be driven at board level?
Should the FFA step in and oversee proceedings for a year? Or possibly a private operator? The truth is something needs to be done but it is questionable as to who will be the one to drive change.
Thank you for your comment. I am sure that there are many who would agree with you. I for one do. The whole organisation needs to be restructured and has needed to be for a long time. Sadly the last CEO increased the number of managers to ridiculous levels and now the only way to remove the positions is to make people redundant or wait for them to leave and not replace them. As you say who is going to challenge the status quo? We know who has the power but…
Thank you All White, Happy New year to you. I have to agree with you that I think the priorities of the Board at the current time are misguided. The game is falling behind and we need to be looking at ways to raise the standard in the showpiece competition and also increase crowds. WE also need to be finding ways to help the clubs financially or some will go under. As you say maybe it is a good thing that half the board needs to go under the constitution, but the key is finding good people to replace them who can help right a listing ship.
Happy New Year Ashley and compliments on a very good article to start the year.
I’m not going to delve into the issues surrounding Football West or ASICS for that matter not adhering to their own constitutional rules or Acts. I’m not even going to discuss FW doing what they do best and not disclosing or outright hiding information which should be available to all members as they have a long history of doing this and it is well known they monitor social media closely.
What I would however like to see and have wanted to see for some time now is someone looking into what exactly do the Standing Committees and Zone Reps provide the thousands upon thousands of stakeholders. What purpose do they actually serve ? what are their objectives ? What are their powers ? Do they even have any power ? What would change in the local game if they simply didn’t exist ?
Given their involvement (or lack thereof) in so many contentious issues in the past and from what I have heard 1st hand from people involved I’m going to go with ‘nothing’ as a starting point but happy to consider ‘extremely little’ if you or anyone else wishes to provide evidence to support this because at the end of the day if the stakeholders do not have representatives that they may officially channel these grievances through and indeed hold FW accountable for such issues then seriously, what’s the point of their existence ???
After reading your article it is clear to me that all Board members should resign and the whole FW should go trough an overhaul and new people should be elected to run the company . Problem is WHO is going to challenge FW or take the matter to the court ?
Good to have you back!
This is again a clear lack of mismanagement and if those with the power to make changes do not use that power, the game is dead in WA. This is great news that half of the board has to go and the appointed board members!! Let us have a clean out and get some fresh faces in there! This group have done nothing except push for a home of football which in most people’s minds is low down on the shopping list, and of course now start pushing for a A-League licence. How much will these benefit the various clubs? Both will strip the local clubs of more money.
Zone Reps and Standing Committees get together and ask questions and ensure that we have change in 2017. If not then you too should step aside.