A volunteer with St John WA asks a question that I cannot answer, but I can make some comments. The question is:
Most sub centres are just about to or have had their AGM’s. The sub centre I am at is operated by volunteers only, with an elected committee and one CP who has no voting rights. I asked for a copy of the constitution before our AGM and none is available. There is no copy on St John intranet. All sub centres appear to have access to “sub centre guidelines” but these are very vague and often ask more questions than answers. I was of the opinion that all “NFP Inc” bodies had to have a constitution for all members available upon request. I am sure in WA, St. John would have their own constitution and not operate under model rules. But either way we should know or have access to them. I have made inquiries into this but the organization is growing and currently we have many people in acting positions who appear to not know and have little to no knowledge on this topic. Myself included. It would be appreciated if some light could be shed on our obligations in holding AGM’s and meetings.
This is a really difficult question to answer as I simply don’t have enough detail, the question has to go back to St John (WA), but here are my thoughts given the lack of detail.
The St John Ambulance Australia (WA) 2017/2018 Annual Report says (p. 5):
St John Ambulance Western Australia Ltd is a company limited by guarantee. We are accountable under the Corporations Act 2001 and regulated by the Australian Securities and Investment Commission and the Australian Charities and Not-for-profits Commission.
A company is a legal entity that can sue and be sued. There is one legal entity, St John Ambulance Western Australia Ltd. A copy of the Constitution of St John Ambulance Western Australia, adopted on 22 October 2012 is available via the Australian Charities and Not-for-Profits Commission website. St John Ambulance Western Australia Limited is the name by which ‘The Commandery in Western Australia of The Most Venerable Order of the Hospital of Saint John of Jerusalem’ is to be known (cl 8). Clause 37 says:
The State Board will be responsible for, and must set policy as to all activities to be undertaken in pursuit of the objectives and purposes of Commandery, and manage exclusively all of the business and charitable operations and affairs of the Commandery. Wherever this Constitution requires the Commandery to do anything which is not done by Commandery Chapter,the State Board is responsible to do it.
With respect to sub-centres the Constitution says (cl 1) ‘St. John Sub-Centre means a separate body formed by the Commandery referred to in Article 46.1’. Article 46.1 says:
The Commandery has from time to time established, and may in future from time to time, in various parts of the State, establish, regulate, manage or dissolve St. John Sub-centres, First Aid Volunteer groups, or bodies to undertake other activities, and has or will recruit and engage volunteers and full and part time employees to staff those activities. For clarity, it is stated that the bodies so formed are not corporately, or legally part of Commandery and the persons so recruited or engaged are not by virtue of that recruitment or engagement Commandery Members.
I fail to understand what art 46.1 says at all. If they are not ‘corporately, or legally part of Commandery’ what are they? If the commandary is employing the staff members there must be a legal relationship with the commandery even if the volunteers and staff are not ‘members’ of the Commandery (cl 17). A person can be an employee of a company without being a member of the company (an employee of BHP does not get to vote at the AGM, only a shareholder does). The fact that a person who volunteers or is employed by St John is not a member of the Commandery makes sense, but to say that the sub-centres are not ‘corporately, or legally part of Commandery’ at least to me does not.
It could only make sense if the sub-centres were separate legal entities that St John funded at an arms length eg by the payment of grants, but that is not the case. The St John website says (emphasis added):
St John Ambulance sub centres are responsible for the delivery of ambulance services in their community.
There are about 100 sub centre committees that manage operations on behalf of St John Ambulance Western Australia at full volunteer-run locations. In addition, there are 15 country sub centres with a mix of Volunteer Ambulance Officers and Career Paramedics working side-by-side.
There is nothing to suggest the sub-centres are legal entities. I doubt that a sub centre can sue or be sued in its own name. The 2017/18 Annual Report, at p. 9 lists statistics relating to the combined sub-centres – their assets, the number of paid and volunteers staff, the number of patients treated etc – as part of the work of St John. The sub-centres are listed as part of St John’s ‘159 regional locations’ (p. 27). Note 28 to the Accounts says ‘The following sub centre locations and support funds have been aggregated with the metropolitan operations in the aggregated financial statements’. If the accounts have been aggregated the sub centres must be ‘corporately, or legally part of Commandery’. I am not a corporate lawyer and perhaps a corporate lawyer can make sense of it, but to me cl 46.1 makes no sense.
If they are not a legal entity in their own right, and they are established by the Commandery, then the sub-centres must be legally part of the company that is the Commandery (despite cl 46.1). If it is correct then how they are structured, what meetings they need to call and what they can do all depend on how the company (St John Ambulance Western Australia Ltd) has set them up and what rules the company has given them in order to operate.
That sort of detail is not in the constitution nor would it be expected – no company constitution is going to define how the organisation is managed internally, that is a matter for the executive and the Board (cl 37). It may be that all there is are ‘sub centre guidelines’.
What little I can say is what is required of the sub-centre Committees is a matter for St John Ambulance Western Australia Ltd to determine. If the sub-centres don’t know what’s expected of them that must be a concern about appropriate governance and management. I have no idea what cl 46.1 of the Constitution means. It is, in my view, contradictory to say both
The Commandery has from time to time established, and may in future from time to time, in various parts of the State, establish, regulate, manage or dissolve St. John Sub-centres, First Aid Volunteer groups, or bodies to undertake other activities,
… the bodies so formed are not corporately, or legally part of Commandery …
If they ‘are not corporately, or legally part of Commandery’ then I have no idea what they are.
After writing the post, above, another correspondent wrote:
Your correspondent from one of St John Ambulance Western Australia Ltd’s Sub Centres raises an ongoing problem of the lack of clarity within St John WA Ltd as to the legal status and governance arrangements of its 143 volunteer Sub Centres across the State.
SJAWA transitioned from an incorporated association to a company limited by guarantee on 30 September 2013. A search of WA’s Associations Online database makes clear that none of the volunteer Sub Centres throughout the State are incorporated associations in their own right. As such, none of the requirements of the Associations Incorporation Act 2015 (WA) (such as the holding of AGMs) apply to individual Sub Centres, and nor have they applied to the organisation as a whole since 2013. As Michael has pointed out, nor do the Sub Centres appear to be, under the constitution of SJAWA Ltd, legally part of that organisation, given the odd and archaic wording of that constitution. There is thus a clear risk, therefore, that the volunteer Sub Centres are, at law, nothing more than a collection of individuals, which has significant ramifications in terms of governance, as well as potentially more serious matters such as legal liability and insurance.
This problem is simply not recognised within the middle tier of the organisation. Some years after the 2013 transition, SJAWA head office was publishing material to its volunteer Sub Centres advising them as to new responsibilities under the amended Associations legislation that commenced in 2016 – when anyone with a basic familiarity with the organisational structure could tell them this no longer had any application at all. Queries within the organisation as to the uncertainties of all of this have met with similar confusion to that recently experienced by your initial correspondent. Sub Centre ‘guidelines’ have either not been updated since the 2013 transition or where material has been updated they appear to have only cut and pasted the new corporate name (or made fundamental errors – such as the material on the 2015 Act).
There appears to be a potential deficit of legal expertise within the organisation that is surprising, given its size. To this correspondent’s knowledge, SJAWA has no in-house counsel, instead using small to medium legal firms on an ‘as-needs’ basis for individual matters as they arise. The 2017/2018 Annual Report biographies suggests that none of the executive team hold legal qualifications and that of the eight members of the Board of Directors, only one (the Chair) is legally qualified (this correspondent is aware that there have been some executive team changes so it is possible some more legal expertise has arrived since). To a degree it may be that SJAWA has managed to operate in something of a ‘lawyer-free zone’ because of the enormous esteem in which the organisation, and particularly (in this context) its Country Ambulance volunteers and members, are held within the community, particularly regional communities. However it may take only one major adverse event for the creaking structure to come apart in the face of litigation.
The situation is not helped by the fact that the organisation internally treats volunteer Sub Centres as autonomous units, with Sub Centre earnings, for example, being used to pay the wages of any employed staff (eg local administrative staff), and each Sub Centre having to pay for its own expenses and remitting a portion of earnings to the centre to pay for supplies and for the SOC etc. It may well thus be in the interest of the organisation to allow Sub Centres to continue to think that they are legally autonomous units and thus that ‘the buck stops with them’, in order to encourage local solutions and local ‘resilience’. As desirable as that may be, it cannot justify continuing to operate without clear governance structure for the regions and with significant legal risks.
I doubt that St John (WA) could avoid liability for the action of St John members. They turn out in a uniform, in a vehicle branded St John in response to a call to St John and in order to meet St John’s contractual obligations with the state. In Hollis v Vabu  HCA 44 Gleeson CJ, Gaudron, Gummow, Kirby and Hayne JJ said (at ):
… the conduct by the defendant of an enterprise in which persons are identified as representing that enterprise should carry an obligation to third persons to bear the cost of injury or damage to them which may fairly be said to be characteristic of the conduct of that enterprise.
St John members are identified as representing the enterprise of St John and St John will be vicariously liable for any negligence. But if, to use the language of this correspondent, St John believes ‘that the volunteer Sub Centres are, at law, nothing more than a collection of individuals’ then there may well be an argument as to liability.
I agree entirely with the comment:
It may well thus be in the interest of the organisation to allow Sub Centres to continue to think that they are legally autonomous units and thus that ‘the buck stops with them’, in order to encourage local solutions and local ‘resilience’. As desirable as that may be, it cannot justify continuing to operate without clear governance structure for the regions and with significant legal risks.
I received this comment by email:
They must be some form of legal entity as the sub centres each have a financial account and status as they are mostly self funded or developed from grants. The question of a constitution however, is not clear. To my knowledge, my subcentre does have one which is pretty much a cut and paste from policies and the company guidelines.
That raises interesting questions. If there are bank accounts in names other than St John Ambulance Western Australia Inc. it would imply some sort of legal entity or simply a mistake. As I said in my post ‘Note 28 to the Accounts says ‘The following sub centre locations and support funds have been aggregated with the metropolitan operations in the aggregated financial statements’. That implies that they do not have separate accounts but that their accounts are owned by St John WA.
A further comment received by email:
“Michael is again correct – if your correspondent checks with their bank they will find that in fact their bank account is in the legal name of St John Ambulance Western Australia Ltd (the Inc disappeared in 2013 with the restructure – or should have!) rather than their individual Sub Centre. The statement might well be posted to the Sub Centre and the account ‘nickname’ or title on the statement might reference their Sub Centre, but the legal owner will be SJAWA Ltd. Members of the Sub Centre (usually committee) will be signatories on the account – but authorised to be so by SJAWA. This is why, if your correspondent has ever tried to change the signatories on their “Sub Centre bank account”, they’ll find that it needs to be sent through head office in Perth for the authorisation to be done – and can result in delays. Internally within St John, each Sub Centre has its own budget, raises it’s ‘own’ money through transports etc, operates an SJAWA bank account for the Sub Centre, but this is all just an internal accounting practice (essentially a fiction). Even where grants are given, you will find these will be signed off by head office, and any large contracts or land dealings are the same. SJA WA Sub Centres are not separate legal entities. As to the constitution which is said to be “cut and paste from policies and guidelines” then that is … policy and guidelines. It’s not a constitution