ACT: Q&A Owners Corporation Executive Committee

These questions are about how to chair a general meeting and who can be elected to the Owners Corporation Executive Committee.

Table of Contents:

• QUESTION: We have just had an AGM and elected an EC. Subsequently, a member of the OC has requested to join the EC. What process are we required to undertake to legally have them on the committee?
• QUESTION: Are we able to provide remuneration to EC members who make substantial time commitments to their roles, either through agreed payment for work or alternative incentives such as reduction of strata levies.
• QUESTION: Can the president refuse to give an interested committee member an update on motions?
• QUESTION: The committee has a number of major issues that need to be resolved but the secretary is trying to filter all information. Is this a breach of the UTMA Code of Conduct?
• QUESTION: In Canberra, can an individual who is not an owner of a lot in the strata scheme be elected to the Owners Corporation Executive Committee?
• QUESTION: We have several contentious issues coming up for discussion at a General Meeting. Due to this what are the rules around how to chair a general meeting? Can this role be undertaken by an independent person?

Question: We have just had an AGM and elected an EC. Subsequently, a member of the OC has requested to join the EC. What process are we required to undertake to legally have them on the committee?

Answer: Usually, willing incumbent EC members would need to wait until the next AGM to join the EC.

Basically, if an AGM has been held recently, and a new committee elected, another person cannot join the EC unless:

• a residing EC member resigns; and,
• the remaining members of the EC all agree to co-opt a new member.

Unless this happens, any willing incumbent EC members would need to wait until the next AGM and volunteer at that point to join the EC.

Gareth Halverson
Civium Communities
E: [email protected]

This post appears in Strata News #533.

Question: Are we able to provide remuneration to EC members who make substantial time commitments to their roles, either through agreed payment for work or alternative incentives such as reduction of strata levies.

I’m on the EC of a large building in Canberra and a number of EC members undertake substantial work in order to discharge their duties.

We also struggle to recruit new members to the EC, possibly because it’s effectively a volunteer role with a sometimes onerous time commitment.

We have discussed very broadly the possibility of providing remuneration to EC members who make substantial time commitments to their roles, either through agreed payment for work or alternative incentives such as reduction of strata levies.

I was wondering whether there are any precedents for this or information about best practice information on how to ensure people are treated fairly and transparently in relation to the work they provide on Executive Committees?

Answer: In the ACT, there is nothing in the executive committee code of conduct or the UTMA which explicitly prohibits or approves this.

I am not aware of any owners corporations in the ACT that have paid executive committee members for their work on executive committees.

However, this does occur in NSW although not frequently. However, I understand that there are some rules in relation to remunerating NSW strata committee members. For example, strata committee members in NSW can be paid for work they’ve done on behalf of the scheme, but only retrospectively.

In the ACT, there is nothing in the executive committee code of conduct or the UTMA which explicitly prohibits or approves this but there are some provisions of the code of conduct that would need to be considered when deciding whether or not to remunerate executive committee members.

Christopher Kerin
Kerin Benson Lawyers
E: [email protected]
P: 02 8706 7060

This post appears in Strata News #532.

Question: Can the president refuse to give an interested committee member an update on motions?

I am a committee member. Our committee meets once every 3 months. It has been two months since our last meeting. I sent an email to the president asking for an update on items that were outstanding at the last meeting and how they were progressing. I was told to wait until the meeting (which is 6 weeks away) to receive an update. 

Can the president refuse to give an interested committee member an update? What can I do about the failure to update me when I have requested an update?

Answer: The Executive Committee members should be sharing the work load and usually, email discussions would keep all members up to date.

The Executive Committee at their first meeting should have elected a Chairperson, Secretary and Treasurer. Once the roles are determined then a bit easier for actions arising to be checked.

We would not expect that the Chair would be responsible for undertaking all actions. The Executive Committee members should be sharing the work load and usually, email discussions would keep all members up to date. Do other members have some further information or input?

At the next Executive Committee meeting it may be prudent to request a motion that the Executive Committee develop protocols in the management of works and maintenance and minutes have action items plus who is responsible.

Normally protocols would identify processes in place and open communications within the committee. The ACT legislation also allows for a communication officer.

Is the Executive Committee on a group email chat. Maybe ask other Executive Committee members if they are aware of an update of actions. Not sure if the manager has a portal that may also contain information etc. on quotes received.

Maybe ask for a one on one with the chair to talk it out.

We also note the requirement of the legislation as passed last November to distribute minutes within 14 days to all owners.

Jan Browne
Bridge Strata
E: [email protected]
P: 02 6109 7700

This post appears in Strata News #459.

Question: The committee has a number of major issues that need to be resolved but the secretary is trying to filter all information. Is this a breach of the UTMA Code of Conduct?

I was elected onto the Executive Committee last year. The new EC comprises of two former EC members and three new members. I am a new member. 

Me and another new member have been elected Co-Chairs. We are not having much luck with the former Secretary who actually ran the former EC and compartmentalised most information. 

We have a number of major issues that need to be resolved which he will only drip-feed information about. He is contacting our contractors and suppliers and still meeting with them about these issues. 

We are talking about major defect rectification and legal issues and he is trying to filter all information. He is effectively running a shadow EC. 

Is this a breach of the UTMA Code of Conduct?

Answer: It’s imperative for the Owners Corporation that the Executive Committee is on the same page as a collective.

Have you considered raising your concerns with the former Secretary directly? From our experience, delicate issues that are raised in a mutual environment can be beneficial. Alternatively, if you have one, your (Strata Manager) [https://www.lookupstrata.com.au/strata-management-five-minute-guide/] may be able to facilitate mediation. It’s imperative for the Owners Corporation that the Executive Committee is on the same page as a collective so that they may present a united front at any General Meetings ensuring that matters are communicated effectively.

The former Secretary does need to be mindful that there is an (Executive Committee – Code of Conduct) [http://classic.austlii.edu.au/au/legis/act/consol_act/uta2011243/sch1.html] which must be abided to in accordance with Schedule 1 of the Unit Titles Management Act 2011.

If the situation becomes untenable within the EC, you have the ability to remove certain members of the EC under (Section 39) [http://classic.austlii.edu.au/au/legis/act/consol_act/uta2011243/s39.html] (5) of the UTMA via ordinary resolution at a general meeting on the provision that the Owners Corporation elect another member to fill the vacant position at that meeting.

Caroline Mitchell
ACT Branch Manager
Civium Communities
E: [email protected]

This post appears in Strata News #454.

Question: In Canberra, can an individual who is not an owner of a lot in the strata scheme be elected to the Owners Corporation Executive Committee?

In Canberra, can an individual who is not an owner of a lot in the strata scheme be elected to the Executive Committee?

My son owns a unit in an apartment in Canberra but I am not an owner there. Can I represent him to be elected to the executive committee?

Answer: The only persons who can be nominated and/or fill an Executive Committee role is a registered owner.

Unfortunately the only persons who can be nominated and/or fill an Executive Committee role is a registered owner.

We believe this is restrictive but it is what the ACT Unit Titles (Management) Act requires.

Other states do allow a non owner to be nominated and serve on the Owners Corporation Executive Committee.

Jan Browne
Bridge Strata
E: [email protected]
P: 02 6109 7700

This post appears in Strata News #335.

Question: We have several contentious issues coming up for discussion at a General Meeting. Due to this what are the rules around how to chair a general meeting? Can this role be undertaken by an independent person?

We have the situation where there are several contentious issues coming up for discussion at a General Meeting. These issues, if agreed, will require some owners to pay more to the Owners Corporation for works undertaken and other owners to get a refund. The voting will be very close.

Every owner has a conflict of interest, including the Chair of the Executive Committee.

My questions:

• What are the rules around how to chair a general meeting? Can owners ask for an independent person to Chair the meeting? is this allowed under the Unit Titles (Management) Act 2011? and what is the procedure?
• Can owners request that the Chairperson does not use his casting vote in the case of a tied vote?

Answer: In short, the default is that the chairperson of the general meeting is the chairperson of the executive committee.

Sections 3.13, 3.30 and 3.33 of Schedule 3 of the Unit Titles (Management) Act 2011 provides as follows:

3.13 Chairperson at a general meeting

1.  The chairperson of a general meeting is the chairperson of the executive committee, unless that person—
   
   1. is not present at the meeting; or
   2. does not wish to be chairperson of the meeting.

2. If the executive committee’s chairperson is not present at the general meeting, at the beginning of the meeting, the people present and entitled to vote may elect someone else who is present and entitled to vote as chairperson for the meeting.
3. The chairperson for the meeting may leave the chair during the meeting for any reason.
4. If the chairperson leaves the chair during the meeting, the people present and entitled to vote must elect another person present and entitled to vote as chairperson

3.30 Voting by chairperson

At a general meeting, the chairperson may (whether or not a poll is demanded)—

1. exercise a deliberative vote as a member; and
2. if there is an equality of votes—also exercise a casting vote, unless the owners corporation has only 2 members.

3.33 Declaration by chairperson of result of voting

1. A declaration by the chairperson of the meeting that a motion has been passed is conclusive evidence of the fact without proof of the number or proportion of votes recorded against or in favour of the motion.
2. Subsection (1) does not apply if— (a) a poll is demanded; or (b) a unanimous resolution is required.

In short, the default is that the chairperson of the general meeting is the chairperson of the executive committee (unless the conditions in (a) or (b) arise).

This is as far as the Unit Titles (Management) Act goes in terms of providing guidance. In addition, there is little by way of case law that would assist.

However, the principles governing meeting practice and notice requirements are well developed and guidance can be found in a number of ‘non-strata’ authorities and in legal textbooks. For example, Nicholas Renton “Guide for Meetings and Organisations” (Law Book Co., 8th ed, 2008) or Joske’s Law and Procedure at Meetings in Australia.

Christopher Kerin
Kerin Benson Lawyers
E: [email protected]
P: 02 8706 7060

This post appears in Strata News #181.

This article is not intended to be personal advice and you should not rely on it as a substitute for any form of advice.

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Read next:

• ACT: Q&A Calling a Special General Meeting – What do I need to do?
• ACT: Q&A Should proxies be used for election of Executive Committee?

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