Question: Our body corporate would like to conduct a time and motion study on the caretaker. As they are within the contract term and the agreement does not specify hours worked, is the caretaker bound to contribute to the investigation or any findings?
Our caretaker’s agreement was established and agreed upon 10 years ago by the previous caretaker and the body corporate. The agreement contains no specified office or working hours, and the remuneration appears to be increasing and becoming the most significant outgoing expense. The body corporate feels that the remuneration does not align with the actual effort expended, given that the caretaker seems to allocate limited working hours each day to perform duties. However, the caretaker is fulfilling their responsibilities per the contractual agreement. The performance may not be exceptional, but it meets the requirements outlined in the contract.
The body corporate wants to discuss the agreement with the caretaker, possibly via a time and motion study or by employing a strata expert to evaluate the caretaker agreement. The goal is to determine whether the remuneration is fair. At this stage, the body corporate is considering a discussion with the caretaker involving an expert who specialises in contract review or time and motion studies.
Does the caretaker have an obligation to answer all questions from the expert regarding questions about his time allocation for work, etc? Could the caretaker refuse to share his work records, given that there is no contractual obligation to do so? If the caretaker does not agree to any changes, then regardless of the results of any study, can the contract be altered?
Answer: There is no obligation on anyone to agree to do something outside of the managing agency agreement.
The starting point for this is that the management rights agreement is a contract. As such, it is binding on both parties to it in accordance with its terms and a party is only obliged to do what the contract requires of it. So there is no obligation on anyone to agree to do something outside it – from varying the remuneration to increasing the duties and through to varying it to increase the length of it.
In those circumstances, if one party wants to change the agreement, then that needs to be approached from a commercial perspective (in terms of what’s in it for each party) and not a legal one (in terms of ‘the agreement says you must’). Both parties are entitled to investigate the cost and value of the services provided at their own volition. But, unless the agreement provides for it, those investigations won’t lead to an obligation on the other party being forced to agree to any changes as a result of that investigation.
This post appears in Strata News #660.