QLD: Q&A Can a body corporate manager lobby owners to influence committee elections?

This article discusses whether a body corporate manager can lobby owners to influence committee elections and the limits set by the BCCM Act’s Code of Conduct.

Question: Is it appropriate for a body corporate manager to lobby owners to join the committee to support the current committee’s interests?

Can a body corporate manager lobby owners to nominate for the committee? In our scheme, the manager has a close relationship with the existing committee. New owners have been approached to join the committee to maintain the current like-minded and compliant people. Is this appropriate or allowed under the legislation?

Answer: We think that everyone is ‘tabula rasa’ and it is open to you, or anyone else – within the qualifiers we’ve outlined above – to try to press their case to get the result they want.

We get SO MANY queries about influence, lobbying and related. This is a particularly good question of that category.

Your general rule of thumb is that ‘lobbying’, as a concept, is not prohibited – which may surprise some readers.

What is at issue, though, for a body corporate manager is the Schedule 2 Code of Conduct, found in the BCCM Act. In particular, section 2 of that Code, reproduced below:

2 Honesty, fairness and professionalism

1. A body corporate manager or caretaking service contractor must act honestly, fairly and professionally in performing the person’s functions under the person’s engagement.
2. A body corporate manager or caretaking service contractor must not attempt to unfairly influence the outcome of an election for the body corporate committee.
3. A body corporate manager or caretaking service contractor must not unfairly influence, or attempt to unfairly influence, the outcome of a motion to be decided by the body corporate.

You’ll note from subsections (2) and (3) above the use of the term ‘unfairly influence’, both in relation to a motion, and in relation to an election. Unhelpfully, for you and for others, the term ‘unfairly influence’ is not defined. That means it is open to interpretation.

Importantly, while ‘unfair’ influence is prohibited for a body corporate manager, ‘fair’ influence is not. Is your situation ‘fair’ or ‘unfair’? Impossible to say. The mere fact that the body corporate manager is ‘close’ to the committee is not, in itself, an indicator of fairness one way or the other (and it’s not clear what ‘close’ means, or why that would be an issue anyway). Let us consider a scenario in which the body corporate manager, in attempting to get people to vote for the motion to renew their engagement, tells committee members and other owners that you are a crook and shouldn’t be listened to for that reason (we assume you have no history of convictions!). That would be likely quite ‘unfair’ – but you’d still have to make the case to an adjudicator, and even then, there’s no guarantee the adjudicator is going to overturn a result based on that.

Where does that leave you? Well, the interesting thing in this whole lobbying discussion is that while the provisions above apply to a body corporate manager and management rights holder (aka, caretaker), there are no such provisions for owners. Which means that you and any other owner who shares your views can go out and lobby. You can lobby against the current manager if you like (we assume, from your query, that you’re not a fan of their work). You can also obtain quotes from different body corporate managers, submit these to a general meeting for voting and lobby for the one you want passed. If we’re correct that you don’t like your current manager, you might also want to have that conversation with them, or someone higher in their organisation if there is one, to see if you can resolve the concerns. If that manager is a member of the professional body (Strata Community Association), you can lodge a complaint with that body if you have a specific concern that isn’t being resolved. You can also consider using a third party (like ourselves) to offer mediation and facilitation to resolve issues.

Finally, we want to pick up on your comments about ‘like-minded and compliant people’. There’s more to that statement than a pejorative flavour, and we think it’s a good idea to remind people that owners can vote however they please (and indeed, they can choose not to vote at all). Which is more or less the same as what happens when you go to the ballot box on a Commonwealth or State election voting day. You can draw rude symbols on your ballot paper, write a thesis on it, or add all manner of random candidates. The act of voting is very personal, and we don’t think it’s a case of someone being ‘like-minded and compliant’. Instead, we think that everyone is ‘tabula rasa’ and it is open to you, or anyone else – within the qualifiers we’ve outlined above – to try to press their case to get the result they want.

This is general information only and not legal advice.

Chris Irons
Strata Solve
E: [email protected]
P: 0419 805 898

This post appears in Strata News #769.

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