This article discusses whether management rights holders can exert management rights undue influence committee decisions and what Queensland legislation says about non-voting participants at meetings.
Question: At committee meetings, is there anything in the legislation about the undue influence of non-voting participants – our management rights holder?
Our onsite manager/caretaker attends all committee meetings, monopolising and influencing voting on agenda items as they come up. Some committee members seem happy with this, but others are not. Is there anything in the legislation about the undue influence of non-voting participants at committee meetings?
Answer: While there is a prohibition on ‘unfairly’ influencing, there is no prohibition on ‘fairly’ influencing.
Legislation changed from 1 May in relation to the code of conduct for management rights (MR) holders (I refer to caretakers/onsite managers as MR holders).
The relevant provisions that might apply are from Schedule 2 of the Body Corporate and Community Management Act 1997, in particular, sections 2(2) and (3), reproduced below:
- A body corporate manager or caretaking service contractor must not attempt to unfairly influence the outcome of an election for the body corporate committee.
- 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.
Now, you more than likely will ask me, “So what does ‘unfairly influence’ mean”? I’m afraid I don’t have an answer. It is not defined in the Act and would be subject to a case-by-case consideration. Given that these provisions have only been in force since May, there is no case law to refer to either.
So with that in mind, I make the following observations:
- While there is a prohibition on ‘unfairly’ influencing, there is no prohibition on ‘fairly’ influencing – and no, I don’t have a definition of ‘fairly’ either;
- Phrases such as ‘monopolising’ and ‘influencing’ are subjective and emotive. By your own admission, some people are quite pleased with the MR holder’s input – so I’d suggest you try and be more specific about what your concerns are and
- The MR holder has a vital role in the effective operation of a strata scheme. That is why they are automatically a non-voting member of the committee, in recognition of their vital role. I wonder if it is possible for you to focus on the positive input of the MR holder.
If I can speculate for a moment, I am sensing you are not the biggest fan of your MR holder. Fair enough – it’s not a popularity contest, after all. That said, it is much better and more practical for you to focus on specifics about the MR holder because that, in turn, will inform what you can do about it. And yes, you can do something about it, depending on what the issues are.
This is general information only and not legal advice.
This post appears in Strata News #702.
Chris Irons
Strata Solve
E: chris@stratasolve.com.au
P: 0419 805 898
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