Question: The caretaker operates as an independent contractor. Is it reasonable for the committee to ‘watch’ the caretaker’s every move?
Is it reasonable for a committee member to ‘watch’ the caretaker’s almost every move? The agreement does not specify any ‘business hour’ requirements. In a committee meeting, the committee presented a documented list recording the caretaker’s dates, times, and activities, including when the caretaker enters and leaves the complex. Several residents who continuously observe and record the caretaker’s activities compiled this list.
The caretaker believes they perform their duties as required by the agreement and occasionally allocate work to subcontractors, as permitted. As the owner of the management rights business, the caretaker operates as an independent contractor, not an employee. They have the right to arrange their business as they see fit, as long as they fulfil the duties outlined in the agreement.
Of course, the ‘standard’ of performance is a subjective matter. While it’s understood that the committee wants to monitor all details, is it really acceptable to ‘watch’ and ‘record’ everything, including aspects of the caretaker’s personal life unrelated to caretaking activities?
Answer: Strata is not a surveillance state.
No, I don’t think it is acceptable to watch or monitor. In fact, I don’t think it is acceptable for anyone to be watched or monitored in strata – it is not a surveillance state.
Regarding management rights (MR) holders (which is the term I use to describe caretakers/onsite managers), it’s always important to remember they are not employees. They are contractors, and that means the relationship between the body corporate and the MR holder is contractual in nature. Essentially, if there is a difference of view on how the contract is being fulfilled (e.g., performance of duties), it might need to be negotiated between the parties to reach an outcome. Otherwise, there is a long, costly and stressful legal process to go through – in which anybody rarely ever ‘wins’.
Strata Solve is often involved with issues between MR holders and caretakers. Our view is that there is generally always the possibility of finding a way through things to a satisfactory result. And there are, of course, two sides to this coin. It is entirely appropriate for the committee and owners to have an interest in how an MR holder does their work. How they express that interest, though, is crucial.
This is general information only and not legal advice.
This post appears in the November 2024 edition of The QLD Strata Magazine.
Chris Irons Strata Solve E: chris@stratasolve.com.au P: 0419 805 898