Committee meetings – attendance of caretaking service contractors

Each year a body corporate must elect a committee at its annual general meeting.

Once elected, the committee is tasked with the administrative and day-to-day requirements of the body corporate. The committee acts on behalf of the body corporate and puts in place the lawful decisions of the body corporate (Body Corporate and Community Management Act 1997, sections 100 and 101).

The committee is comprised of executive members (chairperson, secretary and treasurer), ordinary members and non-voting members. The chairperson, secretary, treasurer and ordinary members are voting members. The caretaking service contractor is a non-voting member of the committee and cannot exercise a vote on any item under discussion at a committee meeting.

Although a voting member of the committee may appoint a proxy for a committee meeting, section 101(1) of the Body Corporate and Community Management (Standard Module) Regulation 2008 explicitly provides that a person appointed under a proxy must also be a voting member of the committee. Consequently, the caretaking service contractor, a non-voting committee member, cannot exercise a vote at a committee meeting even if they have purportedly been appointed proxy by a voting member of the committee.

Committee meetings require seven days’ notice to be given to both voting and non-voting members by the secretary and at the same time, the remainder of lot owners must be given notice of the meeting and the agenda (pursuant to section 45 of the Standard Module). As a non-voting member the caretaking service contractor is entitled to attend all committee meetings, subject to the exceptions detailed in section 50 of the Standard Module:
50: Attendance at committee meetings—non-voting members

(1) A person who is a non-voting member of the committee must not be present for an item of business about a following matter considered at a meeting of the committee if the committee decides the person must not be present for the item—
(a) a dispute between the body corporate and—
(i) the person; or
(ii) the owner or occupier of a lot included in the community titles scheme;
(b) the person’s engagement as body corporate manager or service contractor;
(c) if the person is a caretaking service contractor who is a letting agent for the scheme—the person’s authorisation as a letting agent.

(2) Also, the person must not be present for—
(a) a discussion of, or vote taken by, the committee about whether the person may be present for an item of business mentioned in subsection (1); or
(b) a vote taken by the committee on the item of business.

(3) This section does not prevent the committee lawfully excluding the person from the meeting for an item of business not mentioned in subsection (1).

The explanatory notes accompanying the introduction of this section under the original amendment stated (in part) the following:

“A non-voting member is a person who is a caretaking service contractor or a person who is a body corporate manager… The non-voting member has a right to attend committee meetings, but is not counted in the quorum determination, cannot vote, and cannot hold a proxy. The basis of the non-voting member’s right to attend the meeting is, for example where the person is the caretaker, that the person will be expected to and should have a thorough knowledge of the maintenance requirements of the scheme, and of the events occurring at the scheme. For this reason, it is advantageous for the body corporate if the caretaker were involved in discussions concerning the scheme at committee meetings. However, there are particular issues and circumstances when the committee should have the power to decide that the person should not be present at the committee discussions or the vote… Further, the person is automatically excluded while the committee decides whether or not to exercise the power. Notwithstanding these provisions, a non-voting member should, as a matter of course, advise the committee where there is an issue in which the person has an interest, and leave the meeting before any discussion takes place and a vote is taken.”

Caretaking services contractors should remain mindful that failure to disclose an interest in an issue under discussion by the committee and remaining in attendance for the discussion, may constitute a contravention of the schedule 2 or 3 codes of conduct under the act. As such, if a caretaking services contractor is aware, or suspects, that they should not be present for discussion of an agenda item at a committee meeting then it may be prudent for them to raise their concerns with the body corporate prior to the meeting taking place. In turn this may afford the parties an opportunity to make any necessary enquiries prior to the meeting to assist in determining whether the caretaking services contractor should be excluded from the meeting for that item.

Of course, the caretaking services contractor is entitled to return to the committee meeting after conclusion of the item/s of business for which they must be excluded and should be so informed before the committee proceeds with the next item of business for which the caretaking services contractor is eligible to be present

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