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Topic
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Our large strata scheme has had the same Chair for many years, with a family member of the Chair employed as office manager for a number of years. Some lot owners have said that the Chair bullies them and, with the office manager, denied or delayed services to them.
Recent attempts to have a more functional committee have been partially successful. For a time we’ve had a different chair, and the relative is no longer office manager. However, there is a possibility they both may return.
This is partly because a number of lot owners are afraid to attend meetings or give their proxy to someone else because our AGM minutes records who holds their proxy. These lot owners fear retribution from the Chair and office manager if they openly oppose them.
While Clause 29 in Schedule 1 of the Strata Schemes Management Act 2015 allows for secret ballots to be held, Clause 180.1.f of the Act requires owners corporations to retain proxies delivered to them for 7 years. This means that, even if proxy holders aren’t minuted, their proxy forms can be inspected as per Clause 182 of the Act.
Clause 180.1.f seems to undermine Clause 29 in Schedule 1 because, with our strata scheme lot holders evenly split in two, it’s pretty obvious which ‘side’ you’re on when you give your proxy to someone. With the voting very tight, every vote counts and with people afraid to vote we’re struggling to get change.
What suggestions do Flat Chatters have for addressing this situation?
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Under Strata Regulation 41 (2) the records of secret ballots only have to be retained for 13 months, rather than seven years.
However, to allay the fears of your owners, why not pass a by-law that says that, after the proxy forms in a secret ballot have been verified (possibly by an independent returning officer), their validity and value in unit entitlements recorded and their proxy holders noted, they will be placed in a sealed envelope which may only be opened subject to an order from NCAT.
You could then promote this idea to your owners in a very positive way.
I’m not sure if this would even need a by-law since you aren’t changing anything except what happens to the votes when they have been checked and verified.
So the motion might go something like:
Under the terms of the Strata Schemes Management Act 2015, Schedule 1, Clause 29 and the Strata Schemes Regulations 2016, Section 41 (2) and with due regard to the SSMA 2015, Section 180, the Owners Corporation agrees that, in the case of a secret ballot:
1. The committee will appoint an independent “Returning Officer”*
2. The Returning Officer will retain all proxy forms and ballots, verify them and record the Unit Entitlements attached to each vote while protecting the privacy and identity of the voting owners.
3. When the votes and proxies have been verified and allocated the proxies and votes will be placed an a sealed envelope.
4. The envelope will be stored in a secure place and will only be opened under the instruction of NCAT or a higher court, if ordered to, in the unlikely event of a challenge to the validity of the vote or election concerned.
*This will be a strata committee member from another scheme, or a strata professional, or a lawyer or JP or similar, who has no fiduciary or personal connection with the scheme.
Something like that could be passed by your committee then be promoted to owners under a “good news” newsletter headlined “Protecting Your Privacy”.
What do other Flatchatters think?
The opinions offered in these Forum posts and replies are not intended to be taken as legal advice. Readers with serious issues should consult experienced strata lawyers.
Your OC should be mindful of a conflict on interest with the Manager being a family member of a committee member.
The former Chairperson, should they return to the committee, would definitely not be able to have anything to do with the appointment of the Manager if the Manager is a family member – that includes both proposing and voting for the Manager.
Why is the OC contemplating changing the current Manager and reverting to the previous Manager? Is the OC happy with the current Manager, or is the OC unhappy with your current Manager?
Be pro-active rather than re-active.
If your OC functions better without the former Chairperson and the former Manager who is a family member of the Chairperson then don’t propose them and don’t vote for them.
You mentioned that your scheme is split into two camps. Some of the following suggested actions may work in your favour if the vote is close.
1. Put a Motion on the Agenda that pre- meeting electronic voting be permitted for voting at an AGM. No proxies will then be required and vendettas will not be as great an issue. NB: Voting for the election of office bearers must not be by this method due to the fact that nominations may come from the floor of the meeting.
2. Nominate other people to the Committee (other than the former Chairperson) and/or do not vote to support the former Chairperson if that person did become nominated.
3. Seek out an independent Manager and obtaining a quote for their services. Then propose a Motion to be decided at the next General Meeting to appoint the new independent Manager. In your Explanatory Material accompanying the Motion you might need to draw people’s attention to the possible conflict of interest that may arise from having two family member’s so closely entwined in positions at your scheme.
4. Ensure that everyone who votes is financial, including those who have given their proxy to the former Chairperson. You may request that the Chairperson announce the names of all those who are entitled to vote on the Motions. An owner is not permitted to vote if that owner was an unfinancial owner at the date notice of the meeting was given and did not pay the amounts owing before the meeting.
5. If you believe that your side has the majority in a poll then ask for a poll vote. The motion will then be decided according to the value of the votes cast for and against the motion. The value of a vote cast by a person entitled to vote in respect of a lot is equal to the unit entitlement of that lot.
@Lady Penelope said:
Voting for the election of office bearers must not be by this method [electronic voting] due to the fact that nominations may come from the floor of the meeting.In NSW, the committee, once it has been elected, votes for the office-bearers.
However, Section 41 (4) of the Act is a bit confusing: “Nomination for election as an officer of the owners corporation may be made before or at the meeting at which the election is held.”
But I am pretty sure the meeting referred to here is the meeting of the committee at which they elect office-bearers, rather than the meeting of the OC at which they elect the committee.
The opinions offered in these Forum posts and replies are not intended to be taken as legal advice. Readers with serious issues should consult experienced strata lawyers.
JT – I agree that it is confusing.
In the context of the AGM and electronic voting, I took “office bearers” to have a wider meaning of “committee” i.e. the bearers of the office of committee member, rather than the narrower meaning of a specific office within the committee.
As you rightly pointed out the specific office can be determined by the committee members themselves, once the members have been appointed.
It is my understanding that the OC can propose a Motion to remove this function from the committee and appoint owners to specific positions on the committee if that is what the majority would prefer.
All other Motions, except for the nomination of office bearers must be submitted prior to the AGM and must be included, exactly as submitted, on the Agenda, therefore electronic voting prior to the AGM is practical for those Motions.
However, this is clearly not practical if nominations can come from the floor of the meeting and exact nominations are not known at the time that the Agenda notice is published.
Does that make sense?
To clarify the confusion regarding the situation of electronic voting for general committee positions (and/or specific committee positions) the OC could adopt a Motion requiring that owners are nominated and seconded for committee membership (or specific positions within the committee) prior to the AGM and these nominations are included on the Agenda of the AGM, and that no nominations can be accepted from the floor of the meeting.
The Act states: “A nomination may be made at any time before the election is held and may be made at the meeting.”
Note the word ‘may’ rather than ‘must’. ‘May’ means that this is optional.
An electronic voting form would then be attached to each AGM Agenda and would be required to be returned prior to the meeting time.
This allows people the choice to either attend the meeting in person and vote, or vote electronically. This is very common in QLD.
Electronic voting frees people up from having to give their proxies to someone else if they cannot attend the AGM, and allows people to vote without fear of pressure or persecution.
This is clearly permitted in the Act.
Schedule 1 Meeting procedures of owners corporationDivision 3 Manner of voting28 Manner of voting(1) A vote at a meeting by a person entitled to vote or by a proxy must be cast in person unless the owners corporation, by resolution passed at a general meeting, determines that a vote may be cast by some other specified means.
(2) The regulations may make provision for or with respect to the following:
(a) the means of voting (other than in person) that may be adopted by an owners corporation,
(b) without limiting paragraph (a), procedures for voting by those means,
(c) prohibiting or requiring the use of specified means of voting.
@Lady Penelope said:
… the OC could adopt a Motion requiring that owners are nominated and seconded for committee membership … prior to the AGM … and that no nominations can be accepted from the floor of the meeting.That wouldn’t fly as it would be in contravention of Section 30 (5) of the Act which says: “Nomination for election as a member of a strata committee … may be made before or at the meeting at which the election is held.”
Also, there is no requirement for a seconder in NSW for either agenda motions or nominations for election.
The opinions offered in these Forum posts and replies are not intended to be taken as legal advice. Readers with serious issues should consult experienced strata lawyers.
From my understanding of the Act the word ‘may’ indicates that it is an optional provision. The Act would say ‘must’ if it was mandatory.
Therefore the suggestion that I made about electronic voting at an AGM for committee members shouldn’t conflict with the Act, provided that this had been approved by the OC at a general meeting prior to the change of procedure.
A suggestion for the OC with regards to ‘getting to know’ the candidates would be to require that each candidate write a short paragraph about themselves and their experience, possibly a max of 100 words. An OC may even want the candidate to include a photo.
The Electronic Transaction Act should provide guidance as to how electronic voting is conducted:
https://www.legislation.nsw.gov.au/inforce/235adf26-6085-6179-8cbd-d0ddf6bbdab4/2000-8.pdf
Clarification can be sought from the OFT.
Electronic voting works VERY well in QLD.
Apologies about the ‘seconder’.
@Lady Penelope said:
From my understanding of the Act the word ‘may’ indicates that it is an optional provision. The Act would say ‘must’ if it was mandatory.That’s one interpretation, for sure. There is a difference between “may” and “must”.
But in this context – specifically your suggestion of a by-law that says no nominations could be made at the meeting – that would change “may” to “may not” and would therefore be in conflict with the Act (IMHO).
By the way, I think there is a lot of window dressing in the Act that doesn’t stand up to close scrutiny.
For instance, how can the law give ordinary owners the right to attend strata committee meetings and yet also allow “paper” or online meetings where owners can’t actually attend?
And yes, electronic voting is one very effective way around the proxy problem but I think it should be restricted to non-resident owners. Otherwise the existing very poor levels of engagement will only get worse.
I recently heard about a block of 300 units where only three owners turned up for the AGM.
The opinions offered in these Forum posts and replies are not intended to be taken as legal advice. Readers with serious issues should consult experienced strata lawyers.
The word “may” in that context is permissive, i.e. you can nominate in writing prior to the meeting, or you can nominate in person at the meeting. That is sensible, as it covers two scenarios, including where someone can’t attend.
It does not denote that it is an optional provision.
Any attempt to stop people nominating at the meeting would be invalid.
We, a large scheme in NSW, have used electronic pre-meeting voting for a couple of years (4 meetings) and it certainly stops the proxy issue.
Our electronic agenda allows for nominations, number on committee and a ranking score – where a poll/ballot is required.
Just so you know, at a recent NCAT hearing, the member determined that ‘excluding’ voting options from (say) non-residents, would not stand up to a challenge.
@Puddn said:
Just so you know, at a recent NCAT hearing, the member determined that ‘excluding’ voting options from (say) non-residents, would not stand up to a challenge.I don’t doubt it. But I think this is an area of the law that could with a tweak, based on the real experiences of people who have lived in strata rather than junior policy wonks who still live with their parents in a McMansion.
The opinions offered in these Forum posts and replies are not intended to be taken as legal advice. Readers with serious issues should consult experienced strata lawyers.
Here is an interesting Podcast from Amanda Farmer (a specialist strata lawyer from Your Strata Property) regarding the issue of electronic voting:
https://www.yourstrataproperty.com.au/106-resolving-the-confusion-around-electronic-voting/
There are companies that assist in the setting up of electronic voting for your strata scheme e.g. Stratabox.
There are both benefits and pitfalls of electronic voting.
As a Queenslander who has never voted any other way, (even though I still turn up to AGMs when I am able) I find electronic voting, via emailing back the completed voting form prior to the AGM, to be a way of including all owners, even those that do not live in the area.
Qld has many owners from interstate and overseas who would not ordinarily be able to attend an AGM and cast a vote in person.
As a comparison between Qld and NSW, I have provided a link below to the Qld system for nominating Committee members. Nominating and voting for a Committee is a well organised and simple system and one that NSW may consider adopting one day.
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