Commissioners Corner – Committee Eligibility (QLD)
As the day-to-day decision-making body on behalf of their body corporate, the body corporate committee plays an integral role. Its composition and a person’s eligibility (or not) for membership of the committee can sometimes be a hotly-contested subject.
So let’s look at a few important points, particularly on the topic of eligibility. This is general information intended as a guide and may not be relevant in all cases.
The position of a voting member of the committee becomes vacant (known as a casual vacancy) if the member:
- resigns in writing to the chairperson or secretary;
- is not present personally or by proxy at two committee meetings in a row without the committee’s consent;
- is convicted of an indictable offence (i.e. a more serious crime, whether or not a conviction is recorded);
- is removed by an ordinary resolution of the body corporate;
- dies; or
- becomes ineligible to hold the position.
A member can become ineligible to hold a committee position if they:
- were a lot owner at the time they were elected, but have since stopped being a lot owner;
- were not a lot owner but were nominated by a lot owner who has since stopped being a lot owner; or
- have been engaged as a body corporate manager or service contractor or authorised as a letting agent.
In relation to ceasing to be a lot owner (i.e. due to the sale of the lot), ineligibility commences on settlement, not, for example, when the contract of sale is signed.
I sometimes hear of instances where someone has stopped being a lot owner, but either they want to continue being part of the committee, or the body corporate wants them to remain on the committee.
There may be some good reasons for this. For example, the former lot owner might have some considerable business or other experience and expertise which would be useful to the committee and the body corporate as a whole.
There is nothing preventing the committee from seeking input or advice from this person. From a best practice point of view, if a committee is considering ‘using’ someone in this way, it might be a good idea for them to be as clear and transparent as possible about it, for example, by communicating to the body corporate what the person’s role is (and is not).
Then there is the matter of possible removal of a committee member.
Before talking about this, I would urge committees and bodies corporate in this position to carefully reflect upon their intentions and the consequences of their possible actions, prior to undertaking a removal process.
It might be a lot simpler (and a lot less confrontational in the long run) to try to informally resolve whatever issues exist that lead to a committee or body corporate trying to remove a committee member.
Strange as it may sound, the committee member in question may not be fully aware of these issues, so talking about the issues first could go some way to getting them resolved.
Where there are personality or communication issues involved, getting an alternative dispute resolution process in place could be a good idea. This might be as simple as having the committee member in question sit down with another committee member or members, together with someone else who could be relied upon to impartially encourage a resolution.
Remember that removing a committee member may result in long-lasting animosity and disharmony, so undertaking a formal process of removal should be something to be pursued where all other options have failed.
There are two ways to remove a committee member. The first way is removal via the code of conduct for voting committee members. It is a reasonably prescriptive process, outlined in more detail at https://www.qld.gov.au/law/housing-and-neighbours/body-corporate/forming-a-body-corporate-committee/removing-committee-members/. It is a process based on the principles of natural justice, which means that the committee member in question is given the right of reply to the notice of alleged breach of the code.
The second and, arguably, simpler method is to seek to remove a member from office by ordinary resolution at a general meeting.
The person submitting the motion to a general meeting does not need to give the reason for the removal, although if said motion refers to the code of conduct then the process outlined at the link above would have to apply.
As we see from time-to-time in all levels of government, eligibility for and removal from office prompts fierce interest from all sides. So questions about eligibility for and removal from office in a body corporate context should be carefully considered – with qualified legal advice sought as necessary – and decisions about either matter should not be taken lightly.
For further information about the body corporate legislation please contact our Information Service on Freecall 1800 060 119, or visit our website www.qld.gov.au/bodycorporate.
This article was submitted by Chris Irons, Commissioner for Body Corporate and Community Management.
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What if the committee member only participates in Committee meetings and the AGM by phone. Is he eligible to be a committee member.
Hello Judy and thank you for your query. I recommend you contact the Information Service of my Office on 1800 060 119 or http://www.qld.gov.au/bodycorporate for some further information about this matter.
As you suggest removal of a committee member is a disruptive, unpleasant and often vindictive process. Removal by the 2 step process of firstly issuing a code of conduct violation and then following up with a motion at a general meeting offers some elements of natural justice to the committee member, who is after all a volunteer. Unfortunately the latest property review recommendation is to remove this option and allow a committee member to be removed for no reason at all. This removes all elements of natural justice from the process. It also questions the value of the code of conduct when all reference to the code is removed from the process. Further, the actual steps outlined in the review are totally impractical with respect to attendance at general meetings and the common voting procedures and time frames involved with these meetings. In legislation which perports to be framed on just guidelines, the recommendations in this review re removal of a committee member must not be accepted.
Hello Sandra and thank you for your comment. If you haven’t already done so I would recommend you (and anyone else interested in these matters) consider making a submission to the current review of property laws in Queensland. Submissions on the procedural issues paper regarding body corporate matters are scheduled to close 6 October 2017. Further information is available at http://www.justice.qld.gov.au/corporate/community-consultation/community-consultation-activities/current-activities/review-of-property-law-in-queensland.
We have two Committee members, husband and wife team, BC Secretary and BC Treasurer recently resign from our BC Committee.
It is revealed that the BC Secretary had concealed cheaper Insurance quotations at the past three AGMs. He has only ever published their family Insurance Brokerage Company Invoices to be ratified at every AGM from 2015 to 2017.
The Policy costs the BC more than $215,000 for the 2014-15 year.
The BC secretary allegedly concealed a 2014-15 much cheaper Insurance renewal quotation from another BC Insurance broker, and this has now come to light showing almost $22,000 cheaper than the one presented and paid for by lot owners from their levies 2014.
The BC Committee has refused to investigate any Insurance matters since these anomalies were brought to their attention May 2015.
Finally, they (BC sec and treas.) resigned when constantly pressured to reveal the other similar concealed Insurance quotation documents he would have received each year as the BC secretary. They still refuse to return these documents to BC records for the 2015-16 and 2016-17 years so that BC losses for the whole three years can be calculated,
The Committee replaced them upon their resignation 26 August 17 without giving details of reasons why to all Lot Owners. Their two new replacement voting committee members resigned within a couple of weeks of their appointment never attending a Committee meeting.
The BC Committee have now tried to reinstate the two husband and wife team back onto the committee. Can they do this without and EGM called? Other Lot owners have nominated as replacements on the Committee but are ignored because their views are not aligned with the chairperson.
. The Committee held two flying minutes by telecommunication to elect replacements who are only aligned with the current committee’s agenda and not for the good of the BC. How do we get rid of them all as it is my opinion the BC Insurance debacle reeks of complicity? I have a lot of evidence that could prove this.
Hello Barbara and thank you for your query. I recommend you contact the Information Service of my Office on 1800 060 119 or http://www.qld.gov.au/bodycorporate for some further information about this matter.
We currently have a Treasurer who has not attend “in person” 3 committee meetings this year – February, May and August. For committee meetings the Treasurer attends via a mobile phone call, where a mobile phone is placed in the centre of the table and everyone struggles to hear especially when the finance report is presented. I also believe this treasurer has never viewed any invoices presented for payment. Another ordinary member has taken on the role of counter signing to make payment. Is this classed as being present in person”? Frankly it makes a mockery of holding a position on a committee executive.
Hello Jan and thanks for your comments and queries. I recommend contacting the Information Service of my Office on 1800 060 119 or http://www.qld.gov.au/bodycorporate for some further information about this issue.
I failed to mention that our “no show up at meetings” Treasurer is not a qualified or certified accountant.
The elected Secretary attended the first meeting in February, then no apology or proxy for the second meeting in May and kindly sent a proxy for the third meeting held in August to an ordinary member which then had to be voted on to be accepted.
Both the Treasurer and Secretary reside interstate.
There were other owners who nominated for these positions so an argument would be lost in saying it is difficult to get nominations which is the case in other buildings. These other owners either reside 24/7 or visit regularly and would attend meetings “in person”.
The cost of attendance by phone is an expense and it should be declared by the nominee at the time of nominating if this is their intention of how they will fulfill their role if successful.
Currently it is the BCM’s phone being used at meeting therefore it assumed that the cost of the “attendance ” is a cost incurred and passed on to the body corporate and if this is happening then my understanding is it is against the legislation.