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Code Of Conduct by Committee Members
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scotlandx
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10/08/2017 - 5:51 pm
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You can't include a penalty for a breach, the Committee doesn't have any power to penalise its members, they're not a tribunal or a Court.  To be honest if someone asked me to agree to that I would refuse.

The Qld extract above doesn't include any penalties?

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el capitan
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10/08/2017 - 6:19 pm
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Unfortunately, Lady Penelope, in NSW we can't require signing up to the Code of Conduct, we can't enforce beyond "naming" miscreants. It really is about encouraging and supporting good behaviour rather than enforcing it.

In my situation, I'm happy to put miscreants on notice that their behaviour is frowned upon, knowing it may not have any real impact in the end. At least it shows all owners how things should be run, and shows there's widespread support for better behaviour from the miscreants (if the motion passes).

El Cap

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Lady Penelope
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10/08/2017 - 6:42 pm
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Hi Scot. The 'penalty' that I was referring to is not a financial penalty ... the penalty is the potential to be removed from the committee for a code of conduct breach. The ultimate removal is done by the body corporate and not the committee, and only after a process that spans two general meetings. 

It's a pity that NSW didn't go down the same path as Qld by including a formalised Code of Conduct in the new(ish) NSW Act. From memory, it was mooted. It would certainly have gone some way to smartening up the behaviour of some of the NSW committees!

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Sir Humphrey
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10/08/2017 - 7:20 pm
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Lady Penelope said
... It's a pity that NSW didn't go down the same path as Qld by including a formalised Code of Conduct...

The ACT (and perhaps others) also has a Code of Conduct in its Unit Titles (Management) Act 2011. 

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scotlandx
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10/08/2017 - 7:24 pm
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Ok - that's not a penalty, that's an outcome.

I can see why people are looking for more guidance and certainty on conduct of Committee members, but am not convinced that a legislated code of conduct achieves much. The ongoing issue is that people will go on a Committee for a range of reasons including self interest, and those reasons will drive their behaviour, whether or not there is a code of conduct.

One thing that does come out in the Qld legislation that is not so clear in the NSW legislation, is that Committee members must act in the interests of the owners as a whole, which is a primary issue.

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Lady Penelope
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10/08/2017 - 7:55 pm
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Codes of Conduct can be both a shield and a sword. Codes of Conduct are useful for situations where owners sometimes mistakenly and/or maliciously accuse the committee of breaches of codes of conduct.

An interpretation of the meaning of these provisions is here: 

http://www.mystrata.com/doc-st.....Aug_07.pdf

I am not sure about other States but the QLD BCCMA also has codes of conduct for other parties associated with the body corporate schemes:

SCHEDULE 2--CODE OF CONDUCT FOR BODY CORPORATE MANAGERS AND CARETAKING SERVICE CONTRACTORS 1. Knowledge of Act, including code 2. Honesty, fairness and professionalism 3. Skill, care and diligence 4. Acting in body corporate's best interests 5. Keeping body corporate informed of developments 6. Ensuring employees comply with Act and code 7. Fraudulent or misleading conduct 8. Unconscionable conduct 9. Conflict of duty or interest 10. Goods and services to be supplied at competitive prices 11. Body corporate manager to demonstrate keeping of particular records

 

SCHEDULE 3--CODE OF CONDUCT FOR LETTING AGENTS 1. Honesty, fairness and professionalism 2. Skill, care and diligence 3. Acting in body corporate's and individual lot owner's best interests 4. Ensuring employees comply with Act and code 5. Fraudulent or misleading conduct 6. Unconscionable conduct 7. Nuisances 8. Goods and services to be supplied at competitive prices

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JimmyT
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11/08/2017 - 8:48 am
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Mailbox said
Code of conduct I think is something everyone will just agree to sign, and good luck with trying to achieve compliance. The majority of reasonable people already follow these – the troublemakers will never follow them and having them sign this won’t change that. They are bullies who ignore sanctions which have no teeth.   

The reason I suggested having a "naming" mechanism is so that, at the very least, at the next AGM you can show that certain members have been consistently disruptive and encourage owners not to re-elect them to allow for the smooth running of the committee.

The reason I suggested this be put to a vote at the committee was to show that the majority of the committee agreed they had been disruptive and to ensure there was no comeback with threats of defamation.  The committee has qualified privilege when it comes to identifying owners who have caused problems.  In other words, the "naming" is part of the process rather than a personal dispute between the disruptive owner and the chair.

Recording the meetings and posting them on social media would be a bridge too far for many committee members who want to be able to have an open and frank discussion about issues the details of which they don't necessarily want to broadcast to the world. 

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el capitan
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11/08/2017 - 10:11 am
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Hmm - decisions, decisions.

Today is deadline day to add items to our agenda. I worry what behaviour might be triggered by the proposal to have the code of conduct, given any problem people could just say they're not going to sign it. Our OC is small enough that we need "all hands on deck" as far as willing participants for the SC goes - this includes people whose behaviour has been less than ideal historically.

I can imagine one argument: "If someone doesn't sign up for the CoC, we can't name them for breaching it as they haven't signed up for such a process."

I've decided to hold it in reserve for the next AGM based on the next year's behaviour. In the meantime, I just have to get better at calling out bad behaviour when it happens.

El Cap

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JimmyT
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11/08/2017 - 10:52 am
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For what it's worth, I think the Code of Conduct is a bit much to have as well as the standing orders, and you run the risk of losing everything because of perceived overkill.

I also share other Flatchatters concern about the legal standing of the code of conduct.  You can't force people to sign it so, or prevent them being elected if they don't, so why would they?

My advice would be to get your standing orders through and then have an extended discussion with all owners before the next AGM about what form a code of conduct might take before presenting it to next year's AGM. 

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Austman
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11/08/2017 - 1:02 pm
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I think it's overkill.  And it runs the risk of turning away people who might be good on the committee.  I think it would put me off (I've been a member of OC/BCs for 38 years in NSW, ACT, VIC and overseas, mostly as a committee member or chairperson).

FWIW, here are the Victorian requirements:

 

117 Duties of committees and sub-committees
A member of a committee or sub-committee of an owners corporation—
(a) must act honestly and in good faith in the performance of his or her functions; and
(b) must exercise due care and diligence in the performance of his or her functions; and
(c) must not make improper use of his or her position as a member to gain, directly or indirectly, an advantage for himself or herself or for any other person.

 

So fairly simple and broad.  It's up to a tribunal to interpret and enforce it. Which would be the case with a more complicated by-law/rule as well.

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Sir Humphrey
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11/08/2017 - 2:18 pm
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I think the safest thing for an OC in a state or territory without a legislated code of conduct would be to adopt verbatim the code of conduct from one of the other state's or territory's Act. It could be adopted as a by-law (Aka article or rule depending on the jurisdiction) that directs the action of any future committee member. A committee is bound to act in accordance with the direction of a general meeting resolution (unless it would be illegal).

That would get around the discouraging business of asking/requiring individual committee members to sign a bit of paper.

It would also reduces the risk of a home-grown set of words that it might be drafted with some non-obvious flaw. A code of conduct included in another state's legislation would have survived considerable scrutiny. It might also be more readily supported by conservative owners for that reason - less risk of some unintended effect.

If a committee member then failed to act in accordance with the code of conduct, you have the option to invoke the processes for a rules infringement/breach of by-laws. Following a process set out in legislation is more likely to be upheld if challenged than some home-brew concoction. 

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scotlandx
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11/08/2017 - 2:45 pm
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I can see where you are coming from Sir Humphrey but the by-laws apply to all the owners and residents, and govern the behaviour of the residents and common property.  Any code of conduct applies to the members of the Strata Committee in that capacity and therefore if you wanted one (although I don't believe you should have one) you would need to keep it separate.

I agree with Austman, the Victorian provision is succinct and summarises the duties of Strata Committee members.  I don't know why they didn't include something like that in the NSW legislation, they took long enough to produce it.

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Sir Humphrey
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12/08/2017 - 6:10 pm
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scotlandx said
I can see where you are coming from Sir Humphrey but the by-laws apply to all the owners and residents, and govern the behaviour of the residents and common property.  Any code of conduct applies to the members of the Strata Committee in that capacity and therefore if you wanted one (although I don't believe you should have one) you would need to keep it separate.

I am not sure I agree with this logic. All members of the OC are potential committee members (subject to being elected etc) so a code of conduct applies to all and any member if and whenever they happen to be on the SC/EC. I'd say this is not unlike a rule/bylaw that says something about what you can do on a balcony. It is general in that it applies to every unit that has a balcony. The generality is not negated just because in a particular OC there might be some units that don't have balconies. 

In resolving to adopt (say) the ACT code of conduct, a general meeting of the owners would be instructing its committee at any time to operate a particular way. I would argue that the OC has the power to direct the SC/OC in any way that is not contrary to the Act or other legislation. I think it would also have the power to thereby make it a breach of the bylaws (an infringement of the rules in ACT-speak) to act contrary to the code it has adopted. That would enable a  clearly specified process to be brought into play (or at least threatened) if a committee or committee member behaved badly. 

I agree with Austman, the Victorian provision is succinct and summarises the duties of Strata Committee members.  I don't know why they didn't include something like that in the NSW legislation, they took long enough to produce it.  

The ACT code is not much longer:

Executive committees—code of conduct

1 Understanding of Act and code

An executive member must have—

(a)a commitment to acquiring an understanding of the Act, as relevant to the member’s role on the executive committee; and

(b)a good understanding of this code. 

2 Honesty and fairness

An executive member must act honestly and fairly in exercising the member’s functions as an executive member.

3 Care and diligence

An executive member must exercise reasonable care and diligence in exercising the member’s functions as an executive member.

4 Acting in owners corporation’s best interests

An executive member must act in the best interests of the owners corporation in exercising the member’s functions as an executive member, unless it is unlawful to do so.

5 Complying with Act and code

An executive member must take reasonable steps to ensure that the member complies with the Act, including this code, when exercising the member’s functions as an executive member.

6 Nuisance

An executive member must not—

(a)cause a nuisance on the land; and

(b)otherwise behave in a way that unreasonably affects a person’s lawful use or enjoyment of a unit or the common property.

7 Unconscionable conduct

An executive member must not engage in unconscionable conduct in exercising the member’s functions as an executive member.

Examples

1 improperly using the executive member’s position on the executive committee to gain, directly or indirectly, an advantage personally or for someone else

2 exerting undue influence on, or using unfair tactics against, the owner of a unit in the units plan

Note An example is part of the Act, is not exhaustive and may extend, but does not limit, the meaning of the provision in which it appears (see Legislation Act, s 126 and s 132).

8 Conflict of interest

An executive member must disclose to the executive committee any conflict of interest the member may have in a matter before the committee.

 

My contention is that one provision or another of the above would give a complainant something to hang their hat on if a committee member was behaving badly. 

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JimmyT
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12/08/2017 - 6:49 pm
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I would start from the point that Section 139 says any by-law "must not be harsh, unconscionable or oppressive."

Then, by implication, a bylaw that required committee members to act reasonably, fairly and honestly may well pass muster.

However, if it insisted that they enforce the by-laws,  that might be seen as oppressive, as there may be times when it is in the best interests of the majority of owners not to do so (for instance, when informal parking arrangements technically infringe by-laws but every body is happy with them).

Also, you can't demand that strata committee members sign a code of conduct as that might limit their ability to serve on the committee in a way that that Act does not envisage.

It would be a too easy for someone to sign a code of conduct and just ignore it when it suited them.  What do you do then?  Issue a Notice To Comply?  

I know there are circumstances where having a code of conduct might appear to be helpful, but if you have someone who is going to behave unreasonably, then I wonder if a code of conduct is going to make much difference.

That said, these documents often act, at best, as a reminder to people of how they should behave rather than a mechanism for punishing them when they don't.

It's like a mission statement - this is how things should be (even if they often aren't).

On balance, I think a Code of Conduct like the ACT's might be valuable but I wouldn't go to the barricades to have it introduced.

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