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Can a Secretary refuse to have Motions on Committee Meeting Agenda?
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Larry
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27/03/2018 - 11:20 pm
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Hi FlatChat

Our Secretary has scheduled a formal Committee meeting by phone conference. He intends to issue an Agenda but not corresponding Motions for voting on. The Secretary is supported by another Committee member in not having Motions on the grounds that having them “inhibits discussion” but which I have reason to believe there are ulterior motives.

I, (Chairperson) and the two other Committee members are concerned that not having specific Motions to vote yes or no on will lead to a manipulated process which results in “decisions” that are not in effect the majority Committee view but reflect the wishes of the minority i.e. Secretary and the other member who have a history of being domineering and controlling in our strata matters. Majority Committee decisions that are made by email on day to day basis that they disagree with is met with strong resistance.

I also believe that under Schedule 2 of the NSW Strata legislation that formal meetings require not only Agenda but Motions.

It is possible that another Committee member won’t be able to attend the phone conference Committee meeting for various reasons, so not having specific Motions would mean that they would not have opportunity to vote prior. Also, other owners would not have opportunity to oppose a Committee Motion prior to the meeting, which I understand they are allowed to do under Schedule 2.

Can I (and/or any other Committee member) insist that the meeting be conducted according to Schedule 2 of the Act?

If Secretary still refuses what can I, as Chair, do?

Hope you can help!

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Lady Penelope
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28/03/2018 - 3:30 am
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Larry – From my understanding of the Act, the Secretary calling for a meeting to be held by phone, is not valid under the circumstances that you have described. From your description of the circumstances, any such meeting would be Out of Order (see below at(4)).

In answer to your other queries:

(1) A detailed Agenda for the Committee Meeting must be provided by the Secretary but this does not mean that all Motions must be determined before hand. If actual attendance at the meeting is required then an Agenda may include Motions but legislation does not require it to contain Motions.

(2) If, however, a Motion was proposed by a Committee member and Seconded by another member prior to Notice being given of the meeting by the Secretary then the Secretary must include the Motion on the Agenda. 

(3) It is the Secretary’s role to call a meeting. However, Committee Meetings can also be called when over one third of the committee members submit a request in writing to the Secretary that they would like a Committee Meeting to be held. 

(4) There are various ways that committee meetings can be held – by attending in person, or by phone, or by written approval of Motions with no actual attendance required etc. However, all other methods, apart from meeting in person, must be approved by the Committee. The Secretary does not have the authority to make a decision to hold a Committee Meeting by phone. The unauthorised phone meeting would be breaching the Act and can be ruled Out of Order. If a majority of the Committee only wants to hold ‘in person’ meetings then that is the only way that a Committee Meeting can be held.

(5) When no attendance is required at a Meeting then all Motions need to be submitted for inclusion on the Agenda prior to the meeting. These types of meetings require that valid notice must be given to each member (with the required motions) and the majority of members must approve the motion(s) in writing to the secretary (by way of a voting paper).

(6) Proxies can be used at Committee meetings. To prevent your majority being lost by a member not being able to be present at a meeting, a Committee member may act as a proxy for another committee member who is unable to attend the meeting. The proxy giver would need to notify the Secretary in writing prior to the meeting that they have given their proxy to another member. The proxy recipient would, of course, need to agree. 

(7) After opening the meeting, the Chairperson would note the Apology of the absent member and would state the name of the member Present who has the proxy for the absent member. Proxies should be recorded in the Minutes. 

(8) You, as Chairperson, can rule a Motion out of Order if it conflicts with the Act or the by-laws, or is unlawful or unenforceable. This may be useful if the ‘ulterior motives’ that you refer to are unlawful.

(9) How was the Secretary appointed to the position of Secretary? Was this decision made by the Owner’s Corporation at the AGM or was it this decision made by the Committee? In NSW, once the strata committee is elected, it is usual for the members of the committee to decide who is to hold the officer positions of Chairman, Secretary & Treasurer.

(10) If your committee is unhappy with the current Secretary then the officer position of Secretary can be ‘unmade’ in the same way that it was ‘made’ i.e. by majority vote of the Committee members. Another Secretary can then be appointed by majority vote of the Committee members. NB: The Committee member’s names are not changing – the only change is the designated officer roles within the Committee. 

(11) Committee Motions can be vetoed by the owners. There are two opportunities for this to arise. (a) From Motions yet to be resolved, as reflected on the Meeting Agenda, and (b) From Motions that have already been resolved, as reflected in the Minutes. In both situations the Motion must not proceed where the secretary has received a notice opposing a motion (in writing) from owners who represent more than one third of the aggregate unit entitlements for the strata scheme. 

NB: This is why it is necessary for the Minutes of the Meeting, including all resolutions made, to be made available to all Owners within 7 days of the Meeting being held. It enables the owners to object to Committee decisions should more than one third of them wish to do so.

A detailed guide to serving on the Strata Committee is here:

https://www.netstrata.com.au/wp-content/uploads/2017-A-Guide-to-serving-on-a-Strata-Committee.pdf

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Larry
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06/04/2018 - 6:31 pm
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Lady Penelope (& Flat Chatters) 

Update

Re point 2 – I have since proposed, by email to the Secretary and Committee, an Agenda item and two related Motions for inclusion on the Meeting Agenda (a proposed date has been set but Agenda has not yet been issued but no doubt will be shortly). The Motions that I proposed have been seconded, not only by one person but two. Three is a majority on our Committee. 

I understand that the Secretary is therefore dutybound to include these Motions on the Agenda.

However, the Secretary has refused to include on the Agenda on the grounds that there is too much emphasis on “processes” and not enough on the issues involved. However, the Secretary and another Committee member (Member X) are very much against the Motion being passed, hence their resistance. 

What can we do if the Secretary flatly refuses to include on valid Motions on the Agenda? I know there is avenue of going to Tribunal but is there anything we can do before we consider taking that step?

Background (Nature of issues involved)

The issues are:

– window safety devices that needed to be installed on all our windows in accordance with legislation by 13 march 2018 (we haven’t had them installed!)

– possible complete window replacement in our building

Earlier this year Committee agreed, by majority, by email (which is our approved method by which most of our day to day strata committee decisions are made) installation by a company of window child safety devices by 13 March. This decision was vehemently opposed by Secretary and Member X on the grounds that as we are in the process of looking to replace all the windows in our block, who to get quotes from etc) it would therefore be a waste of money to install safety devices on our existing windows. Advice from our Strata Manager was that window safety devices needed to be installed by 13 March irrespective of current condition of windows or any future intention to replace to replace them all. Secretary and other member still vigorously opposed to the point of bullying. Majority Committee view was that it was not an ideal situation, but it was highly unlikely that we would have sufficient time to arrange quotes for window replacement, assess quotes and arrange EGM for approval of window replacement and have it all done by 13 March, hence majority was of view we should have safety devices installed on existing windows to be compliant under the legislation. Because of Secretary and Member X’s continued vigorous opposition, Strata Manager suggested that she could organise a Schedule 2 Committee meeting to “formalise” what had already been decided by majority by earlier email. Majority couldn’t really understand why that was necessary given earlier, valid decision but nevertheless was prepared to accept formal meeting under Schedule 2. We were sick of the constant bullying, resistance etc.

However, Secretary didn’t want meeting arranged by Strata Manager under Schedule 2 (as it would have meant a specific Motion to install the window devices on existing windows which they opposed) and instead is organising a Committee meeting by phone (we have no objection to holding it by phone conference) but intends to produce an Agenda without specific motions which I understand he can do (according to Lady Penelope’s above advice) and tying the issue of obtaining quotes for window replacement in with window safety devices (using waste of money argument).  

However, as mentioned above, I have proposed a specific Motion (seconded) to have window safety devices installed on existing windows and have requested Secretary to specifically include it on Agenda – basically requesting what our Strata Manager suggested i.e. to ‘formalise’ a decision already previously made by majority (although I cant see why we would in fact need to do that given a valid decision already made) 

But Secretary continues to resist despite me saying that he is obliged to include my Motion. I’m concerned that he will send out Agenda without my specific, seconded Motion, the reason being clear i.e. that he and Member X don’t agree with it. 

P.S. Lady Penelope, re your point 9, five people nominated for Committee at AGM for five Committee positions. Officeholders were chosen by Committee., however, I suppose like in many ECs people can be reluctant to stand against existing officeholders. However, one Committee member did stand against an existing officeholder and was duly elected.

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Lady Penelope
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06/04/2018 - 8:54 pm
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Your group within the Committee appear to have the majority.

From my understanding, you are the Chairperson so therefore you will Chair the Meeting by phone and you will control the meeting. You will need to be firm and not have the Secretary dominate the meeting or become unruly.

Who will be taking the Minutes of the Meeting – the Strata Manager???? How will this happen?

This is what I would do if I was you:

  1. You will need to inform the Secretary ASAP that the Secretary does not have the authority to refuse to include the Motions on the Agenda, and that you expect to see the Motions on the Agenda. I would do this by email and CC it to all Committee members and the Strata Manager.
  2. Only the Chairperson has the authority to rule Motions Out of Order. Motions can only be ruled Out of Order in a limited number of circumstances and the Secretary’s reasons for not including them on the Agenda (e.g. there is too much emphasis on “processes” and not enough on the issues involved) are not valid under the Act, and are not within the Secretary’s role to refuse to have included. See the circumstances below in (7).
  3. If the Motions are not on the Agenda then your next move is to propose them at the next meeting which it appears will be held by phone. Do this as early as possible in the Meeting. There will probably be an Agenda item about ‘Window locks’ or ‘Windows’ so this is where you will need to propose your Motions.
  4. Either of the other two members who support your Motion can Second the Motions. The 3 votes FOR the Motions should outnumber the 2 votes AGAINST the Motions. Your Motions should be PASSED.
  5. If one of your supporter Committee members cannot attend the meeting by phone then they can give you their proxy. Make sure that they comply with the regulations for proxies. 
     
     Access a form you can use from the Forms page on the Fair Trading website (or call 13 32 20 to ask for a copy).
    Proxies must be given to the Secretary before or at the meeting. For large schemes, the proxy must be given to the Secretary at least 24 hours before the scheduled meeting.
  6. The 2 members who are against the installation of the window locks are in serious Breach of the Legislation. Your Strata Manager knows this. The deadline for the installation has passed therefore your building is non-compliant. This will impact on your Insurance Liability.
  7. You, as Chairman can rule Out of Order any Motion that is raised by the Secretary or any other member to delay the installation of the window. A Motion to refuse to install the window locks or to delay the installation of the locks is a Motion that is in conflict with the Act. You have the authority to rule these types of Motions Out of Order under Section 15 in Schedule 2:

 

Section 15  Chairperson may rule certain motions out of order

The chairperson at a meeting may rule a motion out of order if the chairperson considers that the motion, if carried, would conflict with this Act or the by-laws of the strata scheme or would otherwise be unlawful or unenforceable.

 

  1. You should explain to the Secretary that the Committee cannot delay this installation on the mere off chance that the windows will be replaced. Any approval for the replacement of the windows in your building is likely to be a few months away at least, and there is no guarantee that approval to replace all of the windows will be PASSED at a General Meeting. The Secretary does not have a ‘crystal ball’, and nor can he predict the future!
  2. At this Meeting I suggest that you endeavour to remove the Secretary from their position as Secretary. They are wielding their power inappropriately and do not have sufficient knowledge of the Act. 
  3. You would need to propose a Motion to remove the Secretary and propose another member to be the new Secretary. You will need a person to Second the Motion and of course, you will need your 3 votes FOR the Motion to form a majority and have the Motion PASSED.
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JimmyT
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07/04/2018 - 8:45 am
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The first motion I would be putting on the next agenda would be to vacate the secretary’s role and elect a new one, even if it meant the chair doubling up.

Despite what the Fair Trading call centre operators are telling people, the committee can change the office-bearers by a simple majority (although you can’t remove them from the committee).

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Larry
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15/04/2018 - 10:18 pm
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Thanks for the helpful advice Lady Penelope and Jimmy.  

However, re refusal to include submitted Motions on Agenda, is there specific reference in the Act or its Regulations that specifically states a Secretary has no (legal?) authority to exclude the Motions? I have searched thoroughly in both but am unable to find. Such reference would be particularly useful especially prior to any vote on removing Secretary. 

Re minute taking at Committee meetings where Strata Manager is not in attendance, can Committee members vote at start of meeting, or can Chairperson decide, who is to take Minutes? Or is the taking of minutes an automatic function of the Secretary only? And again, any specific legal reference in Act or regulations for the above? 

  

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Larry said
… re refusal to include submitted Motions on Agenda, is there specific reference in the Act or its Regulations that specifically states a Secretary has no (legal?) authority to exclude the Motions?

There is nothing that I can find to that effect.  The secretary is expected to adhere to the basic principles of  Section 37 of the Act, namely: “It is the duty of each member of a strata committee of an owners corporation to carry out his or her functions for the benefit, so far as practicable, of the owners corporation and with due care and diligence.”

Re minute taking at Committee meetings where Strata Manager is not in attendance, can Committee members vote at start of meeting, or can Chairperson decide, who is to take Minutes? 

If there is any anticipated dispute over the minutes the chairman can nominate someone  – anyone – to take minutes and then ensure they are incorporated in the final minutes.  To make them the official minutes, they should propose a motion at the beginning of the meeting that the minutes will be taken by a nominated minute-taker.

Or is the taking of minutes an automatic function of the Secretary only? And again, any specific legal reference in Act or regulations for the above?     

No and no. Section 43 (a) says this: “The functions of a secretary of an owners corporation include the following … to prepare and distribute minutes of meetings of the owners corporation and submit a motion for confirmation of the minutes of any meeting of the owners corporation at the next such meeting.”

Not the use of the word “prepare” rather than “record”. It is significant  The secretary’s job is to prepare minutes that reflect the decisions and discussion of the meeting.  These note could come from a variety of sources.  If their minutes don’t reflect the previous meeting, you don’t accept them at the next one.

Can I just say, once again, that you appear to be nibbling round the edges of this problem, which could be quite serious. 

If the secretary isn’t doing what the majority of the committee wants, then just vote to declare the position open and appoint someone else.  You can’t sack him or her from the committee that easily, but you can remove them from office. Personally, I would be inviting them to resign rather than face the humiliation of being sacked.

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