We have been fielding a number of enquiries around legislative obligations of operators during the COVID-19 pandemic.
Last week national law firm Minter Ellison came out with yet another great communication as a guide for retirement living operators who may have legislative or contractual obligations to call a meeting of all residents during the pandemic.
Meetings still have to be held.
Tammy Berghofer, a senior counsel at Minter Ellison shared;“The retirement villages legislation generally does not provide for any suspension of, or basis to delay, residents meetings that must occur within specified time periods”.
No state or territory has changed this in response to the COVID-19.
The Minter Ellison guide covers all this and makes recommendations. You can check it out in full here.
The first questions you will have:
Can you do video meetings?
In summary, audio/video meetings are most clearly permitted in South Australia (in all cases) and Tasmania (where an exemption from the Minister is obtained).
Operators in Queensland, New South Wales, Victoria, the Australian Capital Territory and the Northern Territory can hold their meetings by audio/video means with reasonable confidence on the basis that the common law position permitting such meetings is preserved in those jurisdictions (subject to the exceptions mentioned above).
For Queensland the matter will be even clearer if the expected regulations are passed.
The position is least clear in Western Australia where the legislation may require physical meetings – regulatory guidance from the relevant authorities to put the matter beyond doubt would be ideal.
What should operators do?
Minter Ellison recommends that operators take the following approach to meetings required under the retirement villages legislation while the COVID-19 restrictions are in place:
- Consider whether the meetings can be lawfully avoided or delayed until after the COVID-19 emergency passes.
- If a meeting cannot be avoided or delayed (for example, because a resolution of residents is required to pass the services charges budget for the new financial year), consider whether it can lawfully be held by audio/video means instead of in person, having regard to our comments above.
For Western Australia, it would be ideal to wait (if possible) for the government to pass regulations specifically permitting the holding of non-physical meetings to ensure there is a clear mandate to do so, and to avoid the risk of any subsequent challenge to the validity of the meeting by residents.
In Tasmania, the safest course of action is to apply to the relevant Minister for an exemption allowing a non-physical meeting as soon as possible.
- If a non-physical meeting is to be held, make arrangements to hold the meeting in a way that complies with the common law requirement that all parties be able to be ‘present’ with, and respond to, each other.
This will involve selecting an appropriate communication or technology platform that allows for full communication between participants, and which can handle a large number of participants at the same time.
Various available technology platforms allow for audio (ie telephone only) and/or video participation. They also have in-built meeting functions such as voting, sharing information or videos, asking or submitting questions, and producing a recording or transcript of the meeting.
Operators should consider which platform is best for the type of meeting planned, and any assistance residents may require to have access, such as the installation of any necessary software or hardware in their unit.
- Engage with the resident body (or residents committee) as soon as possible to ensure all residents are informed and consulted about the format of the meeting and any vote to be held, and that any specific concerns are addressed.
Consider inviting residents to submit questions for the meeting in writing as soon as possible so they can be efficiently answered in the meeting.
- Make any supplementary practical arrangements necessary to allow full participation and voting (if required) at the meeting, which may include:
o delivering physical ballot papers and information packages to residents’ units;
o providing a locked container in the village for postal votes;
o providing clear instructions to residents on how to interact and vote; and
o checking and testing the technology before the meeting.
- Ensure that the conduct of the meeting (particularly if a vote is to be taken) complies with all rules for meetings under the relevant retirement villages legislation and common law.
This may include rules about the giving of meeting notices, who may attend, quorums, voting rights and proxies, voting by former residents of vacated units, the counting of votes, and recording of minutes.
Our advice: engaging the Residents Committee is always a first move.