Discrimination or sexual harassment can affect lot owners, tenants, visitors, committee members and people working in a body corporate. Knowing what to record and who to approach can help you respond safely and clearly.
This article covers practical steps for raising concerns, how body corporate rules may apply and where body corporate dispute processes may help.
What should you do about discrimination or sexual harassment in a body corporate?
If you experience or witness concerning behaviour, consider:
- writing down what happened, including dates, locations and the people involved
- keeping relevant emails, text messages, notices, photographs or other records
- noting who was present and whether the conduct affected access, use of common property or a body corporate decision
- raising the issue in writing with the body corporate manager, committee or another appropriate contact
- asking for a specific outcome, such as a decision, repair, change to a process or enforcement of a relevant by-law.
Keep your records factual and store them safely. Avoid sharing personal information more widely than necessary.
You do not have to handle serious harassment privately. If you feel unsafe, are concerned about retaliation or believe there is an immediate risk, consider getting independent support before contacting the person involved.
The conduct may also relate to a landlord, letting agent, contractor or employer. Those issues may involve processes outside the body corporate’s internal procedures. Identify which organisation or person controls the issue before deciding what to do next.
What is discrimination in a body corporate?
The word discrimination is used in different ways. In a body corporate, a concern may arise when a person is treated differently in relation to:
- access to common property or facilities
- use of services provided by the body corporate
- maintenance requests
- quiet enjoyment of a lot or common property
- committee or general meeting processes
- employment or engagement of workers
- conditions placed on an owner, tenant or another occupier.
These are practical examples, not a complete statement of the law. Not every different treatment is unlawful. For example, a safety-based restriction may be reasonable in the circumstances. The legality of a decision depends on the applicable legislation and the facts.
The body corporate’s by-laws are an important starting point. By-laws regulate the use of lots and common property, behaviour on body corporate land, and services and facilities provided by the body corporate. Tenants must comply with the by-laws and should receive a copy when they start their lease.
A by-law must not discriminate between types of occupiers. For example, a by-law allowing owners but not tenants to use a common property pool may be invalid. A by-law can continue to apply unless and until an adjudicator decides that it is invalid. Do not simply disregard a rule because you believe it is discriminatory.
If you are unsure which by-laws apply, check the community management statement and the records held for the scheme. By-laws can differ between schemes, particularly where a scheme was created under different legislation.
For more on inclusive planning and access, see Disability access for bodies corporate: is your building wheelchair-friendly and assistance animals in a body corporate.
What behaviour may be sexual harassment?
Sexual harassment can involve unwelcome conduct that is sexual in nature. It may be physical, verbal, written or communicated through digital channels.
Examples may include:
- unwelcome touching, staring or leering
- sexual comments, jokes or invitations
- intrusive questions about someone’s body or private life
- deliberately brushing against someone
- sending sexual messages, pornography or rude jokes
- displaying sexual images in a workplace or shared setting
- communicating sexual content through social media or text messages.
These examples help identify concerning behaviour. They do not provide a complete legal test. The surrounding circumstances matter, including what was said or done, where it happened, whether it was welcome and the effect on the person involved.
A complaint might involve conduct in a lift, foyer, car park, pool area, meeting, email exchange or online group. It may also involve a caretaker, contractor, committee member, resident, tenant or visitor.
If the behaviour is persistent, threatening or accompanied by intimidation, avoid confronting the person alone. Keep relevant evidence and consider reporting the conduct to an appropriate authority or getting professional advice.
You can also read about nuisance, harassment and bullying in a body corporate.
What responsibilities does a body corporate have?
The sources available for this article do not establish a general legal duty requiring a body corporate to prevent or resolve every discrimination or sexual harassment complaint. A body corporate’s role will depend on the conduct, the people involved, the scheme’s rules and the legislation that applies.
The body corporate may still need to deal with practical issues within its control. For example, a complaint may concern:
- a common property access route
- lighting, signage or another common property issue
- a maintenance request
- the use of a shared facility
- a committee or general meeting process
- a by-law or alleged breach of a by-law
- a person engaged by the body corporate.
Maintenance responsibility does not depend simply on whether the affected person is an owner or tenant. The body corporate must maintain common property in a good and structurally sound condition, while a lot owner must maintain their lot. The plan of subdivision and the regulation module help determine which party is responsible for particular work.
A tenant can ask the body corporate to maintain common property. They can write directly to the body corporate or ask their landlord to propose a motion on their behalf.
When considering a concern, the committee should identify the decision or action being requested, check the relevant records and by-laws, and keep communications respectful and appropriately private. Practical accessibility should also be considered when decisions affect residents with disability, older people or carers. For more information, see Disability access for bodies corporate: is your building wheelchair-friendly.
Do tenants and owners have the same body corporate rights?
Tenants and owners may have different responsibilities because the owner has a separate relationship with the landlord under residential tenancy legislation. However, tenants are occupiers of the scheme and must be considered when body corporate rules and common property issues are being addressed.
By-laws regulate the use of lots and common property and the behaviour of owners and occupiers on body corporate land. Tenants must comply with those by-laws.
A tenant can contact the body corporate directly about a request, including a request to maintain common property. The usual contacts are the body corporate manager, onsite manager or a committee member.
Tenants can also ask the body corporate to enforce a by-law against another person living in the property if that person is not complying with it.
The body corporate may not be responsible for every issue affecting a tenant. A landlord or letting agent may have separate responsibilities for the lot, tenancy or conduct connected with the rental agreement. If you are unsure, separate the issue into the part involving the body corporate and the part involving the landlord or agent.
How can a resident raise a complaint safely?
Start by deciding what you want the body corporate to do. A clear request is easier to assess than a general statement that something is unfair.
You could ask for:
- a response to a reported incident
- a maintenance action
- a review of a by-law or decision
- enforcement of an applicable by-law
- a motion to be considered by the committee or general meeting
- steps to address access or safety concerns.
Put the request in writing where possible. Include a brief description of the issue, the outcome you are seeking and relevant supporting documents. Avoid unnecessary allegations about a person’s character.
If the committee can decide the issue, you may submit a written motion. Under the BCCM Act, an owner may submit a motion to the committee personally, by post, fax or email. The committee must vote within 6 weeks, unless it has notified the owner that it needs up to an additional 6 weeks.
The formal self-resolution process may require you to communicate with the other party, present a motion to the committee or present a motion to a general meeting. Written communication may later help show what steps you took.
Do not put yourself at risk to complete self-resolution. If direct contact is unsafe or likely to escalate the situation, explain that concern and seek appropriate assistance.
Where can you get help with a discrimination complaint?
The body corporate dispute process is designed for disputes involving the body corporate, committee, owners or occupiers. It is not a complete process for every discrimination or sexual harassment matter.
For a community titles scheme, you generally need to try to resolve the body corporate dispute first. If self-resolution fails, you may be able to apply for conciliation through the Office of the Commissioner for Body Corporate and Community Management. You will be asked to show that you tried self-resolution before applying.
For bodies corporate operating under other Acts, the available process may be different. A referee’s order may be available after self-resolution has failed. Check which legislation applies to your scheme before choosing a process.
If the complaint concerns discrimination or sexual harassment under another law, the appropriate external complaint or legal process may be separate from body corporate dispute resolution. The sources for this article do not confirm the current jurisdiction, time limits, fees or remedies of those processes. Consider obtaining independent legal advice, particularly where the conduct is serious, ongoing or connected with employment, accommodation or service delivery.
A body corporate manager can help identify the relevant body corporate records, by-laws and decision-making process, but cannot determine every legal issue raised by a discrimination or sexual harassment complaint.
Clear records, a specific request and a safe reporting approach can help you manage a discrimination or sexual harassment concern while following the body corporate process. If you need help identifying the body corporate steps available to you, contact our team at reception@stratacare.com.au.
