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2021 AGMs for ASX200 entities

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Written by Joseph Muraca, Emma Newnham and Nelson Phan

As at 6 December, almost all entities in the ASX200 have held their AGMs for 2021.

Entities have continued to adapt to the challenges brought on by the COVID-19 pandemic, which influenced the way meetings were held, as well as some voting results.

The proposed permanent amendments to the Corporations Act, allowing fully virtual meetings only if that is expressly permitted by the entity’s constitution, led to a number of entities seeking to amend their constitutions. The proposed legislative amendment, and proposed constitution changes, have received mixed responses from some governance bodies, proxy advisors and investors.

There has been continued pressure to match remuneration outcomes with performance, although the voting trend on remuneration reports remained steady when compared to last year.

There has also continued to be a huge focus on environmental, social and governance (ESG) issues, with an increasing number of entities facing shareholder requisitioned resolutions on various ESG issues.

More details on these trends observed for the year so far are below.[1]

Trend

Observations

Virtual AGMs remain the dominant format

As we noted in our report titled ‘Deep dive into ASX 200 AGMs in 2020’ (accessible here), the Federal Government announced on 31 July 2020 that the temporary amendments allowing virtual AGMs were extended until 21 March 2021. Following the expiry of those temporary amendments, ASIC reiterated its ‘no action’ position for virtual meetings (see here). This remained in place until the Treasury Laws Amendment (2021 Measures No 1) Act 2021 (Cth) was passed, which came into effect on 14 August 2021. The temporary Corporations Act amendments currently allow meetings to be held in a fully virtual or ‘hybrid’ format, provided that members as a whole have a reasonable opportunity to participate. The temporary amendments end on 31 March 2022.

Following these concessions, 79% (158 entities) of the ASX200 conducted fully virtual AGMs in 2021. Only 17.5% (35 entities) opted for a hybrid meeting, while 2.5% (5 entities) were able (and chose) to hold in-person only meetings. This no doubt reflects the various government restrictions prohibiting physical attendance during parts of the year while other meetings were held during ‘less restricted’ periods. Lock down issues were particularly acute in Victoria. There are legitimate concerns by entities not to contribute to “spreader events”.

Mixed response regarding constitutional amendments expressly permitting hybrid or fully virtual AGMs

On 20 October 2021, the Corporations Amendment (Meetings and Documents) Bill 2021 was introduced into Parliament. The Bill has not yet been passed (Parliament is now not sitting until next February 2022). The Bill proposes permanent changes allowing hybrid and fully virtual meetings, but fully virtual meetings would only be allowed if the entity’s constitution expressly permits that. KWM has written an article with further information on these proposed amendments, accessible here.

As a result, this year, a number of entities have sought shareholder approval to change their constitutions to expressly allow for fully virtual meetings (these approvals need a 75% vote in favour).

The proposed legislative change, and the proposed constitution changes, received a mixed response from some governance bodies, investors and proxy advisors. The Governance Institute of Australia indicated it was disappointed that the Bill required entities to amend their constitutions to hold virtual AGMs. On the other hand, proxy advisor ISS recommended voting against constitutional amendments permitting fully virtual meetings, while the Australian Shareholders’ Association recommended entities propose a stand-alone constitutional change resolution regarding allowing fully virtual AGMs (i.e. not bundling the proposed constitutional changes regarding virtual meetings with other constitutional changes), to allow shareholders to fully consider the issue before voting.

Of the 21 entities who proposed (and voted at their AGMs on) constitutional amendments allowing either hybrid and/or fully virtual shareholder meetings, 15 entities (71.4%) were successful. Some of these votes occurred before the public campaign by some against virtual meetings gained traction.

Additionally, 7 entities issued a subsequent announcement either withdrawing or amending their resolutions proposing constitutional amendments, citing reservations expressed by shareholders and proxy advisors regarding entities holding virtual meetings. 

Continuing focus on remuneration

In general, voting on remuneration reports at AGMs in 2021 remained steady year-on-year.

8 remuneration reports have been voted down so far this year (i.e. received less than 50% support), compared to 6 during the 2020 AGM season. To date, 2 entities (Crown Resorts and Kogan.com) received a second strike compared to 1 during the 2020 AGM season, while 16 entities received a first strike (this was the same during the 2020 AGM season).

So far this year, there has only been a marginal increase in the second strike rate and the number of remuneration reports voted down.

 

2021 YTD

2020

Total number of strikes for the ASX200 (inclusive of second strikes, if any)

18

17

Number of second strikes

2

1

Number of ‘near misses’ (i.e. entities within 10% of a strike)

14

14

Number of remuneration reports voted down

8

6

The magnitude of votes against remuneration reports that have resulted in a strike has also remained roughly the same (at approximately 44%).

There continues to be a range of apparent reasons, not solely remuneration related, for the votes against remuneration reports. There continues to be no demonstrable direct correlation between votes on remuneration reports and, say, votes on CEO equity grants or director elections. 

ESG voting: increasing number support

Continuing the trend in recent years, activists are continuing to make full use of their ability to requisition resolutions on ESG matters.

17 entities received shareholder requisitioned resolutions to put to their 2021 AGMs (4 of these entities are yet to hold their AGM). 14 entities received requisitions in 2020, and 12 in 2019. The entities continue to span a broad range of sectors, including energy, materials, banks, utilities and insurance.

Similar to previous years, the majority of requisitioned resolutions took the standard form of a proposed constitutional amendment to followed by advisory resolutions contingent on the constitutional amendment being carried. Rio Tinto was an exception, where the Rio Board supported two ESG resolutions relating to emissions targets and climate-related lobbying. Because the Board supported the resolutions, the constitutional amendment was not required and was withdrawn. These two resolutions were passed as ordinary resolutions, each with 99% support respectively. This is the first time a shareholder requisitioned resolution on climate change has been passed at an AGM. 

The average support vote for proposed constitutional amendments so far this year has been just over 5% which is on par with last year. In contrast, the average support vote (either by direct votes and/or proxy) for advisory resolutions is currently 37%, which is a significant increase from the average of 22% in 2020 although the average is largely driven by 4 resolutions receiving over 98% support. Alongside Rio Tinto’s resolutions, BHP and South32 received 99% and 98% shareholder support respectively on resolutions relating to reviewing industry associations to identify any inconsistencies with the Paris Agreement.

A number of activists have also attempted to requisition ‘say on climate’ votes, following the popularity of those resolutions in the UK. These requisitioned resolutions require entities to put their climate transition action plans to a non-binding shareholder vote. To date, only BHP has held a ‘say on climate’ vote. At BHP’s Australian AGM, that vote passed with 85% shareholder support. This was consistent with the level of support at BHP’s London AGM, where its Climate Action Plan received around 83% support. Most of the requisitioned ‘say on climate’ resolutions were withdrawn after entities committed to putting their climate action plans to a non-binding vote at their 2022 AGMs.

We released a more detailed analysis of climate voting trends as part of our KWM report on climate change risk disclosures and governance of the ASX50 earlier this year. Look out for our next update which will be released early in 2022.

Continuing trends in director elections / re-elections

Continuing the trend from last year, there has been no substantial change in the average votes on director elections, with the vast majority of candidates still elected / re-elected with greater than 95% support. Of the candidates that received a support vote of 95% or less, 84% (70 out of 83 candidates) were seeking re-election as opposed to election and 73% (61 out of 83 candidates) were male.

On 25 April 2021, ACSI announced a new climate change policy, stating that “in order to increase the focus on climate-related risks in the entities they invest ACSI may recommend members vote against the re-election of directors.” ACSI has said such recommendations would be done on a case-by-case basis and following extensive engagement with entities. It also stated it would focus on the directors most accountable for oversight of climate change-related risks, e.g. the Sustainability Committee Chair. The new climate policy is set to be applied from 2022. ISS has similarly stated it recommends voting against directors where there has been a material failure of risk oversight at the entity, which includes poor oversight of climate change risks. 

Termination benefits resolutions

9 entities have put termination benefits resolutions at their 2021 AGMs, either approving prospective payments/arrangements, or renewing previous shareholder approval. In 2020, 7 entities voted on resolutions relating to termination benefits.

As in previous years, all termination benefits resolutions were passed, with the average support vote being just over 93%. This is a slight decrease from the 99% average shareholder support in 2020. 

 

References

[1] While year on year comparisons have been used in this note, there has been movement in the ASX200 across 2020 - 2021 which accounts for some discrepancies in the data captured.

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