This article was written by Andrew Gray and Angela Weber.
There seems to be an increasing litany of companies finding themselves in the midst of a scandal. From the failures laid bare by the Banking Royal Commission, to sexual harassment and various environmental and cultural incidents, the themes of corporate accountability and executive remuneration have been the subject of extensive community and shareholder scrutiny.
Whilst the conduct under examination will differ, the underlying question remains. How are boards expected to manage non-financial risks, and respond to conduct issues and corporate crises? In recent years, regulatory, shareholder, and media attention has had a sharp focus on how these matters are managed, and what happens when a company falls short of expectations.
There is now an expectation from both the media and more recently (and significantly) institutional shareholders, that boards must impose consequences for executives who are accountable for material risk failings, incidents or poor conduct. This can be uncomfortable territory for both boards and the members of the executive team being held to account, often for decisions made deep inside an organisation and outside of executive line of sight. Common questions for directors include:
- Should accountability and consequences be assessed on an individual or collective basis?
- What principles should be applied to determine consequence outcomes?
- Is there a need for procedural fairness?
- How and when to disclose the consequences?
The consequences for executives held accountable for failures can range from remuneration adjustments through to termination of employment. Noting a worrying trend towards a knee-jerk “heads must roll” responses at the expense of stable management through a crisis, this article asks; ‘how might that outcome be avoided?’ The answer is by having a consequence-management framework to guide accountability outcomes.
Regulatory framework and market trends
Historically Australia has had no mandatory legal standards governing decisions by boards and companies on variable remuneration. In recent years, there has been a steadily growing focus on variable remuneration practices (particularly for financial services companies and other businesses regulated by APRA), but still no comprehensive legislative framework.
In June this year, ASIC released an information sheet on variable executive remuneration, following its review of remuneration practices at 21 ASX100 companies (Information Sheet 245 (INFO 245)).
The information sheet emphasises the needs for boards to ensure that discretion is exercised in the best interests of the company. ASIC suggests boards may wish to:
- adopt practices or frameworks to prompt the use of discretion in the company’s variable pay scheme; and
- apply practices or frameworks that guide the exercise of discretion before variable pay decisions are made.
ASIC also encourages companies to ensure they have a “look back” provision so that prior to the vesting of deferred pay the board can:
- consider making adjustments using the discretion principles developed to avoid unintended gain; and
- address significant risk or conduct issues that have occurred since the variable pay award was granted.
ASIC’s contribution to the area adds further to the increasing regulatory and public attention on remuneration governance in Australia.
While the regulatory guidance is still emerging, both community and now investor expectations are becoming clear.
Recent media coverage of conduct and other non-financial risk issues in corporate Australia evidences the pressure brought to bear on companies when things go wrong. This is particularly so for listed companies and other organisations regarded as having a ‘social licence’. What emerges is that stakeholders, including large investors with significant commercial influence, expect that accountability will be determined swiftly and often in a public way. Further, it is clear that the outcomes will be scrutinised. Where risk or conduct issues arise, boards and executive teams must be prepared to act expeditiously to determine accountability and what (if any) remuneration or other consequences should be applied.
Remuneration adjustments in market practice
In high risk industries with particular a safety-related exposure, variable remuneration has frequently been used as a tool to drive safety outcomes. It is relatively common for executive key performance indicators (KPIs) to incorporate safety metrics including ‘zero-fatality’ gateways for the award of short-term incentives.
For example, a report published by the Australian Council of Superannuation Investors analysed reporting by ASX200 companies in the 12 month period ending September 2020. This analysis found that 90 of the ASX200 companies linked safety metrics to executive remuneration (an increase from 85 in the previous surveyed year). According to this research, health and safety performance generally accounted for between 5% and 25% of the total short-term incentive for executives.
The inclusion of these metrics in the design of variable remuneration frameworks means that pay outcomes are tested against safety performance at the time of the award. Similarly, adverse safety-related incidents can be included in the malus provision as a specific basis for previously-awarded variable remuneration to be adjusted or forfeited.
However, market practice relating to other corporate risks is still emerging. The table below provides an overview of recent remuneration adjustment outcomes implemented in response to risk and conduct issues in large listed companies. As the overview shows, there is also an emerging trend of directors accepting a fee reduction in some cases.
Samarco Dam failure – FY16
- CEO Andrew McKenzie did not receive any performance-related pay in 2016 and both short term and long term incentives were zero.
CEO’s undisclosed workplace relationship
- In 2017, the STI for the former CEO was reduced by 20% (around $550,000) in connection with his failure to disclose to the Board his romantic relationship with his personal assistant.
AUSTRAC investigation into AML/CTF breaches – Standalone announcement FY20
- The CEO ceased employment with Westpac and the Chair of the Risk Committee also departed Westpac.
- Variable reward, including withheld FY19 remuneration and short term variable reward deferred from previous years, was reduced for 38 individuals by approximately $13.2 million.
- FY20 short term variable reward (including the CEO and GEs) was cancelled to reflect collective accountability (valued at approximately $6.9 million, assuming an outcome of 50% target opportunity).
Fair Work investigation for payment shortfalls – standalone announcement and FY20 annual report
- The board fee for the Group Chairman was reduced by 20%.
- The Group CEO voluntarily forfeited his FY20 short-term bonus, as did the Chief People Officer.
- GEs collectively received a 10% reduction in STI result for FY20.
- Further, the in-year remediation costs were applied to the ‘return on funds employed’ measure for the LTI plan.
Destruction of Juukan rock shelters – standalone announcement
- The CEO, CEO of Iron Ore, GE, Corporate Relations will not receive a performance bonus under the STI plan.
- The CEOs 2016 LTI plan award was reduced by 1 million pounds (subject to vesting).
- Subsequent to the remuneration adjustments, Rio announced the resignations of the 3 executives above. We anticipate there are likely to be remuneration consequences flowing from these resignations, which will be disclosed in the FY20 annual report.
Inappropriate workplace communications – standalone announcement
- Following a complaint made by a female employee, QBE announced the departure of its CEO.
- The CEO’s termination payment comprised a payment in lieu of notice plus statutory leave entitlements. The CEO is ineligible for grants under the QBE incentive schemes for the 2020 financial year and all unvested conditional rights previously awarded were forfeited. Market commentary estimated the value of the CEO’s forfeited remuneration to be around $10 million.
AUSTRAC investigation into AML/CTF breaches – FY17 and FY18 remuneration reports
- STVR outcomes for CEO and GEs adjusted to 0 for FY17.Y17 deferred remuneration vesting outcomes reduced for some former GEs, including 100% forfeiture of deferred STVR and LTVR reductions of 40-70%.
- Non-executive director base and committee fees reduced by 20%.
- CEO voluntarily gave up FY18 STVR award. The board and the former CEO agreed he would not receive STVR award for 2018 or unvested LTVR awards.
- The board exercised its discretion to:
- reduce 2018 financial year STVR payments of current and former GEs by 20%;
- lapse a portion of the unvested deferred STVR awards for approximately 400 current and former Executive General Managers and General Managers; and
- forfeit the full amount of unvested LTVR awards of select former GEs.
APRA Prudential Inquiry Report – FY18
- Current CEO and GEs: The CEO and GEs were assessed as Partially Met on risk outcomes with the board applying a negative risk adjustment of 20% to the 2018 financial year STVR outcomes for each individual.
- Former CEO: agreed with the board to forfeit 2018 financial year STVR award and any unvested LTVR awards.
- Former GEs: forfeited all unvested LTVR awards for two former GEs, reflecting collective and individual accountability.
Royal Commission – FY19
- Of the 15 GEs eligible for an STVR award, 14 received in-year reductions in relation to risk and reputational matters, including the CEO.
- The board forfeited all unvested deferred awards for a former GE, having regard to the performance outcomes of their business unit.
The CEO, along with GEs who stayed in their roles, did not receive an increase to fixed remuneration.
Royal Commission – FY19 report
- Over the previous two years, CEO agreed to reductions of $1.7 million to total remuneration package. In 2018 his remuneration was $3.03 million below target total remuneration.
- The board reduced variable reward outcomes for individual executives by 10% - 75% for risk matters.
- Variable reward across NAB was reduced by approximately $114 million.
- The “One NAB Score” was reduced by 20% for employees, 30% for the Executive Leadership Team and 10% for the Group CEO and Senior Executives.
- “Substantial changes” to remuneration framework were made to ensure they continue to be focused on the right outcomes for customers and shareholders.
- All unvested 2017 deferred STI, 2018 deferred VR, 2016 LTI and 2017 LTI awards for Chief Customer Officer, Consumer and Wealth were forfeited.
Royal Commission – FY19 standalone announcement
- Executive Leadership Team received no short-term variable reward and no fixed remuneration increase for FY19.
- Upon his resignation in February, former Group CEO forfeited all deferred variable reward potentially worth $21 million.
- Deferred variable reward previously awarded between 2016 and 2018 for the majority of the 2018 Executive team (other than the former Group CEO), potentially worth $5.5 million, was forfeited.
- The board accepted the resignation of the Chairman and determined that other directors would receive a 20% reduction in fees for 2019.
Royal Commission – FY18
- No incentives were allocated to AMP executive leadership team.
- Chairman’s were fees reduced and director’s fees were also reduced by 25% for the rest of the 2018 calendar year.
- Unvested incentives for the former CEO and the former GE, Advice and Banking were forfeited, with a value of approximately $10.8 million.
Unvested incentives were forfeited for other select executives and employees in connection with “no fee, no service” issues.
How to implement a remuneration decision-making process
Several companies have responded to the increased focus on accountability by developing guidelines to assist the board and other decision-makers in the exercise of their discretion relating to remuneration adjustments. This has been recognised as desirable by ASIC in Information Sheet 245, which aims to set out practical guidance to support board oversight and the exercise of discretion on variable pay outcomes, adding to the growing body of guidance on best practice in remuneration governance. This type of guidance has proved useful to boards looking to implement their response to a significant risk event in a consistent and reasonable manner.
The first step from a legal point of view is to assess whether the malus provision permits the adjustment to be made. This step should not be overlooked in the rush to apply consequences, as often the adjustment rights are not as broad as a board may expect and may be limited to instances of serious misconduct, material misstatement in accounts or fraud/criminal conduct. These grounds are not often present when considering consequences for accountability failings, which may not involve any deliberate or intentional wrongdoing. The ability to extend or delay a vesting period to allow conduct or risk matters to be further reviewed is also an important tool which can provide the board with more time to make an informed decision.
In response to the new focus on accountability and consequences for non-financial risks, there has been a trend in recent times of companies looking to expand the scope of their malus provisions in equity plans to ensure they are fit for purpose.
Key points to note:
- An adjustment of in-year short term cash incentive (or STVR) before it is awarded through the application of discretion or a conduct/risk management gateway is by far the simplest form of adjustment.
- Issues become more challenging when there is no in-year variable remuneration to adjust (for instance, for former employees) and the board is required to resort to a malus or clawback condition to implement the reduction.
- Noting that clawback is rare, the focus is normally on the ability to adjust unvested equity under a malus provision.
- As adjustment will normally involve the exercise of board discretion, there is a risk of legal challenge. To guard against this, boards must have a rational basis for decisions and show they were made with access to adequate information.
- While there is no general legal requirement for procedural fairness, most companies typically provide executives with an opportunity to have input into the adjustment, to respond to the reasons for the adjustment.
- Some companies have implemented formal procedures enshrining these rights.
These processes should be considered carefully before they are implemented, because they can impede the efficient decision-making required in this area.
Given the current climate, companies and their boards should be seeking to get ahead of the game on variable remuneration, and not wait to have a serious incident or conduct issue arise before setting up a consequence management framework to help guide decision-making. In particular, there is a modern-day need for boards to develop consequence management frameworks which clearly articulate the relationship between conduct and other non-financial risks and remuneration outcomes. A robust framework is an essential tool for ensuring boards are well-equipped to make the decisions expected by stakeholders quickly in response to a crisis.
 Safety in Numbers: safety reporting by ASX200 companies (September 2020). Available at: https://acsi.org.au/wp-content/uploads/2020/09/ACSI-Safety-Research-2020_Sep20.pdf