Shareholder ESG resolutions

Written by Joseph Muraca, Grace Lewis and Nelson Phan

Since our last update in September, 10 additional ASX200 entities have faced requisitioned resolutions on environmental, social and governance (ESG) issues at their AGMs. In general, while the number of entities that have been requisitioned has increased, the level of shareholder support has decreased.

Overview of ESG Resolution trends

With the exception of the resolution received by CBA, the requisitioned ESG resolutions have continued to follow the standard formula of:

• an initial constitutional amendment to allow the advisory resolution to proceed; and
• a subsequent advisory resolution (conditional on the initial constitutional amendment being passed).

Keeping with the trend set by the resolutions requisitioned earlier in the year, climate change has continued to be a dominant theme, with 7 of the 12 advisory resolutions directed at climate change issues. Other themes included cultural and world heritage protection, and COVID-19 recovery.

Review of Results

None of the requisitioned resolutions during the October/November AGM cycle have passed. The average support vote for constitutional amendments so far this year has been 5.05%. This is compared with the average of 15.50% shareholder support for contingent resolutions.

Notably, support for ESG resolutions in the October/November AGM cycle was significantly lower to that seen earlier in the year. 5 of the contingent resolutions considered at the start of the year received a proxy support vote of more than 30%. In comparison, all 10 of the contingent resolutions considered recently received less than 30% shareholder support. 4 advisory resolutions received proxy support of more than 20%, as shown in the table below. Interestingly, 2 of these resolutions were directed at lobbying relating to COVID-19 recovery, while the other 2 were requisitioned at banks and related to transition planning disclosure.

Commentary

Market Forces, a main lead filer of requisitioned resolutions, has commented that the increasing number of shareholder resolutions at AGMs has been promising. However, Market Forces has also noted that many institutional investors have been acting inconsistently and have failed to back their rhetoric of decreasing exposure to climate-related risks.

For example, Beach Energy Limited at its AGM stated that no large investor had raised issues of carbon emissions and the Paris climate goals, despite these investors raising the same concerns at Santos and Woodside's AGMs earlier in the year.

There has also been criticism of entities using the ability to conduct virtual AGMs as a means to silence shareholder voices. In particular, Origin Energy was criticised for using its virtual AGM format to silence Native Title holders. We have not observed this approach by companies at the AGMs we have been involved with.  The lead filer of Origin Energy's resolutions, ACCR, commented after Origin's AGM that in its view Origin can no longer ignore investor concerns on consent of Indigenous communities and lobbying, and further due diligence was needed on these emerging issues. Similarly, Market Forces after Fortescue Metal Group's AGM, criticised the company for ignoring shareholder questions on climate change, and failing to put shareholder questions submitted online to the board.

Conclusion

As we have predicated in earlier years, the increasing number of ESG resolutions this year demonstrates that activists are continuing to make full use of their ability to requisition shareholder resolutions. This is particularly the case as the number of requisitioned topics have broadened beyond climate change.