Say on pay

Say on pay is a term used for a role in corporate law whereby a firm's shareholders have the right to vote on the remuneration of executives.'Some Member States require, or are considering requiring, a form of mandatory or advisory vote by Say on pay is a term used for a role in corporate law whereby a firm's shareholders have the right to vote on the remuneration of executives. Often described in corporate governance or management theory as an agency problem, a corporation's managers are likely to overpay themselves because, directly or indirectly, they are allowed to pay themselves as a matter of general management power. Directors are elected to a board that has a fiduciary duty to protect the interests of the corporation. In large listed companies, executive compensation will usually be determined by a compensation committee composed of board members. Proponents argue that “say on pay” reforms strengthen the relationship between the board of directors and shareholders, ensuring that board members fulfill their fiduciary duty. Critics of the policy believe that “say on pay” does not effectively or comprehensibly monitor compensation, and consider it to be reactionary policy rather than proactive policy, because it does not immediately affect the Board of Directors. Some argue it is counter-productive because it diminishes the authority of the Board of Directors. The effect of ‘say on pay’ measures can be binding or non-binding, depending on regulatory requirements or internal corporate policy as determined by proxy votes. On the 3rd of March the Swiss voted by 69.7 per cent to ensure shareholders, pension funds and not banks, entirely control questions of executive pay. Shareholders must elect all members of a company's remuneration committee of all Swiss public listed companies. They further should receive annual votes on the identity of all members of the board of directors. The role that banks played in casting votes on other shareholders behalf has been abolished. The Corporations Amendment (Improving Accountability on Director and Executive Remuneration) Act 2011 introduced in the Corporations Act 2001 new sections 250R(2), 250U-V, so that if at two consecutive meetings over 25% of shareholders vote against the directors’ remuneration package, the directors have to stand for election again in 90 days. Originally UK company law set a default rule that the remuneration of directors was to be set, binding, by the company's general meeting, under Table A, article 54, attached to the Companies Act 1862. Over time more and more companies gave the right to directors, which is the position found in the Model Articles for companies today, that remuneration of the directors shall be determined by the directors. The United Kingdom was the forerunner in mandating that shareholders be allowed a non-binding, or advisory vote on pay. In the UK, section 439 of the Companies Act 2006 mandates a vote on director pay at the yearly accounts meeting. Directors are expected to have disclosed their remuneration package in a 'Remuneration Report' (section 420). Failure to do this leads to fines. In addition, UK law regulates more tightly a number of elements beyond basic director pay. Employee share schemes that directors have must be approved by ordinary resolution under the London Stock Exchange Listing Rule 9.4.1. Under the UK Corporate Governance Code, with which all listed companies must comply or explain why they do not, a binding vote on approval of long-term incentive plans is recommended. Under section 188 of the Companies Act 2006 a shareholder resolution is necessary to approve a director’s contract lasting more than a 2-year term (reduced from approval beyond a 5-year term under the old Companies Act 1985, section 319). Lastly, frivolous categories of compensation are limited under section 215, by prohibiting payments for loss of office (i.e. no golden parachutes), except, under section 220, in respect of damages for existing obligations and pensions. Although the say on pay provision in section 439 is not binding on the board, the message in UK law is influential, because company members have an unrestricted right to fire any director, with reasonable notice, under section 168. The debate, however, moved on to whether the vote should become binding. Changes were introduced in the Enterprise and Regulatory Reform Act 2013 section 79 to make the overall policy of pay be capable of being rejected by shareholders, but that no specific right to determine the amount has yet been introduced. In the Dodd–Frank Wall Street Reform and Consumer Protection Act §951, a new say on pay provision was introduced.