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La Cour suprême du Canada tranche : les cadres ne pourront se syndiquer au Québec
Le 19 avril dernier, la Cour suprême du Canada a rendu une décision fort attendue en matière de syndicalisation des cadres.
Royaume-Uni | Publication | mars 2021
On March 18, 2021, the Department for Business, Energy and Industrial Strategy (BEIS) published a White Paper which sets out for consultation wide-ranging reforms which aim to modernise the UK’s audit and corporate governance regime.
Many of the proposed reforms in the White Paper stem from recommendations made by three independent reviews into audit and corporate reporting. These comprise the 2018 independent review of the Financial Reporting Council (FRC) led by Sir John Kingman, the 2019 review into the quality and effectiveness of audit led by Sir Donald Brydon, and the market study of statutory audit services led by the Competition and Markets Authority (CMA) in 2019. As a result, the proposed reforms include new measures in relation to directors, auditors and audit firms, shareholders and the audit regulator.
We will be preparing a detailed briefing on the White Paper, but the areas covered by the White Paper include the following:
This chapter sets out the Government’s overall approach to reform. The audits and auditors of Public Interest Entities (PIEs), predominantly publicly-listed companies, are currently subject to a number of additional regulatory measures and this chapter sets out two options for expanding the PIE definition, both of which would expand it to include the largest private companies, as well as seeking views on other types of entity that could be included in a new PIE definition.
In relation to internal controls, views are sought on the following three options (which are not intended to be mutually exclusive):
The tentative preferred option would require a directors’ statement about the effectiveness of the internal controls, but (unlike the US’ approach to internal controls which mandates external auditor attestation in most cases) leave the decision on whether the statement should be assured by an external auditor to the directors, audit committee and shareholders.
The following reforms are proposed in relation to dividends and capital maintenance:
The chapter also seeks views on proposals to give the new Audit, Reporting and Governance Authority (ARGA) powers in relation to how companies should calculate their distributable reserves. Currently, guidance in this area rests with the professional accountancy bodies.
This chapter invites views on the following proposed new reporting requirements for directors of PIEs:
Views are also sought on how company annual reports could include certain minimum reporting on supplier payment policies and practices.
The key measures proposed are for ARGA to have powers to direct changes to company reports and accounts (rather than having to seek a court order as currently), increased transparency for the existing Corporate Reporting Review process and the extension of the Corporate Reporting Review process to the whole of the annual report and accounts. ARGA could then review areas not currently within the scope of its powers such as corporate governance statements and directors’ remuneration and audit committee reports, as well as voluntary elements such as the CEO and chairman’s reports.
This chapter sets out proposals to give ARGA investigation and enforcement powers in relation to wrongdoing by directors of PIEs which would apply to breaches of statutory duties relating to corporate reporting and audit of PIES, including the power for ARGA to impose more detailed requirements for how directors should meet these duties.
There are also proposals to strengthen malus and clawback provisions within executive directors’ remuneration arrangements which would involve identifying minimum clawback conditions and have a minimum two-year application period. These conditions could include clawback for serious misconduct, a material misstatement of results or an error in performance calculations and failures of internal controls and risk management. These measures could be introduced through changes to the UK Corporate Governance Code.
This chapter sets out the Government’s proposals in response to the major reform of audit proposed by the Brydon Review, including changes relating to audit’s purpose, audit practice and the organisation of the audit profession. The proposals include a new corporate auditing profession to operate independently of the professional accountancy bodies, new overarching principles for auditors to reinforce good audit practice, a new duty on auditors to take a wider range of information into account in reaching audit judgements (in particular whether financial statements give a “true and fair view”), and new obligations on both auditors and directors relating to the detection and prevention of material fraud.
It is proposed that ARGA should have new powers to set and enforce additional requirements for audit committees of FTSE 350 companies in the appointment and oversight of auditors. Powers to give ARGA an independent ability to appoint an auditor where more serious problems exist with a company’s audits are also suggested.
New measures are also proposed to encourage and facilitate more meaningful engagement between a company and its shareholders on matters affecting audit quality. These include a formal mechanism by which shareholders of a quoted company can propose additional matters for emphasis within the scope of the company’s external audit, and proposals for better communication to shareholders following the resignation or dismissal of the auditor of a PIE.
Proposed reforms to increase choice, competition and resilience of the UK’s statutory audit market include:
This chapter sets out plans to make ARGA responsible for approving statutory auditors of PIEs, rather than the professional bodies, proposals to improve transparency of ARGA’s Audit Quality Review reports on individual audits while providing safeguards for sensitive information, the Government’s intention to provide ARGA with new powers to require a UK group auditor to arrange access to overseas component auditors’ working papers where considered appropriate, and a request for views on how ARGA might access information covered by an audited entity’s legal professional privilege that is needed for ARGA’s inspections and investigations of statutory audit.
This chapter sets out the framework for establishing ARGA which will replace the FRC and have as its general objective the protection and promotion of the interests of investors, other users of corporate reporting, and the wider public interest.
This chapter sets out further changes to ARGA’s responsibilities arising from recommendations in the Kingman review of the FRC. These include proposals for ARGA to have a new statutory role in the supervision of accountants and actuaries, replacing more informal arrangements; and proposals for a more pro-active role for ARGA in identifying and assessing serious issues relating to a company’s corporate reporting or audit by strengthening its information gathering and investigatory powers.
Responses to the questions raised in the White Paper are requested by July 8, 2021. Subject to the outcomes of the consultation, the Government will bring forward primary legislation to take forward the proposed reforms when parliamentary time allows.
In March 2021, PIRC published its updated Shareholder Voting Guidelines 2021 which set out what PIRC considers constitutes good corporate governance best practice.
Changes from PIRC’s 2020 Shareholder Voting Guidelines include the following:
The PIRC Shareholder Voting Guidelines 2021 can be purchased from PIRC.
On March 12, 2021, the Parker Review committee published the results of a joint survey undertaken with the Department for Business, Energy and Industrial Strategy (BEIS) in November 2020 into the ethnic diversity of FTSE 100 boards. Relying on the voluntary submission of data, the survey results show that significant progress has been made, with 74 FTSE 100 companies having ethnic minority representation on their company boards as of November 2, 2020 (the official feedback cut-off date) compared with 52 in January 2020.
The survey also shows the following:
The press release notes that FTSE 250 companies will be surveyed by the end of 2021 and have until 2024, in accordance with the Parker Review recommendations, to appoint at least one ethnic minority director to their boards.
On March 17, 2021 HM Treasury published the latest annual review monitoring the progress of signatories to the Women in Finance Charter launched in 2016 as a result of recommendations resulting from a review of women in senior management across the UK financial services sector led by Dame Jayne-Anne Gadhia.
In becoming a Charter signatory, firms pledge to promote gender diversity by:
The annual review looks at progress by signatories in meeting their targets ahead of target deadlines and by 2020 deadlines. It also looks at whether signatories are monitoring the impact of COVID on their workforce, particularly on gender diversity and at data capture on the senior management population. The review also reports on what signatories are doing to drive progress and achieve their targets, and it puts the targets in context.
(HM Treasury: Women in Finance Charter – Annual Review 2020, 17.03.2021)
On March 18, 2021 Glass Lewis published a paper which reviews the most common provisions of non-compliance in relation to the UK Corporate Governance Code (Code) among the FTSE 350 and smaller Main Market companies, respectively.
The review notes that the majority of FTSE 350 companies complied in full with the Code. Approximately 41 per cent of companies that deviated from the Code only failed to comply with only one provision. As far as smaller Main Market companies are concerned, there were lower overall rates of compliance outside with only a minority of those reviewed by Glass Lewis fully complying with the Code.
Among the FTSE 350, Code Provision 19 relating to chair tenure was the provision with lowest compliance. The review looks at the key Code provisions not complied with, some of the reasons for deviations and it explains the Glass Lewis approach to those deviations.
(Glass Lewis, UK Code Compliance Review – Glass Lewis Special Report)
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Le 19 avril dernier, la Cour suprême du Canada a rendu une décision fort attendue en matière de syndicalisation des cadres.
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