On November 2, 2020, the parties reached a settlement where the Australian pension fund agreed to incorporate climate change financial risks in its investments and implement a net-zero by 2050 carbon footprint goal. More on the settlement below. 

An Australian pension fund member filed suit against the Retail Employees Superannuation Trust (REST) alleging that the fund violated the Corporations Act 2001 by failing to provide information related to climate change business risks and any plans to address those risks. The case was filed in the Federal Court of Australia in July 2018.

The plaintiff, Mark McVeigh has contributed to REST since 2013. Under the Corporations Act 2001, super fund beneficiaries are entitled to request information that they need to make an informed decision about the management and financial condition of the fund. The plaintiff requested information from REST regarding the: “(a) knowledge of REST’s Climate Change Business Risks; (b) opinion of Climate Change, the Physical Risks, the Transition Risks and REST’s Climate Change Business Risks; (c) actions responding to REST’s Climate Change Business Risks; and (d) compliance with its obligations under the Corporations Act and other law with respect to REST’s Climate Change Business Risks.” The first complaint alleges that the information provided by REST did not fulfill its obligations and thus seeks declaratory relief that REST violated the Corporations Act by failing to disclose the requested information and an injunction requiring REST to provide that information. In the alternative, plaintiff seeks a declaration and injunction in equitable jurisdiction.

In September 2018 plaintiff filed an amended complaint, alleging, in addition to the claims listed above, that REST has violated the Superannuation Industry (Supervision) Act 1993 (SIS Act). The SIS Act requires trustees to act with care, skill, and diligence, and to perform their duties and exercise their powers in the best interests of their beneficiaries. The amended complaint alleges that a prudent superannuation trustee would have, among other things, required its investment managers to provide the type of information that McVeigh requested regarding climate change; and ensure that its processes for managing investments and disclosing climate change business risks to beneficiaries complied with the recommendations of the Task Force on Climate-Related Financial Disclosures. 

In January 2019 the court issued an order on plaintiff's application for maximum costs, which is a mechanism to allow individuals bringing cases in the public interest to avoid legal costs. The court concluded that, "the case appears to raise a socially significant issue about the role of superannuation trusts and trustees in the current public controversy about climate change. It is legitimate to describe the Applicant’s litigation as being of a public interest nature." However, the court determined that more information was needed about plaintiff's ability to proceed if his application was denied. The parties later resolved the issue among themselves.

Before the trial was set to begin, the REST reached a settlement with the plaintiff and set out the details of the settlement in a press release. REST acknowledged that "Climate change is a material, direct and current financial risk to the superannuation fund across many risk categories, including investment, market, reputational, strategic, governance and third-party risks." To address this risk, Rest agreed to implement a net-zero carbon footprint by 2050 goal for the fund, to measure, monitor and report climate progress in line with the Task Force on Climate-related Disclosures, to ensure investee climate disclosure, and to publicly disclose portfolio holdings, among other commitments.

McVeigh v. Retail Employees Superannuation Trust

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McVeigh v. Retail Employees Superannuation Trust - settlement agreement

Filed

On November 2, 2020, the parties reached a settlement where the Australian pension fund agreed to incorporate climate change financial risks in its investments and implement a net-zero by 2050 carbon footprint goal. More on the settlement below. 

An Australian pension fund member filed suit against the Retail Employees Superannuation Trust (REST) alleging that the fund violated the Corporations Act 2001 by failing to provide information related to climate change business risks and any plans to address those risks. The case was filed in the Federal Court of Australia in July 2018.

The plaintiff, Mark McVeigh has contributed to REST since 2013. Under the Corporations Act 2001, super fund beneficiaries are entitled to request information that they need to make an informed decision about the management and financial condition of the fund. The plaintiff requested information from REST regarding the: “(a) knowledge of REST’s Climate Change Business Risks; (b) opinion of Climate Change, the Physical Risks, the Transition Risks and REST’s Climate Change Business Risks; (c) actions responding to REST’s Climate Change Business Risks; and (d) compliance with its obligations under the Corporations Act and other law with respect to REST’s Climate Change Business Risks.” The first complaint alleges that the information provided by REST did not fulfill its obligations and thus seeks declaratory relief that REST violated the Corporations Act by failing to disclose the requested information and an injunction requiring REST to provide that information. In the alternative, plaintiff seeks a declaration and injunction in equitable jurisdiction.

In September 2018 plaintiff filed an amended complaint, alleging, in addition to the claims listed above, that REST has violated the Superannuation Industry (Supervision) Act 1993 (SIS Act). The SIS Act requires trustees to act with care, skill, and diligence, and to perform their duties and exercise their powers in the best interests of their beneficiaries. The amended complaint alleges that a prudent superannuation trustee would have, among other things, required its investment managers to provide the type of information that McVeigh requested regarding climate change; and ensure that its processes for managing investments and disclosing climate change business risks to beneficiaries complied with the recommendations of the Task Force on Climate-Related Financial Disclosures. 

In January 2019 the court issued an order on plaintiff's application for maximum costs, which is a mechanism to allow individuals bringing cases in the public interest to avoid legal costs. The court concluded that, "the case appears to raise a socially significant issue about the role of superannuation trusts and trustees in the current public controversy about climate change. It is legitimate to describe the Applicant’s litigation as being of a public interest nature." However, the court determined that more information was needed about plaintiff's ability to proceed if his application was denied. The parties later resolved the issue among themselves.

Before the trial was set to begin, the REST reached a settlement with the plaintiff and set out the details of the settlement in a press release. REST acknowledged that "Climate change is a material, direct and current financial risk to the superannuation fund across many risk categories, including investment, market, reputational, strategic, governance and third-party risks." To address this risk, Rest agreed to implement a net-zero carbon footprint by 2050 goal for the fund, to measure, monitor and report climate progress in line with the Task Force on Climate-related Disclosures, to ensure investee climate disclosure, and to publicly disclose portfolio holdings, among other commitments. 

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An aim to achieve a quantifiable outcome within a given time-frame, set by an institution such as a national government.

Policy instruments are techniques or tools used by governing authorities to promote certain policies in order to achieve predetermined goals. Put simply, instruments are how a government tries to achieve its goals, with this taxonomy being focused on national policy instruments.

Risk is the potential for adverse consequences resulting from the dynamic interplay between (climate-related) hazards, exposure, and vulnerability of affected human or ecological systems.

Groups  of people who are adversely affected by climate change or the response to it

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Justice is the ethical and political framework that addresses fairness, including issues of responsibility, rights, and structural inequity.

Renewable energy means all forms of energy produced from renewable sources in a sustainable manner.

Fossil fuel is a generic term for non-renewable energy sources such as coal, fossil gas, and oil (including crude oil, and petroleum products), that can be used for electricity and heat generation. Fossil fuels are hydrocarbons formed from pressurised and heated organic material buried over millions of years.

Molecules in the atmosphere that play a key role in the greenhouse effect by trapping heat radiating from Earth’s surface.

Area of the economy in which actors engage in identical or related activities.

In human systems, the process of adjustment to actual or expected climate change and its effects, in order to moderate harm, increase resilience or exploit beneficial opportunities. In natural systems, the process of adjustment to actual climate change and its effects; human intervention may facilitate adjustment to expected climate change and its effects.

The management and allocation of funds, assets and investments to meet various objectives

The processes through which enterprises can identify, prevent, mitigate and account for how they address their actual and potential adverse impacts. Due diligence is the idea that reasonable precautions should be taken to avoid causing harm to people, the environment, or society. It also involves identifying and mitigating risks before they occur.

A target to reduce the prevalence of a greenhouse gas over a specific time frame

A commitment to balance GHG emissions with removal by a certain point in time, effectively reducing the net emissions to zero

McVeigh v. Retail Employees Superannuation Trust - settlement agreement

Target

Policy instrument