Listed entities required to disclose JobKeeper payments

JobKeeper payment disclosure

As a result of ongoing political tensions related to the Government’s management of the JobKeeper payment, the Senate used an otherwise unrelated bill to drive debate over disclosure requirements for publicly listed entities which received the JobKeeper payments in 2020 and early 2021.

2021-10-27

On 13 September 2021, the Treasury Laws Amendment (2021 Measures No. 2) Bill 2021 received Royal Assent passing these provisions into law commencing 14 September 2021.

Development of the Bill

This Bill was amended to introduce changes to the Taxation Administration Act 1953 to require that the Commissioner of Taxation publish certain information relating to recipients of JobKeeper. However, this particular amendment did not pass the Senate.

After some political wrangling, an amendment was proposed by Senator Hanson moving that requirement to ASIC under the Corporations Act 2001 and was supported by the Government which then successfully passed both Houses.

A schedule was included in the Bill to require Australian listed entities to announce information about JobKeeper payments to the market via a new division in part 2M.3 of the Corporations Act 2001.

Foreign listed entities that have no requirement to lodge financial statements with ASIC, would not be required to lodge a notice under these provisions as they do not lodge financial reports under Division 1 of part 2M.3 of the Corporations Act 2001.

Non-listed entities similarly have no such requirement.

No explanatory memorandum is available in respect of this amendment.

What needs to be disclosed?

Listed entities must give notice to the ASX or relevant market operator containing details (for JobKeeper fortnights within that financial year) as follows:

  • the listed entity’s name and Australian business number (ABN)

  • the number of individuals for whom the entity or entities received a JobKeeper payment

  • the sum of all JobKeeper payments received

  • whether or not the entity or entities made one or more voluntary repayments (whether or not in the financial year) to the Commonwealth together with the sum of those repayments.

The requirement applies regardless of whether the entity has already disclosed equivalent information in financial reports, previous announcements or other documents.

On 15 October 2021, ASIC has announced a notice and guidance to help listed entities comply with their new obligation. The online form permits a listed entity to fill in all the necessary information which will then generate the JobKeeper (section 323DB) notice. While not mandatory, we note that the ASX has requested that entities use that form. The form generates a PDF of the notice which must then be given to the market operator.

Listed@ASX Compliance Update 09/21 confirmed that the JobKeeper disclosure should be as a standalone announcement which should clearly state that it is a "JobKeeper payments notice."

Which amounts do we disclose?

The ASIC FAQs and legislation both refer to the disclosure of payments received for a JobKeeper fortnight that ended in an entity’s relevant financial year, essentially on a cash basis. Should an entity wish to make a further disclosure, i.e. to reconcile the payments to accruals-based disclosures in its financial statements, then a separate announcement should be made to the market operator.

Note there is no requirement for the information to be audited.

Which periods will require disclosure?

The information must be provided for any financial year in which an entity has received a JobKeeper payment.

For example, for June year end entities, this may include the financial years ended 30 June 2020 and 30 June 2021.

When must we make a disclosure?

This depends upon when the entity lodges its financial report with ASIC for the relevant financial year:

  • if the financial report has been lodged on or before 14 September 2021 – within 60 days after that date (i.e. Saturday 13 November 2021 or nearest relevant business day – likely to be 15 November 2021 based on ASIC rules).

  • otherwise, within 60 days after lodging the financial report with ASIC.

Where a notice needs to be corrected or updated, the entity is required to provide an updated notice to the market operator within 60 days.

How will our information be used?

ASIC is required to publish and regularly update a consolidated report of all notices given as soon as practicable after they are released to the market.

Are there penalties for a failure to comply?

The penalty for failure to lodge a required notice within the time frames required is listed as 60 penalty units (AUD $13,320).

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