The recent passing of the Treasury Laws Amendment (2021 Measures No. 2) Bill 2021 has resulted in the inclusion of a new Division (Division 9) at the end of Part 2M.3 of the Corporations Act 2001. Under the changes, listed entities are required to make certain disclosures to the market about JobKeeper payments. The information will be made publicly available by both the relevant market operator (such as the ASX) as well as the Australian Securities and Investments Commission (ASIC).
What needs to be disclosed?
Listed entities that have received a JobKeeper payment, including via a subsidiary, must provide a notice to the relevant market operator (such as the ASX) containing the following details:
- The listed entity’s name and ABN
- The number of individuals for whom the listed entity (and its subsidiaries) received a JobKeeper payment in the financial year
- The sum of all JobKeeper payments the listed entity (and its subsidiaries) received for JobKeeper fortnights that ended in the financial year
- Whether the listed entity or its subsidiaries have made any voluntary repayments (whether or not in the financial year) of JobKeeper payments received, and the sum of such voluntary repayments.
Importantly, it appears that the requirement to announce the above information to the market applies even if the entity has already disclosed similar information in financial reports, previous announcements or other documents.
When does the information need to be disclosed?
A notice containing the prescribed disclosures is required for each financial year in which a JobKeeper payment was received. That is, retrospective disclosure is required for past financial years which the entity or its subsidiaries received a JobKeeper payment.
The timing of the notice will depend on when the entity lodges its financial report with ASIC for the particular financial year.
If the entity has already lodged its financial statements for the financial year with ASIC on or before the day the legislation commences, the notice must be given within 60 days after that day. Otherwise, the notice must be given within 60 days after the financial report has been lodged with ASIC.
Failure to lodge a notice is an offence of strict liability, attracting a penalty of 60 penalty units (i.e. $13,320).
If the entity becomes aware that its lodged notice is not correct, it must resubmit a corrected notice within 60 days of becoming so aware. This requirement is also an offence of strict liability, attracting a penalty of 60 penalty units.
Listed entities in Australia that partook in the JobKeeper scheme must ensure they comply with the new statutory requirements to announce certain prescribed details to the market. This is irrespective of whether or not equivalent information has been disclosed in financial reports, previous announcements or other documents.
Non-listed entities are not affected by the new requirements; however, they may wish to make similar disclosures in their financial reports on a voluntary basis.
There is currently uncertainty regarding specific elements of the new requirements. Should these be clarified by ASIC or other relevant parties, further updates will be provided.