This article was written by Jerome Tse and Michael Evans
On 2 September 2021, the Federal Parliament passed legislation to require listed entities to provide a notice to their market operator containing certain details about payments they (or any of their subsidiaries) received under the Federal Government's JobKeeper program. The notices will be released publicly both by the relevant market operator, as well as the Australian Securities and Investments Commission (ASIC).
The relevant legislation, initially proposed as an amendment to the Treasury Laws Amendment (2021 Measures No. 2) Bill 2021 (the Bill) by One Nation in the Senate, comes after increasing pressure on both the Government and the Australian Taxation Office to disclose more information about the recipients of JobKeeper payments.
Who is required to lodge a notice?
A listed entity must lodge a notice to its market operator if it, or one of its subsidiaries, received a JobKeeper payment in a financial year.
A notice is required to be given for each financial year in which a JobKeeper payment was received.
Failure to lodge a notice is an offence of strict liability, attracting a penalty of 60 penalty units (i.e. $13,320).
What details are required to be included in the notice?
The notice must set out the following information for the financial year:
- the listed entity's name and ABN;
- the number of individuals for whom the listed entity (or its subsidiaries) received a JobKeeper payment for a JobKeeper fortnight that ended 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 or not the listed entity or its subsidiaries have made voluntary repayments (whether or not in the financial year) of any JobKeeper payments; and
- the sum of any voluntary repayments.
When do notices have to be lodged?
The notice must be given:
- if the listed entity has lodged its report for the financial year with ASIC on or before the day after which the Bill receives Royal Assent, within 60 days after that day; or
- otherwise, within 60 days after the listed entity lodges its report for the financial year with ASIC.
If the entity becomes aware that its lodged notice is not correct, it must re-lodge 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 (i.e. $13,320).
Because the new disclosure requirements were non-Government amendments to the Bill, there is currently uncertainty about the form requirements of the notices to be lodged by listed entities.
We will continually monitor whether ASIC or the ASX release a template form of notice to be used by listed entities.
We would be pleased to work with you in relation to any JobKeeper queries or issues, including reviewing eligibility criteria in light of the proposed disclosure obligations and in regards to any notice required to be lodged.