What is the new jobkeeper payments disclosure obligation?

The Treasury Laws Amendment (2021 Measures No. 2) Act 2021 amended the Corporations Act to impose an obligation on listed entities to give a notice to their market operator(s) that discloses specified information about jobkeeper payments they received (jobkeeper notice). The jobkeeper notice is released to the market. The amendment added sections 323DB and 323DC to the Corporations Act, and those provisions commenced on 14 September 2021. 

What is a jobkeeper payment?

The jobkeeper payment scheme was a subsidy for businesses significantly affected by COVID-19. The jobkeeper payment scheme ended on 28 March 2021.

In the first phase of the jobkeeper payment scheme (30 March to 27 September 2020), eligible businesses were able to receive $1,500 (before tax) per fortnight per employee to cover the cost of wages.

During the extension phase of the jobkeeper payment scheme (28 September 2020 to 28 March 2021), the jobkeeper payment was reduced and paid at two rates:

• From 28 September 2020 to 3 January 2021, the payment rate was $1,200 per fortnight for employees who worked 20 hours or more a week on average in the reference period and $750 for employees who worked less than 20 hours a week on average in the reference period.
• From 4 January 2021 to 28 March 2021, the payment rate was $1,000 per fortnight for employees who worked 20 hours or more a week on average in the reference period and $650 for employees who worked less than 20 hours a week on average in the reference period.

Who has to give a jobkeeper notice?

The requirement to give a jobkeeper notice is imposed on a listed entity that has received a jobkeeper payment in a financial year.

'Listed entity' is not defined in the Corporations Act. However, a company, managed investment scheme or other body is listed if it is included in the official list of a prescribed financial market operated in this jurisdiction: see section 9. Prescribed financial markets are set out in regulation 1.0.02A of the Corporations Regulations 2001.

An entity is listed if it is included in the official list of any of the financial markets operated by ASX Limited, National Stock Exchange of Australia Limited or Sydney Stock Exchange Limited (each a market operator). However, entities listed on Chi-X Australia Pty Ltd (Chi-X) do not need to give a jobkeeper notice to Chi-X because it does not maintain an official list.

Listed entities or their subsidiaries that did not receive a jobkeeper payment in any financial year do not have to give a jobkeeper notice to their relevant market operator.

A listed entity or a subsidiary that has received jobkeeper payments in any financial year but repaid all its (and its subsidiaries’) jobkeeper receipts before the commencement of section 323DB (14 September 2021) must still give a jobkeeper notice to its relevant market operator for each financial year.

What is a subsidiary?

Section 46 of the Corporations Act provides that a body corporate (the first body) is a subsidiary of another body corporate if, and only if:

• the other body:
  • controls the composition of the first body’s board, or
  • is in a position to cast, or control the casting of, more than one-half of the maximum number of votes that might be cast at a general meeting of the first body, or
  • holds more than one-half of the issued share capital of the first body, or
• the first body is a subsidiary of a subsidiary of the other body.

What is the deadline for providing the jobkeeper notice to the market operator?

A listed entity that received jobkeeper payments in a financial year and has lodged an annual report with ASIC for that financial year before 14 September 2021 must give a jobkeeper notice to its market operator within 60 days of 14 September 2021.

All other listed entities that received jobkeeper payments in a financial year for which they have not lodged an annual report, must give a jobkeeper notice to their market operator within 60 days of the date they lodge their annual report with ASIC.

What information must the jobkeeper notice include?

Under section 323DB(2) of the Corporations Act, a jobkeeper notice must include:

• the listed entity’s name and its 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 in a jobkeeper fortnight that ended in the financial year
• whether or not a listed entity or a subsidiary has made one or more voluntary repayments (whether or not in the financial year) to the Commonwealth by way of a repayment of jobkeeper payments received by the listed entity or its subsidiaries in the financial year, and
• if the listed entity or its subsidiaries have made such a voluntary payment or payments – the sum of those payments.

Listed entities may use the Jobkeeper Payments Notification form to generate a jobkeeper notice. Once the listed entity completes the Jobkeeper Payments Notification form, the PDF generated will be sent back to the submitter by email, and the listed entity must give the completed Jobkeeper Payments Notification form to their market operator. 

Submitting a form using the link above does not notify a market operator. A listed entity must be satisfied the jobkeeper notice generated is accurate, and then give it to their market operator to comply with section 323DB. 

Is it mandatory for listed entities to use the Jobkeeper Payments Notification form?

No, it is not mandatory for a listed entity to use the Jobkeeper Payments Notification form. However, using the Jobkeeper Payments Notification form will help ensure that a jobkeeper notice contains all the mandatory information required under section 323DB(2).

Does a listed entity need to report for multiple financial years?

If the listed entity received a jobkeeper payment for a jobkeeper fortnight for more than one financial year, then it will need to report for all the financial years in which it or its subsidiaries received a jobkeeper payment.

The Jobkeeper Payments Notification form allows the entity to report for up to two financial years only. If the listed entity needs to report for more than two financial years, it will need to give separate jobkeeper notices to its market operator.

What is a financial year?

Generally, the financial year in relation to the jobkeeper notice is the same period as the period that is specified in the listed entity’s annual reports.

Section 323D of the Corporations Act defines a financial year for companies, registered schemes and disclosing entities. Section 323D requires the first financial year for a company, registered scheme or disclosing entity to start on the day of its registration. The first financial year may last for 12 months or a period, no longer than 18 months, determined by the directors (section 323D(1)). Each subsequent financial year must:

• start at the end of a previous financial year
• be 12 months long (section 323D(2)).

How should the number of individuals be disclosed on the jobkeeper notice?

A listed entity must disclose the total number of employees for whom they or a subsidiary received a jobkeeper payment during a financial year.

How should the sum of jobkeeper payments be disclosed on the jobkeeper notice?

A listed entity must disclose the sum of jobkeeper payments that it and each of its subsidiaries received for the jobkeeper fortnights that ended in the financial year. 

'Jobkeeper payment' is defined in the Coronavirus Economic Response Package (Payments and Benefits) Rules 2020.

How should voluntary repayments of jobkeeper be disclosed on the jobkeeper notice?

A listed entity or a subsidiary that has made one or more voluntary repayments of jobkeeper payments in any financial year must disclose that it has done so, together with the sum of the voluntary repayments made for the financial year to which the jobkeeper notice relates. If the listed entity or a subsidiary voluntarily repays jobkeeper after the listed entity has given a jobkeeper notice to its market operator, the listed entity will need to give the market operator another jobkeeper notice.

What if the jobkeeper notice is out of date or incorrect?

If a listed entity needs to amend the jobkeeper notice because the information has become out of date or is otherwise incorrect, it will need to complete a new jobkeeper notice and provide it to its market operator. The listed entity must give the updated jobkeeper notice to the market operator within 60 days of becoming aware that it is out of date or otherwise incorrect. There are no restrictions on the number of updated jobkeeper notices that a listed entity may give to its market operator.

What if the listed entity wants to include additional information on the jobkeeper notice?

If the listed entity wants to include other information relating to jobkeeper (for example, an explanation about why the amounts disclosed in the jobkeeper notice are different from the amounts disclosed in the listed entity’s financial report), then it should do so through a separate announcement to its market operator.