02/12/2019

Welcome to Edition 138 of Boardroom Brief.

This is a service specifically targeted at the needs of busy non-executive directors. We aim to give you a “heads up” on the things that matter for NEDs in the week ahead – all in two minutes or less.

In this Edition, we consider Federal Government consultation on workplace reforms, developments in regulatory co-operation between ASIC and APRA in response to the financial services Royal Commission, and the Takeovers Panel review decision in Donaco.

YOUR KEY BOARDROOM BRIEF

IR reform. After suffering a surprise defeat in the Senate on its Ensuring Integrity Bill 2019, the Federal Government is attempting to alter the prevailing “conflict based” narrative of industrial relations in Australia through the release of a discussion paper on more harmonious workplaces. The paper considers a number of ideas to promote cooperative workplaces including employee share schemes, flat accountability structures, dispute resolution mechanisms, reward and recognition systems and performance-based pay. The closing date for submissions is 28 February 2020.

ASIC and APRA issue updated MoU following the Royal Commission recommendations. The framework for inter-agency co-operation on prudential matters continues to be strengthened following on from the recommendations of the Royal Commission into Misconduct in the Banking, Superannuation and Financial Services Industry. APRA and ASIC have revised their MoU and are also working closely with Government on the legislative changes required to implement these recommendations. The updated MoU is aimed at timely supervision, investigations and enforcement action. It also envisages deeper cooperation on policy matters and internal capabilities of the two agencies. The updated MoU is available on the ASIC website.

Donaco International Limited 03R. Although AGM season is over, directors always face the prospect of a requisition for a removal resolution. The Takeovers Panel has recently considered whether requisitioning shareholders can be “associates” for the purposes of the takeovers and substantial holdings provisions of the Act. As a general proposition this is not necessarily the case: the conclusion will always be fact dependent, and parties alleging association will need to be able to point to information which supports that conclusion beyond the mere fact of the requisition. In Donaco International Limited 03R, the review Panel declined to conduct proceedings on an application dated 14 November 2019 from Donaco International Limited in relation to its affairs. The application sought a review of the initial Panel's decision to decline to conduct proceedings in relation to Donaco's initial application (see TP19/66). The review Panel agreed with the initial Panel's reasons and conclusions in Donaco International Limited 02 [2019] ATP 23, considering that Donaco did not provide a sufficient body of material to justify it making further enquiries as to whether there were any associations.

THE WEEK AHEAD

UK General Election. A reminder that the UK general election will occur on 12 December 2019, with the Boris Johnson-led Tories pulling ahead in recent polls. The Financial Times is reporting that Brexit anxiety among City professionals has recently been replaced by concerns over the Labour Party’s legislative agenda, with leader Jeremy Corbyn  vowing to nationalise utilities, increase corporation tax and roll out mandatory employee ownership of companies, in what is widely regarded as one of the most left-leaning political manifestos in decades. Directors will need to be alert to the potential for further volatility in the lead up to the poll result.

ASIC’s IT systems offline this weekend. ASIC’s web-based systems and search functions / portals (eg, ASIC Connect in-line registers and business searches, ASIC's Regulatory Portal, ABR Joint Registration and EDGE and datastream services) will be unavailable from 6.00am Saturday 7 December to 8.00pm Sunday 8 December 2019.

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