04/05/2020

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 ASX’s latest compliance update, ASIC’s latest enforcement update, release of ASIC’s whistleblower FAQs and extension to the modern slavery statement deadline.

YOUR KEY BOARDROOM BRIEF

ASX releases compliance update for May 2020.  ASX’s latest compliance update advises listed entities that, to provide further relief during the COVID-19 pandemic, annual listing fees for FY 2021 will be staggered over six months and payable in two equal instalments (instead of the usual one); with the first due at the end of July 2020 and the second due at the end of January 2021.  The update reiterates ASX’s recent changes to the temporary emergency capital raising relief (see our last edition of Boardroom Brief for an overview) and the need to engage with ASX early if intending to rely on it.  Directors of companies considering launching a capital raising that is not COVID-19 related and not urgently needed (for example, where it is being pursued solely or predominantly to raise capital for “growth opportunities” or unidentified potential future acquisitions) may need to be prepared to answer questions as to whether it is appropriate for the relief to apply.  The update also provides some guidance on the application of Listing Rule 6.1, given a recent uptick in the issue of convertible notes by smaller listed entities. You can access Compliance Update No. 05/20 here.

ASIC publishes enforcement update for the H2 2019.  ASIC’s Enforcement Update provides a high-level overview of its enforcement priorities and key decisions across corporate governance, financial services, market integrity and small business compliance during the period 1 July to 31 December 2019. Of note to Directors, ASIC’s Office of Enforcement will prioritise the following matters in 2019-21: (i) Royal Commission referrals; (ii) superannuation and insurance related misconduct; (iii) cases that engage ASIC’s new powers or attract new or higher penalties; (iv) illegal phoenix activity; (v) auditor misconduct; and (vi) new or emerging risks including misconduct arising from new technologies.  The update also provides an overview of ASIC’s recalibration of its regulatory priorities to focus on challenges created by COVID-19. 

ASIC publishes whistleblower FAQs.  The whistleblower FAQs released on ASIC’s website last week are intended to answer common questions about the whistleblower protections and encourage whisteblower disclosures.  These supplement the existing material available to whistleblowers on its website; namely, INFO 238: Whistleblower rights and protections and INFO 239: How ASIC handles whistleblower reports. The FAQs serve as a reminder to Directors of Australian companies to ensure their whistleblower protocols and processes are up to scratch given the extensive legislative and regulatory changes to the whistleblower regime last year.

Modern slavery statement deadline extended.  Last week, the Government announced that reporting entities (ie, those with over $100 million annual consolidated revenue including corporate Commonwealth entities and foreign entities carrying on business in Australia) whose reporting periods end on or before 30 June 2020 now have until 31 March 2021 to lodge their modern slavery statement (originally due by 31 December 2020).  The extension is intended to allow entities more time to assess changing modern slavery risks in relation to COVID-19. Directors should note growing concerns that the COVID-19 pandemic may exacerbate modern slavery risks by increasing the number of vulnerable workers exposed to potential exploitation and by disrupting the operation of governmental and non-governmental agencies targeting the elimination of modern slavery.  

THE WEEK AHEAD

Are things getting back to normal?  Prime Minster Scott Morrison’s comment last week that “we can’t keep Australia under the doona”, coupled with an easing of virus-related restrictions (including the reopening of schools), represent the clearest signs yet of a desire on the part of policy makers to transition from lockdown to a “COVID-safe economy”.  Businesses will no doubt be turning their minds now to planning the transition of the workforce back into the workplace as the economy starts to reopen, however there will likely be a need to maintain flexible working arrangements for some time.  Note that the Commonwealth Government continues to promote the COVIDSafe tracing application as a critical component of the national return to work strategy.  You can find Gilbert + Tobin’s breakdown of the privacy and data governance characteristics of the app here.

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Our COVID-19 hub collates important articles and legal advice on various aspects of COVID-19 on how it may impact your business.