Commonwealth Consolidated Acts Commonwealth Consolidated Acts(1) If a person is a corporation, the person may give a written undertaking (a standard functional separation undertaking ) to the ACCC.
(2) The undertaking must:
(a) provide that the person will maintain:
(i) a single wholesale business unit; and
(ii) a single retail business unit; and
(b) provide that the person will maintain arm's length functional separation between:
(i) the person's wholesale business unit; and
(ii) the person's retail business unit; and
(c) provide that the person will ensure that:
(i) the terms and conditions relating to price or a method of ascertaining price; and
(ii) other terms and conditions;
on which the person's wholesale business unit supplies local access line services to the person's retail business unit are documented; and
(d) provide that the person will, to the extent specified in the undertaking, ensure that the workers who perform their duties for the person's wholesale business unit are different from the workers who perform their duties for the person's retail business unit; and
(e) provide that the person will, to the extent specified in the undertaking, ensure that there are separate:
(i) operational support systems; and
(ii) business systems; and
(iii) communications systems; and
(iv) accounts;
for:
(v) the person's wholesale business unit; and
(vi) the person's retail business unit; and
(f) provide that the person will publish on the person's website:
(i) the terms and conditions relating to price or a method of ascertaining price; and
(ii) other terms and conditions;
on which the person's wholesale business unit offers to supply local access line services to the following:
(iii) the person's retail business unit;
(iv) the person's wholesale customers or prospective wholesale customers; and
(g) provide that the person will:
(i) if requested to do so by a wholesale customer or prospective wholesale customer, supply a local access line service to the wholesale customer or prospective wholesale customer; and
(ii) do so on the terms and conditions that were published on the person's website at the time when the request was made; and
(h) provide that the person will ensure that information provided to the person's wholesale business unit by the person's wholesale customers is not disclosed to the person's retail business unit; and
(i) provide that the person will ensure that the person's retail business unit does not obtain, access or use information provided to the person's wholesale business unit by the person's wholesale customers; and
(j) provide that the person will ensure that information provided to the person's retail business unit by a carrier or carriage service provider (other than information of a kind specified in a determination under subsection (13)) is not disclosed to the person's wholesale business unit; and
(k) provide that the person will ensure that the person's wholesale business unit does not obtain, access or use information provided to the person's retail business unit by a carrier or carriage service provider (other than information of a kind specified in a determination under subsection (13)); and
(l) provide that the person will use the same customer interface for dealings between:
(i) the person's wholesale business unit; and
(ii) the person's wholesale customers;
as the person uses for dealings between:
(iii) the person's wholesale business unit; and
(iv) the person's retail business unit; and
(m) contain such other provisions (if any) as are specified in a determination under subsection (14); and
(n) not contain a provision of a kind specified in a determination under subsection (15).
Note: A standard functional separation undertaking is supplemented by section 151ZF (which requires eligible services to be supplied on a non - discriminatory basis) and section 151ZG (which requires related activities to be carried on on a non - discriminatory basis).
(3) An extent specified under paragraph (2)(d) or (e) may be a nil extent.
Form etc.
(4) The undertaking must:
(a) be in a form approved in writing by the ACCC; and
(b) be accompanied by such information as is reasonably likely to assist the ACCC to decide whether to accept or reject the undertaking; and
(c) be accompanied by the fee (if any) specified in, or ascertained in accordance with, a determination under subsection (16).
Expiry time
(5) The undertaking must specify the expiry time of the undertaking.
(6) The expiry time of the undertaking may be described by reference to the end of a period beginning when the undertaking comes into force.
(7) Subsection (6) does not, by implication, limit subsection (5).
(8) The expiry time of the undertaking must not be more than 10 years after the undertaking comes into force.
Fundamental provisions
(9) The undertaking:
(a) must state that the provisions of the undertaking covered by paragraphs (2)(a), (b), (c), (f), (g), (h), (i), (j) and (k) are fundamental provisions; and
(b) may state that one or more other provisions of the undertaking are fundamental provisions.
Compliance reports
(10) The undertaking must provide that the person will give the ACCC periodic reports (to be known as compliance reports) that:
(a) relate to the person's compliance with the undertaking; and
(b) are in a form approved in writing by the ACCC.
Note: See section 151ZJ (self - incrimination).
Compliance plans
(11) The undertaking must provide that the person will:
(a) prepare a plan (to be known as a compliance plan) setting out the actions to be taken by the person for the purpose of ensuring that the person complies with the undertaking; and
(b) give the ACCC:
(i) a copy of the compliance plan; and
(ii) a copy of any variation of the compliance plan.
ACCC may perform functions or exercise powers
(12) If the undertaking provides for the ACCC to perform functions or exercise powers in relation to the undertaking, the ACCC may perform those functions, and exercise those powers, in accordance with the undertaking.
Determinations
(13) The ACCC may, by legislative instrument, determine one or more kinds of information for the purposes of paragraphs (2)(j) and (k).
(14) The Minister may, by legislative instrument, determine one or more provisions for the purposes of paragraph (2)(m).
(15) The Minister may, by legislative instrument, determine one or more kinds of provisions for the purposes of paragraph (2)(n).
(16) The ACCC may, by legislative instrument, determine a fee, or a method of ascertaining a fee, for the purposes of paragraph (4)(c).
(17) A fee determined under, or ascertained in accordance with, subsection (16) must not be such as to amount to taxation.