Commonwealth Consolidated Acts Commonwealth Consolidated Acts(1) If 2 or more persons are corporations, those persons may give a joint written undertaking (a joint functional separation undertaking ) to the ACCC.
(2) The undertaking must:
(a) identify:
(i) one or more (but not all) of those persons as the wholesaler or wholesalers for the purposes of the undertaking; and
(ii) the remaining person or persons as the retailer or retailers for the purposes of the undertaking; and
(b) provide that a wholesaler will not supply a local access line service to a person unless the person is a wholesale customer; and
(c) provide that a retailer will not supply a local access line service to a person unless the person is a retail customer; and
(d) provide that a wholesaler will, to the extent specified in the undertaking, ensure that the wholesaler's workers will perform their duties exclusively for the wholesaler; and
(e) provide that a retailer will, to the extent specified in the undertaking, ensure that the retailer's workers will perform their duties exclusively for the retailer; and
(f) provide that a wholesaler will, to the extent specified in the undertaking, ensure that the workers who:
(i) are engaged by persons other than the wholesaler; and
(ii) perform duties for the wholesaler;
are different from the workers who:
(iii) are engaged by persons other than the wholesaler; and
(iv) perform duties for a retailer; and
(g) provide that a retailer will, to the extent specified in the undertaking, ensure that the workers who:
(i) are engaged by persons other than the retailer; and
(ii) perform duties for the retailer;
are different from the workers who:
(iii) are engaged by persons other than the retailer; and
(iv) perform duties for a wholesaler; and
(h) provide that a wholesaler will ensure that no director of the wholesaler is a director of a retailer; and
(i) provide that a retailer will ensure that no director of the retailer is a director of a wholesaler; and
(j) provide that:
(i) the wholesaler or wholesalers; and
(ii) the retailer or retailers;
will, to the extent specified in the undertaking, have separate:
(iii) operational support systems; and
(iv) business systems; and
(v) communications systems; and
(vi) accounts; and
(k) provide that a wholesaler will publish on the wholesaler'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 wholesaler offers to supply local access line services to the following:
(iii) a retailer;
(iv) its wholesale customers or prospective wholesale customers; and
(l) provide that a wholesaler 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 wholesaler's website at the time when the request was made; and
(m) provide that a wholesaler will ensure that information provided by its wholesale customers (other than the retailer or retailers) is not disclosed to any of the retailers; and
(n) provide that a retailer will ensure that it does not obtain, access or use information provided to any of the wholesalers by the wholesaler's wholesale customers; and
(o) provide that a retailer will ensure that information provided to the retailer by a carrier or carriage service provider, other than:
(i) information provided by a wholesaler; or
(ii) information of a kind specified in a determination under subsection (15);
is not disclosed to any of the wholesalers; and
(p) provide that a wholesaler will ensure that it does not obtain, access or use information provided to any of the retailers by a carrier or carriage service provider, other than:
(i) information provided by a wholesaler; or
(ii) information of a kind specified in a determination under subsection (15); and
(q) provide that a wholesaler will use the same customer interface for dealings between:
(i) the wholesaler; and
(ii) the wholesaler's wholesale customers (other than the retailer or retailers);
as the wholesaler uses for dealings between:
(iii) the wholesaler; and
(iv) a retailer; and
(r) contain such other provisions (if any) as are specified in a determination under subsection (16); and
(s) not contain a provision of a kind specified in a determination under subsection (17).
Note: A joint 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), (e), (f), (g) or (j) 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 (18).
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), (h), (i), (k), (l), (m), (n), (o) and (p) 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 a wholesaler will give the ACCC periodic reports (to be known as compliance reports) that:
(a) relate to the wholesaler's compliance with the undertaking; and
(b) are in a form approved in writing by the ACCC.
Note: See section 151ZJ (self - incrimination).
(11) The undertaking must provide that a retailer will give the ACCC periodic reports (to be known as compliance reports) that:
(a) relate to the retailer'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
(12) The undertaking must provide that a wholesaler will:
(a) prepare a plan (to be known as a compliance plan) setting out the actions to be taken by the wholesaler for the purpose of ensuring that the wholesaler 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.
(13) The undertaking must provide that a retailer will:
(a) prepare a plan (to be known as a compliance plan) setting out the actions to be taken by the retailer for the purpose of ensuring that the retailer 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
(14) 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
(15) The ACCC may, by legislative instrument, determine one or more kinds of information for the purposes of paragraphs (2)(o) and (p).
(16) The Minister may, by legislative instrument, determine one or more provisions for the purposes of paragraph (2)(r).
(17) The Minister may, by legislative instrument, determine one or more kinds of provisions for the purposes of paragraph (2)(s).
(18) The ACCC may, by legislative instrument, determine a fee, or a method of ascertaining a fee, for the purposes of paragraph (4)(c).
(19) A fee determined under, or ascertained in accordance with, subsection (18) must not be such as to amount to taxation.