DRAFT COMPLIANCE PROGRAM UNDERTAKINGS AND ORDERS

Section 87B Undertaking 
LEVEL 4

Compliance Program 

1.	[COMPANY NAME] undertakes to the Australian Competition and Consumer Commission (“the Commission”), for the purposes of section 87B of the Trade Practices Act 1974 (the Act) that it will:

(a)	establish and implement a Trade Practices Compliance Program in accordance with the requirements set out in “Annexure A” for the employees or other persons involved in [COMPANY NAME]’s business, being a program designed to minimise its  risk of future breaches of [insert relevant sections or parts of the Act] and to ensure their awareness of the responsibilities and obligations in relation to the requirements of [INSERT: relevant sections or parts of the Act], within X months of the date of this Undertaking coming into effect; and

(b)	maintain and continue to implement the Trade Practices Compliance Program for a period of X years from the date of this Undertaking coming into effect;

(c) 	provide, at its own expense, a copy of any documents requested by the Commission in accordance with Annexure A. 

Acknowledgments

1. 	[COMPANY NAME] acknowledges that the Commission will make this undertaking available for public inspection.

2. 	[COMPANY NAME] further acknowledges that the Commission will from time to time publicly refer to this undertaking.

3.	[COMPANY NAME] further acknowledges that this undertaking in no way derogates from the rights and remedies available to any other person arising from the alleged conduct.

4. 	[COMPANY NAME] further acknowledges that a summary of the Commission Compliance Program Review reports referred to in Annexure A of the Undertaking may be held with this undertaking on the public register.

Annexure A

TRADE PRACTICES COMPLIANCE PROGRAM

[COMPANY NAME] will establish a Trade Practices Compliance Program (the Compliance Program) that complies with each of the following requirements:

Appointments

1.	Within one month of the date of this Undertaking coming into effect [COMPANY NAME] will appoint a Director or a Senior Manager with suitable qualifications or experience in corporate compliance as Compliance Officer with responsibility for ensuring the Compliance Program is effectively designed, implemented and maintained

2.	Within X months of the date of this Undertaking coming into effect [COMPANY NAME] shall appoint a qualified, internal or external, compliance professional with expertise in trade practices issues (the Compliance Advisor). [COMPANY NAME] shall instruct the Compliance Adviser to conduct a Trade Practices Act risk assessment (Risk Assessment) in accordance with i.-iv. below:

i.	identify the areas where [COMPANY NAME] is at  risk of breaching the [INSERT: relevant sections or parts of the Act];

ii.	assess the likelihood of these risks occurring and the consequences of the risks to the business operations of [COMPANY NAME] should they occur;

iii.	identify where there may be gaps in [COMPANY NAME]’s existing procedures for managing these risks; and

iv.	provide recommendations for action having regard to the assessment.

Compliance Policy

3.	[COMPANY NAME] will, within X days of the Undertaking coming into effect, issue a policy statement outlining [COMPANY NAME]’s commitment to trade practices compliance (the Compliance Policy). [COMPANY NAME] will ensure that the Compliance Policy:

i.	is written in plain language;

ii.	contains a statement of commitment to compliance with the Trade Practices Act 1974;

iii. 	contains a strategic outline of how commitment to trade practices compliance will be realised within [COMPANY NAME];

iv.	a requirement for all staff to report any compliance related issues and trade practices compliance concerns to the Compliance Officer;

v.	 a guarantee that whistleblowers will not be prosecuted or disadvantaged in any way and that their reports will be kept confidential and secure;

vi.	a clear statement that [COMPANY NAME] will take action internally against any persons who are knowingly or recklessly concerned in a contravention of the Trade Practices Act and will not indemnify them.

Complaints Handling System

4.	[COMPANY NAME] will ensure that the Compliance Program includes a trade practices complaints handling system. [COMPANY NAME] shall use best endeavours to ensure this system is consistent with Australian Standard 4269, though tailored to [COMPANY NAME]’s circumstances. [COMPANY NAME] will ensure that staff and customers are made aware of the complaints handling system.

5.	[COMPANY NAME] will ensure that the Compliance Program includes whistleblower protection mechanisms to protect those coming forward with trade practices complaints. [COMPANY NAME] shall use best endeavours to ensure that these mechanisms are consistent with Australian Standard 8004, though tailored to [COMPANY NAME]’s circumstances. 

Reports to Board/Senior Management 

6.	[COMPANY NAME] will ensure that the Compliance Officer reports to the Board and/or senior management meetings every X months on the continuing effectiveness of the Compliance Program.

Training

7.	[COMPANY NAME] will ensure that the Compliance Program provides for regular (at least once a year) and practical trade practices training for all directors, officers, employees, representatives and agents of [COMPANY NAME], whose duties could result in them being concerned with conduct that may contravene [INSERT: the relevant parts or sections] of the Act. [COMPANY NAME] must ensure that the training is conducted by either a suitably qualified  compliance professional or legal practitioner with expertise in trade practices law.

8.	[COMPANY NAME] will ensure that the Compliance Program includes a requirement that awareness of trade practices compliance issues forms part of the induction of all new directors, officers, employees, representatives and agents, whose duties could result in them being concerned with conduct that may contravene [INSERT: the relevant parts or sections] of the Act.

Product Safety

9.	[INSERT 9. ONLY IF THE MATTER IS RELATED TO PRODUCT SAFETY ISSUES]
Product Safety - [COMPANY NAME] will: 

a.	maintain up-to-date copies, at its business premises, of all prescribed consumer product safety standards and prescribed consumer information standards that relate to products [COMPANY NAME] supplies;

b.	ensure that the products supplied that are subject to a prescribed safety and/or information standard under the Trade Practices Act, comply with the relevant standard; and

c.	develop, implement and maintain recall procedures that enable products supplied by [COMPANY NAME] that do not comply with prescribed safety and/or information standards under the Trade Practices Act to be efficiently and effectively withdrawn from the market and returned to [COMPANY NAME].

Supply of Compliance Program Documents to the Commission

10.	[COMPANY NAME] shall, at its own expense, within X months of the date of this Undertaking coming into effect, cause to be produced and provided to the Commission copies of each of the documents constituting the Compliance Program and implement promptly and with due diligence any recommendations that the Commission may make that are reasonably necessary to ensure that [COMPANY NAME] maintains and continues to implement the Compliance Program in accordance with the requirements of this Undertaking .	
Review

11.	 [COMPANY NAME] shall, at its own expense, cause annual Reviews of the Compliance Program (the Reviews) to be carried out in accordance with each of the following requirements:

(a)	Scope of the Reviews – the Reviews should be broad and rigorous enough to provide [COMPANY NAME] and the Commission with a supportable verification that [COMPANY NAME] has in place a program that complies with each of the requirements detailed in paragraphs 1 – 11 above and to provide the Review reports and opinions detailed at point 12 below;

(b)	Independence of Reviewer – [COMPANY NAME] shall ensure that the Reviews are carried out by a suitably qualified, independent compliance professional with expertise in trade practices law (the Reviewer). The Reviewer will qualify as independent on the basis that he or she:

i.	did not design or implement the Compliance Program;

ii.	is not a present or past staff member or director of [COMPANY NAME];

iii.	has not acted and does not act for [COMPANY NAME] in any trade practices related matters; 

iv.	has not and does not act for or consult to [COMPANY NAME] or provide other services on trade practices related matters other than Compliance Program reviewing; and

v.	has no significant shareholding or other interests in [COMPANY NAME].

            (c)	Evidence – [COMPANY NAME] shall use its best endeavours to ensure that the Reviews are conducted on the basis that the Reviewer has access to all relevant sources of information in [COMPANY NAME]’s possession or control, including without limitation:

i.	enquiries of any officers, employees, representatives, agents  and stakeholders of [COMPANY NAME];

ii.	[COMPANY NAME]’s records, including [COMPANY NAME]’s complaints register/reports and any documents relevant to [COMPANY NAME]’s training or induction program; and

iii.	documents created by [COMPANY NAME]’s consultants and legal practitioners for use in [COMPANY NAME]’s Compliance Program.

(d)	[COMPANY NAME] shall ensure that the first Review is completed within one year and one month of this Undertaking coming into effect and that each subsequent Review is completed within one year thereafter. 

Reporting

12.	[COMPANY NAME] shall use its best endeavours to ensure the Reviewer sets out the findings of the Review in two separate reports as set out below:

(a)	Company Compliance Program Review Report (to be provided to COMPANY NAME) 

[COMPANY NAME]’s Company Review Report will provide particular and specific information regarding the performance of the Trade Practices Compliance Program to the corporation including:

i.	If, and to what extent, the Compliance Program of [COMPANY NAME] includes all the elements detailed in paragraphs 1 – 11 above;

ii.	If, and to what extent, the Trade Practices Compliance Program adequately covers the parties and areas identified in the initial Risk Assessment; 

iii.	If, and to what extent, the trade practices training is effective;

iv.	If, and to what extent, [COMPANY NAME]’s complaints handling system is effective;
 
v.	If, and to what extent, [COMPANY NAME] is able to provide confidentiality and security to whistleblowers, and staff are aware of the whistleblower protection mechanisms; and
 
vi. 	Recommendations for rectifying deficiencies in i. – v. above that the Reviewer thinks are reasonable necessary to ensure that [COMPANY NAME] maintains and continues to implement the Compliance Program in accordance with the requirements of the Undertaking.

b)	Commission Compliance Program Review Report (to be provided to Commission) 

The Commission Review Report will provide particular and specific information regarding the scope of the Review and the effectiveness of the Trade Practices Compliance Program including:

i.	details of the evidence gathered and examined during the Review; 

ii.	the name and relevant experience of the person appointed as the company Compliance  Officer;

iii.	the Reviewer’s opinion on whether [COMPANY NAME] has in place a Trade Practices Compliance Program that complies with the requirements detailed in paragraph 1-11above; 

iv.	the Reviewer’s opinion on if, and to what extent, [COMPANY NAME] has complied with the Trade Practices Compliance Program component of the Undertaking;

v.   actions recommended by the Reviewer to ensure the continuing effectiveness of [COMPANY NAME]’s Compliance Program; 

vi.	confirmation that any actual and potential inadequacies in [COMPANY NAME] ’s Compliance Program have been brought to the attention of the Compliance Officer and the Board;

vii.	confirmation that the Reviewer has revisited any actual and potential inadequacies in [COMPANY NAME]’s Compliance Program identified in any previous Company Compliance Program Review Report, and assessed how they have been addressed by [COMPANY NAME];

viii. any reservations that the Reviewer might have about the reliability and completeness of the information to which the Reviewer had access in the conduct and reporting of the Review; and

ix.	any comments or qualifications concerning the Review process that the Reviewer, in his or her professional opinion, considers necessary. 

c)	[COMPANY NAME] will ensure that the Review Reports are completed and provided to [COMPANY NAME] within two months of each Review.

 (d)	[COMPANY NAME] will retain the Company Compliance Program Review Report and cause the Commission Compliance Program Review Report to be provided to the Commission within 14 days of its receipt from the Reviewer.

(e)	[COMPANY NAME] acknowledges that a brief statement regarding the Commission Compliance Program Review Report may be included in the Commissions 87B public register. 
 
13.	Recommendations – [COMPANY NAME] shall implement promptly and with due diligence any recommendations made by the Reviewer or required by the Commission that are reasonably necessary to ensure that [COMPANY NAME] maintains and continues to implement the Compliance Program in accordance with the requirements of this Undertaking.

14	If requested by the Commission [COMPANY NAME] shall, at its own expense, provide copies of documents and information in respect of matters which are the subject of the Compliance Program.

15.	In the event the Commission has sufficient reason to suspect that the Compliance Program is not being implemented effectively, [COMPANY NAME] shall, at its own expense and if requested by the Commission, cause an interim or additional Review to be conducted and cause the resulting Commission Review Report to be provided to the Commission.