Competition and Consumer Act 2010

The Court may, on the application of the Treasurer under section 153ZA, make an order under subsection (2) or (3) in relation to the body corporate if:

the Court finds, or has in another proceeding instituted under this Act found, that the conduct identified in the recommendation (in accordance with subparagraph 153S(2)(c)(ii)):

is prohibited conduct engaged in by the relevant corporation; and

is, or includes, prohibited conduct under section 153H (electricity spot market (aggravated case)); and

the Court is satisfied that the order is a proportionate means of preventing the relevant corporation, or any related body corporate, from engaging in that kind of prohibited conduct in the future.

If the body corporate is not an authority of the Commonwealth or an authority of a State or Territory, the Court may order the body corporate to:

dispose of interests in securities or assets, other than to any of the following:

another body corporate that is related to the body corporate;

an associate of the body corporate; and

comply with conditions (if any) specified in the order in accordance with subsection (7).

If the body corporate is an authority of the Commonwealth or an authority of a State or Territory, the Court may order the body corporate to:

dispose of interests in securities or assets to:

if the body corporate is an authority of the Commonwealth—an authority of the Commonwealth that is genuinely in competition in relation to electricity markets with the body corporate in relation to which the order is made and that the Commonwealth has a controlling interest in that is equal to or greater than the controlling interest that the Commonwealth has in that body corporate; and

if the body corporate is an authority of a State or Territory—an authority of that State or Territory that is genuinely in competition in relation to electricity markets with the body corporate in relation to which the order is made and that the State or Territory has a controlling interest in that is equal to or greater than the controlling interest that the State or Territory has in that body corporate; and

comply with conditions (if any) specified in the order in accordance with subsection (7).

To avoid doubt, the Court cannot make an order under subsection (3) for the body corporate to dispose of interests in securities or assets otherwise than in accordance with paragraph (3)(a).

An order under subsection (2) or (3) must specify:

the interests in the securities and assets, or the kinds of interests in the securities and assets, that the body corporate must dispose of; and

the day by which the disposal must be made; and

any other matter that the Court considers necessary for the order to be effective.

The day by which the disposal must be made must be no earlier than 12 months after the day on which the order is made.

The order may specify conditions with which the body corporate must comply during the period between the making of the order and the disposal of an interest, if the Court is satisfied that those conditions are necessary to preserve any of the following:

the value of the interest;

in the case of an interest in an asset—the commercial operation of the asset.

Without limiting the scope of subsection (7), those conditions may relate to any of the following:

the interest to be disposed;

if the interest is a share or other security in a body corporate—the exercise of rights attached to the share or other security.

If a body corporate disposes of interests in assets to another body corporate as required by an order made under this section, then for the purposes of paragraph 311(1)(d) or 768AD(1)(d) of the Fair Work Act 2009, there is taken to be a connection between the body corporate and the other body corporate as described in subsection 311(3) or 768AD(2), as the case may be, of that Act.

This means any employees of the body corporate who become employees of the other body corporate and satisfy paragraphs 311(1)(a) to (c) or 768AD(1)(a) to (c) will be transferring employees in relation to a transfer of business for the purposes of Part 2‑8 or Part 6‑3A of that Act.