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Any dispute resolution procedure can be used
Under the Horticulture Code of Conduct, growers and traders can choose any dispute resolution procedure. This includes the dispute resolution procedure in the horticulture code.
A dispute resolution procedure can also be described in the horticulture produce agreement, though the grower or trader can instead choose to follow the procedure described in the code.
A grower or trader can still choose to take legal action or make a complaint to us when they participate in a dispute resolution procedure under the code.
The horticulture code includes a dispute resolution process
The horticulture code includes a process that may be used to resolve disputes. If one of the parties chooses this procedure, it must be followed to resolve the dispute. This party becomes the complainant.
Follow these steps for the code’s dispute resolution procedure:
Step 1: Inform the other party
The complainant must inform the other party in writing of the dispute and state:
- what the dispute is about
- the action they think will resolve the dispute
- their desired outcome.
Step 2: Try to resolve the dispute
The grower and trader should try to resolve the dispute using the procedure in the code.
If the parties can’t resolve the dispute within 3 weeks, either party may opt for the mediation process under the code.
The code includes an option for mediation
Mediation is a way to resolve disputes without going through complex and costly legal action.
Mediators don’t give legal advice or make decisions like a judge. They do assist parties to reach an outcome that is acceptable to both parties.
How to begin mediation
If a party opts for mediation when a dispute can’t be resolved, a mediation adviser is appointed.
The Minister for Agriculture, Fisheries and Forestry has appointed the Deputy Secretary as the mediation adviser under the horticulture code. For more information, email hortcode@agriculture.gov.au.
The grower or trader can ask the mediation adviser to appoint a mediator.
Alternatively, the mediation adviser or the Australian Small Business and Family Enterprise Ombudsman (ASBFEO) can refer parties to trained mediators with commercial experience in locations across Australia.
For more information or to contact ASBFEO, visit the ASBFEO website, email info@asbfeo.gov.au or call 1300 650 460.
Taking part in mediation
Once the mediator is appointed, they decide how, where and when the mediation will be carried out. The mediator will let all parties know.
Both the grower and trader must attend the mediation and try to resolve the dispute. If you refuse to attend or you don’t make a genuine attempt to resolve the dispute, you may be breaching the code and penalties may apply.
If you can’t attend mediation, you must send a representative. This person must have authority to enter into an agreement to settle the dispute on your behalf.
When an agreement is reached
If the grower and trader agree on an outcome, the mediator must set out the terms of the agreement in writing. A copy is given to the grower and to the trader. This written record is normally a binding contract.
Ending a mediation
The mediator may end the mediation at any time if they are satisfied that the dispute is unlikely to be resolved.
The mediator must also end mediation if:
- the complainant asks the mediator to do so, or
- at least 30 days have passed since the start of the mediation, the dispute has not been resolved, and the other party asks the mediator to do so.
Costs of mediation
Unless the grower and trader agree otherwise, they must each pay:
- half the costs of the mediation
- their own costs of attending the mediation.
A horticulture produce assessor can help resolve a dispute
About the assessor role
Horticulture produce assessors are independent experts who can help to resolve a disagreement.
Assessors can investigate and report on any matter under a horticulture produce agreement. Matters include whether:
- produce has been rejected in line with the conditions of a horticulture produce agreement
- the amount paid by a trader to a grower was calculated as specified in the horticulture produce agreement
- the grower has been paid on time
- an agent has reported their sales to the grower.
Appointing a horticulture produce assessor
Horticulture produce assessors are appointed under the horticulture code.
The mediation adviser, appointed by the Minister, publishes a list of suitable assessors.
An assessor can be appointed by:
- the grower and trader, where they agree
- a mediation adviser or mediator, where the grower and trader can’t agree.
Assessor costs should be split between the parties, unless the grower and trader agree otherwise.
Growers and traders must follow a reasonable request of the assessor. Failure to do so can lead to a penalty.