ACCC identifies further Horticulture Code breaches in WA
The ACCC has accepted enforceable undertakings under section 87B of Trade Practices Act 1974 from three Western Australian horticultural produce traders.
In two cases the traders acknowledged they contravened the Horticulture Code of Conduct a mandatory industry code under the Act. In the other case the trade acknowledged it may have contravened the Code.
Karragullen Cool Storage Pty Ltd (Karragullen) and Brimcove Pty Ltd trading as Etherington have acknowledged that by trading in horticultural produce without Code compliant horticultural produce agreements and by failing to prepare, publish or make publicly available Code compliant terms of trade, they have contravened the Code and section 51AD of the Act.
Scamonte Ventures Pty Ltd trading as Scalzi Produce WA (Scalzi Produce) acknowledges that by trading with some growers as an agent without a horticultural produce agreement and by failing to publish a Code complaint terms of trade, it may have contravened the Code and section 51AD of the Act.
The purpose of the Code is to regulate trade in horticulture produce between growers and traders to ensure transparency and clarity of transactions, and to also provide a fair and equitable dispute resolution procedure for disputes arising under the Code or a horticulture produce agreement.
The Australian Competition and Consumer Commission has accepted court enforceable undertakings under section 87B of the Act from each trader that:
they will not trade in horticulture produce that is subject to the Code without having Code compliant agreements in place
they will prepare, publish and make publicly available Code compliant terms of trade
at each trader’s expense, they will arrange a trade practices seminar on the Code for their management, employees and growers. The seminar will be conducted by a suitable qualified compliance professional or legal practitioner with expertise in trade practices law
each trader will notify the growers it trades with about the contraventions of the Code and provide details of the trade practices seminar, and
each trader will provide copies of its Code compliant agreement and terms of trade to the ACCC within specified timeframes.
Karragullen will publish a notice about the matter in the Farm Weekly and WA Fruit Grower magazines and Scalzi Produce will publish a notice in the Countryman newspaper.
ACCC Chairman, Mr Graeme Samuel, reminded the industry that the Code has now been operational for over a year and that there is now no reason for traders and growers not to comply with their obligations.
"The ACCC will not hesitate to take enforcement action, include proceedings in the Federal Court, against traders and growers who deliberately disregard the mandatory requirements of the Code."
On 14 May 2007 the Horticulture Code of Conduct came into effect as a prescribed industry code of conduct under the Trade Practices Act 1974.
The purpose of the code is to regulate trading in the horticulture produce industry. The code encourages greater clarity and commercial transparency in trade transactions between growers and wholesale traders by clarifying the responsibilities and obligations of each.
The code requires that all traders—whether trading as agents or merchants—prepare, publish and make publicly available a document that sets out the general terms and conditions under which they will trade with growers of horticulture produce. The code sets out the specific requirements for what must be included in the terms of trade document.
The code also requires that a trader and grower enter a horticulture produce agreement which must be in writing and signed before they trade in horticulture produce with each other. As an agreement between the parties the horticulture produce agreement can contain terms unique to the parties' situation. However, the code sets out the minimum requirements about what must be included in a horticulture produce agreement.
It is a breach of the code if growers and merchants trade in horticultural produce without a signed horticulture produce agreement in place.
