The Food and Grocery Code of Conduct provides processes for suppliers to lodge complaints and seek to have their disputes with retailers and wholesalers resolved.
Under the Code, a supplier can choose the dispute resolution option that meets their needs. A supplier can:
- raise the complaint with a retailer or wholesaler’s Code compliance manager
- request the immediate elevation of the complaint to senior management, or
- take the complaint directly to mediation or arbitration.
Where a supplier raises a complaint or dispute, they must provide, or be able to provide sufficient detail of:
- the conduct that is the subject of the complaint
- the provisions of the Code alleged to have been breached, and
- the remedy they are seeking.
The Code states that delisting as punishment for a complaint, concern or dispute raised by a supplier is unacceptable.
A retailer or wholesaler must nominate a Code compliance manager. The contact details of the manager must be made available to suppliers.
A supplier can make a complaint to the manager. The manager must take all reasonable steps to investigate the complaint and conclude the investigation within 20 business days (unless the manager determines that the complaint is vexatious, trivial, misconceived or lacking in substance and gives written notice to the supplier of this determination).
Following this, the manager must give the supplier a summary of the action (if any) that has or will be taken in response to the complaint within 5 business days after the conclusion of the investigation.
If the supplier is not satisfied with the outcome, they can write to the retailer or wholesaler and request for the dispute to be elevated through senior management.
The retailer or wholesaler must attempt to resolve the complaint within 20 days.
Alternatively, a supplier can request that a complaint be raised directly through a retailer’s or wholesaler’s senior levels of management.
If the supplier makes such a request, the retailer or wholesaler must attempt, in good faith, to resolve the complaint within 20 business days.
A supplier can also seek mediation or arbitration of a complaint or dispute.
Mediation is a process where an independent third party assists parties to negotiate and settle their dispute.
Arbitration is a formal dispute resolution process in which parties refer their dispute to an independent third party for a binding decision.
For the purposes of the Code, mediation or arbitration must be conducted in accordance with the rules of the Resolution Institute.
If a supplier has raised a complaint with the Code compliance manager or requested that the complaint be elevated to senior management, the supplier must wait until that process is complete (or should have been completed) before seeking mediation or arbitration.
The retailer or wholesaler must take part in mediation or arbitration in good faith.
The ACCC is responsible for regulating compliance with the Code and can take enforcement action to enforce the Code, where appropriate.
When the ACCC receives a complaint about an alleged breach of the Code it undertakes a preliminary assessment of the complaint. An initial confidential discussion with the complainant may be necessary as part of this assessment.
Where the complaint is assessed as substantive, it is progressed to an ACCC enforcement officer. At this stage further information and evidence will be sought from both parties.
The ACCC decides which action, if any, to take in response to a complaint in line with its Compliance and Enforcement policy. Ensuring compliance with the Code is a current priority for the ACCC.
While there are no financial penalties for a breach of the Code, other remedies are available (including court-ordered injunctions, compensation to persons who have suffered loss or damage caused by the conduct and contract variations). Conduct that breaches the Code could also breach the unconscionable conduct provisions of the Australian Consumer Law, which carries penalties of up to $1.1 million per contravention.
The ACCC will be conducting audits of retailers and wholesalers to ensure that they are complying with the Code (see: Industry code audits).
The ACCC cannot provide legal advice on the Code or provide dispute resolution services.
If you think a retailer or wholesaler has breached the code, contact the ACCC for a confidential discussion.