Resolving disputes under the food and grocery code

Different ways to resolve a dispute under the code

If a supplier has a dispute, they can contact the large grocery business about it directly.

A supplier can also:

contact the large grocery business’s code mediator
ask the code supervisor to review the code mediator’s process in investigating and resolving the complaint, if the supplier isn’t satisfied with the outcome
seek mediation or arbitration of the dispute
seek independent legal advice at any time.

Suppliers may seek information about the code and available dispute resolution processes from the code mediator appointed by the large grocery business.

If you see potential non-compliance with the code, you can report it to the ACCC. We are always interested to hear from suppliers about their experiences under the Food and Grocery Code of Conduct. However, we are not a dispute resolution body.

Making a complaint to a code mediator

The role of code mediator

Large grocery businesses must appoint a code mediator.

The code mediator:

investigates and proposes a resolution to a dispute or complaint
usually has authority from the large grocery business to enter into an agreement on their behalf to settle a dispute. The large grocery business isn’t allowed to, or try to, unduly influence the code mediator
receives information from the large grocery business about price increase processes
must prepare a written report each financial year about the complaints they have received for investigation. The large grocery business must make this report publicly available on their website.

How to make a complaint to the code mediator

A supplier can make a complaint about an issue covered by the code directly to the large grocery business’s code mediator.

Large grocery businesses must make the code mediator’s contact details, including their phone number, available to suppliers.

The complaint must be in writing and must include:

the supplier’s identification details, including business or trading name
the supplier’s contact details or the contact details of the person who is making the complaint on the supplier’s behalf
details about the behaviour leading to the complaint, including any documents or other information that can help investigate the complaint
the rules of the code relevant to the complaint.

The code mediator and supplier confidentiality

The code mediator isn’t allowed to let the large grocery business know the identity of a supplier who has made a complaint, unless they have the supplier’s clear consent.

The code mediator must also follow confidentiality rules about information they receive and release when dealing with or resolving a complaint.

Information about the supplier’s identity needs to be given to the large grocery business if the supplier accepts a solution for the complaint.

How the code mediator deals with a supplier’s complaint

The code mediator’s complaints handling procedure

The code mediator’s complaints handling procedure must be published on the large grocery business’s website. This procedure must follow the food and grocery code.

The procedure needs to include that the code mediator:

generally needs to take all reasonable steps to investigate the complaint
must close the investigation within 20 business days, unless the supplier agrees in writing to extend this period
must consider the large grocery business’s obligation to deal with the supplier lawfully and in good faith
may also consider whether the large grocery business has acted fairly in dealing with the supplier.

Within 5 business days after finishing their investigation, the code mediator must give the supplier a written notice that states:

their recommendation
their reasons for that recommendation
that the supplier can take further action by making an independent review request, or through mediation or arbitration.

How to accept a code mediator’s proposed solution within the time limits

A large grocery business may give the code mediator authority to enter into an agreement on their behalf to settle a dispute.

Suppliers must generally accept the code mediator’s proposed solution within 20 business days after the code mediator makes the offer, otherwise the offer lapses.

Once the supplier gives written notice to accept a proposed solution and the large grocery business agrees to be bound, the large grocery business must enter into a written agreement agreeing to perform the remedy. The large grocery business must comply with the agreement.

When a supplier isn’t happy with the process followed by the code mediator

If a supplier is not satisfied with the steps taken by the code mediator in investigating their complaint, the supplier can ask the code supervisor to review the code mediator’s process in dealing with the complaint.

If this happens certain time limits apply. For example:

The code supervisor notifies the supplier that it won’t conduct an independent review. The code mediator’s proposed solution lapses 10 business days after the supplier receives this notice.
The code supervisor conducts an independent review and recommends that the code mediator reconsider the complaint. The code mediator does this and decides to offer a new proposed solution. The new proposed solution lapses 10 business days after the code mediator notifies the supplier of this.

Asking the code supervisor to review the code mediator’s process

The role of the code supervisor

The code supervisor is appointed by the Australian Government.

The code supervisor will:

consider requests to review the code mediators’ processes in dealing with a complaint
identify emerging and systemic issues in the grocery supply chain relating to the operation of the code
do an annual survey of suppliers and large grocery businesses about the code’s operations
prepare an annual report that lists their activities in each financial year
publish the results of their annual survey and annual report on their website.

When a supplier should refer a complaint to the code supervisor

A supplier can raise a complaint with the code supervisor. This can happen after:

the code mediator has investigated the complaint and notified the supplier of the outcome. This can be either a proposed solution or that no action should be taken, or
the time in which the code mediator’s investigation should have been completed has lapsed.

A supplier can refer a complaint to the code supervisor even if the supplier has accepted the code mediator’s proposed solution. However, in this case the code supervisor:

only considers the complaint to monitor systemic issues
doesn’t make a recommendation to the code mediator on the process of investigating the specific complaint.

What the code supervisor will do about a supplier’s request

The code supervisor must consider a supplier’s request. However, the code supervisor isn’t required to review every complaint referred to them.

They must tell the supplier whether they will do a review within 10 days of receiving the request. If they decide not to undertake a review, they must tell the supplier why in writing.

If the code supervisor does decide to do an independent review, they review the code mediator’s processes in dealing with complaints. The code supervisor doesn’t consider whether the code mediator’s proposed solution is reasonable or adequate.

After their review, the code supervisor may, but doesn’t have to:

make one or more recommendations for the code mediator about the process they undertake
recommend that the code mediator reconsider the complaint, unless the supplier has already accepted a proposed solution in relation to the original complaint.

If the code supervisor recommends that the code mediator reconsider the complaint, the code mediator has 10 business days to:

reconsider what, if any, action the large grocery business should take in response to the complaint
make a decision about the complaint
notify the supplier, the large grocery business, and the code supervisor in writing.

How to make a request to the code supervisor

If a supplier wants to ask the code supervisor to review a code mediator’s process in dealing with a complaint, the request must be in writing and:

include the supplier’s identification details, including business or trading name
provide the supplier’s contact details, or the contact details of the person requesting the independent review on the supplier’s behalf
provide details of the code mediator’s process that the supplier wants reviewed. Include documents or information that can help the code supervisor to review the code mediator’s processes in handling the complaint.

Make a request to the code supervisor.

The code supervisor and supplier confidentiality

The code supervisor must respect the supplier’s confidentiality.

The code supervisor can’t release the supplier’s identity to a large grocery business without the supplier’s clear consent. They must also observe any confidentiality requirements for information that the supplier gives to them.

Seeking mediation or arbitration to resolve a dispute

Suppliers and large grocery businesses can also seek (ask for) mediation or arbitration of a complaint or dispute.

Mediation is a process where an independent third party helps parties to negotiate and settle a dispute.

Arbitration is a formal dispute resolution process in which parties refer their dispute to an independent third party for a binding decision.

The Australian Small Business and Family Enterprise Ombudsman has a list of suitable mediators and arbitrators. Suppliers and large grocery businesses can pick from this list. If the parties cannot agree within 14 days, the supplier may pick the mediator or arbitrator from that list.

A supplier can seek mediation or arbitration without having first raised a complaint with the code mediator. However, if a supplier has raised a complaint with the code mediator or the code supervisor, the supplier must wait until that process is complete before seeking mediation or arbitration.

Where a supplier seeks mediation of their dispute, large grocery businesses are generally obliged to take part.

Where a supplier seeks arbitration of their dispute, large grocery businesses may decide whether they wish to take part or agree to be bound by the arbitrator’s decision. They must inform the supplier of their decision within 10 business days.

Where a large grocery business seeks mediation or arbitration, suppliers may decide whether they wish to take part. They must inform the large grocery business of their decision within 10 business days.

Costs of mediation or arbitration

Both parties are liable for the costs of the mediation or arbitration, unless they agree otherwise. This may include payment for the mediator or arbitrator, cost of room hire and other costs.

Each party is liable for their own costs as well.