If you are unable or prefer not to resolve a dispute directly with a retailer or wholesaler, the Food and Grocery Code (the Code) provides processes for you to raise and resolve disputes, including via a Code Arbiter.
If you have a dispute, you may try to raise it with the retailer or wholesaler directly. Suppliers can also:
- raise a complaint with a Code Arbiter
- seek mediation or arbitration of your dispute
- ask the Independent Reviewer to review the Code Arbiter’s process in investigating and resolving your complaint (if after you have raised a complaint with a Code Arbiter, you are not satisfied with the outcome).
You can also seek independent legal advice at any time.
What a Code Arbiter does
Code Arbiters investigate and propose a resolution to your dispute or complaint.
The Code Arbiter has authority from the retailer or wholesaler to enter into an agreement on their behalf to settle a dispute relating to their Code obligations. The Code Arbiter may, for example, determine that the retailer or wholesaler should pay compensation to the supplier or vary a grocery supply agreement (GSA) with the supplier.
The retailer or wholesaler is not allowed to unduly influence, or try to unduly influence, the Code Arbiter.
Code Arbiters must also prepare a written report each financial year in relation to the complaints that they received for investigation, and which contains information (given to them by the retailer or wholesaler) about price increase processes. The retailer or wholesaler must make this report publicly available from their website.
How to make a complaint to the Code Arbiter
If you are a supplier, you can make a complaint about an issue covered by the Code directly to the retailer’s or wholesaler’s Code Arbiter. Your complaint must be in writing and must include:
- your identification details (including your business or trading name)
- your contact details or the contact details of the person who is dealing with the complaint on your behalf (including their name, title and telephone number)
- details about the conduct giving rise to the complaint, including any documents or other information that would assist in investigating the complaint
- which provisions of the Code are relevant to your complaint.
The Code Arbiter must respect your confidentiality
The Code Arbiter is not allowed to disclose to the retailer or wholesaler the identity of a supplier who has made a complaint, except with the supplier’s express consent.
The Code Arbiter must also observe confidentiality requirements relating to information that is disclosed or obtained in dealing with or resolving a complaint.
However, information that would disclose your identity will need to be given to the retailer or wholesaler if you accept a proposed remedy for your complaint.
How the Code Arbiter will deal with your complaint
You will find an up-to-date copy of the Code Arbiter’s complaints handling procedure on the retailer’s or wholesaler’s website. This procedure must be consistent with the Code, including that the Code Arbiter:
- generally needs to take all reasonable steps to investigate the complaint, and to conclude the investigation within 20 business days (unless you agree in writing to extend this period)
- must consider the retailer’s or wholesaler’s obligation to deal with you lawfully and in good faith, and may also consider whether the retailer or wholesaler has acted fairly in dealing with you (unless the Code Arbiter decides after investigating your complaint that your complaint is vexatious, trivial, misconceived or lacking in substance).
Within five business days after concluding their investigation, the Code Arbiter must give you a written notice that sets out:
- their determination
- their reasons for that determination
- if they have determined a proposed remedy, the timetable for that remedy
- that you can take further action through making an independent review request, or through mediation or arbitration.
How to accept a Code Arbiter's proposed remedy – time limits apply
You can accept the proposed remedy by giving written notice to the Code Arbiter at any time before the remedy offer lapses.
Suppliers must generally accept the Code Arbiter’s proposed remedy within 20 business days after the Code Arbiter makes the offer, otherwise the offer lapses.
A retailer or wholesaler must give the Code Arbiter authority to enter into an agreement on their behalf to settle a dispute relating to their obligations under the Code. Once you give written notice to accept a proposed remedy that has not lapsed, the Code Arbiter must enter into an agreement with you, on behalf of the retailer or wholesaler, to take the specified action that is the proposed remedy. The retailer or wholesaler must comply with the agreement.
If you do not accept the Code Arbiter’s proposed remedy and refer your complaint to the Independent Reviewer, certain time limits also apply. For example:
- if the Independent Reviewer notifies you that it will not conduct an independent review, the Code Arbiter’s proposed remedy lapses 10 business days after you receive this notice
- if the Independent Reviewer does conduct an independent review and recommends that the Code Arbiter reconsider the complaint, and the Code Arbiter does so and decides to offer you a new proposed remedy, the new proposed remedy lapses 10 business days after the Code Arbiter notifies you of this.
What to do if you're not happy with the process followed by the Code Arbiter
If you have made a complaint to the Code Arbiter and are dissatisfied with the steps taken by the Code Arbiter in investigating your complaint, you can request the Independent Reviewer to review the Code Arbiter’s process in dealing with your complaint.
The government is yet to announce who will be the Independent Reviewer. Further information will be provided when available.
What the Independent Reviewer does
The Independent Reviewer is appointed by the government. The Independent Reviewer will:
- consider requests to review Code Arbiters’ processes in dealing with complaints
- identify and address emerging and systemic issues in the grocery supply chain relating to the operation of the Code
- publish non-binding guidance material relating to compliance with the Code
- conduct an annual survey of suppliers, retailers and wholesalers relating to the operation of the Code
- prepare an annual report that sets out their activities in each financial year
- publish the results of their annual survey and annual report on their website.
When you should refer a complaint to the Independent Reviewer
A supplier cannot raise a complaint with the Independent Reviewer until either:
- the Code Arbiter has investigated the complaint and notified the supplier of the outcome (either a proposed remedy or that no action should be taken), or
- the time period in which the Code Arbiter’s investigation should have been completed has lapsed.
You can refer a complaint to the Independent Reviewer even if you have accepted the Code Arbiter’s proposed remedy. However in this instance the Independent Reviewer will only be considering the complaint with a view to monitoring systemic issues and will not make a recommendation to the Code Arbiter on the process of investigating your specific complaint.
What the Independent Reviewer will do about your request
The Independent Reviewer must consider your request. However, the Independent Reviewer is not required to review every complaint referred to them. They must tell you whether or not they will undertake a review within 10 days of receiving your request and, if they decide not to undertake a review, tell you why in writing.
If the Independent Reviewer does decide to conduct the independent review, the Independent Reviewer will review the Code Arbiter's processes in dealing with complaints. The Independent Reviewer will not consider whether the Code Arbiter’s proposed remedy is reasonable or adequate.
After their review, the Independent Reviewer may (but does not have to):
- make one or more recommendations for the Code Arbiter about the process undertaken by the Code Arbiter
- recommend that the Code Arbiter reconsider you complaint (unless you have already accepted a proposed remedy in relation to your original complaint).
If the Independent Reviewer recommends that the Code Arbiter reconsider your complaint, the Code Arbiter has 10 business days to:
- reconsider what (if any) action should be taken by the retailer or wholesaler in response to the complaint
- make a determination in relation to the complaint
- notify you, the supplier, and also the retailer or wholesaler and the Independent Reviewer in writing.
How to make a request to the Independent Reviewer
If you want to ask the Independent Reviewer to review a Code Arbiter’s process in dealing with your complaint, you must make your request in writing and:
- include your identification details (including your business or trading name)
- provide your contact details, or the contact details of the person requesting the independent review on your behalf (including name, title and telephone number)
- provide details of the Code Arbiter’s process that you want reviewed, including any documents or information that would assist the Independent Reviewer to review the Code Arbiter’s processes in handling your complaint.
The Independent Reviewer must respect your confidentiality
The Independent Reviewer cannot disclose your identity to a retailer or wholesaler without your express consent. They must also observe any confidentiality requirements relating to information that you give to them in the course of considering your review request or conducting their review.
Suppliers 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.
Mediation or arbitration of disputes under the Code must be conducted in accordance with the rules of the Resolution Institute.
If you have raised a complaint with the Code Arbiter or Independent Reviewer
You can seek mediation or arbitration without having first raised a complaint with the Code Arbiter. However, if you have raised a complaint with the Code Arbiter or the Independent Reviewer, you must wait until that process is complete (or should have been completed) before seeking mediation or arbitration.