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 raise it with the grocery retailer or wholesaler directly.

A supplier can also:

raise a complaint with a Code Arbiter
ask the Independent Reviewer to review the Code Arbiter’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.

Raising a complaint with the Code Arbiter

The role of Code Arbiter

Grocery retailers and wholesalers who sign up to the Food and Grocery Code of Conduct must appoint a Code Arbiter.

The Code Arbiter:

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

How to make a complaint to the Code Arbiter

A supplier can make a complaint about an issue covered by the code directly to the retailer’s or wholesaler’s Code Arbiter.

Retailers and wholesalers must make the Code Arbiter’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 dealing with the complaint on the supplier’s behalf. Include name, title and phone number
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 Arbiter and supplier confidentiality

The Code Arbiter isn’t allowed to let the retailer or wholesaler know the identity of a supplier who has made a complaint, unless they have the supplier’s clear consent.

The Code Arbiter must also follow confidentiality rules about information that is received and released when dealing with or resolving a complaint.

Information about the supplier’s identity needs to be given to the retailer or wholesaler if the supplier accepts a solution for the complaint.

How the Code Arbiter deals with a supplier’s complaint

The Code Arbiter’s complaints handling procedure is on the retailer’s or wholesaler’s website. This procedure must follow the food and grocery code.

The procedure needs to include that the Code Arbiter:

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

Within 5 business days after finishing their investigation, the Code Arbiter must give the supplier a written notice that sets out:

their decision
their reasons for that decision
if they have worked out a proposed solution, the timetable for that solution
that the supplier can take further action by making an independent review request, or through mediation or arbitration.

How to accept a Code Arbiter's proposed solution within the time limits

A retailer or wholesaler must give the Code Arbiter authority to enter into an agreement on their behalf to settle a dispute.

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

Once the supplier gives written notice to accept a proposed solution, the Code Arbiter must enter into an agreement with the supplier, on behalf of the retailer or wholesaler, to take the specified action. The retailer or wholesaler must follow the agreement.

If the supplier doesn’t accept the Code Arbiter’s proposed solution and the supplier refers the complaint to the Independent Reviewer, certain time limits also apply. For example:

if the Independent Reviewer notifies the supplier that it won’t conduct an independent review, the Code Arbiter’s proposed solution lapses 10 business days after the supplier 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 a new proposed solution, the new proposed solution lapses 10 business days after the Code Arbiter notifies the supplier of this.

When a supplier isn’t happy with the process followed by the Code Arbiter

If a supplier is dissatisfied with the steps taken by the Code Arbiter in investigating their complaint, the supplier can request the Independent Reviewer to review the Code Arbiter’s process in dealing with the complaint.

Asking the Independent Reviewer to review the Code Arbiter’s process

The role of Independent Reviewer

The Independent Reviewer is appointed by the Australian Government.

The Independent Reviewer will:

consider requests to review the Code Arbiters’ processes in dealing with a complaint
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
do an annual survey of suppliers, retailers and wholesalers about the code’s operations
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 a supplier should refer a complaint to the Independent Reviewer

A supplier can raise a complaint with the Independent Reviewer after:

the Code Arbiter 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 Arbiter’s investigation should have been completed has lapsed.

A supplier can refer a complaint to the Independent Reviewer even if the supplier has accepted the Code Arbiter’s proposed solution. However, in this case the Independent Reviewer:

only considers the complaint with a view to monitoring systemic issues
doesn’t make a recommendation to the Code Arbiter on the process of investigating the specific complaint.

What the Independent Reviewer will do about a supplier’s request

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

They must tell the supplier whether they will undertake 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 Independent Reviewer does decide to do an independent review, they review the Code Arbiter's processes in dealing with complaints. The Independent Reviewer doesn’t consider whether the Code Arbiter’s proposed solution is reasonable or adequate.

After their review, the Independent Reviewer may, but doesn’t have to:

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

If the Independent Reviewer recommends that the Code Arbiter reconsider the 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 decision in relation to the complaint
notify the supplier, and also the retailer or wholesaler and the Independent Reviewer in writing.

How to make a request to the Independent Reviewer

If a supplier wants to ask the Independent Reviewer to review a Code Arbiter’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. Include name, title and phone number.
provide details of the Code Arbiter’s process that the supplier wants reviewed. Include documents or information that can help the Independent Reviewer to review the Code Arbiter’s processes in handling the complaint.

Details about the Independent Reviewer process and contact details are on the Grocery Code Reviewer website.

The Independent Reviewer must respect the supplier’s confidentiality

The Independent Reviewer can’t release the supplier’s identity to a retailer or wholesaler 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

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 a 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 carried out in line with the rules of the Resolution Institute.

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