Under the Horticulture Code growers and traders can use any procedures they choose to resolve a dispute. However, the Code has a dispute resolution procedure that must be followed if it is initiated by one of the parties.
The Code’s dispute resolution procedure involves the following steps:
- The complainant must inform the other party in writing of the dispute and state:
- what the dispute is about
- the action they think will resolve the dispute
- their desired outcome.
- The parties must then try to resolve the dispute.
- If the parties cannot resolve the dispute within three weeks after the complainant informs the other party of the dispute, either party may ask the mediation adviser to appoint a mediator.
- Once a mediator is appointed, the mediator can decide how, where and when they will carry out the mediation.
- Once a matter has been set down for mediation, both parties must attend the mediation and try to resolve the dispute.
Once mediation is requested, it becomes mandatory for both parties to attend and to genuinely try to resolve the dispute.
Mediation is a cost-effective way to resolve disputes without resorting to complex and costly legal action. Participants in mediation should be aware that mediators don’t give legal advice or make decisions like a judge; they assist parties to come together and negotiate an outcome that is acceptable to both parties.
The Department of Jobs and Small Business has responsibility as the Mediation Adviser, who is appointed under the Code. If you cannot agree on who should be the mediator, either party may ask the Mediation Adviser to appoint a mediator.
Participating at mediation
Both parties must attend the mediation and try to resolve the dispute. If you refuse to attend or you don’t make a genuine attempt to resolve the dispute, you could breach the Code and be subject to penalties.
If you cannot attend mediation you must send a representative who has the authority to enter into an agreement to settle the dispute on your behalf.
If the parties agree on an outcome, the mediator will assist them in writing it down. The written record will normally be a binding contract.
The mediator may terminate the mediation at any time if they are satisfied that a resolution of the dispute is unlikely to occur. The mediator must terminate mediation if:
- the complainant asks the mediator to do so, or
- at least 30 days have elapsed since the start of the mediation, the dispute has not been resolved and the other party asks the mediator to do so.
Costs of mediation
Each party must pay half the costs of the mediation as well as their own costs of attending the mediation, unless they agree otherwise.
Horticulture produce assessors can help to resolve a disagreement by investigating and reporting on any matter arising under a horticulture produce agreement. Assessors can address various issues including:
- whether a trader was entitled to reject horticulture produce
- whether a grower has received the correct payment from the trader.
The mediation adviser must prepare and publish a list of people who are suitable horticulture produce assessors under the Code. An assessor can be appointed by:
- the parties where they can agree to the appointment, regardless of whether the dispute resolution procedure described above is occurring
- a mediation adviser or mediator appointed under the Code’s mediation process where the parties cannot agree to the appointment of a horticulture produce assessor.
The costs of an assessor acting under an appointment under the Code are to be halved by the parties, unless the parties agree otherwise.
The parties must comply with a reasonable request of the assessor. Failure to do so can attract a penalty.
The Australian Small Business and Family Enterprise Ombudsman (ASBFEO) can assist in the resolution of disputes by referring the parties to trained mediators with commercial experience located across Australia. Visit the ASBFEO website, email firstname.lastname@example.org or call 1300 650 460.