The ACCC alleges that GetFresh failed to have horticulture produce agreements in place while trading with growers, and failed to publish its terms of trade, as required by the Horticulture Code.
“The Horticulture Code exists to bring certainty and transparency to transactions between fruit and vegetable growers and traders, and the code’s most fundamental requirement is that trading needs to occur under contracts called horticulture produce agreements,” ACCC Deputy Chair Mick Keogh said.
“Growers and traders are afforded certain protections by having compliant horticulture produce agreements, including in relation to dispute resolution.”
“As well as buying and selling under written agreements, traders must make their terms of trade publicly available so growers can compare the terms and conditions of potential buyers of their produce,” Mr Keogh said.
The ACCC identified GetFresh as a business warranting further investigation following widespread checks of traders’ compliance with the Horticulture Code. GetFresh is the fourth fruit and vegetable trader to have paid a penalty this year for alleged breaches of the code.
Green Endeavour and Bache Bros each paid a penalty of $13,750 for allegedly failing to make their terms of trade publicly available. Nutrano paid penalties totalling $24,850 for allegedly having non-compliant horticulture produce agreements and failing to specify the price it received for produce in grower statements. Nutrano also provided the ACCC with a court-enforceable undertaking.
The ACCC updated its industry guidance on the Horticulture Code in August last year and signalled a shift in focus from education and compliance to enforcement.
“All horticultural traders should be on notice that we are monitoring their compliance with the Horticulture Code and will take enforcement action where appropriate,” Mr Keogh said.
One of the ACCC’s current compliance and enforcement priorities is to ensure that small businesses receive the protections of competition and consumer laws, including industry codes of conduct in agriculture and franchising.
Background
GetFresh is a Perth-based supplier of unprocessed horticulture produce to the hospitality industry. GetFresh sources some of this produce directly from growers.
The Horticulture Code is a mandatory industry code prescribed under the Competition and Consumer Act 2010. The current version of the code came into full effect in 2018.
The key requirements of the code include that horticulture produce must be sold under a compliant horticulture produce agreement, and that traders must publish their terms of trade and provide growers with statements for the sale of their produce.
The ACCC’s enforcement options include administrative resolutions, court-enforceable undertakings, infringement notices and, for certain breaches, commencing civil penalty proceedings.
Note to editors
The payment of a penalty specified in an infringement notice is not an admission of a contravention of a mandatory industry code or the Australian Consumer Law.
The ACCC can issue an infringement notice when it has reasonable grounds to believe a person or business has contravened certain provisions in industry codes.