Both the FMA and ACCC have labelled the Horticulture Code of Conduct, currently under review, as ‘ineffective’, with FMA saying it is unfair, commercially restrictive and administratively onerous.

However, FMA says that while the release of the ACCC’s Perspectives in horticulture and viticulture report shows some common ground, the wholesaling sector must once again clarify key areas regarding the report’s conclusions.

FMA Chairman, Shane Schnitzler, said FMA gave feedback to the Horticulture Code Review Panel that it agrees that documented terms of trade are important in the wholesaler and grower business relationship. He said that contrary to the claims being made about pre-Code Agreements, they have given growers and wholesalers the ability to maintain a flexible and workable commercial relationship, when the regulatory alternative, the existing Code, is inflexible, uncommercial and largely unworkable.

“It is illogical for anyone reviewing the Code to be critical of these pre-Code agreements, given the unworkable alternative which exists and given that in any event, a grower could tear up the agreement at any time,” Schnitzler said. “It is also unfair of the ACCC to suggest that growers are in fear of retribution by wholesalers if they complain when business issues arises.

“The fact is that this claim issue is not new,” he said. “It has been raised in prior reviews by the ACCC, the Federal Government and others, and dates back well over a decade as the reason why growers don’t lodge complaints about the retail chains, processors and wholesalers. This comment has been more commonly heard however, in relation to broader reviews of the Retail and Grocery industry.”

Schnitzler said Commissioner Keogh had failed to put the issue of retribution into context, when it has been raised in respect of retail chains, processors as well as wholesalers. He said it had been raised as an issue for well over a decade.

He suggested that it appeared very one-sided, and the Federal Government, with no restrictive regulatory provisions and no monetary penalties introduced, that the ACCC appeared to be waving the big stick at small businesses, with threats of increasing regulations and monetary penalties, only months after the Voluntary Retail and Grocery Industry Code of Conduct.

“FMA does not condone any form of heavy handed tactics within the Central Market System. However, FMA also advocates that growers should not continue to send their produce to a wholesaler that they are not happy doing business with,” Schnitzler said. “There are more than 400 central market wholesalers in six Central Markets across Australia for the grower to choose from so options do exist.”

He said that FMA had supported and requested numerous changes to the current Code which would go a long way towards resolving many of the issues that have been raised by growers and wholesalers over many years.

While agreeing with most recommendations suggested by a Code Review Panel for a revised Code, FMA has challenged the Federal Government as to why monetary penalties should be introduced for breaches, when more than 12 million transactions between growers and Central Market wholesalers are transacted annually and by any measure, there was a low incidence of disputation.

Schnitzler added that the ACCC had not been proactive in talking to FMA. “As far as I am aware, Commissioner Keogh appeared to be forming his opinions based upon feedback from a very small number of growers, and without visiting any Central Markets.”

He said that despite the differences of opinion, which exist, and the fact that FMA remains opposed to the introduction of anti-competitive and prescriptive regulations, the organisation had committed to working with the Federal Government and the ACCC to achieve a workable, fair and cost effective Code for the horticulture industry.