ACCC Chairman, Rod Sims, said, “The aim of the Code is to redress the imbalance in bargaining power that can exist between suppliers and large grocery retailers by prohibiting certain types of unfair conduct. The Code imposes a duty to deal with suppliers in good faith and we are concerned by reports we have received from suppliers that suggest that some retailers have not got off to a good start when it comes to implementing the Code.

He added, “The ACCC has concerns as to the manner in which some retailers, in particular Woolworths and Aldi, are presenting new Grocery Supply Agreements (GSAs), which might give the impression that the supplier is not able to negotiate the terms of the GSA. The ACCC is also concerned about the low level of detail provided in some GSAs about the circumstances in which certain payments may arise.”

The Code sets out a number of prohibitions on, for example, requiring a payment for wastage that occurs at the premises of the retailer. While it is possible for retailers and suppliers to opt out of such prohibitions, this can only occur if the opt outs are agreed, if the agreement sets out the circumstances in which the opt out applies and if the payment is reasonable in the circumstances.

“One of the purposes of the Code is to provide certainty to suppliers, who are often in a much weaker bargaining position when dealing with retailers. In order to provide that certainty, the ACCC expects retailers to set out the circumstances in which they will seek payments from suppliers,” Sims said.

The Code requires that retailers offer code-compliant GSAs. Suppliers should not feel compelled to sign these agreements and should seek advice before signing them. In particular, the Code will confer protections on suppliers twelve months after a retailer has signed up to the Code, regardless of whether a supplier has accepted a code-compliant GSA.

The ACCC has written to retailers about the manner in which they purport to be giving effect to the Code. The retailers have responded providing their new GSAs and the correspondence they have sent to suppliers offering the new GSAs. The organisation said it will continue to monitor compliance with the code.

Background

The ACCC is responsible for enforcing the Code and has developed guidance material, which is available at Food and Grocery Code of Conduct.

Coles, Woolworths, Aldi and Sydney-based retailer, About Life, have signed up to the Code.

The Code has rules about GSAs, payments, termination of agreements, dispute resolution and a range of other matters. It is a voluntary code which complements existing protections under the Competition and Consumer Act 2010, including the unconscionable conduct provisions. The Code requires retailers and wholesalers to deal with suppliers in good faith during the bargaining stages of establishing GSAs, during the term of the agreement, and in dealing with any disputes.

Under the Code, retailers are required to offer suppliers code-compliant GSAs – whether the agreements are new, or variations to existing ones.