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Attention: Rural writers
A.C.C.C. CAUTIONS TRADERS, GROWERS AGAINST SIGNING NON
COMPLIANT HORTICULTURAL PRODUCE AGREEMENTS
Representatives of some trader associations and individual traders may be attempting to
circumvent the spirit and letter of the new mandatory Horticulture Code of Conduct, the
Australian Competition and Consumer Commission has warned.
"The ACCC has received complaints regarding certain template horticulture produce
agreements circulated widely that in the ACCC's view are not compliant with the
horticulture code requirements," ACCC Chairman, Mr Graeme Samuel, said today.
"Some templates include clauses that the ACCC considers may breach the horticulture
code.
"Some clauses require a grower to agree to allow a trader acting as a merchant to
unilaterally reject produce because of a change in market conditions after a merchant
has taken delivery.
"Such a clause is likely to be unlawful under the code as in most circumstances
ownership and market risk have passed to the merchant.
"Other clauses require a grower to agree to a price under a merchant agreement that is
well short of a commercially realistic price for the produce and promising the grower a
possible bonus dependant on the final price obtained by the merchant. This is likely to
constitute a method of calculating a price and therefore raises concerns under the code.
"Traders attempting to circumvent the code risk contravening the code of conduct and
the Trade Practices Act 1974 if the contracts not comply fully with the code.
"The ACCC is investigating allegations some traders are insisting growers enter a non
compliant horticulture produce agreement. Traders who induce growers into entering
into such contracts also risk engaging in misleading or deceptive conduct if they wrongly
give the impression to growers that they will not enjoy the benefits delivered by the code.
"Growers and traders should not use generic template agreements if they are non
compliant with the horticulture code. Any grower forced to sign such an agreement
should contact the ACCC through the Infocentre on 1300 302 502. All complaints are
treated confidentially.
"It is disappointing that some trader groups seem to be trying to undermine
fundamental principles of the new code. We know that other traders have issued
compliant agreements to their suppliers and are legally getting on with business
under the new arrangements."
The ACCC regards any attempts to deliberately disregard the horticulture code very
seriously and will continue to actively investigate the complaints that have been
received. The ACCC will not hesitate to take enforcement action, if necessary through
the Federal Court.
In the meantime the ACCC will also undertake further consultation with trader and
grower representatives to seek to resolve shortcomings in some of the generic templates
and to alleviate the confusion and uncertainty that has been engendered.
The ACCC encourages all growers and traders to only enter into Horticulture Produce
agreements that are compliant with the Horticulture code.
Media inquiries
Mr Graeme Samuel, Chairman, (02) 6232 1131 or mobile/pager 0408 335 555
Mr John Martin, Commissioner, (02) 6243 1130 or 0418 625 450
Ms Lin Enright, Director, Media Unit, (02) 6243 1108 or 0414 613 520
General inquiries
Infocentre: 1300 302 502
NR 123/07
23 May 2007
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