This instrument prescribes a mandatory industry code relating to the food and grocery industry.
This Code regulates the conduct of large grocery businesses towards their suppliers, including by providing:
(a) that they must deal with suppliers lawfully and in good faith; and
(b) that certain things must be included in grocery supply agreements; and
(c) how grocery supply agreements may be varied; and
(d) when payments may be required from suppliers for certain benefits and activities; and
(e) how they must communicate any requirements, standards or quality specifications for grocery products; and
(f) protections for suppliers against retribution; and
(g) certain additional protections for suppliers who supply fresh produce.
This Code also provides for the resolution of disputes in relation to the supplier provisions of this Code. Grocery supply agreements must provide for mediation to resolve disputes between large grocery businesses and suppliers and may provide for arbitration.
A large grocery business must appoint a Code Mediator to deal with complaints against the business, and to handle disputes between the business and suppliers.
Very large retailers may be liable to a civil penalty for engaging in excessive pricing in supplying, or offering to supply, kinds of grocery products to consumers.
(a)the provision is contrary to a protective provision of the Code mentioned in any of paragraphs 19(3)(a) to (g); and
(b)paragraphs 19(3)(h) to (j) are complied with in relation to the provision of the agreement.
buying team means the persons who are employed or otherwise engaged by a large grocery business each of whom having a role that includes at least one of the following:
evidential burden, in relation to a matter, means the burden of adducing or pointing to evidence that suggests a reasonable possibility that the matter exists or does not exist.
old Code means the code set out in Schedule 1 to the Competition and Consumer (Industry Codes—Food and Grocery) Regulation2015, as in force immediately before 1 April 2025.
(a)in relation to the supply by the retailer of a kind of grocery product to consumers by way of retail sale—information on any of the following:
(i)the retail price at which the retailer supplies the kind of grocery product;
(ii)identifying attributes of the kind of grocery product, such as brand, size, weight, volume, stock keeping unit number and barcode number;
(iii)the aggregate sales volume at which the retailer supplies the kind of grocery product;
(iv)the aggregate sales revenue the retailer derives from supplying the kind of grocery product;
(v)the cost to the retailer of buying the kind of grocery product;
(vi)the operating cost to the retailer of supplying the kind of grocery product;
(b)information on the operating cost to the retailer of carrying on its supermarket business in Australia, to the extent that the business consists of the retail sale of grocery products to consumers;
(c)information on any of the following given to the retailer by a supplier:
(i)a payment;
(ii)a discount;
(iii)a rebate;
(iv)an allowance;
(v)any other monetary or financial benefit;
in exchange for any of the following services provided to a supplier:
(vi)freight;
(vii)advertising;
(viii)data analytics;
(ix)any other service in connection with the retail sale of grocery products to consumers;
(d)information on any of the following given to the retailer by a supplier in connection with the retail sale of grocery products to consumers:
(i)a payment;
(ii)a discount;
(iii)a rebate;
(iv)an allowance;
(v)any other monetary or financial benefit.
Note: The following are examples of a kind of grocery product:
(a) rice with the same brand, packaging and quantity;
(b) white long grain rice, regardless of brand, packaging or quantity;
(c) all rice.
promotion means any offer for sale (whether or not accompanied by some other benefit to a consumer):
(a)at an introductory or reduced price, or involving non-standard sales activity; and
wholesaler means a corporation to the extent that it carries on a business of purchasing grocery products from suppliers for the purpose of resale to a person carrying on a supermarket business in Australia.
(1)Supplier means a person carrying on (or actively seeking to carry on) a business of supplying grocery products for retail sale to consumers by another person (whether or not that other person is the person supplied).
(b)the action causes, or would cause, detriment to the supplier.
(2)However, the action is not retributionif the action:
(a)is not taken, or threatened to be taken, as punishment or retaliation for a matter mentioned in subparagraph (1)(a)(i) or (ii); and
(b)is taken, or threatened to be taken, for genuine commercial reasons.
(3)A large grocery business that wishes to rely on subsection (2) in relation to an action bears an evidential burden in relation to the matters in that subsection.
(4)Without limiting subsection (1), an action mentioned in that subsection includes any of the following:
as set out in those entities’ annual accounts, prepared in accordance with generally accepted accounting principles, exceeds $5 billion for the previous financial year.
Note: For when a body corporate is related to another body corporate, see section 4A of the Act.
as set out in those entities’ annual accounts, prepared in accordance with generally accepted accounting principles, exceeds $30 billion for the previous financial year.
Note: For when a body corporate is related to another body corporate, see section 4A of the Act.
(2)Revenue is covered revenue if the revenue relates to the carrying on of:
(1)The Minister must cause a review to be undertaken in relation to the operation of the Code (other than Division 4A of Part 2).
(2)The review must:
(a)assess the impact of the Code (other than Division 4A of Part 2) in improving commercial relations between retailers, wholesalers and suppliers; and
(b)start before 1 April 2027.
(3)The Minister must cause a written report about the review to be prepared.
(4)The Minister must cause a copy of the report of the review to be tabled in each House of the Parliament within 15 sitting days of that House after the report is given to the Minister.
(a)to regulate standards of business conduct in the grocery supply chain in order to build and sustain trust and cooperation throughout that chain; and
(b)to ensure transparency and certainty in commercial transactions in the grocery supply chain and to minimise disputes arising from a lack of certainty in respect of the commercial terms agreed between parties; and
(c)to provide an effective, fair and equitable dispute resolution process for raising and investigating complaints and resolving disputes arising between large grocery businesses and suppliers; and
(d)to promote and support good faith in commercial dealings between large grocery businesses and suppliers; and
(e)to encourage suppliers to exercise their rights under this Code, including by:
(i)making reasonable requests of large grocery businesses; and
(ii)referring legitimate complaints against large grocery businesses; and
(iii)seeking resolution of disputes with large grocery businesses; and
(f)to protect suppliers from retribution from large grocery businesses; and
(g)to provide for senior management oversight of large grocery businesses’ interactions with their suppliers; and
(h)to promote workably competitive outcomes in grocery product markets and protect the welfare of consumers by prohibiting very large retailers from engaging in excessive pricing in supplying, or offering to supply, kinds of grocery products.
(1)This Code (other than Division 4A of Part 2) does not apply to the extent that it conflicts with the industry code set out in:
(a)Division 2 of Part 2 of the Competition and Consumer (Industry Codes—Dairy) Regulations2019; or
(b)Chapter 2 of the Competition and Consumer (Industry Codes—Franchising) Regulations2024; or
(c)Schedule 1 to the Competition and Consumer (Industry Codes—Horticulture) Regulations2017.
(2)If there is an inconsistency between an industry code mentioned in a paragraph in subsection (1) and Division 4A of Part 2, that Division prevails over the industry code to the extent of the inconsistency.
A provision of this Part that is of one of the following kinds and sets out at its foot a pecuniary penalty indicated by the words “civil penalty” is a civil penalty provision of the industry code set out in this Part for the purposes of Part IVB and section 76 of the Act:
(a)a subsection;
(b)a section that is not divided into subsections.
14AAmount of civil penalty for certain contraventions by bodies corporate#
(1)This section has effect for the purposes of the following civil penalty provisions of this Code:
(a)subsection 16(1);
(b)section 17;
(c)section 18;
(d)subsection 19(1);
(e)subsection 29(1);
(f)section 30;
(g)section 31;
(h)subsections 42(1) and (2);
(ha)subsection 45B(1);
(hb)subsection 45C(1);
(i)subsections 77(1), (2) and (3);
(j)subsections 78(1) and (2).
(2)The amount of the pecuniary penalty for a contravention of a civil penalty provision referred to in subsection (1) by a body corporate is the greatest of the following:
(a)$10,000,000;
(b)if the Court can determine the value of the benefit that the body corporate, and any body corporate related to the body corporate, has obtained directly or indirectly and that is reasonably attributable to the contravention—3 times the value of that benefit;
(c)if the Court cannot determine the value of that benefit—10% of the adjusted turnover of the body corporate during the period of 12 months ending at the end of the month in which the contravention occurred.
Note: For when a body corporate is related to another body corporate, see section 4A of the Act.
14BAmount of penalty to be specified in infringement notices#
Subsection 51ACF(2) of the Act applies to this Code.
Note: This means that the penalty to be specified in an infringement notice to be issued to a person for an alleged contravention of this Code must be equal to:
(a) if the person is a body corporate—600 penalty units; or
(b) otherwise—12 penalty units.
15Function of Australian Small Business and Family Enterprise Ombudsman#
The functions of the Australian Small Business and Family Enterprise Ombudsman include keeping lists of ADR practitioners who can provide services of mediation or arbitration for the purposes of the supplier provisions of this Code (including for a grocery supply agreement).
(f)whether the trading relationship of the large grocery business with the supplier has been conducted in recognition of the need for certainty regarding the risks and costs of trading, particularly in relation to production, delivery and payment;
(g)whether the large grocery business has observed any confidentiality requirements relating to information disclosed or obtained in dealing with or resolving a complaint or dispute with the supplier;
(5)In this section, a supplier is a large supplier if the total revenue:
(a)of the supplier and each related body corporate (if any) of the supplier; and
(b)relating to the carrying on of a business of supplying grocery products for retail sale to consumers in Australia by another person;
as set out in the supplier’s and any related body corporate’s annual accounts, prepared in accordance with generally accepted accounting principles, exceeds $1 billion for the previous financial year.
Note: For when a body corporate is related to another body corporate, see section 4A of the Act.
17Obligation to act in good faith must not be excluded#
(c)the period within which the large grocery business must pay a supplier for the grocery products and the circumstances in which any payment, or part of a payment, may be withheld or delayed;
(d)if the agreement is intended to operate for a limited time only—the term of the agreement;
(e)in clear terms, any quantity and quality requirements relating to the grocery products;
(f)if the agreement provides for its termination—the circumstances in which it may be terminated.
(a)for a contravention by a body corporate—the amount under section 14A; or
(b)for a contravention by a person who is not a body corporate—$500,000.
(2)Paragraph (1)(e) does not prevent the parties to the grocery supply agreement from later agreeing, in writing and in clear terms, to additional or different quantity and quality requirements relating to the grocery products.
(d)subsection 25(1) (payments for stocking or listing);
(e)subsection 26(1) (payments for better positioning etc.);
(f)subsection 27(1) (payments for ordinary business activities);
(g)subsection 28(1) (payments for funding promotions);
unless the agreement:
(h)identifies the contrary provision of the agreement and the protective provision of this Code; and
(i)includes a clear statement to the effect that the contrary provision is an exception to, and removes the protection of, the protective provision; and
(j)explains why the contrary provision is reasonable.
Civil penalty:
(a)for a contravention by a body corporate—3,200 penalty units; or
(b)for a contravention by a person who is not a body corporate—640 penalty units.
(a)for a contravention by a body corporate—3,200 penalty units; or
(b)for a contravention by a person who is not a body corporate—640 penalty units.
(5)Subsection (4) does not prevent a grocery supply agreement from specifying a reasonable mechanism to regularly negotiate the price of fresh produce supplied under the agreement.
(3)For the purposes of (but without limiting) paragraph (2)(d), in determining whether the variation is reasonable in the circumstances, regard must be had to:
(4)A large grocery business that wishes to rely on subsection (2) must prove the matters in that subsection on the balance of probabilities (except in relation to whether the variation causes detriment to a supplier for the purposes of paragraph (2)(d)).
(c)the set-off is made in accordance with the agreement; and
(d)the set-off is reasonable in the circumstances.
(4)For the purposes of (but without limiting) paragraph (3)(d), in determining whether the set-off is reasonable in the circumstances, regard must be had to:
(5)A large grocery business that wishes to rely on subsection (3) must prove the matters in that subsection on the balance of probabilities (except in relation to whether the set-off causes detriment to a supplier for the purposes of paragraph (3)(d)).
(b)otherwise directly or indirectly require such payments.
Civil penalty:
(a)for a contravention by a body corporate—3,200 penalty units; or
(b)for a contravention by a person who is not a body corporate—640 penalty units.
(2)Subsection (1) does not prevent the large grocery business from raising, discussing or agreeing with a supplier proposals and procedures to mitigate the risk and occurrence of shrinkage.
(1)A large grocery business must not directly or indirectly require a supplier to make any payment to cover any grocery product that becomes unfit for sale at the premises of:
(a)for a contravention by a body corporate—3,200 penalty units; or
(b)for a contravention by a person who is not a body corporate—640 penalty units.
(2)Subsection (1) does not apply if:
(a)the relevant grocery supply agreement includes a provision that sets out expressly and unambiguously:
(i)the circumstances, which could include negligence of the supplier, in which the supplier will be required to make payments to compensate the large grocery business for grocery products supplied by the supplier that become unfit for sale at the premises of a person or entity referred to in subsection (1); and
(3)For the purposes of (but without limiting) paragraph (2)(e), in determining whether a payment is reasonable in the circumstances, regard must be had to:
(4)A large grocery business that wishes to rely on subsection (2) must prove the matters in that subsection on the balance of probabilities (except in relation to whether the payment causes detriment to a supplier for the purposes of paragraph (2)(e)).
(5)If:
(a)the relevant grocery supply agreement provides for the supplier to make payments to cover grocery products that become unfit for sale at the premises of a person or entity referred to in subsection (1); and
(b)the supplier seeks to negotiate a variation of the agreement relating to payments of that kind;
the large grocery business must not, in the course of the negotiations or as a precondition to entering into the negotiations, seek to negotiate other variations of the agreement unrelated to payments of that kind.
Civil penalty:
(a)for a contravention by a body corporate—3,200 penalty units; or
(b)for a contravention by a person who is not a body corporate—640 penalty units.
(ii)is made in respect of grocery products that have not been stocked or listed by the retailer during the preceding 365 days in 25% or more of its stores; and
(ii)is made in respect of grocery products that have not been stocked or listed by the large grocery business during the preceding 365 days in 25% or more of its distribution centres; and
(iii)is reasonable in the circumstances.
(4)For the purposes of (but without limiting) subparagraph (2)(c)(iii) or (3)(c)(iii), in determining whether the payment is reasonable in the circumstances, regard must be had to:
(5)A large grocery business that wishes to rely on subsection (2) or (3) must prove the matters in that subsection on the balance of probabilities (except in relation to whether the payment causes detriment to a supplier for the purposes of subparagraph (2)(c)(iii) or (3)(c)(iii).
26Payments for better positioning of grocery products—retailers#
(1)A large retailer must not directly or indirectly require a supplier to make any payment to secure either of the following for a grocery product:
(a)better positioning;
(b)an increase in allocation of shelf space.
Civil penalty:
(a)for a contravention by a body corporate—3,200 penalty units; or
(b)for a contravention by a person who is not a body corporate—640 penalty units.
(2)Subsection (1) does not apply if:
(a)a provision of the relevant grocery supply agreement expressly sets out the particular circumstances in which the payment may be required; and
(c)the payment is made in accordance with the agreement; and
(d)the payment is reasonable in the circumstances.
(3)For the purposes of (but without limiting) paragraph (2)(d), in determining whether the payment is reasonable in the circumstances, regard must be had to:
(4)A large grocery business that wishes to rely on subsection (2) must prove the matters in that subsection on the balance of probabilities (except in relation to whether the payment causes detriment to a supplier for the purposes of paragraph (2)(d)).
(5)This section does not apply to a corporation to the extent that it is a wholesaler.
(c)the payment is made in accordance with the agreement; and
(d)the payment is reasonable in the circumstances.
(4)For the purposes of (but without limiting) paragraph (3)(d), in determining whether the payment is reasonable in the circumstances, regard must be had to:
(5)A large grocery business that wishes to rely on subsection (3) must prove the matters in that subsection on the balance of probabilities (except in relation to whether the payment causes detriment to a supplier for the purposes of paragraph (3)(d)).
(c)the funding is required in accordance with the agreement; and
(d)the funding is reasonable in the circumstances.
(3)For the purposes of (but without limiting) paragraph (2)(d), in determining whether the funding is reasonable in the circumstances, regard must be had to:
(4)A large grocery business that wishes to rely on subsection (2) must prove the matters in that subsection on the balance of probabilities (except in relation to whether the funding causes detriment to a supplier for the purposes of paragraph (2)(d)).
Note: For example, the scheme must be consistent with:
(a) the purpose of protecting suppliers from retribution; and
(b) the obligation to act in good faith in dealing with suppliers.
Civil penalty:
(a)for a contravention by a body corporate—the amount under section 14A; or
(b)for a contravention by a person who is not a body corporate—$500,000.
(2)An incentive scheme is not consistent with a purpose of this Code (other than the purpose in paragraph 12(h)) or an obligation under this Code (other than Division 4A of Part 2) if the scheme:
(b)the large grocery business reduces the distribution of the product across the stores or distribution centres of the large grocery business (as the case may be), and that reduction has or is likely to have a material effect on the supplier.
(4)For the purposes of (but without limiting) paragraph (2)(b), genuine commercial reasons for delisting a product include the following:
(a)failure of the supplier to meet agreed quality or quantity requirements with respect to the product;
(5)To avoid doubt, delisting as a punishment for a complaint, concern or dispute raised by a supplier is not a genuine commercial reason.
(6)Before delisting a supplier’s grocery product, the large grocery business must provide reasonable written notice to the supplier of the decision to delist the product. The notice must:
(a)include the genuine commercial reasons for delisting the product; and
(c)inform the supplier of the supplier’s right to refer a complaint relating to the decision to delist the product to the Code Mediator for the large grocery business (see Subdivision A of Division 5); and
(a)for a contravention by a body corporate—3,200 penalty units; or
(b)for a contravention by a person who is not a body corporate—640 penalty units.
(7)Subsection (6) does not apply if:
(a)time is of the essence (including for product recalls, withdrawals or safety issues); or
(b)there are persistent issues with supply that have resulted in the large grocery business being out of stock or stocked at significantly reduced levels.
Note: A large grocery business must not require a supplier to fund all or part of the costs of a promotion unless certain conditions are met: see section 28.
Civil penalty:
(a)for a contravention by a body corporate—3,200 penalty units; or
(b)for a contravention by a person who is not a body corporate—640 penalty units.
(2)If the large grocery business orders a grocery product from a supplier in connection with the funded promotion at a promotional price (whether calculated by way of discount, rebate, credit, allowance or otherwise), the large grocery business must:
(a)ensure that the basis on which the quantity of the order is calculated is transparent; and
(b)not over-order; and
(c)if the large grocery business sells any over-ordered product above the promotional resale price—pay the supplier the difference between the supplier’s promotional price and the supplier’s full price for the product.
Civil penalty:
(a)for a contravention by a body corporate—3,200 penalty units; or
(b)for a contravention by a person who is not a body corporate—640 penalty units.
(b)the large grocery business compensates the supplier for any net resulting costs, losses or expenses incurred or suffered by the supplier as a direct result of the large grocery business failing to give reasonable notice of the cancellation or reduction.
(1)A large grocery business must provide any fresh produce standards or quality specifications to a supplier in clear, unambiguous and concise written terms. Such standards or quality specifications must be reasonable.
Civil penalty:
(a)for a contravention by a body corporate—3,200 penalty units; or
(b)for a contravention by a person who is not a body corporate—640 penalty units.
(2)Without limiting subsection (1), in determining the reasonableness of standards or specifications for a kind of produce, regard must be had to whether the same standards or quality specifications apply to all suppliers who supply that kind of produce to the large grocery business.
(6)A large grocery business must communicate any labelling, packaging or preparation requirements for fresh produce to a supplier in clear, unambiguous and concise written terms.
Civil penalty:
(a)for a contravention by a body corporate—3,200 penalty units; or
(b)for a contravention by a person who is not a body corporate—640 penalty units.
(7)A large grocery business must provide a supplier with reasonable written notice of any required changes to packaging, labelling or preparation standards for fresh produce (unless the change is required immediately by law) taking into consideration existing stock held by suppliers (where known) and any agreement as to stock coverage in the relevant grocery supply agreement.
Civil penalty:
(a)for a contravention by a body corporate—3,200 penalty units; or
(b)for a contravention by a person who is not a body corporate—640 penalty units.
(b)the large grocery business compensates the supplier for any net resulting costs, losses or expenses incurred or suffered by the supplier as a direct result of the large grocery business failing to give reasonable notice of the change; or
(c)the supplier voluntarily waives the supplier’s right to compensation for such costs, losses or expenses.
(1)A large grocery business must not infringe the intellectual property rights held by suppliers in relation to grocery products, including intellectual property rights in branding, packaging and advertising.
Civil penalty:
(a)for a contravention by a body corporate—3,200 penalty units; or
(b)for a contravention by a person who is not a body corporate—640 penalty units.
(2)To avoid doubt, subsection (1) does not create, confer or extend any intellectual property rights in or of the supplier.
(3)In developing or producing own brand products, a large grocery business must not infringe the intellectual property rights held by a supplier in relation to grocery products, including rights relating to branding, packaging designs or advertising.
Civil penalty:
(a)for a contravention by a body corporate—3,200 penalty units; or
(b)for a contravention by a person who is not a body corporate—640 penalty units.
(1)A large grocery business must not directly or indirectly require a supplier to transfer or exclusively license any intellectual property right held by the supplier in relation to a grocery product as a condition or term of supply of an equivalent own brand product of the large grocery business (as the case may be).
Civil penalty:
(a)for a contravention by a body corporate—3,200 penalty units; or
(b)for a contravention by a person who is not a body corporate—640 penalty units.
(1)This section applies if a supplier discloses confidential information to a large grocery business in connection with the supply of grocery products, including confidential information relating to product development, proposed promotions or pricing.
(2)The large grocery business must not use that information other than for a purpose for which it was disclosed and may only disclose it or make it available or accessible to employees or agents of the large grocery business (as the case may be) who need to have that information in connection with that purpose.
Civil penalty:
(a)for a contravention by a body corporate—3,200 penalty units; or
(b)for a contravention by a person who is not a body corporate—640 penalty units.
(3)The large grocery business must establish and monitor systems to ensure compliance with subsection (2). The large grocery business must create a written summary of such systems.
Civil penalty:
(a)for a contravention by a body corporate—3,200 penalty units; or
(b)for a contravention by a person who is not a body corporate—640 penalty units.
(4)To avoid doubt, information is not confidential information for the purposes of this section if the information:
(4)Within a reasonable time before conducting a range review, the large grocery business must provide suppliers who might be adversely affected by any outcome of the review with clearly expressed written notice of:
(a)the purpose of the range review; and
(b)the key criteria governing ranging decisions to be made by the review.
Civil penalty:
(a)for a contravention by a body corporate—3,200 penalty units; or
(b)for a contravention by a person who is not a body corporate—640 penalty units.
(5)Following the range review and before making a final decision relating to the range review that may adversely affect a supplier, the large grocery business must provide the supplier with a reasonable opportunity to discuss the decision with the large grocery business, including the basis on which the large grocery business will make the final decision.
Civil penalty:
(a)for a contravention by a body corporate—3,200 penalty units; or
(b)for a contravention by a person who is not a body corporate—640 penalty units.
(c)if the price increase is in respect of fresh produce that is supplied under the agreement and the agreement includes a mechanism to regularly negotiate the price of that fresh produce—any negotiations about the price increase are not concluded within 5 business days after the supplier informs the large grocery business of the price increase.
Note: Nothing in this section affects the rights of a supplier to determine the price of grocery products that the supplier supplies.
(b)accepts an increase in the price of the grocery products supplied under the agreement but does not accept the amount of the price increase; or
(c)does not accept the price increase.
Civil penalty:
(a)for a contravention by a body corporate—3,200 penalty units; or
(b)for a contravention by a person who is not a body corporate—640 penalty units.
Note: If the price increase is in respect of fresh produce, the 5-business-day period mentioned in paragraph (1)(c) would be within this 30-day period.
(3)If the supplier is notified of a matter referred to in paragraph (2)(b) or (c), the supplier may request the large grocery business to enter into negotiations about an increase in the price for the grocery products.
(4)A large grocery business that enters into such negotiations must engage in the negotiations in good faith and take all reasonable steps to conclude its position on the negotiations without delay.
Civil penalty:
(a)for a contravention by a body corporate—3,200 penalty units; or
(b)for a contravention by a person who is not a body corporate—640 penalty units.
(5)The large grocery business must not require the supplier to disclose commercially sensitive information in relation to the following:
(a)the price increase;
(b)negotiations about an increase in the price for the grocery products.
Civil penalty:
(a)for a contravention by a body corporate—3,200 penalty units; or
(b)for a contravention by a person who is not a body corporate—640 penalty units.
A large grocery business must give to its Code Mediator, in sufficient time for the information to be included in the Code Mediator’s report for a financial year under section 59, the following information:
(a)the total number of notifications given under subsection 40(2) by the large grocery business to any supplier during the financial year;
(b)the number of those notifications that were not given within the 30-day period required by that subsection;
(c)the total number of negotiations entered into during the financial year following requests made under subsection 40(3);
(d)the number of those negotiations in which the large grocery business did not conclude its position on the negotiations within the period of 30 days starting on the day (the notification day) the large grocery business was notified of the relevant proposed price increase by the supplier;
(e)for each of the negotiations to which paragraph (d) applies, the number of days the large grocery business took to conclude its position on the negotiations starting from the notification day for the relevant proposed price increase.
Civil penalty:
(a)for a contravention by a body corporate—3,200 penalty units; or
(b)for a contravention by a person who is not a body corporate—640 penalty units.
(a)appoint one or more of its senior managers to oversee its interactions with its suppliers; and
(b)take all reasonable steps to ensure that such a senior manager oversees such interactions at all times.
Civil penalty:
(a)for a contravention by a body corporate—3,200 penalty units; or
(b)for a contravention by a person who is not a body corporate—640 penalty units.
(2)For each such appointment of a senior manager for interactions with one or more suppliers, the large grocery business must notify the Commission and each of those suppliers, in writing, of:
before the tenth business day after the day of the appointment.
Civil penalty:
(a)for a contravention by a body corporate—3,200 penalty units; or
(b)for a contravention by a person who is not a body corporate—640 penalty units.
(3)If such an appointment ceases, the large grocery business must notify the Commission and each of those suppliers, in writing, of the cessation before the tenth business day after the day of the cessation.
Civil penalty:
(a)for a contravention by a body corporate—3,200 penalty units; or
(b)for a contravention by a person who is not a body corporate—640 penalty units.
(1) A large grocery business must make available to its suppliers, and keep updated, contact details (including position titles and telephone numbers) of:
(a)for a contravention by a body corporate—3,200 penalty units; or
(b)for a contravention by a person who is not a body corporate—640 penalty units.
(2) A large grocery business must publish on its website, and keep updated, contact details (including position title and telephone number) of the Code Mediator.
Civil penalty:
(a)for a contravention by a body corporate—3,200 penalty units; or
(b)for a contravention by a person who is not a body corporate—640 penalty units.
45Requirement to notify Commission—large retailers and large wholesalers#
the corporation must notify the Commission, in writing and within 5 business days after the day applying under subsection (3), that the corporation is a large grocery business.
Civil penalty:
(a)for a contravention by a body corporate—3,200 penalty units; or
(b)for a contravention by a person who is not a body corporate—640 penalty units.
the corporation must notify the Commission, in writing and within 5 business days after the day applying under subsection (3), that the corporation is no longer a large grocery business.
Civil penalty:
(a)for a contravention by a body corporate—3,200 penalty units; or
(b)for a contravention by a person who is not a body corporate—640 penalty units.
(3)The day applying to the corporation under this subsection is the latest day that the corporation, or any related body corporate of the corporation, is required to lodge a report for the previous financial year under section 319 of the Corporations Act 2001.
the corporation must notify the Commission, in writing and within 5 business days after the day applying under subsection (3), that the corporation is a very large retailer.
Civil penalty:
(a)for a contravention by a body corporate—3,200 penalty units; or
(b)for a contravention by a person who is not a body corporate—nil.
the corporation must notify the Commission, in writing and within 5 business days after the day applying under subsection (3), that the corporation is no longer a very large retailer.
Civil penalty:
(a)for a contravention by a body corporate—3,200 penalty units; or
(b)for a contravention by a person who is not a body corporate—nil.
(3)The day applying to the corporation under this subsection is the latest day that the corporation, or any related body corporate of the corporation, is required to lodge a report for the previous financial year under section 319 of the Corporations Act 2001.
45BProhibition on excessive pricing—very large retailers#
(1)A very large retailer must not engage in excessive pricing in supplying, or offering to supply, a kind of grocery product to consumers by way of retail sale.
Note: This subsection applies in relation to any kind of grocery product. For example:
(a) rice with the same brand, packaging and quantity; or
(b) white long grain rice, regardless of brand, packaging or quantity; or
(c) all rice.
Civil penalty:
(a)for a contravention by a body corporate—the amount under section 14A; or
(b)for a contravention by a person who is not a body corporate—nil.
(2)Subsection (1) does not apply in relation to supplying, or offering to supply, a kind of grocery product to the extent that a law of the Commonwealth, a State or a Territory regulates the price for the supply.
(3)A very large retailerengages in excessive pricingin supplying, or offering to supply, a kind of grocery product if, in all the circumstances, the pricing for the supply is significantly excessive when compared to the cost to the very large retailer of the supply, plus a reasonable margin.
(b)the retailer is a very large retailer for the financial year in which the information is created or given;
the retailer must keep the pricing information for at least 3 years after the information is created or given.
Note: If pricing information is created by or given to a retailer in different forms, the retailer is not required to keep that information in more than one form. For example, if the information is initially contained in multiple databases, the retailer may choose to keep the information in only one database.
Civil penalty:
(a)for a contravention by a body corporate—the amount under section 14A; or
(b)for a contravention by a person who is not a body corporate—nil.
(2)For the purposes of subsection (1), if identical pricing information is given to a retailer on more than one occasion, treat the information as having been given only on the first occasion.
before the tenth business day after the day of the appointment.
Civil penalty:
(a)for a contravention by a body corporate—3,200 penalty units; or
(b)for a contravention by a person who is not a body corporate—640 penalty units.
(2)If the Code Mediator’s appointment ceases, the large grocery business must notify the Commission and the Code Supervisor, in writing, of the cessation before the tenth business day after the day of the cessation.
Civil penalty:
(a)for a contravention by a body corporate—3,200 penalty units; or
(b)for a contravention by a person who is not a body corporate—640 penalty units.
(a)ensure that the agreement appointing the Code Mediator includes a condition requiring the Code Mediator to comply with the Code Mediator’s obligations under this Division; and
(b)take reasonably appropriate action under that appointment agreement if the Code Mediator breaches such a condition; and
(c)terminate that agreement if such a breach is serious or if such breaches are persistent.
Civil penalty:
(a)for a contravention by a body corporate—3,200 penalty units; or
(b)for a contravention by a person who is not a body corporate—640 penalty units.
(ii)the name and contact details of a person authorised to deal with the complaint on behalf of the supplier;
(c)details of the conduct giving rise to the complaint, including any documents or other information that would assist the investigation of the complaint;
(i)the 20-business day period beginning on the day the Code Mediator is referred the complaint; or
(ii)such longer period as is agreed in writing between the supplier and the Code Mediator.
Civil penalty:
(a)for a contravention by a body corporate—3,200 penalty units; or
(b)for a contravention by a person who is not a body corporate—640 penalty units.
52Investigations by the Code Mediator—vexatious complaints etc.#
(1)If, after investigating the complaint, the Code Mediator decides that the complaint is vexatious, trivial, misconceived or lacking in substance, the Code Mediator must give the supplier written notice setting out:
(a)a statement to that effect; and
(b)the Code Mediator’s reasons for making that decision; and
(c)that the supplier may take further action in relation to the matter under:
(i)Subdivision B (independent review by the Code Supervisor); or
(ii)Subdivision C (mediation or arbitration).
(2)However, the Code Mediator must not decide that a complaint relating to:
(a)section 20 (unilateral variation of agreement); or
(b)section 21 (retrospective variation of agreement);
is vexatious, trivial, misconceived or lacking in substance only because the supplier’s only ground in relation to the complaint is detriment to the supplier.
(ii)the individual characteristics of the supplier that were known, or ought to have been known, by the large grocery business.
54Investigations by the Code Mediator—recommendations (including proposed remedies)#
(1)After:
(a)investigating a complaint to which section 53 applies; or
(b)reconsidering a complaint under subsection 57(2);
the Code Mediator may decide to make one or more recommendations for dealing with the complaint if satisfied that it is appropriate to do so having regard to the matters in subsection (2).
(5)Within 5 business days after concluding the investigation, the Code Mediator must give the supplier a written notice setting out:
(a)whether the Code Mediator has decided to make any recommendations under subsection (1) and, if so, the content of the recommendations (including the details of any proposed remedy); and
(b)the Code Mediator’s reasons for making that decision; and
(c)that the supplier may take further action in relation to the matter under:
(i)Subdivision B (independent review by the Code Supervisor); or
(i)each providing a written notice to that effect to the Code Mediator before the end of the acceptance period for the remedy; and
(ii)entering into an agreement with each other to that effect.
(6)The Code Mediator must give the large grocery business a copy of the notice within 5 business days after concluding the investigation. However, the Code Mediator must first redact from the copy any information that is reasonably capable of being used to identify the supplier, unless the supplier has expressly consented to their identity being disclosed to the large grocery business.
(a)unless paragraph (b) applies—the 20-business-day period beginning on the day the supplier is given the notice under subsection 54(5) setting out the details of the proposed remedy; or
(b)if the notice under subsection 54(5) setting out the details of the proposed remedy is the result of a reconsideration of the complaint under subsection 57(2)—the 10-business day period beginning on the day the supplier is given that notice.
(2)However, if paragraph (1)(a) applies and within that period the supplier:
(a)requests under Subdivision B the Code Supervisor to independently review the Code Mediator’s process in dealing with the complaint; and
(c)if on a later day the supplier is notified of the Code Supervisor’s decision not to conduct the independent review (see subsection 63(3))—that later day; or
(d)if on a later day the supplier is notified of the completion of the independent review (see subsection 64(6)), and the review did not recommend that the Code Mediator reconsider the complaint—that later day; or
(e)if the independent review recommended that the Code Mediator reconsider the complaint—the day the supplier is notified under subsection 54(5) of the outcome of that reconsideration.
57Reconsideration by the Code Mediator if recommended to do so by the Code Supervisor#
(1)This section applies if:
(a)the supplier requests under Subdivision B the Code Supervisor to independently review the Code Mediator’s process in dealing with the complaint; and
(1)The Code Mediator must prepare a written report for each financial year.
(2)The report must include the following:
(a)a description of the ways it has assisted suppliers of the large grocery business during the financial year in relation to the matters described in paragraphs 48(1)(b), (f) and (g);
(b)the number of complaints referred to it under this Subdivision during the financial year;
(c)in general terms and without identifying a complainant—the nature of each of those complaints;
(d)the time taken to investigate each of those complaints;
(e)the outcome of each of those investigations;
(f)whether or not each of those complaints was resolved to the satisfaction of the relevant supplier;
(g)the number of those complaints for which the Code Mediator recommended payment of compensation;
(h)any information given to the Code Mediator by the large grocery business under section 41 (information about price increases) during the financial year.
(3)The Code Mediator must give a copy of the report to each of the following within 30 business days after the end of the financial year:
(a)to consider requests to review Code Mediators’ processes (including complaints handling procedures) in dealing with complaints;
(b)to identify emerging and systemic issues in the grocery supply chain relating to the operation of the supplier provisions of this Code;
(c)to conduct annual surveys of suppliers and large grocery businesses relating to the operation of the supplier provisions of this Code;
(d)to report on the matters in the above paragraphs.
(2)In performing functions under paragraph (1)(b) the Code Supervisor must act collaboratively with the Commission and with stakeholders in the grocery supply chain, including the following:
(ii)the name and contact details of a person authorised to deal with the review request on behalf of the supplier;
(c)details of the process giving rise to the review request, including any documents or other information that would assist the Code Supervisor to review the Code Mediator’s process.
63Code Supervisor’s discretion to conduct an independent review#
(a)to conduct an independent review of the Code Mediator’s process (including its complaints handling procedure) for dealing with the original complaint; or
(b)not to conduct such a review.
Note: Such a review is of a Code Mediator’s process for dealing with a complaint. It is not a review of the complaint itself or the merits of a proposed remedy, but could result in a recommendation for the Code Mediator to reconsider the complaint (see subsection 64(5)).
(2)Without limiting the Code Supervisor’s discretion under subsection (1), circumstances in which the Code Supervisor might decide not to conduct such an independent review include the following:
(b)give the large grocery business a written notice of the decision that has redacted any information that is reasonably capable of being used to identify the supplier, unless the supplier has expressly consented to their identity being disclosed to the large grocery business; and
(c)take reasonable steps to consider the review request, and complete the independent review, within the 20-business-day period starting on the day that notice is given to the supplier.
Note: This period may be paused while the Code Supervisor is waiting for information (see subsection (4)).
(2)Without limiting paragraph (1)(c), the steps the Code Supervisor may take include requesting information relating to the original complaint from one or more of the following:
(a)for a contravention by a body corporate—3,200 penalty units; or
(b)for a contravention by a person who is not a body corporate—640 penalty units.
(4)The 20-business-day period referred to in paragraph (1)(c) is paused while the Code Supervisor is waiting to receive any information it has requested under subsection (2).
(1)The Code Supervisor must conduct a survey of suppliers and large grocery businesses for each financial year for the purpose of:
(a)identifying if any suppliers feared retribution from large grocery businesses during the financial year; and
(b)identifying suppliers’ experiences during the financial year with agreeing to grocery supply agreements containing allowable contrary provisions of a kind mentioned in section 20, 22, 24, 25, 26, 27 or 28; and
(c)identifying emerging and systemic issues in the grocery supply chain relating to the operation of the supplier provisions of this Code during the financial year; and
(1)A party (the initiating party) to a grocery supply agreement may initiate an ADR process by notifying the other party (the responding party) in writing that the initiating party wishes to have a dispute relating to the supplier provisions of this Code (including the agreement) resolved by an ADR process under this Subdivision.
(4)If the initiating party is a supplier and the ADR process is arbitration, the responding party must notify the initiating party:
(a)in writing; and
(b)within 10 business days of receiving the notification under subsection (1);
whether the responding party agrees to attend, and accept the outcome of, an arbitration in accordance with a written agreement between the parties that is consistent with this Subdivision.
Note: The responding party need not agree to arbitration, but must choose whether to agree to arbitration.
Civil penalty:
(a)for a contravention by a body corporate—3,200 penalty units; or
(b)for a contravention by a person who is not a body corporate—640 penalty units.
(5)If the initiating party is a large grocery business, the responding party must notify the initiating party:
(a)in writing; and
(b)within 10 business days of receiving the notification under subsection (1);
whether the responding party agrees:
(c)to attend the ADR process under this Subdivision; and
(d)if the ADR process is arbitration—to do so, and to accept the outcome of an arbitration, in accordance with a written agreement between the parties that is consistent with this Subdivision.
Note: The responding party need not agree to the ADR process, but must choose whether to agree to the ADR process.
Civil penalty:
(a)for a contravention by a body corporate—3,200 penalty units; or
(b)for a contravention by a person who is not a body corporate—640 penalty units.
(a)the responding party notifies the initiating party, under subsection (4) or (5), that it agrees to attend the ADR process of the dispute under this Subdivision; and
(2)The parties may, in writing, agree to appoint an ADR practitioner from a list kept by the Australian Small Business and Family Enterprise Ombudsman under section 15. The parties must ensure the Code Supervisor is notified of the appointment.
(3)However, if the parties cannot so agree within 14 days after:
(1)Subject to subsection (2), an ADR practitioner appointed for a dispute may decide the time and place for the ADR process for the dispute.
(2)The ADR process must be conducted in Australia and may be conducted by means of virtual attendance technology.
(3)The parties must try to resolve the dispute.
Note: For when a party is taken to be trying to resolve a dispute, see section 71.
Civil penalty:
(a)for a contravention by a body corporate—3,200 penalty units; or
(b)for a contravention by a person who is not a body corporate—640 penalty units.
(4)If the ADR process is arbitration, the arbitration is to be conducted in accordance with the written agreement between the parties that is consistent with this Subdivision.
(5)The ADR practitioner must not decide that a dispute relating to:
(a)section 20 (unilateral variation of agreement); or
(b)section 21 (retrospective variation of agreement);
is vexatious, trivial, misconceived or lacking in substance only because the supplier’s only ground in relation to the dispute is detriment to the supplier.
A party to a dispute is taken to attend an ADR process of the dispute if the party is represented in the ADR process by an authorised representative.
71When a party is taken to be trying to resolve a dispute#
(1)A party will be taken to be trying to resolve a dispute if the party approaches the resolution of the dispute in a reconciliatory manner, including doing any of the following:
(a)attending and participating in meetings at reasonable times;
(b)both:
(i)making the party’s intention clear, at the beginning of the process, as to what the party is trying to achieve through the process; and
(ii)observing any obligations relating to confidentiality that apply during or after the process;
(c)not taking or refusing to take action during the period of the dispute, including refusing to accept goods or to make payments, that has the purpose or effect of applying pressure to resolve the dispute.
(2)To avoid doubt, a party may cease acting as required under subsection (1) if the ADR practitioner appointed for the dispute finds that:
(a)the dispute is vexatious, trivial, misconceived or lacking in substance; or
(b)the other party to the dispute is not acting in good faith; or
(c)under subsection 55(2), the large grocery business has entered into a written agreement with the supplier under which the large grocery business agrees to perform one or more proposed remedies for dealing with a complaint that is the same as the dispute.
72Termination of an ADR process by an ADR practitioner#
(1)This section applies to an ADR process for a dispute if:
(1)The parties to a dispute are equally liable for the costs of an ADR process under this Subdivision for the dispute (including the cost of the ADR practitioner, the cost of room hire and the cost of any additional input (including expert reports) agreed by the parties to be necessary to conduct the ADR process), unless they agree otherwise.
Note: If a single ADR process is conducted under this Subdivision for multiple disputes, this section applies separately to each of the disputes, and the costs of the ADR process for each dispute will be the part of the overall cost of the ADR process that is attributable to that dispute.
(2)The parties must pay for their own costs of attending the ADR process.
(1)A Code Mediator must not disclose to a large grocery business any information that is reasonably capable of being used to identify a supplier in connection with the performance of any of the Code Mediator’s functions, unless:
(a)the supplier has expressly consented to the disclosure; or
(2)A Code Mediator must observe any confidentiality requirements relating to information disclosed or obtained in connection with the performance of any of the Code Mediator’s functions.
(1)The Code Supervisor must not disclose to a large grocery business any information that is reasonably capable of being used to identify a supplier in connection with the performance of any of the Code Supervisor’s functions, except with the express consent of the supplier.
(2)The Code Supervisor must observe any confidentiality requirements relating to information disclosed or obtained in connection with the performance of any of the Code Supervisor’s functions.
(3)The Code Supervisor must ensure that the written report published on the Code Supervisor’s website under subsection 65(3) does not contain any information that:
A party to an ADR process conducted under Subdivision C must observe any confidentiality requirements relating to information disclosed or obtained in connection with the ADR process.
Civil penalty:
(a)for a contravention by a body corporate—3,200 penalty units; or
(b)for a contravention by a person who is not a body corporate—640 penalty units.
(a)for a contravention by a body corporate—the amount under section 14A; or
(b)for a contravention by a person who is not a body corporate—$500,000.
(2)The large grocery business must provide any person who becomes part of its buying team after the 6-month period that applies to it under subsection (1):
Note: This includes any document comprising the agreement or made, from time to time, under the agreement (see the definition of grocery supply agreementin section 5).
Civil penalty:
(a)for a contravention by a body corporate—the amount under section 14A; or
(b)for a contravention by a person who is not a body corporate—$500,000.
(2)A retailer or wholesaler must keep the original or a copy of each of the following documents for at least 6 years after the document is made or given (the relevant time), if the retailer or wholesaler was a large grocery business at the relevant time:
(a)any additional or different quantity and quality requirements agreed under subsection 19(2);
A provision of this instrument has no effect to the extent (if any) to which the provision’s operation would result in the acquisition of property (within the meaning of paragraph 51(xxxi) of the Constitution) otherwise than on just terms (within the meaning of that paragraph).
(b) its total covered revenue, worked out under section 8, exceeds $5 billion for the 2023-2024 financial year.
(2) Treat the corporation as having complied with that requirement if it notifies the Commission, in writing and within 5 business days after 1 April 2025, that the corporation is a large grocery business.
81Application—agreements entered into before 1 April 2025#
(b)on a day (the variation day) during the 12 months starting on 1 April 2025, the agreement is varied to deal with a matter mentioned in subsection 19(3), (4) or (6);
that subsection does not start to apply in relation to the agreement until the variation day.
82Transitional—transition from Code Arbiter to Code Mediator#
(a)records and summaries retained by the Code Arbiter under clause 36C of the old Code; and
(b)any documents or information held by or on behalf of the Code Arbiter that the Code Mediator reasonably requires to prepare the Code Mediator’s first report under section 59 of this instrument.
83Transitional—Code Mediator’s first annual report#
(1)For a person who is a Code Mediator on 30 June 2025, the first report to be prepared by the Code Mediator under section 59 must be for the 2024-2025 financial year.
(2)In addition to the matters listed in subsection 59(2), the first report must include, to the extent known by the Code Mediator, the matters listed in subclause 36D(2) of the old Code for the financial year.
84Transitional—Code Supervisor’s first annual report#
(1)The first report to be prepared by the Code Supervisor under subsection 65(1) must be prepared for the 2024-2025 financial year.
(2)In addition to the matters listed in that subsection, the first report must also include, to the extent known by the Code Supervisor:
(a)the number of review requests made under the old Code to the Independent Reviewer during the financial year; and
(b)the number of independent reviews conducted by the Independent Reviewer under clause 37D of the old Code during the financial year; and
(c)the results of the survey conducted under section 85 of this instrument for the financial year.
(1)The first survey to be conducted by the Code Supervisor under section 66 must be conducted for the 2024-2025 financial year.
(2)In addition to the matters listed in subsection 66(1), the first survey must also address the matters listed in subclause 37F(1) of the old Code in relation to the financial year.
86Saving—record-keeping obligations under the old Code#
Despite the repeal of clause 42 of the old Code on 1 April 2025, that clause, as in force immediately before that day, continues to apply in relation to a document required to be kept under that clause, as if that repeal had not happened.
87Saving—appointment of the Independent Reviewer under the old Code#
(1)An instrument of appointment under subclause 37(1) of the old Code that was in force immediately before 1 April 2025 continues in force (and may be dealt with) as if:
(a)that instrument had been made under subsection 60(2) of this instrument; and
(b)the references in that instrument to the Independent Reviewer were references to the Code Supervisor.
(2)Subsection (1) does not prevent the person who was the Independent Reviewer on 31 March 2025 from continuing to perform that role after that day:
(a)for the purposes of section 84 of this instrument; or
(b)under Part 5 of the old Code as that Part continues to apply because of section 88 of this instrument.
88Saving—pending dispute resolution processes under the old Code#
Despite the repeal of Part 5 of the old Code on 1 April 2025, that Part continues to apply on and after that day in relation to a complaint:
(a)directed to a Code Arbiter under that Part before that day; and
(b)that had not been finally dealt with under that Part before that day.
(1)Subsection 8(1A) applies in relation to financial years ending on or after the commencement of that subsection, whether the previous financial year mentioned in that subsection ends before, on or after that commencement.
(2)Treat a corporation as being required to comply with subsection 45A(1) if:
(a)on the day this section commences, it is a retailer; and
(b)the total covered revenue, worked out under section 8, of the following entities:
(i)the corporation;
(ii)each related body corporate of the corporation;
exceeds $30 billion for the most recent financial year ending before that day.
(3)Treat the corporation as having complied with that requirement if it notifies the Commission, in writing and within 5 business days after the day this section commences, that the corporation is a very large retailer.
The amendments of section 67 made by the Competition and Consumer (Industry Codes—Food and Grocery) Amendment (Supermarkets Excessive Pricing Prohibition) Regulations2025 apply in relation to a notification made on or after the commencement of this section.