The Horticulture Code of Conduct contains requirements for both fruit and vegetable Growers and traders (Wholesalers) and aims to improve clarity and transparency of trade between them. All fruit and vegetable Growers must ensure that they comply with the Code, along with the Wholesalers they trade with.
The Code applies to Growers and Traders. Horticulture Growers and traders must comply with the Code.
- A Grower is an individual who grows fruit and vegetables.
- A trader is an agent selling fruit and vegetables for a commission or fee.
- A trader is a merchant who buys a Grower’s fruit and vegetables to resell them.
- Growers who source produce off other Growers to on-sell are acting as traders.
Under the Code, horticulture produce is unprocessed fruit, vegetables (including mushrooms and other edible fungi), nuts, herbs, and other edible plants (excluding nursery products). The Code does not apply to purchases of horticulture produce for sale directly to consumers, for exporting, or processing.
The Horticulture Code of Conduct regulates trade between Growers and traders and provides fair and equitable dispute resolution procedures.
- A Grower and trader must have a Horticulture Produce Agreement (HPA) in place
- Traders must publish their Terms of Trade
- A trader and Grower must deal in good faith
- Merchants must explain how price will be calculated
- Growers and traders must keep certain records
- There are Penalties for breaching certain sections of the Code
- The Code provides a process for dispute resolution.
Requirements of the Code for Growers
There are several specific obligations for Growers. These requirements are listed below.
- A grower must not trade in horticulture produce with a trader unless the grower has a HPA in place with the trader.
- HPAs must be in writing and accepted by the parties to that agreement either by signing the document or by providing written notice of acceptance. Written notice can include email.
- Growers and traders may use any dispute resolution procedures they choose to resolve horticulture disputes that may arise between them. However, if a dispute is progressed in accordance with the Code, all parties must participate in the dispute resolution process.
- If a formal mediation process begins, the parties must attend mediation with the aim of resolving the dispute.
- Parties to a dispute must comply with reasonable requests made by a Horticulture Produce Assessor.
- Growers must keep the prescribed records identified in the Code, including details of any trader that the Grower deals with, for a minimum of six years.
- Growers must retain a copy of all HPAs entered into or agreed to, and any copy of the written termination of an HPA for a minimum of six years.
- Growers must always deal with traders in good faith.
Note: These are specific requirements under the Code. Failing to meet these obligations could result in monetary penalties being imposed.
Growers need to agree to the terms of a HPA with each trader they do business with. The term “trader” is defined in the Code as:
- Any other Grower who you may sell produce to for subsequent on-sale to a third party
- Any packhouse or Grower co-operative which buys and markets your produce, where that business is a separate entity to the Grower
- Other ‘off-Market’ Wholesalers who market your produce
- Market Wholesalers who receive your produce and sell it as either an agent or merchant.
The Code applies to transactions between all parties who meet the definition of being a trader or a Grower. It does not only apply to Wholesalers in a Central Market. It is therefore important that Growers engage with all traders they are doing business with and agree to the terms of a Code-compliant HPA.
To ensure Code compliance, Growers must:
- Understand that traders and Growers are required to have HPAs in place
- Review, negotiate and accept the terms of HPAs with all traders they are doing business with
- Note that acceptance can be in writing including email, fax, or text message.
Requirements for Traders
To trade with a Grower, a trader (Wholesaler) must have:
- Terms of Trade – standard indicative terms on which you are prepared to trade with a Grower, and
- HPA – contractual agreement with each grower supplier.
The Code only applies when a trader (Wholesaler) is doing business with the actual Grower of the horticulture produce being supplied. It does not apply to transactions where a trader (Wholesaler) is sourcing produce from another trader.
For more information about the Code, email admin@brismark.com.au or
visit the Australian Competition and Consumer Commission
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