On Thursday 5 December 2013 the Fair Trading (Farming Industry Dispute Resolution Code) Regulations 2013 (No. 269 of 2013) was Gazetted and commenced from that day (see Gazette 78, 5 December 2013, p 4451). The Code comes from the work of the South Australian Small Business Commission (the SASBC) who by virtue of the Small Business Commissioner Act 2011 (SA) were given the task by the South Australian Government of developing prescribed industry codes of conduct under the Fair Trading Act 1987 (SA). This is the first of such code prepared and is known as the "Farming Industry Dispute Resolution Code" (the Code).
The SASBC website states that the development of industry codes is "in line with the Government’s intention to create a fairer and more competitive small business sector". The SASBC says that the Code gives South Australian farming producers and business participants:
the "ability to access an enforceable mandatory dispute resolution framework to assist in dealing with a wide range of business to business disputes, as well as business to Local or State Government".
The Code will seek to promote the successful resolution of farming related disputes in a streamlined and defined manner and sets out a series of steps or actions that can be taken by the Office of the SASBC to help bring the parties in dispute together with the intention of assisting the parties to resolve the dispute in a timely and mutually beneficial manner.
The Code helps farmers by providing mandatory alternative dispute resolution processes on a no (or low) cost basis overseen by the SASBC. The Code uses an alternative dispute resolution processes designed to help resolve farming related disputes. As well the Code is intended to resolve disputes in "a timely and cost effective way which maximises the chances of preserving the business relationship between the farmer and the other party in dispute with the farmer".
The Code is said by the government to in keeping with its intention of trying to keep such matters out of the Courts and to help preserve business relationships by seeking to resolve business disputes in a timely and cost effective manner. To do this Code the code focuses on bringing together disputing parties and assisting them to move forward in a constructive manner to resolve a dispute in ways that are mutually beneficial. The SASBC says there is no additional compliance burden arising from the Code "as the parties in dispute would already be incurring costs associated with seeking to resolve the dispute such as legal costs and the diversion of management time".
Under the Code the SASBC has a variety of powers to assist in resolving a dispute including the power to require parties to attend meetings, exchange information, answer questions and participate in an alternative dispute resolution process under the provisions set out in the Code.
The Code covers all farmers and primary producers and includes any business of primary production such as the business of agriculture, pasturage, horticulture, viticulture, aquaculture, poultry farming, dairy farming, forestry, rearing of livestock, and harvesting of fish and other aquatic organisms.
The Code provides for two levels of financial penalties for breaches; at one level the SASBC can issue a civil expiation notice for breaches of the Code, or alternatively the SASBC can take court action to obtain a civil penalty of up to $50,000 for a corporation or $10,000 for a natural person.
The Code was base on feedback to the SA Minister for Small Business, from the farming industry and small business and the SASBC and the SA government both claim the Code is a national first because it is the:
". . . first time in Australia where a mandatory alternative dispute resolution framework has been backed by financial penalties to focus the efforts of the parties during the alternative dispute resolution process."
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