During December 2015, the Australian Competition and Consumer Commission (the ACCC) instituted proceedings in the Federal Court against Woolworths Limited, alleging it engaged in unconscionable conduct in dealings with a large number of its supermarket suppliers, in contravention of the Australian Consumer Law (ACL).
The ACCC alleges that during December 2014, Woolworths developed a strategy (approved by senior management) to urgently reduce Woolworths’ expected significant half year gross profit shortfall by 31 December 2014, of a $50 million hole in its books.
It is alleged that one of the ways Woolworths sought to reduce its expected profit shortfall was to design a scheme, referred to as “Mind the Gap”. It is alleged that under the scheme, Woolworths systematically sought to obtain payments from a group of 821 “Tier B” suppliers to its supermarket business.
The ACCC alleges that, in accordance with the “Mind the Gap” scheme, Woolworths’ category managers and buyers contacted a large number of the Tier B suppliers and asked for Mind the Gap payments from those suppliers for amounts which included payments that ranged from $4,291 to $1.4 million, to “support” Woolworths. Not agreeing to a payment would be seen as not “supporting” Woolworths.
The consumer watchdog also alleges that these requests were made in circumstances where Woolworths was in a substantially stronger bargaining position than the suppliers, did not have a pre-existing contractual entitlement to seek the payments, and either knew it did not have or was indifferent to whether it had a legitimate basis for requesting a “Mind the Gap” payment from every targeted Tier B supplier.
Speaking in an ACCC Media Release, the Chairman of the ACCC, Rod Sims said:
“The ACCC alleges that Woolworths’ conduct in requesting the Mind the Gap payments was unconscionable in all the circumstances. A common concern raised by suppliers relates to arbitrary claims for payments outside of trading terms by major supermarket retailers. It is difficult for suppliers to plan and budget for the operation of their businesses if they are subject to such ad hoc requests.”
The ACCC is seeking injunctions, including an order requiring the full refund of the amounts paid by suppliers under the “Mind the Gap” scheme, a pecuniary penalty, a declaration, and costs.
These proceedings follow broader investigations by the ACCC into allegations that supermarket suppliers were being treated inappropriately by the major supermarket chains. During December 2014, at the same time that Woolworths' senior management approved the $60 million “Mind the Gap” scheme, Coles was fined $10 million in the Federal Court over unconscionable conduct in its dealings with suppliers in 2011.
In addition to this penalty, Coles refunded suppliers more than $12 million after the supermarket giant provided a court enforceable undertaking to establish a formal process to compensate suppliers.
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ACCC takes action against Woolworths for alleged unconscionable conduct towards supermarket suppliers –
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