Document ID: chunk:federal_register_of_legislation:F2021C00201:clause:1_38
Version: federal_register_of_legislation:F2021C00201
Segment Type: clause
Provision Reference: sch 1 cl 38
Character Range: 66654–68610

38  Supplier may seek mediation or arbitration
 (1) A supplier may seek either mediation or arbitration of a complaint or dispute relating to a matter covered by this code.
 (2) However, if the supplier has begun a process under Division 1 (about the Code Arbiter) or Division 2 (about the Independent Reviewer) in relation to the complaint or dispute, the supplier must not seek mediation or arbitration of the complaint or dispute until the process:
 (a) has been completed; or
 (b) should have been completed.
 (3) The retailer or wholesaler:
 (a) must take part in the mediation or arbitration in good faith; but
 (b) is not required by this code to take part in both mediation and arbitration in relation to the same complaint or dispute at the same time.
Note: See subclause 39(3) for when the retailer or wholesaler will be:
(a) taken to take part in the mediation or arbitration; and
(b) taken to be trying to resolve the dispute in good faith.
 (4) In any dispute, the retailer or wholesaler has the onus of establishing the matters in subclause (3).
 (5) Despite paragraph (3)(a), the retailer or wholesaler is not required to take part in the mediation or arbitration if the mediator considers or the arbitrator determines that:
 (a) the complaint or dispute is vexatious, trivial, misconceived or lacking in substance; or
 (b) the supplier is not acting in good faith; or
 (c) the supplier has accepted a proposed remedy in relation to the complaint or dispute and the retailer or wholesaler has taken the specified action that is the proposed remedy.
 (6) However, if the complaint or dispute relates to clause 9 (unilateral variation of agreement) or 10 (retrospective variation of agreement), the mediator or arbitrator must not consider or determine that the complaint is vexatious, trivial, misconceived or lacking in substance only because the supplier's only ground in relation to the complaint or dispute is detriment to the supplier.