Document ID: chunk:federal_register_of_legislation:F2021C00201:clause:1_36
Version: federal_register_of_legislation:F2021C00201
Segment Type: clause
Provision Reference: sch 1 cl 36
Character Range: 50868–53496

36  Determination by Code Arbiter of proposed remedy
 (1) After investigating a complaint under clause 35, or after reconsidering a complaint under clause 36B, the Code Arbiter must determine what (if any) action should be taken by the retailer or wholesaler in response to the complaint.
 (2) Without limiting subclause (1), the Code Arbiter may determine that the retailer or wholesaler should:
 (a) pay compensation to the supplier; or
 (b) vary, subject to clause 9 (unilateral variation of agreement), a grocery supply agreement with the supplier.
 (3) However, the Code Arbiter may not determine that the retailer or wholesaler pay compensation to the supplier in excess of $5 million in relation to the complaint.
 (4) If the Code Arbiter determines that the retailer or wholesaler should pay compensation of $5 million to the supplier in relation to the complaint, the Code Arbiter may make a recommendation that the retailer or wholesaler also pay an additional amount of compensation.
 (5) If the Code Arbiter determines that the retailer or wholesaler should take action in response to the complaint, that action is the proposed remedy for the supplier in relation to the complaint. A recommendation under subclause (4) does not form part of the proposed remedy.
 (6) Before determining that a retailer or wholesaler should vary a grocery supply agreement, the Code Arbiter may consult with the retailer or wholesaler, or the supplier, or both.
 (7) Within 5 business days after the conclusion of the investigation, the Code Arbiter must give the supplier a notice in writing setting out:
 (a) the determination made by the Code Arbiter under subclause (1); and
 (b) the Code Arbiter's reasons for making that determination; and
 (c) if the Code Arbiter determined a proposed remedy—the timetable for the proposed remedy; and
 (d) that the supplier may take further action in relation to the matter under clause 37B (independent review request) or 38 (mediation or arbitration).
Note: If the Code Arbiter was satisfied that the complaint was vexatious, trivial, misconceived or lacking in substance, the Code Arbiter may combine a notice given under this subclause with the notice given under subclause 35(3).
 (8) The Code Arbiter must give the retailer or wholesaler a copy of the notice. The Code Arbiter must first redact from the copy of the notice any information that would disclose the identity of the supplier unless:
 (a) the supplier has expressly consented to their identity being disclosed to the retailer or wholesaler; or
 (b) the supplier has accepted a proposed remedy in relation to the complaint.