The ACCC has commenced proceedings against Coles for
alleged unconscionable conduct towards its suppliers.
A while back, Coles invited hundreds of its suppliers to sign up
to its Active Retail Collaboration supply chain scheme under which
rebates would be paid to Coles in exchange for benefits to be
gained from improvements in the supply chain.
It wasn't long before suppliers began complaining that the
program was far from collaborative and seemed more like a plan by
Coles to rort the smaller players on prices.
The ACCC stepped in and saw it as a golden opportunity to test
out the unconscionability provisions of the Australian Consumer
Law. Historically, unconscionable conduct has been as tough as
nails to prove since you pretty much have to show that the conduct
was as nasty as say Solange Knowles' vicious elevator attack on
Jay Z (we watched the footage this morning – cray ). However
last year's Federal Court decision in the Lux matter set the
bar at a much more achievable standard being conduct that's
unfair in light of community standards and what you'd
ordinarily consider to be fair game in a given scenario.
The ACCC's strategy is pretty clear. A misuse of market
power claim can take up to a decade's worth of time and
millions in legal costs with small prospects of victory, given how
reluctant the courts have been to find that a company has taken
advantage of its market power. Unconscionable conduct on the other
hand might be a much neater way to corner the heavyweights on anti
- competitive behaviour.
We haven't made our mind up on how this will pan out. There
are more than 200 suppliers involved and proving a company's
unconscionability towards another company sounds a bit trickier
than proving a corporation's bullying of a lay consumer. Still,
it shows creativity and we can only commend the ACCC for having a
go at a different approach.
As to whether Coles is in fact a schoolyard bully, or just a
misunderstood lonely fat kid trying to make friends, probably the
Federal Court won't really be in a position to say.
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The Sportscraft refunds and returns policy limitations went beyond consumer's rights under the Australian Consumer Law.
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