26Payments for better positioning of grocery products—retailers

26 Payments for better positioning of grocery products—retailers

(1) A large retailer must not directly or indirectly require a supplier to make any payment to secure either of the following for a grocery product: (a) better positioning; (b) an increase in allocation of shelf space.

Civil penalty:

(a) for a contravention by a body corporate—3,200 penalty units; or
(b) for a contravention by a person who is not a body corporate—640 penalty units.

(2) Subsection (1) does not apply if: (a) a provision of the relevant grocery supply agreement expressly sets out the particular circumstances in which the payment may be required; and (b) that provision of the agreement is an allowable contrary provision; and (c) the payment is made in accordance with the agreement; and (d) the payment is reasonable in the circumstances. (3) For the purposes of (but without limiting) paragraph (2)(d), in determining whether the payment is reasonable in the circumstances, regard must be had to: (a) the benefits, costs and risks (if any) for the supplier and for the large grocery business; and (b) whether the payment is for a purpose that benefits both the supplier and the large grocery business. (4) A large grocery business that wishes to rely on subsection (2) must prove the matters in that subsection on the balance of probabilities (except in relation to whether the payment causes detriment to a supplier for the purposes of paragraph (2)(d)). (5) This section does not apply to a corporation to the extent that it is a wholesaler.