Australian Competition and Consumer Commission v Employsure Pty Ltd

The Australian Competition and Consumer Commission (ACCC) commenced proceedings against Employsure Pty Ltd, a workplace relations consultancy, in the Federal Court, alleging various contraventions of the Australian Consumer Law (ACL). The ACCC claimed that Employsure contravened sections 18, 29(1)(b), 29(1)(h), and 34 of the ACL through representations in Google Ads suggesting affiliation or endorsement by government agencies such as the Fair Work Ombudsman or Fair Work Commission. Additionally, the ACCC argued that Employsure’s use of keywords, the design of its Google Ads, and representations that it provided a "free advice" telephone helpline amounted to contravening conduct. The ACCC further contended that Employsure engaged in unconscionable conduct with respect to its dealings with three small businesses and included unfair contract terms in its standard form small business contracts.

The court had to decide whether Employsure contravened the ACL through its representations, use of keywords, and design of Google Ads. The court also had to determine if Employsure engaged in unconscionable conduct with the three small businesses and whether certain clauses in its standard form small business contract were unfair contract terms. Moreover, the court considered whether the principle in Jones v Dunkel applied to Employsure’s failure to call witnesses and whether particular evidence should be accepted or inferences of fact drawn.

The court concluded that Employsure did not contravene the ACL through its Google Ads or telephone helpline representations. The court found no evidence that Employsure's conduct was misleading or deceptive, or that it engaged in unconscionable conduct. Regarding the contract terms, the court found that Employsure had demonstrated that the impugned clauses were necessary to protect its legitimate interests. The court also found that the terms were transparent, clearly disclosed, and expressed in plain English. Therefore, the ACCC's claims were dismissed, and the court tentatively indicated that costs should follow the event, pending further submissions from the parties on the issue of costs.