Court Fines Employsure $3 Million for False Advertising
Workplace relations consultancy Employsure has been ordered to pay a $3 million fine over online advertisements which falsely claimed its services had government sponsorship or approval.
A full Federal Court tripled the penalty of $1 million handed down by Federal Court Justice Griffiths in a penalty ruling in November 2021, which was appealed by the ACCC. The full court said the $1 million penalty was “manifestly inadequate” when all the relevant factors were weighed.
Employsure ran Google Ads with headlines such as “Fair Work Ombudsman Help – Free 24/7 Employer Advice”, “Fair Work Australia – Free Fair Work Advice – fairworkhelp.com.au” which the full court said, “omitted any reference whatsoever to Employsure”. The target audience for the Google Ads was business owners searching for employment-related advice online.
The full court said Employsure represented in the Google Ads that its advertised free advice was “sponsored or approved” by a government agency named in the headline of the Google Ads. The full court observed that “misrepresenting that one has government sponsorship or approval is very serious and must be deterred.” The full court went on:
It is unlikely that the ordinary small business owner would research the “fair work ombudsman” or the “fair work commission” unless they were in some form of commercial distress or need (for example, if faced with defending or potentially defending a claim in the Fair Work Commission). The ordinary small business owner, and indeed any member of Australian society, is entitled to rely on the belief that Commonwealth Government organisations exist to serve the public good; not to make a profit as was the case with Employsure, which made the representations that its services had government sponsorship or approval.
Employsure was also ordered to pay the ACCC’s legal costs for the appeal and the remitted penalty hearing.
Australian Competition and Consumer Commission v Employsure Pty Ltd [2023] FCAFC 5