Australian Competition and Consumer Commission v Employsure Pty Ltd [2020] FCA 1409

FEDERAL COURT OF AUSTRALIA

Australian Competition and Consumer Commission v Employsure Pty Ltd [2020] FCA 1409 File number: NSD 2384 of 2018

Judge: GRIFFITHS J

Date of judgment: 1 October 2020

Catchwords: CONSUMER LAW – alleged contraventions of ss 18, 29(1)(b), 29(1)(h) and 34 of the Australian Consumer Law (ACL) – whether Employsure, a workplace relations consultancy, conveyed contravening representations in certain Google Ads that it was affiliated with and/or endorsed by a government agency such as the Fair Work Ombudsman or Fair Work Commission – whether Employsure's use of keywords and the design of its Google Ads amounted to contravening conduct – whether Employsure's representations that it provided a "free advice" telephone helpline amounted to contravening conduct – no contravention established CONSUMER LAW – unconscionable conduct – whether Employsure engaged in conduct contrary to s 21 of the ACL with respect to its dealings with three small businesses – unconscionability claims rejected CONSUMER LAW – unfair contract terms – whether certain clauses in Employsure's standard form small business contract were unfair contract terms in contravention of ss 23 and 24 of the ACL – no unfair contract terms established EVIDENCE – whether Jones v Dunkel principle triggered by Employsure's failure to call witnesses – whether particular evidence should be accepted or inferences of fact drawn – Jones v Dunkel not applicable

Legislation: Australian Securities and Investments Commission Act 2001 (Cth), s 12CB(1) Competition and Consumer Act 2010 (Cth) Schedule 2 ss 18, 21, 23, 24, 29, 34 Evidence Act 1995 (Cth) s 140 Fair Work Act 2009 (Cth) Trade Practices Act 1974 (Cth) ss 51AB, 52, 53