The Full Federal Court has upheld the ACCC’s penalty appeal in a case against workplace relations advisor Employsure Pty Ltd and ordered Employsure to pay a penalty of $3 million for making false and misleading representations in its online ads that it was, or was affiliated with, a government agency.
The Court set aside the $1 million penalty originally imposed by the Federal Court, finding it was manifestly inadequate and stated that misrepresenting that one has government sponsorship or approval is very serious and must be deterred.
The Court found that the original $1 million penalty was inadequate to deter Employsure and other potential businesses from similar actions in the future.
“We received more than 100 complaints about Employsure’s conduct. We were concerned that many small business operators were misled by Employsure’s ads into thinking they were getting help and advice from a government agency,” ACCC Chair Gina Cass-Gottlieb said.
“We appealed the earlier $1 million penalty order because we believed the conduct, the company’s size and lengthy period during which they ran the misleading ads meant a higher penalty was warranted.”
“We welcome this increased penalty, which we believe will help to deter similar breaches in the future. Penalties must be sufficiently high to deter others, so they cannot be seen as just an acceptable ‘cost of doing business’,” Ms Cass-Gottlieb said.
“This decision should serve as a reminder that it is a serious breach of trust to misrepresent a business as being part of the government, and that such breaches of the law will have serious consequences.”
The Court also upheld the ACCC’s cost appeal and made new orders requiring Employsure to pay the ACCC’s costs of the initial penalty hearing and appeal.
Employsure is a large, private company with offices in Sydney, Melbourne, Brisbane and Perth that offers employment relations and workplace health and safety advisory services to business owners for a fee under contract.
In the 2021 financial year Employsure had more than 23,500 clients. It has no affiliation with any government agency.
The ACCC instituted proceedings against Employsure in December 2018, alleging Employsure misled consumers that it was, or was affiliated with, a government agency, through its Google Ads published on Google search results pages.
In October 2020, the Federal Court dismissed the ACCC’s case.
The Full Federal Court upheld the ACCC’s appeal unanimously in August 2021.
In November 2021, the original Federal Court judge imposed a $1 million penalty on Employsure for this conduct. The ACCC appealed this penalty decision in January 2022.
Employsure’s ads appeared in Google search results between August 2016 and August 2018, when consumers searched for “fair work ombudsman”, “fair work commission” and other associated terms, and featured headlines including “Fair Work Ombudsman Help – Free 24/7 Employer Advice” and “Fair Work Commission Advice – Free Employer Advice”.
An example of the Google Ads run by Employsure: