Australian Competition and Consumer Commission v Employsure Pty Ltd

• Jurisdiction: Australia Federal only
• Court: Federal Court (Australia)
• Judge: GRIFFITHS J
• Judgment Date: 01 October 2020
• Neutral Citation: [2020] FCA 1409
• Date: 01 October 2020

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
Cases cited:	Australian Competition and Consumer Commission v Accounts Control Management Services Pty Ltd [2012] FCA 1164 Australian Competition and Consumer Commission v Allphones Retail Pty Ltd (No 2) [2009] FCA 17; 253 ALR 324 Australian Competition and Consumer Commission v Ashley & Martin Pty Ltd [2019] FCA 1436 Australian Competition and Consumer Commission v Chrisco Hampers Australia Ltd [2015] FCA 1204; 239 FCR 33 Australian Competition and Consumer Commission v Coles Supermarkets Australia Pty Ltd [2014] FCA 634; 317 ALR 73 Australian Competition and Consumer Commission v J J Richards & Sons Pty Ltd [2017] FCA 1224 Australian Competition and Consumer Commission v Lux Distributors Pty Ltd [2013] FCAFC 90 Australian Competition and Consumer Commission v Optell Pty ltd [1998] FCA 602 Australian Competition and Consumer Commission v Quantum Housing Group Pty Ltd (No 2) [2020] FCA 802 Australian Competition and Consumer Commission v TPG Internet Pty Ltd [2013] HCA 54; 250 CLR 640 Australian Competition and Consumer Commission v We Buy Houses Pty Ltd [2017] FCA 915 Australian Competition and Consumer Commissioner v Geowash Pty Ltd (subject to a deed of company arrangement) (No 3) [2019] FCA 72; 368 ALR 441 Australian Competition and Consumer Commission v Get Qualified Australia Pty Ltd (in liq) (No 2) [2017] FCA 709 Australian Securities & Investments Commission v National Exchange Pty Ltd [2005] FCAFC 226; 148 FCR 132 Australian Securities and Investment Commission v Hellicar [2012] HCA 17; 247 CLR 345 Australian Securities and Investments Commission v Westpac Banking Corporation (No 2) [2018] FCA 751; 266 FCR 147 Australian Securities and Investments Commission v Kobelt [2019] HCA 18; 368 ALR 1 Brandi v Mingot (1976) 12 ALR 551 Briginshaw v Briginshaw [1938] HCA 34; 60 CLR 336 Butcher v Lachlan Elder Realty Pty Ltd [2004] HCA 60; 218 CLR 592 Campbell v Backoffice Investments Pty Ltd [2009] HCA 25; 238 CLR 304 Campomar Sociedad, Limitada v Nike International Ltd [2000] HCA 12; 202 CLR 45 Conagra Inc v McCain Foods (Australia) Pty Ltd [1992] FCA 176; 33 FCR 302 Flexopack SA Plastics Industry v Flexopack Australia Pty Ltd [2016] FCA 235; 118 IPR 239 Google Inc v Australian Competition and Consumer Commission [2013] HCA 1; 249 CLR 435 Homart Pharmaceuticals Pty Ltd v Careline Australia Pty Ltd [2017] FCA 403 iNova Pharmaceuticals (Australia) Pty Ltd v Reckitt Benckiser (Australia) Pty Ltd [2018] FCA 1209 Insight Radiology Pty Ltd v Insight Clinical Imaging Pty Ltd [2016] FCA 1406 Ipstar Australia Pty Ltd v APS Satellite Pty Ltd [2018] NSWCA 15; 356 ALR 440 Jetstar Airways Pty Ltd v Free [2008] VSC 539; 30 VAR 295 Jones v Dunkel [1959] HCA 8; 101 CLR 298 Kuhl v Zurich Financial Services Australia Ltd [2011] HCA 11; 243 CLR 361 O’Donnell v Reichard [1975] VR 916 Paciocco v Australia and New Zealand Banking Group Limited [2015] FCAFC 50; 236 FCR 199 Paciocco v Australia and New Zealand Banking Group Ltd [2016] HCA 28; 258 CLR 525 Parkdale Custom Built Furniture Pty Ltd v Puxu Pty Ltd [1982] HCA 44; 149 CLR 191 Specsavers Pty Ltd v Luxottica Retail Australia Pty Ltd [2013] FCA 648 Sportsbet Pty Ltd v Crownbet Pty Ltd [2018] FCA 1045 Tonto Home Loans Australia Pty Ltd v Tavares [2011] NSWCA 389 Trade Practices Commission v J & R Enterprises Pty Ltd [1991] FCA 23; 99 ALR 325 Unilever Australia Ltd v Beiersdorf Australia Ltd [2018] FCA 2076 Veda Advantage Ltd v Malouf Group Enterprises Pty Ltd [2016] FCA 225; 241 FCR 161 Zintix (Australia) Pty Ltd v Employsure Pty Ltd [2018] NSWSC 924
Date of hearing:	15, 16, 17, 18, 19, 22, 25 and 26 June 2020
Registry:	New South Wales
Division:	General Division
National Practice Area:	Commercial and Corporations
Sub-area:	Regulator and Consumer Protection
Category:	Catchwords
Number of paragraphs:	470
Counsel for the Applicant:	Mr S White SC with Ms D Forrester
Solicitor for the Applicant:	Corrs Chambers Westgarth
Counsel for the Respondent:	Mr P Brereton SC with Mr C Bannan
Solicitor for the Respondent:	Webb Henderson

ORDERS

		NSD 2384 of 2018
BETWEEN:	AUSTRALIAN COMPETITION AND CONSUMER COMMISSION Applicant
AND:	EMPLOYSURE PTY LTD ACN 145 676 026 Respondent

JUDGE:	GRIFFITHS J
DATE OF ORDER:	1 october 2020

THE COURT ORDERS THAT:

1. The amended originating application be dismissed.

2. Within 21 days hereof, the parties are to seek to agree costs. If they are unable to reach such an agreement, within that time each should file and serve an outline of submissions on costs not exceeding three pages in length. Unless either of the parties can demonstrate the need for a further oral hearing, the issue of...