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ACCC appeals Employsure Google Ads Decision

The Australian Competition and Consumer Commission (ACCC) has lodged an appeal against the Federal Court’s decision to dismiss its case against Employsure, in which the ACCC alleged that Employsure’s Google Ads misrepresented that Employsure was the Fair Work Ombudsman (FWO) or the Fair Work Commission (FWC) or was otherwise connected to those government Agencies.

The Google ads featured headlines such as ‘Fair Work Ombudsman Help – Free 24/7 Employer Advice’ and ‘Fair Work Commission Advice – Free Employer Advice’. The ads appeared in response to search terms such as ‘fair work ombudsman’ and ‘fair work Australia helpline’ when searching online to get employment relations advice from the FWO or the FWC.

On 1 October 2020, the Federal Court dismissed the ACCC’s consumer law case against Employsure finding that the Google Ads were not misleading and considered that a reasonable business owner would not consider there was a connection with the FWO or the FWC. This was because the word “Ad” accompanied by a .com (not .gov) URL appeared and “fair work” has a broad descriptive meaning not limited to government agencies.

The Court considered that the conduct could be described as forceful marketing but was not unlawful behaviour.

In a statement issued on 29 October 2020, ACCC Commissioner Sarah Court said, “We have appealed this decision because we believe the judge made an error in finding that reasonable business consumers, including smaller and less sophisticated business owners, would not have been misled by the Google Ads.”

Employsure use a marketing and sales process that is disrupting the workplace relations space. The experience of some of its clients who are also NatRoad members has been that there is a gap between their expectations and the service that is provided, as well as finding themselves locked into contracts for terms of up to as much as five years.

NatRoad does not use similar marketing tactics as Employsure.  Instead, amongst other benefits, NatRoad membership provides members with free-of-charge, over-the-phone employment relations and workplace health and safety advisory services delivered by experienced specialists with extensive road transport and other industry expertise. For the issues that are more complex and require more than a simple telephone or straightforward e-mail advice, NatRoad’s fee-for-service advice is provided at either an hourly or pre-agreed rate/fee.