The recently more bullish ACCC has taken a hit in a proceeding it brought against Employsure for blurring the lines between free government assistance.
Employsure used a number of targeted Google Adwords to divert small business online inquiries to the Fair Work Ombudsman and Fair Work Commission to generate sales leads from small businesses seeking employment advice.
The ACCC commenced proceedings alleging Employsure's conduct had been unconscionable in that it had set out to entangle small businesses seeking free advice in its 'marketing web' by:
Answering inquiries "Fair Work help" and not disclosing the call centre was in fact Employsure.
Failing to correct callers when they indicated they believed they were speaking to government provided help services.
Failing to provide advice and instead highlighting risks and employment issues that needed specialist advice.
Recommending the services of an Employsure case manager.
Using high pressure sales techniques to induce small businesses to sign up with Employsure.
When considering whether Employsure had acted unconscionably, Griffiths J observed:
Findings of unconscionable conduct in Australia should not be made lightly.
Acts of predation on the week or the poor - such as trickery, dishonesty and sharp practice - are the hallmarks of unconscionable conduct and the exploitation of a weaker party's special disadvantage by a stronger party.
When contrasting the alleged conduct against the conscionable behaviour expected by society, care must be taken to ensure an idealistic notion of what is 'fair and just' is not adopted.
Courts must step back from the allegations concerning a specific act or incident and consider the whole episode as a whole.
In deciding against the ACCC, Griffiths J held that none of the small businesses had been at a special disadvantage. He also held that the conduct of Employsure was not so far outside the bounds of societal norms as to warrant condemnation - noting that businesses are not required to act altruistically or in a disinterested way, preferring their interests ahead of their own, when dealing with customers or clients.
Authors: Louise Gehrig and Rob Norton