29 October, 2020
The 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, or was affiliated with, a government agency.
Employsure is a commercial business that offers employment relations advice to businesses, and earns fees from customers signed up to contracts for advice.
The Google Ads which appeared in response to search terms used by small businesses, such as ‘fair work ombudsman’, featured headlines including ‘Fair Work Ombudsman Help – Free 24/7 Employer Advice’ and ‘Fair Work Commission Advice – Free Employer Advice’.
On 1 October 2020, the Federal Court found that the Google Ads were not misleading. The trial judge concluded it would be clear to a reasonable business owner that the search results were ads and not affiliated with the government, because they were marked with the word ‘Ad’ and linked to a ‘.com’, not ‘.gov’, URL. The Court also found that the words ‘fair work’ had a broad descriptive meaning and were not limited to government agencies.
“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,” ACCC Commissioner Sarah Court said.
“Employsure’s ads appeared when business consumers searched for ‘fair work ombudsman’ and ‘fair work australia helpline’. The ACCC considers that many businesses were likely to have conducted their searches when they were seeking urgent workplace advice from a government agency and, we will argue, many reasonable business consumers, including small businesses and less sophisticated business owners, were unlikely to have noted the small differences within the ads which were relied on by the judge to make his findings.”