The Full Federal Court, in the case of Australian Competition and Consumer Commission v Employsure Pty Ltd [2021] FCAFC 142, unanimously upheld the appeal by the ACCC regarding a number of Google Ads, posted by Employsure Pty Ltd (Employsure) – a workplace relations advisory company) between August 2016 and August 2018.
Australian Consumer Law
Use of competitors trademarks for comparative advertising
31 August 2021 by
Comparative advertising is a popular way to win market share by promoting superiority of a product or a service over a competitor. Businesses often use comparative advertisement as a direct challenge to a competitor’s product or service by comparing it with the size/volume, quality, price, or range of their own product or service. Comparative advertising can be useful for consumers in making choices between similar products or services, but how is the use of a competitor’s trade mark in comparative advertising handled under Australian law? [Read more…]
Tortious interference with contract – what must be proven?
1 June 2021 by
Unlawful interference with contractual relations (Interference) is a tort that allows damages to be claimed against a Defendant who has induced or procured a third party to breach their contractual obligations to the Plaintiff in the proceedings. In essence, a Defendant’s intention to induce or procure an entity to act or refrain from acting whilst being aware that such an action would result in said entity breach its contractual obligations to the Plaintiff gives rise to the Interference.[1] This article outlines the elements needed to be proven in order to establish an Interference. [Read more…]
Changes to monetary threshold for consumer contracts
24 November 2020 by
For businesses that provide goods or services to non-consumers, the recent Treasury Laws Amendment (Acquisition as Consumer – Financial Thresholds) Regulations 2020 (Amendment) has the effect of widening the scope of the consumer guarantees regime under the Australian Consumer Law (ACL). This means that, as of 1 July 2021, contracts that were not previously subject to the consumer guarantee protections (because the value of goods or services was less than $40,000) will be captured under the new regime. [Read more…]
Risks of making financial forecasts
13 November 2019 by
When a business is seeking to raise capital or advertise as being for sale financial forecasts are often made in a way so as to appeal to the target audience – investors or potential buyers. In some cases however, the forecasts made do not translate into reality giving rise to potential legal consequences. As forecasts are indicators often relied used by investors to make decisions on whether or not to invest, statements that are incorrect may amount to misleading and deceptive conduct under the Australian Consumer Law (ACL) (being Schedule 2 to the Competition and Consumer Act 2010 (Cth)) and have potentially serious legal consequences. [Read more…]
Workplace Bullying by a Body Corporate
27 March 2019 by
Section 789FA of the Fair Work Act 2009 (the FWA) enables a worker who has been bullied at work to apply to the Fair Work Commission (FWC) for an order to stop the bullying. For the purposes of the FWA, reasonable management action taken in a reasonable way will not constitute workplace bullying.
A body corporate rarely directly employs workers. Usually, an onsite care-taking service contractor is engaged (typically a company) to perform on-site duties such as grounds maintenance and the like, those duties normally being discharged by the company’s directors or employees engaged by the company. [Read more…]
Resale price maintenance
16 January 2018 by
Businesses (Suppliers) that sell their goods via distribution networks (Distributors), who in turn sell them to third party consumers need to take care to ensure that they do not engage in conduct amounting to resale price maintenance. In Australia, this method of ‘resale’ and ‘resale price maintenance’ is subject to the law imposed by the Competition and Consumer Act 2010 (Cth) (Act). [Read more…]
The legal obligation for Australian businesses to provide refunds
3 March 2017 by
In Australia, the main piece of legislation governing the supply of goods and services is the Competition and Consumer Act 2010 (Cth) (CCA), which incorporates the Australian Consumer Law (ACL) in Schedule 2. These obligations apply in addition to the terms and conditions by which a business trades. The CCA regulates the interaction between businesses and consumers and also between businesses. How the CCA applies to any particular transaction will depend on whether goods or services are supplied to a consumer.[1] The effect of a transaction being classed as a consumer transaction is that the consumer guarantee provisions in the CCA will apply. [Read more…]
Are software developers liable for defects in their software?
20 December 2016 by
The question of whether software developers are (or ought to be) legally liable for bugs, errors, security vulnerabilities, or other defects in the software which they develop, and the extent to which they are (or ought to be) liable for the loss flowing from those defects, is not a new one and has been the subject of significant legal and academic debate since at least the 1980s. This article considers the liability of software developers in negligence and under the Australian Consumer Law (ACL), and also discusses whether insurance is available to offset these risks for the developer. [Read more…]
The risks of ‘manufactured’ business testimonials: a lesson from the ACCC
13 January 2016 by
On 18 December 2015, the Federal Court handed down an order for relief based on a case initiated by the ACCC in July 2014. The order imposed penalties on A Whistle & Co Pty Ltd (the Respondent) for breaching the Australian Consumer Law (ACL) by publishing fake customer testimonials. Whilst it is common marketing practice to use testimonials to create the appearance of customer satisfaction, the judgment, Australian Competition and Consumer Commission v A Whistle & Co (1979) Pty Limited [2015] FCA 1447 demonstrates why businesses should ensure that they engage in genuine and legitimate marketing, and avoid misleading or deceiving their consumers. [Read more…]
