ACCC commences court proceedings against Employsure for misleading advertising and unconscionable conduct allegations
Civil proceedings have been instituted against employment relations company Employsure Pty Ltd for allegedly misleading small business consumers that it was, or was affiliated with, a government agency when that was not the case.
It is also alleged that Employsure represented to consumers that it provided a helpline for free workplace relations advice, when the primary function of that helpline was to secure marketing leads to sell its services.
The ACCC alleges that Employsure engaged in the misleading conduct, in breach of the Australian Consumer Law, through its use of Google Ads campaigns and on its websites between January 2016 and November 2018.
Employsure’s 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 were designed to appear in response to search terms such as ‘fair work ombudsman’ and ‘fair work australia helpline’ that consumers use when searching online to get employment relations advice from government agencies.
Employsure’s websites also prominently advertised call centre phone numbers for a ‘Helpline’ that provides free advice.
“The ACCC alleges that Employsure targeted small businesses who were seeking the free workplace relations helpline operated by the Government. Its primary objective was to sign these businesses up to long-term contracts with on-going fees,” ACCC Commissioner Sarah Court said.
“In some cases, the advice sought by these businesses was available free of charge from the Fair Work Ombudsman.”
“Business must not claim they provide free, government affiliated services in order to lure customers into buying their services,” Ms Court said.
The ACCC also alleges that Employsure engaged in unconscionable conduct towards four small businesses between August 2015 and June 2018.
These small businesses contacted Employsure’s call centre after searching Google for the Fair Work Ombudsman or a related government agency. The individuals believed they were speaking with someone from, or associated with, a government agency and agreed to a meeting with Employsure’s staff on this basis.
During these meetings, the ACCC alleges that Employsure’s staff emphasised the risks faced by the individuals including the possibility of fines or being sued by employees, in order to convince them that its services were necessary, pressuring the individuals to sign up to long-term contracts for a significant fee.
The ACCC also alleges that during the period November 2016 to at least October 2018, Employsure’s contracts contained unfair terms, including terms that made it difficult for small businesses to exit the long term contracts.
The ACCC is seeking declarations, pecuniary penalties, injunctions, consumer redress orders for the four small businesses, corrective publication and compliance orders, and costs.
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Employers who incorrectly classify employees as casual instead of full-time or part-time could be responsible for back paying various entitlements under the National Employment Standards (NES), following a recent Federal Court of Australia decision in Workpac v Skene  FCAFC 131
However, the Government has varied the Fair Work Regulations 2009 to clarify that employers, in certain circumstances, may claim that an employee's casual loading payments should be offset against certain NES entitlements owing to the employee.
This regulation comes into effect on 18 December 2018.
How does the new regulation work?
The new regulation applies where all of the following criteria are met:
- an employee is employed by their employer on a casual basis.
- the employee is paid a casual loading that is clearly identifiable as being an amount paid to compensate the person in lieu of entitlements that casual employees are not entitled to under the NES, such as personal or annual leave.
- despite being classified by the employer as a casual, the employee was in fact a full-time or part-time employee for some or all of their employment for the purposes of the NES.
- the employee has made a claim to be paid for one or more of the NES entitlements (that casual employees do not have) that they didn't receive for all or some of the time that they were incorrectly classified as a casual.
If all of these points are satisfied, an employer can make a claim to have the casual loading payments made to the employee taken into account when working out the entitlements owing to the employee for the relevant NES entitlements.
The new regulation applies to employment periods that occurred before, or that occurred on or after, 18 December 2018.
Visit the Federal Register of Legislation to read the Fair Work Amendment (Casual Loading Offset) Regulations 2018
Artibus Innovation is holding consultation workshops enabling interested parties, workers and training providers the opportunity to share feedback on the skills, knowledge and training needs required to undertake work or be re-skilled in the security industry.
The feedback will provide valuable input into improving the quality of the qualifications and competencies required to meet the Vocational Education and Training (VET) needs of the industry.
The national consultation workshops will be conducted in all States and Territories as follows:
- 9.30am to 11.00am – Investigative Security
- 11.15am to 12.45pm – Technical Security
- 1.15pm to 3.15pm – Security and Risk Management
Please click one of the following links to register to attend a workshop (Sydney and Canberra registrants will be notified of the venues asap).
Being a SPAAL member provides great benefits and we would now like to provide you with a value packed offer that is of benefit to all your staff.
If you would like to provide this amazing opportunity to the people that matter most to your business, please forward this email. Instant quotes are provided with this special link below, this unique policy is only available to SPAAL members.
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From 1 December 2018, modern awards will include new rules about requests for flexible work arrangements.
Before responding to a request from an eligible employee, an employer must first discuss the request with the employee to try to reach an agreement about a change to their working arrangements. Requests can only be refused on reasonable business grounds. If employers refuse a request, they need to provide the employee with a written response.
- Requests for flexible working arrangements
- Termination of employment
- consultation about major workplace change
- consultation about changes to rosters or hours of work
- dispute resolution
- individual flexibility arrangements
The amended clauses can be viewed via the following links:
|Telstra will improve delivery of the Triple Zero emergency call service following an Australian Communications and Media Authority (ACMA) investigation.
The ACMA’s investigation into events of 4 May 2018 found that Telstra contravened a rule that requires telecommunications providers to ensure that calls made to Triple Zero using their networks are carried to the operator of the emergency call service. Telstra failed to ensure that some 1,433 calls were carried to the operator as a result of problems triggered by a fire in an inter-state cable pit, which were compounded by network software failures.
‘Triple Zero is the lifeline for Australians in life-threatening or emergency situations. Community confidence in the emergency call service must be maintained,’ said ACMA Chair Nerida O’Loughlin.
The ACMA has accepted a court enforceable undertaking by Telstra in response to the breach findings. In the undertaking, Telstra has committed to improving the redundancy and diversity of its network, developing new communication protocols to be used in the event of another disruption and benchmarking its systems against international best practice.
‘The actions Telstra has already taken, and is undertaking, will help strengthen the emergency call service and minimise the risk of another disruption to this critical service,’ Ms O’Loughlin said.
As a result of this incident, the ACMA is also reviewing the rules governing the emergency call service to make sure that they are as robust as possible in the context of today’s technologies, and that they impose clear, consistent and appropriate obligations.
‘Given the critical nature of the Triple Zero service, the ACMA takes matters about access to the service very seriously,’ said Ms O’Loughlin. ‘The review will help ensure that the rules for the emergency call service remain current and effective’.
The ACMA’s consultation paper for the review is available—submissions from interested parties are invited by COB, Monday 12 November 2018.
For more information or to arrange an interview, please contact: Media Manager, (02) 9334 7838, 0438 375 776 or firstname.lastname@example.org.
Media release 34/2018 - 22 October 2018
The Triple Zero emergency call service is an operator-assisted telephone service that has been established to connect callers to an emergency service organisation—police, fire or ambulance—in a life-threatening or time critical situation. In 2016–17, there were over 8.5 million to the emergency call service numbers—an average of over 23,500 calls per day.
Under subsection 147(1) of the Telecommunications (Consumer Protection and Service Standards) Act 1999, the ACMA has made a written determination, the Telecommunications (Emergency Call Service) Determination 2009, which imposes requirements on carriers, carriage service providers (CSPs) and the operators of the emergency call service, to ensure the service functions effectively. The ACMA regulates the Triple Zero emergency call service through the Determination. A failure to comply with the Determination is a contravention of subsection 148(1) of the Telecommunications (Consumer Protection and Service Standards) Act.
Section 19 of the Determination requires a CSP to ensure that its controlled networks and controlled facilities give an end-user access to emergency call services, unless it is not technically feasible to give the access or a matter beyond the control of the CSP materially and adversely affects the CSP’s technical ability to give the access.
Subsection 22 of the Determination requires a CSP that supplies an emergency telephone service to ensure that a Triple Zero call is carried to the operator of the Triple Zero emergency call service.
The ACMA can accept enforceable undertakings about matters concerning compliance with the Telecommunications Act 1997 and the Telecommunications (Consumer Projection and Service Standards) Act. Information about enforceable undertakings under this legislation is contained in Enforceable undertakings: Guidelines for accepting enforceable undertakings—telecommunications obligations.
From 1 July 2019, the Australian Taxation Office (ATO) will introduce taxable payments reporting requirements for the following industries
- security providers and investigation services;
- road freight transport; and
- computer system design and related services.
The building industry, cleaning and courier businesses are already required to provide taxable payments reporting to the ATO.
The taxable payments reporting system requires businesses to report payments they make to contractors. Contractors can include subcontractors, consultants and independent contractors operating as sole traders (individuals), companies, partnerships or trusts.
Businesses will need to start collecting information on payments to contractors from 1 July 2019.The first annual report is required by 28 August 2020.
For reporting purposes, the ATO will include all security, investigation and surveillance services.
- Security - protection from, or measures taken against, injury, damage, espionage, theft, infiltration or sabotage. That includes anti-burglary, locksmith, body guards, security guards, armoured cars and any other services which can be provided to protect individuals or property.
- Investigation services - a searching inquiry in order to ascertain facts that is typically conducted by a detective or an enquiry agency and may be matters not necessarily related to security. It does not refer to any services which may be used to gather information such as online search engines.
- Surveillance services - a general watch or observation maintained over an area or location, by one or more persons or by using devices such as motion detector alarms, cameras or recorders. This includes night watch services, alarm monitoring and services that involve the use of closed-circuit television cameras for the purpose of surveillance or maintaining security".
A business may not be required to complete a taxable payment annual report if the total payments received for security services for the financial year is less than 10% of the current or projected GST turnover or that you have not paid any contractor for security services..
The ATO website provides a range of information on Taxable payment annual report (TPAR) requirements.
SPAAL will update members on the Taxable payment annual report (TPAR) requirements for security prior to the commencement on 1 July 2019.
The Fair Work Commission has made a determination to vary the Security Services Industry Award 2010 to give effect to a decision inserting a “Casual Conversion Clause into the Award.
The new provision comes into effect from 1 October 2018.
The Fair Work Commission have updated all industry and occupation awards to include a new clause about family and domestic violence. This new clause applies from the first full pay period on or after 1 August 2018.
Who does it apply to?
The new entitlement applies to all employees covered by an industry or occupation award.
It doesn't apply to employees who are:
- covered by Enterprise awards
- covered by State reference public sector awards
- covered by enterprise and other registered agreements
- award and agreement free.
What's the new entitlement?
Employees covered by an award with the new clause are entitled to 5 days of unpaid family and domestic violence leave each year. Family and domestic violence means violent, threatening or other abusive behaviour by an employee's family member that:
- seeks to coerce or control the employee
- causes them harm or fear.
Employees can take the leave if they need to deal with the impact of family and domestic violence and it's impractical to do so outside their ordinary hours of work.
Where can I find more information?
Go to our Family and domestic violence leave section for information about the new clause, including details about:
- who it does and doesn't apply to
- when and how the leave can be taken
- notice and evidence requirements.
The Australia-New Zealand Counter-Terrorism Committee has developed a set of guidelines for Government and business to help protect Australians from firearm attacks in places of mass gathering.