Misleading and deceptive conduct

Competition and Consumer Act 2010 (Cth)
Maurice Blackburn's employment lawyers regularly provide advice to clients about misleading and deceptive conduct. This includes employees' rights under the Competition and Consumer Act 2010 (Cth) and entitlements to bring a claim against employers for misleading and deceptive conduct.
The Act provides protection for prospective employees including executives against misleading and deceptive conduct.
Misleading and deceptive conduct
Conduct that is misleading or deceptive, or is likely to mislead or deceive, is prohibited under Section 18 of the Competition and Consumer Act 2010. The misleading and deceptive conduct provisions make it unlawful for a prospective employer or recruitment agent to make false or misleading representations to a prospective employee about:
• the availability, nature or terms and conditions of employment, or any other matter relating to the employment, or
• a company's financial status, including profitability and risk, or other material aspect of any business activity of the company that proposes to engage the prospective employee.
These provisions are particularly relevant in today's competitive labour market where employers provide incentives to attract the best employees, but may not always honour their promises. They can also relate to circumstances where an employer recruits an employee with assurances regarding the financial status and viability of the business, which may then turn out to be untrue.
Cases where employees have made a claim under the misleading and deceptive conduct provisions include Morton v Interpro Australia Pty Ltd & Anor [2009] FMCA 423 and Moss v Lowe Hunt & Partners [2010] FC 1181.
In Morton v Interpro Australia, Mr. Morton, a senior sales employee, successfully argued that his employer had engaged in misleading and deceptive conduct.  Mr. Morton alleged that the company made representations about its commission based bonus scheme during negotiations before he accepted the role with the company. He claimed that on the basis of these representations, he accepted the offer of employment and relocated from the United Kingdom to Australia to join the company. After commencing in the role, the company unilaterally removed the benefit to the commission based scheme.
The court held that the representation induced Mr. Morton to accept the role and move to Australia. In such circumstances, the representation was found to be conduct that was misleading and deceptive.
Moss v Lowe Hunt & Partners is another case of misleading and deceptive conduct. Mr. Moss was an advertising and research consultant who ran his own company. He worked on a consultancy basis for Lowe Hunt & Partners (Lowe Hunt). Rather than using Mr. Moss on a consultancy basis, Lowe Hunt wanted to employ Mr. Moss directly and tried to recruit him to the company.  In the course of courting him, Lowe Hunt made representations to Mr. Moss, including that that the company was a financially successful agency and was in a strong business position.
Mr. Moss relied on these representations and joined Lowe Hunt as an employee. The representations proved to be false and only 18 months after he commenced employment Mr. Moss was made redundant. The court held that Mr. Moss was induced to enter into the contract by the misleading conduct on behalf of Lowe Hunt and ordered damages to be paid to Mr. Moss for the losses he suffered.
Moss became an employee of Lowe Hunt after relying on these statements, but within 18 months his role was made redundant. The Federal court found Lowe Hunt's representations to be false and misleading. The Judge stated it was misleading or deceptive to describe a business as being successful when it did not have the continued support of its parent company.
Employees who have been misled or deceived about the terms and conditions of their employment, earnings or career progress may have a claim against their employers. For further information, contact our employment team on 1800 810 856 or send us a message through the 'contact us' section.

Competition and Consumer Act 2010 (Cth)

Maurice Blackburn's employment lawyers regularly provide advice to clients about misleading and deceptive conduct. This includes employees' rights under the Competition and Consumer Act 2010 (Cth) and entitlements to bring a claim against employers for misleading and deceptive conduct.

The Act provides protection for prospective employees including executives against misleading and deceptive conduct.

Misleading and deceptive conduct

Conduct that is misleading or deceptive, or is likely to mislead or deceive, is prohibited under Section 18 of the Competition and Consumer Act 2010. The misleading and deceptive conduct provisions make it unlawful for a prospective employer or recruitment agent to make false or misleading representations to a prospective employee about:

  • the availability, nature or terms and conditions of employment, or any other matter relating to the employment, or
  • a company's financial status, including profitability and risk, or other material aspect of any business activity of the company that proposes to engage the prospective employee.

These provisions are particularly relevant in today's competitive labour market where employers provide incentives to attract the best employees, but may not always honour their promises. They can also relate to circumstances where an employer recruits an employee with assurances regarding the financial status and viability of the business, which may then turn out to be untrue.

Cases where employees have made a claim under the misleading and deceptive conduct provisions include Morton v Interpro Australia Pty Ltd & Anor [2009] FMCA 423 and Moss v Lowe Hunt & Partners [2010] FC 1181.

In Morton v Interpro Australia, Mr Morton, a senior sales employee, successfully argued that his employer had engaged in misleading and deceptive conduct. Mr Morton alleged that the company made representations about its commission based bonus scheme during negotiations before he accepted the role with the company. He claimed that on the basis of these representations, he accepted the offer of employment and relocated from the United Kingdom to Australia to join the company. After commencing in the role, the company unilaterally removed the benefit to the commission based scheme.

The court held that the representation induced Mr. Morton to accept the role and move to Australia. In such circumstances, the representation was found to be conduct that was misleading and deceptive.

Moss v Lowe Hunt & Partners is another case of misleading and deceptive conduct. Mr Moss was an advertising and research consultant who ran his own company. He worked on a consultancy basis for Lowe Hunt & Partners (Lowe Hunt). Rather than using Mr Moss on a consultancy basis, Lowe Hunt wanted to employ Mr Moss directly and tried to recruit him to the company. In the course of courting him, Lowe Hunt made representations to Mr. Moss, including that that the company was a financially successful agency and was in a strong business position.

Mr Moss relied on these representations and joined Lowe Hunt as an employee. The representations proved to be false and only 18 months after he commenced employment Mr. Moss was made redundant. The court held that Mr. Moss was induced to enter into the contract by the misleading conduct on behalf of Lowe Hunt and ordered damages to be paid to Mr Moss for the losses he suffered.

Moss became an employee of Lowe Hunt after relying on these statements, but within 18 months his role was made redundant. The Federal court found Lowe Hunt's representations to be false and misleading. The Judge stated it was misleading or deceptive to describe a business as being successful when it did not have the continued support of its parent company.

Employees who have been misled or deceived about the terms and conditions of their employment, earnings or career progress may have a claim against their employers. For further information, contact our employment team on 1800 810 856 or send us a message through the contact us section.