Misleading job and business opportunity advertisements cause job seekers a great deal of hardship and difficulty. Even worse, some scams are dressed up as job opportunities and can actually cost job seekers money. Young people and people whose native language is not English are especially at risk. Misleading job and business opportunity advertisements carry heavy penalties under the Australian Consumer Law (ACL), which is contained in a schedule to the Competition and Consumer Act 2010, ranging up to $1.1 million for the most serious breaches. The ACCC does not hesitate to take action when businesses are taking advantage of job seekers, particularly when those affected are vulnerable or disadvantaged.
Why job ads should be accurate
Job seekers are entitled to accurate information about employment opportunities. There are a number of ways that advertisements can mislead. Information about remuneration, the work involved, work conditions, future prospects and expected financial returns can all be presented in misleading ways. Advertisers who overstate remuneration or other important aspects—or who mislead by omission—risk prosecution and heavy penalties under the ACL.
Things to check
The basic rule to follow is don't mislead; make sure that your advertisement is truthful, and does not misrepresent any aspect of the available position or opportunity. Outlined below are some questions you can ask yourself when placing an employment opportunity advertisement.
Is your advertisement under the right heading?
Employment advertising sections are broken up into various categories. It is misleading to place an advertisement under the wrong heading—e.g. under ‘Employment’ when you are really offering a ‘business opportunity’.
How much are you paying?
Are you conveying an accurate impression of the amount and method of remuneration? Misleading job seekers about potential remuneration is a particularly serious breach of the ACL.
If you are advertising under ‘Employment’ or ‘Commission-only sales’ you should state one of the following:
the actual salary to be paid (e.g. $35 000 p.a. or $400 pw + o/t)
that the income is to be negotiated
that payment is on a commission-only basis
that payment is on a piece-rate basis (e.g. $28 per 1000 leaflets) or
whatever details the readers need to assess the likely income.
If you are placing advertisements under ‘Self-employment/Business opportunities’, you should clearly state the realistically expected return of the venture and be able to provide proof of the figures you quote.
What is the product to be sold or nature of the business opportunity?
If you are advertising a sales position or offering a business opportunity, state the nature of the product or business in the advertisement. The applicant is entitled to accurate information before responding.
Will it cost anything?
When there is a charge for a product or service associated with the ‘job’ it is recommended that this be mentioned in the advertisement to avoid misleading job seekers. If there is a chance that the applicant will not receive employment following the training, it is also important that this be clearly stated. Prospective job seekers should not be forced to call a premium rate number (1900 or 0055) to investigate potential vacancies.
What does the law say?
Misleading job and business opportunity advertisements can constitute a civil or criminal offence under the ACL.
Section 18 of the ACL contains wide-ranging prohibitions against misleading or deceptive conduct. For this section to apply, it is not necessary to prove that anyone has been misled; rather, it is the impression created in the minds of the audience that is relevant regardless of the intended message. Silence can be just as misleading as overt statements.
Section 31 of the ACL specifically prohibits a company from doing anything likely to mislead people about the availability, nature, terms or conditions of employment. This is the primary section of the ACL which outlaws misleading or deceptive advertisements relating to employment. It also has a criminal counterpart, under s. 153 of the ACL which carries steep penalties.
Section 37 of the ACL prohibits false or misleading representations about the profitability or viability of home-operated businesses. It is particularly relevant to ‘get rich quick’ and ‘work from home’ schemes sometimes advertised in newspapers and magazines. This section has also been applied in cases involving franchise arrangements. As with s. 31, this provision also has a criminal counterpart under s. 159 of the ACL.
Section 21 of the ACL prohibits businesses from engaging in ‘unconscionable conduct’ when dealing with consumers. Unconscionable conduct refers to a range of behaviour that may be considered harsh or oppressive. The aim of this section is to prevent businesses from taking advantage of a vulnerable or disadvantaged party. Advertisers should take particular care when dealing with young or inexperienced job seekers, or those with a limited grasp of the English language.
In some circumstances, publishers of misleading advertisements might themselves be at risk of breaching the ACL. By publishing misleading information, publishers can be seen to be adopting or endorsing it.
Where can I find further information?
The ACCC's Misleading job and business opportunity ads: how to handle them is a guide for publishers and businesses regarding the effects of the ACL on your job advertisements. For a free copy, call the ACCC Infocentre on 1300 302 502 or download an electronic version from our website.
