misleading and deceptive

During negotiations with potential employees, employers should exercise significant caution in making representations as to the future economic performance of the employer and its impact upon the remuneration payable to the employee in their employment.

Such pre-employment negotiations are likely to be held by Australian courts to be conduct “in trade or commerce” for the purpose of claims by the employee under the misleading and deceptive conduct provisions of the Australian Consumer Law (ACL).

This means that employees seeking to bring misleading and deceptive conduct claims in relation to pre-employment representations are not necessarily restricted to bringing such claims under the provisions of section 31 of the ACL (dealing with misleading conduct relating to an offer of employment), but may also bring claims under the more general prohibition on misleading or deceptive conduct undertaken in trade or commerce under section 18 of the ACL.