Business Know How

Whitham 2026: What Counts as Workplace Bullying Under the Fair Work Act (and What Doesn’t)

Melissa Bush explains a 2026 Fair Work Commission decision in Whitham, where an employee alleged bullying based on confusing training, dress code enforcement, questions about illness, being contacted while sick, negative work remarks, inadequate home internet, and a request to consent to contacting his doctor. The deputy president dismissed the application ex tempore in a two-paragraph decision, finding none of the conduct unreasonable, no risk to health and safety, and noting the Commission cannot order compensation. The episode outlines the Fair Work Act’s three-part bullying definition (repeated, unreasonable conduct creating a health and safety risk) and the exclusion for reasonable management action carried out reasonably, emphasizing the regime is designed only for stop-bullying orders in ongoing employment relationships. It also notes NSW’s enforceable psychosocial hazards Code of Practice from 1 July 2026 and distinguishes WHS psychosocial duties from Fair Work bullying claims.

00:00 Bullying Claim List

00:50 Why Bullying Matters

01:35 Show Intro Disclaimer

02:44 Stop Bullying Regime Basics

03:23 Legal Definition Test

04:32 Reasonable Management Action

05:46 Commission Powers Limits

06:49 Whitham Case Facts

07:54 Two-Paragraph Decision

08:45 Why Each Allegation Failed

11:15 Employer Takeaways Checklist

12:27 NSW Psychosocial Duties

14:24 Wrap-Up Resources

Application by Gary Whitham [2026] FWC 3322:  fwc.gov.au/document-view/decisions/application-by-mr-gary-whitham-2026-fwc-3322

Fair Work Act 2009, s.789FD (definition of bullying):  https://classic.austlii.edu.au/au/legis/cth/consol_act/fwa2009114/s789fd.html

Fair Work Act 2009, s.789FG (reasonable management action carve-out):  https://classic.austlii.edu.au/au/legis/cth/consol_act/fwa2009114/s789fg.html

Fair Work Commission — anti-bullying guidance:  fwc.gov.au/apply-or-lodge/forms-and-documents/online-guides/anti-bullying

SafeWork NSW — psychosocial hazards code of practice:  safework.nsw.gov.au

You Can’t Sue a Shopfront Sign: Lessons from Wang v Loh on Naming the Right Defendant

The episode explains that NSW court proceedings must be brought against legal persons (individuals or companies), not trading names, under UCPR 7.19, with unregistered business names usable only temporarily under rules 7.20 and 7.22 while the plaintiff must identify and amend to the real defendant; service can be effected on an unregistered business name under rule 10.9. Using Wang v Loh (NSW District Court, 2025), it shows how plaintiffs suing “Tofu King” over alleged trespass and nuisance from exhaust ducting faced months of searches, subpoenas, and disputes to identify the proper defendants: the lessee Mr Ting Ting Wu and Ozlong Enterprises Pty Ltd, which owned the business and trademark. The court upheld service, allowed substitution and amendment despite breach of rule 7.22, and highlights lessons on identifying the correct party early, pleading properly, serving strictly, and understanding business structures and liability.

00:00 Suing a Shopfront Name

01:36 Podcast Welcome Disclaimer

02:41 Legal Persons Rule

03:48 Business Names and Service

05:05 Wang v Loh Facts

07:01 Finding the Real Defendant

08:15 Service Dispute in Court

09:36 Judge Answers Three Questions

13:34 Key Lessons for Disputes

18:02 Final Takeaways and Links

Wang v Lo [2025] NSWDC 413:  www.austlii.edu.au/cgi-bin/viewdoc/au/cases/nsw/NSWDC/2025/413.html

Uniform Civil Procedure Rules 2005 (NSW), rr.7.19–22:  https://www.austlii.edu.au/cgi-bin/viewdb/au/legis/nsw/consol_reg/ucpr2005305/

Civil Procedure Act 2005 (NSW), s.14:  https://www.austlii.edu.au/cgi-bin/viewdb/au/legis/nsw/consol_act/cpa2005167/

ASIC business name and company search:  https://connectonline.asic.gov.au/RegistrySearch/faces/landing/bn/SearchBnRegisters.jspx?_adf.ctrl-state=17suze8s17_18

When a client list goes walking This episode recounts the 2026 NSW Supreme Court decision Body Sculpting Clinics v Palmer, where clinic manager and part-shareholder Ms Palmer resigned, emailed herself nearly 4,000 client and lead records from the clinic’s Mindbody system, and then worked at a nearby competing business, Defined Aesthetics, alongside former staff, with evidence including emails, forwarded scripts and sales data, and a text describing a “sneaky little marketing tactic.” Host Melissa Bush explains Australian restraints of trade are presumed void unless reasonably necessary to protect legitimate interests, and outlines interlocutory injunction requirements, including the usual undertaking as to damages. The court granted injunctions restraining use of the confidential leads list, client and staff solicitation, and a five-kilometre non-compete, but refused a 15-kilometre restraint due to inconsistency with a five-kilometre franchise deed, delay in suing, potential harm to the new business, and the employer’s weak capacity to meet damages (declining profits and $166,000 tax debt). 00:00 Manager Turns Rival 01:28 Podcast Intro Disclaimer 02:35 Restraint Basics 04:09 Injunctions Explained 05:10 Case Facts Timeline 08:04 Orders Granted 10:29 Why 15km Failed 13:55 Eight Key Lessons 17:12 Final Takeaway Outro Read the case here 

Hoang v Hungry Jack’s: How One Word in a Lease Decided $83,000 a Year The episode explains the 2026 Supreme Court of New South Wales case Hoang v Hungry Jack’s, a dispute over an $83,000 annual rent gap caused by differing interpretations of how market rent should be assessed under a registered commercial lease for a Hungry Jack’s drive-through in Taree. Hungry Jack’s argued the valuer should assess only bare land because it built the restaurant, claiming “premises” meant land only, the building was not a fixture or was a lessee’s fixture, and alternatively that charging rent on the building was unconscionable under the ACL. Justice Pike rejected all arguments, holding the lease defined “premises” to include the building, the restaurant was a fixture owned by the landlord, it was not removable as a lessee’s fixture, and the earlier 2004 agreement for lease was excluded by the registered lease and entire agreement clause. The episode draws seven lessons on definitions, rent review drafting, ownership of improvements, registered documents, entire agreement clauses, due diligence, and getting terms right at the start.

00:00 The $83K Dispute

01:21 Podcast Intro Disclaimer

02:27 Deal Setup 2004 Lease

03:21 New Owner Rent Review

05:12 Hungry Jack's Three Arguments

08:06 Court Rejects Arguments

12:13 Seven Lessons Breakdown

17:55 Final Takeaways Outro

Hoang v Hungry Jack’s Pty Ltd [2026] NSWSC 775: 

www.austlii.edu.au/cgi-bin/viewdoc/au/cases/nsw/NSWSC/2026/775.html

Australia Trademark Non-Use Removal: Use It or Lose It (Trade Marks Act s92)

The episode explains that Australian trademark registration is conditional on genuine use and can be removed under the “use it or lose it” principle via a non-use removal application to IP Australia under s92 of the Trade Marks Act 1995. Any person can apply, three years after the filing date, and the decision assesses use in Australia during a three-year lookback window; even a single genuine use can be enough, but token or overseas use does not count, and the application can target all or some goods/services. Two grounds are covered: s92(4A) lack of genuine intention to use at filing, and s92(4B) actual non-use in the relevant period, with owners needing evidence to rebut non-use. Recent 2025 cases (Whiplash/Whiplash’d and Butterful & Creamorous) show removal can’t be limited by state, use anywhere in Australia can defeat removal, and the intention-to-use evidentiary bar is low, making s92(4B) more practical. The host advises documenting Australian use, ensuring authorized user arrangements are recorded, and targeting removal applications carefully by class. 00:00 Trademark Not Set-and-Forget

01:23 Podcast Intro and Disclaimer

02:30 Use It or Lose It Basics

03:37 Timing and Use Requirements

05:02 Two Grounds Under Section 92

06:18 Whiplash Case Lessons

10:24 Butterful Case on Intention

13:48 What Counts as Genuine Use

16:31 Protect Your Mark With Evidence

18:18 Challenging a Competitor Strategically

19:51 Key Takeaways and Wrap-Up

https://ipfirstresponse.ipaustralia.gov.au/options/trade-mark-non-use

Intestacy and Your Business: What Happens If You Die Without a Will in NSW

Melissa Bush explains how dying without a valid will in New South Wales triggers the Succession Act 2006 intestacy formula (spouse/de facto, then children, parents, siblings, and potentially bona vacantia), which ignores business continuity. She outlines how a surviving spouse may receive personal effects plus a CPI-indexed statutory legacy (noted as $615,054.96 as at 13 July 2026), with the remainder split with children from a prior relationship, creating pressure to sell business assets within 12 months to avoid interest. She details impacts by structure: sole trader operations can freeze until letters of administration; company shares pass to relatives, risking disputes without a shareholders’ agreement; partnerships may dissolve on death under the Partnership Act 1892 unless agreed otherwise. A checklist covers making a business-aware will, enduring power of attorney, shareholder/partnership agreements with buy-sell and insurance, and reviewing personal licences.

00:00 What Happens Without a Will

01:23 Meet Your Host

02:30 Intestacy Rules Explained

03:26 Spouse and Children Split

05:38 Business Meets Statutory Legacy

06:51 Sole Trader Shutdown Risk

08:30 Company Shares After Death

10:02 Partnerships Can Dissolve

10:53 Letters of Administration Delay

12:43 Succession Planning Checklist

15:20 Final Takeaways and Wrap

Flexible Work Requests Under Australia’s Fair Work Act: Lessons from Talaugon v Alight (2025)

Melissa Bush explains how flexible work requests under s65 of the Fair Work Act became a tightly regulated process after mid‑2023 reforms, requiring genuine discussion, attempts to reach alternatives, consideration of refusal consequences, and a detailed written response within 21 days, with disputes now able to go to the Fair Work Commission. She reviews the Federal Court case Talaugon v Alight (2025), where a contracts officer and primary carer sought a split-shift, largely work-from-home arrangement; the employer engaged through a formal policy, ultimately refused the proposal on efficiency/productivity and customer service grounds, offered an alternative that was accepted, and later terminated employment amid documented performance concerns. The Court dismissed claims about flexible work, carer’s leave, and adverse action, highlighting consistent treatment of other carers, service-length limits, correct NES carer’s leave scope, and the importance of contemporaneous performance documentation.

00:00 Flexible Work Requests Rise

01:14 Podcast Welcome Disclaimer

02:20 Who Can Request Flexibility

03:36 New Employer Process Rules

05:42 Talaugon v Alight Story

08:32 Court Findings Explained

11:18 Six-Step Employer Checklist

15:09 Wrap Up Resources Next Steps

https://www.businessknowhow.com.au/blog/flexibleworking_0526

https://www.fairwork.gov.au/employment-conditions/flexibility-in-the-workplace/flexible-working-arra...

Consumer Guarantees vs Warranties: Refund Policies, ACCC Enforcement, and What’s Changing in the ACL

Melissa Bush explains Australian Consumer Law consumer guarantees and how they differ from voluntary warranties, stressing guarantees apply automatically, can’t be excluded, and may outlast warranty periods. She outlines key guarantees for goods and services, who qualifies as a "consumer", and how remedies depend on minor versus major failures, including compensation for consequential loss. Using Mazda Australia’s $11.5 million penalty for wrongly insisting repairs were the only remedy, she highlights the risk of misleading representations. She lists ACCC-targeted statements found in a sweep of 2,000 retail websites (e.g., “no refunds", strict return windows, “final sale", “no returns on opened items", “out of warranty", or shifting responsibility to manufacturers), citing Koala Living penalties and proceedings against Mosaic Brands. She flags proposed ACL reforms to penalise simply refusing required remedies and provides a compliance checklist for policies, terms, signage, and staff training.

00:00 No Refunds Can Be Illegal

01:19 Show Intro and Disclaimer

02:26 Consumer Guarantees Explained

05:10 Guarantees vs Warranties

06:48 Major vs Minor Failures

08:21 Mazda Case Lessons

09:56 ACCC Targets Bad Policies

13:54 Law Reform on Enforcement

16:19 Compliance Checklist

18:23 Wrap Up and Resources

Anti-Competitive Conduct: Cartels, Competitors and the Five Rules for Small Business

Host Melissa Bush explains how Australian competition law under the Competition and Consumer Act 2010 applies to businesses and individuals of every size, with no small business exemption, and warns how informal chats with competitors can create criminal cartel risk. She outlines the four illegal cartel types – price fixing, output restrictions, market allocation, and bid rigging and highlights severe civil and criminal penalties, including up to $100 million per contravention for corporations and up to 10 years’ prison for individuals, citing ACCC enforcement examples (QTech, Bingo Industries/Aussie Skips, crane hire WhatsApp chats, and fresh produce suppliers). She stresses no written contract is needed; an “understanding” and later parallel conduct may suffice, and ACCC can compel messages and documents. She distinguishes lawful industry discussion from prohibited topics and gives five rules: never discuss prices or customers/territories/bids, clearly object and leave if those arise, assume communications are discoverable, and seek legal advice promptly, including considering ACCC immunity.

00:00 Cocktail Chat Trap

00:57 Episode Purpose and Host

02:53 Cartel Conduct Basics

04:50 Penalties and Real Cases

06:33 How Cartels Really Start

08:32 Informal Agreements Count

10:28 What You Can Discuss

12:04 What You Cannot Discuss

13:40 Five Rules to Follow

15:49 Summary and Next Steps

https://www.accc.gov.au/business/competition-and-exemptions/cartels

https://www.accc.gov.au/business/competition-and-exemptions/associations-and-professional-services/i...

Mediation for Australian Businesses: Resolving Disputes Early, Especially in Family Partnerships

Melissa Bush explains mediation as a structured, facilitated process where an independent mediator helps parties communicate, explore underlying interests, and negotiate their own agreement, unlike arbitration or judge-imposed outcomes and deeper than lawyer-to-lawyer negotiation. She outlines how Australian courts treat ADR seriously, including NSW obligations under the Civil Procedure Act 2005 and Federal Court referrals, with potential cost consequences for refusing to engage; mediation offers cost, time, control, and confidentiality advantages, and many matters resolve at mediation. The episode focuses on using mediation proactively to address partnership tensions before they escalate into litigation, and highlights added complexity in family business disputes where emotional and historical dynamics sit beneath commercial issues. Bush discusses choosing an appropriate mediator, preparing emotionally as well as legally, using dispute resolution clauses and family constitutions, and notes mediation’s limits regarding unwilling participants and safety concerns.

00:00 Why Disputes Escalate

00:41 Mediation Before Lawyers

01:39 Podcast Intro and Disclaimer

02:46 Episode Roadmap

04:00 What Mediation Really Is

05:04 Mediation vs Arbitration

05:43 Mediation vs Negotiation

06:39 Mediation in Litigation

06:42 Why Courts Push ADR

08:22 Benefits Cost Time Control

09:26 Proactive Partnership Mediation

12:38 When Partners Are Family

13:22 Family Dynamics Underneath

14:47 Choosing the Right Mediator

15:41 Preparing for Family Mediation

16:47 Dispute Clauses and Governance

17:36 Limits of Mediation

19:01 Wrap Up and Next Steps

20:47 How to Get Help

22:07 Final Takeaway

Melissa Bush, Mediator - https://www.melissabush.com.au/

Resolution Institute - resolution.institute