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