See Fair Work Act s.789FD(2)
Behaviour will not be considered bullying if it is reasonable management action carried out in a reasonable manner. Section
This qualification is comprised of three elements:
The following are examples of what may constitute management action:
An informal, spontaneous conversation between a manager and a worker may not be considered management action, even if issues such as those listed above are raised.
The term ‘management action’ has been extensively considered in the context of workers’ compensation laws. Recent workers’ compensation cases suggest that, to be considered management action, the action must be more than simply day-to-day operational instructions that are part and parcel of the work performed.
The words used in s.789FD(2) however are less qualified: they exclude ‘reasonable management action carried out in a reasonable manner’. Unlike some workers’ compensation exclusions they do not refer to prescribed actions taken ‘in respect of the employee’s employment’ etc. or prescribe any list of ‘management’ or ‘administrative’ action. The Explanatory Memorandum suggests that the term may be required to be given a wider meaning under s.789FD(2):
112. Persons conducting a business or undertaking have rights and obligations to take appropriate management action and make appropriate management decisions. They need to be able to make necessary decisions to respond to poor performance or if necessary take disciplinary action and also effectively direct and control the way work is carried out. For example, it is reasonable for employers to allocate work and for managers and supervisors to give fair and constructive feedback on a worker's performance. These actions are not considered to be bullying if they are carried out in a reasonable manner that takes into account the circumstances of the case and do not leave the individual feeling (for example) victimised or humiliated.
This suggests that the legislature intended everyday actions to ‘effectively direct and control the way work is carried out’ to be covered by the term 'management action'.
Determining whether management action is reasonable requires an objective assessment of the action in the context of the circumstances and knowledge of those involved at the time, including:
The test is whether the management action was reasonable, not whether it could have been undertaken in a manner that was ‘more reasonable’ or ‘more acceptable’. In general:
For the exemption in s.789FD(2) to apply, the management action must be carried out in a ‘reasonable manner’.
As above, what is ‘reasonable’ is a question of fact and the test is an objective one.
Whether the management action was taken in a reasonable manner will depend on the action, the facts and circumstances giving rise to the requirement for action, the way in which the action impacts upon the worker and the circumstances in which the action was implemented and any other relevant matters.
This may include consideration of, for example:
However the impact on the employee cannot by itself establish whether or not the management action was carried out in a reasonable manner, and some degree of humiliation may often be the consequence of a manager exercising his or her legitimate authority at work.
An employee must be able to demonstrate that the decision to take management action lacked any evident and intelligible justification such that it would be considered by a reasonable person to be unreasonable in all the circumstances.
 Fair Work Act s.789FD(2).
 Commonwealth Bank of Australia v Reeve  FCAFC 21 (8 March 2012), [(2012) 217 IR 335].
 Georges and Telstra Corporation Limited  AATA 731 (24 September 2009) at para. 23; Re Ms SB  FWC 2104 (Hampton C, 12 May 2014) at paras 49–51.
 Bropho v Human Rights & Equal Opportunity Commission  FCAFC 16 (6 February 2004) at para. 79, [(2004) 135 FCR 105]; Re Ms SB  FWC 2104 (Hampton C, 12 May 2014) at para. 51.
 Department of Education & Training v Sinclair  NSWCA 465 (20 December 2005); Re Ms SB  FWC 2104 (Hampton C, 12 May 2014) at para. 51.
 ibid.; Department of Education & Training v Sinclair  NSWCA 465 (20 December 2005).
 Keen v Workers Rehabilitation & Compensation Corporation  SASC 6519 (25 February 1998), [(1998) 71 SASR 42]; Re Ms SB  FWC 2104 (Hampton C, 12 May 2014) at para. 52.
 Georges and Telstra Corporation Limited  AATA 731 (24 September 2009) at para. 23.
 Amie Mac v Bank of Queensland Limited and Others  FWC 774 (Hatcher VP, 13 February 2015) at para. 102.