Protected action under s170ML(2) is only attracted where: (1) the action has the genuine purpose of supporting or advancing claims the subject of a proposed agreement; and (2) the nature of the proposed agreement satisfies the requirements of s170LI. Industrial action in support of a claim for inclusion of a non-certifiable term is not protected action.

The fact that an agreement is in place prevents future employees from taking protected industrial action during its term is a consequence of the Fair Work Act's statutory scheme, not a ground for finding the original group was unfairly chosen. The same consequence attaches to any agreement (including greenfields agreements) approved before future employees are engaged.

The purpose of the notice requirement in s.414(6) is to give the employer the opportunity to respond to industrial action by making relevant preparations, including arrangements to deal with unavailability of labour and communications with customers, suppliers and other contractors.

Whether a notice adequately specifies the industrial action depends not only on the language used but also on the nature of the employer's undertaking, including its size, number of employees, number of locations, timing of the action, and the employees potentially taking the action.

A notice describing stoppages as 'indefinite' is not inherently incapable of complying with s.414(6), but whether it does comply depends on the context in which the expression appears and the surrounding circumstances.

A notice using the phrase 'an unlimited number of indefinite stoppages' fails to sufficiently specify the nature of the industrial action because the number, length and location of stoppages remain almost unlimited, providing inadequate particularity for an employer to make reasonable preparations.

The requirement to specify the nature of industrial action requires sufficient description to put the employer in a position to make reasonable preparations, and a notice that conceals more than it reveals about the action likely to occur does not meet this standard.

Whether a particular notice meets the requirements of s.414(6) depends upon the terms of the notice and the industrial context; each notice must be assessed having regard to all relevant considerations.

The purpose of the notice requirements for protected industrial action is to give the employer the opportunity to respond by making relevant preparations.

On a challenge to the Qantas decision concerning s.424, the Federal Court appeared to see no issue with reliance on response industrial action for which notice had been given; however, the distinction between s.424 (which expressly includes 'impending' action) and s.425 (which does not) is material.

Fair Work Australia must avoid an approach that would encourage a union to take industrial action for the purpose of keeping open the option to take protected action beyond the 30-day period, nor should it penalise a party that has acted constructively by not utilising its right to take industrial action.

Once protected industrial action is commenced, the form of action taken can continue beyond the 30-day period provided it is in line with the ballot-endorsed action, and there is a capacity for the 30-day period to be extended where Fair Work Australia determines to permit such upon application.