Although individual applications for personal leave might satisfy the terms of the applicable industrial agreement such that payment would otherwise be due, the characterisation of such absences as part of a coordinated collective campaign can constitute unprotected industrial action despite the individual claims satisfying contractual requirements.

Covert industrial action involving a collective personal leave campaign, where an extraordinary number of individuals make claims for personal leave on the same day in a coordinated manner, satisfies the definition of industrial action under s.19 of the Fair Work Act 2009.

Where unprotected industrial action is found to have occurred, the employer is prohibited from making payment in respect of the absence, even though the individual applications for personal leave would otherwise satisfy the industrial agreement terms; the personal leave balance shall be debited instead.

Where a union advises its members not to comply with a lawful direction from the employer, this is properly regarded as advising a ban in relation to that direction, regardless of the distinction drawn between 'imposing' a ban and 'merely advising' members to avoid participation.

A refusal to perform work or to perform work in the usual manner constitutes industrial action within s.19 of the Fair Work Act, regardless of whether the action is directed at the employer or at a third party, and regardless of whether the actor seeks a concession from the employer.

The Note to s.19 of the Fair Work Act tends to overstate the Full Bench decision it purports to summarise; the Full Bench only stated that conduct standing 'completely outside the area of disputation and bargaining' might fall outside the definition, without specifying how far this qualification extends, and did not establish a requirement that concessions be sought from the employer.

For industrial action to exist under s.19, there must be disputation in the normal sense and an attempt to force a concession from some party; the dispute must be related to conditions of employment or the workplace, but need not be directed against the employer.

An employee's refusal or failure to work is not industrial action under s19(2)(c) if: (i) the action was based on a reasonable concern about an imminent risk to health or safety; and (ii) the employee did not unreasonably fail to comply with a direction to perform other available work that was safe and appropriate.

Where industrial action is not protected, the employer may deduct payment: if total duration is at least 4 hours, the employer need not pay for the total duration of that day's industrial action; otherwise, the employer need not pay for 4 hours of that day.

An action will only be 'industrially-motivated' for the purposes of the BCII Act if its goal or object is one or more of the purposes specified in s36 definition (supporting/advancing claims, advancing industrial objectives, or disrupting performance of work).

The purpose by which an action was motivated cannot ordinarily be identified by simply looking at the result or outcome of the action taken; one must consider closely the evidence concerning the action to determine its purpose.

The consequences or results of an action may be relevant to determining the purpose by which it was motivated but a court cannot impute a purpose by simply regarding the result or consequences and reformulating it as the purpose of the action.