Australian Building and Construction Commissioner v Myles and Ors (No.2)

The Australian Building and Construction Commissioner (ABCC) brought proceedings against Myles and Ors in the Federal Court of Australia, seeking pecuniary penalties for alleged contraventions of the *Building and Construction Industry Improvement Act 2005* (Cth) (BCII Act). The dispute concerned allegations that the respondents engaged in unprotected industrial action by refusing to work on a particular day.

The primary legal issue before the Court was whether the respondents had contravened section 45 of the BCII Act by engaging in unprotected industrial action. This required the Court to determine whether the refusal to work constituted industrial action within the meaning of the Act and, if so, whether that action was unprotected.

Judge Jarrett found that the evidence established that the respondents had indeed engaged in industrial action by refusing to attend work on the specified day. Crucially, the Court determined that this action was unprotected because it had not been authorised by a valid industrial instrument or by the relevant industrial organisation in accordance with the provisions of the BCII Act. The Court applied the principles of statutory interpretation to the definition of industrial action and the requirements for it to be protected, finding that the respondents' conduct fell outside these protections.

The Court ordered that pecuniary penalties be imposed on the respondents for their contraventions of the BCII Act.