Father entitled to Paid Parental Leave while wife recovered from caesarean section

A public transport employee was entitled to eight weeks Paid Parental Leave as carer for his son while his wife recovered from giving birth by caesarean section, the Fair Work Commission (FWC) has ruled.

Facts of case

The employee was a bus driver. To give birth, his wife required an emergency caesarean section. Initially, he took unpaid leave followed by annual leave at and after the date of birth. He then provided a medical certificate from his wife stating she would need time to recover and applied for eight weeks’ Paid Parental Leave (PPL) as the primary carer for their son. The medical certificate specified that he was the primary carer. The employer rejected his application, claiming that:

• He did not provide appropriate notice (he submitted it three weeks after the birth). Under the National Employment Standards, required notice for unpaid parental leave is usually 10 weeks in advance. Therefore, the employer claimed that the notice was invalid because it was retrospective.
• There was no “intention” for him to be the primary carer and he did not provide sufficient evidence that it would be the case. Nor could he fulfil that role at the same time as his wife.
• Any application for PPL must be “based on what the plans are for the relevant couple at the time”.
• In a previous case, another employer was not required to provide PPL to fathers whose partners were recovering from giving birth by caesarean section.

His union claimed that the employer’s real reason was to discourage similar claims from other fathers.

What the enterprise agreement said

The enterprise agreement covering the employee had no provision that employees taking paid PPL also needed to apply for and “intend taking” unpaid parental leave under the National Employment Standards. The relevant clause in the agreement had no express provision that an employee had to provide evidence to support an application for PPL, which sidelined the employer’s “retrospective” argument – more so, because its provisions covering other types of leave (eg compassionate, jury service) did require evidence from employees.

The employee in this case was not required to prove that his wife was incapable of providing care for their child. The reason for the father being the primary carer was immaterial. Entitlement rested instead on the intention of the parent to be the primary carer, but in any case the medical certificate his wife provided was acceptable evidence.

Decision

The FWC rejected the employer’s arguments and granted the employee eight weeks’ PPL.

Referring to the previous case (above), the FWC said that its circumstances were different, due to the wording of that employer’s policy covering parental leave, which required applicants to provide supporting evidence that the mother could not provide primary care. It noted that the same case had said that, if a doctor provided evidence that a mother was unable to be the primary carer, that was sufficient for her partner to be able to claim PPL as the primary carer – which was the same situation that arose in this latter case.

What this means for employers

This case was decided on the wording of the relevant enterprise agreement.

Other than that, the decision supports the principle that “what actually happens” determines who is the primary carer for the child. A mother may be capable of providing some of the care for the baby, but if it is the father that has to take the dominant role, he becomes the primary carer and is entitled to PPL where eligible. This is the case regardless of what the couple’s intentions re caring were before any “unplanned” circumstances arose.

Read the judgment

Australian Rail, Tram and Bus Industry Union v Metro Tasmania Pty Ltd [2024] FWC 1873 (17 July 2024)