Article by Denise Gallagher
The Fair Work Commission has delivered a decision that could change how parental leave is construed across Australia. A bus operator employed by Metro Tasmania, has successfully secured his right to paid parental leave. This is a significant win for parents who have to step up into the role of primary carers.
In February 2024, the employee made two separate applications to Metro Tasmania for paid parental leave in accordance with the terms of his enterprise agreement. The employee sought parental leave as he was the primary carer of his newborn son, after the mother faced medical complications post birth.
The first application was submitted on 15 February 2024, which sought parental leave from 3 March 2024 to 17 March 2024. The application was supported by medical evidence stating he is the primary carer for both his wife and his child.
The first application was refused by Metro Tasmania on the basis that he did not qualify for parental leave.
Following the initial application, the employee made a second application to Metro Tasmania on 1 March 2024. This application sought eight (8) weeks parental leave, which he later amended to cover the period from 8 February 2024 to 4 April 2024 inclusive. This application was also support by medical evidence from his wife’s doctor opining that his wife could not look after his child post C-section.
The second application was also refused. With the support of the employee’s union, the Australian Rail, Tram and Bus Industry Union (ARTBIU), an application was made to the Fair Work Commission.
The Fair Work Commission’s Decision
The Fair Work Commission ruled in favour of the employee. The Deputy President made a finding that the employee was entitled to paid parental leave in accordance with the enterprise agreement. It found that the employee was the primary carer of his newborn child while his wife recovered from the C-section and subsequent complications.
The Deputy President rejected the employer’s position that the employee did not meet the eligibility requirements of the enterprise agreement being:
- the employee did not provide appropriate notice of the application;
- the employee could not be the primary carer of the child at the same time as his wife; and
- there was not an intention that the employee be the primary carer.
The Deputy President made findings that the above factors were not eligibility requirements of the parental leave clause in the enterprise agreement.
Thus, Metro Tasmania was ordered to pay the employee eight (8) weeks of back dated paid parental leave.
Metro Tasmania appealed the above decision. Metro Tasmania asserted that the employee and his wife could not both be considered primary carers. The Full Bench refused Metro Tasmania’s application for permission to appeal.
The definition of “Primary Carer”
The parental leave clause in the enterprise agreement stated:
- In addition to unpaid parental leave a Bus Operator is entitled to 8 weeks paid parental leave (or 16 weeks at half pay) if the Bus Operator:
- meets the same eligibility entitlements as required by unpaid parental leave;
- will be the primary carer for the child; and
- takes the paid parental leave at the time of the birth or adoption of the child (or other time if agreed by Metro).
- The Paid Parental Leave under clause 34(a) is separate to the Federal Government’s Paid Parental Leave scheme.
Taking into consideration the way in which the above clause was constructed, the Fair Work Commission made the following findings in rejecting all of Metro Tasmania’s grounds of appeal:
The plain meaning of the term ‘primary’ is ‘principal’ or ‘main’. ‘Primary’ does not mean ‘only’. In the context of caring for a baby, to be a primary carer does not require the person providing care to be the sole carer, and nor does a primary carer cease to be so because assistance with caregiving is provided by a spouse or partner. The primary carer in the context of a child, is the person who principally provides care, or has overall responsibility for the provision of care, rather than a person who solely provides or is responsible for the provision of care. The Deputy President did not posit a definition of primary carer but simply observed that the phrase was not defined in the 2020 Agreement and gave it an ordinary meaning. [1]
Implications for Employers and Employees
- Employers must have a close look at the construction of the parental leave clauses in enterprise agreements.
- Enterprise agreements should clearly define “primary carer” to avoid any disputes.
- Unions and employees can challenge rejections of leave entitlements at the Fair Work Commission when agreements conflict with the reality of actual caregiving.
- Non-birth parents can declare primary carer status even when the other parent holds coinciding leave entitlements.
A link to the Fair Work Commission’s Decision is undernoted:
[1] Metro Tasmania Pty Ltd v Australian Rail, Tram and Bus Industry Unition [2025] FWCFB 124 at [40].