News

The Fair Work Commission has recently decided a dispute brought by the Victorian Ambulance Union Incorporated (VAU) on behalf of one of its members. The dispute related to the entitlement to “primary caregiver” paid parental leave, and whether this could be accessed by an employee who applied to take leave six months after the birth of their child.

Unfortunately, the Commission found in AV’s favour, determining that the employee could not take primary caregiver leave at that time.

The dispute

The Enterprise Agreement provides for two types of paid parental leave: 14 weeks for the “primary caregiver” and 2 weeks for the “secondary caregiver”. The Agreement states that:

“Primary caregiver means the person who takes primary responsibility for the care of a newborn or newly adopted child. The primary caregiver is the person who meets the child’s newborn or newly adopted child. The primary caregiver is the person who meets the child’s physical needs more than anyone else. Only one person can be a child’s primary caregiver.”

Our member applied to commence primary caregiver leave when his child would be around six months old, as his partner would be returning to work and he would take over full-time care for their child.

AV refused his application for leave. The VAU assisted him to bring a dispute about their refusal, which was not resolved and ended up in the Commission. The dispute turned on two issues:

• Whether he was not entitled to the leave because his child would not be a “newborn” at that time
• Whether he was not entitled to be a “primary caregiver” because his wife had been the primary caregiver for the child at an earlier time.

The VAU argued that, taking into account the context of the Agreement and the use of similar language in the government’s Paid Parental Leave scheme, the entitlement to primary caregiver leave should be available to an employee whose child is six months old. Additionally, there should be no barrier to taking primary caregiver leave because, at an earlier date, the other parent was the primary caregiver for the child.

The Commission’s decision

The Commission accepted AV’s argument that he was not entitled to take primary caregiver at that time, because his child would not be a “newborn”. Although the Commission did not determine what was the exact age at which a child is no longer a “newborn”, they stated that it cannot mean a child who is 6 months old. On that basis, our member would not be a “primary caregiver” as defined and could not access the greater leave entitlement.

The Commission did accept the VAU’s argument in relation to the second issue in dispute. They found that the status of primary caregiver can change according to which parent takes on that role. Therefore, in some circumstances it may be possible that an employee who is initially the “secondary caregiver” will be entitled to primary caregiver leave at a later date if, for example, their spouse cannot fill that role or returns to work – provided that at that time, the child is still considered a “newborn”.

Next steps

The VAU is considering its options to appeal the Commission’s decision.

The Commission’s decision can be accessed here.