Court decision sets the stage for parental leave entitlements

The Fair Work Commission has made a decision that could set the tone for disputes between new parents and their employers.

The major decision in Metro Tasmania Pty Ltd v Australian Rail, Tram and Bus Industry Union has provided greater clarity to employees and encouraged their employers to rethink policies and enterprise agreements, Maddocks’ Meredith Kennedy said.

On an episode of The Lawyers Weekly Show, the BigLaw special counsel explained the 2024 Fair Work Commission decision in the first instance, and the recent appeal, provided a “broader definition” to the primary and secondary caregiver dichotomy.

This definition assisted bus driver Jitendra Maharjan, whose request for paid parental leave was denied because Metro Tasmania believed he did not meet eligibility requirements under the enterprise agreement. The transport company was particularly opposed to Maharjan being a primary carer at the same time as his wife.

In the 2024 decision, FWC deputy president Judge Val Gostencnik defined primary carer as a person who has “day-to-day responsibility”.

On appeal, the full bench affirmed this definition and added that to be a primary carer, the person providing care does not have 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 full bench said.

Kennedy explained the definitions by both the deputy president and the full bench have “filled [a] vacuum”, allowing for “potentially more situations to come under this umbrella of primary caregiver”.

“This particular enterprise agreement [in Maharjan’s case] didn’t provide a strict definition of primary carer, and that’s really a key point to remember in this case,” Kennedy said.

“Many policies and enterprise agreements do not provide that definition. When they don’t, this quite broad definition that both the commission at first instance and then subsequently on appeal gave its support to, is really going to broaden out the definition of what a primary caregiver is for the purposes of paid parental leave.”

The results in Metro Tasmania v Australian Rail, Tram and Bus Industry Union could see more employers looking at the entire agreement to decide whether a more complex framework is required, on both a “holistic workplace culture and social perspective”.

Kennedy said that these employers should be deciding what evidence they would require from employees to determine whether they are primary or secondary carers, such as medical certificates or specific eligibility that indicates whether one parent is incapacitated.

“Those eligibility requirements need to be upfront and clearly stated so employees can really see whether or not they are eligible to access this paid parental leave. It’s all about making your terms and policies as clear and transparent as possible to limit disputes,” she added.

Employment lawyers have been urged to look out for “red flags” in enterprise agreements or policies that may be undefined.

“If things are sort of at a very high-level state, from a drafting point of view, then it’s going to be much harder to agree to an application for paid parental leave. It may be that clients need to take into account different circumstances, unique circumstances, such as what happened in this particular case,” Kennedy said.

At Maddocks, there have been more clients who have moved away from the primary and secondary dichotomy and recognised “that a parent is a parent and each has different roles and responsibilities”.

Employers are more frequently recognising the benefits of broadening paid parental leave to encompass everyone, with Kennedy adding that this leads to “tangible benefits”.

If an employer has decided to take that route, Kennedy said they should be looking at improving their agreements and policies.

“If you’re looking to increase the number of male employees who take up parental leave, then you’re looking at doing away with things like primary and secondary carer dichotomy.

“If you’re looking at doing things such as increasing the timespan in which an employee can take parental leave, and it may not be necessarily appropriate to take it at birth, it could be made available up until the child is 18 months or two years.

“That gives much greater options for male employees to take some parental leave and have that experience with their child,” she said.

Listen to the entire episode here.