In a significant decision on paid parental leave, a FWC presidential member has ordered a state-owned public transport provider to backpay a bus driver who claimed to be the primary carer of his newborn son while his wife recovered from an emergency caesarean section.
The RTBU took the matter to the FWC after Metro Tasmania rejected the Hobart driver’s application for eight weeks’ paid parental leave (PPL) under clause 34 of its 2020 deal, despite him supplying a doctor’s certificate three weeks after the birth saying that she was unable to be the primary carer “as she is post C-section and not fully well”.
While Metro Tasmania told Deputy President Val Gostencnik that it rejected the PPL claim because the driver did not provide “appropriate notice”, that he could not have been the primary carer of the child at the same time as his wife, and that there was no “intention” for him to be the primary carer, the union argued the real reason was that it did not want to open the floodgates to other potentially costly PPL applications from male employees.
Observing that resolving the dispute turned on the proper interpretation of the relevant clause, Deputy President Gostencnik said it was “uncontroversial” that the driver had a responsibility for his child’s care during the contested period – “the dispute is only whether he was the primary carer”.
In resisting the application, Metro Tasmania argued that any PPL is “based on what the plans are for the relevant couple at the time” and that, with PPL an “addition” to unpaid parental leave, the driver did not provide “at least 10 weeks’ written notice” of taking unpaid leave as generally required under the NES.
“It further contends that [he] had not provided sufficient evidence satisfying it that ‘he was to be the primary carer’ either ‘on an ongoing basis’ or for any period of time and in circumstances where it was always intended for [his wife] to be the primary carer of the child,” Deputy President Gostencnik said.
Reason for being primary carer “immaterial”
There was, however, “nothing” in clause 34 requiring those eligible for PPL to also have applied for and “intend taking” unpaid parental leave under the NES, the deputy president said.
“Once that is understood, the notion that the notice requirements for unpaid parental leave in s74 [of the Fair Work Act] condition the paid parental leave entitlement in clause 34 falls away,” Deputy President Gostencnik said.
As to Metro Tasmania qualms about the “retrospective nature” of the doctor’s certificate, the deputy president pointed out the clause 34 “contains no express requirement for an employee to provide evidence in support of their application”.
“In contrast, other provisions in the 2020 agreement set out various evidentiary requirements, including those regulating compassionate leave, jury service, community service leave and personal/carer’s leave,” Deputy President Gostencnik said.
“The absence of such a requirement from clause 34 speaks loudly to the intended operation of the provision.
“The provision does not countenance the subjective opinion of one or more of Metro Tasmania’s managerial staff about the sufficiency of medical evidence provided as carrying the day, nor is an employee applying for paid parental leave required to show, as seems to have been the case here, that the birthmother is incapable of providing the care.
“Clause 34(a)(ii) conditions the paid parental leave entitlement on a requirement that the [driver] will be the primary carer for the child.
“The reason [he] will be the primary carer is immaterial.”
That said, the deputy president noted that the driver had provided a reason; that his wife was recovering from a caesarean section.
“That a mother giving birth by caesarean section may, in many cases, also be able to fulfil the role of primary carer is beside the point,” Deputy President Gostencnik said.
“Clause 34 does not condition the entitlement on the capacity of the birthmother but rather, on the intention of the applicant for leave to be the primary carer.
“Here the birthmother was recovering and although providing some care was not fulfilling the primary carer role.
“That role was undertaken by [the driver].
“In any event, I agree with the ARTBIU that the provision of the medical certificate was sufficient to establish the birthmother was unable to provide primary care to the child.”
Prior ruling “plainly distinguishable”
The deputy president continued that Metro Tasmania also sought to rely on a 2015 decision in which then Deputy President Ingrid Asbury determined that two BHP Coal employees who helped look after their newborn babies while their partners recovered from caesarean sections were not entitled to parental leave.
“This reliance is misconceived,” he said.
“The decision in BHP Coal turned on its facts and is plainly distinguishable.
“The applicable company policy required an applicant for leave to provide ‘any other supporting documentation required by BHP Billiton in order to satisfy itself that the benefits claimed are due’.”
It was on this basis, the deputy president said, that then Deputy President Asbury concluded “that evidence to the effect that the birthmother was unable to provide primary care was required”.
“Relevantly however, the deputy president noted that in her view ‘if a treating doctor states that a woman who has given birth is suffering from a medical condition that prevents her from providing primary care to a newborn child, then that is sufficient for her spouse or partner to claim an entitlement to paid primary carer’s leave to provide such care to the child’.
“With that I agree.”
Finding that the driver satisfied all the conditions in clause 34, the deputy president ordered Metro Tasmania to pay him for parental leave claimed for February 8 to April 4.
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