Employers are being urged to review their PPL policies, in the wake of a finding that an employee was entitled to take paid leave as a primary caregiver, months after he had accessed paid leave as the baby's "non-primary" carer.
"In light of the ruling, employers will need to review the wording in their employment contracts in relation to paid parental leave and any paid parental leave policies that they have in place, to ensure that they will be interpreted and operate as intended," King & Wood Mallesons' senior consultant Brett Feltham told HR Daily.
The case involved a Peregian Beach College employee who, following the birth of his child in 2023, applied for and was granted one week of paid parental leave as a non-primary caregiver, under clause 5.3.2(d) of the employer's enterprise agreement.
After returning to work, he enquired about taking additional leave, telling the employer that for a set period of time he was going to be his son's primary caregiver. (Clause 5.3.2(a) of the EA provides 11 weeks of paid leave to primary caregivers.)
But the employer declined his request, stating the leave entitlements were mutually exclusive.
In July last year, after a dispute was raised by the Independent Education Union of Australia (IEU), Commissioner Chris Simpson agreed with the employer that the employee was excluded from accessing the primary caregiver leave because he had already taken the non-primary caregiver entitlement.
The IEU sought leave to appeal, arguing the Commissioner's decision was wrong.
A full bench – Vice President Mark Gibian, and Deputy Presidents Amber Millhouse and Peter Hampton – accepted that granting the IEU permission to appeal was in the public interest because its arguments concerned the interaction between EA entitlements and the National Employment Standards (NES).
The IEU advanced eight arguments, but the bench said these boiled down to whether an employee of the College was entitled to access the paid parental leave entitlement under the EA as both a primary caregiver and as a non-primary caregiver, in respect of the same child.
Nothing in the agreement's wording suggested that accessing both would amount to "double dipping", the union maintained.
The employer, on the other hand, broadly contended that its EA should be read together with the version of the PPL Act that applied at the time the agreement's approval.
This meant that as the father of the child, the employee was not entitled to make a primary caregiver claim, it argued.
The EA stated its provisions were to be "read in conjunction" with the NES, and the bench noted the function of these introductory words was "not entirely clear".
Their most likely intention, however, was to indicate that the parental leave provisions of the EA were intended to complement and "not be inconsistent" with the parental level provisions of the Act, the members said.
But the previous PPL Act terms concerning "dad and partner pay", which would have limited the employee's capacity to make a primary caregiver claim because he was not the child's birth mother, did not determine the proper construction of the EA, the bench found. (It added that both of those terms were abolished by amendments made to the PPL Act starting on 1 July 2023.)
In any case, the PPL Act as it then existed didn't prohibit an employee who had received dad and partner pay from also receiving employer-funded parental leave, it said.
The EA didn't define either primary or non-primary caregivers, the bench noted.
"In our opinion, the primary caregiver is the person with the greater responsibility for attending to the care of the child at any particular time."
Whether an eligible employee was the primary or non-primary caregiver depended on "the actions undertaken, and the responsibilities assumed, by the employee in relation to the care of the child at a particular point in time", the bench said.
It agreed with the IEU that either designation was not "an enduring status attributable to a person throughout the period of entitlement of parental leave or attained by reference to whether the person gave birth to the child or not".
"As a matter of ordinary language, an employee may be the primary caregiver at one point in time and a non-primary caregiver in another period depending on the allocation of caring responsibilities."
Therefore, it said, the employer's "narrow construction" of its PPL clause had no basis.
"The Agreement does not, in terms, limit an eligible employee's entitlement to paid leave as either a primary caregiver or a non-primary caregiver. There is no textual indication that the terms are mutually exclusive or that an eligible employee is entitled to one type of leave in lieu of the other."
Rather, the PPL clause provided eligible employees with an entitlement to paid leave "where they meet the condition" of being either type of caregiver.
The bench added that while it wasn't strictly necessary to determine this issue, "it appears to us that an employee who demonstrates that they have, or will have, a responsibility for the care of the child to a greater degree than any other person on a day, or during a period, will be a primary caregiver for the purposes of the entitlement".
The bench concluded that the EA didn't exclude an employee from accessing primary caregiver leave after a period of non-primary caregiver leave in respect of the same child, if the other eligibility criteria were met.
It ordered accordingly, quashing the earlier decision.