Employees entitled to both “primary” and “non-primary” parental leave – the importance of interpretation in Enterprise Agreements
A January 2025 decision from the Full Bench of the Fair Work Commission has underscored the importance of clear drafting in Enterprise Agreements and other workplace policies and documents.
In short, the Full Bench found in Independent Education Union v Peregian Beach Community College Ltd that employees were entitled to take two different types of parental leave.
Mr Jason Rogers, an employee of Peregian Beach College in Queensland, was successful in appealing the prior decision of FWC Commissioner Simpson and had the Full Bench of the FWC affirm he was entitled to both primary and non-primary caregiver leave under the Peregian Beach College Enterprise Agreement 2022.
The dispute centred on employees’ access to different forms of parental leave under the Peregian Beach College Enterprise Agreement 2022. Under that Agreement, employees were entitled to paid parental leave of either five days for “non-primary” caregivers, or for 11 weeks for “primary” caregivers.
The Agreement’s parental leave clause stated:
5.3.1 Paid Parental Leave
(a) In addition to statutory entitlements to unpaid leave, primary caregivers will be entitled to paid leave of eleven (11) continuous and uninterrupted weeks which is exclusive of any vacation period that falls during the paid leave. This paid leave may be accessed at half pay. In such circumstances the employee will be entitled to double the period of leave which would otherwise be applicable. Where possible, an employee shall commence leave at the conclusion of a school term or as near as possible to the conclusion of a school term. Employees shall return to school at the beginning of the nearest school term.
(b) The employer funded eleven (11) weeks paid parental leave will be in addition to the Commonwealth Government’s implementation of a national paid parental leave scheme.
(c) Superannuation, and all other employee entitlements, continue to accrue during the employer funded part of an employee’s period of paid parental leave.
(d) In addition to the unpaid leave provisions prescribed by legislation, non-primary caregivers are entitled to a period of 5 (five) days paid leave and 5 (five) days unpaid leave which is to be taken consecutively.
Following the birth of his child in July 2023, Mr Rogers initially applied for and was granted non-primary caregiver leave under the Agreement. In September and November 2023, Mr Rogers applied to take primary caregiver leave.
The College declined Mr Rogers’ leave request, arguing that the two forms of leave were mutually exclusive (that is, employees were entitled to one or the other but not both). The Independent Education Union disputed this interpretation on Mr Rogers’ behalf and ultimately brought proceedings before the Fair Work Commission for a determination as to the proper meaning of the clauses.
The question posed by the parties was:
The parties seek a determination from the Fair Work Commission on the question of whether a staff member is excluded from accessing paid parental leave under clause 5.3.2 (a) of the Peregian Beach Community College Enterprise Agreement 2022 due to having earlier accessed paid parental leave under clause 5.3.2 (d) of said agreement.
At first instance, the Fair Work Commissioner (Commissioner Simpson) accepted the College’s submissions and found that employees were excluded from accessing primary caregiver leave where they had previously accessed leave entitlements as a non-primary caregiver.
The IEU appealed to the Full Bench. In coming to their decision, the Full Bench (Vice President Gibian, Deputy Presidents Millhouse and Hampton) had regard to the “plain language of the Agreement” looking to the words used in the Agreement for “textual indications” of meaning.
Noting the absence of an explicit definition of “primary” or “non-primary” caregiver in the Agreement, the Full Bench relied on the ordinary plain language meaning of the words as they were used and found that primary or non-primary caregiver was an “activity-based designation which is capable of changing over time.”
Importantly, they found the term “primary caregiver” meant the “person with the greater responsibility for attending to the care of the child at any particular time.” That meant the Full Bench accepted that an employee could be a non-primary caregiver at one time and then subsequently become a primary caregiver.
The College had sought to rely on various terms and definitions used in the Federal Government Paid Parental Leave scheme to assist in interpreting the meaning of the Agreement, including restrictions placed on parents accessing different types of benefits under the PPL scheme. The Full Bench accepted it was relevant to consider the PPL scheme as part of the “industrial context” in which the Agreement was reached but found such context could only be an aid to the interpretation of the Agreement and could not justify re-writing the Agreement. Specifically, they considered the exact workings of the PPL scheme and limitations placed on entitlements to parental pay under that scheme was “insufficient to read into the Agreement words of limitation that are not there.”
By contrast, the Full Bench accepted the IEU’s argument that there was nothing in the “grammatical structure and the arrangement of [the] clause” to restrict employees to the use of only one form of parental leave.
Having conducted this analysis of the Agreement’s actual meaning, the Full Bench accepted the IEU’s position that employees, including Mr Rogers, were properly entitled under the Agreement to parental leave both as “primary” and “non-primary” caregivers, assuming they satisfied the definitions of each at different times.
Key takeaways:
- Enterprise Agreements are to be interpreted in accordance with the “ordinary plain language” meaning of the words used.
- Any qualification or restriction on entitlements need to be explicitly set out within the document and it is important that key terms or eligibility requirements are clearly defined.
- Employers cannot rely on the operation of external schemes to limit the way in which their own policies and Agreements will be interpreted.
- With respect to parental leave, employers should consider whether the organisation’s intention was to create mutually exclusive categories of entitlements, or whether employees can access multiple forms of leave.
If you would like us to review your internal policies or need advice on the operation of existing policies or Enterprise Agreements, please contact David Ford or Stephanie McLuckie.