The Fair Work Commission (FWC) recently handed down its decision in Construction, Forestry, Mining and Energy Union v BHP Coal Pty Ltd  FWC 920. The case relates to a claim by two BHP Coal Pty Ltd (BHP) employees (Employees) for paid primary carers leave as was provided for in BHP's enterprise agreement (theAgreement).
Both BHP Employees sought paid primary carers leave when their wives gave birth by caesarean section. Both Employees provided statutory declarations declaring they required parental leave to be the primary carer of their child and that they would be the primary carer at all times during the period for which the leave was sought.
It was submitted by the Construction, Forestry, Mining and Energy Union (Mining and Energy Division) (CFMEU) on the Employees' behalf that a statutory declaration was the only evidence required by the Agreement to establish an entitlement to the leave. According to one of the Employees, it was accepted practice for employees who sought to take time off for the birth of a child to request the time off as annual leave and, upon returning to work, fill out a leave application form and provide a statutory declaration indicating that the leave was taken as parental leave.
BHP argued that employees are not entitled to choose to assume the role of primary carer. The entitlement can only arise when the employee is undertaking the role of primary carer in circumstances where the mother of the child is incapable of providing primary care. BHP further submitted they are entitled to seek information, in addition to the statutory declaration, in order to establish that the mother is incapable of providing primary care to the child. BHP argued that the fact a mother has given birth by caesarean section does not mean that she is automatically incapable of providing care to her child.
In an attempt to resolve the dispute before it came before the FWC both Employees provided medical certificates in addition to their statutory declarations. One of the medical certificates stated that the Employee was the primary carer as his wife had given birth by caesarean section while the other stated that the Employee was to be his wife's primary carer.
In determining whether the Employees were entitled to paid primary carers leave the FWC held that the determining factor was whether an employee assumes the role of primary carer in circumstances where the mother is incapable of providing that care. The FWC provided examples of such situations including where a mother has chosen to return to full time work or where a mother has a medical condition that prevents her from providing care. Such a medical condition may include an operation such as a caesarean section however, a caesarean section in itself does not satisfy the requirement.
The FWC rejected the CFMEU's submission that a statutory declaration was the only evidence required by the Agreement to establish an entitlement to the leave, holding that if that were the case it would, in effect, mean the employee could determine their own entitlements.
The FWC went on to find that BHP was entitled to request additional evidence beyond the statutory declaration to satisfy itself that the father of the child is the primary carer of the child at the relevant time. The FWC determined that the form this further evidence took would depend on the nature of the reason given for claiming the paid primary carers leave.
The FWC, finding in favour of BHP, held that the Employees were not entitled to paid primary carer's leave under the terms of the Agreement because the evidence provided by them did not establish that they were fulfilling the role of primary carer to their newborn children. Instead the evidence showed that each Employee was in fact providing care and support for his wife who in turn was providing primary care for the child.
WHAT DOES THIS MEAN?
For an employer, this decision highlights the importance of drafting clear and certain agreements in relation to employee entitlements. It also highlights that it is permissible to request additional evidence, other than a statutory declaration, to confirm whether the employee father is to fulfil the role of the child's primary carer for a period of time.
For an employee, it highlights the need to fully understand the requirements and evidence required when claiming leave entitlements under an agreement.
It must be noted that the outcome may have been different had the Employees been able to demonstrate they were required to take time off to care for their children while their partners recovered, not to look after their partners who were, in turn, providing the primary care to the children. While the FWC acknowledged that an operation such as a caesarean section could render a mother incapable of providing primary care to her child, a caesarean section in itself does not satisfy the requirement.
For a link to the full decision please click here.