s.739 - Dispute resolution

Australian Federated Union of Locomotive Employees

Alleged dispute about matters arising under the Aurizon Coal Enterprise Agreement 2022 - paid primary caregiver leave clause.

[1] The Australian Federated Union of Locomotive Employees (AFULE/the Union/the Applicant) applied pursuant to s.739 of the Fair Work Act 2009 (the Act) to deal with a dispute about matters arising under clause 27 of the Aurizon Coal Enterprise Agreement 2022 (the Agreement). The other party to the dispute is Aurizon Operations Pty Ltd T/A Aurizon (Aurizon/the Employer/the Respondent).

[2] The dispute applications were made in relation to two disputes brought by the Union on behalf of two of their members/employees of the Respondent: Mr Jackson Ellery (C2024/8964) and Mr James Bazzo (C2025/892). These disputes shared common facts which are set out below. The disputes between the Parties arise under clause 27 'Paid Primary Caregivers Leave' of the Agreement. It was agreed between the Parties that relevant discussions and a conciliation conference before the Commission had occurred under the required steps of clause 8 'Dispute Resolution' of the Agreement. The conference did not result in an agreement between the Parties. Accordingly, the Applicant sought to have the disputes arbitrated pursuant to the dispute resolution procedure. Directions for the filing of evidence and submissions were set by consent and the Question for arbitration was provided by agreement by the Parties.

[3] A Hearing was conducted in this matter and further submissions were filed subsequent to the Hearing. The Parties sought to file additional submissions in relation to a further case that was published after the Hearing.

[4] The Union was represented by Ms Carla Jones, Industrial Officer, of the Union. The Employer was represented by Mr Michael Coonan, of King & Wood Mallesons. Permission was granted pursuant to s.596(2)(a) for Mr Coonan to represent the Respondent.

[5] The Question for arbitration as agreed by the Parties was as follows:

Will an entitlement to paid leave under clause 27.24, 27.27, 27.28 and/or 27.29 of the Coal EA arise where:

(a) the Employee with 12 months' continuous service is a partner of a person (not covered by the Coal EA) who has given birth; and

(b) assuming for the purposes of the arbitration only, that the Employee is the Primary Caregiver of the child?

[6] This dispute is seeking the exercise of the Commission's powers under s.739 of the Act. Section 739(4) relevantly provides:

"(4) If, in accordance with the term, the Parties have agreed that the FWC may arbitrate (however described) the dispute, the FWC may do so_."_

Relevant Provisions of the Enterprise Agreement

[7] The Commission's jurisdiction to arbitrate the dispute arises under clause 8 of the Agreement's dispute resolution clause as follows:

8.1. In the event of a dispute about a matter arising under this Agreement, or in relation to the NES the following steps will be followed:

• Step 1: Discussions will be held between the employee/s concerned and the relevant supervisor. These discussions will be held within 48 hours of the dispute being raised, unless agreed otherwise. If the discussions do not resolve the dispute or if the discussions do not occur, or do not occur within the agreed timeframe, either party may refer it to the next step. Such a referral must be made within 48 hours of the discussions or, if the discussions do not occur, then within 48 hours of the dispute being raised or, if the discussions do not occur within the agreed timeframe, within 48 hours of the agreed timeframe for holding the discussions;

• Step 2: Discussions will be held between the employee/s concerned and a senior level manager as appropriate. These discussions will be held within 96 hours of the dispute being referred to Step 2, unless agreed otherwise. If the discussions do not resolve the dispute or if the discussions do not occur, or do not occur within the agreed timeframe, either party may refer it to the next step. Such a referral must be made within 96 hours of these discussions or, if the discussions do not occur, then within 96 hours of the dispute being raised or, if the discussions do not occur within the agreed timeframe, within 96 hours of the agreed timeframe for holding the discussions.

• Step 3: The employee/s or the Company may refer the dispute to the FWC. Where such an application is made, the FWC shall first attempt to resolve the dispute through conciliation. Where conciliation does not resolve the dispute, the matter may be determined by arbitration. Where the dispute is subject to arbitration the decision of the FWC is binding.

8.2. The Company or employee/s may appoint another person, organisation or association to accompany and/or represent them during the steps contained in this procedure.

8.3. Where the timeframes in this process are not met, the Company may proceed to implement the change and the dispute may only proceed to conciliation. The timeframes do not include Saturdays, Sundays or public holidays.

• a dispute is referred to the FWC in accordance with Step 3, the Company must not implement the disputed changes until the conciliation conference has been completed; or

• a dispute is referred to the FWC in accordance with Step 3 and the dispute arises from a decision of the Company which would result in the termination of employment due to redundancy, the Company will not implement the disputed changes until this step in the disputes procedure has been completed.

8.5. While the dispute resolution procedure is being followed work must continue in accordance with this Agreement and the Act. Subject to applicable occupational health and safety legislation, an employee must not unreasonably fail to comply with a direction by the Company to perform work that is safe and appropriate for the employee to perform.

• relevant supervisor means the employee/s concerned direct supervisor or manager, unless the Company has nominated another person in writing to be the relevant supervisor for the purpose of this Agreement.

• senior level manager means the manager or direct supervisor of the relevant supervisor (manager once removed), unless the Company has nominated another person in writing to be the senior line manager for the purpose of this Agreement."

[8] The Parties agreed the Commission has the jurisdiction to deal with this dispute in arbitration.

[9] The Union sought to rely on clause 4.2 and clause 5 of the Agreement:

"4.2. This Agreement will be read and interpreted in conjunction with the NES. Where there is an inconsistency between this Agreement and the NES, and the NES provides a greater benefit, the NES provisions will apply to the extent of the inconsistency.

5.1 Unless the context otherwise requires, in this Agreement:

Means a person who assumes the principal role of providing care to a child.

[10] The dispute between the Parties arises from the parental leave clause in the Agreement, specifically in relation to paid primary caregiver leave (clauses 27.24-27.29). It is relevant to set out the parental leave clause in the Agreement:

27.1. An employee is not entitled to take parental leave unless they inform the Company of their intention to take unpaid parental leave by giving at least 10 weeks' written notice (unless it is not possible to do so).

27.2. Notice must include the intended start and end dates of any leave.

27.3. At least four weeks before the intended start date the employee must confirm the intended start and end dates or advise the Company of any changes to the intended start and end dates (unless it is not possible to do so).

27.4. Where concurrent leave is to be taken in separate periods, these notice requirements apply to the first period of that leave. For second and subsequent periods, the employee must provide the Company with 4 weeks' notice.

27.5. An employer may require evidence that would satisfy a reasonable person of the actual or expected date of birth of a child or the day or expected day of placement of a child under 16.

27.6. An employee is entitled to parental leave under this clause if the employee has, or will have, completed at least 12 months of continuous service with the employer immediately before the date of birth, or placement in the case of adoption.

27.7. Casual employees are entitled to parental leave under this clause if they meet the requirements under clause 27.6 above and if they are engaged in regular and systematic work with a reasonable expectation of ongoing employment.

General rule - additional government entitlements

27.8. The entitlement to paid parental leave types under this clause is in addition to any entitlement under any Australian Government's paid parental leave scheme.

27.24. An employee with 12 months' continuous service who will give birth to, or adopt a child, is entitled to 14 calendar weeks of paid Primary Caregiver leave.

27.25. Where the leave is for a birth such leave may commence up to 6 weeks before the expected birth date and must include the 6 weeks immediately following the birth.

27.26. The period of paid Primary Caregiver leave will be reduced by the equivalent period of any paid no safe job leave taken from the after the commencement of 6 weeks from the expected date of birth.

27.27. In cases where the birth parent, (or the original Primary Caregiver in the case of adoption), returns to work and their partner (the employee) is to be the Primary Caregiver for the child, the employee is entitled to access up to a maximum of 7 weeks of paid leave calculated as follows:

• minus the number of weeks of leave taken by the birth parent (which will be a minimum of 6 weeks).

• minus the 1 week of partner's leave taken at the time of the birth.

27.28. Leave for the partner to be the Primary Caregiver cannot be taken at the same time that the birth parent (or the original Primary Caregiver in the case of adoption) is on Primary Caregiver leave.

27.29. Generally the same rules that apply to the birth parent (or the original Primary Caregiver in the case of adoption), taking this leave will apply to the partner who is to be the Primary Caregiver. (emphasis added)

27.30. An employee whose partner gives birth to, or adopts a child is entitled to 1 week of paid partner's leave and 7 weeks of unpaid partners leave.

27.31. This leave must be taken concurrently with the Primary Caregiver's leave and be in blocks of at least 1 week unless otherwise agreed.

27.32. Where this clause requires paid parental leave, such leave will be paid at the Relevant Rate of pay for Ordinary Hours of work for the employee's substantive position. To avoid doubt superannuation contributions will continue during periods of such paid parental leave.

27.33. Where an employee is entitled to paid parental leave pursuant to the Australian Government Paid Parental Leave Scheme, the Company will, for each week of such paid leave, and in addition to the requirements of the scheme, make superannuation contributions based on the amount required to be paid to the employee pursuant to the Scheme.

27.34. Employees accrue annual leave, long service leave and personal / carer's leave during paid parental leave.

27.35. Part-time and eligible casual employees will be entitled to the same number of week's parental leave as full-time employees. However, part-time and casual employees will be paid these weeks of paid parental leave on a Pro Rata basis.

52 weeks of leave & unpaid Primary Caregivers leave

27.36. Employees who are the Primary Caregiver are entitled to take leave for up to 52 weeks.

27.37. This includes any paid parental, annual and long service leave that is taken in respect of the birth or adoption of the child.

27.38. The balance of the 52 weeks is unpaid Primary Caregivers leave.

27.39. In cases where the birth parent, (or the original Primary Caregiver in the case of adoption), returns to work and their partner (the employee) is to be the Primary Caregiver, the partner is entitled to the take the balance of the unused unpaid Primary Caregiver leave.

27.40. The same rules that apply to the birth parent (or the original Primary Caregiver in the case of adoption), taking this leave will apply to the partner who is to be the Primary Caregiver.

27.41. Employees who are the Primary Caregiver may apply to take leave for up to an additional 52 weeks. The granting of this request will be subject to business and operational requirements. Such leave may not extend beyond the second birthday of the child (or where relevant, the second anniversary of the adoption) or a maximum of 104 weeks.

27.42. The clauses below apply after an employee has ceased taking paid Primary Caregiver leave.

27.43. An employee may extend the period of unpaid Primary Caregiver leave once by giving the Company 14 days' written notice before the end of the period of the leave. The written notice must state the period by which the leave is extended.

27.44. The period of unpaid Primary Caregiver leave may be further extended by written agreement between the employee and the Company.

27.45. A period of leave may be shortened by the employee giving 4 weeks' notice (or a shorter period if agreed in writing between the employee and the Company). However, a period of leave must be a minimum of 6 weeks after a birth.

Employees who cease to have primary responsibility for care of child

27.46. If, for any reason, an employee who is on paid or unpaid Primary Caregiver leave no longer has primary responsibility for the care of the child they must give the Company at least 4 weeks' notice of the date they will no longer have primary responsibility for the care of the child. Any paid Primary Caregiver leave will stop from the date on which the employee no longer has primary responsibility for the care of the child.

27.47. The notice given by the employee will include:

• The date upon which the employee ceased having primary responsibility for the care of the child;

• The type of leave (i.e. annual or long service leave the employee is entitled to), if any, the employee wishes to access between the period of ceasing to have primary responsibility for the care of the child and returning to work.

27.48. If the date specified by the employee is 4 weeks from the date of giving the notice, the employee will return on the date specified.

27.49. If the date specified is within 4 weeks of giving notice, the Company may approve the employee to return within this earlier time. The Company will make all reasonable efforts to accommodate such requests. If this approval is not given, the employee will be entitled to return 4 weeks after giving notice.

27.50. If the date specified is more than 4 weeks after giving notice, the Company may approve this longer period. If approval is not given, the employee will return 4 weeks after giving notice.

[11] The Union sought to rely on the National Employment Standards (NES). Parental Leave is also considered within the NES:

"Division 5 - Parental leave and related entitlements

67 General rule - employee must have completed at least 12 months of service

(1) An employee, other than a casual employee, is not entitled to leave under this Division (other than unpaid pre‑adoption leave or unpaid no safe job leave) unless the employee has, or will have, completed at least 12 months of continuous service with the employer immediately before the date that applies under subsection (3).

(1A) For the purposes of applying subsection (1) in relation to an employee who has had their employment changed under Division 4A of Part 2‑2, any period for which the employee was a regular casual employee of the employer is taken to be continuous service for the purposes of that subsection.

(2) A casual employee, is not entitled to leave (other than unpaid pre‑adoption leave or unpaid no safe job leave) under this Division unless:

(a) the employee is, or will be, immediately before the date that applies under subsection (3), a regular casual employee of the employer who has been employed on that basis for a sequence of periods of employment during a period of at least 12 months; and

(ii) the placement or the expected placement of the child;

the employee would have a reasonable expectation of continuing employment by the employer on a regular and systematic basis.

Date at which employee must have completed 12 months of service

(3) For the purposes of subsections (1) and (2), the date that applies is:

(i) birth‑related leave starting before the birth of the child; or

(b) in any other case - the date on which the employee's period of leave is to start.

(4) Birth‑related leave means leave of either of the following kinds:

(a) unpaid parental leave taken in association with the birth of a child (see section 70);

(b) unpaid special parental leave (see section 80).

(5) Adoption‑related leave means leave of either of the following kinds:

(a) unpaid parental leave taken in association with the placement of a child for adoption (see section 70);

(6) The day of placement, in relation to the adoption of a child by an employee, means the earlier of the following days:

(a) the day on which the employee first takes custody of the child for the adoption;

(b) the day on which the employee starts any travel that is reasonably necessary to take custody of the child for the adoption.

68 General rule for adoption‑related leave - child must be under 16 etc.

An employee is not entitled to adoption‑related leave unless the child that is, or is to be, placed with the employee for adoption:

(a) is, or will be, under 16 as at the day of placement, or the expected day of placement, of the child; and

(b) has not, or will not have, lived continuously with the employee for a period of 6 months or more as at the day of placement, or the expected day of placement, of the child; and

(c) is not (otherwise than because of the adoption) a child of the employee or the employee's spouse or de facto partner.

69 Transfer of employment situations in which employee is entitled to continue on leave etc.

(a) there is a transfer of employment in relation to an employee; and

(b) the employee has already started a period of leave under this Division when the employee's employment with the first employer ends;

the employee is entitled to continue on that leave for the rest of that period.

(a) there is a transfer of employment in relation to an employee; and

(b) the employee has, in relation to the first employer, already taken a step that is required or permitted by a provision of this Division in relation to taking a period of leave;

the employee is taken to have taken the step in relation to the second employer.

Note: Steps covered by this subsection include (for example) complying with a notice or evidence requirement of section 74 in relation to the first employer.

An employee is entitled to 12 months of unpaid parental leave if:

(i) the birth of a child of the employee or the employee's spouse or de facto partner; or

(ii) the placement of a child with the employee for adoption; and

(b) the employee has or will have a responsibility for the care of the child.

Note: The employee's entitlement under this section may be affected by other provisions of this Division.

(1) This section applies to an employee who intends to take unpaid parental leave.

(2) The employee must take the leave in a single continuous period.

Note 1: An employee may take a form of paid leave at the same time as the employee is on unpaid parental leave (see section 79).

Note 2: For provisions affecting the rule in this subsection, see:

(a) subsection 72A(11) (flexible unpaid parental leave); and

(b) subsection 73(4) (pregnant employee may be required to take unpaid parental leave within 6 weeks before the birth); and

(c) paragraph 78A(2)(b) (permitted work periods while child is hospitalised); and

(3) If the leave is birth‑related leave for an employee who is pregnant with, or gives birth to, the child, the period of leave may start:

(a) up to 6 weeks before the expected date of birth of the child; or

(b) earlier, if the employer and employee so agree; or

(c) during the 24‑month period starting on the date of birth of the child;

but must end during the 24‑month period starting on the date of birth of the child.

Note 1: If the employee is not fit for work, the employee may be entitled to:

(a) paid personal leave under Subdivision A of Division 7; or

(b) unpaid special parental leave under section 80.

Note 2: If it is inadvisable for the employee to continue in the employee's present position, the employee may be entitled:

(a) to be transferred to an appropriate safe job under section 81; or

(b) to paid no safe job leave under section 81A; or

Note 3: Section 344 prohibits the exertion of undue influence or undue pressure on the employee in relation to a decision by the employee whether to agree as mentioned in paragraph (3)(b) of this section.

(4) If the leave is birth‑related leave but subsection (3) does not apply, the period of leave must start and end during the 24‑month period starting on the date of birth of the child.

(5) If the leave is adoption‑related leave, the period of leave must start and end during the 24‑month period starting on the day of placement of the child.

(6) The employee may take unpaid parental leave under this section only if the period of leave is no longer than 12 months, less the employee's notional flexible period.

Note: An employee is entitled under section 76 to request an extension of the period of leave beyond the employee's available parental leave period. However, the period of leave may not be extended beyond 24 months after the date of birth or day of placement of the child (see subsection 76(7)).

Taking leave during 24 months starting on date of birth or day of placement

(1) An employee may take up to 100 days (or, if a higher number of days is prescribed by the regulations, that higher number of days) of unpaid parental leave (flexible unpaid parental leave) during the 24‑month period starting on the date of birth or day of placement of the child if the requirements of this section are satisfied in relation to the leave.

Note 1: The flexible unpaid parental leave is unpaid parental leave and so comes out of the employee's entitlement to 12 months of unpaid parental leave under section 70.

Note 2: The number of days of flexible unpaid parental leave that the employee takes must not be more than the number of flexible days notified to the employer under subsection 74(3C) (subject to any agreement under subsection 74(3D)).

(2) Flexible unpaid parental leave under subsection (1) is available in full to part‑time and casual employees.

Taking leave that starts up to 6 weeks before the expected date of birth of the child

(2A) A pregnant employee may take unpaid parental leave (flexible unpaid parental leave) during the period that starts 6 weeks before the expected date of birth of the child if the requirements of this section are satisfied in relation to the leave.

Note 1: The flexible unpaid parental leave is unpaid parental leave and so comes out of the employee's entitlement to 12 months of unpaid parental leave under section 70.

Note 2: The number of days of flexible unpaid parental leave that the employee takes must not be more than the number of flexible days notified to the employer under subsection 74(3C) (subject to any agreement under subsection 74(3D)).

(2B) Flexible unpaid parental leave under subsection (2A) is available in full to pregnant part‑time employees and pregnant casual employees.

(2C) The amount of flexible unpaid parental leave to which an employee is entitled under subsection (1) in relation to the child is reduced by the number of days of flexible unpaid parental leave taken by the employee under subsection (2A) in relation to the child.

(3) The employee must take the flexible unpaid parental leave as:

(a) a single continuous period of one or more days; or

Effect of taking unpaid parental leave under other provisions

(4) The employee may take the flexible unpaid parental leave whether or not the employee has taken unpaid parental leave under another provision of this Division in relation to the child.

(5) However, the employee may take flexible unpaid parental leave after taking one or more periods of unpaid parental leave under another provision of this Division only if the total of those periods (disregarding any extension under section 76A) is no longer than 12 months, less the employee's notional flexible period.

(6) An employee's notional flexible period is the period during which the employee would be on flexible unpaid parental leave if the employee took leave for all the employee's flexible days in a single continuous period. For this purpose, the employee's flexible days are the flexible days notified to the employer under subsection 74(3C) (subject to any agreement under subsection 74(3D)).

(7) For the purposes of subsection (6), assume that:

(a) the employee ordinarily works each day that is not a Saturday or a Sunday; and

(b) there are no public holidays during the period.

(10) An employee is not entitled to take flexible unpaid parental leave in relation to a child if:

(ii) are both placed with the employee for adoption and have the same day of placement; and

(b) the employee takes flexible unpaid parental leave in relation to the other child.

(11) Flexible unpaid parental leave taken by an employee is an exception to the rules in section 71 about:

(a) taking the employee's unpaid parental leave in a single continuous period; and

(b) when the employee's period of unpaid parental leave must start.

(12) Despite anything in subsection (11), flexible unpaid parental leave cannot be used to break up a period of unpaid parental leave taken under section 71.

[12] In seeking the determination of the Question, s.194 of the Act as follows was referred to by the Union as relevant to the application of the Agreement provision:

A term of an enterprise agreement is an unlawful term if it is:

(baa) an objectionable emergency management term; or

(ba) a term that provides a method by which an employee or employer may elect (unilaterally or otherwise) not to be covered by the agreement; or

(c) if a particular employee would be protected from unfair dismissal under Part 3‑2 after completing a period of employment of at least the minimum employment period - a term that confers an entitlement or remedy in relation to a termination of the employee's employment that is unfair (however described) before the employee has completed that period; or

(d) a term that excludes the application to, or in relation to, a person of a provision of Part 3‑2 (which deals with unfair dismissal), or modifies the application of such a provision in a way that is detrimental to, or in relation to, a person; or

(e) a term that is inconsistent with a provision of Part 3‑3 (which deals with industrial action); or

(i) to enter premises for a purpose referred to in section 481 (which deals with investigation of suspected contraventions); or

(ii) to enter premises to hold discussions of a kind referred to in section 484; other than in accordance with Part 3‑4 (which deals with right of entry); or

(g) a term that provides for the exercise of a State or Territory OHS right other than in accordance with Part 3‑4 (which deals with right of entry); or

(h) a term that has the effect of requiring or permitting contributions, for the benefit of an employee (the relevant employee) covered by the agreement who is a default fund employee, to be made to a superannuation fund or scheme that is specified in the agreement but does not satisfy one of the following:

(ii) it is a fund or scheme of which the relevant employee, and each other default fund employee in relation to whom contributions are made to the fund or scheme by the same employer as the relevant employee, is a defined benefit member;

(iii) it is an exempt public sector superannuation scheme."

[13] In addition, s.195 of the Act was raised by the Union:

(1) A term of an enterprise agreement is a discriminatory term to the extent that it discriminates against an employee covered by the agreement because of, or for reasons including, the employee's race, colour, sex, sexual orientation, breastfeeding, gender identity, intersex status, age, physical or mental disability, marital status, family or carer's responsibilities, subjection to family and domestic violence, pregnancy, religion, political opinion, national extraction or social origin.

(2) A term of an enterprise agreement does not discriminate against an employee:

(a) if the reason for the discrimination is the inherent requirements of the particular position concerned; or

(b) merely because it discriminates, in relation to employment of the employee as a member of the staff of an institution that is conducted in accordance with the doctrines, tenets, beliefs or teachings of a particular religion or creed:

(ii) to avoid injury to the religious susceptibilities of adherents of that religion or creed; or

(c) if the term is a special measure to achieve equality - to the extent that action that may be taken because of the term is not unlawful under any anti‑discrimination law in force in a place where the action may occur.

(3) A term of an enterprise agreement does not discriminate against an employee merely because it provides for wages for:

(a) all junior employees, or a class of junior employees; or

(b) all employees with a disability, or a class of employees with a disability; or

(c) all employees to whom training arrangements apply, or a class of employees to whom training arrangements apply.

(4) A term of an enterprise agreement is a special measure to achieve equality if:

(a) the term has the purpose of achieving substantive equality for employees or prospective employees who have a particular attribute or a particular kind of attribute (as the case may be) mentioned in subsection (1), or a particular combination of these; and

Note: For example, a term that has the purpose of achieving substantive equality for employees who are female and have a physical or mental disability.

(b) a reasonable person would consider that the term is necessary in order to achieve substantive equality.

(5) A term of an enterprise agreement is to be treated as having the purpose referred to in paragraph (4)(a) if it is:

(b) for that purpose as well as other purposes, whether or not that purpose is the dominant or substantial one.

(6) However, a term of an enterprise agreement ceases to be a special measure to achieve equality after substantive equality for the employees referred to in paragraph (4)(a) has been achieved."

[14] The Union sought to rely on the Employer's Parental Leave Standard and the Guide to Parental Leave, made by the Respondent in 2020. The Employer's Parental Leave Standard provides the following:

The Shared Care benefit is available for employees eligible for paid parental leave and is only available to employees within 12 months following the birth of the child.

An employee eligible for paid parental leave as the primary carer, who accesses Shared Care is paid an additional loading of 50% of their base pay for up to 26 weeks after returning from parental leave if:

• their partner is on leave without pay from full-time employment, and has assumed primary care of the child for a period of not less than 13 weeks

Employees who do not have a partner involved in the care of the child will be entitled to Shared Care Payments for up to 26 weeks after he or she returns to work full-time.

An employee eligible for paid parental leave as the secondary carer, who accesses Shared Care can take between 13 and 26 weeks of leave at 50% of the base rate of pay if:

• The employee's partner has returned to work full-time; and

• The employee has assumed primary care of the child for a period of not less than 13 weeks.

An employee, or their partner, may have a period of leave for the purpose of assuming primary care for the child which includes a mixture of paid and unpaid leave. Aurizon will apply Shared Care provisions for those periods when no other paid leave applies.

Employees must provide 13 weeks of notice of any period of Shared Care leave. An employee seeking to extend or reduce a period of Shared Care leave will be expected to provide at least four weeks' notice of the change.

An employee claiming leave or payment under these provisions will be required to provide evidence that satisfies Aurizon that these provisions apply. It is expected employees (other than employees who do not have a partner) will provide a letter from the employer of their partner with the employer's name, their letter head, a contact name, phone number and email, detailing the partner's leave or work arrangements."

• [15] The Parties agreed that the determination of the dispute engaged the principles relevant to Agreement interpretation. The Commission's approach to the construction of enterprise agreement provisions was set out in the Decision of the Full Bench of the Commission in "Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union" known as the Australian Manufacturing Workers Union (AMWU) v Berri Pty Ltd (Berri) [1] as follows:

"[114] The principles relevant to the task of construing a single enterprise agreement may be summarised as follows:

1. The construction of an enterprise agreement, like that of a statute or contract, begins with a consideration of the ordinary meaning of the relevant words. The resolution of a disputed construction of an agreement will turn on the language of the agreement having regard to its context and purpose. Context might appear from: (i) the text of the agreement viewed as a whole; (ii) the disputed provision's place and arrangement in the agreement; (iii) the legislative context under which the agreement was made and in which it operates.

1. The task of interpreting an agreement does not involve rewriting the agreement to achieve what might be regarded as a fair or just outcome. The task is always one of interpreting the agreement produced by Parties.

1. The common intention of the Parties is sought to be identified objectively, that is by reference to that which a reasonable person would understand by the language the Parties have used to express their agreement, without regard to the subjective intentions or expectations of the Parties.

1. The fact that the instrument being construed is an enterprise agreement made pursuant to Part 2-4 of the FW Act is itself an important contextual consideration. It may be inferred that such agreements are intended to establish binding obligations.

1. The FW Act does not speak in terms of the 'Parties' to enterprise agreements made pursuant to Part 2-4 agreements, rather it refers to the persons and organisations who are 'covered by' such agreements. Relevantly s.172(2)(a) provides that an employer may make an enterprise agreement 'with the employees who are employed at the time the agreement is made and who will be covered by the agreement'. Section 182(1) provides that an agreement is 'made' if the employees to be covered by the agreement 'have been asked to approve the agreement and a majority of those employees who cast a valid vote approve the agreement'. This is so because an enterprise agreement is 'made' when a majority of the employees asked to approve the agreement cast a valid vote to approve the agreement.

1. Enterprise agreements are not instruments to which the Acts Interpretation Act 1901 (Cth) applies, however the modes of textual analysis developed in the general law may assist in the interpretation of enterprise agreements. An overly technical approach to interpretation should be avoided and consequently some general principles of statutory construction may have less force in the context of construing an enterprise agreement.

1. In construing an enterprise agreement, it is first necessary to determine whether an agreement has a plain meaning or it is ambiguous or susceptible of more than one meaning.

1. Regard may be had to evidence of surrounding circumstances to assist in determining whether an ambiguity exists.

1. If the agreement has a plain meaning, evidence of the surrounding circumstances will not be admitted to contradict the plain language of the agreement.

1. If the language of the agreement is ambiguous or susceptible of more than one meaning then evidence of the surrounding circumstance will be admissible to aide the interpretation of the agreement.

1. The admissibility of evidence of the surrounding circumstances is limited to evidence tending to establish objective background facts which were known to both Parties which inform the subject matter of the agreement. Evidence of such objective facts is to be distinguished from evidence of the subjective intentions of the Parties, such as statements and actions of the Parties which are reflective of their actual intentions and expectations.

1. Evidence of objective background facts will include: (i) evidence of prior negotiations to the extent that the negotiations tend to establish objective background facts known to all Parties and the subject matter of the agreement; (ii) notorious facts of which knowledge is to be presumed; and (iii) evidence of matters in common contemplation and constituting a common assumption.

1. The diversity of interests involved in the negotiation and making of enterprise agreements (see point 4 above) warrants the adoption of a cautious approach to the admission and reliance upon the evidence of prior negotiations and the positions advanced during the negotiation process. Evidence as to what the employees covered by the agreement were told (either during the course of the negotiations or pursuant to s.180(5) of the FW Act) may be of more assistance than evidence of the bargaining positions taken by the employer or a bargaining representative during the negotiation of the agreement.

1. Admissible extrinsic material may be used to aid the interpretation of a provision in an enterprise agreement with a disputed meaning, but it cannot be used to disregard or rewrite the provision in order to give effect to an externally derived conception of what the Parties' intention or purpose was.

1. In the industrial context it has been accepted that, in some circumstances, subsequent conduct may be relevant to the interpretation of an industrial instrument. But such post-agreement conduct must be such as to show that there has been a meeting of minds, a consensus. Post-agreement conduct which amounts to little more than the absence of a complaint or common inadvertence is insufficient to establish a common understanding."

• [16] In Workpac Pty Ltd v Skene[2], the Full Court of the Federal Court restated the principles as follows:

"The starting point for interpretation of an enterprise agreement is the ordinary meaning of the words, read as a whole and in context. The interpretation "...turns on the language of the particular agreement, understood in the light of its industrial context and purpose ...". The words are not to be interpreted in a vacuum divorced from industrial realities; rather, industrial agreements are made for various industries in the light of the customs and working conditions of each, and they are frequently couched in terms intelligible to the Parties but without the careful attention to form and draftsmanship that one expects to find in an Act of Parliament. To similar effect, it has been said that the framers of such documents were likely of a "practical bent of mind" and may well have been more concerned with expressing an intention in a way likely to be understood in the relevant industry rather than with legal niceties and jargon, so that a purposive approach to interpretation is appropriate and a narrow or pedantic approach is misplaced." (references omitted)

[17] Having regard to those authorities, the starting point is to consider the ordinary meaning of the relevant words in the context in which they appear, and whether the clause has a plain meaning (or if it is ambiguous or susceptible to more than one meaning).

[18] These matters relate to two employees of Aurizon: Mr Jackson Ellery (C2024/8964) and Mr James Bazzo (C2025/892). Both employees are Union members.

[19] Mr Ellery is a Locomotive Driver with the Respondent and his employment is covered by the Agreement. He commenced with Aurizon on 31 October 2022 (and had more than 12 months of continuous service).

[20] Mr Ellery, and his partner who is not an employee of Aurizon, welcomed a baby by caesarean section on 1 November 2024. Mr Ellery had applied for and was granted annual leave for the birth of his child. On 30 October 2024 he notified the Regional Operations Manager, Ms Anne Schwarz, that he wanted to amend his annual leave to primary carer's paid parental leave on the basis that he stated he was required to be the primary caregiver given his partner's surgery.

[21] Aurizon rejected Mr Ellery's request on the basis of the Enterprise Agreement provision, that he had not given birth or adopted the child as per clause 27.24. Mr Ellery was on (annual) leave from 5 November 2024 until 16 December 2024.

[22] Mr Bazzo is also a Locomotive Driver with the Respondent and his employment is covered by the Agreement. He commenced with Aurizon on 23 July 2023 (and had more than 12 months of continuous service). He also on the basis of his partner's doctor's medical certificate, submitted he had assumed the primary caregiver role given his partner's surgery.

[23] Mr Bazzo, and his partner who is not an employee of Aurizon, welcomed a baby by caesarean section on 7 January 2025. Mr Bazzo requested that he be paid primary caregiver leave under the Agreement.

[24] Aurizon rejected Mr Bazzo's request on the basis that he was not entitled to paid parental leave as the primary caregiver because he had not given birth or adopted the child as per clause 27.24 of the Agreement. Mr Bazzo was on (annual) leave from 7 February 2025 until 1 March 2025.

[25] The Parties by consent sought a joint Hearing of the applications and this decision deals with the determination of both matters. As a threshold matter, the Parties by agreement did not require for the Commission to be satisfied on the facts of the matter, that these two employees, are deemed to meet the test of a 'primary caregiver'.

[26] The Parties agreed that it should be assumed by the Commission that both Mr Ellery and Mr Bazzo were deemed to be the primary caregivers. As such, by consent no evidence in relation to satisfying the primary caregiver definition was required to be adduced and there was no need to consider the medical certificates and reasoning to confirm that Mr Ellery and Mr Bazzo could apply as the primary caregivers. This was an agreed assumption between the Parties. However, it was confirmed with the Parties regarding the issue of primary caregiver at the Hearing that:

THE COMMISSIONER: Well, I understand both Parties are reserving their rights. If there's another dispute and it's disputed that an employee is the primary caregiver on the basis of a medical certificate, both Parties reserve their rights and that would be the first part of an arbitration, but in this one, given that you have moved on in the disputes procedure, that seems to be the argument between the Parties."

[27] The Union argued that the same rules that apply to the birth parent as the primary caregiver will apply to the partner who is the primary caregiver. The Applicant indicated that the Employer continued to rely on the definition of carers as related to the shared care benefit and what the primary and secondary carers are entitled to.

[28] After discussions at the Workplace in accordance with the disputes procedure, the Union on behalf of their members brought the matter into dispute before the Commission in respect of the decision by the Employer to deny their member's paid primary caregiver leave.

[29] The Applicant filed witness statements for Mr Ellery and Mr Bazzo. On behalf of the Respondent, an affidavit was produced by Brehany Bailey Shanahan, a solicitor employed by King & Wood Mallesons, the Respondent's representatives. No witness was required for cross-examination and all evidence was tendered on an uncontested basis.

• [30] The Union on behalf of their members, submitted that the Question for arbitration should be answered in the affirmative and that Mr Ellery and Mr Bazzo were entitled to be paid parental leave as the primary caregiver. The Union stated that the provision that Aurizon relied on to deny this entitlement is unlawful and therefore cannot be considered to justify the non-payment of this entitlement.[3]

[31] The Applicant confirmed at the Hearing, that the outcome sought in terms of this matter was that:

...it's simply, as we see it, an exercise in administration. The men were required to take carer's leave, which, in both cases, ended up being paid as annual leave. We say it should have been parental leave, so it's simply an administrative exercise that we would be seeking in terms of having the leave balances reinstated to the men and it having been recorded as paid primary caregiver leave under the enterprise agreement."

[32] The Union on behalf of their members, argued that in circumstances where (for the purposes of this exercise the Parties agreed the employees were primary caregivers) that is their members were the primary caregivers for their respective children in circumstances while their partners recovered from a caesarean section (with a medical certificate from each partner's doctor). They argued therefore they were entitled to paid leave as the primary caregiver pursuant to 27.24 and 27.29 of the Agreement.

[33] The Union in their application stated that in arguing their case that the clause of the Agreement relied on was clause 4.2 (included above) which sets out that the Agreement should be written and interpreted in conjunction with the National Employment Standards (NES). Further, they emphasised that where there is an inconsistency between the Agreement and the NES, and the NES provides a greater benefit, the NES provisions will apply to the extent of the inconsistency.

[34] In addition, they relied on clause 5 of the Agreement (included above), definitions and interpretation, of the primary caregiver definition is that the primary caregiver "[m]eans a person who assumes the principal role of providing care to a child."

[35] In addition, the Union relied on clauses 27.24 and 27.29 to argue that after the birth of their respective children, Mr Ellery and Mr Bazzo became the primary caregiver for their babies while their partners recovered from a caesarean section and therefore, they were entitled to paid leave as the primary caregiver under the Respondent's Parental Leave Standard.

[36] The Respondent having agreed that the employees were primary caregivers, they relied on the clauses in the Agreement, of which set out the rules and components to be satisfied for paid primary caregivers leave. These applicable leave provisions stated that for an employee to be eligible for paid primary caregivers leave they must meet the terms of 12 months continuous service who will give birth to or adopt a child or where the birth parent or original primary caregiver in the case of adoption returns to work. The Union stated that restricting parental leave to the person giving birth except in cases of adoption, is in breach of the Employer's own parental leave policy. They argued it is discriminatory on the basis of sex in this circumstance, and it was a breach of the NES by failing to recognise non-birth parents as primary caregivers with an entitlement to parental leave.

• [37] The Union submitted that the updated NES entitlement (from 1 July 2023, as occurred after the approval of the Enterprise Agreement) in relation to the flexible sharing of Parental Leave means that clause 27.27 is 'watered down' in relation to the birth parent being required to return to work before 'the men' can access paid primary caregivers leave.[4]

• [38] The Union submitted that the resulting situation was that clauses 27.24 and 27.27 are unlawful clauses. The Applicant stated that these clauses (when considered within those NES changes) refer to a person who will 'give birth to' or the 'birth parent', accordingly in plain terms, they argued that men such as Mr Ellery and Mr Bazzo, are unable to birth children. The Union submitted the resulting effect is that the paid primary caregiver leave clauses are discriminatory and therefore unlawful pursuant to s.194 of the Act. The Union raised s.195 of the Act which states that discriminatory terms include terms that discriminate on the basis of sex or family/carer's responsibilities. The Union therefore submitted that Aurizon in only allowing women to access leave in the case of being a birth parent is discrimination on the basis of sex. Further, that granting paid parental leave to an adoptive parent while denying a man the right to access paid parental leave in relation to his biological child is discrimination on the basis of family or carer's responsibilities.[5] The Union further submitted that clauses can discriminate on more than one basis, and that just because a clause may also discriminate based on sexuality or gender as applied to same sex parents does not mean that the clause is not an 'objectively reasonable' form of discrimination.[6]

[39] The Union at the Hearing submitted what they considered as the effect of these allegedly discriminatory clauses, which both Parties had agreed to, in the Agreement that is:

...if Aurizon's version of events, or interpretation of this particular clause is to be accepted, what that would essentially mean is that her father could access the paid primary caregiver leave if his healthy partner had returned to work early, but not if she's unwell.

And, in fact, the absurdity arises when, if this clause is given its literal meaning, that if the mother had died in childbirth, that he would still not be entitled to paid primary caregiver leave on Aurizon's reading of the particular clauses."

[40] Again, these were the clauses that arose from the context of the negotiations between the Parties.

[41] The Union then raised clause 27.29; they submitted that this clause can undo the alleged discrimination in clauses 27.24 and 27.27 where a partner of a person who gave birth, should also be entitled to paid parental leave as the primary caregiver. At the Hearing, the Union submitted that clause 27.29 does this by:

...And it simply provides that the same rules, that apply to the birth parent, apply equally to the partner who is to be the primary caregiver."

• [42] The Applicant interpreted that Mr Ellery and Mr Bazzo were both the original primary caregivers as both mothers were incapacitated as a result of the birth of the children.[7]

[43] However, during the Hearing, the Union confined the relevant clauses to this matter as 27.24 and 27.29:

MS JONES: ... we consider that only clauses 27.24 and its saving clause, 27.29, are of relevance to this matter. And, again, we say that when one is read in conjunction with the other, we have an entitlement for both of the men to be paid as primary caregivers under the clause."

[44] Further, the Union argued that clauses 27.27 and 27.28 were irrelevant. The Union submitted at the Hearing that:

I want to briefly touch on 27.27 and 27.28, although I think that neither of them are really particularly relevant, but I'd like to explain why. 27.27, it begins with a qualifier, and the qualifier is in cases where the birth parent, or the original caregiver in the case of adoption, returns to work. That's not what occurred here. Both of the men were the original primary caregiver. At no point, before the end of the six weeks indicated in the medical certificates, were either of the mothers the primary caregiver. Both of them were the original primary caregiver. So we say that because of the lack of a qualifier, that 27.27 is of no effect.

Clause 27.8, again, speaks about the partner as though they are unable to be considered the first primary caregiver. It's of slightly more relevance than 27.27 to the situation, but, essentially, says that two parents cannot be the primary caregiver at the same time. But, again, we say this was not the case here. In this case, both men were the only primary caregiver for the relevant period...

MS JONES: ... what I'm saying here is that this is the reason why 27.28 is of not relevance. Because we're not dealing with a situation where both the mother and father were the primary caregiver, there was only one primary caregiver in both circumstances for the entire six weeks, and they were the original primary caregiver, that was the father."

• [45] The Union stated that the Parental Leave Standard and the Guide to Parental Leave, made by the Respondent in 2020 (prior to the approval of the Agreement) being materials given to both Mr Ellery and Mr Bazzo when they enquired about parental leave, should therefore be considered. The Union submitted that the two documents assist to clarify who can be a primary caregiver and their entitlements.[8] The following extract was relied on by the Applicant:

a. At 3.1 the entitlements of both the primary carer and the secondary carer. It identifies that the Primary Carer or Birth Parent are entitled to 14 weeks' paid leave at the base rate of pay (of the substantive position) applicable on commencement of leave.

b. At 9 under key words, it identifies the primary carer as "the member of a couple or single carer that assumes greater responsibility for daily childcare."

a. At page 3- Employees eligible for paid parental leave as defined in the Parental Leave Standard, can access paid leave.

A- If you are not pregnant and will be the primary carer of a child, your leave commences at the date of birth or date of placement.

c. Q- I am not a birth parent but will be the primary caregiver, what leave can I access?

A- You are eligible to access primary carer paid parental leave as defined in Aurizon's Parental Leave Standard."[9]

• [46] The Applicant submitted that company policies do not need to be referenced in an Agreement for them to apply.[10] The Applicant submitted that it would be misleading of the Respondent to provide the Parental Leave Standard and the Guide to Parental Leave to employees and then not have it considered.[11]

• [47] The Applicant submitted that both Mr Ellery and Mr Bazzo had medical certificates which identified them as the primary caregiver, and that as per the decision in Australia Rail Tram and Bus Industry Union v Metro Tasmania Pty Ltd,[12] if a medical certificate identifies the father as the primary caregiver, it can be accepted as such. Therefore, the Union stated that Mr Ellery and Mr Bazzo are considered to be primary caregivers and should not have been denied the entitlement to this leave.[13]

• [48] This current case by agreement between the Parties has deliberately circumvented the assessment of the circumstance of the whether the fathers met the assessment of primary caregivers. It was by agreement, considered that they met the primary caregiver role from after the birth by caesarean section and that the fathers were required to fulfil the primary caregiver roles. Other case precedent decided on such questions have assessed more forensically from a care perspective as to whether the employee was undertaking the primary caregiver role.[14]

• [49] The Applicant also raised the Explanatory Documents to the 2019 and 2022 Enterprise Agreements[15] which state in relation to Parental Leave that:

"There are special categories of leave that may be taken by employees with 12 months continuous service, including:... paid primary care giver leave, which is paid leave (14 calendar weeks)"

• [50] The Applicant submitted that clause 27.29 extends the parental leave to partners who are the primary caregiver subject to the same rules applied to a birth parent, and therefore if this clause does not mean that Mr Ellery and Mr Bazzo have the entitlement to paid primary caregiver leave, that the clause has no work to do. The Applicant submitted that this interpretation of meaning is in line with the Explanatory Documents for the Parental Leave Standard, and ensures no discriminatory application of the clauses.[16]

• [51] The Applicant submitted that clause 27.29 operates to provide parental leave beyond the limitations set by clause 27.24 and therefore provides for the paid primary caregiver leave entitlement to be applied as sought in the current circumstances.[17]

• [52] The Respondent submitted that the answer to the Question for arbitration should be determined to be 'no'. The Respondent stated that paid primary caregiver leave is only available under the Agreement where (1) the employee has 12 months of continuous service and will give birth or adopt a child or where (2) the employee has 12 months of continuous service who is not the birth parent but the birth parent returns to work, and the employee then fulfils the primary caregiver role. The Respondent submitted that neither Mr Ellery nor Mr Bazzo meets this definition.[18] The Respondent emphasised that in the circumstances of both Mr Ellery and Mr Bazzo neither of the birth parents had returned to work.[19]

• [53] The Respondent submitted that answering the Question in the negative accords with the 'ordinary meaning' of the words in the Agreement.[20] The Respondent submitted that there is no ambiguity in the meaning of the words of the clauses.[21] The Respondent stated that the interpretation of the Union, in relation to this clause, ignores the unambiguous text, in relation to the birth parent returning to work where neither the circumstances of Mr Ellery nor Mr Bazzo met this prerequisite to accessing paid parental leave under the Agreement. Therefore, the Respondent submitted that when Mr Ellery and Mr Bazzo applied for paid parental leave, that neither of their partners had returned to work, and therefore the entitlement to paid parental leave under clause 27.24 and 27.27 of the Agreement did not arise. [22]

• [54] The Respondent submitted that the Union's submissions in relation to the interpretation of the clause, including reference to the Respondent's Parental Leave Standard, Guide to Parental Leave, and the NES, ignore the text of the Agreement. The Respondent submitted this is because the Parties did not reference those documents in the Agreement despite the opportunity to do so. The Respondent argued that there is no known connection between those documents and the bargaining for the Agreement, and that these documents cannot warrant rewriting the Agreement to disregard the explicit eligibility criteria agreed between the Parties as set out in the clauses.[23] Further, in relation to the explanatory memorandum for the clauses, the Respondent at the Hearing stated that:

Similar things are said about the explanatory memorandum. That was provided to employees at the time of the vote - leading up to the vote. Even if it's correct, which we say it's not, the explanatory documents can't replace the clear ordinary meaning in the agreement. The principles in (indistinct) can't be any clearer than that. But in any case, the explanatory memorandum documents are, we submit, entirely consistent with the position put by the Respondent on the interpretation of the clause."

• [55] The Respondent conceded that on initiation of their inquiry, Mr Ellery and Mr Bazzo were provided with the Respondent's Standard and Guide, but that this was only in terms of the first instance response. They stated that when Mr Ellery got to the second stage of the dispute process, the response was corrected and the correct position or correct interpretation was maintained. The Respondent submitted that the Standard is not incorporated as part of the Agreement and therefore it is not within the Commission's jurisdiction. The Commission's jurisdiction relies on the Agreement's disputes procedure; being in relation to disputes about matters arising from the Agreement or in relation to the NES. The jurisdiction does not extend to the documents that sit outside of these. Therefore a dispute that arose over a provision of the Standard does not enliven the jurisdiction.[24] The Respondent at the Hearing, submitted that this dispute, is in relation to clauses relating to paid parental leave under the Agreement:

It's not what their entitlement is under the policy. It's what is their entitlement under the EA and how that was arrived at, at the end of the dispute settlement procedure."

[56] Ms Shanahan, solicitor for the Respondent, provided an affidavit on the relevant approval documents with the Enterprise Agreement. She was not required for cross-examination. The Respondent's witness stated, that in relation to the Agreement approval that:

"(i) the AFULE in its Form F18 did not object to the approval of the agreement, including on the grounds of any inconsistency between the parental leave provisions and the NES;

(ii) the Comparison of Terms between the relevant Award and the Coal EA indicated that the parental leave clause 'provides flexible access to paid leave to a partner of a birth giver should the partner subsequently become the primary caregiver';

(iii) the Explanatory Document provided to employees in advance of the vote explained:

(a) 'This clause sets out the paid and unpaid parental leave entitlements that an employee may access under the Proposed EA. These benefits exceed those set out in the NES';

(b) 'Where an employee's partner gives birth to, or adopts a child, the employee is entitled to 1 week of paid partner's leave and 7 weeks of unpaid partner's leave which must be taken concurrently with the primary care giver's leave unless otherwise agreed'; and

(c) 'Entitlements under the Proposed EA are also in addition to any entitlements the employee may have under the Government's Paid Parental Leave scheme'."[25] (footnotes omitted)

• [57] The Respondent stated that the above comparison of the clauses demonstrate the Parties' intentions to have a different entitlement to paid primary caregivers parental leave available to a birth parent and a non-birth parent.[26]

• [58] The Respondent submitted that, contrary to the Applicant's submissions, the clauses are not unlawful. However, even if they were unlawful, that the consequence would be that the clause has no effect and therefore there would be no entitlement to paid parental leave at all.[27] The Respondent submitted that for the application of the provision to be unlawful or discriminatory, that any less favourable treatment arising from the clause must be 'because of' the employee attribute.

• [59] The Respondent submitted that the clause is about whether an employee is the birth parent, rather than being dependent on gender. They stated that any assessment of unfavourable treatment should compare a female employee in the same circumstance, where her partner was the birth parent or original primary caregiver who has not returned to work. In these circumstances, the female employee would similarly not be entitled to paid parental leave under clause 27.27 and therefore the Respondent stated that there is no differential treatment.[28]

• [60] The Respondent also submitted that the clause is not discriminatory on the basis of family responsibilities as someone who does not have family responsibilities would have no entitlement under clause 27.27.[29]

• [61] The Respondent further submitted that the Commission has indicated that s.195 of the Act does not include indirect discrimination.[30] The Respondent stated that the clause also does not indirectly discriminate, but even if the clause was indirectly discriminatory that any discrimination is objectively reasonable.[31]

[62] In relation to clause 27.29, the Respondent submitted the following at the Hearing:

Reference is made then to 27.29 and the reference to rules. Again we say read the clause in context and as a whole. It doesn't say they get the same rights. It doesn't say they get the same benefits. It says the same rules that apply to the birth parent apply to the primary caregiver. Rules mean for instance in 27.24 you have got to have 12 months continuous service.

It means for instance in clause 27.28 that it cannot be taken at the same time as the birth parent, or in clause 27.31, that it must be in blocks of at least one week unless otherwise agreed, and clause 27.32, it's paid the relevant rate of pay; 27.33, when superannuation is payable. Those are the rules that are referred to in 27.29. It doesn't give an additional right."

Outline of Submissions in Relation to Australian Rail, Tram and Bus Industry Union v Metro Tasmania Pty Ltd (Metro Tasmania)[32]

• [63] The Respondent submitted that the paid parental leave clause under the Metro Tasmania Bus Operators Enterprise Agreement 2020, in relation to its text, context and purpose is different to the clause in this Agreement. The Respondent stated that clause 27 of this Agreement has different eligibility requirements in relation to the return to work of the birth parent. The Respondent reiterated that the question of whether Mr Ellery or Mr Bazzo are primary caregivers in relation to this matter is not in question. However, the Respondent correctly distinguished the case as that the Full Bench stated that the appeal was "fact specific to the Agreement under which the dispute arose, and to the circumstances of Mr and Mrs Maharjan". As such, the Respondent submitted that this case did not have any relevance to these matters.[33]

• [64] The Applicant submitted that this case turned on the circumstances of that matter but that the principal takeaway from Metro Tasmania in relation to this matter is that there was a medical certificate that identified the father as the primary caregiver, and that this case held that the medical certificates do not need to be looked behind and can be accepted.[34]

Outline of Submissions in Relation to Murray v Ambulance Victoria (Murray)[35]

• [65] After the Hearing, the Respondent corresponded with the Commission in relation to the recent case of Murray v Ambulance Victoria,[36] which was published after the Hearing in this matter. The Respondent submitted that this case concerned the interpretation of the entitlement to paid parental leave as a primary caregiver. It was considered necessary to consider this case and the Applicant consented. Directions were set in order to be satisfied that all the relevant information was before the Commission in making this Decision.

[66] The provision in Murray provided the following definition of a primary caregiver to 'the person who takes primary responsibility for the care of a newborn or newly adopted child...' (emphasis added). It was held that the Applicant was not entitled to paid primary caregiver leave because the child was not a 'newborn'. The Respondent submitted that Murray upheld this definition, despite no legislation making the distinction in relation to the child being a 'newborn'. They stated that this is analogous to the Union in this matter raising the new NES amendments for unpaid parental leave. They submitted that Murray reinforced that the Agreement must be interpreted in accordance with the ordinary meaning of the words as the starting point. The Respondent stated the following from Murray in relation to the interpretation that:

"interpreting the agreement, not of giving effect to a notion of what is fair or just disregarding what has been written"[37]

[67] The Applicant submitted that there was a clause in the relevant agreement in Murray that stated that if there was an inconsistency between a summary of a clause and the actual clause, that the clause would prevail. The Applicant said in relation to this matter that there was no interpretation like that, to provide guidance on clause 27.29 of the Agreement which the Applicant stated provided the parental leave entitlement. The Applicant therefore submitted that Murray is of limited relevance to this matter.

Outline of Submissions in Relation to the National Employment Standards

• [68] The Applicant submitted that Mr Ellery and Mr Bazzo were denied their right to take parental leave under the National Employment Standards (NES).[38]

• [69] The Union stated that Mr Ellery and Mr Bazzo had met the eligibility requirements for unpaid parental leave under the NES and so the entitlement to unpaid parental leave was met. The Applicant submitted that Mr Ellery and Mr Bazzo requested access to parental leave and were denied this and informed that only personal or carer's leave was available. Therefore, the Union stated that Mr Ellery and Mr Bazzo were denied their NES right to access parental leave whether it was paid or not.[39] They submitted that the parental leave clauses relied on by Aurizon rely on a less generous definition of a person who is entitled to take parental leave than the NES.[40]

• [70] The Respondent submitted that any reference to Mr Ellery or Mr Bazzo being denied their rights to unpaid parental leave in relation to the NES were only first alleged in their arbitration submissions. They stated that both Mr Ellery and Mr Bazzo only raised paid parental leave (and there is no evidence to indicate that they applied for or were denied unpaid parental leave under the NES), their Form F10s only refer to paid parental leave, the Question for arbitration is about paid parental leave, and the NES only contains entitlements to unpaid and not paid parental leave. The Respondent therefore submitted that the Union's submissions in relation to the unpaid parental leave under the NES were not raised pursuant to clause 8 of the Agreement and this consideration is jurisdictionally barred.[41]

• [71] The Applicant refuted this as they submitted that the Agreement and NES have been breached and therefore this is within the jurisdiction of the Commission and that there is no requirement to give every detail at Step 1 of the dispute resolution process and that the matter of unpaid parental leave does not change the outcome sought.[42]

[72] The Applicant set out that the Respondent has now accepted (for the purposes of this Dispute Hearing) that both men are primary caregivers but denied that (in terms of the provisions of the Agreement) they are entitled to be paid primary caregiver leave as they did not meet the provisions as they had not given birth, did not adopt a child, and their partners as the birth parent had not returned to work.

[73] For clarity, both Parties requested the Commission to accept for the purposes of this arbitration that the employees were primary caregivers. However, each Party reserved their rights in relation to this classification of the employees, (in terms of any further dispute of this nature) given no examination of the evidence relating to these employees as primary caregivers was undertaken, by the acceptance of the Parties. The manner in which this arbitration was undertaken is that the Parties agreed that if they were categorised in that way, whether they would have the entitlement for paid primary caregivers leave afforded to them under the Agreement.

[74] There is artifice in this exercise in terms of the Parties' agreement to deem the employees as primary caregivers on the basis of the medical information that the birth parents were unable to engage in the primary care of the children. However, the employees had not met the other components of the paid primary caregiver leave clauses. That is, there is a distinction between deeming an employee as a primary caregiver and meeting the components of paid primary caregiver leave. There are a range of components, including 12 months continuous service, that the employee will give birth to or adopt a child, and where the birth parent or original primary caregiver in the case of adoption has returned to work. By the agreed approach of the Parties, an assessment of whether the two employees met the definition of primary caregiver has been obviated. However, simply meeting the definition of primary caregiver, does not automatically give an employee the right to paid primary caregiver leave under the Agreement.

• [75] The Applicant referred to the Respondent's responsive submissions setting out that they consider that their position is not discriminatory. The Applicant referred to the decisions raised by the Employer and stated that these are specifically for maternity leave and have a reliance on a special kind of additional leave that is granted to mothers to physically recover from the birth of a child.[43] The Applicant dismissed the decisions the Employer had relied on in this regard, as being of no relevance to the current proceedings given that the matter with which we are concerned exists under the Act, which they state deals with gender neutral parental leave.

[76] The Applicant argued that the Respondent's position is that there was agreement between the Parties, that paid parental leave would not be payable to primary caregivers under the same rules as birth parents. The Applicant disagrees with this. Further the Applicant argued that this is contrary to the Agreement provision at clause 27.29. It must be emphasised that this position of paid primary caregiver leave was not unilaterally inserted into the Agreement, but resulted from agreement between the Parties.

[77] The Applicant articulated the Respondent's position as such, "that if a birth parent dies and their partner becomes the primary caregiver, they are not entitled to paid parental leave, but if birth parent returns to work - they are. If there is an incapacity on the part of the birth parent, there exists no entitlement. However, if the birth parent is fit and healthy to return to work, there is an entitlement." These possible permutations or outcomes of events associated with birth parents were not contemplated by the Parties at the time of the Parties negotiating and writing the clause. It is for the Parties to consider an amendment to the criteria to be complied with in the clause if it is considered a new clause should accommodate a different view now advanced of the rights of the practical outcomes necessary for primary caregivers. However, this does not undermine the application of the current clauses.

[78] The Applicant argued that the clause on the Respondent's interpretation introduced a 'non-sensical' conclusion. Further, the Applicant argued that no Agreement occurred on that basis and that clause 27.29 operates to provide parental leave in circumstances beyond the limited scenarios set out.

[79] The above case authorities dealing with the interpretation of Enterprise Agreement provisions set out that the starting point for an interpretation of the relevant clauses is the ordinary meaning of the words as per the approach in Berri. In line with the proper approach to interpretation, the current application of the clause is based on the ordinary meaning of the words.

[80] The Applicant relied on the NES, which the Respondent stated was not introduced as an argument by the Applicant until the '11th hour' of the proceedings. The Applicant argued that the commencement of the dispute as is normally undertaken, was initiated by delegates at the Workplace level who are not legally trained. However, the Applicant argued that to ignore the NES aspect of this matter would endorse what they saw as the Respondent's lack of respect for the NES and the provision in the Agreement which provides for the NES to override the Agreement where the NES provides a greater entitlement:

"The eligibility to take parental leave under the NES is a greater benefit to the men than the eligibility under the agreement. It is, therefore, a valid aid to the interpretation of the relevant clauses."

[81] While the Applicant generally asserted that the parental leave entitlements were greater, they provided limited development of this argument; no direct comparator was made between a specific clause in the NES which provides a greater entitlement, to a specific clause under the Agreement providing a lesser entitlement. The Applicant's argument fails to acknowledge the difference between unpaid and paid parental leave, which are distinct entitlements. The NES entitlements are in relation to unpaid parental leave, which is distinct and separate from paid parental leave under the Agreement as they are the focus of this dispute. There is no evidence indicating that Mr Ellery and Mr Bazzo were seeking unpaid parental leave. The entitlement to paid parental leave under the Agreement is separate from unpaid parental leave in the NES. Consequently, the NES does not provide 'a greater benefit to the men than the eligibility under the agreement'.

[82] The claim to unpaid parental leave under the NES and paid parental leave under the Agreement are distinct. The Question for arbitration in this matter is in relation to paid primary caregivers leave. As such, it is not a relevant assessment to take into account a consideration of the entitlement to unpaid parental leave and the NES in these matters as they are separate and distinct matters to the Question before me in relation to if there was an entitlement to paid primary caregivers leave.

Parental Leave Standard and the Guide to Parental Leave

[83] The Respondent's company specific Parental Leave Standard and the Guide to Parental Leave were prepared in 2020. The Agreement was negotiated after that and approved in 2023. Both the Applicant and the Respondent are experienced industrial relations Parties. The Parties were at liberty to incorporate the Parental Leave Standard and the Guide to Parental Leave or reference to such in the Agreement, but this was not done. Accordingly, those documents do not have the force of a provision of the Agreement. Both Parties provided their formal support documentation for the approval by the Commission of the Enterprise Agreement.

[84] It is recognised that these documents provided some incorrect information and should not have been provided by the Respondent's in response to the employees' early inquiries. The provision of wrong advice to the employees, based on the company policy that was not reflective of the current Agreement provisions, cannot be condoned. It is acknowledged however in sending the initial response to the employees when they inquired about paid primary caregiver leave, the complaint of the Applicant is legitimate, regarding the information that was sent to the employees, being based on the content of these documents (Parental Leave Standard and the Guide to Parental Leave) that sit outside of the Agreement, and that the documents do not represent an entitlement as per the provisions of the Agreement. It is assumed however that the Union would have been aware that in reviewing the correspondence sent to the employees, that the internal response provided to them by the Respondent did not represent the provision for parental leave as negotiated between the Parties and as set out in the Agreement.

[85] The Applicant's argument was that the Respondent had misled these employees as to their entitlements by providing them with the Parental Leave Standard and the Guide to Parental Leave. The Respondent asserted that those documents were not relevant and should not be considered. The Applicant further characterised this conduct by the Respondent as unlawful and potentially in breach of the Australian Consumer Law, if not certainly in breach of the good faith obligations of an employer. The Applicant provided these arguments with limited weight; as was their argument that the paid parental leave provisions of the Agreement being discriminatory only referred to in a cursory manner.

[86] In the current matter clause 27.24 requires that the primary caregiver is the individual who will give birth to or adopt the child. Mr Ellery or Mr Bazzo were neither. Therefore, on the ordinary meaning of the words in the clause, these employees were not entitled to paid primary caregiver leave. Clause 27.27 requires the birth parent or original primary caregiver in the case of adoption, to be eligible on the terms of the clause, to have returned to work. In this case, the partners of Mr Ellery and Mr Bazzo had not returned to work, as such on the ordinary meaning of the words, these members were not entitled to the leave. On the ordinary meaning of the words of these two clauses, from which no ambiguities arise, no entitlement to the leave is met.

[87] It is therefore necessary to examine the Applicant's submission that these Agreement clauses are discriminatory when considered against ss.194 and 195 in relation to access to parental leave on the basis of sex and family or carer's responsibility.

• [88] The Full Bench in Budd v Australian Federal Police (Budd),[44] described the circumstances of direct discrimination:

"[69] Direct discrimination is concerned with the treatment of a person less favourably in the same or not materially different circumstances because of a particular protected attribute of the person. So far as s.195 of the Act is concerned, a term of an enterprise agreement will discriminate in the sense that the term treats less favourably an employee covered by the enterprise agreement because of, or for reasons including, the employee's protected attribute identified therein. Whether a term is a discriminatory term in that it directly discriminates against an employee, is to be assessed in our view as follows.

[70] One must first determine the position of the employee covered by the enterprise agreement with the protected attribute. Secondly, one must determine the position of an employee covered by the enterprise agreement without the protected attribute or with a different attribute. Thirdly, there must be identified differential or less favourable treatment by or as a necessary consequence of the operation of the term of the enterprise agreement in circumstances that are the same or not materially different. Fourthly, one must consider whether the differential or less favourable treatment is because of, or for reasons that include the first employee's attribute. Finally, one must consider whether one or more of the exemptions identified in s.195 are applicable. Terms of an enterprise agreement apply subject to the various anti-discrimination laws identified in s.27(1A). It may therefore also be necessary to consider the operation of the Agreement subject to relevant anti-discrimination laws.

[71] Relevantly for the purposes of disposing with the ground of appeal, it is necessary to consider the position of an employee covered by the Agreement with the relevant attribute (of sex, sexual orientation or family responsibilities) in one set of circumstances and compare it to the position of an employee covered by the Agreement without the relevant attribute in the same or not materially different circumstances." (emphasis added)

• [89] As above, the Applicant submitted that the term was discriminatory on the basis of sex and family or carer's responsibility. The Applicant submitted that the right to paid primary caregiver leave is only given to a woman in the case of a birth parent, and therefore they argued the provision is discriminatory on the basis of sex.[45] The Applicant then submitted that granting the right to paid primary caregiver leave to an adoptive parent and not to a man where the child is biologically his, is discrimination on the grounds of family or carer's responsibility.[46] However, the Applicant did not develop this argument further, in terms of the current provision.

• [90] The Respondent submitted that paid primary caregiver leave, in terms of the agreed words of the clause, is not dependent on sex but comes down to if the employee meets the components of the clause. The Respondent submitted that the comparator is a female whose partner is the birth parent (as compared to the two members in this matter who are men, whose partner is the birth parent). The Respondent submitted that in these circumstances, both the female and male would not be able to take the paid parental leave and therefore there is no direct discrimination. Further, the Respondent submitted that the comparator in relation to family or carer's responsibility is an employee without these responsibilities.[47]

[91] Authorities support that s.195 does not include indirect discrimination, however even if indirect discrimination is considered, this does not change the outcome of this decision; as indirect discrimination does not arise on the clause and was not argued by the Applicant.

• [92] In Budd, the Full Bench agreed with the determination that the clause was not indirectly discriminatory.[48] In reaching this conclusion, the Full Bench considered the application of indirect discrimination to s.195:

"[58] The Deputy President considered whether s.195 of the Act extended to indirect discrimination and noted that there was some debate over whether the provision so extended. The Deputy President did not resolve the identified debate but instead proceeded on the assumption that s.195 extended to indirect discrimination. He then considered whether the condition in clause 46(2) that was said to give rise to indirect discrimination was reasonable. There can be no criticism of the Deputy President in adopting this approach. In choosing to proceed in that way, the Deputy President did not interpret s.195, rather he assumed, favourably to the Appellant, that the provision had broader operation than being confined to terms of an agreement that directly discriminate.

[59] The Deputy President considered the operation of the SDA [Sex Discrimination Act 1984] and concluded that s.7B contained a reasonableness test in respect of indirect discrimination. The Deputy President interpreted s.7B in accordance with the ordinary meaning of the words used in the provision. He determined that reasonableness is a factor in determining whether a term is indirectly discriminatory. For this conclusion the Deputy President referred to Vice President Lawler's decision in Australian Catholic University Limited." (emphasis added)

[93] The Respondent submitted that if indirect discrimination is considered in this matter, that the clauses are not indirectly discriminatory, however, even so, the reasonableness factor should be considered and any deemed discrimination should be taken as objectively reasonable. The Applicant submitted that there is no objectively reasonable form of discrimination. The Applicant submitted that the comparator used by the Respondent in relation to these clauses of the Agreement are flawed, but did not extrapolate this argument or elaborate on an alternative appropriate comparator. It must be considered whether Mr Ellery and Mr Bazzo not being entitled to paid primary caregiver leave is because of their protected attributes or for reasons that include that attribute. The clause as agreed upon by the Parties was not written on the basis of sex. The reason that they did not receive paid primary caregiver leave is not because they were male or because of family responsibilities, the Respondent's reasons relate to whether they are a birth parent and whether the birth parent had returned to work.

[94] The Union has argued this is discriminatory. By extrapolating the Union's argument, as set out, demonstrates the lack of basis or reasonable application of ss.194 and 195 to the provisions. Accordingly, I reject the argument that the provision as currently applied is directly or indirectly (if this is required to be considered) discriminatory.

[95] Clause 27.28 is a clarifying clause in relation to paid primary caregiver leave, describing that this leave cannot be taken at the same time that the birth parent is on primary caregiver leave or the original primary caregiver leave in terms of adoption. The clause itself does not provide a right to primary caregiver leave but sets out where it is not applicable. The wording is not ambiguous.

[96] The Applicant submitted that clause 27.29 extends the primary caregiver leave to partners who are the primary caregiver subject to the same rules applied to a birth parent. If clause 27.29 is to be read in terms of the submissions made by the Union, this would alter the clause and make the specific wording of the other primary caregiver leave clauses as part of the agreed clauses in the Agreement, redundant. For example, as above clause 27.24 specifically applies to the birth parent who is a primary caregiver or to a primary caregiver parent who adopts. If the Union's argument is taken, then clause 27.29 would apply so that it would include all primary caregiver employees. If that was the intention of the Parties, then specific wording (such as 'who will give birth to') would not have been included within clause 27.24. However, the Parties agreed to the specific wording of an employee who will give birth to or adopt a child. This wording is not ambiguous. The purpose of clause 27.29 is to provide clarity on if it is the partner taking leave, so for example, clause 27.27 allows for circumstances for the partner to take leave where the birth parent or original primary caregiver in the case of adoption has returned to work; clause 27.29 steps in to require that the partner, as per clause 27.24 has completed the required 12 months of continuous service. Therefore, clause 27.29 does not have 'nothing to do' as submitted by the Union; it acts to ensure that the criteria, including the 12 months continuous service is met if the partner is eligible for paid parental leave such as under clause 27.27.

[97] To confirm, as referred to above, the wording in the clauses of the Agreement under contention are clear and unambiguous, therefore the extrinsic material referred to by the Applicant, such as the Parental Leave Standard and the Guide to Parental Leave, are not required to be considered in the interpretation of these clauses. Further, these documents pre-dated the Agreement and did not form part of the Agreement and cannot be considered as appropriate ancillary materials to be considered in the interpretation exercise, particularly given it was recognised they contained incorrect information on the clauses.

[98] For the reasons set out above, the Union members as nominated in this application were not entitled to paid primary caregivers leave under clause 27.24, 27.27, 27.28 and/or 27.29 of the Agreement as they had not given birth to their child or adopted as per clause 27.24, and their partners had not returned to work as per clause 27.27. These clauses are not discriminatory. The Parties agreed on the specific wording to be included within these clauses; and the clauses are not ambiguous. Clause 27.29 cannot be used to alter the specific wording in these clauses; wording that was agreed upon by the Parties.

[99] The Union sought for their nominated members to have their annual leave balances reinstated and have these periods recorded as paid primary caregiver leave. For the reasons set out, this is not granted.

[100] It is understood that that the Union is endeavouring to take an expansionist approach to affording greater scope for their members to exercise the right to take paid primary caregiver leave and that this may be seen to be an interim case to achieving those greater rights/entitlements for their members on that. It is their right to bring such a case and to argue provisions that they consider are not keeping pace with their members' needs. However, in any Enterprise Agreement negotiations, parties bargain for provisions and undertake assessments of the benefits and/or associated costings relative to the workforce in affording the entitlements in the provisions. Accordingly, with a provision that lacks ambiguity or any justification requiring a variation, it is not for the Commission to endorse a unilateral, fundamental change to the clause during the life of an Agreement. Particularly in circumstances where the criteria (to be met) in the clause are clear, were agreed, endorsed by the majority of the workforce, and approved by the Commission.

[101] The applications (C2024/8964 and C2025/892) made pursuant to s.739 are refused. I Order accordingly.

[1] [2017] FWCFB 3005 at [114].

[2] [2018] FCAFC 131 at [97].

[3] Applicant's Outline of Submissions, pg. 2; 7.

[4] Applicant's Outline of Submissions, pg. 3.

[5] Applicant's Outline of Submissions, pg.3-4.

[6] Applicant's Outline of Submissions in Response, pg. 4.

[7] Applicant's Outline of Submissions, pg.3-4.

[8] Applicant's Outline of Submissions, pg. 5.

[9] Applicant's Outline of Submissions, pg. 5-6.

[10] Applicant's Outline of Submissions in Response, pg. 6.

[11] Applicant's Outline of Submissions in Response, pg. 6.

[12] [2024] FWC 1873 at [45].

[13] Applicant's Outline of Submissions, pg. 6.

[14] [2024] FWC 1873.

[15] Applicant's Outline of Submissions in Response, pg. 4.

[16] Applicant's Outline of Submissions in Response, pg. 5; 7.

[17] Applicant's Outline of Submissions in Response, pg. 6.

[18] Respondent's Outline of Submissions, pg. 6.

[19] Respondent's Outline of Submissions, pg. 8-9.

[20] Respondent's Outline of Submissions, pg. 6.

[22] Respondent's Outline of Submissions, pg. 10.

[23] Respondent's Outline of Submissions, pg. 10-11.

[24] Respondent's Outline of Submissions, pg. 19.

[25] Respondent's Outline of Submissions, pg. 11-12.

[26] Respondent's Outline of Submissions, pg. 12.

[27] Respondent's Outline of Submissions, pg. 15-16.

[28] Respondent's Outline of Submissions, pg. 16.

[29] Respondent's Outline of Submissions, pg. 16.

[30] Respondent's Outline of Submissions, pg. 16; Pearn v Catholic Schools Parramatta Diocese Ltd [2023] FWC 3039 at [138]- [152]; see also Hon. Christian Porter MP A-G v Metropolitan Fire and Emergency Services Board [2019] FWCFB 6255 at [63]- [73].

[31] Respondent's Outline of Submissions, pg. 16.

[32] [2024] FWC 1873.

[33] Respondent's Outline of Submissions, pg. 5.

[34] Applicant's Outline of Submissions, pg. 6.

[35] [2025] FWC 2861.

[38] Applicant's Outline of Submissions, pg. 2.

[39] Applicant's Outline of Submissions, pg. 2.

[40] Applicant's Outline of Submissions, pg. 6.

[41] Respondent's Outline of Submissions, pg. 2-4.

[42] Applicant's Outline of Submissions in Response, pg. 1.

[43] Budd v Australian Federal Police [2018] FWCFB 6095; Tung v State of Queensland [2013] QCAT 251.

[44] [2018] FWCFB 6095.

[45] Applicant's Outline of Submissions, pg. 3.

[46] Applicant's Outline of Submissions, pg. 4.

[47] Respondent's Outline of Submissions, pg. 16.

[48] Budd v Australian Federal Police [2018] FWCFB 6095; Tung v State of Queensland [2013] QCAT 251 at [63].

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