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[2026] FWC 267
General information, not legal advice.
Fair Work Commission
2026-01-30
Original judgment source is linked above.
s.739 - Dispute resolution
Application to deal with a dispute under an enterprise agreement.
[2] The dispute may be shortly summarised as follows: is the Applicant entitled to carers leave under clause 56 of the VPS Agreement for the period from 5 March - 17 April 2025 during which he accompanied and acted as carer for his father while travelling to India, where his father is said to have attended a medical appointment and undertook intensive physiotherapy treatment?
[1] Section 739 of the Act empowers the Commission to deal with certain disputes under enterprise agreement dispute settlement terms. The VPS Agreement contains such a term, which is set out at clause 13. It was not contested that the question to be determined by the Commission, which is set out below, is a dispute about a matter dealt with in the VPS Agreement, as required by clause 13.2 of the VPS Agreement. Nor was it in dispute that the steps taken by the parties to resolve the dispute constituted compliance with the dispute resolution procedures of the VPS Agreement. Having regard to the information in the Form F10 application filed by Mr Singh, and the views of the parties, I am satisfied that the Commission has jurisdiction to deal with the dispute, including by arbitration, as provided by clause 13.12 of the VPS Agreement.
[2] The matter was subject to conciliation before the Commission in a conference conducted on 30 July 2025 but remained unresolved. Mr Singh then requested the matter be programmed for arbitration pursuant to clause 13.12(a) of the VPS Agreement. The matter was listed for hearing on 19 November 2025 in advance of which the parties filed material on which they intended to rely. At the hearing, Ms Imogen Szumar of Maurice Blackburn Lawyers was granted permission to appear pursuant to 596(2)(a) off the Act on behalf of the Applicant who was called to give evidence. Mr Nick Richmond - Manager Workplace Relations appeared on behalf of the Respondent.
[3] The following question arises for determination by the Commission;
"Is the applicant entitled to paid carer's leave pursuant to clause 56 of the VPS Agreement for the period in which he was absent from work between 6 March and 17 April 2025?"
[7] Mr Singh applied for leave on 27 November 2024 via an email to his manager. Mr Singh applied for 26 days of personal leave (carer's leave) and 5 days of annual leave to cover the period from 5 March - 14 April 2025. Mr Singh outlined the reasons for the leave request in the email as follows;
As discussed in our catchup earlier, I have requested leave in ESS for the following dates. Most of the time is to provide care for my father who has a medical condition and needs me as his primary carer for support due to mobility issues when travelling overseas next year for an in-person appointment at his Neurologist's clinic and some other personal matters. I will provide evidentiary supporting certificate from his rehabilitation Doctor in Melbourne.
I have also recorded some of the time as rec leave as I will also be using a few days of leave for myself.
[8] The Applicant provided a Medical Certificate from Dr Navin Amarasinghe, dated 21 January 2025, in support of the carer's leave application. That certificate said as follows;
This is to certify that Babu Singh requires physical assistance and supervision from his son, Harry Singh, during their overseas travel from 5th March 2025 to 17th April 2025.
Please extend any necessary assistance to facilitate their travel arrangements.
[10] Mr Singh states that his father had serious falls in December 2024 and February 2025. He observed his father's ability to do daily tasks deteriorating and he needed more constant care and support. On 3 March 2025, Mr Singh took his father to see his rehabilitation specialist, Dr Baguley, who provided a letter in the following terms;
This letter is to certify that Harry Singh will require a period of leave from 6/3/25 - 17/4/25.
Harry is required to travel with his father, Babu, as his primary carer. Babu has severe Parkinson's disease and is required to travel to India for urgent appointments with his primary neurologist and to undergo intensive physiotherapy. Harry is required to assist his father's travel to India and to provide day to day personal care, and close supervision for mobility given Babu is a very high falls risk, and has had multiple falls. Babu has sustained severe injuries in the past from his falls including an upper limb fracture. He has had several falls recently given the severity of his Parkinson's disease, and requires continuous close supervision to reduce his risk of a fall or sustaining severe injury subsequent to a fall.
If you require any further information feel free to contact me on 9788 3350.
[13] An email exchange between Mr Singh and the Respondent ensued between March and June 2025 in which the Applicant repeatedly pressed his claimed entitlement to carer's leave under the VPS Agreement, which was rejected by the Respondent. The position was of the Respondent was summarised by Ms Rachel Gold in an email to the Applicant on 18 June 2025 in which she relevantly stated as follows;
We understand your request for six weeks of carer's leave relates to travelling with and supporting your father, who resides in Australia, to attend medical appointments in India. However, based on our discussion and the information provided, it appears that only one
specialist appointment occurred during this period for which you have not provided evidence, and the remainder being physiotherapy appointments for which you have provided evidence noting that it would not meet the evidentiary requirements as they are not a registered practitioner. On this basis, the department is not satisfied that the application for carer's leave meets the requirements for an entitlement to carer's leave both on the basis of the reasons for claiming the carers leave and the evidentiary requirements as outlined in the policy and agreement.
[16] Turning to the provisions of the VPS Agreement, personal/carer's leave is dealt with in clause 56. The clause commences with definitions at clause 56.1. Relevantly for the purpose of the present dispute, 'Registered Practitioner' is defined as follows;
'Registered Practitioner means one of the following: Aboriginal and Torres Strait Islander health practitioner, Chinese medicine practitioner, Chiropractor, Dental care practitioner, Medical practitioner, Medical Radiation Practitioner, Nurse practitioner, Midwife, Occupational Therapist, Optometrist, Osteopath, Pharmacist, Physiotherapist, Podiatrist, Psychologist or any other profession registered under the Health Practitioner Regulation National Law (Victoria) Act 2009.' (emphasis added)
[17] The key qualifying criteria for personal/carer's leave is then dealt with at clause 56.2, which states as follows;
(a) An Employee, other than a casual Employee, is entitled to paid personal/carer's leave when they are absent because of:
(ii) personal illness or injury of an Employee's Immediate Family, household member or Assistance Animal who requires the Employee's care or support; or
(iii) an unexpected emergency affecting an Employee's Immediate Family, household member or Assistance Animal, or
(iv) attendance at a medical appointment with a Registered Practitioner, subject to clause 56.6."
[18] Clauses 56.3, 56.4 and 56.5 deal respectively with; the annual amount and accrual of paid personal/carer's leave, payment of personal/carer's leave at ordinary hourly rates of pay, and how the leave is deducted from employees' leave balances. Clause 56.4 then deals with the ability of employees to take personal leave to attend medical appointments either through use of personal leave or through use of flexible working arrangements. Clause 56.7 permits employees in exceptional circumstances to convert their accrued personal/carer's leave entitlement to half pay to cover a longer period of absence. Clause 56.8 then deals with the requirement to provide notice of the leave 'as soon as practicable'. It is sufficient to note at this stage that clause 56.3-56.8 are not in dispute in the present matter.
[19] Clause 56.9 deals with the evidentiary requirements for the taking of personal/carer's leave. The relevant provision dealing with carer's leave is as follows;
(i) The Employee must provide the Employer with evidence that would satisfy a reasonable person of their entitlement to be paid carer's leave.
(ii) The form of evidence required by the Employer will depend on the circumstances of the carer's leave request. Without limitation, this may include:
[20] Clause 56.10 sets out exceptions and relaxes the evidentiary requirements imposed by clause 56.9, both in respect of the duration of the absence and where the nature of the illness suffered by the employee or the person whom the employee is caring for has a chronic health condition. The exceptions are neither enlivened nor have been argued in the present matter.
[21] Clause 56.11 then deals with the circumstances where the employer may require further documentary evidence to be provided by an employee for personal or carer's leave. Clause 56.11 provides as follows in the case of carer's leave;
(b) The Employer may require that an Employee provide further documentary evidence that would satisfy a reasonable person where an Employee has been on carer's leave for at least two weeks including evidence stating that the condition of the person concerned requires the continued care or support of the Employee."
[22] It is unnecessary for me to deal with the balance of the sub-clauses in clause 56 save for clause 56.13 which states as follows;
Failure by the Employee to provide documentary evidence as required by the Employer within a reasonable period of time may render the Employee ineligible for payment for personal/carer's leave."
[23] It is convenient for me to deal with a submission of the Applicant at this point which is that the personal/carers leave provisions of the VPS Agreement cannot undercut the NES terms dealing with personal/carers leave. That submission is uncontroversial. The NES relevantly provides the following at s 97 of the Act;
An employee may take paid personal/carer's leave if the leave is taken:
(a) because the employee is not fit for work because of a personal illness, or personal injury, affecting the employee; or
(b) to provide care or support to a member of the employee's immediate family, or a member of the employee's household, who requires care or support because of:
(i) a personal illness, or personal injury, affecting the member; or
(ii) an unexpected emergency affecting the member.
Note 1: The notice and evidence requirements of section 107 must be complied with.
Note 2: If an employee has an entitlement to paid personal/carer's leave, the employee may take that leave instead of taking unpaid special parental leave under section 80."
[24] Section 107(3) of the Act deals with evidentiary requirements and relevantly states as follows;
(3) An employee who has given his or her employer notice of the taking of leave under this Division must, if required by the employer, give the employer evidence that would satisfy a reasonable person that:
(a) if it is paid personal/carer's leave - the leave is taken for a reason specified in section 97; or
(b) if it is unpaid carer's leave - the leave is taken for a permissible occasion in circumstances specified in subsection 103(1); or
[25] While the terms of VPS Agreement dealing with the entitlement at clause 56.2 is structured differently to the NES entitlement set out at s 97 of the Act, I see no inconsistency between the two. Both provide for an entitlement to carer's leave in circumstances where the employee is absent because of personal illness or injury of said employee's immediate family or household member, who requires that employee's care or support; or there is an unexpected emergency affecting an employee's immediate family or household member. There is in my view no inconsistency between the VPA Agreement and NES such that it could be argued that the VPS Agreement provides for a lesser entitlement. Clause 56.2 of the VPS Agreement in fact supplements the NES entitlement by extending carer's leave to the provision of care of an 'Assistance Animal', and to circumstances where an employee needs to accompany an employee's immediate family or household member to a medical appointment.
[26] As regards the evidentiary requirements for carer's leave, both the VPS Agreement and NES require the provision of proof that would satisfy a reasonable person. While the VPS Agreement identifies in clause 56.9(b) forms of evidence that may be required to support a carer's leave application, the identified forms of evidence are not expressed as mandatory or an exhaustive list and are still subject to the conditioning requirement that the evidence provided must be such as to satisfy a reasonable person. I consequently see no tension between the VPS Agreement and s 107 of the Act in terms of the evidentiary requirements.
[28] Turning now to clause 56.2(a) of the VPS Agreement. Subject to the evidentiary requirements that I will deal with below, an entitlement to paid carer's leave arises when an employee is absent from work because of one or more of the following circumstances;
[29] The Applicant contends that because his father had a diagnosed personal illness and required care and support while he travelled overseas, the entitlement under clause 56.2(a) is enlivened. That submission is rejected for the following reasons.
[30] It is not in dispute that Mr Babu Singh has a diagnosed illness, that of Parkinson's disease for which he has been receiving treatment, including from his primary neurologist in India who has treated him both prior to and following his immigration to Australia in 2023. Nor is it contested that Mr Babu Singh's illness is progressing with a more recent deterioration in his physical and mental capacity observed by Mr Singh. Mr Singh gave evidence that while his father has participated in telehealth consults with his primary neurologist since immigrating to Australia in 2023, an in-person consult with Mr Babu Singh was required by the neurologist, necessitating a return of his father to India. While the initial purpose of the visit to India was stated by Mr Singh to allow his father's attendance to the consult with the neurologist; it was subsequently decided to also obtain regular physiotherapy treatment for his father while he was in India, on the basis that it was more cost effective than obtaining that treatment in Australia.
[31] The relevant inquiry in this case is whether Mr Singh's absence was because of his father's illness. The important words in the clause are 'because of' which in my view requires a causal connection to be established between Mr Babu Singh's illness and Mr Singh's absence from work to provide care for his father. There was no evidence led that Mr Singh required carer's leave more generally to care for his father before or after the travel to India, at least for an extended period such as in the present case. In these circumstances it appears that carer's leave was not required by Mr Singh because of the illness of his father per se, but because of the travel to India that the family decided was necessary for Mr Babu Singh to obtain treatment.
[32] I would readily accept that if the treatment needed by Mr Babu Singh was simply not available in Australia and that he was forced to travel overseas, then the decision to seek such treatment overseas was effectively compelled. That is not the case here, however. There was no evidence that Mr Babu Singh had no reasonable alternative treatment options available in Australia. In fact, Mr Singh's case was largely undermined by his failure to provide any evidence from the primary neurologist based in India. No medical certificates or reports were provided that shed any light on why an in-person consult was necessary or that one even took place. I will return to this point when dealing with evidentiary requirements.
[33] To further highlight what I regard as the untenable construction of clause 56.2(a) of the VPS Agreement advanced by Mr Singh, I use the following example. A child who lives in remote regional Victoria requires specialist medical treatment that is only available in Melbourne, requires a hospital stay for several weeks and needs to be accompanied by a parent for the duration of that hospital stay. One can readily see that a parent/s or carer of this child has no reasonable alternative but to travel to Melbourne with the child and remain with them. If a carer's leave application were made by a parent/carer for that period, I believe it could be confidently argued that the absence of the parent/carer from work was because of the child's illness. There is simply no reasonable alternative treatment option available for the child's treatment. The circumstances in this example stand in stark contrast to the circumstances in Mr Singh and his father's case.
[34] The Applicant contends that the issue of treatment choice and location of that treatment is irrelevant, and that the only requirement to be met is that Mr Babu Singh required care when he travelled overseas because of his illness. To simply require the establishment of personal illness/injury and a need for care in a particular case would allow an untethering of the purpose of the trip from the entitlement. Taken to an extreme case, the construction advanced by the Applicant would allow a family to decide to take a long overseas trip accompanied by an ill and infirm relative who required care throughout the trip, and that a family member could then seek carer's leave for that period. If the Applicant's construction is correct, an entitlement to carer's leave would arise under clause 56.2(a)(ii), because the absence of the relevant employee was because of the personal illness/injury of the family member and the resultant care needs required while travelling. Of course, the necessary evidentiary requirements would still need to be met. Such a construction would produce ridiculous outcomes and open the clause to abuse in my view and could not have been within the contemplation of the legislature. Nor do I accept that the beneficial nature of the legislation would countenance such an outcome.
[35] In my view, Mr Singh's absence for the period from 6 March to 17 April 2025 was not because of his father's personal illness or injury. It was because of the decision made by the family to travel overseas to obtain treatment for Mr Babu Singh when both neurological specialists and physiotherapists can be found in Melbourne where the Applicant resides. It could not be reasonably argued that Mr Babu Singh was compelled to travel overseas and that there were no alternatives available, at least on the evidence before me. It follows that because Mr Singh's absence from work was not because of his father illness or injury, he has no entitlement to carer's leave under clause 56.2(a)(ii). For completeness, Mr Babu Singh did not have an appointment with a Registered Practitioner as defined in the VPS Agreement while in India, therefore Mr Singh was not entitled to carer's leave pursuant to clause 56.2(a)(iv) of the VPS Agreement. The circumstances of clause 56.2(a)(iii) do not arise and are therefore not relevant in the present case.
[36] If I am wrong in respect of the proper construction of clause 56.2, I would still find that the Applicant was not entitled to carers leave, because he failed to supply evidence for the period of carers' leave sought that would satisfy a reasonable person. My reasons are as follows.
[37] Clause 56.9(b) deals with the carer's leave evidentiary requirements that are necessary to 'satisfy a reasonable person' that the 'absence from work satisfies clause 56.2.' The types of evidence that can be required by the Employer under sub-clause 56.9(b)(ii) may depend on the circumstances, and 'without limitation' can include a medical certificate from a Registered Practitioner as defined and set out above at [16].
[38] Use of the words 'without limitation' in sub-clause 56.9(b)(ii) indicates that the list of the forms of evidence that may be required by the employer is a non-exhaustive list. The context and circumstances of the particular carer's leave absence will inform the form of the evidence that may be required. The relevant context in the present case is that the period of carer's leave was for several weeks and required overseas travel. In order to satisfy a reasonable person, strong evidence of the need for such travel and evidence of actual attendance and/or treatment by the relevant practitioner would be required. This point is reinforced by clause 56.11(b) which permits the employer to require more documentary evidence where the period of the carer's leave sought exceeds two weeks.
[39] The only relevant evidence of treatment undertaken by Mr Babu Singh while in India is that of the letter from Dr Lovika Ahuja who provided physiotherapy treatment sessions. Significantly, Dr Ahuja does not meet the definition of Registered Practitioner in the VPS Agreement. Mr Babu Singh could have obtained treatment in Australia from physiotherapists who are Registered Practitioners (as defined in the VPS Agreement). Consequently, I do not accept that evidence of physiotherapy treatment by a practitioner that does not meet the definition of Registered Practitioner in the VPS Agreement, would satisfy a 'reasonable person' that Mr Singh's absence from work satisfies clause 56.2. The Applicant seeks to justify the need for his father to obtain physiotherapy treatment in India because of the significant cost differential for such treatment between India and Australia. That is a nonsense argument, which is misconceived and rejected. It blithely ignores the significant financial cost of at least two persons (Mr Singh and his father) travelling to India.
[40] More fundamentally, there is no evidence by way of a medical certificate or letter from the neurologist based in India who was said to have required Mr Babu Singh's in-person attendance. The letter from Australian based medical practitioners attesting to the need for Mr Babu Singh's visit to India or his care requirements while travelling do not establish why the visit to India was required or when and if Mr Babu Singh even attended the required consultation. The required attendance at a consult with the neurologist in India was the initially stated purpose for the visit to India, raised by Mr Singh with the Respondent on 27 November 2024. Considering that initial purpose; the absence of evidence of attendance at such appointment, let alone evidence of treatment by a Registered Practitioner, does not meet an evidentiary standard that would satisfy a reasonable person that Mr Singh's absence from work satisfies clause 56.2.
[41] Mr Singh has failed to provide evidence that would satisfy a reasonable person of his entitlement to carer's leave for the period from 6 March to 17 April 2025. It follows that he is not entitled to carer's leave for that period.
[42] It follows from the foregoing that the answer to the question posed for determination is as follows;
"Is the applicant entitled to paid carer's leave pursuant to clause 56 of the VPS Agreement for the period in which he was absent from work between 6 March and 17 April 2025?"
[2] Exhibit A8, Statutory Declaration of Mr Harry Singh, dated 18 November 2025, at [1]-[5]
[5] Exhibit 3, Email from Applicant to Sulaiman Barwary, dated 27 November 2025
[6] Exhibit A4, Medical Certificate, dated 21 January 2025
[7] Exhibit R5, Email from Rosanna Palermo to Applicant, dated 26 February 2025
[8] Exhibit A5, Medical Certificate, dated 3 March 2025
[10] Exhibit A6, Report from Dr Lovika Ahuja, dated 16 April 2025
[11] Exhibit A3, Email from Rachel Gold to Harry Singh, dated 18 June 2025
[12] Exhibit A3, Email from Nick Richmond to Harry Singh, dated 20 June 2025
Printed by authority of the Commonwealth Government Printer
Harry Singh
Department of Health [2026] FWC 267