Fair Work Act 2009

s.604 - Appeal of decision

Peregian Beach Community College Ltd T/A Peregian Beach College

Appeal against decision [2024] FWC 1874 of Commissioner Simpson at Brisbane on 18 July 2024 in matter number C2024/3055 - Interpretation of enterprise agreement - Paid parental leave - Whether accessing paid parental leave as a primary caregiver and a non-primary caregiver by same employee at different times precluded if eligibility requirements otherwise satisfied - Whether statutory context provided by the Paid Parental Leave Act 2010 (Cth) relevant to construction of enterprise agreement provisions - Permission to appeal granted - Construction adopted at first instance wrong - Appeal upheld, decision quashed and dispute redetermined.

[1] The Independent Education Union of Australia (the IEU) seeks permission to appeal under s 604 of the Fair Work Act 2009 (Cth) (the Act), and if permission is granted, appeals a decision of Commissioner Simpson dated 18 July 2024 (the Decision).[1] The Decision concerns the interpretation of provisions of the Peregian Beach College Enterprise Agreement 2022 (the Agreement)[2] concerning paid parental leave.

[2] The Decision arose from a dispute application lodged by the IEU pursuant to s 739 of the Act against the respondent, Peregian Beach Community College Ltd T/A Peregian Beach College (the College). The Decision was made pursuant to the arbitral powers conferred on the Commission by the dispute resolution procedure in clause 9.1 of the Agreement.

[3] The dispute arose in respect of the circumstances of a member of the IEU, Mr Jason Rogers, who is an employee of the College to whom the Agreement applies. Mr Rogers commenced employment with the College on 20 January 2022. In July 2023, following the birth of his child, Mr Rogers applied for paid parental leave pursuant to clause 5.3.2(d) of the Agreement. It is not in dispute that clause 5.3.2(d) provides a paid leave entitlement to non-primary caregivers of five days (followed by five days unpaid leave, to be taken consecutively).

[4] The College approved Mr Rogers' application for paid parental leave pursuant to clause 5.3.2(d), and the leave was taken. Following Mr Rogers' return from leave, he enquired with the College as to an additional period of paid parental leave pursuant to clause 5.3.2(a) of the Agreement. Mr Rogers advised the College that he could provide the College with a statutory declaration evidencing that from the "last week of term two 2024 and all of term three 2024," he would be the primary caregiver of his son.[3] It is not in contest that clause 5.3.2(a) provides a paid leave entitlement to primary caregivers of 11 weeks.

[5] The College declined to approve the leave on the basis that Mr Rogers was not entitled to take paid parental leave as a primary caregiver when he had already taken paid parental leave as a non-primary caregiver. The College described the entitlements as "mutually exclusive" and advised Mr Rogers that he was entitled to "one or the other."[4]

[6] The Commissioner was asked to answer an agreed question presented by the parties in the following terms:[5]

The parties seek a determination from the Fair Work Commission on the question of whether a staff member is excluded from accessing paid parental leave under clause 5.3.2 (a) of the Peregian Beach Community College Enterprise Agreement 2022 due to having earlier accessed paid parental leave under clause 5.3.2 (d) of said agreement

[7] The Commissioner accepted the submissions advanced by the College and determined that an employee is excluded from accessing paid parental leave under clause 5.3.2(a) of the Agreement (as a primary caregiver) where they have earlier accessed paid parental leave under clause 5.3.2(d) of the Agreement (as a non-primary caregiver).

[8] The IEU contends that the Commissioner incorrectly interpreted the terms of the Agreement and thereby erred.

[9] The dispute concerns clause 5.3 of the Agreement, which is in the following terms:

The following Parental Leave provisions are to be read in conjunction with the National Employment Standards and the Fair Work Act 2009 as varied from time to time.

The following employees shall be eligible for paid leave under this clause:

(a) Full-time employees who have 1 (one) year's continuous service;

(b) Part-time employees who have been employed for one calendar year (notwithstanding that the amount of service is less than the equivalent of 1 year full time service);

(c) Fixed term employees who have been employed for one calendar year notwithstanding that the amount of service is less than equivalent of one year service. In determining this eligibility period for fixed term employees, 2 (two) or more fixed term periods may be combined so long as the gaps between such periods were less than 3 (three) months;

(d) Where an employee has returned to work after a period of maternity leave and completed at least one further calendar year of service; that employee shall be entitled to access a second or subsequent period of paid maternity leave.

5.3.2 Paid Parental Leave

• (a) In addition to statutory entitlements to unpaid leave, primary caregivers will be entitled to paid leave of eleven (11) continuous and uninterrupted weeks which is exclusive of any vacation period that falls during the paid leave. This paid leave may be accessed at half pay. In such circumstances the employee will be entitled to double the period of leave which would otherwise be applicable. Where possible, an employee shall commence leave at the conclusion of a school term or as near as possible to the conclusion of a school term. Employees shall return to school at the beginning of the nearest school term.

• (b) The employer funded eleven (11) weeks paid parental leave will be in addition to the Commonwealth Government's implementation of a national paid parental leave scheme.

• (c) Superannuation, and all other employee entitlements, continue to accrue during the employer funded part of an employee's period of paid parental leave.

• (d) In addition to the unpaid leave provisions prescribed by legislation, non-primary caregivers are entitled to a period of 5 (five) days paid leave and 5 (five) days unpaid leave which is to be taken consecutively.

5.3.3 Paid Adoption Leave

• (a) In addition to statutory entitlements to unpaid adoption leave, an eligible employee is entitled to paid adoption leave of eleven (11) weeks for the purpose of the adoption of a child who is, or will be, under school age as at the day of placement, or expected day of placement of the child. This paid leave may be accessed at half pay. In such circumstances the employee will be entitled to double the period of leave which would otherwise be applicable.

• (b) The child must not have been living with the employee for the period of six (6) months or more as at the day of placement, or the expected day of placement of the child.

• (c) The period of leave shall be exclusive of vacation periods and inclusive of public holidays which may fall during the period of paid leave.

• (d) Superannuation, and all other employee entitlements, continue to accrue during the employer funded part of an employee's period of paid adoption leave.

5.3.4 Unpaid Parental Leave

• (a) An eligible employee is entitled to a further maximum total of 52 weeks unpaid parental leave.

• (b) An employee may request an extension of unpaid parental for a further period of up to 52 weeks immediately following the end of the available parental leave contained in the above clause.

5.3.5 Payment

An employee shall be paid at the rate of pay applying immediately prior to the taking of maternity leave

[10] By its notice of appeal, the IEU advances eight appeal grounds, which are as follows:

• (1) The Commissioner erred by finding the Paid Parental Leave Act 2010 (Cth) (the PPL Act) provided that if an employee received "dad and partner pay" they could not subsequently also receive "paid parental leave" under the PPL Act.

• (2) The Commissioner erred by failing to find that an employee was not disentitled by the mere receipt of dad and partner pay from subsequently receiving "paid parental pay" under the PPL Act.

• (3) The Commissioner erred by finding the words "in addition to" in clauses 5.3.2(a) and 5.3.2(d) meant the Agreement was intended to provide an additional "amount" of entitlement compared to statutory entitlements "and not create a different regime to the one that operated under statutory entitlements."

• (4) The Commissioner erred by finding that clauses 5.3.2(a) and 5.3.2(d) of the Agreement must be read consistently with his finding in ground (1) about the PPL Act to disentitle an employee from accessing paid leave under clause 5.3.2(a) if they have previously accessed paid leave under clause 5.3.2(d).

• (5) The Commissioner erred by finding that an employee is excluded from the entitlement to paid leave provided by 5.3.2(a) if they have previously accessed the entitlement to paid leave provided by 5.3.2(d).

• (6) The Commissioner erred by failing to provide reasons, or adequate reasons, why the PPL Act "was clear that if an employee received dad and partner pay they could not subsequently also receive paid parental leave" and for that reason an employee is excluded from the entitlement to paid leave provided by clause 5.3.2(a) if they have previously accessed the entitlement to paid leave provided by clause 5.3.2(d).

• (7) The Commissioner erred by failing to consider the entitlement in clause 5.2.3(d) as an entitlement to a period of paid and unpaid leave in determining whether access to paid leave under clause 5.3.2(d) precludes later access to paid leave under clause 5.3.2(a).

• (8) The Commissioner erred by failing to find that an employee is not excluded from access to paid leave under clause 5.3.2(a) of the Agreement because they have earlier accessed paid leave under clause 5.3.2(d).

[11] The dispute determined by the Commissioner involved a question of construction of the Agreement. In the Decision, the Commissioner determined that employees of the College were not permitted to access both clauses 5.3.2(a) and 5.3.2(d) in the circumstances described. The proper construction of an enterprise agreement is a question of law to which there is only one true answer.[6] As such, the appeal is one to which the correctness standard applies.[7] The IEU's appeal grounds are directed at errors alleged to exist in the Commissioner's reasoning process which it is said might provide an explanation for why the Decision was incorrect. But if the Decision is correct, errors in the reasoning process will not themselves mean that the appeal will succeed. The question on appeal, if permission is granted, is simply whether the answer given by the Commissioner was correct or incorrect.

[12] Clause 9.1.7 of the Agreement provides that the Commission may arbitrate a dispute referred to it under that clause and make a determination that is binding on the parties. A note following clause 9.1.7 records that a decision that the Commission makes when arbitrating a dispute is a decision for the purpose of Div 3 of Part 5.1 of the Act and an appeal may be made against the decision. The clause is properly to be understood contemplating that an appeal may be brought against a decision made in arbitration of a dispute under clause 9.1 of the Agreement subject to the requirements which ordinarily apply to appeals against a decision of the Commission. That will include that permission to appeal is required for the purposes of s 604(1) of the Act.[8]

[13] The College submits that permission to appeal should be refused on the basis that the clause the subject of dispute in this matter "will be substantially varied" in a proposed new enterprise agreement "due to commence" from 1 January 2025. Accordingly, it is contended that the appeal lacks utility. We disagree. There is no material before us indicating that a successor enterprise agreement has been made within the meaning of s 182(1) of the Act and lodged with the Commission for approval or, if an agreement were to be made, what provision is likely to be made with respect to parental leave. In any event, we are satisfied that the appeal raises issues concerning the interaction of entitlements provided pursuant to an enterprise agreement and the National Employment Standards (the NES) which enliven the public interest. Further, for reasons which will follow, we consider that the IEU has demonstrated that the Decision is erroneous. Accordingly, it is in the public interest to grant permission to appeal and, for that reason, we are required to grant permission by s 604(2) of the Act.

[14] Appeal grounds (5), (7) and (8) are, in our view, at the heart of this appeal. Those grounds broadly concern the question of whether an employee of the College is entitled to access the paid parental leave entitlement within clause 5.3 of the Agreement as both a primary caregiver (clause 5.3.2(a)) and as a non-primary caregiver (clause 5.3.2(d)) in respect of the same child.

[15] As to this issue, the IEU contends that on a proper construction of the Agreement there is no impediment upon an employee accessing both types of paid parental leave. In summary, the IEU submits as follows:

• (a) The entitlements under the Agreement to paid parental leave as a primary caregiver and a non-primary caregiver are independent and accessible at any relevant point in time depending upon the employee's caregiving status. The grammatical structure and the arrangement of clause 5.3.2 does not tell otherwise.

• (b) As a matter of context, the provisions of clause 5.3.3 of the Agreement pertaining to adoption leave supports the IEU's construction. The absence of a clause in similar terms to clause 5.3.2(d) in respect of adoption leave demonstrates that clause 5.3.2(d) is an additional entitlement relevant only to circumstances involving the birth of a child (as opposed to the placement of a child for adoption). This supports a conclusion that the entitlement for non-primary caregivers at clause 5.3.2(d) is intended to be in addition to the 11 weeks of paid parental leave for primary caregivers, and the entitlements are not mutually exclusive.

• (c) There is no basis in the text of the Agreement to conclude that access to both entitlements as a primary caregiver and as a non-primary caregiver would amount to double dipping. Nor is there any textual or structural element in the Agreement to support reading clause 5.3.2 in a manner that deprives an employee from accessing the more beneficial entitlement where they are otherwise eligible for it.

(d) The PPL Act does not bear upon the proper construction of the Agreement.[9]

[16] The College contends that the Commissioner correctly construed clause 5.3 of the Agreement and correctly answered the agreed question. As to the constructional issues raised by appeal grounds (5), (7) and (8), we understand the College to broadly contend that the Agreement should be read together with the version of the PPL Act as it applied at the time the Agreement was approved by the Commission on 13 February 2023. The College refers to this as the PPL Act Compilation 41, and we adopt this term in our decision for ease of reference.[10] The College submits, in summary, as follows:

• (a) The PPL Act Compilation 41 is relevant in circumstances where the terms primary caregiver and non-primary caregiver are not defined in the Agreement. Further, the PPL Act allows both partners to share paid parental leave but there is no such "sharing" provision in the Agreement.

• (b) By s 21 of the PPL Act Compilation 41, a person who had received a payability determination for dad and partner pay could not subsequently receive a payability determination for paid parental leave.

• (c) While clauses 5.3.2(a) and 5.3.2(d) of the Agreement function "in addition to statutory entitlements to unpaid leave", there is no basis for excluding from this consideration the PPL Act Compilation 41, and the IEU's attempt to do so is "narrow and pedantic."

• (d) As the father of the child, Mr Rogers was only eligible to make a claim for parental leave pay as a secondary claimant pursuant to s 54 of the PPL Act Compilation 41 and could not make a primary claim.

• (e) Notwithstanding amendments to the PPL Act with the emergence of new family dynamics, the law as it existed at the time the Agreement was made is important as a matter of contextual construction.

• (f) Clause 5.3.2(d) of the Agreement was "derived from" and is "not dissimilar" to the entitlement to dad and partner pay as was provided for under the PPL Act Compilation 41.

[17] The resolution of the issue raised by appeal grounds (5), (7), and (8) requires us to construe the relevant provisions of the Agreement. The principles of interpretation of enterprise agreements are well established.[11] In summary, the starting point is the ordinary meaning of the words, read as a whole and in context. Context may be found in the provisions of the entire enterprise agreement, or in the arrangement and place of the words in the enterprise agreement and may extend to other documents with which there is an association. The statutory framework under which the enterprise agreement is made or in which it operates may also provide context, as might an antecedent instrument or instruments from which a particular provision or provisions might have been derived. The industrial context in which an agreement is made and operates is relevant, as is the evident purpose of the provisions or expressions being construed. A purposive approach is preferred to a narrow or pedantic approach, as the framers of such documents were likely to be of a practical bent of mind. The words are not to be interpreted in a vacuum or divorced from industrial realities. The customs and working conditions of the particular industry are relevant. But the task remains one of interpreting the document, and not to give effect to some anteriorly derived notion of what would be fair or just, regardless of what has been written into the instrument.

[18] As a matter of principle, the language of the Agreement is to be read as a whole and in context.[12] Clause 5.3 of the Agreement is titled Parental Leave. The clause sits within Part 5 of the Agreement titled Family Friendly Policies. Clause 5.3 commences with a statement that the parental leave provisions that follow are to be read in conjunction with the NES and the Act, as varied from time to time:

The following Parental Leave provisions are to be read in conjunction with the National Employment Standards and the Fair Work Act 2009 as varied from time to time.

[19] Having regard to both its location within the provision and its terms, we consider that the requirement to read the parental leave provisions in conjunction with the NES and the Act has application to clause 5.3 as a whole.

[20] In some circumstances, provision that one instrument is to be "read in conjunction with" the provisions of another law or instrument can be intended to incorporate into the instrument relevant parts of the other law or instrument.[13] In other cases, that formulation of words may be intended to simply draw attention to the fact that relevant provision is also made in another law or instrument and prescribe the manner in which the two are intended to interact.[14] In any case, a requirement that one instrument is to be "read in conjunction with" another is likely indicate that the provisions of the two instruments are intended to operate together and consistently with one another.[15]

[21] The function of the introductory words of clause 5.3 of the Agreement, requiring that the parental leave provisions of the Agreement be read in conjunction with the NES and the Act as varied from time to time, is not entirely clear. It is unlikely that the words are intended to incorporate the provisions of the Act into the Agreement. The provisions of the Act, obviously enough, have independent statutory force and operate irrespective of the provisions of the Agreement.[16] It is more likely that the provision is intended to indicate that the parental leave provisions of the Agreement are intended to compliment and not be inconsistent with the parental level provisions of the Act. That view is supported by clauses 5.3.2(a), 5.3.2(d) and 5.3.3(a) which provide that the entitlements to paid parental leave conferred by the Agreement are in addition to an employee's "statutory entitlements to unpaid leave" or "in addition to the unpaid leave provisions prescribed by legislation". We consider that the references to an employee's statutory or legislative entitlements to unpaid parental leave in clause 5.3.2(a), 5.3.2(d) and 5.3.3(a) concern the provisions of Division 5 of Part 2-2 of Chapter 2 of the Act, which prescribe the NES entitlement to unpaid parental leave and related entitlements.

[22] The general rule prescribed by s 67 of the Act is that an eligible employee is entitled to unpaid parental leave under Division 5 if they have completed at least 12 months of continuous service with their employer. By s 70 of the Act, the NES entitles an employee to a minimum of 12 months unpaid parental leave in connection with the birth or placement of a child, where the employee has or will have responsibility for the child's care. Relevantly, as a consequence of s 72 of the Act being repealed from 1 July 2023,[17] employee couples (as defined in s 12 of the Act as two national system employees who are the spouse or de facto partner of each other) are no longer restricted in taking unpaid parental leave. This amendment to the Act allows all employees to take up to 12 months' unpaid parental leave (and request a further 12 months of unpaid parental leave, regardless of how much leave their spouse or partner takes, up to a total of 24 months each).[18] It follows that the NES entitlement to unpaid parental leave contemplates both parents of an employee couple being entitled to be a caregiver of a child. This enables each parent, where eligible, to have up to 12 months unpaid parental leave. Noting that clause 5.3 of the Agreement is to be read in conjunction with the NES as varied from time to time, these provisions of the Act are relevant contextual considerations.

[23] The Agreement sets out its own eligibility requirements upon which the entitlement to paid parental leave is conditioned (see clause 5.3.1, titled Paid Parental Leave - Eligibility). Full time employees must have one year of continuous service, and eligibility rules are also prescribed for part time employees, fixed term employees and employees who have returned to work following an earlier period of "maternity leave." Absent satisfaction of these eligibility requirements, no entitlement can arise to paid parental leave under the Agreement.

[24] The entitlement to paid parental leave is derived from clause 5.3.2 of the Agreement, entitled Paid Parental Leave. A distinction is drawn between primary caregivers and non-primary caregivers. As submitted by the parties, these terms are not defined in the Agreement. This is an issue to which we will return. However, we note at this point that an analysis of whether an eligible employee is a primary caregiver, or a non-primary caregiver, can only be made by reference to the circumstances pertaining to the employee at the relevant time. In our opinion, the concept of being a "caregiver" must be an activity-based designation. Whether an eligible employee is the primary caregiver or a non-primary caregiver depends on the actions undertaken, and the responsibilities assumed, by the employee in relation to the care of the child at a particular point in time. As the IEU submits, designation as a _primary careg_iver or non-primary caregiver is not an enduring status attributable to a person throughout the period of entitlement of parental leave or attained by reference to whether the person gave birth to the child or not. As a matter of ordinary language, an employee may be the primary caregiver at one point in time and a non-primary caregiver in another period depending on the allocation of caring responsibilities.

[25] In addition to an employee's entitlement to unpaid parental leave pursuant to the NES, an eligible employee is entitled to 11 weeks of paid parental leave under the Agreement where they are a primary caregiver (clause 5.3.2(a)). The "employer funded" 11 weeks of paid parental leave is "in addition to the Commonwealth Government's implementation of a national paid parental leave scheme" (clause 5.3.2(b)). We regard the reference to the "employer funded" 11 weeks of paid leave to be a reference to clause 5.3.2(a) of the Agreement, and the parties did not contend otherwise. Nor is it in contest that the "national paid parental leave scheme" is to be understood as a reference to the PPL Act, being the Commonwealth government's paid parental leave scheme. In general terms, the PPL Act provides parental leave pay but does not provide for leave. By s 3A(3) of the PPL Act, the entitlement to parental leave pay under the PPL Act is said to complement and supplement existing entitlements to paid or unpaid leave in connection with the birth or adoption of a child.

[26] Having regard to the above considerations:

• (a) an eligible employee under the Agreement who is a primary caregiver will be entitled to 11 weeks of employer funded paid parental leave pursuant to clause 5.3.2(a). This paid leave is provided by the College in addition to both an employee's statutory entitlement to unpaid parental leave pursuant to the NES, and the government's paid parental leave scheme under the PPL Act; and

• (b) an eligible employee under the Agreement who is a non-primary caregiver is entitled to a consecutive period of "five (5) days paid leave and 5 (five) days unpaid leave" pursuant to clause 5.3.2(d). This entitlement is in addition to an employee's unpaid leave entitlement under the NES.

[27] In respect of the "employer funded" part of an employee's period of paid parental leave (whether as a primary caregiver or non-primary caregiver), an eligible employee will be entitled to accrue superannuation pursuant to clause 5.3.2(c) of the Agreement.

[28] Having regard to the plain language of the Agreement, there is no basis for the narrow construction of clause 5.3.2 preferred by the College. The Agreement does not, in terms, limit an eligible employee's entitlement to paid leave as either a primary caregiver or a non-primary caregiver. There is no textual indication that the terms are mutually exclusive or that an eligible employee is entitled to one type of leave in lieu of the other. Rather, clause 5.3 provides eligible employees with an entitlement to paid leave where they meet the condition of being a primary caregiver or non-primary caregiver. As we have indicated, the designation of a person as a primary caregiver or non-primary caregiver is an activity-based designation which is capable of changing over time.

[29] We understand that the College contends for an alternative construction of clause 5.3.2 of the Agreement as a result of the context said to be provided by the PPL Act. However, the language of clause 5.3.2 does not, in our view, support the submissions advanced by the College. The entitlements in clause 5.3 of the Agreement are stated to be read in conjunction with the "National Employment Standards and the Fair Work Act 2009 as varied from time to time." There is no requirement imposed that the Agreement must be read in conjunction with the PPL Act. The contention that clause 5.3 should also be read in conjunction with the PPL Act and, more specifically, the PPL Act Compilation 41 on the basis that it functions complimentary to the Act (despite the mandate to read the clause in conjunction with the NES or the Act as varied from time to time) cannot be sustained having regard to the express language of clause 5.3. Further, the references in clauses 5.3.2(a) and 5.3.2(d) to an employee's statutory entitlements to unpaid leave cannot be read as including the PPL Act which provides a statutory entitlement to payment but does not provide for unpaid leave. As earlier stated, references in the Agreement to unpaid leave entitlements provided by legislation can only be a reference to the unpaid parental leave provisions of the NES.

[30] The College further contends that clause 5.3.2 of the Agreement is a product of its history, being made with relevant employees at or about the time the PPL Act Compilation 41 was in operation. The College urges the Full Bench to take into consideration this history, which it says is an important matter of context. The interpretation of an enterprise agreement "turns upon the language of the particular agreement, understood in the light of its industrial context and purpose."[19] We accept, noting our summary at paragraph [17] of this Decision, that the context provided by the history of the Agreement is a matter capable of being considered as part of the process of interpretation of the text of clause 5.3.2. This may include documents with which the Agreement has an association, or ideas that gave rise to an expression contained [20]thin it.20 However, the consideration of context cannot justify rewriting an [21]reement.21 Context is to be considered as an aid to the construction of the text. Interpretation is always a text-based[22]ctivity.22

[31] Even if we were to accept that the terms of the PPL Act Compilation 41 might have been influential to the drafters of the Agreement (a matter about which there is no evidence before the Commission), there is no basis for reading down the terms of clause 5.3 by reference to the PPL Act Compilation 41. Indeed, to do so cannot be justified in circumstances where clause 5.4.3(b) expressly states that the paid leave entitlement in clause 5.3.2(a) is "in addition" (that is, supplementary) to the national paid scheme provided by the PPL Act. In the absence of a textual indicator otherwise, there is no warrant for limiting the application of the clause by reference to an historical version of the PPL Act.

[32] The terms of the PPL Act Compilation 41 concerning dad and partner pay, or the limitations which would have then existed on Mr Rogers' capacity to make a primary claim under the PPL Act where he is not the birth mother (both of which, we note, were terms abolished by amendments made to the PPL Act from 1 July 2023)[23] are not determinative as to the proper construction of the Agreement. The focus must be upon the plain and ordinary meaning of the text itself. Whether these conditions featured in the PPL Act at the time the Agreement was made is, of itself, insufficient to read into the Agreement words of limitation that are not there.

[33] In any event, the proposition the College seeks to draw from the PPL Act, and which was accepted by the Commissioner at first instance, is not made out. The PPL Act, as it existed at the time the Agreement was made, did not prohibit an employee who had received dad and partner pay from also receiving parental leave pay as contended by the College. Parental leave pay and dad and partner pay, at the relevant time, represented two distinct payments that together comprised the PPL Act's paid parental leave scheme.[24] Section 21 of the PPL Act, which was relied upon by the College, imposed limitations on when the Secretary could make a "payability determination" under ss 13, 14, 15, 16 or 17 that parental leave pay was payable to a person for a child. In short, the Secretary was prevented from making a determination for parental leave pay if there was already a determination for parental leave pay in place for the child for that person or for the partner or former partner of the person.[25]

[34] Section 21 did not prevent a determination for parental leave pay being made by reference to prior receipt of dad and partner pay. The eligibility for dad and partner pay was dealt with separately in Chapter 3A which was entitled "Dad and Partner Pay". The equivalent prohibition, then in s 115BE(1), is dealing with circumstances where dad and partner pay is being sought by a person who has already been granted dad and partner pay under another claim. There was some interaction between the entitlement to parental leave pay and dad and partner pay. Dad and partner pay and parental leave pay could not both be paid to a person for the same period of leave.[26] Dad and partner pay could not be paid to a person if the total days of combined paid leave taken by the person exceeded 90 days.[27] However, there was no prohibition on the same person being eligible for both parental leave pay and dad and partner pay at different times. The premise of the Commissioner's conclusion that the context provided by the PPL Act, as it existed at the time the Agreement was made, was inconsistent with the construction advanced by the IEU is incorrect.

[35] The contention advanced by the College that there is no "sharing" provision in the Agreement such as to allow both partners to share the entitlement to paid parental leave conferred by the Agreement is misplaced. The benefits conferred by the Agreement have application in respect of employees of the College to whom the Agreement applies. By way of company policy or (as is the case here) an enterprise agreement, employers can provide additional paid parental leave for employees beyond the scheme established by the PPL Act. The PPL Act recognises that the scheme does not affect any other entitlement a person may have to paid parental leave under any other instrument, including an enterprise agreement.[28] The supplementary entitlement to paid parental leave under an enterprise agreement or company policy may be subject to eligibility requirements that differ to the conditions in the PPL Act. Such is the case here. Conditional upon an employee satisfying the eligibility requirements in clause 5.3.1 of the Agreement, the employee is entitled to access the paid leave provisions in clauses 5.3.2(a) and 5.3.2(d) where they are a primary caregiver or a non-primary caregiver at the relevant time.

[36] We return now to the question of when an employee is a primary caregiver or a non-primary caregiver for the purposes of the Agreement. As earlier stated, the Agreement does not define these terms. The terms must, in our opinion, be given their ordinary meaning.[29] While the Act does not utilise the terms primary caregiver and non-primary caregiver, some assistance may be derived from the Act as to the concept of the care of a child. An employee's entitlement to unpaid parental leave under the NES arises where an employee "has or will have a responsibility for the care of the child".[30] The terms primary caregiver and non-primary caregiver acknowledge that a child is likely to have multiple caregivers and that, from time to time, there may be some priority as between caregivers as to the degree of responsibility each has for the care of the child. In our opinion, the primary caregiver is the person with the greater responsibility for attending to the care of the child at any particular time. This accords with the ordinary meaning of the words used. Although it does not control the meaning of the equivalent expression in the Agreement, we also note that this meaning accords with the definition of the "primary carer" of a child in s 47 of the PPL Act, as it existed at the time the Agreement was made, which then provided:

47 When a person is the primary carer of a child

(1) A person is the primary carer of a child on a day in the person's reference period if:

(a) the child is in the person's care in that period; and

(b) the person meets the child's physical needs more than anyone else in that period.

[37] While it is strictly unnecessary for us to determine this issue, it appears to us that an employee who demonstrates that they have, or will have, a responsibility for the care of the child to a greater degree than any other person on a day, or during a period, will be a primary caregiver for the purposes of the entitlement to paid parental leave conferred by clause 5.3.2(a). We observe that, in the case of Mr Rogers, there is no material before the Commission which demonstrates whether the statutory declaration referred to at [4] of this decision was produced to the College or not. However, so long as Mr Rogers satisfies the requirement that he is a primary caregiver during a period he is, in our opinion, entitled to paid parental leave under clause 5.3.2(a) notwithstanding that he had earlier applied for and received leave as a non-primary caregiver under clause 5.3.2(d).

[38] As we earlier noted, by appeal grounds (5), (7) and (8), the IEU contends that the Commissioner erred in the proper construction of clause 5.3 of the Agreement by finding that an employee of the College is excluded from accessing paid parental leave as a primary caregiver under clause 5.3.2(a) of the Agreement where they have earlier accessed paid parental leave as a non-primary caregiver under clause 5.3.2(d). For the reasons given, the IEU has made out these appeal grounds. Upholding these grounds is sufficient to dispose of the appeal.

[39] On a rehearing we conclude, for the reasons given above, that an employee of the College is not excluded from accessing paid parental leave under clause 5.3.2(a) of the Agreement as a primary caregiver where they have earlier accessed paid parental leave under clause 5.3.2(d) of the Agreement as a non-primary caregiver in respect of the same child, if the eligibility requirements of clause 5.3 of the Agreement are otherwise met. The dispute is determined accordingly.

[40] We order as follows:

• (a) Permission to appeal is granted;

• (b) Grounds (5), (7) and (8) of the IEU's notice of appeal dated 8 August 2024 are upheld;

• (c) The decision in Independent Education Union of Australia v Peregian Beach Community College Ltd T/A Peregian Beach College [2024] FWC 1874 is quashed; and

• (d) The answer to the agreed question recorded at paragraph [6] of this decision is answered as follows:

An employee of the College is not excluded from accessing paid parental leave under clause 5.3.2(a) of the Agreement as a primary caregiver where they have earlier accessed paid parental leave under clause 5.3.2(d) of the Agreement as a non-primary caregiver in respect of the same child, if the eligibility requirements of clause 5.3 of the Agreement are met.

[1] Independent Education Union of Australia v Peregian Beach Community College Ltd T/A Peregian Beach College [2024] FWC 1874; Appeal Book (AB) 3-19.

[2] [2023] FWCA 361; AE519088; AB 41-102.

[3] Attachment 3 to the Form F10 Application for the Commission to deal with a dispute in accordance with a dispute settlement procedure dated 14 May 2024.

[6] Onesteel Manufacturing Pty Ltd v BlueScope Steel (AIS) Pty Ltd [2013] NSWCA 27; (2013) 85 NSWLR 1 at [61] (Allsop P).

[7] Minister for Immigration and Border Protection v SZVFW [2018] HCA 30; (2018) 264 CLR 541 at [46] and [48]-[49] (Gageler J); Rail Commissioner v Rogers [2021] FWCFB 371 at [61]; FreshFood Management Services Pty Ltd v Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union [2023] FWCFB 97 at [29].

[8] DP World Brisbane Pty Ltd v Maritime Union of Australia [2013] FWCFB 8557; (2013) 237 IR 180 at [51]; Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union v ALS Industrial Australia Pty Ltd [2015] FCAFC 123; (2015) 235 FCR 305 at [58] (Dowsett, Tracey and Katzmann JJ); Opal Packaging Australia Pty T/A Opal Fibre Packaging v Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union [2024] FWCFB 330 at [13].

[9] Although see the Appellant's outline of submissions dated 6 September 2024 at [15]-[29] and [64].

[10] Being the version of the Paid Parental Leave Act 2010 (Cth) as it existed from 17 August 2022 to 25 March 2023.

[11] James Cook University v Ridd [2020] FCAFC 123, (2020) 278 FCR 566 at [65] and the authorities cited therein; Workpac Pty Ltd v Skene (2018) 264 FCR 536, [2018] FCAFC 131 at [197] and the authorities cited therein.

[12] See, City of Wanneroo v Holmes [1989] FCA 369; (1989) 30 IR 362 at [43] citing Australian Timber Workers Union v W. Angliss & Co Pty Ltd [1924] CthArbRp 33; (1924) 19 CAR 172.

[13] Simpson v Australian Telecommunications Commission [1978] FCA 41; (1978) 34 FLR 337 at 341 (St John J); Construction, Forestry and Maritime Employees Union v DP World Melbourne Ltd (t/as DP World Melbourne) [2024] FWCFB 317 at [76].

[14] Briers v Australian Telecommunications Commission (1979) 36 FLR 375 ay 379-380 (Keely J).

[15] Maribyrnong City Council v Australian Municipal, Administrative Clerical, and Services Union [2019] FCA 773 at [53] (Wheelahan J); Construction, Forestry and Maritime Employees Union v DP World Melbourne Ltd (t/as DP World Melbourne) [2024] FWCFB 317 at [77].

[16] Fair Work Act 2009 (Cth), s 55(1) and (6).

[17] Schedule 2, Item 26 of the Fair Work Legislation Amendment (Protecting Worker Entitlements) Act 2023 (Cth).

[18] See the Fair Work Legislation Amendment (Protecting Worker Entitlements) Bill 2023 Explanatory Memorandum at [16].

[19] Amcor Ltd v Construction, Forestry, Mining and Energy Union (Amcor) [2005] HCA 10; (2005) 222 CLR 241 at [2] (Gleeson CJ and McHugh J) and [66] per Kirby J; Transport Workers' Union of Australia v Coles Supermarkets Australia Pty Ltd [2014] FCAFC 148; (2014) 245 IR 449 at [42]- [44] per Siopis, Buchanan and Flick JJ.

[20] Short v FW Hercus Pty Ltd (1993) 40 FCR 511 at 518; Australian Municipal, Administrative, Clerical and Services Union v Treasurer of the Commonwealth [1998] FCA 249; (1998) 82 FCR 175 at 178.

[21] Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union v Berri Pty Ltd [2017] FWCFB 3005; (2017) 268 IR 285 at [65].

[23] Paid Parental Leave Amendment (Improvements for Families and Gender Equality) Act 2023 (Cth).

[24] PPL Act (Compilation 41), s 3A(1A).

[25] PPL Act (Compilation 41), s 21(1)(a) (dealing with the person), (b) (dealing with a primary claimant) and (c) (dealing with a secondary claimant).

[26] PPL Act (Compilation 41), s 115CB(5).

[27] PPL Act (Compilation 41), s 115CB(7).

[29] See approach of Gostencnik DP to the phrase "primary carer" in Australian Rail, Tram and Bus Industry Union v Metro Tasmania Pty Ltd [2024] FWC 1873 at [36].

[30] Fair Work Act 2009 (Cth), s 70(b).

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