Fair Work Act 2009

s.604 - Appeal of decisions

Appeal from decision of Deputy President Gostencnik on 17 July 2024 in C2024/1398 - interpretation of paid parental leave provision in enterprise agreement

[1] Metro Tasmania Pty Ltd (Metro Tasmania/the Appellant) has lodged an application under s 604 of the Fair Work Act 2009 (FW Act), seeking permission to appeal and to appeal from a decision[1] of Deputy President Gostencnik (as his Honour then was) dated 17 July 2024. The decision determined a dispute between the Appellant and Australian Rail, Tram and Bus Industry Union (ARTBIU/Respondent) about the entitlement of Mr Jitendra Maharjan, to paid parental leave under clause 34 of the Metro Tasmania Bus Operators Enterprise Agreement 2020 (2020 Agreement).

[2] The dispute arose when a request made by Mr Maharjan for paid parental leave was refused by Metro Tasmania. After discussions at the workplace failed to resolve the dispute, the ARTBIU made an application to the Fair Work Commission (Commission) for a dispute to be dealt with under the dispute settlement procedure in clause 10 of the 2020 Agreement, seeking a determination that Mr Maharjan was entitled to paid parental leave under clause 34 of the 2020 Agreement and that Metro Tasmania refused him access to that entitlement. The Deputy President found that Mr Maharjan met the conditions in clause 34 and was entitled to paid parental leave for the period claimed. The Deputy President issued an order requiring that Metro Tasmania pay Mr Maharjan parental leave for the period between 8 February 2024 to 4 April 2024 inclusive and that accrued leave balances for any form of other paid leave taken by Mr Maharjan in that period be recredited.

[3] The appeal is one to which the correctness standard applies. The Deputy President's task was to determine whether Mr Maharjan was entitled to paid parental leave under clause 34 of the Agreement. That question required a unique outcome.[2] The Deputy President concluded that Mr Maharjan was entitled to paid parental leave. The Full Bench must determine whether the Deputy President's answer to the question that was submitted for his determination, was right. If we conclude that it was wrong, the appeal must be upheld and the Full Bench may substitute what we consider to be the correct answer, for the answer given in the decision.[3]

[4] In a decision issued on 2 May 2025,[4] we decided to refuse permission to appeal. We did so because we concluded that there was no arguable case of appealable error in the Decision of the Deputy President and his construction of the Agreement was correct. We were also of the view that the appeal was fact specific to the Agreement under which the dispute arose, and to the circumstances of Mr and Mrs Maharjan, and did not raise issues of importance or general application. Accordingly, we were not satisfied that it was in the public interest to grant permission to appeal. These are our reasons for that decision.

[5] The background as set out in the decision is that Mr Maharjan was employed by Metro Tasmania as a Bus Operator from 11 April 2022. Before the birth of his child, Mr Maharjan arranged annual leave from 11 February 2024 to 9 March 2024 and it was planned that Mrs Maharjan would be the primary carer of their child. On 8 February 2024 Mrs Maharjan gave birth to their child, a son, by emergency caesarean section. Between 8 and 13 February 2024, Mr Maharjan spent time at the hospital with Mrs Maharjan and helped care for their son. He initially took unpaid leave to attend the birth and began annual leave on 11 February 2024.

[6] Mr Maharjan made two separate applications for paid parental leave. The first application was made on 15 February 2024, for the period between 3 March 2024 and 17 March 2024 inclusive. In support of the first application Mr Maharjan provided Metro Tasmania with a certificate completed by a Registered Midwife and issued from the Tasmanian Health Service, stating that he is the primary carer for both his wife and child after the caesarean section. The Deputy President noted that Mr Maharjan said that he applied for this period based on his understanding of his entitlement at the time. On 21 February 2024, Mr Maharjan was advised that his application was refused because he did not qualify for paid parental leave.

[7] On 1 March 2024, On 1 March 2024, Mr Maharjan made a second application for 8 weeks of paid parental leave between 10 March 2024 and 5 May 2024 inclusive but later clarified that he was seeking a period of paid parental leave from 8 February 2024 to 4 April 2024 inclusive. In support of the second application the ARTBIU provided a letter from Mrs Maharjan's doctor on 4 March 2024 which stated that she was unable to look after her child as primary carer 'as she is post C-section and not fully well' and that Mr Maharjan would be unable to work for a period between 8 February 2024 to 4 April 2024 as he was the primary carer for their baby due to Mrs Maharjan's medical condition. The Deputy President noted that Mrs Maharjan had consulted the doctor after suffering a tear at the caesarean section. The evidence before the Deputy President included a detailed statement from Mrs Maharjan about the impact of the events surrounding the birth of her child upon her, her distress at giving birth by emergency caesarean section, and the effect of the tear at the site of the caesarean section.[5] Relevantly, Mrs Maharjan stated that she was in pain, was told to avoid lifting her baby for long periods and that she could not drive for 6 weeks. Ms Maharjan also advised that she was on paid parental leave at the time she gave birth to her child and that her employer had not requested that she state that she was the primary carer during the period of leave.

[8] On 7 March 2024, pending the resolution of the dispute over his claim for paid parental leave, Mr Maharjan applied for annual leave in advance and on 8 March 2024 the parties reached an agreement on a temporary measure, that Mr Maharjan would be paid for two weeks of special leave at his ordinary rate. The dispute was not resolved between the parties and on 22 March 2024 the ARTBIU requested that the matter be listed for conference before the Commission. When the dispute was not resolved at the conference conducted by the Commission it was listed for hearing. The Deputy President indicated his satisfaction that the ARTBIU took steps to resolve the matter by discussion at the enterprise level and noted that it was not in dispute that the Commission had jurisdiction to arbitrate the matter.

[9] The Deputy President began by noting that the resolution of the dispute turned on the construction of the 2020 Agreement and its application to the facts. After setting out the principles relevant to the construction of enterprise agreements (which are uncontroversial) the Deputy President turned to consider clause 34 of the 2020 Agreement, which is in the following terms:

1. PAID PARENTAL LEAVE

• (a) In addition to unpaid parental leave a Bus Operator is entitled to 8 weeks paid parental leave (or 16 weeks at half pay) if the Bus Operator:

  1. meets the same eligibility entitlements as required by unpaid parental leave;
  2. will be the primary carer for the child; and
  3. takes the paid parental leave at the time of the birth or adoption of the child (or other time if agreed by Metro).

• (b) The Paid Parental Leave under clause 34(a) is separate to the Federal Government's Paid Parental Leave scheme.

[10] The Deputy President considered that the terms of the clause were clear, and that it provides the entitlement for paid parental leave of 8 weeks (or 16 weeks at half pay) for a bus operator where the three conditions specified are met. He also noted that clause 34(b) specifies that the entitlement distinguished the leave scheme under clause 34 from the statutory paid parental leave scheme and the unpaid parental leave entitlements in clause 33 of the 2020 Agreement and that the introductory words in clause 34(a) make clear that the paid parental leave for which the clause allows is in addition to unpaid parental leave. The Deputy President next noted that clause 34(a)(1) of the 2020 Agreement requires that a Bus Operator meet the same 'eligibility entitlements' as required for unpaid parental leave. The Deputy President then set out clause 33 of the 2020 Agreement, which is in the following terms:

Note: While the National Employment Standards are subject to change, an extract

currently states: All employees in Australia are eligible for unpaid parental leave if they have completed at least 12 months of Continuous Service with their employer.' (bold and italicised text in the original.

[11] The Deputy President next set out Division 5 of the Fair Work Act 2009 (Cth) (Act) which relevantly provides:

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).

1. For the purposes of subsections (1) and (2), the date that applies is:
   • (a) if the leave is:
     • (i) birth-related leave starting before the birth of the child; or
     • (ii) unpaid special parental leave;

(b) in any other case - the date on which the employee's period of leave is to start." (bold and italicised text in the original; underlining added)

[12] Section 70 of the Act provides:

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

(a) the leave is associated with:

• (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." (bold text in the original)

[13] The Deputy President noted that there was no dispute that Mr Maharjan had completed 12 months of continuous service at the time he made the application for paid parental leave and that the eligibility requirement in s. 67 of the Act was satisfied. Regarding section 70, the Deputy President said that to the extent that section is an eligibility requirement, it is uncontroversial that if Mr Maharjan had applied for some National Employment Standards (NES) unpaid parental leave to cover the disputed period, that leave was associated with the birth of a child of his spouse. Also uncontroversial is that Mr Maharjan had, during the relevant period, a responsibility for the care of his son, and the only dispute is whether he was the primary carer. Consequently, the Deputy President found that s 70 was satisfied.

[14] The ARTBIU contended before the Deputy President that Mr Maharjan was entitled to paid parental leave under clause 34 of the 2020 Agreement on three grounds:

• Mr Maharjan met the same eligibility requirements as were required for unpaid parental leave and was eligible for unpaid parental leave;

• Mr Maharjan was the primary carer for his child as evidenced in the two medical certificates provided to Metro Tasmania; and

• Mr Maharjan sought to take leave at the time of the birth of the child.

[15] The ARTBIU also claimed that Metro Tasmania had not given genuine consideration to Mr Maharjan's application for paid parental leave and had not approved his leave due to 'the prospect of the floodgates opening' and allowing other potentially costly paid parental leave applications to be made by male employees, under clause 34 of the 2020 Agreement. Metro Tasmania submitted that Mr Maharjan did not meet the eligibility requirements in clause 34 of the 2020 Agreement as: he did not provide appropriate notice of the application; he could not be the primary carer of the child at the same time as Mrs Maharjan; and there was not an intention for him to be the primary carer.

[16] Metro Tasmania contended that the inclusion of the words '[i]n addition to' and 'will be' in clause 34 of the 2020 Agreement, result in the paid parental leave entitlement arising only in circumstances when an employee applied for unpaid parental leave in accordance with the provisions of the NES. The Deputy President then noted that Metro Tasmania submits that the application for paid parental leave is to be 'based on what the plans are for the relevant couple at the time' and that Mr Maharjan did not meet the unpaid parental leave requirements by not providing appropriate notice to Metro Tasmania. It was also noted that Metro Tasmania contended that Mr Maharjan had not provided sufficient evidence satisfying it that he was to be the primary carer either on an ongoing basis or for any period of time, and in circumstances where it was always intended for Mrs Maharjan to be the primary carer.

[17] After setting out the ARTBIU's submissions in opposition to those advanced by Metro Tasmania, the Deputy President found that the paid parental leave entitlement for which clause 34 of the 2020 Agreement provides is not conditional on an employee applying for unpaid parental leave in advance, or at all, and that the words '[i]n addition to unpaid parental leave' in clause 34(a) are words of clarification. The Deputy President went on to find that what is required by clause 34 is that an employee meet the three specified criteria and that the notice requirements for taking unpaid parental leave in s 74 of the Act on which Metro Tasmania relies pertain to the right to take leave at a specified time, not an employee's entitlement to leave per se as specified in ss 67 and 70. The Deputy President concluded in relation to this argument that:

'The notice giving requirements of s 74 affect the entitlement - when it may be taken - but not eligibility. Eligibility is as specified in ss 67 and 70. Nothing in clause 34 requires a person entitled to take paid parental leave to also have applied for and intend taking unpaid parental leave under the NES. Once that is understood, the notion that the notice requirements for unpaid parental leave in s 74 condition the paid parental leave entitlement in clause 34 falls away. On the evidence and for the reasons already discussed, Mr Maharjan meets the eligibility requirements as specified in ss 67 and 70 and so meets the first condition in clause 34.'[6]

[18] In relation to the argument advanced by Metro Tasmania that Mr Maharjan had not provided sufficient evidence in support of his application for paid parental leave, the Deputy President said:

'Clause 34 of the 2020 Agreement contains no express requirement for an employee to provide evidence in support of their application. In contrast, other provisions in the 2020 Agreement set out various evidentiary requirements, including those regulating compassionate leave, jury service, community service leave and personal/carer's leave. The absence of such a requirement from clause 34 speaks loudly to the intended operation of the provision. The provision does not countenance the subjective opinion of one or more of Metro Tasmania's managerial staff about the sufficiency of medical evidence provided as carrying the day, nor is an employee applying for paid parental leave required to show, as seems to have been the case here, that the birthmother is incapable of providing the care. Clause 34(a)(ii) conditions the paid parental leave entitlement on a requirement that the Bus Operator will be the primary carer for the child. The reason the Bus Operator will be the primary carer is immaterial. But here the reason was given. The birthmother was recovering from giving birth to her son by caesarean section on 8 February 2024 and the father was to assume the primary carer role whilst the mother recovered. That a mother giving birth by caesarean section may, in many cases, also be able to fulfil the role of primary carer is beside the point. Clause 34 does not condition the entitlement on the capacity of the birthmother but rather, on the intention of the applicant for leave to be the primary carer. Here the birthmother was recovering and although providing some care was not fulfilling the primary carer role. That role was undertaken by Mr Maharjan.'[7]

[19] The Deputy President also agreed with the ARTBIU that the provision of the medical certificate was sufficient to establish that the birthmother was unable to provide 'primary care' to the child, which the Deputy President said, in the context of childcare, is when a person has the day-to-day responsibility for the care of a child.[8] In relation to the contention of Metro Tasmania that it had not been intended that Mr Maharjan be the primary carer for the child, the Deputy President said:

'[39] The issue in dispute is whether Mr Maharjan was the primary carer for the purposes of meeting the condition in clause 34 of the 2020 Agreement, not whether Mrs Maharjan claimed to be a primary carer when taking parental leave under another industrial instrument. In determining whether Mr Maharjan was the primary carer, it is relevant to consider whether Mr Maharjan provided the primary care to the child, rather than whether Mrs Maharjan was incapable of providing the primary care. And as already noted, that Mrs Maharjan may have provided some care to the child does not diminish Mr Maharjan's claim that he was the primary carer during the relevant period. It is clear on the evidence that Mr Maharjan provided the primary care to the child for the relevant period. He intended when applying for paid parental leave to be the primary carer and he was for the relevant period the primary carer of his son and so met the requirement in clause 34(a)(ii).'

[20] The medical evidence provided by Mr and Mrs Maharjan was preferred over the expert evidence of Associate Professor Vinay Rane, an obstetrician and gynaecologist who was called by Metro Tasmania and gave evidence that Mrs Maharjan would not have been incapable of providing primary care to her baby. The Deputy President determined that the Associate Professor's evidence consisted of generalised observations about the expected capacity of a woman giving birth by caesarean section, he had not spoken to or examined Mrs Maharjan, the evidence was provided without the benefit of consultation and Mrs Maharjan's capacity to care for her son was not relevant to the question of whether Mr Maharjan was the primary carer during the relevant period.

[21] The Deputy President also rejected the assertion by Metro Tasmania that the words 'will be' in clause 34(a)(ii) refer to a future event that is certain or planned and require an employee to make a future plan to take paid parental leave. This assertion was considered by the Deputy President to be 'devoid of the realities in which the clause may operate' and to illustrate this point said that an application for paid parental leave may be made before the birth of a child when an applicant employee is planning to be the primary carer, but as in the present case, a prospective parent may also become a primary carer in unplanned circumstances. The Deputy President concluded where there are circumstances that prevent one parent from carrying out the primary carer role as had been planned, '[T]he notion that the other parent would not be entitled to claim the benefit under clause 34 of the 2020 Agreement, because although they are the primary care giver by dint of circumstances, they had not planned to be so, is quite absurd and belies any rational reading of the provision'[9]. The phrase 'will be' was considered to refer to ongoing actions of carrying out the role of primary carer during the period of parental leave. The Deputy President concluded on this point that:

'In other words, it is a condition that a Bus Operator taking paid parental leave under clause 34 of the 2020 Agreement be the primary carer to the child while taking the leave. On Metro Tasmania's construction, it is sufficient before the child is born that a Bus Operator will in the future be the primary carer to be entitled to paid parental leave, but it is insufficient that the Bus Operator, as a matter of fact, is the primary carer of the child although the operator had not planned to be so. Such a construction is absurd and objectively cannot have been intended.'

[22] It was also noted that clause 34 of the 2020 Agreement does not require an employee to provide evidence in support of an application for paid parental leave, even though in this case evidence was provided which was sufficient to establish that the birthmother was unable to provide primary care to the child. Metro Tasmania relied on Construction, Forestry, Mining and Energy Union v BHP Coal Pty Ltd[10] (BHP Coal) to support the submission that the capacity of Ms Maharjan to provide primary care is a relevant factor in determining whether Mr Maharjan was the primary carer. The Deputy President noted that BHP Coal related to a policy where employees were required to provide specific documentation to support their application. The Deputy President agreed with the statement in that decision that: 'if a treating Doctor states that a woman who has given birth is suffering from a medical condition that prevents her from providing primary care to a newborn child, then that is sufficient for her spouse or partner to claim an entitlement to paid primary carer's leave to provide such care to the child.'

[23] Regarding the third condition in clause 34(a)(iii), the Deputy President found that it was not in dispute that Mr Maharjan sought to take paid parental leave for a period which included the time of the birth of his child and that he therefore meets the third condition. The Deputy President found that Mr Maharjan was entitled under clause 34 to paid parental leave from 8 February 2024 to 4 April 2024 and ordered that his accrued leave balances be recredited for the amount of any other form of paid leave he had taken during that period.

[24] The grounds of appeal raised by Metro Tasmania in its notice of appeal are as follows:

1. The Deputy President erred at paragraph [36] of the Decision in the ordinary definition of 'primary carer' by adopting the following definition '...a person who has the day-to-day responsibility for the care of the child' which does not define primary carer in a way that there can only be one primary carer of a child at any given time consistent with the ordinary meaning of 'primary'.

2. The Deputy President made an error of fact in finding that Mr Maharjan was the primary carer of his son (at paragraph [34] of the Decision) for the period 8 February 2024 to 4 April 2024 as:

   1. the Deputy President failed to take into account that Mrs Maharjan also claimed to be the primary carer of their son for this period;

   2. the Deputy President failed to take into account that Mr Maharjan provided no care to his son for periods between 8 February 2024 to 13 February 2024 as his son was cared for by Mrs Maharjan in hospital;

   3. the Deputy President erred at paragraph [34] of the Decision in characterising the reason as '...The birthmother was recovering from giving birth to her son by caesarean section on 8 February 2024 and the father was to assume the primary carer role whilst the mother recovered' as the reason given at the time Mr Maharjan made an application for paid parental leave was that the Mother was incapable of performing the role of primary carer;

   4. the Deputy President erred at paragraph [39] of the Decision in finding that it was not relevant to determine whether Mrs Maharjan was incapable of providing primary care as:

      1. this was the reason given by Mr Maharjan as to why he was the primary carer of his son; and
      2. this is, therefore, a relevant fact in determining whether Mr Maharjan was the primary carer of his son which the Deputy President failed to take into account; and
      3. because of this, failing to take into account the evidence of Associate Professor Vinay Rane which was relevant to determining whether Mrs Maharjan was incapable of providing primary care.

   5. the Deputy President erred at paragraph [40] of the Decision in rejecting the evidence of Associate Professor Vinay Rane for the reasons stated because:

      1. the opinions of Associate Professor Vinay Rane are of an expert nature having reviewed the detailed contemporaneous notes made by treating doctors and nurses and, so far as they relate to Mrs Maharjan, were not 'generalised observations';
      2. the opinions do assist in resolving the dispute about whether Mr Maharjan was the primary carer of his son as the reason given by Mr Maharjan was that Mrs Maharjan was incapable of performing the role of primary carer;
      3. the opinions of Mrs Maharjan's doctor relied on by the Deputy President were not expert in their nature given the General Practitioner was not Mrs Maharjan's treating doctor for her caesarean section and also did not consult with Mrs Maharjan at the time of the birth of her child.

3. The Deputy President erred at paragraph [45] of the Decision in applying the decision of former Deputy President Asbury from BHP Coal by adopting the views of former Deputy President Asbury that '...if a treating Doctor states that a woman who has given birth is suffering from a medical condition that prevents her from providing primary care to a newborn child, then that is sufficient for her spouse or partner to claim an entitlement to paid primary carer's leave to provide such are to the child' and finding that 'the medical certificate here did just that and it is unnecessary to look behind it' as the medical certificate relied on by the Applicant was not a certificate from a treating Doctor.

[25] The Appellant submits that permission to appeal should be granted as it is in the public interest to do so on the grounds that there is currently no general guidance on when a person is a primary carer for a child or what is meant by the term 'primary carer' in an industrial sense; the decision was counterintuitive as there cannot be two primary carers of a child at one time; and the decision is not consistent with the decision in BHP Coal.

[26] Regarding the first substantive ground of appeal, that there was an error in the definition of 'primary carer' adopted by the Deputy President, the Appellant submitted that the adopted definition is inconsistent with the usual meaning of 'primary carer'. It is submitted that the definition should take into account that only one person can be a primary carer at any one time and the 2020 Agreement should be interpreted as the parties intended it to be at the time of approval. In this regard it is submitted that the Deputy President should have considered the intention of the parties at the time the 2020 Agreement was negotiated, including the explanatory memorandum of the Paid Parental Leave Act 2010 (Cth), which supports the assertion that there may only be one primary carer.

[27] The second ground of appeal that the Deputy President made an error of fact in finding that Mr Maharjan was the primary carer of his child from 8 February 2024 to 4 April 2024, is submitted by the Appellant to be a material error leading to sufficient doubt to warrant reconsideration. The Appellant submits that the Deputy President failed to take into account that Mrs Maharjan was receiving paid parental leave from her employer as the primary carer, during the same period which Mr Maharjan had claimed paid parental leave from the Appellant. The Appellant states that while they accept that Mrs Maharjan's entitlement to paid parental leave as a primary carer is not an issue in dispute, it is relevant to the consideration of whether Mr Maharjan was a primary carer over the claimed period.

[28] The Appellant also asserted that the Deputy President failed to take into account that it was not possible for Mr Maharjan to be the primary carer of his child, as between 8 February 2024 and 13 February 2024 the child was cared for by Mrs Maharjan in hospital and Mr Maharjan was not permitted to stay overnight on all occasions during this period. It was noted this is particularly relevant for the purposes of the 2020 Agreement which outlines that the entitlement under clause 34 only applies in circumstances when leave is taken 'at the time of birth' or a time otherwise agreed.

[29] It was also submitted by the Appellant that the Deputy President mischaracterised the reason that Mr Maharjan claimed paid parental leave as '... The birthmother was recovering from giving birth to her son by caesarean section on 8 February 2024 and the father was to assume the primary carer role whilst the mother recovered.'[11] When in fact, the reason that had been provided by Mr Maharjan in his application for paid parental leave was that Mrs Maharjan was incapable of performing the role of primary carer. The Appellant submits that this distinction is relevant as it demonstrates it is reasonable for the Appellant to request further information regarding the reason for the application under clause 34 of the 2020 Agreement and that while no evidence was expressly required, the evidence provided by Mr Maharjan was relevant to the Deputy President's determination. Given this reasoning, it was also relevant for the Deputy President to consider the evidence of Associate Professor Rane.

[30] It is further submitted by the Appellant that the Deputy President erred in finding that it was not relevant whether Mrs Maharjan was incapable of providing primary care as Mr Maharjan provided this as the reason as to why he was the primary carer in his application, and Mrs Maharjan's incapacity was therefore materially relevant. It is submitted that the finding that this was not relevant in the primary decision, contributed to the Deputy President's failure to appropriately consider the material medical evidence of Associate Professor Rane.

[31] Regarding the medical evidence of Associate Professor Rane, the Appellant submitted that the Deputy President had not given appropriate weight to the expert evidence provided. In relation to the Deputy President's finding that the evidence of the Associate Professor was generalised observations, it was submitted that the opinions were expert in nature and with the benefit of reviewing notes made by treating doctors and nurses at the time of birth. It is submitted that this evidence should be given some weight at a minimum, particularly in contrast to the medical evidence of the Respondent which included a backdated medical certificate from a General Practitioner, who was not a specialist or treating doctor in relation to the birth. Regarding the statement by the Deputy President that evidence of the Associate Professor was without the benefit of examination of Mrs Maharjan and was given months after the birth, it is submitted the Associate Professor had reviewed detailed contemporaneous notes of the treating doctor and this is contrasted with the certificate from the General Practitioner, where there is also no evidence that they examined Mrs Maharjan at the time of birth. It is contended that the most relevant evidence was the contemporaneous notes, which the Associate Professor had the benefit of reviewing.

[32] In relation to the Deputy President's statement that the evidence does not resolve the proper construction of the 2020 Agreement, the Appellant submits that the Associate Professor's evidence assisted in resolving the dispute about whether Mr Maharjan was the primary carer of his child, and the Deputy President erred in not allowing the Associate Professor to expand on his evidence in examination in chief. This is particularly relevant due to the conflicting evidence of the General Practitioner provided by the Respondent.

[33] Regarding the third ground of appeal, it is submitted by the Appellant that the Deputy President erred in applying the decision of BHP Coal when he stated the 'the medical certificate here did just that and it is unnecessary to look behind it'.[12] It is submitted that the Deputy President erred in coming to this conclusion because unlike in BHP Coal the Deputy President accepted a medical certificate provided by a General Practitioner as a treating doctor, when they were not in fact the treating doctor for the caesarean section. The Appellant submits this is compounded by the failure to give weight to the evidence of the Associate Professor.

[34] It was also submitted that the Deputy President erred in finding that the Appellant sought to rely on the BHP Coal decision to support the submissions that Mrs Maharjan's incapacity to be the primary carer was a relevant consideration.[13] It is submitted by the Appellant that reliance on BHP Coal is relevant not just generally but where the reason for applying for paid parental leave by Mr Maharjan was Mrs Maharjan's incapacity and that in BHP Coal it was stated that:

'...What is determinative of the entitlement is that the employee assumes the role of primary carer in circumstances where the mother is incapable of providing that care. It is axiomatic that the employee who claims the entitlement to paid primary carer's leave must in fact be the primary carer'[14]

[35] The Respondent submits that there is no public interest in the Full Bench hearing the appeal, as there will be no injustice if permission to appeal is refused, and bargaining is currently underway for a new agreement so the Appellant may seek an amendment to the clause through this process. The Respondent rejects the submission that an appeal will provide general guidance on the meaning of 'primary carer' and states that it is wrong to assume a decision made about the 2020 Agreement would have any broad applicability. The Respondent also rejects the assertion that the original decision is counterintuitive and contend that the decision was reached in an orthodox way. It is further submitted that the decision in BHP Coal is clearly factually distinguishable from the present matter.

[36] Regarding the first ground of appeal the Respondent submits that the conclusion which the Deputy President came to regarding the definition of 'primary carer' was plainly correct. The Respondent rejects the submission of the Appellant that the explanatory memorandum of the PPL Act and intention of parties should be considered in determining this term on the grounds that a bedrock principle in the Commission is that the subjective intention of parties is not relevant to interpretation, citing AMIEU v Golden Cockerel Pty Ltd.[15] The Respondent also submits that there is no evidence that the PPL Act and its explanatory memorandum were discussed during bargaining and there is no reason as to why the definition in the legislation would apply in the 2020 Agreement where there are no words linking the two.

[37] The Respondent also contended that the Appellant misrepresented the facts and evidence by characterising both parents as the primary carer where it was found in fact that Mr Maharjan, and not Mrs Maharjan, provided primary care to the child. Regarding the second ground of appeal, the Respondent submits that the Applicant is attempting to re-litigate their argument and that the Full Bench should not facilitate this approach. They note that an error is only appealable where it will be material to the outcome of the case, citing Virgin Australia Airlines Pty Ltd v DeVania Blackburn.[16] The Respondent rejects all points of this ground of appeal, including the submissions that the Deputy President:

1. failed to take into account that Mrs Maharjan also claimed to be the primary carer of her son. The Respondent submits that this was taken into account in the primary decision, and in any case was a peripheral and inconsequential consideration;

2. did not consider that Mrs Maharjan was the primary carer of their child while in hospital between 8 February 2024 and 13 February 2024. The Respondent noted that this was not the evidence but was however considered in the decision by the Deputy President at paragraph [6]. The Respondent submits that this is not a point which will be central to the outcome of the matter, and it would be oppressive and complex if an employer is entitled to review the daily occurrences of a period of parental leave to determine which days primary care was provided by an employee.

3. mischaracterised the reason for the application and submit that there is no clear distinction between this characterisation and the words used in Mr Maharjan's application.

4. erred in finding that it was not relevant whether Mrs Maharjan was incapable of providing primary care. The Respondent submits that it was open and plainly correct for the Deputy President to come to this conclusion and that it was also accepted by the Deputy President that there was medical evidence that Mrs Maharjan was incapable of providing care. The Respondent further submitted that there was no requirement under clause 34 of the 2020 Agreement for the birthmother to be incapacitated or medical evidence to be required. It is contended by the Respondent that the Appellant is unable to point to any terms in the agreement which support the conclusion that an employee must demonstrate that the birthmother is incapable of providing care.

5. erred in rejecting the evidence of Associate Professor Vine. The Respondent rejected this submission stating it is a mischaracterisation of the Decision. The Respondent submits that the Deputy President had the benefit of hearing the Associate Professors evidence and giving it detailed consideration and that there is no error to intervein and consider on appeal. The Respondent submits that the observations were generalised in nature as the Associate Professor had not been to the hospital where Mrs Maharjan was treated and did not have any firsthand knowledge of their practices. Further, the evidence begins with the phrase 'generally, the expected recovery following a caesarean birth' and includes statements regarding what 'would' usually be the case. The Respondent further submits that the fact that the Associate Professor had not examined Mrs Maharjan was a fundamental issue and that this is compounded as he was not provided with the GP records. The Respondent submits that the evidence relates to the capacity of the birthmother to be a primary carer, which is not a relevant consideration.

[38] Regarding the third ground of appeal, the Respondent submits that the Appellant has failed to consider the differing facts and evidence in the BHP Coal decision. It is submitted that the link between the requirement for medical evidence and wording of the clause is in stark contrast to the clause in the 2020 Agreement. The Respondent also submits that this matter is distinguishable from BHP Coal as in that agreement it was expressed that the mother must be incapable of filling the role, which is not the case in the 2020 Agreement.

[39] We do not accept that the Deputy President erred in the manner contended in appeal ground 1. The Deputy President adopted a definition of 'primary carer' consistent with its ordinary meaning. The starting point for the construction of a term of an enterprise agreement is the ordinary meaning of the words, read as a whole and in context. A purposive approach is preferred to a narrow or pedantic approach - the framers of such documents were likely to be of a practical bent of mind. The interpretation turns upon the language of the particular agreement, understood in the light of its industrial context and purpose. Context is not confined to the words of the instrument surrounding the expression to be construed. It may extend to the entire document of which it is a part, or to other documents with which there is an association. Context may include ideas that gave rise to an expression in a document from which it has been taken. Recourse may be had to the history of a particular clause where the circumstances allow the court to conclude that a clause in an award is the product of a history, out of which it grew to be adopted in its present form. A generous construction is preferred over a strictly literal approach, but agreements should make sense according to the basic conventions of the English language. Words are not to be interpreted in a vacuum divorced from industrial realities but in the light of the customs and working conditions of the particular industry.[17]

[40] The plain meaning of the term 'primary' is 'principal' or 'main'. 'Primary' does not mean 'only'. In the context of caring for a baby, to be a primary carer does not require the person providing care to be the sole carer, and nor does a primary carer cease to be so because assistance with caregiving is provided by a spouse or partner. The primary carer in the context of a child, is the person who principally provides care, or has overall responsibility for the provision of care, rather than a person who solely provides or is responsible for the provision of care. The Deputy President did not posit a definition of primary carer but simply observed that the phrase was not defined in the 2020 Agreement and gave it an ordinary meaning.

[41] The ordinary meaning of the phrase 'primary carer' posited by the Deputy President at paragraph [36] of the Decision emphasised that the primary carer has 'day to day responsibility' for the care of a child. That definition is not erroneous and in the context of the decision read as a whole, the term 'responsibility' conveys the Deputy President's view that a primary carer has the ability to act independently or to have control over the situation - here the care of a newborn child. Responsibility for care of the child meant that Mr Maharjan was the primary carer in the sense that he was principally providing care to his child. It is axiomatic that Mrs Mahajan was not providing primary care to the child at the same time and that the only primary carer was Mr Maharjan, and this is consistent with the Deputy President's conclusion at paragraph [39].

[42] When the evidence Mr and Mrs Maharjan, including the medical evidence is considered, the Deputy President made no appealable error when he found that Mr Maharjan was the primary carer for the child and had overall responsibility for the child's welfare, in circumstances where Mrs Maharjan had undergone an emergency caesarean section and later sustained a tear to the wound which caused her to be unable to take responsibility for the care of her child. Mrs Maharjan was under medical advice to rest and not to carry her baby for long periods. That medical advice also included that Mrs Maharjan should not drive. Mrs Maharjan would not have been capable of transporting her child in the event of a medical emergency and likely would have struggled to put the child into a car-seat or capsule. Mrs Maharjan would not have been capable being the primary care giver to her child while she was resting in accordance with her doctor's instructions. On any view of the medical evidence, Mr Maharjan was the primary carer, responsible for the wellbeing of the child, and the Deputy President did not err by making a finding to that effect.

[43] We also do not accept that the Deputy President erred by failing to have regard to 'the intention of the parties at the time the 2020 Agreement was negotiated', including by reference to the explanatory memorandum to the Paid Parental Leave Act 2010 (Cth), which supports the assertion that there may only be one primary carer. There was no evidence before the Deputy President upon which a common intention could have been discerned, and this matter was not argued at first instance. Further, there was no evidence in the appeal in support of the purported common intention. There is no evidence that either party considered the explanatory memorandum to the Paid Parental Leave Act 2010 (Cth) when the Agreement was negotiated, and the Deputy President did not err by failing to consider that matter. We reject appeal ground 1.

[44] We do not accept, as contended in ground 2(a), that the Deputy President made an error of fact in finding that Mr Maharjan was the primary carer of the child from 8 February to 14 April as contended by the Appellant. The evidence in relation to Mrs Maharjan claiming to be the primary carer, was limited to the fact that that she took parental leave on that basis. Mrs Maharjan also said in her evidence that her employer did not require that she state an intention to be the primary carer for her child when taking parental leave. In any event as the Deputy President found, for reasons beyond her control, Mrs Maharjan was required to give birth by emergency caesarean section. This situation was neither expected nor planned, and was in fact contrary to the manner in which Mrs Maharjan had wanted to give birth and caused her distress. As the Deputy President correctly pointed out (at paragraph [41]) a paid parental leave application may be made before the birth of a child on the basis that the parent who makes the application has chosen to be the primary caregiver while the other parent returns to work. However, a prospective parent having chosen to return to work, may be required to become the primary carer in unplanned circumstances. We agree with the Deputy President's observation that the notion that the other parent would not be able to claim the benefit under clause 34, because although they are the primary care giver by dint of circumstances, they had not planned, is absurd.

[45] We also reject the assertion in appeal ground 2(b) that a parent cannot be the primary carer for a child while the other parent and the child are in hospital. In this regard, we do not accept the assertion that Mr Maharjan provided no care while Mrs Maharjan and their child were in hospital. Both Mr and Mrs Maharjan gave detailed evidence in relation to the tasks he undertook during this period. While we accept, given Mrs Maharjan's difficult birth, that the baby would have been cared for by hospital staff if Mr Maharjan was not present at the hospital, that is not the point. There is nothing unusual about both parents staying at the hospital following the birth of a child. It is usual that nursing and other medical staff expect that parents will provide care to their baby during a hospital stay by undertaking the tasks described by Mr and Mrs Maharjan. We accept that Mrs Maharjan was not capable of providing the full range of care that a birth mother generally undertakes while in hospital after giving birth - burping, bathing, changing nappies and settling the baby. Nor could Mrs Maharjan massage the baby in accordance with custom and Mr Mahajan also undertook this task. During that period, Mr Maharjan took on the responsibility as the primary carer for the baby. The Deputy President did not err in so finding.

[46] In relation to appeal ground 2(c) we do not accept that the Deputy President erred by characterising the reason for claiming paid parental leave as: '...The birthmother was recovering from giving birth to her son by caesarean section on 8 February 2024 and the father was to assume the primary carer role whilst the mother recovered'. The reason given at the time Mr Maharjan made an application for paid parental leave was that the mother was incapable of performing the role of primary carer. There is no basis for construing the terms of clause 34 as requiring that the reason given at the time a claim for paid parental leave is made, or the expression of the reason given, continues to be the case for the duration of the leave. It is possible, as occurred in the present case, that Mrs Maharjan was initially unable to be the primary carer for their baby because of the emergency caesarean section, and later her reason for being unable to provide primary care was a complication arising from tear to her wound. Nor is Mr Maharjan disqualified from receiving the benefit of clause 34 simply because the reason he was required to be the primary carer changed after the initial request was made. This submission elevates form over substance, and we do not accept it.

[47] Appeal ground 2(d)(i) simply restates ground 2(c). The reason given by a parent at the time paid parental leave is requested, is not set in stone as determinative of the entitlement. Nor was it necessary for Mr Marjarhan to establish that Mrs Maharjan was incapable of providing primary care. Based on the concept of 'incapable' posited by the Respondent, it would be difficult for the spouse or partner of a woman who has given birth to establish that she could not provide primary care other than if the woman was rendered completely immobile. In any event, Mr and Mrs Marjarhan provided detailed evidence to the Deputy President to establish that he was providing primary care to the child at all relevant times and that Mrs Maharjan could not provide that care because she was recovering. It was not asserted that Mrs Maharjan was incapable of providing primary care and this is not required by clause 34 of the 2020 Agreement. The fact that Mrs Maharjan could provide some care for her child, does not mean that she was providing primary care. The Deputy President did not err in his conclusions in relation to this matter.

[48] Nor did the Deputy President err by failing to consider the evidence of Associate Professor Vinay Rane and we reject ground 2(3). The Deputy President considered the evidence of Associate Professor Vinay Rane and decided not to give it any weight. That view was open to the Deputy President for the reasons he gave. There is no error in any of his observations about the evidence set out at [40] of the Decision. Although he reviewed Mrs Maharjan's clinical notes, the Associate Professor did not speak to her nor conduct an examination. We were taken to the transcript of Professor Vinay Rane's oral evidence at the hearing before the Deputy President and we accept the Respondent's submission that the Deputy President's views about the weight to be placed on that evidence are supported by the concessions made by the Associate Professor under cross-examination. For the reasons we have set out above, observations about whether Mrs Maharjan was or was incapable of providing care to her child are not determinative of the entitlement of Mr Maharjan to paid parental leave under clause 34 of the 2020 Agreement. With the greatest of respect to the Associate Professor, an entitlement to paid parental leave is not determined by generalised views about the recovery of women who have given birth by caesarean section. The fact that the General Practitioner Mrs Maharjan consulted after she gave birth did not examine her at the time of the birth is irrelevant. The evidence was the Mrs Maharjan had sustained a tear at the caesarean section, and as a result could not be the primary carer for her child. The Deputy President heard the evidence and it is entirely reasonable that he accepted the evidence of a medical practitioner who had treated Mrs Maharjan over one who had not, regardless of their respective expertise.

[49] In relation to appeal ground 3, we do not accept that the Deputy President erred by applying the decision in BHP Coal. The Deputy President's Decision records at paragraph [43] the Appellant sought to rely on that decision at first instance, to support its submission that a relevant consideration in determining whether Mr Maharjan was the primary carer of the child is whether Mrs Maharjan was incapable of providing primary care. The Deputy President first observed that this reliance is misconceived before turning to consider the different factual scenario in that case. As the Deputy President's analysis indicates, BHP Coal had a policy in respect of an entitlement to paid primary carers leave for male employees, in addition to the provisions of the Act, and required evidence including a certificate from a treating obstetrician/gynaecologist that the mother is suffering from a post-natal medical condition (in addition to/not including a Caesarean Section) which prevents her from being the primary caregiver for the child and that she is unable to provide primary care for the child for the certified period. The Deputy President stated his agreement with the conclusion in that case to the effect that if a treating doctor states that a woman who has given birth is suffering from a medical condition that prevents her from providing primary care to a newborn child, then that is sufficient for her spouse or partner to claim an entitlement to paid primary carer's leave to provide such care to the child. There is no such requirement applicable in the present case.

The Appellant does not dispute that it relied on BHP Coal for the purpose identified by the Deputy President. The Deputy President's analysis of the case is correct, and there is no error in this endorsement of the observation in that case. That observation was applicable on the evidence before the Deputy President which established that Mrs Maharjan's treating general practitioner had treated her for a tear, and certified that Mr Maharjan was the primary carer for their child because of her medical condition. As we have stated, while the general practitioner was not the treating doctor for the caesarean section, the doctor did treat Mrs Maharjan for a related complication and it was reasonable for the Deputy President to accept the certificate as evidence that Mr Maharjan was the primary carer.

[50] For these reasons, we refused permission to appeal.

J Kennedy for Australian Rail, Tram and Bus Industry Union

[1] Australian Rail, Tram and Bus Industry Union v Metro Tasmania [2024] FWC 1873.

[2] Minister for Immigration v SZVFW [2018] HCA 30; (2018) 264 CLR 541 at 563 per Gageler J.

[3] The Australasian Meat Industry Employees Union v Diamond Valley Rail Commissioner v Rogers [2021] FWCFB 371 at [61].

[4] PR786994.

[10] [2015] FWC 920.

[15] (2014) FWCFB 7447.

[16] [2022] FWCFB 232.

[17] AMA (Victoria) Ltd and Australian Salaried Medical Officers Federation v The Royal Women's Hospital [2022] FWCFB 7 citing James Cook University v Ridd.

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