Fair Work Act 2009

s.739 - Application to deal with a dispute

Dispute under an enterprise agreement - Paid parental leave - Definition of 'primary caregiver' - Meaning of newborn

• [1] Mr Nicholas Murray is an Advanced Life Support Paramedic employed by Ambulance Victoria. In April 2025, Mr Murray's wife gave birth to their first child. Mr Murray has applied for parental leave to commence in September 2025. The Ambulance Victoria Enterprise Agreement 2024 provides for unpaid parental leave and 2 forms of paid parental leave - 14 weeks of primary caregiver leave or 2 weeks of secondary caregiver leave. This decision is about whether Mr Murray is entitled to paid primary caregiver leave under clause 69.2 of the Agreement.

• [2] The Ambulance Victoria Enterprise Agreement 2024 was approved by me on 14 February 2024 ( [2024] FWCA 586 AE528036). It commenced operation on 21 February 2025. Its nominal expiry date is 20 October 2028.

• [3] The relevant clauses of the Agreement are:
  • Clause 14 - Resolution of Disputes and Grievances;
  • Clause 69 - Parental Leave; and
  • Various definitions contained within clause 2 - Definitions.

• [4] Clause 69 is extensive. It includes a Summary box, which provides:

This clause sets out an employee's entitlement to parental leave and other related entitlements.

In summary, an employee who has completed 12 months of continuous service with AV is entitled to 12 months of unpaid parental leave where they will have responsibility for the care of a child. Unpaid parental leave may be taken in relation to the birth or adoption of a child also.

If an eligible employee is employed on a full time or part time basis and has the primary responsibility for the care of a child, the employee is entitled to 14 weeks' paid parental leave, to be taken concurrently with unpaid parental leave.

If an eligible employee is employed on a full time or part time basis and does not have the primary responsibility for the care of a child, the employee is entitled to 2 weeks' paid parental leave, to be taken concurrently with unpaid parental leave.

An eligible employee who has responsibility for the care of a child is entitled to 12 months of unpaid parental leave (including 14 or 2 weeks of concurrent paid parental leave), even if:

• the employee's partner is also taking unpaid parental leave;
• the employee is taking some or all of their unpaid parental leave at the same time as their partner; and/or
• the child is stillborn.

An employee may also be entitled to other related forms of leave, including:

• Prenatal leave to attend routine medical appointments associated with pregnancy;
• Unpaid special parental leave where an employee is suffering from a pregnancy-related illness, or where pregnancy ends in miscarriage;
• Unpaid pre-adoption leave to attend interviews and examinations necessary for obtaining approval to adopt a child; and
• Paid or unpaid 'no safe job' leave for a pregnant employee who is unable to safely perform their role.

• [5] Clause 69.2 provides for Entitlement to paid parental leave, as follows:

(a) An eligible employee engaged on a full time or part time basis, and who is the primary caregiver, is entitled to 14 weeks' paid leave (or 28 weeks' leave at half pay) to be taken concurrently with their unpaid parental leave as set out in clause 69.1.

(b) An eligible employee engaged on a full time or part time basis, and who is the secondary caregiver, is entitled to 2 weeks' paid leave (or 4 weeks' leave at half pay) to be taken concurrently with their unpaid parental leave as set out in clause 69.1.

(c) An eligible employee cannot receive paid parental leave under clause 69.2(b) if they have already received the paid parental leave entitlement under clause 69.2(a) in relation to the child.

(d) A period of paid parental leave taken in accordance with this clause must be for:

(ii) taken within the first 52 weeks of commencing their period of unpaid parental leave.

(e) An employee may also be eligible for the Australian government's paid parental leave payments during their period of unpaid parental leave.

(f) An eligible casual employee is also entitled to paid parental leave

• [6] Primary caregiver is defined in clause 2.35:

Primary caregiver means the person who takes primary responsibility for the care of a newborn or newly adopted child. The primary caregiver is the person who meets the child's physical needs more than anyone else. Only one person can be a child's primary caregiver.

• [7] Secondary caregiver is defined in clause 2.42:

Secondary caregiver means a person who has parental responsibility for the child but is not the primary caregiver.

• [8] Section 595 of the Fair Work Act 2009 (Cth) provides for the Commission's power to deal with disputes only if it is expressly authorised to do so or in accordance with another provision of the Act. Section 739 provides for the Commission's powers to deal with a dispute where an enterprise agreement includes a term that provides a procedure for dealing with disputes under section 738(b).

• [9] Clause 14.5 of the Agreement authorises the Commission to arbitrate the dispute.

• [10] It is not in dispute between the parties, and I am satisfied based on the uncontested evidence of Mr Murray that he has followed the procedures in clause 14 of the Agreement and is a party who may refer this dispute to the Commission for arbitration in accordance with clause 14.5.

• [11] I conducted a conference in this matter on 1 July 2025 and heard the matter on 28 August 2025. I accepted the witness statement of Mr Murray into evidence. Mr Murray's evidence was not challenged except for one paragraph in which he expressed the opinion that he was the primary caregiver.

• [12] The parties conferred and agreed on the following question for determination:

Whether the Applicant is entitled to primary caregiver paid parental leave for the period between September 2025 and May 2026, per clause 69.2 of the 2024 Ambulance Victoria Enterprise Agreement.

• [13] There is no dispute between the parties that Mr Murray is an eligible employee who may access parental leave under clause 69 of the Agreement. He has been employed with Ambulance Victoria since 2019 and therefore has completed more than 12 months continuous service. He is employed on a full-time basis. There is also no dispute that the leave is birth related, and no dispute that Mr Murray may take the length of time that he wishes to take (being 6 months from September 2025 until May 2026). Mr Murray's child was born in April 2025.

• [14] Mr Murray wishes to access 28 weeks at half pay under clause 69.2(a). The employer does not dispute that he can take leave at half pay if he is a primary caregiver. There is also no dispute that primary caregiver leave could be taken concurrently with the unpaid parental leave to which he is entitled.

• [15] The only dispute is whether Mr Murray is a primary caregiver.

• [16] The principles of interpretation of enterprise agreements are well settled: see AMWU v Berri Pty Ltd [2017] FWCFB 3005 at [114]; and AMA & ASMOF v the Royal Women's Hospital [2022] FWCFB 7 at [29]. Relevantly, those principles include that:

• The starting point for interpretation is the ordinary meaning of the words, read as a whole and in context.

• Context includes the statutory framework under which an agreement is made, antecedent instruments from which a provision may have been derived as well as the industrial context in which an agreement operates.

• The evident purpose of the provision is also relevant context.

• A purposive approach is to be preferred over a narrow or pedantic approach.

• Interpretation turns on the language of the Agreement in light of its industrial context and purpose.

• A generous construction is to be preferred over a strictly literal approach.

• But the task is one of interpreting the agreement, not of giving effect to a notion of what is fair or just disregarding what has been written.

• [17] The Agreement contains definitions in clause 2. It includes definitions of words or terms used throughout the Agreement or for the purposes of specific clauses of the Agreement only. For example, 'eligible employee' is defined in clause 2.17 for the purposes of clause 69 only. Other defined terms that appear in clause 69 include Adoption leave, Birth-related leave, Eligible casual employee.

• [18] Clause 69 is titled 'Parental Leave.' It sits within Part 6 of the Agreement, which is about types of leave and public holidays. Other forms of leave in Part 6 also relate to caring responsibilities, including clause 70 - Paid Lactation Breaks and clause 71 - Reimbursement of Childcare Expenses.

• [19] Clause 69.1 provides for 12 months of unpaid parental leave to eligible employees, where the leave is birth-related or adoption leave and the employer has responsibility for the care of the child. Clause 69.1(d) allows for the period of 12 months unpaid parental leave to be taken at any time within the 24 months following the birth or placement of the child, provided that it also ends within those 24 months.

• [20] Clause 69.1(g) and (h) provides that eligible employees may take up to 12 months of unpaid parental leave irrespective of how much their partner takes, and they may take some or all of their unpaid parental leave at the same time as their partner.

• [21] Clause 69.2 then provides for entitlement to paid parental leave. Clause 69.2(a) provides for primary caregiver leave; clause 69.2(b) provides for secondary caregiver leave. Paid primary caregiver leave is a more generous entitlement than secondary caregiver leave: 14 weeks, compared with 2 weeks. Both clauses make it clear that leave can be taken at half pay, and concurrently with unpaid parental leave. Clause 69.2(c) prohibits the receipt of secondary caregiver leave if an employee has already received primary caregiver leave. Clause 69.2(d) requires that paid parental leave is taken in a single continuous period and at the commencement of a period of unpaid parental leave. Last, clause 69.2(f) provides paid parental leave for casual employees who are eligible.

• [22] Clause 69.3 provides that employees may access other entitlements, such as annual leave and long service leave during unpaid parental leave.

• [23] Clauses 69.4, 69.5, 69.10, 69.11,69.12, 69.13 provide for other forms of leave or entitlements that may be taken or exercised during a period of unpaid parental leave.

• [24] Clause 69.6 deals with extending or varying unpaid parental leave.

• [25] Clauses 69.7 and 69.8 deal with how pay is calculated for the purposes of parental leave and notice and evidence requirements.

• [26] Clause 69.14 deals with returning to work after parental leave. Clause 69.15 deals with replacement employees. Clause 69.16 deals with communication with employees during their parental leave about significant change.

• [27] Clause 69.17 deals with entitlements if a pregnancy ends other than by birth of a living child or a child born alive, dies. Clause 69.18 provides Ambulance Victoria with the discretion to require an employee to return to work from unpaid parental leave where they cease to have responsibility for a child.

• [28] Clause 69 is a new clause in the 2024 Agreement; in its current form, it has not been in any of Ambulance Victoria's previous enterprise agreements.

• [29] I am unable to conclude that Mr Murray is a primary caregiver within the meaning of clause 2.35 of the Agreement. This is because the plain and ordinary meaning of "a newborn" is recently born child. The applicant directed me to the dictionary definition of 'newborn' in the Macquarie Dictionary, which is:

Adjective - 1. Recently or only just born; 2. Born anew; reborn

• [30] Other dictionaries that I have consulted (Australian Oxford Concise Dictionary; Merriam-Webster) provide for the same or very similar definition, and in particular include "recently" or "only just." The use of "a newborn" in clause 2.35 means that the word in that clause is a noun. I cannot agree with the applicant's submission that there is any ambiguity in the ordinary meaning of 'newborn.' There may be some imprecision in terms of whether newborn means days old, weeks old or months old, but it is clear enough that it cannot mean 6 months.

• [31] I disagree with the applicant's submissions that the term 'newly adopted child' has any relevance to or can cast a light on the meaning of 'newborn' in the definition of primary caregiver at clause 2.35. It is preceded by the disjunctive 'or.' The definition has 2 meanings: (1) the person who takes primary responsibility for the care of a newborn; or (2) the person who takes primary responsibility for the care of a newly adopted child. Mr Murray does not assert an entitlement based on whether he is the person who takes primary responsibility for the care a newly adopted child.

• [32] I address the applicant's submissions about whether 'newly adopted' could render the meaning of newborn to be 'new to the employee's family' further below.

• [33] Nothing turns, in this matter, on the sentence - The primary caregiver is the person who meets the child's physical needs more than anyone else.

• [34] I am of the view that the assessment of whether Mr Murray is a primary caregiver for the purposes of clause 69.2 must be made at the time that Mr Murray seeks to access the entitlements provided by that clause. At that point in time (September 2025), Mr Murray's child will be 6 months old and no longer newly or recently born.

• [35] There is no ambiguity in the meaning of the final sentence of the definition of primary caregiver in clause 2.35: Only one person can be a child's primary caregiver. Mr Murray can be the child's primary caregiver if he is the sole person who meets the child's physical needs more than anyone else.

• [36] I do not agree with Ambulance Victoria's submissions that because Mr Murray's wife is the child's primary caregiver that Mr Murray cannot be the primary caregiver at a time when his wife may cease to be. All the final sentence demands is that only one person is the child's primary caregiver for the purposes of ascertaining whether that person may access the paid parental leave entitlement under clause 69.2(a). This is consistent with the prior sentence about the primary caregiver being the person who meets the child's physical needs more than anyone else. In IEU v Peregian Beach Community College [2025] FWCFB 1 the Full Bench at [24] said:

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 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

• [37] Unlike in this matter, there was no definition of primary caregiver in the agreement under consideration in IEU v Peregian. However, there is nothing in the wording of clause 2.35 to suggest that the final sentence should be interpreted in a manner that is not consistent with the Full Bench's observations in IEU v Peregian. Clause 69.2(c) of the Agreement clearly excludes access to both paid primary caregiver and secondary caregiver leave at different times (which the agreement under consideration in IEU v Peregian did not), but the assessment about whether an employee is a primary caregiver or secondary caregiver must occur at the time that an employee wishes to access the relevant entitlement.

• [38] The applicant rightfully submitted that I should have regard to the Agreement as a whole, adopting a purposive approach, rather than a narrow or pedantic one. The applicant submitted that the entitlement should be read in the context of the parental leave clause, so as to understand newborn in that context rather than any other entitlement under the agreement that could apply for children more broadly (such as requests for flexible working arrangements under clause 28, compassionate leave under clause 67 or family and domestic violence leave under clause 68).

• [39] In this regard, the applicant submits that newborn means new to the employee's family and for whom unpaid parental leave could otherwise be taken. Relevantly in other parts of clause 69 where parental leave relates to a child for whom parental leave may be taken, there is reference to 'birth-related leave,' making the distinction in the more restrictive meaning of primary caregiver in clause 2.35 more stark.

• [40] Reference to 'birth-related leave' also distinguishes the distinct bases upon which parental leave, including paid parental leave under 69.2, may be taken. The other basis is adoption leave. The words "a newborn or newly adopted child" in the definition clause 2.35 do no more than ensure that paid parental leave can also be taken for a newly adopted child.

• [41] The applicant also relied upon the summary box after the heading for clause 69 - Parental Leave. The summary box summarises the entitlement in clause 69.2:

If an eligible employee is employed on a full time or part time basis and has the primary responsibility for the care of a child, the employee is entitled to 14 weeks' paid parental leave, to be taken concurrently with unpaid parental leave.

• [42] Unfortunately, this does not assist the applicant. Clause 5.1(a) of the Agreement provides that:

a 'summary box' at the beginning of a clause is taken to be a part of the Agreement. However, to the extent of any inconsistency between the terms of a summary box and the terms of a clause, the terms of the clause will prevail;

• [43] There is a clear inconsistency in that clause 69.2 provides that a primary caregiver is entitled to 14 weeks paid parental leave, and the definition of primary caregiver is found in clause 2.35 to mean the person who takes primary responsibility for the care of a newborn or newly adopted child. The rest of the definition in clause 2.35 must also be given effect. So, the definition of primary caregiver would prevail over the wording in the summary box.

• [44] Based on the above, the question for determination was:

Whether the Applicant is entitled to primary caregiver paid parental leave for the period between September 2025 and May 2026, per clause 69.2 of the 2024 Ambulance Victoria Enterprise Agreement.

• [45] My answer is that the applicant is not entitled to primary caregiver paid parental leave under clause 69.2 as he is not a primary caregiver within the meaning in clause 2.35. While he may be the person who has primary responsibility for the care of his child from September 2025, that child at 6 months old is no longer "a newborn." The definition in clause 2.35 clearly requires that a child for whom a primary caregiver has responsibility is a newborn or newly adopted child.

Mr J Gardner, Victorian Ambulance Union Incorporated, with permission, for the Applicant.

Mr A Denton of Counsel, instructed by Minter Ellison, with permission, for the Respondent.

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