Fair Work Act 2009

s.739 - Application to deal with a dispute

Alleged dispute about any matters arising under the enterprise agreement and the NES;[s186(6)]

[1] A dispute has arisen between Mr Stephen D'Abico and Yarra Ranges Shire Council (Yarra Council) concerning the Yarra Ranges Council Enterprise Agreement 2024 (the Agreement). Mr D'Abico is assisted in the matter by his Union, the Australian Municipal, Administrative, Clerical and Services Union, Vic/Tas Authorities & Services Branch (ASU).

• [2] The Agreement contains a clause dealing with the "prevention and settlement of disputes"[1]. If a procedure set out for the resolution of disputes at the workplace level is not successful in resolving a dispute about a matter arising under the agreement or the National Employment Standards (including matters relating to flexible working arrangements for parents or extensions to unpaid Parental Leave), or any other matter, it may be referred to the Fair Work Commission. The Commission may deal with the dispute in two stages: first by conducting mediation, conciliation, expressing an opinion or making a recommendation, and secondly by conducting arbitration and making a determination that is binding on the parties.

[3] After the dispute was referred to the Commission pursuant to s 739 of the Fair Work Act 2009 (the Act), I conducted conciliation in relation to it, but the matter was not resolved through that process.

[4] Both parties agreed that I arbitrate the matter. Both parties submitted that I should deal with the matter on the papers, after they had filed written submissions and a statement of agreed facts. Mr D'Abico also filed a witness statement. Given that the parties urged me determine the matter on the basis of that written material filed, I did so. I have had regard to all the material filed by the parties including Mr D'Abico's witness statement albeit I did not hear sworn evidence from him in this matter.

[5] Mr D'Abico proposed the following question be answered for the purposes of the arbitration, and Yarra Council said it had no objection to that question. The question is:

"Is the Applicant entitled to Paid Primary Carer's leave for the period 14 November 2025 until 8 January 2026, pursuant to cl 7.9 of the Yarra Ranges Council Enterprise Agreement 2024 ('the Agreement')?"

[6] On the basis both parties agreed that I should arbitrate this matter, urged me to do so on the papers, and agreed on the question to be arbitrated, I consider I can assume that the steps required under the Agreement to be taken to attempt to resolve the dispute before it is referred to the Commission have been fulfilled, and I am empowered to arbitrate the dispute as characterised, pursuant to the agreement and the Act.

[7] Mr D'Abico works for Yarra Council, as an L2P Officer, and is involved in the coordination of the Transport Accident Commission L2P Driver Mentor Program. This dispute concerns whether Mr D'Abico is entitled to paid parental leave during a period of time he has taken off work arising from the birth of his children in late 2024. The statement of agreed facts sets out further background as follows:

1. The Applicant has worked for the Respondent in various roles since approximately January 2013.

2. The Applicant is currently employed part time (0.6FTE) with the Respondent as an L2P Officer and has held that position since April 2016. The Applicant works in this role on Tuesdays, Wednesdays, and Thursdays ('the Part-Time Position').

3. The Applicant is also currently employed casually with the Respondent as a Customer Experience Officer and has held that position since September 2024. The Applicant works in this role on Mondays and Fridays ('the Casual Position').

4. On 14 November 2024, the Applicant's partner, Ms Kate D'Abico, gave birth to her and the Applicant's twin children.

5. From 18 November 2024 to 13 December 2024, the Applicant took four weeks of paid secondary caregiver's leave from the Respondent. From 16 December 2024 to 3 January 2025, the Applicant took annual leave in association with the birth of his children.

6. From 14 November to 1 December 2024, Ms D'Abico took personal leave due to a premature birth. From 2 December 2024 to 28 July 2025, Ms D'Abico took paid parental leave as the primary caregiver of their children, comprising 32 weeks at half pay from her employer and 10 days of the Government Paid Parental Leave scheme.

7. In around July 2025, it was decided that Ms D'Abico would return to work and that the Applicant would become the primary caregiver of the children. The Applicant believed that under the Yarra Ranges Council Enterprise Agreement 2024 ('the Agreement'), he was entitled to up to 20 weeks paid leave, less the four weeks he had already taken when the children were born.

8. The Respondent has agreed that the Applicant is entitled to Paid Parental Leave in respect of both the Part-Time Position and the Casual Position.

9. On 16 July 2025, the Applicant advised his manager of the Part-Time Position, Ms Dudu Orman, Coordinator Youth Development of the Respondent that he intended to take parental leave.

10.Ultimately, the Applicant applied for the following leave:

a. Paid Parental Leave from 23 September 2025 to 8 January 2026 (16 weeks); and

b. Unpaid Parental Leave from 12 January 2026 to 2 July 2026 (100 days at 0.8FTE); and

c. Annual Leave from 7 July 2026 to 28 August 2026 (8 weeks).

11. The Respondent has approved the leave described at [10b] and [10c].

12. The Respondent has approved the Applicant's paid parental leave from 23 September 2025 to 13 November 2025.

13. The dispute pertains to whether the Applicant should be paid for the remainder of the leave described at [10a].

[8] The dispute concerns the proper application of clauses of the Agreement dealing with parental leave. Clause 1.2 of sets out the purpose of the Agreement and says:

"Yarra Ranges Council sees this Agreement as an important part of becoming a high performing, gender equitable and inclusive organisation. It has been formulated through an extensive and cooperative consultation process that has seen the organisational values enacted throughout. The Agreement serves to enhance our working conditions, career opportunities, job satisfaction and embed innovation and excellence in everything we do."

[9] Clause 7.8 of the Agreement deals with unpaid parental leave. Clause 7.9, which is at the heart of this dispute, deals with paid parental leave.

• [10] Clause 7.9(a) of the Agreement sets out an entitlement in respect of a "primary care giver", called "primary care-giver leave". It provides that an employee who is the primary care giver "upon the birth or adoption of a child is entitled to apply for 20 weeks leave at full pay". Paid primary care-giver leave may be taken at full pay or half pay over a period of 20 or 40 weeks[2].

[11] Clause 7.9(b) of the Agreement provides for an entitlement called "secondary care-giver leave". It provides that paid leave of up to 6 weeks "is available to an employee who is parenting a new born or adopted child but who is not the primary care giver".

[12] Clause 7.8(c) of the Agreement contains "definitions". A "primary caregiver" is the person who takes primary parental 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". A "secondary caregiver" is "the partner of the primary caregiver and a person who has parental responsibility for the Child but is not the Primary Caregiver".

[13] Clause 7.9 of the Agreement contains several "Illustrative Examples" of hypothetical scenarios as to the manner in which these various forms of paid parental leave may be accessed and how they are apparently intended to interact with one another.

[14] Clauses 7.9(c), (d), (e), (f) and (g) of the Agreement provide for pre-natal leave, surrogacy leave, miscarriage leave and special forms of parental leave respectively, none of which are relevant in this matter.

[15] Clause 7.9(h) of the Agreement sets out an "illustrative timeline of when and what leave entitlements are available". It contains a table which appears to operate both as an index to some of the entitlements and sets out timeframes for the operation of some of the forms of leave and how they should be applied for.

[16] As is set out in the statement of agreed facts, on 14 November 2024, Mr D'Abico's partner gave birth to twin children and as a result, Mr D'Abico sought and continues to seek to take various forms of leave from work. Another way of characterising what Mr D'Abico has done, and seeks to do is:

1. First, access the entitlement to secondary care-giver leave. Mr D'Abico applied for and was granted this leave upon the birth of his children, for a period of four weeks from 18 November 2024 to 13 December 2024.

• b. Secondly, after having accessed secondary care-giver leave and having returned to work, Mr D'Abico wants to access the entitlement to primary care-giver leave. Mr D'Abico concedes that this entitlement should be offset by the paid leave he received through his access of the secondary care-giver leave entitlement. He wants this leave to run from 23 September 2025, past the first birthday of the children (on 14 November 2025), through to 8 January 2026 (a period of 16 weeks, where 4 weeks of the 20 week entitlement is removed as a result of the secondary care-giver leave taken previously). This was granted, in part, by Yarra Council, but only up until 13 November 2025 (up until the children's first birthday)[3] albeit, as is explained further below, it appears that Yarra Council now says this was granted erroneously.

1. Thirdly, Mr D'Abico wants to access a further period of unpaid parental leave, commencing from when he considers his paid entitlement is extinguished, 12 January 2026 through to 2 July 2026 - 100 days. This has been approved by Yarra Council.

1. Fourthly, Mr D'Abico wants to access annual leave for the period 7 July 2026 to 28 August 2026. This has also been approved by Yarra Council.

• [17] The controversy is whether Mr D'Abico can, in these circumstances, access primary care-giver leave, first having applied for and been granted secondary care-giver leave, in the manner in which he seeks to do so. An early part of Yarra Council's submissions characterises the dispute as follows[4]:

"... the Respondent disagrees with the Applicant's submissions that clauses 7.8 and 7.9 are clear in relation to the scope of which the Applicant can convert from secondary carer leave (Secondary Caregiver Leave) to primary carer leave (Primary Caregiver Leave) at such a late stage long after the birth of the child and, for reasons stated below, where the Enterprise Agreement in fact implies limits as to how an employee in the Applicant's position can change from paid Secondary Caregiver Leave to Primary Caregiver Leave."

• [18] In so far as this submission concedes that it is possible for an employee to access both secondary care-giver leave, and then primary care-giver leave, it is appropriate that it does so. It appears clearly to be envisaged by the terms of the agreement that in some circumstances an employee might access both secondary care-giver leave and primary care-giver leave and this is not disputed by Yarra Council[5]. For example, clause 7.9(b)(viii) of the Agreement provides that where an employee later becomes the primary carer, then any entitlement to paid or unpaid primary carer leave will be reduced by any paid / unpaid secondary leave taken (thus envisaging it can happen). Clause 7.9(b)(ix) obliges an employee who is a secondary care-giver who becomes the primary care-giver to give as much notice as possible when "applying to change leave arrangements". Two of the "illustrative examples" in the Agreement also envisage an employee accessing both secondary care-giver leave and primary-care-giver leave. In one of these examples, "Andrew", who applied for and was granted secondary care-giver leave is granted a request to "convert" to primary care-giver leave made some three months before the leave was to take effect[6]. Another example provided is as follows[7]:

"James works for YRC, and his partner, Amanda, does not. Amanda is pregnant with the couple's first child. After the birth of their child Amanda becomes the primary caregiver and James takes 6 weeks of secondary-care-giver-leave, and then returns to work with YRC full-time. Over the coming weeks, Amanda doesn't enjoy being the primary caregiver and her mental health starts to decline. On the advice of her GP, she decides that she will go back to work in a part time capacity and become the secondary caregiver. 4 weeks after returning to work, James applies to become the primary caregiver for the child. He is eligible for the primary-care-giver leave entitlement, less the 6 weeks of secondary-care-giver-leave he has already accessed. James will have his job or similar role waiting for him upon his return to the Council."

[19] However, the point apparently contended for by Yarra Council is that the circumstances in which an employee might "convert" from secondary care-giver leave to primary care-giver leave has "limits", including when such an application for conversion occurs at a "late stage".

• [20] It appears for Yarra Council, these "limits" are to be "implied"[8]. The limits it appears to say exist (by way of implication) are:
• a. That a conversion from secondary care-giver leave to primary care-giver leave must involve some form of "necessitating circumstances" to warrant the changeover[9].
• b. That notice of the change must be given as soon as possible[10].
• c. That the child in respect of whom an employee seeks to take primary care-giver leave (after having accessed secondary care-giver leave) must still be a "newborn"[11] and the leave must be "associated with the birth" of their children[12].
• d. That primary care-giver leave is limited to be taken within 12 months after the birth of the child[13] and that there is no entitlement to paid parental leave of any kind beyond the first 12 months after the birth of the child[14].
• [21] This last contention - that paid parental leave may only be taken within the 12 months following the birth of the child - is said by Yarra Council to be supported by a table that appears in clause 7.9(a)(vi)(3) of the Agreement, which sets out how superannuation is to be calculated on the various forms of paid parental leave. The table is organised according to "weeks": weeks 1 - 20, during which "paid parental leave" might be taken; weeks 21 - 42, during which Commonwealth funded leave might be taken; and weeks 43 - 52, during which unpaid parental leave might be taken. Yarra Council suggests this table depicts that "Primary Caregiver Leave is taken from weeks 1 - 20[15]. It submits that on this basis, primary caregiver leave is to be "taken first"[16], and there is no scenario where an employee accessing paid primary caregiver leave under the Agreement would continue on leave beyond 12 months from the date of birth[17].
• [22] The contention that paid parental leave may only be taken within the 12 months following the birth of the child is apparently why Yarra Council approved primary care-giver leave for Mr D'Abico but only for a period of paid leave in respect to Mr D'Abico from 23 September 2025 to 13 November 2025 (14 November 2025 being the first birthday of the children). However, it appears on reflection, Yarra Council now believes it was wrong to have approved this leave. As I will expand on below, Yarra Council now says that as Mr D'Abico sought to access this leave approximately ten months after the birth of his children he was ineligible to access it because it was not "associated with the birth of the children", and he is not a primary care-giver[18]. Yarra Council says it does not intend to seek to recoup this period of paid leave.
• [23] Yarra Council's submissions contrast with the somewhat more straightforward proposition put by Mr D'Abico - that he meets the eligibility requirements in relation to parental leave[19], that the Agreement envisages an employee becoming the primary carer at some point after the date of birth and/or after having already taken secondary carer's leave[20], and that, accordingly, as he satisfies the eligibility criteria, he is entitled to access the leave[21].

• [24] The principles governing the manner in which an enterprise agreement is to be construed are well settled. Both parties took me to the Commission's decision in AMWU v Berri Pty Limited[22]. A more recent expression of the principles was set out by a Full Bench of this Commission which have informed the manner in which I have approached the determination of this dispute[23]:

"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 such documents "are not always drafted carefully by lawyers or professional drafters" and the framers of the agreement may not have paid attention to "legal niceties and jargon". However, 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 or what the Commission might consider to be the preferrable outcome."

• [25] The determination of this matter turns on whether Yarra Council is right as to the "limits" which it says apply to the entitlement of an employee covered by this Agreement taking parental leave - particularly in this case primary care-giver leave. If it is not right about these limits or their application in this matter, then provided Mr D'Abico is eligible to access parental leave, he is eligible to access paid parental leave in the manner in which he seeks to[24].

The first limit contended for - that a conversion from secondary care-giver leave to primary care-giver leave must involve some form of "necessitating circumstances" to warrant the changeover.

• [26] Yarra Council's contention that a conversion from secondary care-giver leave to primary care-giver leave must involve some form of "necessitating circumstances" draws in particular on clause 7.9(b)(ix) of the Agreement, which provides that when a conversion occurs, employees are obliged to give Yarra Council as much notice as possible. The clause begins with the words "noting that the circumstances necessitating a secondary care-giver becoming the primary care-giver are often sensitive"[25]. With these words in mind, Yarra Council submits that "this provision, when read with the illustrative examples, provides clear examples as to when a change from secondary care-giver to primary care-giver leave may be acceptable and in line with the eligibility under clause 7.8(b)(I)". It further submits that each of the illustrative examples contained in the Agreement involve what it characterises as "necessitating circumstances" - such as "Amanda's declining mental health", "Jane's" change of working arrangements, or "an unexpected illness arising from Xi's pregnancy"[26]. It says that the "illustrative examples must be given work to do in contextualising the circumstances in which conversion from Secondary Caregiver Leave to Primary Caregiver Leave is necessary"[27]. It says that the examples show that, for the conversion to be "valid", among other things, "there is an underlying "sensitive reason - a necessitating circumstance, not a mere preference - for the change to occur"[28].

[27] In my view, this submission is afflicted by two problems. Firstly, it takes the reference in clause 7.9(b)(ix) to "circumstances necessitating a secondary care-giver becoming the primary care-giver" significantly out of context. On a plain reading of the clause, these words appear intended qualify the rigidity of the obligation of an employee to give Yarra Council as much notice as possible when applying to change leave arrangements. They imagine that while there is an obligation to provide as much notice as possible, sometimes the amount of notice that can be given will be influenced by the circumstances. To suggest they give rise to a condition precedent on the taking of leave (the need to demonstrate "necessitating circumstances") is a construction which does not give effect to the ordinary meaning of the words read as a whole and in context, and indeed, construes them out of context. Secondly, the submission disregards that the "illustrative examples" are just that - "illustrative", and "examples". The submission attempts to take the examples beyond "context" and extract from them a limitation or condition having application to an entitlement created by the Agreement.

[28] These problems are such that the submission that conversion from secondary care-giver leave to primary care-giver leave must involve some form of "necessitating circumstances is misconceived. In so far as clause 7.9 of the Agreement allows a person to change from accessing one form of paid leave to another, it does so subject to the employee being entitled to that form of paid leave. There is no specified additional requirement, such as a change only being allowed in certain circumstances. Clause 7.9 of the Agreement says that, in respect to an employee's entitlement to paid parental leave, the "eligibility is the same as section 7.8", which deals with eligibility for parental leave. On it's plain meaning, nowhere does clause 7.8 include a requirement that a person seeking to take parental leave must have a particular "necessitating circumstance".

[29] Accordingly, Mr D'Abico would be eligible to seek to take primary care-giver leave (a form of paid parental leave) whether he has a "necessitating circumstance" or not.

The second limit contended for - that notice of the change must be given as soon as possible.

• [30] It is not entirely clear to me whether Yarra Council submits that, if Mr D'Abico is eligible to take primary carer-giver leave (which it says he is not), his application should be denied because he did not provide "as much notice as possible" of the changed leave arrangements. As there is some reference to the point in its submissions[29] I will deal with this issue for completeness.

[31] The obligation for an employee to "provide as much notice as possible" is made clear enough by clause 7.9(b)(ix) of the Agreement, qualified, as I have observed above, by the language "noting that the circumstances necessitating a secondary care-giver becoming the primary care-giver are often sensitive". It seems to me obvious that the effect of this language is to mean that "as much notice as possible" will depend very much on the employee's particular circumstances, taking into account what may be "possible" in those circumstances.

[32] I do not know much about Mr D'Abico's circumstances other than I am told in around July 2025 it was decided Ms D'Abico would return to work and Mr D'Abico would become the primary caregiver of the children. On 16 July 2025, he advised his manager of his intention to take paid parental leave, which was to commence on 23 September 2025.

[33] Yarra Council seem to suggest that if the decision that Mr D'Abico would become the primary care-giver was made in early July 2025, then he failed to give as much notice as possible - not having given notice until the 16 July 2025. Taking into account that the period of notice "required" will depend on the circumstances, I disagree. In my view, having determined he wished to access paid parental leave because he had (or was about to) become the primary care-giver for his children, Mr D'Abico appears to have told his manager fairly soon afterwards, giving notice of the leave to commence just over 2 months later. If Mr D'Abico is eligible to take primary care-giver leave, I do not consider he became ineligible because the notice he provided was inadequate.

The third limit contended for - that the child in respect of whom an employee seeks to take primary care-giver leave (after having accessed secondary care-giver leave) must still be a "newborn" and the leave must be "associated with the birth" of their children.

• [34] Yarra Council's submissions ask me to have regard to a decision of Tran C in Mr Nicholas Murray v Ambulance Victoria (Murray)[30] which also dealt with an employee seeking to access a form of paid parental leave under the relevant enterprise agreement. The proposition that Mr D'Abico's application for paid leave is not associated with the birth of his children is based on drawing an analogy with the present circumstances, and those considered in Murray[31]. In that decision the Commissioner considered an entitlement under the relevant agreement for an employee to apply for "primary caregiver leave" - a form of paid parental leave to which an eligible employee who is the "primary caregiver" is entitled[32]. The employee in question sought to access this leave in September 2025, some five months after the birth of his child in April 2025. The agreement contained a definition of "primary caregiver":

"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."[33]

• [35] The Commissioner was unable to conclude that the employee in question met this definition because the plain and ordinary meaning of "newborn" is a "recently born child"[34]. She observed that "while there may be some imprecision in terms of whether newborn means days old, weeks old or months old, but it is clear enough it cannot mean 6 months"[35], and that the employee was ineligible to access the leave on this basis[36].

[36] Clause 7.8(c)(iv) of the Agreement contains the same definition as considered by the Commissioner in Murray and is similarly based on the responsibility for the care "of a newborn or newly adopted Child". Thus, Yarra Council urges me to take the same approach and find that when Mr D'Abico seeks to take leave for the care of his children some eleven months after their birth, they are no longer "newborn", thus he is not a "primary caregiver" as defined and therefore he is not eligible to take the leave.

[37] Mr D'Abico submits that his circumstances can be distinguished from those in Murray. He submits that:

• (a) The entitlement under consideration in Murray contained no explicit mechanism for an employee to switch from secondary to primary care-givers leave[37].
• (b) The dispute in Murray was concerned solely with whether the employee was the primary caregiver where it has never been in dispute that Mr D'Abico is the primary caregiver of his children, acknowledged when his application for primary care-giver leave was granted (albeit only in part, and where Yarra Council now says this was a mistake)[38].
• (c) The leave sought by Mr' Dabico is continuous with the leave taken by his partner, and therefore "associated with the birth of his children" - "the children have never been cared for by someone other than their parents"[39].
• [38] Mr D'Abico also submits that Murray is a first instance decision of the Commission, "which has not yet been tested in any higher forum", and "is not binding and should be afforded limited weight"[40].

[39] I consider the reasoning in Murray as to the meaning of the word "newborn" to be entirely sound, and I respectfully adopt it. When Mr D'Abico gave notice, he wished to take primary care-giver leave in July 2025, his children were eight months old and no longer "newborn". At the time his leave was to commence, his children were about eleven months old - also not "newborn".

[40] I am not persuaded to depart from this reasoning because Mr D'Abico is seeking to switch from secondary care-giver leave to primary care-giver leave, as opposed to simply accessing the leave entitlement, as was the case in Murray. I accept this particular circumstance was not under consideration in Murray nor apparently a feature of the agreement relevant to that decision. In this sense, taken at its highest, Mr D'bacio's submission might be that a regime which allows for an employee to take secondary care-giver's leave, and then at some later stage switch to primary care-giver's leave, calls for a different approach to the question of how the concept of a "primary caregiver" should be construed, where it remains the case that this term is defined by the Agreement including by reference to it being "the person who takes primary parental responsibility for the care of a newborn". I am not persuaded this to be the case. Whether "changing" from entitlements, or seeking to access an entitlement, an employee still needs to meet the eligibility requirements in respect to that entitlement.

[41] Clause 7.9(a)(i) of the Agreement provides that the entitlement to primary care-giver leave is afforded to an employee "who is the primary care giver upon the birth or adoption of a child". If a person is not the "primary care giver" they appear ineligible to access the leave. Thus, whether seeking to change from secondary care-giver leave to primary care-giver leave or seeking simply to access primary care-giver leave itself, a person must be a primary caregiver within the meaning of the term. As Tran C did, I must construe that term according to the ordinary meaning of the words, read as a whole and in context, taking into account their industrial context, using a purposive approach. I find no reason to depart from the reasoning adopted in Murray as to the proper construction of these eligibility requirements simply because Mr D'Abico is seeking to change leave type from secondary care-giver leave to primary care-giver leave.

[42] The submission that the leave sought by Mr D'Abico is continuous with the leave taken by his partner and is therefore "associated with the birth of his children" is beside the point, because, as the children are no longer "newborn" it cannot be said that Mr D'Abico is the primary caregiver, and is thus not eligible to access the leave. In other words, even if it could be said the leave is "associated with the birth of the children", it is not being taken by a "primary caregiver" within the meaning of the agreement if the children are no longer newborn.

• [43] The fact that Yarra Council may have at times appeared to concede Mr D'Abico to be the primary care giver for the children does not assist it. The Commission does not have the power make a determination that is inconsistent with the terms of the Agreement itself[41]. It cannot determine Mr D'Abico is eligible to access an entitlement if by the terms of the Agreement he is not eligible. Obviously the term "primary care giver" of a child is, on its ordinary and plain meaning, a general term given to the person who has more responsibility for the care of a child at a particular point in time than any other person[42], whether that child is newborn, seventeen years old, or somewhere in between. But in this matter, the term "primary caregiver" has a definition which qualifies its general application. Whether Mr D'Abico is the primary caregiver is in this scenario a question requiring the construction of the eligibility rules in the Agreement about the entitlement in question. It is not a question of fact to be determined by the conduct of the parties.
• [44] Above, I observed that Yarra Council submits that the "limitations" it contends for arise by "implication". Mr D'Abico takes general issue with the proposition that limitations or requirements should be implied into the Agreement[43]. There is merit in these submissions. However, the limitation arising from the way the Agreement defines a primary caregiver does not arise by implication. It is an express limitation on who is eligible to access the entitlement arising from clause 7.9(a) of the Agreement, read in conjunction with clause 7.8(c).

The fourth limit contended for - that primary care-giver leave is limited to be taken within 12 months after the birth of the child and that there is no entitlement to paid parental leave of any kind beyond the first 12 months after the birth of the child.

• [45] Yarra Council submits that it approved paid parental leave for Mr D'Abico for the period 23 September 2025 to 13 November 2025 based on what it describes as a "restriction" in clause 7.9(b)(vi) of the Agreement that requires that secondary care-giver leave must be completed 12 months after the birth or placement of the child[44]. It submits a similar limitation should be "implied" in relation to the operation of primary care-givers leave. As Mr D'Abico points out, this limitation in clause 7.9(b)(vi) applies to secondary carer's leave, not primary care-giver leave, and is not replicated elsewhere in a way that would make the same restriction apply to primary carer's leave[45].
• [46] Yarra Council appears to submit its contention in this regard is fortified by the "table" at clause 7.9(a)(vi)(3) of the Agreement, which deals with superannuation payments, and, it suggests, shows primary caregiver as the form of parental leave to be taken "first", meaning it could not extend beyond the first year after birth (where the entitlement is either 20 weeks, or at most 40 weeks at half pay). Mr D'Abico takes issue with this submission on the basis that the table is simply an example about how leave might be taken, illustrating a set of circumstances which may be typical, but not intended to be exhaustive[46].

[47] For the reasons I have outlined above, I do not consider Mr D'Abico to have been eligible to access primary carers leave when he sought to do so. It is therefore not necessary for me to determine whether, if he was eligible, the entitlement to this form of paid leave could continue after the first birthday of his children. In these circumstances, and where I do not have before me the benefit of the more fulsome submissions that might be made if the matter had been the subject of a hearing, I do not intend to express a concluded view on this issue. I will however observe that there appears merit in Mr D'Abico's submission that there does not appear to be any specific provision providing for a 12 month limitation on the completion of paid primary carer's leave such as the one set out explicitly in relation to secondary care-giver's leave and any such limitation would need to be read into the agreement by way of implication, for which there is no clear basis. I make this observation having regard to the superannuation "table" which, as Mr D'Abico submits, simply depicts an example of how leave might be taken, for the purposes of explaining how superannuation is to be calculated - not to create any other particular rule.

[48] Generally, there is merit in Mr D'Abico's general submission that Yarra Council's formulation of "limitations" on the taking of pair primary care-givers leave under this Agreement stretches the bounds of its proper construction, relying as they do primarily on seeking to "imply" such limitations from language and context. However, the limitation of eligibility to primary care-givers leave only to a "primary caregiver", as defined, is not implied - it is an express limitation in relation to a person who takes primary responsibility for the care of a newborn or newly adopted child. Mr D'Abico made his request to take this leave when his children were about eight months old, to take the leave when they were about eleven months old. They were not "newborn" at either of these times and he could not have been a "primary caregiver" as defined in the Agreement. Eligibility for the entitlement he seeks to access is only afforded to a "primary caregiver". I am asked to answer the question: "Is the Applicant entitled to Paid Primary Carer's leave for the period 14 November 2025 until 8 January 2026, pursuant to cl 7.9 of the Yarra Ranges Council Enterprise Agreement 2024 ('the Agreement')?". The answer is "no".

[49] The dispute is determined on this basis.

[1] Yarra Ranges Council Enterprise Agreement 2024 cl 3.10

[2] Yarra Ranges Council Enterprise Agreement 2024 cl 7.9(a)(iv)

[4] Outline of Respondent's Submissions, 23 January 2026, [16]

[6] Yarra Ranges Council Enterprise Agreement 2024, p 119-120 ("Illustrative Example")

[8] Outline of Respondent's Submissions ,[16], [18], [32]

[9] Ibid [18], [19(c)], [24] - [35]

[18] Outline of Respondent's Submissions [22] - [23]

[19] Applicant's Submissions, 9 January 2026, [11] - [13]

[22] [2017] FWCFB 3005

[23] Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v Manildra Energy Australia Pty Ltd [2025] FWCFB 149 [43]

[24] Yarra Ranges Council Enterprise Agreement 2024 cl.7.9

[25] Outline of Respondent's Submissions, [25]

[30] [2025] FWC 2861

[31] Outline of Respondent's Submissions [22]

[37] Applicant's Submissions in Reply, 30 January 2026 [6]

[41] Fair Work Act 2009 s 739(5)

[42] See for example Independent Education Union of Australia v Peregian Beach Community College Ltd (T/A Peregian Beach College [2025] FWCFB 1 [24], [37]

[43] Applicant's Submissions in Reply [39] - [46]

[44] Outline of Respondent's Submissions [33]

[45] Applicant's Submissions in Reply [49]

Printed by authority of the Commonwealth Government Printer