11 March 2015
When Dad is Left Holding the Baby…
Practice Group:
Australia Labour, Employment and Workplace Safety Alert
Labour, Employment
and Workplace Safety
By Belinda Copley
The employment leave entitlement of a mother who has undergone birth by way of
caesarean section is clear – but for fathers 1 who are left holding the baby, it is often less
clear cut.
The Fair Work Commission (Commission) has recently looked at:
•
whether a father is entitled to take his paid Personal/Carer's leave entitlements
following the birth of his child by caesarean section
•
whether a father, who provides care and support to his family following the birth of a
child by caesarean section, becomes a primary carer during the period of his
partner's incapacity for the purposes of paid employer parental leave.
Statutory Entitlements of Fathers
A father is entitled to the following statutory leave and other entitlements associated with
the birth of a child:
•
eight weeks' unpaid concurrent parental leave to be taken at any time within the 12
month period immediately following the birth
•
12 months' unpaid parental leave (minus any periods of unpaid concurrent leave
already taken) after the mother has taken her period of continuous unbroken unpaid
parental leave
•
two weeks' paid 'Dad and Partner Pay' at the federal minimum wage (administered by
Centrelink and subject to meeting eligibility requirements relating to work and
income).
When Can a Father Take Paid Personal/Carer's Leave?
Fathers are more commonly seeking to use their paid Personal/Carer's leave to cover
their absence from work upon the birth of their child, particularly where their employer
does not have a paid concurrent leave scheme.
In David Johnston v The Trustee for the MTGI Trust t/a Macquarie Technology Group
International 2 (Johnston v MTGI), Mr. Johnston's wife gave birth to a baby, 10 weeks
premature, by way of an emergency caesarean section. Mr. Johnston, already a father of
four other children aged between two and 13 years old, unexpectedly then became the
primary carer for his other children while his wife remained in hospital for approximately
1
The term 'father', for the purposes of this article, also includes a reference to the spouse or de-factor partner of the
female employee who gives birth to the child.
2
Johnston v The Trustee for The MTGI Trust T/A Macquarie Technology Group [2014] FWC 7098 (24 October 2014)
When Dad is Left Holding the Baby…
two months with the newborn. Mr. Johnston applied for paid Personal/Carer's leave for
the period his wife was in hospital to care for his other children at home.
Mr. Johnston's employer rejected his application for paid Personal/Carer's leave on the
basis that his wife's hospitalisation did not amount to an 'unexpected emergency'
affecting his other children pursuant to the Fair Work Act 2009 (Cth). When Mr. Johnston
did not return to work immediately following the birth of his child, his employer took the
position that he had abandoned his employment. Mr. Johnston commenced unfair
dismissal proceedings.
The Commission held that Mr. Johnston's four other children required care and support
because of an 'unexpected emergency' affecting them, being the prolonged
hospitalisation of their mother following the premature birth of their new sibling by
caesarean section. Accordingly, Mr. Johnston was entitled to take his accrued paid
Personal/Carer's leave to provide care and support to his children during the period. The
Commission found that the termination of Mr. Johnston's employment in the
circumstances was harsh, unjust or unreasonable and he was awarded 20 weeks' pay by
way of compensation.
When Does a Father Become the Primary Carer?
In CFMEU v BHP Coal Pty Ltd 3, BHP Coal Pty Ltd (BHP) declined applications by two
male employees for employer paid parental leave on the basis that the male employees
were not the primary carers for their newborn babies. BHP took the position that the male
employees were providing care and support to their spouses after they had given birth by
caesarean section and, as such, were instead entitled to paid Personal/Carer's leave.
BHP's Paid Parental Leave policy provided an entitlement to 18 weeks' paid leave for
'primary carers'. A 'primary carer' was defined as an employee who "… assumed the
principal role of providing care and attention to the child".
The first employee provided a medical certificate that stated he was his wife's "… primary
carer and will need carer's leave to care for her for six weeks while she recovers from the
operation". The employee was also responsible for feeding, bathing and changing the
newborn in hospital, and for five weeks after they had been discharged because his wife
was unable to carry the child and could not stand for long periods of time.
The second employee's wife underwent an emergency caesarean section six weeks'
prematurely. The employee transported breast milk between the two hospitals where his
wife and son were being cared for. After they were both discharged, the employee was
responsible for driving both his wife and son to medical appointments because his wife
was unable to drive and perform physically demanding tasks, such as changing the
newborn.
BHP declined both applications for paid parental leave under its policy on the basis that
the male employees were not 'primary carers'. BHP took the position that its paid
employer parental leave was not intended to apply in circumstances where the mother
had a caesarean section and simply required spousal support. BHP argued that the male
employees would only be entitled to paid employer parental leave if the mother was
3
Construction, Forestry, Mining and Energy Union v BHP Coal Pty Ltd [2015] FWC 920 (11 February 2015)
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When Dad is Left Holding the Baby…
incapacitated as a result of the caesarean section, such that she was unable to provide
any care for the newborn.
The Commission supported BHP's position and held that where an employee claims an
entitlement to paid leave on the basis that they are the 'primary carer' by virtue of the
mother's physical condition, the mother's physical condition must be such that she is
unable to provide primary care for the child. Employees are required to provide medical
evidence to this extent.
The Commission held that a medical certificate, which states that the mother requires
care and support following a caesarean section, is insufficient to support an application
by a male employee that he is the 'primary carer' of the newborn. Instead, an employee
who requires leave to provide care and support to the mother is entitled to access paid
Personal/Carer's leave for that purpose.
As both employees only provided BHP with evidence to support a need to provide care
and support to their wives in circumstances where the wives were responsible for
providing primary care for the child, the Commission held that the employees were not
entitled to paid employer parental leave as they were not 'primary carers' as defined.
Lesson for Employers
Johnston v MTGI supports a father's entitlement to utilise paid Personal/Carer's leave in
situations where an emergency caesarean section requires him to provide care and
support to other family members during the period that the mother remains in hospital.
The situation, however, arising from a scheduled caesarean section remains unclear.
Arguably, if a caesarean section is scheduled, it does not constitute an 'unexpected
emergency'. In cases of scheduled caesarean sections, the father would not be entitled
to utilise paid Personal/Carer's leave to care for other children while the mother remained
in hospital.
If, however, upon discharge from hospital, the mother required care or support from the
father due to an incapacity arising from the caesarean section (scheduled or otherwise),
the father would be entitled to utilise paid Personal/Carer's leave to provide care or
support.
Both decisions suggest that employers should avoid taking a blanket approach to
declining leave applications by fathers and applications for employer paid parental leave
associated with caesarean section births. Instead, applications should be assessed on a
case-by-case basis having regarding to:
•
medical evidence
•
whether it is the mother, the child or other members of the employee's family that
require care or support
•
the actual circumstances arising from the birth, including whether the delivery was an
'unexpected emergency'.
Both decisions support the need for employees to provide medical evidence to support a
leave application which clearly specifies whether it is:
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When Dad is Left Holding the Baby…
•
the mother who requires care and support resulting from the caesarean section
or
•
the mother who is suffering from a medical condition which prevents her from being
the primary care giver of the child or other children.
In cases where it is the mother who requires care and support resulting from the
caesarean section after being discharged from hospital, the father is entitled to utilise his
paid Personal/Carer's leave to provide care and support to her. Of course the father is
not entitled to utilise paid Personal/Carer's leave entitlements to provide care and support
to the mother of the child while she is in hospital on the basis that the nursing staff
provide such care and support.
In cases where the mother is suffering from a medical condition which prevents her from
being the primary care giver of the child or other children, the father is entitled to utilise
his paid Personal/Carer's leave to provide care or support to the child or other children
during the period of the mother's incapacity. Depending on the eligibility terms in an
employer's paid parental leave policy, such a scenario may also entitle the father to
employer paid parental leave.
Author:
Belinda Copley
belinda.copley@klgates.com
+61.7.3233.1281
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