In the context of the Australian Government’s paid parental leave (PPL) scheme or a paid parental leave clause in an enterprise agreement, you will come across the ‘primary carer’ definition.

The primary carer of a newborn or adopted child under 18 is entitled to a specified number of weeks’ leave (18 weeks in the case of the PPL scheme). Partners or secondary carers are entitled to a shorter period of leave (the PPL scheme, for example, provides eligible working dads and partners 2 weeks’ leave).

However, what makes an employee the ‘primary carer’ is not always straightforward. Fortunately, the Fair Work Commission have recently provided some clarity on when exactly an employee will – or will not – be considered the primary carer.

Case Law: When is a father the primary carer for the purpose of parental leave?

In CFMEU v BHP Coal Pty Ltd (2015), the FWC stated that a newborn baby’s mother must be incapable of providing primary care after a child’s birth before the father can claim primary carer status. Deputy President Asbury went on to say that caring for the mother after birth does not elevate a partner to primary carer status.

The enterprise agreement relevant in the case provided up to 18 weeks’ paid parental leave for primary carers and up to 2 weeks’ leave for secondary carers. Two male employees claimed they assumed primary carer responsibility after their respective partners gave birth by caesarean. Both employees gave evidence that the baby’s mother was unable to be the primary carer because of the caesarean birth, e.g. because she couldn’t bend to pick up the baby or drive a car, and claimed an entitlement to paid parental leave as primary carer.

DP Asbury considered the employees’ statutory declarations (as required by the enterprise agreement) and medical certificates before concluding the employees were acting as carers for their partners rather than as the primary carers for their babies. This did not entitle the employees to paid parental leave as primary carers. Rather, the employees’ personal leave was the proper leave in this situation.

The FWC said the business could not automatically rule out certain medical procedures from being accepted as sufficient evidence of incapacity. However, DP Asbury concluded that the mother’s physical condition “must be such that she is unable to provide primary care for the child” for her partner to claim primary carer status. Examples include when the mother returns to full-time work or is incapable of caring for the baby because of a medical condition. For the purposes of this case, a caesarean was not a sufficient medical condition.