TWO employees of a major mining firm have failed to persuade the Fair Work Commission of their entitlement to primary carer’s leave after caesarean sections were determined not to render their wives unable to care for their newborns.

Both employees, who worked at BHP Billiton’s Crinum coal mine in Queensland, filed requests for primary carer’s leave after supplying statutory declarations stating their respective partners were unable to care for the children as a result of giving birth by caesarean section.

The requirement of a statutory declaration was stipulated in the organisation’s workplace agreement, which indicated:

“…an employee who wishes to take parental leave as primary carer must provide the company with a statutory declaration, stating that the employee intends to be the primary caregiver to the child at all times while on parental leave.”

However, the applications were refused after BHP Billiton determined that ‘a mother who gives birth by caesarean section would not automatically be incapable of providing care for her child’.

To clarify the issue for an additional 10 applications for primary carer’s leave received by BHP Billiton in the months that followed, a letter was sent indicating additional requirements to convince the company of an employee’s entitlement.

Specifically, the letter sought a statutory declaration, as well as a certificate from a treating doctor to certify the mother’s inability to be the primary carer for the child due to a post-natal medical condition, not including a caesarean section.

Represented by the Construction, Forestry, Mining and Energy Union (CFMEU), the employees argued they had adhered to the requirements of their workplace agreement regarding primary carer’s leave, and as such, were entitled to primary carer’s leave payments.

On hearing the matter, Deputy President Asbury rejected the argument.

“If…the only requisite information to be provided by an employee seeking to take paid primary carer’s leave is a statutory declaration, employees would effectively be determining their own leave entitlements, an industrially incongruous interpretation,” she said.

“There was no intention for [the workplace agreement] to contain an automatic entitlement to paid primary carer’s leave or for an employee to choose to be the primary carer regardless of whether the mother was providing or was capable of providing care to the child.”

While ruling in favour of BHP Billiton’s argument that a medical certificate was necessary to determine the unique circumstances of each claim for primary carer’s leave, DP Asbury also clarified that a mother undertaking a caesarean section did not automatically remove the father’s entitlement to primary carer’s leave.

“BHP is not permitted to stipulate that certain medical procedures will automatically not be accepted as sufficient to establish the necessary degree of incapacity of a woman who has given birth,” she said.

“However, I do accept that where an employee claims an entitlement to primary carer’s leave on the basis of the physical condition of the child’s mother, the mother’s physical condition must be such that she is unable to provide primary care for the child.”

To read the decision in full, click here.

Implications for Employers

This case is of significance to resource employers as it highlights the potential drawbacks of excluding important details relating to the standards required of an employee in persuading the organisation of his entitlement to a particular workplace benefit.

To avoid such complications, terms of workplace agreements must at all times be clear and concise, minimising ambiguity and risk of misinterpretation. In this case, BHP’s dispute with its employees may very well have been avoided if the parental leave policy clearly stated the requirement for a medical certificate if the need for primary carer’s leave was due to a partner’s inability to care for the newborn child.

To ensure your workplace agreements are free of challenging loopholes, contact your local AMMA office and speak to one of our workplace relations consultants for advice, information and guidance in this important area.