The Fair Work Commission (FWC) has clarified that an employee does not need to be the sole caregiver to qualify as a primary carer for the purposes of paid parental leave.
This recent Full Bench decision highlights the importance of looking at an employee’s day‑to‑day caregiving role and intention—rather than imposing a narrow interpretation that only sole carers can access parental leave entitlements.
The case in brief
The decision arose after Metro Tasmania refused bus driver Mr Jitendra Maharjan’s application for paid parental leave under its enterprise agreement.
Mr Maharjan had applied for leave to care for his newborn son while his partner recovered from an emergency caesarean section. The employer argued that he did not meet the definition of primary carer because:
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he was not the only person providing care;
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there was allegedly no clear intention for him to assume the primary carer role; and
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he had not given adequate notice.
Deputy President Gostencnik initially found that Mr Maharjan was entitled to eight weeks’ parental leave. The Deputy President concluded that the entitlement depended on whether he was, in fact, the primary carer—not on why he became the primary carer or whether others also helped provide care.
What does “primary carer” mean?
The enterprise agreement did not define primary carer. The FWC interpreted the term according to its ordinary meaning: the person who predominantly has day‑to‑day responsibility for caring for the child.
The Full Bench agreed, confirming that being the primary carer does not mean being the only carer. The decision emphasised that what matters is who takes on the primary responsibility for the child—even if other people provide assistance.
In Mr Maharjan’s case, his role in feeding, changing nappies, and performing most of the hands‑on care (except breastfeeding) during his partner’s recovery was enough to establish that he was the primary carer.
Can both parents claim parental leave?
Metro Tasmania also argued that because Mr Maharjan’s partner had claimed paid parental leave from her employer, he could not be considered the primary carer.
The Full Bench rejected this argument, noting that the partner’s entitlement did not depend on her being the primary carer. Unless an enterprise agreement expressly excludes simultaneous claims, one parent’s claim will not prevent the other from also claiming paid parental leave.
What does this mean for employers?
This decision provides valuable guidance for employers assessing parental leave applications under enterprise agreements:
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Primary carer status relates to who mainly provides day‑to‑day care—not who the only carer is.
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Support from others (such as a partner or relatives) does not remove an employee’s entitlement if they otherwise meet the criteria.
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Two parents can both validly access paid parental leave under their respective agreements unless expressly restricted.
How MCB Lawyers can assist
This case highlights the importance of correctly interpreting enterprise agreements and understanding parental leave obligations. Incorrectly refusing parental leave can lead to disputes, reputational damage, and potential legal liability.
At MCB Lawyers, we assist employers and employees with:
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Drafting and interpreting enterprise agreements and workplace policies;
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Advising on parental leave entitlements and workplace rights; and
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Resolving disputes with the Fair Work Commission or in the workplace.
If you have questions about parental leave obligations or any other employment law matter, contact our team at MCB Lawyers today.
Disclaimer: This blog post is for general information only and does not constitute legal advice. Please seek tailored legal advice before acting on any of the information provided.