FWC Says ‘Primary’ Carer Doesn’t Mean ‘Only’ Carer

Many employers will be aware of the notion that paid parental leave is offered to the ‘primary carer’ of a child. However, it is not always clear who the primary carer is.

In the recent decision of Metro Tasmania Pty Ltd v Australian Rail, Tram and Bus Industry Union [2025] FWCFB 124, the Full Bench of the Fair Work Commission (FWC) confirmed that an employee did not need to be the sole carer of a child in order to qualify for paid parental leave under an enterprise agreement. The FWC refused permission to appeal a July 2024 decision which found that bus driver Mr Jitendra Maharjan was entitled to paid parental leave under the Metro Tasmania Bus Operators Enterprise Agreement 2020 (the EA), even though his partner was also on leave and able to assist with some caregiving.

Facts

Mr Maharjan commenced employment as a bus operator with Metro Tasmania in April 2022. Prior to the birth of their child in February 2024, it had been planned that Mr Maharjan’s partner would be the primary carer. However, following an emergency caesarean section and subsequent complications, she was temporarily unable to care for their newborn. Mr Maharjan took unpaid leave to attend the birth and commenced a period of annual leave from 11 February 2024.

Mr Maharjan made two applications for paid parental leave under clause 34 of the EA. The first, submitted on 15 February 2024, was for a two-week period in March 2024 and was accompanied by a medical certificate from a registered midwife confirming he was the primary carer for his wife and child. The second application, lodged on 1 March 2024 and later clarified, sought eight weeks of leave from 8 February to 4 April 2024. This application was supported by a letter from Mrs Maharjan’s general practitioner, who had treated her for complications from the caesarean section and confirmed that she was medically unfit to provide primary care, and that Mr Maharjan would be fulfilling that role.

Metro Tasmania rejected both applications, contending that Mr Maharjan could not be the primary carer while Mrs Maharjan was also on parental leave, that there was no intention for him to be the primary carer, and that he had failed to provide appropriate notice under the National Employment Standards. The Australian Rail, Tram and Bus Industry Union then referred the dispute to the FWC under the EA’s dispute settlement procedure.

Decision at first instance

On 17 July 2024, Deputy President Gostencnik determined that Mr Maharjan was entitled to paid parental leave under clause 34 of the EA. One of the criteria for paid parental leave under the EA was that the employee ‘will be the primary carer of the child.’ The Deputy President found that Mr Maharjan had taken on the primary caring responsibilities for his child while his partner was recovering and that the term ‘primary carer’ referred to the person with day-to-day responsibility for the child, not necessarily the sole provider of care. The decision noted that the agreement did not define ‘primary carer’ or condition the entitlement on the exclusive caregiving role or on the mother’s capacity. Mr Maharjan’s actions, performing all caregiving tasks other than breastfeeding, supported his claim to primary carer status.

Deputy President Gostencnik ordered Metro Tasmania to pay Mr Maharjan for the period between 8 February and 4 April 2024 and to recredit any other forms of paid leave taken during that period.

Decision on appeal

Metro Tasmania appealed the decision to the Full Bench of the FWC, maintaining that ‘primary carer’ status required that there be only one primary carer at a time and that the concurrent receipt of parental leave by the mother disqualified the father from being the primary carer.

The Full Bench unanimously refused permission to appeal and confirmed there had been no error in the Deputy President’s reasoning.

In its reasoning, the Full Bench clarified that the plain meaning of ‘primary’ does not equate to ‘only.’ It stated that to be a primary carer does not require a person to be the sole carer, and that the presence of a supporting partner or spouse does not negate one’s primary caregiving role. The Full Bench defined a primary carer of a child as the person who principally provides care or has overall responsibility for the provision of care, rather than someone who solely undertakes those responsibilities. It also rejected Metro Tasmania’s argument that Mr Maharjan had to have planned to be the primary carer in advance. This, the Commission noted, was an unrealistic expectation, and one that failed to account for situations where caregiving responsibilities change due to unexpected events. In this case, Mr Maharjan stepped into the role as primary carer because of his partner’s postnatal medical complications, circumstances which were both unplanned and legitimate.

Importantly, the Full Bench also made clear that it is not necessary to prove that the birth parent is incapable of providing care in order to access paid parental leave. What matters is the actual caregiving arrangement in place at the time of the application. A parent may be the primary carer even while the other parent is recovering in hospital or is on leave, provided the applicant has assumed the principal caregiving responsibilities.

Take Home Messages

While this decision concerned the application of a particular industrial instrument, it is likely to have broader impacts upon any aware or enterprise agreement which offers parental leave to a ‘primary carer’ without defining what that means.

This decision confirms that an employee does not need to be the only caregiver in order to qualify as the ‘primary carer’ for paid parental leave under an enterprise agreement. The Full Bench adopted a practical and ordinary understanding of the term ‘primary carer,’ as the person who assumes principal or overall responsibility for the child’s care. This does not require exclusivity of care, nor does it preclude others, such as a partner, from providing support during the same period.

Finally, this case serves as a reminder that employers should approach parental leave requests with flexibility and close attention to the language of enterprise agreements. Medical evidence and caregiving realities will be key to determining eligibility, rather than assumptions about family roles or formal caregiving plans.

Should you wish to discuss the matters raised in this article, please contact Sathish Dasan on +61 8 8210 1253 or sdasan@normans.com.au, Annabelle Narayan on +61 8 8210 1292 or anarayan@normans.com.au, or Shivani Gandhi on +61 8 8210 1227 or sgandhi@normans.com.au.