A recent decision says that a primary carer does not have to be the sole carer of a child to qualify for primary carer parental leave. 

In Metro Tasmania Pty Ltd v Australian Rail, Tram and Bus Industry Union^[1] the Full Bench of the Fair Work Commission dismissed an appeal from Metro Tasmania, a state-owned public transport provider, against a 2024 decision that found bus driver, Mr Jitendra Maharjan, was entitled to paid parental leave under Metro Tasmania’s enterprise agreement. The original decision found that Mr Maharjan was eligible for paid parental leave despite not being the only person providing care to the newborn child. 

This ruling affirms that, unless expressly stated otherwise, an employee does not need to be the only primary carer for the purposes of paid parental leave, and highlights the Fair Work Commission’s recognition of shared caregiving arrangements. 

The dispute and primary decision

The original dispute arose when Mr Maharjan’s applications for paid parental leave under the enterprise agreement were denied by his employer, Metro Tasmania.

Prior to the birth of their son in February 2024, Mr and Mrs Maharjan had planned for Mrs Maharjan to be the primary carer. However, following an emergency caesarean section, Mrs Maharjan was left temporarily unable to care for their child.

Mr Maharjan submitted two separate applications for paid parental leave under the agreement, supported by a medical certificate, confirming that he was the primary carer for his child and his partner during her recovery. Metro Tasmania rejected both applications, asserting that Mr Maharjan did not qualify for paid parental leave. 

After discussions at the workplace failed to resolve the dispute, the Australian Rail, Tram and Bus Industry Union made an application to the Fair Work Commission seeking a determination that Mr Maharjan was entitled to paid parental leave. 

Metro Tasmania opposed the application, arguing that Mr Maharjan did not meet the eligibility requirements in the Agreement as: 

• he could not be the primary carer of the child at the same time as Mrs Maharjan;
• there was no intention for him to be the primary carer; and
• he did not give adequate notice of the leave. 

In July 2024, Deputy President Gostencnik found that Mr Maharjan was indeed the primary carer of his newborn son while Mrs Maharjan recovered and further held that the enterprise agreement did not require him to provide notice of this intention. 

Deputy President Gostencnik emphasised that ‘the reason [Mr Maharjan] will be the primary carer is immaterial’, noting the agreement does ‘not condition the entitlement on the capacity of the birthmother but rather, on the intention of the applicant for leave to be the primary carer’, concluding that on any view of the medical evidence, Mr Maharjan was clearly the primary carer responsible for the child’s welfare, and no error was made in this finding.^[2]

The Deputy President ordered Metro Tasmania to pay eight weeks of parental leave to Mr Maharjan. 

The meaning of ‘primary carer’

The relevant clause of the enterprise agreement provided that a bus driver is entitled to paid parental leave if they ‘will be the primary carer for the child’. The term ‘primary carer’ was not defined. 

Applying its plain and ordinary meaning, the Deputy President found that the term in the context of the care of children is ‘a person who has the day-to-day responsibility for the care of the child’.^[3]

The Full Bench later upheld this interpretation, emphasising that the fact that Mrs Maharjan was able to provide some care did not preclude Mr Maharjan from being the primary carer:

‘Primary’ does not mean ‘only’. In the context of caring for a baby, to be a primary carer does not require the person providing care to be the sole carer, and nor does a primary carer cease to be so because assistance with caregiving is provided by a spouse or partner. The primary carer in the context of a child, is the person who principally provides care, or has overall responsibility for the provision of care, rather than a person who solely provides or is responsible for the provision of care.’^[4]

It followed that Mr Maharjan’s evidence - that he had ‘helped to care for the baby and “took on primary responsibility” for care of the child following release from the hospital... [performing] “all the tasks” to care for the baby “except breastfeeding”’- was accepted as evidence of his entitlement to paid parental leave.^[5]

The Full Bench also rejected Metro Tasmania’s argument that a parent cannot be the primary carer for a child while the other parent and the child are in hospital, finding that Mr Maharjan’s care extended to this period.^[6]

Can two caregivers claim paid parental leave simultaneously? 

In its appeal attempt, Metro Tasmania argued that Deputy President Gostencnik did not give sufficient weight to the fact that Mrs Maharjan was also claiming paid parental leave from her employer. The Full Bench disagreed, noting that Mrs Maharjan’s employer had not requested that she state that she was the ‘primary carer’ during the period of leave and further agreed with the Deputy President’s view that her claim for paid leave was not determinative of Mr Maharjan’s entitlement.

The decision endorses a practical and flexible approach to paid parental leave entitlements, emphasising the need to accommodate unforeseen circumstances and caregiving realities. Employers should consider the broader context of caregiving responsibilities when assessing eligibility for paid parental leave under employment agreements and other industrial instruments. 

Key takeaways for employers

• Primary carer status – the term ‘primary carer’ refers to the person with the day-to-day responsibility for the child’s care. The status is not contingent on being the only carer and as such, assistance from others does not negate this status.
• Entitlement focus – paid parental leave eligibility for primary caregivers turns on the applicant’s actual caregiving role and intention to be the primary carer, regardless of the reason.

• Concurrent claims – two caregivers may both be entitled to paid parental leave under different enterprise agreements; one parent’s claim does not necessarily preclude the other’s unless expressly stated in the agreement.