Construction, Forestry, Mining and Energy Union v BHP Coal Pty Ltd
[2015] FWC 920
•11 FEBRUARY 2015
| [2015] FWC 920 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.739 - Application to deal with a dispute
Construction, Forestry, Mining and Energy Union
v
BHP Coal Pty Ltd
(C2014/4477)
Coal industry | |
DEPUTY PRESIDENT ASBURY | BRISBANE, 11 FEBRUARY 2015 |
Dispute about matters arising under the enterprise agreement and the NES;[s186(6)] - clause 25 - parental leave.
Background
[1] The Construction, Forestry, Mining and Energy Union (Mining and Energy Division) (the CFMEU) applies under s. 739 of the Fair Work Act 2009 (the Act) for the Fair Work Commission (the Commission) to deal with a dispute in accordance with a dispute settlement procedure in the BMA Enterprise Agreement 2012 (the 2012 Agreement). BMA (the BHP Billiton Mitsubishi Alliance) is an unincorporated joint venture between BHP and Mitsubishi which operates several mines in the Bowen Basin. The Respondent is BHP Coal Pty Ltd (BHP), the BHP Billiton employing entity.
[2] The 2012 Agreement provides for paid parental leave entitlements in excess of other statutory entitlements. The CFMEU has asked the Commission to determine whether two employees of BHP – Mr D and Mr R – are entitled to paid parental leave as primary carers (paid primary carer’s leave). Mr D and Mr R are employed at the Crinum Mine.
[3] Both Mr D and Mr R sought paid primary carer’s leave when their wives gave birth by caesarean section. Both provided Statutory Declarations declaring that they required parental leave to be the primary care giver of their child and that they would be the primary care giver at all times during the period for which the leave was sought. The CFMEU on their behalf contends that the only requirement stipulated in the 2012 Agreement for an employee to establish an entitlement to paid primary carer’s leave is the provision of a statutory declaration to BHP indicating that the employee will assume the role of primary carer for a child at all times while on such leave.
[4] The CFMEU further contends that the 2012 Agreement does not require that an employee must be required, or forced, to assume the role of primary carer to be entitled to paid primary carer’s leave, only that the employee has assumed the role. The entitlement to paid primary carer’s leave arises once the employee has provided the statutory declaration referred to in the 2012 Agreement, and BHP is not entitled to request or require further information. The CFMEU contends that Mr D and Mr R are entitled to paid primary carer’s leave.
[5] In an attempt to resolve the dispute through internal process provided for under the 2012 Agreement including a State Level Conference, both employees provided medical certificates to supplement their statutory declarations. BHP did not accept that the information contained in those medical certificates entitled the employees to paid primary carers leave. Both employees also provided statements to the Commission providing additional information relevant to their claims.
[6] BHP maintains that employees are not entitled to choose to assume the role of primary carer, regardless of the circumstances of the mother of the child. The entitlement can only arise when the employee is undertaking the role of primary carer to a newborn child in circumstances where the mother of the child is incapable of providing primary care. BHP further maintains that it is entitled to seek information from an employee claiming paid primary carer’s leave, in addition to the statutory declaration stipulated in the 2012 Agreement, in order to establish that the mother is incapable of providing care to the child. The fact that a mother has given birth by caesarean section does not mean that she is automatically incapable of providing care to her child.
[7] BHP submits that it is not solely the option of the employee to assume the role of primary carer and that the circumstances of the mother of the child – that is, whether she has in fact assumed the role of primary care giver – are also relevant to determining the entitlement of the father of the child to paid primary carer’s leave under the 2012 Agreement. BMA further submits that it can require further evidence to satisfy itself of eligibility for paid primary carer’s leave. In relation to Mr D and Mr R, BHP maintains that on the basis of the material provided to it, neither employee was entitled to paid primary carer’s under clause 25 of the 2012 Agreement.
[8] In both of the cases subject of this dispute, BHP asserts that Mr D and Mr R were not primary carers for their newborn children and as such are not entitled to paid primary carer’s leave on that basis. Essentially, BHP contends that both Mr D and Mr R were providing care to their respective spouses after they had given birth by caesarean section and as such were entitled to personal/carer’s leave.
[9] Conciliation has been exhausted, and pursuant to clause 37.16 of the 2012 Agreement, the Commission is empowered to arbitrate the dispute. The issue for determination is whether Mr D and Mr R are entitled to paid primary carers leave under clause 25.2 of the 2012 Agreement. In order to determine the dispute about the entitlements of Mr D and Mr R to paid primary carer’s leave, BHP contends that the Commission must determine two preliminary questions:
● Can an employee choose (at the employee’s option) to assume the role of primary carer, and on the sole basis of that choice access paid primary carer’s parental leave under clause 25 of the 2012 Agreement; and
● If the answer to this question is “no” then can BHP require an employee to provide additional evidence such as a medical certificate or other confirmation from the treating obstetrician to satisfy itself of an employee’s eligibility for paid primary carer’s leave under clause 25 of the 2012 Agreement.
[10] Evidence on behalf of the CFMEU was given by Mr D and Mr R. Evidence on behalf of BHP Coal Pty Ltd was given by Mr Shaun McKenzie, Employee Relations Manager BHP Coal Pty Ltd t/as BHP Billiton Mitsubishi Alliance, and Ms Julia Fellows, Industrial Relations Advisor, BHP Billiton Ltd.
The 2012 Agreement
[11] The 2012 Agreement relevantly provides as follows:
“25 Parental Leave
25.1 The provisions of the Fair Work Act 2009 (Cth) will apply as a minimum, with additional payments in accordance with Company Policy (as amended from time to time). During the life of this Agreement, Employees’ entitlement to parental leave will be no less than the statutory entitlement or the following:
Type of parental leave | Benefit |
Paid parental leave | ● Primary carer - up to 18 weeks paid leave |
Unpaid parental leave | Up to 12 months unpaid leave or up to 24 months unpaid leave if an extension is granted (any period of paid parental leave taken will be deducted from this entitlement) |
25.2 Where requested by the Company, 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 (i.e. the Employee is the person who has assumed the principal role of providing care and attention to the child).”
Principles of interpretation
[12] The approach to interpreting an enterprise agreement was recently set out in a Decision of a Full Bench of the Commission in AMIEU v Golden Cockerel Pty Limited 1. The principles established in the cases collected in that decision that are relevant in the present case can be summarised as follows:
● Construction of an agreement begins with a consideration of the ordinary meaning of its words; 2
● The agreement must be read as a whole 3 and regard must be had to the context and purpose of the provision being construed;4
● Context extends to the entire agreement, other associated documents or the ideas that gave rise to an expression in a document; 5
● The words used in an enterprise agreement should not be interpreted in a strict technical fashion, because those who framed the industrial instrument are often non-lawyers with a practical frame of mind, drafting words in the context of custom and practice in an industry or particular enterprise; 6
● The process of construction is an objective task and it is not appropriate to have regard to the subjective beliefs or expectations held by one party. The task is to identify the common intention of the parties as they have expressed it in the terms of their agreement; 7
● Search for evident purpose is permissible and meanings which avoid inconvenience or injustice may be reasonably strained for, however the task remains one of interpreting a document produced by others and not giving effect to some anteriorly derived notion of what would be fair or just, regardless of what has been written into the agreement. 8
[13] After extensive consideration of the cases in relation to the relevance of evidence of surrounding circumstances and the use of extrinsic material as an aide to interpretation, the Full Bench in AMIEU v Golden Cockerel said:
“Regard may therefore be had to evidence of the surrounding circumstances before the existence of ambiguity in an agreement is identified as an aide to interpreting the agreement for the purposes of determining whether an ambiguity exists. If thereafter ambiguity is not identified extrinsic material cannot be used to contradict the language of the instrument. If ambiguity is identified the material may be used as contextual material to aide in the interpretation of the instrument.” 9
The basis of the claims of Mr D and Mr R for primary carers’ leave
[14] Mr D 10 and Mr R11 gave evidence in support of the contention advanced by the CFMEU. Their evidence can be summarised as follows. Mr D’s wife gave birth to their second child by caesarean section performed at the North West Private Hospital in Brisbane, on 30 October 2013. According to Mr D’s evidence, a specialist obstetrician was required to deliver the child because Mrs D has a condition which means that she cannot give birth normally. The same obstetrician also delivered their first child. Mr D said that the obstetrician believed that Mrs D would be unable to properly care for the child for the first six weeks after the birth on the basis that she would be unable to lift or carry the child or perform ancillary duties such as washing and hanging out the child’s laundry.
[15] After the birth Mrs D and the child were in hospital for six days. Mr D said that during that time he was responsible for feeding (it had been decided that the child would be bottle fed), bathing and changing their newborn child as Mrs D was unable to get out of bed and could not perform those tasks. The only time that Mr D did not care for the child was during the night when the child was placed in a ward of the hospital and cared for by the nurses. When Mrs D and the child were released from hospital on 6 November 2013 they remained at Mrs D’s parents’ home for a further week while she recovered. During this time Mr D retained primary responsibility for the child’s care and continued to bathe, feed and change the child. Mrs D was struggling to perform these tasks as she could not stand for any long periods of time and could not carry the child.
[16] The family drove back to Emerald over a period of three days as Mrs D was unable to sit in the car for periods of greater than three hours. On overnight stops during the trip, Mr D maintained primary responsibility for caring for the newborn child as Mrs D could not lift him out of the car. When the family arrived back at their home in Emerald, Mr D continued to undertake these tasks and performed the night feeds as Mrs D could not get up at night to pick up the child. During the day Mrs D could bottle feed the child if Mr D placed the child in her arms. Mr D decided to return to work on 18 December as Mrs D was strong enough to safely start looking after their child.
[17] According to Mr D it is the practice at Crinum Mine for employees who wish to take time off for the birth of a child to book the time off as annual leave, and upon returning to work, to fill out a leave application form and a statutory declaration indicating that the leave was taken as parental leave.
[18] Mr D submitted an Absence Request Form 12 in accordance with BHP’s procedures requesting that the period of annual leave he had taken be changed to primary carer’s leave. Mr D provided a statutory declaration for parental leave stating that he required parental leave to be the primary carer of his child and declaring that he would be the primary carer during the period from 30 October 2013 to 16 December 2013.13 Mr D also provided a medical certificate dated 30 September 2013, in the following terms:
“[Mrs D] is scheduled to have a caesarean delivery at North West Private Hospital in Brisbane on the 30th of October. [Mr D] is her primary carer and will need carer’s leave to care for her for six weeks while she recovers from the operation.” 14
[19] Mr R is also employed at Crinum Mine. Mr R’s wife underwent an emergency caesarean section at the Mater Hospital in Townsville on 16 February 2014 and their child was born six weeks early. Mr D’s child had breathing difficulties and was transferred to the Townsville Base Hospital as the child required a CPAP machine. Mr D commuted between the two hospitals taking breast milk to feed his child and then remaining at the Townsville Base Hospital with his child to bathe and change the child. Some days later Mr D’s wife was released from the Mater Hospital and they stayed in temporary accommodation near the Townsville Base Hospital where their child had been admitted.
[20] Mr R said that his wife needed a wheel chair to visit their newborn child while he was in hospital as she was too weak to walk distances. Mr R’s wife could only manage to visit their child twice a day. The rest of the time she would remain at their accommodation and he would go to the Base Hospital and be responsible for the care of their child. This continued for two weeks until their child’s breathing improved and was able to be discharged.
[21] Mr R drove his wife and child home from Townsville. During the drive, which took longer than usual because of the need to stop and care for their child, Mr R was required to take the child out of his capsule, place the child onto his wife’s lap for her to feed the child and then place the child back into the capsule. When they arrived at their home, Mr R’s wife was still too weak to pick up their child and perform tasks such as changing the child. Mr R’s wife was also unable to drive. As they live some distance from doctors it was necessary for Mr R to drive her to appointments and to be able to drive his child to seek medical attention should that have been required.
[22] By 17 March 2014 Mr R’s wife was able to pick up their child and he felt comfortable returning to work. Upon his return to work on 19 March 2014, Mr R applied for primary carers leave for the period from 17 February to 19 March 2014 due to the responsibilities he had assumed during that period. Mr R also submitted an Absence Request Form 15 and a statutory declaration that he required parental leave to be the primary care giver of a child.16 Further, Mr R submitted a medical certificate stating that his child was delivered by caesarean section and that he was the primary care giver and his wife required care for up to six weeks.17
Mr R and Mr D said in oral evidence that they were provided with the statutory declaration and the Absence Request Form by their respective supervisors and that it was their understanding at the time of applying for leave, that this documentation was the requirement that the Company had in relation to applying for primary carer’s leave.
[23] Both Mr D and Mr R maintain that they were forced to take annual leave for a period during which they were entitled to primary carers leave and that they undertook that role in accordance with the Company’s policy and the 2012 Agreement. Mr D and Mr R also assert an entitlement to primary carers leave on the basis of the statutory declarations they provided to BHP.
The history of parental leave provisions in the 2012 Agreement
[24] Ms Fellows gave evidence about the history of clause 25 of the 2012 Agreement. Since joining BHPB in 1997, Ms Fellows has been the key negotiator for a series of Agreements as follows:
● The BHP Coal Pty Ltd Enterprise Agreement 2001 (2001 Agreement);
● The BHP Coal Pty Ltd Enterprise Agreement 2004 (2004 Agreement);
● The BHP Coal Pty Ltd Workplace Agreement 2007 (2007 Agreement); and
● The BMA Enterprise Agreement 2012 (2012 Agreement).
[25] Ms Fellows attended all negotiation meetings for the 2012 Agreement and took notes of those meetings. According to Ms Fellows there was not much discussion in relation to clause 25.2 of the 2012 Agreement because it essentially reflected the wording from the 2007 Agreement and the wording was not in dispute given the history of that provision.
[26] Ms Fellows detailed the discussions at a series of negotiation meetings in relation to the parental leave provision in the Agreement. BHP’s objective was to simplify the provisions in the 2012 Agreement relating to parental leave and rely on the Company’s policy. The initial claim by the Single Bargaining Unit (SBU) representing all Union parties to the Agreement, including the CFMEU, was for the 2012 Agreement to include the paid parental leave entitlement under the Company policy in the Agreement, in addition to the unpaid entitlement under the National Employment Standards (NES) in the Act, plus the Federal Government’s minimum entitlement of two weeks paid leave for partners. In addition, the SBU sought to rely on the eligibility provisions under the Act to access parental leave, namely that an employee has or will have responsibility for the care of the child. Further the SBU sought to have BHP provide make up pay on top of the Federal Government’s paid parental leave scheme in addition to the entitlement under Company policy and the NES.
[27] According to Ms Fellows there were discussions about the concept of primary caregiver at a meeting on 2 June 2011 during which Company representatives outlined concerns about employees taking advantage of the entitlement. The SBU claim at that point sought that an employee would no longer be required to be primary caregiver to the child of the child in order to access paid parental leave but would be required to have “a responsibility” for the care of the child. 18 This claim was rejected by BHP on the basis of its position that the generous paid parental leave benefits provided by the Company needed to be linked to primary care giver status.
[28] During this discussion, and subsequently, the Company never talked about changing the intent of the clause. Rather the discussion focused on the SBU wanting the paid parental leave entitlement set out in the applicable policy spelt out in the 2012 Agreement. There were also discussions during which assurances were sought by the SBU that the company policy on parental leave would not be changed to the detriment of employees. On 19 January a copy of version 14 of the 2012 Agreement was provided to the SBU. No further changes were made to the parental leave provisions in that version prior to the ballot in October 2012 at which the 2012 Agreement was approved.
[29] Ms Fellows said that the clause was drafted by BHP with the intent that employees would only seek to access paid parental leave as the primary carer in circumstances where they actually were the true primary care giver. It was not intended that male employees would be able to access paid parental leave as a primary carer in circumstances where the mother of the child had a caesarean section and merely needed spousal support. In agreeing to this clause, the Company was of the view that all parties understood that it was not the intent for this clause to be accessed by employees who were not genuinely the primary care giver, as had been the case under previous agreements.
[30] There is some history surrounding the parental leave clause in various earlier versions of the 2012 Agreement and in particular the question of whether a male employee was automatically entitled to claim the status of primary care giver after his wife had given birth by caesarean section. The 2004 Agreement contained a provision sought by BHP stating that reasonable proof of an employee’s primary care giver role would be provided where requested. On 16 December 2004, the relevant clause of the 2004 Agreement in relation to what constituted the provision of primary care was subject to consideration by the Central Negotiation Committee (CNC), an internal body with a prescribed role of attempting to resolve disagreements about the intention and application of clauses in the 2004 Agreement.
[31] Ms Fellows was a member of the CNC along with officials of the Unions constituting the SBU. The outcome of the CNCs consideration of primary care and related issues was recorded in minutes. The CNC meeting minutes of 16 December 2004, attended by Ms Fellows, record that the CNC discussed the issue of “who constitutes the primary care giver as provided for in the 2004 Agreement”. The CNC adopted the following definition of primary care giver contained in the then relevant award:
“The primary care giver means the person who assumes the principal role of providing care and attention to a child.” 19
[32] Those minutes go on to record the following view of the CNC:
“The CNC acknowledges that in the vast majority of cases, the mother of the child … will be the primary care giver. However the CNC envisages that there may be circumstances where the mother is incapable of being the primary care giver (the woman’s own physiological or psychological being for example) whereby the role would fall to the male. This would not be automatic however as if the woman was hospitalised and the child was being cared for by hospital staff, then the male is not the primary care giver – the hospital staff are.”
[33] The issue of who was a primary care giver under the 2004 Agreement was the subject of a dispute that was conciliated by Commissioner Bacon of the Australian Industrial Relations Commission (AIRC) in 2005. A recommendation in relation to this dispute was issued on 4 August 2005. 20 The clause in dispute – clause 26.2 of the 2004 Agreement - relevantly provided as follows:
“Employees who have had at least one (1) year of continuous service with the Company will be entitled to a period of six (6) weeks paid leave and a maximum of forty six (46) weeks unpaid leave for the purpose of being the primary caregiver of their child (that is, a child of the employee that is less than the age of one (1) year or a child of less than the age of five (5) years who is placed with the employee for the purpose of adoption.”
[34] The Recommendation noted the views of the CNC in relation to the definition of primary carer and the comments set out above and went on to state that the effect of those deliberations is that a two-step process of consideration must be undertaken:
1. The mother must be incapable of caring for the child; and
2. The BHP employee undertakes the role of primary caregiver for the child.
[35] In relation to the first step, the Recommendation notes that an assessment is required to be made – usually by a Doctor or other qualified health professional - as to whether the mother is, or was, incapable of undertaking primary caregiving duties, and that there is a difficulty because an employee does not have the ability to direct a Doctor to use the language of the 2004 Agreement when issuing the certificate. To resolve the dispute, Commissioner Bacon recommended that the parties develop a pro-forma certificate which would be provided to employees who would in turn request their doctor to issue that certificate, and proposes wording for that certificate in the following terms:
“To BHP Coal Pty Ltd:
I [the printed name and qualifications of the Doctor or Health Professional] hereby certify that [name of mother] will be incapable of undertaking the duties of the primary caregiver* to her child for the period from [date] to [date].
Signed.................
Date....................
*Primary caregiver means the person who assumes the principal role of providing care and attention to a child.” 21
[36] The Commissioner went on to state that there is nothing in the 2004 Agreement or the CNC’s observations about the relevant provision to indicate that a Doctor’s certificate is the only acceptable proof of the mother’s inability to be the primary caregiver.
[37] The CNC met on 7 March 2006 to consider the Recommendation of Commissioner Bacon and the minutes record the following position:
“Taking into consideration previous CNC determinations and Bacon C’s recommendation, it was acknowledged that a Doctor should not determine if a father is to be the primary care giver until after the Caesarean section is performed.
As the clause intends that the father is eligible for such paid leave where his is required to provide primary care to the new born infant and not to any siblings of the infant, it is therefore inappropriate for the doctor to declare the mother incapable of being primary care giver prior to the birth, except in circumstances where it is medically established that the mother will be so incapable.” 22
[38] Ms Fellows said that during the negotiations for the 2007 Agreement, BHP again sought to make the parental leave provision clearer on the basis that it considered that male employees seeking parental leave to help their wives were entitled to carers leave rather than parental leave on the basis that they were not the primary caregiver to the newborn child. On that basis, wording was included in the 2007 Agreement to make it explicit that an employee was entitled to use their carer’s leave when required to provide care for their spouse following the birth of their child. In addition, a requirement for employees to sign a statutory declaration to be entitled to parental leave as a primary caregiver was also included. Clause 25.4 of the 2007 Agreement was in the following terms:
“Where requested by the Company an employee who wishes to take parental leave must provide the Company with a statutory declaration stating that the employee intends to be the primary caregiver of the child at all times while on parental leave (i.e. the employee is the person who has assumed the principal role of providing care and attention to the child). The exception to this is where a male employee takes a period of one week’s paid parental leave at the same time as his spouse commencing within the week of the child’s birth.” 23
[39] Under cross-examination Ms Fellows said than in negotiating the 2007 Agreement the parties had regard to what had been established and agreed by the CNC notwithstanding that the CNC was no longer in operation at that time. The CNC’s decisions were promulgated by the Unions and the Company and the form that was established for parental leave on the basis of primary carer’s responsibilities was part of the BHP human resource management system. In relation to clause 25.2 of the Agreement Ms Fellows said that the Agreement had been stripped back so that the clause dealt with only the benefit and moral obligation rather than the process.
[40] In response to the proposition that Mr D and Mr R were not given the proforma medical certificate in the terms recommended by Commissioner Bacon, and agreed by the CNC in 2004, and that in practice there had been a departure from that position, Ms Fellows said that the Company Policy was clear that a medical certificate and a statutory declaration were required. Ms Fellows maintained that the internal jurisprudence about the operation of parental leave provisions, including the Recommendation issued by Commissioner Bacon about the definition of primary carer, had been well established and there had been no intention to displace that jurisprudence in the negotiations for the 2012 Agreement.
BHP Policy in relation to paid parental leave
[41] Mr McKenzie gave evidence about BHP’s policy with respect to paid parental leave and the interaction between that policy and the 2012 Agreement. In relation to the 2012 Agreement, Mr McKenzie pointed to the fact that clause 25 provides that employees are entitled to paid and unpaid parental leave depending on whether the employee is the primary or secondary carer of the child. Clause 25.1 of the 2012 Agreement relevantly provides that the provisions of the Act with respect to parental leave apply as a minimum with additional payments in accordance with Company policy as amended from time to time.
[42] The Company Policy currently relevant to parental leave is the BHP Billiton Parental Leave (Australia) Policy (the Parental Leave Policy). Mr McKenzie’s understanding of clause 25.1 of the 2012 Agreement is that he needs to apply the Parental Leave Policy when he is making payments in respect of paid parental leave that are in addition to the entitlements in the Act. Mr McKenzie tendered the Parental Leave Policy which relevantly provides:
“(a) For a primary carer, up to 18 weeks paid leave calculated by reference to the base rate of pay applicable on commencing leave, paid in two instalments, 14 weeks’ pay on commencing leave, and 4 weeks’ pay on return to work; and
(b) For a secondary carer, up to one week’s paid leave and two weeks unpaid leave at the time of birth.
‘Primary carer’ is defined at page 1 of the Parental Leave Policy as:
“A parent is the primary carer of a child if the employee has assumed the principal role of providing care and attention to the child. There can only be on primary carer at any one time.”
Some employees are eligible to access a statutory entitlement to paid parental leave benefits under the Paid Parental Leave Act 2010 (Cth) (PPL Act). The entitlement under the Parental Leave Policy is more generous than the statutory entitlement in the PPL Act, which is up to 18 weeks’ pay at the National Minimum Wage.
The entitlement under the Agreement and the Parental Leave Policy is paid in addition to any benefits paid to an employee under the PPL Act.” 24 (underlining in original)
[43] The Parental Leave Policy also provides that an employee wishing to access parental leave benefits will be required to provide a statutory declaration in the prescribed form and “any other supporting documentation required by BHP Billiton in order to satisfy itself that the benefits claimed are due.”
[44] Mr McKenzie said that In addition to the applications made by Mr D and Mr R for primary carer’s leave there are ten employees who have made similar applications and are awaiting the outcome of this dispute. On the basis of his view that there are a large number of applications and the apparent confusion about entitlements to primary carer’s leave, Mr McKenzie required all applications for such leave to be referred to him prior to approval being granted by supervisors. From January 2014, BHP has provided male employees who have applied for paid parental leave as primary carer with a letter setting out the further information that the Company requires in order to be satisfied that the employee is entitled to the leave requested as follows:
“(a) A statutory declaration signed by the Employee that:
(1) the mother cannot provide the primary care for the child; and
(2) the employee will be the primary care giver for the period for which leave is sought.
(b) A certificate from the treating Obstetrician and/or gynaecologist providing at least the following information to certify that:
(1) the mother is a patient of the practice;
(2) she is suffering from a post-natal medical condition (in addition to/not including a Caesarean Section) which prevents her from being the primary care giver for the child;
(d) she is unable to provide primary care for the child for the certified period.” 25
[45] In determining an application for leave under the 2012 Agreement, Mr McKenzie considers:
● The entitlement as set out in the 2012 Agreement
● The provisions of any relevant legislation;
● The Parental Leave Policy;
● The contents of any statutory declaration provided by an employee; and
● Any other supporting documentation provided by the employee including the medical opinion of a treating doctor as contained in any medical certificate.
[46] Relevant legislation includes the Paid Parental Leave Act 2010 (the PPL Act) and the Paid Parental Leave Rules 2010 (PPL Rules). By virtue of s. 47, the PPL Act defines a primary carer of a child as a person that meets the physical needs of the child more than anyone else would. The PPL Rules at Rule 1.4 define “incapable of caring for a child” to include circumstances where the person suffers from a medical condition that makes the person incapable of caring for a child and further excludes circumstances where a person voluntarily chooses not to provide care for the child.
[47] Mr McKenzie does not consider that a mother who gives birth by caesarean section would automatically be incapable of providing care for her child. The question of whether an employee is the primary carer for a newborn child depends on the employee’s circumstances. It is necessary for BHP to be provided with sufficient information to understand the circumstances of the employee, and such information does not need to be highly personal or go to the particulars of the medical condition.
[48] However, the information must satisfy BHP that the mother is incapable of providing care to the child. If the medical opinion is ambiguous – for example if it indicates that the mother, as opposed to the child, requires care - further information will be required. If it is apparent that the employee is providing care to the mother or other children, then the employee will be entitled to access an entitlement to paid carer’s leave and not to primary carer’s leave. Employees may also access paid annual leave or long service leave or unpaid leave for this purpose. Mr McKenzie states that the majority of cases he has considered or the circumstances he has been informed of have demonstrated that the leave sought is better described as personal/carer’s leave on the basis that the circumstances related to care for the mother and other children.
[49] In his oral evidence, Mr McKenzie gave examples of employees who have been granted primary carer’s leave including a case where the employee’s wife runs a small business and the employee provided documentation to establish that his wife was returning to work and that he was operating as the primary carer of the child.
[50] Under cross-examination Mr McKenzie said that he would not like to make a blanket statement about the percentage of care that an employee would be required to provide to a child before being considered to be a primary caregiver, but that an employee seeking that entitlement would be required to be the predominant carer. Mr McKenzie was cross-examined about the letter provided to employees seeking primary carer’s leave setting out the further information required by BHP in addition to the statutory declaration referred to in the 2012 Agreement.
[51] Mr McKenzie did not accept the proposition that a medical certificate that simply stated that the mother of the child is suffering from a post-natal medical condition which prevents her from being a primary caregiver is sufficient to entitle an employee to primary carers leave and maintained that the certificate must also indicate that the post natal condition is in addition to/not including a caesarean section. Mr McKenzie also agreed under cross-examination that complications following a caesarean section may prevent the mother from providing primary care to a child. Mr McKenzie also maintained that primary care required a baton change from the mother of a child to the father and this concept is consistent with the Explanatory Memorandum to the Paid Parental Leave Bill 2010.
[52] In response to a question from the Commission about the circumstances of Mr R’s wife being in a different hospital to her child, Mr McKenzie said that when this factor emerged at the State Level Conference in relation to the dispute the Company offered to convert the leave taken by Mr R for this period to primary carer’s leave on the basis for that this period he was the primary carer. This offer was refused on the basis that Mr R wanted the entire period treated as primary carer’s leave and would not accept part payment of that period to resolve his dispute.
[53] Mr McKenzie also agreed that a medical certificate that stated that the mother of a child has had a caesarean section is not sufficient for approval of primary carer’s leave. A medical certificate issued by a treating medical practitioner that states that the mother is experiencing pain and discomfort as a result of that surgery and that in the opinion of the medical practitioner this renders her incapable of being the primary caregiver of the child, would be sufficient.
BHP’s response to the applications by Mr D and Mr R for primary carers leave
[54] In relation to Mr D’s application for primary carer’s leave, Mr McKenzie said that it was supported by an Absence Request Form seeking primary carer’s leave, a statutory declaration and a medical certificate. Mr McKenzie determined that the medical opinion in the certificate provided by Mr D did not support the claim that Mr D would be the primary carer of the child. Rather, the certificate expressly stated that Mr D is the carer of his wife. Mr D did not provide any further information and put the matter of the denial of his request for primary carer’s leave into dispute. At a State level conference in relation to the dispute, Mr D was requested to provide further information to support his application and declined to do so.
[55] Upon receiving Mr D’s statement in connection with the arbitration of the dispute, Mr McKenzie conducted a further review, and determined that Mr D had not provided any information to demonstrate that his wife was incapable of providing care to their child. Further, Mr McKenzie maintained that Mr D’s statement indicated that he was providing assistance to his wife to perform day to day tasks and that he and his wife had agreed that he would care for their child rather than Mr D being required to do so as a result of his wife being incapable of providing that care. 26
[56] Mr R also submitted an Absence Request Form seeking primary carer’s leave, Statutory Declaration and medical certificate in support of his application for primary carer’s leave. Mr McKenzie said that based on the evidence provided by Mr R it was determined that he was entitled to secondary parental leave for two weeks followed by personal/carer’s leave for the remaining four weeks of his absence. Mr R did not provide any further information in support of his application. Mr R also did not provide any further information in support of his claim and put the matter into dispute. Mr R did provide further information at the State Level Conference in relation to the dispute and Mr McKenzie considered that information. Mr McKenzie also considered the statement Mr R filed in relation to the arbitration of the dispute.
[57] In a supplementary statement dated 23 October 2014 27, Mr McKenzie tendered a letter to the District Secretary of the CFMEU Mr Smyth, dated 21 August 2014, giving reasons for refusing the claims of Mr D and Mr R in light of the additional information provided by Mr D and Mr R in the course of this dispute.28
[58] In relation to Mr D, it was determined that as the medical certificate provided by Mr D stated that he was the primary carer for his wife, indicating an entitlement to personal/carers leave. It was also considered that Mr D had not established that his wife was not capable of providing care to their child. A similar conclusion was stated in respect of Mr R. The letter concluded by stating:
“It is BMA’s position that the father of a newborn child would only be granted the entitlement of primary carer’s parental leave in extenuating circumstances. For example, if the mother of the child goes back to work on a full-time basis following the birth, or the mother suffers a post-natal condition which prevents her from meeting the primary needs of the newborn child (e.g. because of the extent to which she is incapacitated).”
Submissions
[59] The essence of the CFMEU’s argument is that the only information that an employee who seeks to take parental leave as a primary carer can be required to provide, is a statutory declaration stating that the employee intends to be the primary carer to the child at all times while the employee is on parental leave. The CFMEU contends that in order to be the primary carer the employee must have assumed those responsibilities and that the definition does not require that the employee is required or forced to do so. Given that the only requirement in the 2012 Agreement to access parental leave as a primary carer is the statutory declaration, once that declaration is provided to BHP the employee is entitled to the leave as claimed. The only possible exception to this is if the employer has evidence that the employee did not or does not intend to fill this role.
[60] Both Mr D and Mr R submitted statutory declarations and medical certificates to support their claims. This evidence is beyond that required in clause 25.2 of the 2012 Agreement. Both employees requested leave as a primary carer because their wives gave birth via caesarean section and due to the recovery time, stress and strain of travel and in Mr R’s situation, the location of their home, away from medical assistance for their child.
[61] The CFMEU contends that BHP’s view that in all situations a caesarean section is not sufficient to render the mother incapable of assuming the role of primary carer and that more is required is erroneous. No part of the Agreement, the Act or the Company’s policy states that an employee who did not give birth cannot be the primary care giver unless the mother is incapable of caring for the child. BHP has incorrectly assumed that the wives of Mr D and Mr R provided primary care during this period. Both employees made a decision, with their partners, and based on medical advice, that they were the best person to carry out the duties of primary caregiver for the period of time outlined. They did this for a number of reasons including the fact that their wives had given birth via caesarean section. Once they made this decision and provided a statutory declaration to that effect, they satisfied the prerequisites under clause 25.2 for leave as a primary care giver.
[62] The CFMEU submits that the Commission should determine that Mr D and Mr R were primary carers for the periods claimed and that paid leave on that basis should be approved for those periods.
[63] BHP submits that it is not solely the option of the employee to elect to be the primary carer for a child. The circumstances of the mother of the child – i.e. whether she has in fact assumed the role of primary carer, are also relevant in determining the entitlement of an employee who is the father of the child to paid parental leave under clause 25 of the Agreement. BHP further submits that it can require additional evidence such as a medical certificate or other confirmation from a treating obstetrician to satisfy itself of an employee’s eligibility for paid parental leave as primary carer. On the material provided by Mr D and Mr R, neither was eligible for paid parental leave as a primary care giver under clause 25 of the Agreement.
[64] As evidenced by the statements of Mr McKenzie and Mr Fellows, it is contended that BHP takes a fair and sensible approach in applying the primary parental leave entitlement under the Agreement. Clause 25.1 of the Agreement permits BHP to apply the provisions of the Parental Leave Policy in determining the eligibility for paid parental leave as primary carer. The express reference to a statutory declaration in clause 25.2 of the Agreement does not mean that this is the only evidence that an employee is required to provide. In particular, clause 25.2 does not contain any limiting words.
[65] When regard is had to the context of clause 25 and in particular the reference to the Parental Leave Policy, it is clear that had the parties intended to limit the application of that Policy, it is more likely than not that the parties would have expressly provided such a limitation in clause 25.2. There is no such limitation. It is also appropriate when considering clause 25 to have regard to the legislative context including the PPL Act, its Explanatory Memorandum and the PPL Rules. BHP submitted as follows:
“The PPL Act provides that “the object of parental leave pay is to provide financial support to primary carers (mainly birth mothers) of newborn and newly adopted children”.
The Explanatory Memorandum to the PPL Act reinforces this notion, providing that:
“In most cases, the mother will be the primary carer, but allowance is also made for transfers of all or part of the payment to the other parent, or to another carer, in exceptional circumstances.” (our emphasis)
“PPL rules for eligibility may be made for special circumstances, for example, where the mother of a child is hospitalised for a time and hence unable to meet this definition of ‘primary carer’.”
The PPL Rules define “incapable of caring for a child” to include where a person “suffers from a medical condition that makes the person incapable of providing care for the child.” 29
[66] The legislative context is submitted to indicate that the entitlement is targeted to birth mothers but will apply to the other parent in exceptional circumstances. Consistent with BHP’s current approach, this requires consideration of the particular circumstances of the employee applying for the leave. It is further submitted that the historic context of the provision, as evidenced by Ms Fellows, also indicates that it was the intention of the parties to the Agreement that employees would only seek paid primary carer’s leave in circumstances where they are the primary carer. The position of BHP is further supported by the agreement between the parties in relation to who is the primary carer pursuant to earlier versions of the Agreement and the Recommendation issued by the Australian Industrial Relations Commission in response to a similar dispute.
[67] BHP further submits that the inclusion of the words “with additional payments in accordance with Company Policy” in clause 25.1 of the Agreement is consistent with the intention of the parties that additional parental leave entitlements would apply having regard to BHP’s Parental Leave Policy. BHP’s interpretation is said to be a sensible and logical outcome, consistent with the context of the Agreement and the intention of the parties to it.
[68] If the CFMEU’s submission that 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. There was no intention for clause 25.2 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.
[69] It is not the Company’s position that in all circumstances where the mother of a child has caesarean section that the father is not entitled to paid primary carer’s leave. Rather, it is BHP’s position that the father of a child does not become the primary carer simply because the mother gives birth by caesarean section. Eligibility must be determined with regard to the individual circumstances of the employee and the fact that an employee’s partner had given birth by caesarean section does not automatically determine eligibility for paid primary carer’s leave. Given that it is a matter of individual circumstances, it is necessary for BHP to request further information, including a medical certificate, to satisfy itself of an employee’s eligibility for paid parental leave as primary carer.
[70] In relation to Mr D and Mr R, on the basis of evidence in support of their applications for paid primary carer’s leave, it was open to BHP to decide that they were not eligible for that leave. Both employees submitted medical certificates that were inconsistent with their statutory declarations in that the medical certificates referred to the need for each to provide care to his partner and did not indicate that their partners were incapable of providing care to the new born child. A further review conducted on the basis of the additional evidence submitted by the employees during these proceedings does not alter BHP’s position with respect to their claims.
Conclusions
[71] I do not accept that the questions posed by BHP in relation to this matter are relevant to the issue in dispute. For the purposes of the entitlement under clause 25.2 it is not relevant whether or not the employee claiming an entitlement to paid primary carer’s leave chooses to do so. What is determinative of the entitlement is that the employee assumes the role of primary carer in circumstances where the mother is incapable of providing that care. It is axiomatic that the employee who claims the entitlement to paid primary carer’s leave must in fact be the primary carer.
[72] The mother of a child may be incapable of providing primary care because she has chosen to return to full time work and the father has chosen to fulfil the role of primary carer. Mr McKenzie’s evidence of a male employee having primary carer’s leave approved in circumstances where his wife returned to work running her own business and the employee provided primary care, is an example of the entitlement under the policy arising in such circumstances.
[73] The mother of a child may also be incapable of providing care to a child because of a medical condition. I do not accept that BHP can issue a general stipulation that in all cases where the mother of a child gives birth by caesarean section it will not accept that she is physically incapable of providing primary care to her child and that the father of the child is not entitled to paid 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. 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.
[74] I am also of the view that BHP is entitled to require evidence to satisfy itself that the father of the child is the primary carer of the child and that such evidence is not limited to the statutory declaration referred to in clause 25.2 of the 2012 Agreement. That evidence may include medical certification or a statutory declaration containing additional information to that set out in clause 25.2 of the 2012 Agreement. I have reached this conclusion for the following reasons.
[75] The ordinary meaning of the words in clause 25.1 of the 2012 Agreement is that the provisions of the Fair Work Act 2009 apply as a minimum with respect to parental leave, and that additional payments will be made in accordance with Company Policy as amended from time to time. There is nothing in clause 25.2 or elsewhere in clause 25, limiting the operation of the Company Policy with respect to Parental Leave other than the fact that the 2012 Agreement preserves the quantum of the entitlement to primary carers leave of up to 18 weeks. The use of the term “in accordance with Company Policy” makes it clear that the payment of the additional entitlement is subject to whatever conditions that the policy requires to be met by the employee seeking the leave. Further, the clause gives broad operation to the Company Policy by making the entitlement subject to any amendments to the Policy. The only restriction is that the entitlement cannot be less than that provided for in the Fair Work Act 2009.
[76] There is nothing in clause 25.2 to suggest that a statutory declaration is the only evidence that an employee who seeks to access the entitlement to paid primary carer’s leave can be required to provide. To the contrary, the statutory declaration is to be provided where requested by the Company. If the statutory declaration was the only form of proof that could be required, it would be prescribed, or the clause would state that upon production of a statutory declaration an employee is entitled to the leave.
[77] The ordinary meaning of the provisions of clause 25 – read as a whole – is that the additional paid primary carer’s leave provided for in the Company Policy are subject to the terms of that Policy as amended from time to time and that in addition, BHP can require employees seeking paid primary carer’s leave to provide a statutory declaration in the terms set out in clause 25.2.
[78] Accordingly, BHP is entitled to choose to either accept a statutory declaration that the employee is the primary carer of the child in the forms provided in the 2012 Agreement or the Company can require additional information to establish that this is the case. In the case of an employee who provides a statutory declaration to the effect that they will assume the role of primary carer for a child and will fulfil that role at all times during the period of the leave claimed, and who further states that the mother of the child is returning to work on a full time basis, BHP may accept that a statutory declaration is sufficient. This is consistent with Mr McKenzie’s evidence about circumstances where paid primary carer’s leave has been granted previously.
[79] In the case of an employee who claims the entitlement to paid carer’s leave on the basis that the mother of the child is incapacitated, BHP is entitled to require a medical certificate or other evidence acceptable to it, that the mother is unable to provide primary care to the child because of her physical incapacity. A medical certificate that states that the mother requires care is not sufficient to ground an application for primary carer’s leave for the purposes of caring for a new born child. A mother who requires care and support from her partner to enable her to provide primary care to a newborn child does not cease on that account to be the primary carer for the child.
[80] The purpose of paid primary carer’s leave is to provide an entitlement to employees who take leave from their employment to provide care for a newborn child where the mother is unable to provide that care, for reasons including physical incapacity or because she has returned to work. An employee who requires leave to provide that care and support to the mother of a child, is entitled to access personal leave. That is the purpose of personal leave - to give employees an entitlement to use their own sick leave to provide care and support to a family member who requires that care and support.
[81] This interpretation is consistent with the Agreement read as a whole. Other forms of leave such as personal leave are not subject to Company Policy. The provisions in relation to proof that must be provided when an employee takes personal leave are set out in the Agreement and are more prescriptive than those set out in the Agreement in relation to the entitlement to paid primary carer’s leave. This is because the conditions under which an employee will be entitled to personal leave are not underpinned by a Company Policy in be contrast with the provisions in relation to Parental Leave.
[82] It is also consistent with the context of the Agreement and in particular, the history of the provision. Ms Fellows’ evidence, which I accept establishes what the parties were negotiating about. That evidence indicates that the CFMEU sought to maintain parental leave entitlements in accordance with legislation and to ensure that the quantum of the entitlements available under BHP’s Parental Leave Policy in addition to the statutory minimum, was specified in the Agreement so that the additional entitlement available under the Policy could not be reduced.
[83] BHP sought to have a provision in the Agreement that identified the entitlement and its source and left the process of how the entitlement could be accessed to be dealt with by way of its Parental Leave Policy. This is effectively what clause 25 does. The clause sets out the quantum of the entitlement so that it cannot be reduced regardless of any change which might be made to the quantum of leave established under the Policy and leaves the question of what requirements must be met before it is accessed to be dealt with in accordance with the Policy.
[84] It is also the case that the parties have long accepted that persons who access primary carer’s leave must be fulfilling that role. Further it is the case that the parties have accepted that in order for an employee to be undertaking the primary carer role, the mother must be incapable of filling that role. This is apparent from the Recommendation issued by the former Australian Industrial Relations Commission in 2005 in relation to a dispute about what was required for employees. To accept the CFMEU’s argument in the present case would be contrary to the way in which agreement provisions in relation to paid primary carers leave have operated.
[85] However, I am also of the view that the current requirement with respect to the terms of medical certification that has been stipulated by BHP, and set out in the letters it sent to Mr D and Mr R requesting medical certification, is not consistent with its obligations under the 2012 Agreement. This is because BHP has indicated an automatic exclusion for employees seeking to access paid primary carer’s leave in all cases where the mother has given birth by caesarean section. In my view, if a treating Doctor states that a woman who has given birth is suffering from a medical condition that prevents her from providing primary care to a newborn child, then that is sufficient for her spouse or partner to claim an entitlement to paid primary carer’s leave to provide such care to the child.
[86] The following requirement would be consistent with the provisions of the Agreement:
“A certificate from the treating Obstetrician and/or gynaecologist providing at least the following information to certify that:
(1) the mother is a patient of the practice;
(2) she is suffering from a medical condition which prevents her from being the primary care giver for the child;
she is unable to provide primary care for the child for the certified period.”
[87] In the present case, I agree with the submissions of BHP to the extent that Mr D and Mr R are not entitled to paid primary carer’s leave under the terms of the 2012 Agreement because the evidence provided by them does not establish that they were fulfilling the role of primary carer to their newborn children. Rather, the evidence as a whole establishes that each employee was required to provide care and support for his wife/partner in circumstances where the wife/partner was providing primary care for the child. The period during which Mr R’s wife was in a different hospital to their child may be a circumstances where Mr R was entitled to primary carer’s leave if it was established that he remained at the hospital for the duration of the child’s admission and hospital staff were not providing primary care to the child. However, I note that BHP offered to convert Mr R’s leave to primary carer’s leave for this period and that he declined that offer.
DEPUTY PRESIDENT
1 [2014] FWCFB 7447.
2 City of Wanneroo v Australian Administrative Clerical and Services Union (2006) 153 IR 426
3 Amcor Limited v CFMEU and Ors [2005] HCA 10.
4 Short v Hercus (1993) 40 FCR 511 at 518.
5 Ibid.
6 Bond & Co Ltd (in liquidation) v McKenzie (1929) 28 AR 499.
7 Toll FGCT Pty Limited v Alphapham Pty Ltd (2004) 219 CLR 165 (at 179).
8 (1996) 66 IR 182.
9 [2014] FWCFB 7447 at [30].
10 Witness Statement Exhibit 2.
11 Witness Statement Exhibit 1.
12 Exhibit 2 Annexure “DD2”.
13 Exhibit 2 Annexure “DD3”.
14 Exhibit 2 Annexure “DD1”.
15 Exhibit 1 Annexure “TR1”.
16 Exhibit 1 Annexure “TR2”.
17 Exhibit 1 Annexure “TR3”.
18 Exhibit 5 Annexure “JF6”.
19 Exhibit 5 Annexure “JF19”.
20 Exhibit 5 Annexure “JF20”.
21 PR961021
22 Exhibit 5 Annexure “JF21”.
23 Exhibit 5 Annexure “JF22”.
24 Exhibit 3 at 14 to 17.
25 Exhibit 3 Annexure “SM3”.
26 Ibid.
27 Exhibit 4.
28 Exhibit 5 Annexure “SM12”
29 BHP submissions at 32 to 34.
Printed by authority of the Commonwealth Government Printer
<Price code C, AE897825 PR560834>
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