Mr Nicholas Murray v Ambulance Victoria - [2025] FWC 2861

[2025] FWC 2861

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.739 - Application to deal with a dispute

Mr Nicholas Murray
v

Ambulance Victoria

(C2025/4720)

COMMISSIONER TRAN

MELBOURNE, 30 SEPTEMBER 2025

Dispute under an enterprise agreement – Paid parental leave – Definition of 'primary caregiver' – Meaning of newborn

Mr Nicholas Murray is an Advanced Life Support Paramedic employed by Ambulance Victoria. In April 2025, Mr Murray’s wife gave birth to their first child. Mr Murray has applied for parental leave to commence in September 2025. The Ambulance Victoria Enterprise Agreement 2024 provides for unpaid parental leave and 2 forms of paid parental leave – 14 weeks of primary caregiver leave or 2 weeks of secondary caregiver leave. This decision is about whether Mr Murray is entitled to paid primary caregiver leave under clause 69.2 of the Agreement.

The Agreement

The Ambulance Victoria Enterprise Agreement 2024 was approved by me on 14 February 2024 ([2024] FWCA 586 AE528036). It commenced operation on 21 February 2025. Its nominal expiry date is 20 October 2028.

The relevant clauses of the Agreement are:
·   Clause 14 – Resolution of Disputes and Grievances;
·   Clause 69 – Parental Leave; and
·   Various definitions contained within clause 2 – Definitions.

Clause 69 is extensive. It includes a Summary box, which provides:

This clause sets out an employee’s entitlement to parental leave and other related entitlements.
In summary, an employee who has completed 12 months of continuous service with AV is entitled to 12 months of unpaid parental leave where they will have responsibility for the care of a child. Unpaid parental leave may be taken in relation to the birth or adoption of a child also.

If an eligible employee is employed on a full time or part time basis and has the primary responsibility for the care of a child, the employee is entitled to 14 weeks’ paid parental leave, to be taken concurrently with unpaid parental leave.

If an eligible employee is employed on a full time or part time basis and does not have the primary responsibility for the care of a child, the employee is entitled to 2 weeks’ paid parental leave, to be taken concurrently with unpaid parental leave.

An eligible employee who has responsibility for the care of a child is entitled to 12 months of unpaid parental leave (including 14 or 2 weeks of concurrent paid parental leave), even if:

·   the employee’s partner is also taking unpaid parental leave;
·   the employee is taking some or all of their unpaid parental leave at the same time as their partner; and/or
·   the child is stillborn.

An employee may also be entitled to other related forms of leave, including:

·   Prenatal leave to attend routine medical appointments associated with pregnancy;
·   Unpaid special parental leave where an employee is suffering from a pregnancy-related illness, or where pregnancy ends in miscarriage;
·   Unpaid pre-adoption leave to attend interviews and examinations necessary for obtaining approval to adopt a…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Keep reading for free

Create a free CaseChat account to read Mr Nicholas Murray v Ambulance Victoria and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2025] FWC 2861
Decision Date: 30 SEPTEMBER 2025

CaseChat Overview and Summary

In this case, Mr Nicholas Murray, an Advanced Life Support Paramedic for Ambulance Victoria, applied for parental leave to commence in September 2025. The dispute was about whether Mr Murray was entitled to paid primary caregiver leave under clause 69.2 of the Ambulance Victoria Enterprise Agreement 2024. The legal issues centered around the interpretation of the terms "newborn" and "primary caregiver" within the context of the enterprise agreement.

The court interpreted the term "newborn" in the context of the enterprise agreement, considering the ordinary meaning of the word and the overall purpose of the clause. The court concluded that "newborn" meant a recently or only just born child, and since Mr Murray's child would be six months old by the time he sought the leave, the child would no longer qualify as a newborn. Therefore, Mr Murray was not entitled to primary caregiver paid parental leave under clause 69.2.

The court's reasoning was based on the plain and ordinary meaning of the words used in the agreement, considering the context and purpose of the clause. The court rejected the applicant's submissions that the term "newborn" should be interpreted as "new to the employee's family." The court also noted that the definition of primary caregiver in clause 2.35 clearly required that a child for whom a primary caregiver has responsibility be a newborn or newly adopted child.

Final orders:
Mr Nicholas Murray is not entitled to primary caregiver paid parental leave for the period between September 2025 and May 2026 under clause 69.2 of the 2024 Ambulance Victoria Enterprise Agreement.

Orders