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Dad wins appeal over PPL refusal decision

A father employed at a Sunshine Coast school has had a win in the Fair Work Commission (FWC) in a test case for Paid Parental Leave (PPL) laws.

Peregian Beach College teacher Jason Rogers, represented by the Independent Education Union (IEU), challenged the school over its refusal to allow him PPL as a primary caregiver after he had taken PPL as a non-primary caregiver following the birth of his son in July 2023.

In the FWC in Sydney on Wednesday, the IEU successfully appealed the decision made by the Commission in July last year in favour of the college, determining the designation of primary caregiver or non-primary caregiver was activity based and changeable over time, and so, Mr Rogers was not attempting to “double dip”.

Mr Rogers had taken PPL entitlement of five days, followed by five days of unpaid leave, as a non-primary caregiver.

On his return to work, he had sought an additional period of PPL of 11 weeks, available under his Enterprise Agreement (EA), as a primary caregiver to his child. This was employer-funded leave in addition to that available under the Commonwealth Government’s national PPL scheme.

The college declined to approve the leave on the basis that Mr Rogers was not entitled to take PPL as a primary caregiver when he had already taken paid PPL as a non-primary caregiver.

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It described the entitlements as “mutually exclusive” and advised him that he was entitled to “one or the other”.

In the original decision made in Brisbane, the FWC agreed.

In its appeal, the IEU argued the FWC incorrectly interpreted the terms of the agreement by finding that under the Paid Parental Leave Act 2012 (Cth), if an employee took “dad and partner pay” they were disentitled to PPL.

In Wednesday’s decision, Vice President Gibian and Deputy Presidents Millhouse and Hampton said the appeal should be granted because it raised issues about the interaction of entitlements provided by an EA and the National Employment Standards, and this enlivened the public interest.

The union argued the PPL entitlements under the EA as a primary caregiver and non-primary caregiver were independent and accessible at any relevant point in time depending on the employee’s caregiving status.

It argued there was no basis in the text to conclude that access to both entitlements would amount to double dipping.

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The FWC members said the terms primary caregiver and non-primary caregiver were not defined in the agreement, but the allocation of the status could “only be made by reference to the circumstances pertaining to the employee at the relevant time”.

“In our opinion, the concept of being a ‘caregiver’ must be an activity-based designation,” they said.

“Whether an eligible employee is the primary caregiver or a non-primary caregiver depends on the actions undertaken, and the responsibilities assumed, by the employee in relation to the care of the child at a particular point in time.

“As the IEU submits, designation as a primary caregiver or non-primary caregiver is not an enduring status attributable to a person throughout the period of entitlement of parental leave or attained by reference to whether the person gave birth to the child or not.

“As a matter of ordinary language, an employee may be the primary caregiver at one point in time and a non-primary caregiver in another period depending on the allocation of caring responsibilities.”

They said the plain language of the EA provided no basis for the narrow construction adopted by the college.

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“The agreement does not, in terms, limit an eligible employee’s entitlement to paid leave as either a primary caregiver or a non-primary caregiver. There is no textual indication that the terms are mutually exclusive or that an eligible employee is entitled to one type of leave in lieu of the other.”

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