BHP employees lose parental leave case

Two employees at the Crinum mine in Queensland have lost their case against BHP in the Fair Work Commission over their right to seek paid parental leave.

Both men, kept anonymous in court reports and represented by the CFMEU, sought paid parental leave as primary caregivers after their wives gave birth by caesarean section.

However, after the employees presented statutory declarations stating their requirements for leave, BHP rejected the claims on the contention that employees were not entitled to choose to assume the role of primary carer, regardless of the circumstances of the mother of the child.

BHP claimed the fact that a mother has given birth by a caesarean section “does not mean that she is automatically incapable of providing care to her child”.

The CFMEU contended that the only requirement stipulated in clause 25 of the 2012 enterprise bargaining agreement was that entitlement to primary carer paid parental leave arose from providing a statutory declaration to that effect, and that BMA had no entitlement to request further information; however BHP also rejected those claims, and asserted that the two men were not the primary carers for their new-born children and were not entitled to paid leave.

Clause 25.2 on parental leave states: 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).

The paid parental leave benefit is for 18 weeks for a primary carer, two weeks for a secondary caregiver, and up to 12 months unpaid leave with provision for extension.

It was found that the two men were not entitled to paid parental leave as primary caregivers because the evidence provided did not establish that this was the case, rather that they were required to care for their wives, not fulfil the roles of primary caregivers for their children.

The commission found that BHPs questions about whether the employees could choose to take parental leave were irrelevant.

The commission also found that BHP was entitled to require evidence that could satisfy the company that the employee was the primary caregiver of the child, and that the evidence was not limited to the statutory declaration outlined in clause 25.

Deputy president Asbury said a certificate from the treating obstetrician or gynaecologist which said the mother was a patient of the practice, and was suffering from a medical condition which prevents her from being the primary care giver for the child, would constitute sufficient evidence that the father was the primary caregiver of their child.

Full proceedings of the case can be found here.

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