The employment leave entitlement of a mother who has undergone birth by way of caesarean section is clear – but for fathers¹ who are left holding the baby, it is often less clear cut.

The Fair Work Commission (Commission) has recently looked at:

• whether a father is entitled to take his paid Personal/Carer's leave entitlements following the birth of his child by caesarean section
• whether a father, who provides care and support to his family following the birth of a child by caesarean section, becomes a primary carer during the period of his partner's incapacity for the purposes of paid employer parental leave.

Statutory Entitlements of Fathers

A father is entitled to the following statutory leave and other entitlements associated with the birth of a child:

• eight weeks' unpaid concurrent parental leave to be taken at any time within the 12 month period immediately following the birth
• 12 months' unpaid parental leave (minus any periods of unpaid concurrent leave already taken) after the mother has taken her period of continuous unbroken unpaid parental leave
• two weeks' paid 'Dad and Partner Pay' at the federal minimum wage (administered by Centrelink and subject to meeting eligibility requirements relating to work and income).

When Can a Father Take Paid Personal/Carer's Leave?
Fathers are more commonly seeking to use their paid Personal/Carer's leave to cover their absence from work upon the birth of their child, particularly where their employer does not have a paid concurrent leave scheme.

In David Johnston v The Trustee for the MTGI Trust t/a Macquarie Technology Group International² (Johnston v MTGI), Mr. Johnston's wife gave birth to a baby, 10 weeks premature, by way of an emergency caesarean section. Mr. Johnston, already a father of four other children aged between two and 13 years old, unexpectedly then became the primary carer for his other children while his wife remained in hospital for approximately two months with the newborn. Mr. Johnston applied for paid Personal/Carer's leave for the period his wife was in hospital to care for his other children at home.

Mr. Johnston's employer rejected his application for paid Personal/Carer's leave on the basis that his wife's hospitalisation did not amount to an 'unexpected emergency' affecting his other children pursuant to the Fair Work Act 2009 (Cth). When Mr. Johnston did not return to work immediately following the birth of his child, his employer took the position that he had abandoned his employment. Mr. Johnston commenced unfair dismissal proceedings.

The Commission held that Mr. Johnston's four other children required care and support because of an 'unexpected emergency' affecting them, being the prolonged hospitalisation of their mother following the premature birth of their new sibling by caesarean section. Accordingly, Mr. Johnston was entitled to take his accrued paid Personal/Carer's leave to provide care and support to his children during the period. The Commission found that the termination of Mr. Johnston's employment in the circumstances was harsh, unjust or unreasonable and he was awarded 20 weeks' pay by way of compensation.

When Does a Father Become the Primary Carer?
In CFMEU v BHP Coal Pty Ltd³, BHP Coal Pty Ltd (BHP) declined applications by two male employees for employer paid parental leave on the basis that the male employees were not the primary carers for their newborn babies. BHP took the position that the male employees were providing care and support to their spouses after they had given birth by caesarean section and, as such, were instead entitled to paid Personal/Carer's leave.

BHP's Paid Parental Leave policy provided an entitlement to 18 weeks' paid leave for 'primary carers'. A 'primary carer' was defined as an employee who "… assumed the principal role of providing care and attention to the child".

The first employee provided a medical certificate that stated he was his wife's "… primary carer and will need carer's leave to care for her for six weeks while she recovers from the operation". The employee was also responsible for feeding, bathing and changing the newborn in hospital, and for five weeks after they had been discharged because his wife was unable to carry the child and could not stand for long periods of time.

The second employee's wife underwent an emergency caesarean section six weeks' prematurely. The employee transported breast milk between the two hospitals where his wife and son were being cared for. After they were both discharged, the employee was responsible for driving both his wife and son to medical appointments because his wife was unable to drive and perform physically demanding tasks, such as changing the newborn.

BHP declined both applications for paid parental leave under its policy on the basis that the male employees were not 'primary carers'. BHP took the position that its paid employer parental leave was not intended to apply in circumstances where the mother had a caesarean section and simply required spousal support. BHP argued that the male employees would only be entitled to paid employer parental leave if the mother was incapacitated as a result of the caesarean section, such that she was unable to provide any care for the newborn.

The Commission supported BHP's position and held that where an employee claims an entitlement to paid leave on the basis that they are the 'primary carer' by virtue of the mother's physical condition, the mother's physical condition must be such that she is unable to provide primary care for the child. Employees are required to provide medical evidence to this extent.

The Commission held that a medical certificate, which states that the mother requires care and support following a caesarean section, is insufficient to support an application by a male employee that he is the 'primary carer' of the newborn. Instead, an employee who requires leave to provide care and support to the mother is entitled to access paid Personal/Carer's leave for that purpose.

As both employees only provided BHP with evidence to support a need to provide care and support to their wives in circumstances where the wives were responsible for providing primary care for the child, the Commission held that the employees were not entitled to paid employer parental leave as they were not 'primary carers' as defined.

Lesson for Employers
Johnston v MTGI supports a father's entitlement to utilise paid Personal/Carer's leave in situations where an emergency caesarean section requires him to provide care and support to other family members during the period that the mother remains in hospital.

The situation, however, arising from a scheduled caesarean section remains unclear. Arguably, if a caesarean section is scheduled, it does not constitute an 'unexpected emergency'. In cases of scheduled caesarean sections, the father would not be entitled to utilise paid Personal/Carer's leave to care for other children while the mother remained in hospital.

If, however, upon discharge from hospital, the mother required care or support from the father due to an incapacity arising from the caesarean section (scheduled or otherwise), the father would be entitled to utilise paid Personal/Carer's leave to provide care or support.

Both decisions suggest that employers should avoid taking a blanket approach to declining leave applications by fathers and applications for employer paid parental leave associated with caesarean section births. Instead, applications should be assessed on a case-by-case basis having regarding to:

• medical evidence
• whether it is the mother, the child or other members of the employee's family that require care or support 
• the actual circumstances arising from the birth, including whether the delivery was an 'unexpected emergency'.

Both decisions support the need for employees to provide medical evidence to support a leave application which clearly specifies whether it is:

• the mother who requires care and support resulting from the caesarean section
  or 
• the mother who is suffering from a medical condition which prevents her from being the primary care giver of the child or other children.

In cases where it is the mother who requires care and support resulting from the caesarean section after being discharged from hospital, the father is entitled to utilise his paid Personal/Carer's leave to provide care and support to her. Of course the father is not entitled to utilise paid Personal/Carer's leave entitlements to provide care and support to the mother of the child while she is in hospital on the basis that the nursing staff provide such care and support.

In cases where the mother is suffering from a medical condition which prevents her from being the primary care giver of the child or other children, the father is entitled to utilise his paid Personal/Carer's leave to provide care or support to the child or other children during the period of the mother's incapacity. Depending on the eligibility terms in an employer's paid parental leave policy, such a scenario may also entitle the father to employer paid parental leave.

[1] The term 'father', for the purposes of this article, also includes a reference to the spouse or de-factor partner of the female employee who gives birth to the child.
[2] Johnston v The Trustee for The MTGI Trust T/A Macquarie Technology Group [2014] FWC 7098 (24 October 2014)
[3] Construction, Forestry, Mining and Energy Union v BHP Coal Pty Ltd [2015] FWC 920 (11 February 2015)