Two male Crinum mine workers who were denied paid primary carer’s leave to look after their newborn children, have had their enterprise agreement disputes dismissed by the Fair Work Commission.
Both workers are employed by BHP at Crinum mine in Central Queensland, and the wives of both men experienced significant health problems after giving birth via caesarean section.
In defence of the workers’ claims, a representative of the Construction Forestry Mining and Energy Union (CFMEU) said the men had no option but to take on the role of their children’s primary care giver due to their wives’ weakened state of health and their inability to lift or carry their children in the weeks after their caesarean operations.
Obstetricians commonly recommend that women who have undergone caesarean section seek help with child care in the first six weeks. This recommendation is made on the basis that the operation often leaves women unable to lift or carry their newborns or perform simple tasks duties such as washing and hanging out the child’s laundry.
Both men submitted an Absence Request Form seeking primary carer’s leave, along with statutory declarations that they had taken on the role of primary care givers to their children for a temporary time. Both men also supplied BHP with medical certificates stating their wives had undergone caesarean section operations.
However BHP rejected their requests saying they had not produced enough convincing documentary evidence in support of their claims.
Employee Relations Manager for BHP, Mr Shaun McKenzie, told the Fair Work Commission that the company “…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.”
Mr McKenzie said a medical certificate outlining that the mother has had a caesarean section was not sufficient for approval of primary carer’s leave.
However Mr McKenzie said, “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.”
“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,” Mr McKenzie said.
The Fair Work Commission found in favour of BHP, saying that the men do not strictly meet the legal definition of primary care giver.
“In the present case, I agree with the submissions of BHP to the extent that Mr D and Mr R (the claimants) 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,” the Commission found.
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.”
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