In Murray v Ambulance Victoria [2025] FWC 2861, Commissioner Tran of the Fair Work Commission held that the terms of the Ambulance Victoria Enterprise Agreement 2024 (‘the Agreement’) did not entitle Mr Murray to take paid parental leave to care for his then 6-month-old child.

Mr Murray is an Advanced Life Support Paramedic employed by Ambulance Victoria. In April 2025, his wife gave birth to their first child. Mr Murray applied for parental leave to commence in September 2025 ([1]). Clause 69.2(a) of the Agreement provides that

An eligible employee engaged on a full time or part time basis, and who is the primary caregiver, is entitled to 14 weeks’ paid leave (or 28 weeks’ leave at half pay) to be taken concurrently with their unpaid parental leave as set out in clause 69.1.

There was no question that Mr Murray was an eligible employee. The question was whether he would be the ‘primary caregiver’ ([13]). Primary caregiver is defined in cl 2.35 as (emphasis added):

…  the person who takes primary responsibility for the care of a newborn or newly adopted child. The primary caregiver is the person who meets the child’s physical needs more than anyone else. Only one person can be a child’s primary caregiver.

The issue was whether, by the time the child was 6 months old, could it still be classed as a ‘newborn’?  At [34] Commissioner Tran said:

I am of the view that the assessment of whether Mr Murray is a primary caregiver for the purposes of clause 69.2 must be made at the time that Mr Murray seeks to access the entitlements provided by that clause. At that point in time (September 2025), Mr Murray’s child will be 6 months old and no longer newly or recently born.

It should be noted that the Enterprise Agreement allows for ‘12 months unpaid parental leave to be taken at any time within the 24 months following the birth … of the child, provided that it also ends within those 24 months’ (cl 69.1 cited at [19]). Eligibility for parental leave does not depend on the person being the ‘primary caregiver’ as defined, and therefore does not require that the child is ‘newborn’.  Rather unpaid leave is available ‘where the leave is birth-related’.  Commissioner Tran said (at [39]) the use of the term ‘birth related’ in cl 69.1 made ‘the distinction in the more restrictive meaning of primary caregiver in clause 2.35 more stark’.  That is the use of different terms ‘birth related’ or ‘primary caregiver’ meant different things (if they meant the same, they would use the same term).  So paid leave is only available for newborns but unpaid leave is available from birth until the child is 2 years old.  Presumably Mr Murray was entitled to take unpaid leave but that was not the subject of discussion in the judgment.

So how old does a child have to be, to be newborn?  At [30] the Commissioner said ‘There may be some imprecision in terms of whether newborn means days old, weeks old or months old, but it is clear enough that it cannot mean 6 months.’  Clause 69.2(a) of the Agreement (quoted above) provides that an eligible employee is ‘entitled to 14 weeks’ paid leave (or 28 weeks’ leave at half pay)…’. If a person can only be a primary caregiver of a newborn (cl 2.35), and paid leave is available for 28 weeks at half-pay, and only for the person ‘who is the primary caregiver’, then it must follow that a child is a newborn until they are 28 weeks old. If they ceased to be a newborn during that time, then the employee would cease to be a ‘primary caregiver’ as defined, and presumably their entitlement to continued paid leave would cease, in the same way that an entitlement to paid sick leave would end when a person was no longer sick.  If that analysis is correct, then a child is newborn until they are 28 weeks, or 6.5 months old.*  And if that analysis is correct then Mr Murray should have been able to take at least a few weeks paid leave; but the issue was not argued on that basis.

* There are 12 months in a 52 week year.  52/12 = 4.33 so each month is 4.33 weeks long. 28/4.33 is 6.5months.

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