Paternity Leave Case [1990]

Updated time

Last updated

10 January 2017

The Federated Miscellaneous Workers Union of Australia v. Angus Nugent and Son Pty. Ltd. and Others

Print J3596, Cohen J, Moore DP, Polites DP, Griffin C, Turbet C, 26 July 1990


In this decision the Australian Industrial Relations Commission extended the maternity leave clause to apply to fathers, in order to provide fathers with up to 12 months' unpaid leave following the birth of their child.

The claim for parental leave followed the awarding of maternity leave. The Australian Industrial Relations Commission stated:

We recognise the desire of some working parents to share the responsibility of parenting small children. We also accept the submission put by Parents Without Partners that the job protection afforded to female employees by maternity and adoption leave should be similarly available for male employees who become the sole carer of a child. [p.9]

Discussing the implications of short paternity leave, the Commission stated that:

it is now widely accepted that a father may be called upon to assist his spouse and care for the family at the time of the birth of their child ... We are prepared to grant leave for the express purpose of permitting fathers to meet this need. The leave will be for a period of up to one week and will be unpaid. [p.9]

In relation to the claim for 'extended' paternity leave, the Commission said:

we are persuaded that families should have a choice as to which parent becomes the primary care-giver of a child, when both wish to remain in the workforce ... We have therefore decided to grant a further unbroken period of up to 51 weeks unpaid paternity leave to male employees for this purpose, although this will be reduced by any period of maternity leave taken by his spouse. The leave will not extend beyond the child’s first birthday. It follows that we do not accede to the extension of the total period of leave for a family to two years. As the leave is being granted for the purpose of child-care, we do not consider it appropriate, where both parents are in the workforce, that they should be absent from their employment on maternity and paternity leave at the same time. In summary, the total of 52 weeks paternity shall be reduced by any period of maternity leave taken by the employee’s spouse and, except for the week available at the time of the birth, shall not be taken concurrently with the spouse’s maternity leave. [p.9]

The conditions for paternity leave were prescribed by the Commission:

For the extended period of paternity leave a statutory declaration will therefore be required, confirming that the purpose of the leave is for the employee to become the primary care-giver of the child. The declaration will also set out any period of maternity leave to be taken by the employee’s spouse and the employee will declare that he will not engage in any conduct inconsistent with his contract of employment whilst on leave. [p.10]

The Commission then turned to the operation of adoption leave:

The claim resulting in the 1985 adoption leave decision was for leave for females only. The ACTU, supported by all of the interveners, now submits that an employee who is an adopting father should have the right to take leave on the same basis as an adopting mother. In the light of our conclusions in relation to paternity leave we accept that the rationale for adoption leave applies equally to male and female employees, and we will so provide.


Having regard to the nature of the adoption process, we think it reasonable that a period of up to three weeks unpaid leave should be available to adopting parents at the time of placement of a child. This would include any time taken to travel overseas to take custody of the child. In the circumstances of adoption we accept that such leave may be taken concurrently by both parents. This reflects our view as to differences underlying the three types of leave encompassed by the claim. [p.12]

The Commission concluded:

The scheme we have decided upon establishes a flexible range of choices for families and is a further step towards the reconciliation of work with family responsibilities. [p.16]