An employee is entitled to return to work after maternity leave in the same position held immediately prior to taking maternity leave, or, if that position no longer exists, in a position as nearly comparable as possible, if the employer has not abolished the original position.

Section 84(b) of the Fair Work Act contemplates that an employee's pre-parental leave position may no longer exist when the employee's parental leave ends, and this has implications for assessing whether a redundancy claim is linked to parental leave.

A period of unpaid leave or unpaid authorised absence does not count towards the length of an employee's continuous service for the purpose of calculating the minimum employment period, although it does not break continuous service.

An employee who has not completed 12 months of continuous service is not entitled under the National Employment Standards to take parental leave, even if the employer accommodates and processes such leave without formal notice of ineligibility.

The term 'primary caregiver' is a general term given to the person with more responsibility for child care at a particular point in time than any other person.

The entitlement to paid parental leave under an enterprise agreement is separate from and distinct from unpaid parental leave under the National Employment Standards; a provision in clause 4.2 that the NES applies where it provides greater benefit does not apply where the NES covers only unpaid leave while the dispute concerns paid leave.

The term 'primary caregiver' in this context is defined by reference to a specific definition in the agreement that qualifies its general application; eligibility is determined by construction of the defined term, not by fact-finding about the parties' actual conduct or concessions.

The ordinary and plain meaning of 'newborn' is 'recently born child'; while there may be imprecision as to whether this means days, weeks or months old, it cannot mean 6 months or later.

There must be a nexus between an employee taking parental leave and the period in which they would have been required to perform work in order to apply an entitlement to time off in lieu for public holidays.

The intention of a clause providing for a day off in lieu for public holidays occurring during parental leave is to compensate employees in circumstances where they would have otherwise been required to perform work on the day when the public holiday fell.

Where an employee is on unpaid parental leave, the employee is entitled under s 84 to return to either their pre-parental leave position or, if that position no longer exists, an available position for which the employee is qualified and suited nearest in status and pay to the pre-parental leave position.

The assessment of whether an employee is a primary caregiver for the purposes of accessing paid parental leave must be made at the time that the employee seeks to access the entitlement, not at an earlier point in time.