MBIE lawfully denied father's paid parental leave, ERA rules

A father who stopped work to care for his newborn daughter has been denied paid parental leave by the Ministry of Business, Innovation and Employment (MBIE), a decision that the Employment Relations Authority (ERA) upheld in a recent ruling.

The ERA dismissed the application by the father to review MBIE's refusal of his paid parental leave claim under the Parental Leave and Employment Protection Act 1987 (PLEPA).

The father did not meet the statutory definition of "primary carer," according to the ERA, which stressed that the "statutory language is stringent and clear."  

The father's daughter was born in December 2025. He told the ERA he had assumed day‑to‑day primary responsibility for her care because his wife, the biological mother, had "urgent and serious overseas family obligations" requiring her presence outside of New Zealand.

He said these obligations were open‑ended, that she was ineligible for paid parental leave, and that he had left work to care for their child on a permanent basis.

MBIE declined his application, prompting the father to seek a review under section 71ZB of the PLEPA. The matter was determined on the papers, with the applicant representing himself and counsel Matt Burden appearing for MBIE.

Both parties accepted that the child is under one year of age and that the biological mother did not qualify for a parental leave payment when the father assumed care. 

The dispute centred on whether he could be considered the "primary carer" as the spouse of the biological mother under section 7(1)(b)(iii) of the Act.

ERA: Law demands more than predominant caregiving

Under the PLEPA, a primary carer can be a biological mother, her spouse or partner in specific circumstances, or another person with permanent primary responsibility for a child's care, development, and upbringing.

For spouses and partners, section 7(1)(b)(iii) requires that the child be under one, that the spouse or partner has taken permanent primary responsibility for the care, development, and upbringing of the child, and that this has occurred "to the exclusion of the biological mother."

"It requires a settled and enduring assumption of responsibility by the spouse or partner without the input of the biological mother. In other words, the biological mother cannot exercise, and must not be in a position to exercise, any responsibility for the child's care, development or upbringing," the ERA ruled.

"In this regard, I do not accept [the father's] submission that this wording was only intended to capture caregiving arrangements, meaning a biological mother could still be involved in the child's life so long as the spouse or partner had assumed primary caregiving responsibilities."

No proof of permanent exclusion

The ERA accepted that the father had taken on significant, and likely predominant, day‑to‑day caregiving responsibilities, including leaving work, but held that predominance alone did not satisfy the test.

"There is no evidence of death, incapacity, legal restriction, or other circumstance permanently removing her from a caregiving role, nor is there evidence that she has relinquished or been unable to exercise that role in any permanent or substantive sense," the ERA ruled.

MBIE pointed to Immigration New Zealand information indicating the mother had remained in New Zealand since shortly before the child's birth. 

The ERA noted the case rested on an anticipated future absence, but that this "has not yet occurred" and remained contingent. 

"The statutory requirement is directed to the actual and permanent allocation of caregiving responsibility, not an intended or anticipated arrangement," he said.

On that basis, the Authority found that while the father may be the principal carer in practice, "he cannot be the primary carer in law."

Although section 71ZB gives the ERA a broad discretion to confirm, modify or reverse MBIE decisions, the ERA declined to intervene. 

"I consider that if I were to exercise any discretion in this case to reverse or modify the respondent's decision, it would have the effect of rewriting the law," the ERA ruled.

The ERA confirmed MBIE's original decision: the applicant is not a primary carer under the PLEPA and is not entitled to parental leave payments.