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10/09/20

The Federal Government has this week introduced legislation into parliament to provide greater flexibility for parents when using their unpaid parental leave and also to improve the unpaid parental leave provisions for new parents who experience premature birth, stillbirths or the death of a child within the first 24 months of their life.

The Government have introduced the Fair Work Amendment (Improving Unpaid Parental Leave for Parents of Stillborn Babies and Other Measures) Bill 2020 (‘the Bill’). The Bill seeks to amend the Fair Work Act 2009 (‘the Fair Work Act’) to improve the unpaid parental leave entitlements in the National Employment Standards for new parent employees who experience traumatic events during or in anticipation of unpaid parental leave, including still birth, premature birth and the death of a child within the first 24 months of life.

The Bill also seeks to make changes to complement the new flexible government-funded Paid Parental Leave scheme administered by Centrelink under the Paid Parental Leave Act 2010 (‘the Paid Parental Leave Act’) to provide parents with corresponding flexibility in relation to their unpaid parental leave entitlements.

Stillbirth, death of a child in the first 24 months of life and hospitalisation of children immediately after birth

Currently under the parental leave provisions in the Fair Work Act, if an employee has started birth-related unpaid parental leave when their child is stillborn or dies, the employer can direct the employee to return to work with 6 weeks’ notice. If the employee is not on birth-related unpaid parental leave when the child is stillborn or dies, either the employee of their employer can cancel any upcoming leave. 

The Bill introduced by the Government would seek to improve these provisions by:

  • Ensuring that parents of stillborn babies have the same entitlement to unpaid parental leave as parents of live babies;
  • Removing an employer’s ability to recall a parent on unpaid parental leave back to work or cancel any upcoming planned period of unpaid parental leave following a stillbirth or death of a child or an infant;
  • Ensuring employees in these circumstances who wish to return to work earlier can do so by providing their employer with at least 4 weeks written notice;
  • Allowing employees who are on unpaid parental leave to take compassionate leave following the stillbirth or death of the child in relation to whom the employee is taking unpaid parental leave; and
  • Making it clear that employees are able to take compassionate leave in relation to a stillborn child if that child would have been an immediate family or household member had the child been born alive.

The Bill also seeks to allow parents of premature babies and newborns who require hospitalisation immediately following birth to agree with their employer to put their unpaid parental leave on hold until the baby goes home.

Flexible unpaid Parental Leave

The Bill seeks to create greater flexibility with respect to the unpaid parental leave entitlements. The Bill would amend the Fair Work Act to enable parents to take up to 30 days of their 12-month entitlement at any time within 2 years of their child’s birth or placement. This would include on a single-day basis.  

Members will be informed of any developments with respect to this proposed legislation.

A copy of the Bill can be accessed here:

Fair Work Amendment (Improving Unpaid Parental Leave for Parents of Stillborn Babies and Other Measures) Bill 2020

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