Legislative update: changes to unpaid parental leave entitlements in Fair Work Act 2009 (Cth)

On 26 November 2020, the Fair Work Amendment (Improving Unpaid Parental Leave for Parents of Stillborn Babies and Other Measures) Bill 2020 (the Bill) received the Royal Assent.

The Bill amended the unpaid parental leave and related provisions in the Fair Work Act 2009 (Cth) (the FW Act) to improve entitlements for parents of stillborn babies, among other things. The Bill was introduced in response to the Senate Select Committee on Stillbirth Research and Education Report which raised concerns that the unpaid parental leave provisions in the FW Act are inadequate as they treat parents of stillborn children differently to parents of live babies. The Committee recommended that the National Employment Standards of the FW Act ensure that provisions for stillbirth and miscarriage are clear and consistent across all employers and meet international best practice.

Previously, the FW Act provided eligible employees with a 12-month entitlement to unpaid parental leave associated with the birth or adoption of a child if the employee had or would have had a responsibility for the care of a child. However, if an employee had started a period of unpaid parental leave when their child was stillborn or if it died, they were entitled to remain on unpaid parental leave until their employer directed them to return to work upon six weeks’ notice. Further, if the employee had not yet started a period of unpaid parental leave when the child was still born or when it died, the employer or employee could have cancelled the period of upcoming leave.

The Bill amended the above provisions in line with societal expectations and recognises the rights of parents of stillborn children so that:

• parents of stillborn babies are still entitled to 12 months of unpaid parental leave despite the stillbirth of their child;
• an employer can no longer cancel an employee’s unpaid parental leave entitlement upon notice if the employee has a stillbirth or their child dies during the 24-month period since their date of birth;
• parents of stillborn babies or babies who have died during the 24-month period since their date of birth still have the option to cancel a period of unpaid leave or return to work on a specified day upon the provision of four weeks’ written notice;
• an employee is able to take compassionate leave following the stillbirth of their child, where the child would have been a member of the employee’s immediate family or household, if the child had been alive (even whilst that employee is taking unpaid parental leave).

The Bill also amended provisions of the FW Act to complement the changes that were made to the Paid Parental Leave Act 2010 (Cth) (the PPL Act) in July 2020. Those changes related to the flexible taking of paid parental leave. The amendments to the FW Act will now enable an employee to take up to 30 days of unpaid parental leave during the 24-month period starting on the date of birth or day of placement of a child. Those 30 days may be taken in a single continuous period of one or more days or separate periods of one or more days each. These changes will provide employees with the ability to take flexible paid parental leave under the PPL Act in conjunction with flexible unpaid parental leave under the FW Act.

The above amendments to the FW Act, which have now taken effect, demonstrate the need for industrial laws to adapt to our changing society. The amendments, which provide greater flexibility to employees, will enable new parents (including those to stillborn babies or babies who have died) to balance their caring and professional responsibilities in the modern day.

Should you have any queries in respect of your access to parental leave, or as an employer the management of parental leave, please contact Sathish Dasan on +61 8 8210 1253 or sdasan@normans.com.au, Ganesh Krishnan on +61 8 8217 1395 or gkrishnan@normans.com.au or Anastasia Gravas on +61 8 8217 1331 or agravas@normans.com.au.