On 3 September, the Fair Work Amendment (Improving Unpaid Parental Leave for Parents of Stillborn Babies and Other Measures) Bill 2020 (Cth) (‘the Bill’) was introduced to the House of Representatives.
The purpose of the Bill is to amend the Fair Work Act 2009 (Cth) in order to ensure that parents whose children are hospitalised, stillborn or pass away within the first 24 months of life are provided equal opportunity and flexibility to claim unpaid parental leave (‘UPL’) as parents whose children are born healthy. In his Second Reading Speech, Attorney-General Christian Porter referred to the unprecedented and dramatic changes parents have had to make in combining work and care due to the impacts of COVID-19. The Bill is informed by the recommendations of the Senate Select Committee on Stillbirth Research and Education Report. Furthermore, the Bill is intended to complement the new flexible government-funded Paid Parental Leave scheme administered by Centrelink under the Paid Parental Leave Act 2010. In his Second Reading Speech the Attorney-General stated:
While recognising that the pain of stillbirth and infant death can never be repaired through a workplace entitlement, the government trusts that these changes will provide some peace of mind for parents in these traumatic circumstances.
The current legislative framework allows employers to recall parents on birth-related UPL due to stillbirth or the death of their child within the first 24 months to return to work with 6 weeks notice. For parents on adoption-related UPL whose child dies in the first 24 months of life, they can be recalled to work with four weeks notice. Furthermore, employers are able to cancel any upcoming planned period of UPL. The Bill proposes to amend National Employment Standards to ensure that UPL entitlements are available in full to parents of stillborn children as it would have been if their baby had lived. Therefore, conditional to the assent of the Bill, the Bill will effectively prevent employers from recalling employees back to work or cancelling planned periods of UPL where the employee has given notice of circumstances of stillbirth or child death.
Secondly, the Bill intends to provide better and clearer access to compassionate leave by clarifying that an employee can take compassionate leave in relation to a stillborn child. Further, in the circumstances where a baby is hospitalised immediately after birth, the Bill enables an employer and employee to make arrangements for the employee to return to work while their baby is in hospital and recommence their UPL when the baby is discharged. The purpose of this provision is to respond to feedback from parents who expressed that the option to ‘pause’ their UPL would enable them to spend more time with their baby at home.
Currently, UPL is offered on the condition that it is taken as a single continuous block so that if a parent returns to work, they forfeit any remaining untaken leave. However, as the Attorney-General noted in the Second Reading Speech:
This current rule may discourage women in particular from reconnecting with the workforce after their baby is born as they will lose their entitlement to any further unpaid parental leave, and that may deter men from taking leave to care for their newborns as they must stop working completely while they are on unpaid parental leave.
If assented, the Bill will provided increased flexibility by allowing parents to take up to 30 days of their 12-month UPL entitlement flexibly within the first 24 months of the child’s life. The 30 days may be taken as single days, groups of days or a single continuous block.
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Fair Work Amendment (Improving Unpaid Parental Leave for Parents of Stillborn Babies and Other Measures) Bill 2020, second reading speech and explanatory memorandum, available from TimeBase's LawOne service
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