Fair Work Amendment (Baby Priya’s) Act 2025

The Fair Work Amendment (Baby Priya's) Act 2025 amends the Fair Work Act 2009 to preserve certain employer-funded paid parental leave where a child is stillborn or dies. The core rule is now in section 333X of the Fair Work Act.

In practical terms, if an employee would have been entitled to employer-funded paid parental leave and the leave is connected with birth or adoption, the employer generally must not refuse the leave or cancel any part of it just because the child is stillborn or dies. The employer also cannot cancel part of the leave unless the employee asks for that to happen.

This is not a general paid parental leave entitlement for all workers. It only operates where there is already an entitlement under the terms and conditions of the employee's employment. It is also specifically about leave paid for by the employer, not the separate government-funded parental leave system.

The amendment can apply wherever an employee's entitlement to employer-funded paid parental leave arises under the terms and conditions of employment. That can include a contract of employment, an enterprise agreement, a workplace instrument or another source of employment terms.

The legislation is not limited by business size or industry. If your business provides paid parental leave funded by the employer, you should assume the amendment may be relevant and then check the exact source of the entitlement and the wording of the relevant terms.

The section applies where the leave is associated with either:

• the birth of a child of the employee or the employee's spouse or de facto partner, or
• the placement of a child with the employee for adoption.

Businesses that do not provide employer-funded paid parental leave are usually outside the practical reach of this amendment, because the section depends on the employee otherwise having had an entitlement to that leave.

Section 333X applies if three elements are present. First, a child is stillborn or dies. Second, the employee would have been entitled to the relevant leave if that had not happened. Third, the leave is paid for by the employer and is associated with birth or adoption.

Once those elements are met, the employer must not, because of the stillbirth or death, refuse to allow the employee to take the leave or cancel any part of the leave without the employee requesting that cancellation.

This means the law can be engaged at different points in the leave process. It is not limited to one narrow moment. The application provisions show that it can matter where the employee has not yet given notice, has given notice but not completed all requirements, has not yet been approved, has been approved but not started leave, or has already commenced leave.

The main prohibition is narrow but strict. If section 333X applies, the employer must not do either of the following because of the stillbirth or death:

• refuse to allow the employee to take the leave, or
• cancel any part of the leave without being requested by the employee to do so.

For businesses, this means internal processes should not automatically treat stillbirth or the death of a child as a reason to withdraw approved employer-funded paid parental leave. It also means a manager should not pressure an employee to switch to another form of leave if the employee wants to take the employer-funded paid parental leave they would otherwise have received.

The legislation makes this a civil remedy provision. That means a breach is not just a policy issue. It can lead to court proceedings and penalties.

The Act includes two main exceptions.

First, the employer may refuse or cancel the leave if the terms and conditions of employment expressly allow refusal or cancellation because of stillbirth or the death of a child, or expressly state that the employee is not entitled to that leave in those circumstances. The word expressly matters. A business should not assume a general management discretion or broad policy wording is enough.

Second, the employer may refuse or cancel the leave if the employee is entitled to other leave under the terms and conditions of employment that expressly addresses stillbirth or the death of a child.

There is also an important limit on the first exception. It does not apply if the relevant terms were varied after commencement unilaterally by the employer to add an express right to refuse or cancel the leave, or to say there is no entitlement in those circumstances. In other words, an employer cannot simply rewrite the rules on its own after commencement and rely on that new exclusion.

When working out whether the employee is entitled to other leave that expressly addresses the circumstance, the Act says to disregard unpaid parental leave under section 70 or equivalent terms, and compassionate leave under section 104 or equivalent terms. So those forms of leave do not let an employer avoid the preservation rule.

The application rules are detailed and matter in practice.

For entitlements that arise other than under a contract of employment, such as under a workplace instrument, section 333X applies if the stillbirth or death occurs on or after commencement and the employee would otherwise have had the entitlement. The source of that entitlement can have been made before, on or after commencement.

For entitlements arising under a contract of employment entered into on or after commencement, section 333X applies if the employee would otherwise have had the entitlement.

For contracts already in effect immediately before commencement, section 333X also applies where the stillbirth or death occurs on or after commencement, the employee would otherwise have had the entitlement, and the employee was in one of several positions at commencement. Those positions include not yet having given notice, having given notice but not completed all requirements, having met the requirements but not yet been approved, having been approved but not yet started leave, or having already commenced leave.

The note to the application provision also indicates that a contract varied after commencement can still be covered, as long as the contract, with or without the variation, was in effect immediately before commencement.

For businesses, the practical point is that this is not just a rule for new hires. Existing staff and existing leave arrangements may also be covered.

If your business offers employer-funded paid parental leave, a sensible compliance review should cover the documents and the conduct of decision-makers.

Start with the source documents. Review employment contracts, enterprise agreements, workplace policies, parental leave procedures, template approval letters and payroll instructions. Check whether there is any express wording dealing with stillbirth or the death of a child, and whether that wording sits in a valid source of employment terms.

Then review process. Make sure managers, HR and payroll staff know that they should not refuse or cancel employer-funded paid parental leave because of stillbirth or death unless a clear statutory exception applies. If your business has a separate leave category that expressly addresses stillbirth or the death of a child, check the wording carefully before relying on it.

Finally, keep records. If leave is changed or cancelled, record whether the employee requested that outcome. If the business relies on an exception, keep the exact contractual or industrial wording and the reason for the decision on file.

The prohibition in section 333X(2) is a civil remedy provision. The legislation states that proceedings may be brought by an employee, an employee organisation or an inspector.

The courts listed for this provision are the Federal Court, the Federal Circuit and Family Court of Australia (Division 2), and an eligible State or Territory court.

The legislation also states the maximum penalties for contravention in penalty units: for a serious contravention, 600 penalty units, or otherwise 60 penalty units. This page does not convert those figures into dollar amounts because the value of a penalty unit should be checked separately at the time of advice or enforcement.

The Act received Royal Assent on 6 November 2025. Under the commencement table, the whole Act commenced on the day after Royal Assent, being 7 November 2025.

The application provisions then determine when section 333X applies to particular entitlements, depending on whether the entitlement arises under a contract of employment or another source of employment terms, and whether the relevant stillbirth or death occurs on or after commencement.

Before relying on this page, businesses should confirm the current wording of their own contracts and workplace instruments and check whether any later amendments to the Fair Work Act 2009 affect the operation of section 333X.

This page is based on the text of the Fair Work Amendment (Baby Priya's) Act 2025 as published on the Federal Register of Legislation, including the inserted section 333X, the civil remedy table entry and the application provisions in Schedule 1.

Because this page is a practical overview, businesses should read the exact wording of their own employment terms before making a decision in a live matter, especially where there is a question about whether a term is express, whether another leave category expressly addresses stillbirth or the death of a child, or whether a variation was made unilaterally after commencement.