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

The Fair Work Amendment (Improving Unpaid Parental Leave for Parents of Stillborn Babies and Other Measures) Act 2020 amended the Fair Work Act 2009. It deals with two broad areas.

First, it changed the unpaid parental leave rules for stillbirth, the death of a child, and situations where a child remains in hospital after birth. Second, it introduced flexible unpaid parental leave, allowing up to 30 days of unpaid parental leave to be taken within 24 months in a more flexible way.

For businesses, the key point is that this Act does not sit outside the Fair Work Act as a stand-alone leave code. It changes the way the unpaid parental leave provisions in the Fair Work Act operate. Employers therefore need to read their existing parental leave processes together with these amendments, especially around notice, evidence, return to work timing, replacement employees and the interaction between continuous leave and flexible leave.

The amendments sit within the Fair Work Act 2009 and are relevant to national system employers and employees covered by that Act. In practical terms, that includes most private sector employers in Australia.

The flexible unpaid parental leave provisions expressly state that flexible unpaid parental leave is available in full to part-time and casual employees. The broader unpaid parental leave framework also continues to apply according to the eligibility rules in the Fair Work Act, so employers should still check the employee’s underlying entitlement before applying these amended rules.

These changes are especially relevant for employers that regularly manage parental leave, replacement staffing, return to work planning or sensitive family-related leave events. Even if a business has only a small team, it should still update its documents and manager guidance because these events can arise unexpectedly and often require quick, careful handling.

There are several practical trigger points under the amended law.

One trigger is a stillbirth. If a child is stillborn and the employee would have been entitled to birth-related unpaid parental leave if the child had been born alive, the employee is taken to be entitled to that unpaid parental leave despite the stillbirth. The Act defines a stillborn child as a child who weighs at least 400 grams at delivery or whose gestation was at least 20 weeks, and who has not breathed and whose heart has not beaten since delivery.

Another trigger is the death of a child during the 24-month period starting on the child’s date of birth. In that situation, an employee who is entitled to unpaid parental leave in relation to the child may cancel the leave before it starts or, if the leave has already started, give written notice that they wish to return to work on a specified day.

A further trigger is where a child is required to remain in hospital after birth, or is hospitalised immediately after birth, including because of premature birth or a complication or illness. In that case, the employee and employer may agree to a permitted work period while the child remains in hospital.

The final major trigger is an employee choosing to take flexible unpaid parental leave. This can be up to 30 days during the 24-month period starting on the date of birth or day of placement of the child, provided the statutory requirements are met.

The stillbirth amendments are designed to preserve entitlement, not remove it. If the employee would have had birth-related unpaid parental leave had the child been born alive, the entitlement is preserved despite the stillbirth. The Fair Work Act is then to operate as if the birth of a child included the stillbirth of a child for these purposes.

This matters for notice as well. The legislation notes that if the employee has not given notice in accordance with section 74 before the stillbirth, the employee can do so as soon as practicable, which may be after the leave has started. Employers should therefore avoid taking a rigid approach to timing in these circumstances and should check the statutory wording before rejecting a notice as late.

If a child is stillborn, or dies within 24 months of birth, the employee may choose to cancel unpaid parental leave before it starts by written notice. If the leave has already started, the employee may give written notice that they wish to return to work on a specified day. That specified day must be at least 4 weeks after the employer receives the notice.

The employee may also still rely on the separate Fair Work Act mechanism that allows the period of unpaid parental leave to be reduced with the employer’s agreement. The amendments say the stillbirth and child death provisions do not limit that separate rule.

For employers, the practical tasks are to accept written notices, record the date received, calculate the earliest lawful return date where relevant, and make sure managers understand that the employee has the choice. The business should not treat the event as automatically ending the leave entitlement or automatically requiring an early return.

Section 78A allows an employee and employer to agree that the employee will not take unpaid parental leave for a period while the child remains in hospital. This is called a permitted work period. It is available where the child is required to remain in hospital after birth, or is hospitalised immediately after birth, including in the circumstances listed in the Act.

If the employee and employer agree to a permitted work period, the employee is taken not to be taking unpaid parental leave during that period. Importantly, the permitted work period does not break the continuity of the original leave period. The employee is also taken to have advised an end date for the original leave period that is extended by a period equal to the permitted work period.

The permitted work period must start after the birth of the child. It ends at the earliest of the time agreed by the employee and employer, the end of the day of the child’s first discharge from hospital after birth, or, if the child dies before discharge, the end of the day the child dies.

Only one permitted work period may be agreed for each child. That is an important limit for employers to build into their process and records.

The employer may require evidence that would satisfy a reasonable person that the hospitalisation rule applies and that the employee is fit for work. The Act says this evidence may be required to be a medical certificate. The legislation also notes that personal information given under this section may be regulated under the Privacy Act 1988.

The Act specifically notes that section 344 prohibits undue influence or undue pressure on the employee in relation to a decision about whether to agree. In practice, employers should present the option neutrally, document that the arrangement is by agreement, and avoid any suggestion that the employee is expected to return to work because of operational pressure.

The Act introduced section 72A, which allows an employee to take up to 30 days of unpaid parental leave as flexible unpaid parental leave during the 24-month period starting on the date of birth or day of placement of the child, if the statutory requirements are met.

This is not a replacement for the standard continuous unpaid parental leave period. It is a form of unpaid parental leave that can be taken more flexibly and is an exception to the usual rules about taking leave in a single continuous period and when the leave must start. The Act also says the employee may take flexible unpaid parental leave whether or not the employee has taken unpaid parental leave under another provision in relation to the child.

However, employers should pay close attention to the interaction rules. Flexible unpaid parental leave comes out of the employee’s entitlement to 12 months of unpaid parental leave under section 70. Also, the employee’s entitlement to any unpaid parental leave in relation to the child that is not flexible unpaid parental leave ends on the first day the employee takes flexible unpaid parental leave. In practical terms, if the employee is going to take ordinary unpaid parental leave under another provision, that leave must be taken before the employee starts flexible unpaid parental leave.

Flexible unpaid parental leave may be taken as a single continuous period of one or more days, or as separate periods of one or more days each. It is available in full to part-time and casual employees.

There are also rules for employee couples. A member of an employee couple may take flexible unpaid parental leave on the same day as the other member is taking unpaid parental leave only if the total of all periods of unpaid parental leave the first employee takes at the same time as the other employee is no longer than 8 weeks. The Act also prevents double counting in multiple birth or same-day adoption placement situations by providing that an employee is not entitled to take flexible unpaid parental leave in relation to one child if they take it in relation to the other child from the same multiple birth or same-day placement.

The amended Act makes notice handling particularly important.

For flexible unpaid parental leave, if the employee is also taking unpaid parental leave under section 71 or 72, the notice for flexible leave must generally be given at the same time as the notice for the original leave, or, if the employee takes more than one period under section 72, at the same time as the notice for the first of those periods. Otherwise, the employee must give notice at least 10 weeks before starting the flexible unpaid parental leave, unless the employer agrees to a later time.

That notice must specify the total number of flexible days the employee intends to take. If the employer agrees, the employee may reduce the number of flexible days, including to zero, or increase the number, but not above 30.

The employee must also give written notice of each flexible day at least 4 weeks before that day, or as soon as practicable if that is not possible. If the employer agrees, the employee may change a day previously notified.

For hospitalisation arrangements, the employer may require evidence that would satisfy a reasonable person and may require a medical certificate. For stillbirth situations, the Act gives an example that certification by a medical practitioner of the child as having been delivered may be relevant where the stillbirth provision applies.

Businesses should keep a clear written trail of notices received, evidence requested, evidence provided, dates agreed, and any changes agreed. This is especially important where leave sequencing affects entitlement, such as where flexible unpaid parental leave is taken after other parental leave.

Employers should update parental leave policies, manager guidance, leave request forms and replacement employee templates so they reflect the amended Fair Work Act rules. Documents should make clear that stillbirth can preserve birth-related unpaid parental leave, that an employee may choose to cancel leave or return early after a stillbirth or child death, and that a hospitalisation arrangement is by agreement only.

Policies should also explain that flexible unpaid parental leave is part of the unpaid parental leave framework, can be taken in blocks or single days, and is subject to notice requirements and interaction rules. It is helpful to include a sequencing note so managers understand that once flexible unpaid parental leave starts, the employee’s entitlement to other unpaid parental leave for that child ends.

Conduct matters as much as documents. The legislation expressly points to section 344 of the Fair Work Act in relation to hospitalisation agreements. Employers should therefore train managers not to pressure employees, not to present one option as mandatory, and not to make assumptions about what an employee will want after a stillbirth, child death or extended hospital stay.

Replacement employee communications should also be checked. The amendments updated the replacement employee provision so that the replacement employee is told about the rights of the employee taking unpaid parental leave, including the right to cancel leave or end leave early if the child is stillborn or dies within 24 months, and the return to work guarantee.

The Act received Royal Assent on 26 November 2020. Schedule 1 commenced on 27 November 2020. Schedule 2 commenced immediately after Schedule 1, also on 27 November 2020.

The application rules are important. The amendments about stillbirth and death of a child apply in relation to the stillbirth or death of a child on or after 27 November 2020, subject to the specific transitional provisions. The hospitalised child provision applies in relation to a child born on or after 27 November 2020. The amendments to unpaid special maternity leave apply to a pregnancy ending on or after 27 November 2020. The compassionate leave amendments apply to a permissible occasion occurring on or after 27 November 2020.

Before relying on this page, businesses should check the current Fair Work Act text and any later amendments, because this Act amended the Fair Work Act rather than operating as a complete code on its own.

This page is based on the Federal Register of Legislation version of the Fair Work Amendment (Improving Unpaid Parental Leave for Parents of Stillborn Babies and Other Measures) Act 2020 and the amendment text it inserted into the Fair Work Act 2009.

Businesses should check the current consolidated Fair Work Act 2009 before acting, particularly for eligibility rules, notice provisions, return to work rights and any later amendments that may affect the operation of these provisions.