House debates

Thursday, 3 September 2020


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

9:40 am

Photo of Christian PorterChristian Porter (Pearce, Liberal Party, Attorney-General) Share this | | Hansard source


I move:

That this bill be now read a second time.

The Fair Work Amendment (Improving Unpaid Parental Leave for Parents of Stillborn Babies and Other Measures) Bill 2020 introduces a package of important changes to the unpaid parental leave provisions in the Fair Work Act.

COVID-19 has dramatically changed how parents are combining work and care. That's why, in addition to the various measures already introduced by the government to support employees impacted by COVID-19, the government is moving ahead with delivering on important reforms to unpaid parental leave as part of its ongoing commitment to parents and families.

These changes will provide improved support to employees who experience stillbirth or the death of a child in the first 24 months of life and they introduce much-needed flexibility into the unpaid parental leave provisions, which employees and employers alike have criticised for being too rigid and preventing them from agreeing on more flexible leave arrangements following birth.

Under these changes, parents whose babies are hospitalised following birth will also have greater flexibility in deciding how they can use their unpaid parental leave.

Finally, the changes will also provide all parents with more choices in how they take their unpaid parental leave in a way that suits their family, to complement the changes the government recently introduced to increase flexibility in the government's Paid Parental Leave scheme.

Stillbirth and death of a child in the first 24 months of life

Stillbirth is a tragic event for any family. Six babies are stillborn every day in Australia, making it the most common form of child mortality in Australia.

Informed by the recommendations of the bipartisan Senate Select Committee on Stillbirth Research and Education, the government is developing the National Stillbirth Action and Implementation Plan. The government has brought together key government and non-government organisations to improve stillbirth prevention and care; raise awareness and strengthen education; improve bereavement care and community support following stillbirth; improve stillbirth reporting and data collection; and prioritise stillbirth research.

Under the current Fair Work Act, parents on birth-related unpaid parental leave who experience a stillbirth or the death of their child in the first 24 months of life can be recalled to work from their leave with just six weeks notice from their employer. Parents on adoption-related unpaid parental leave whose child dies in the first 24 months of life can be recalled to work from their leave with just four weeks notice.

If these parents are not already on unpaid parental leave, the Fair Work Act allows an employer to cancel any upcoming planned leave in these circumstances.

While recognising that most employers are obviously supportive of their employees, particularly where they have suffered such a tragic loss, this bill will ensure that the entitlement to unpaid parental leave for a parent whose baby is stillborn will be precisely as it would have been if their baby had lived.

For an employee whose child dies during the first 24 months of life, the bill will ensure that their employer will no longer be able to cancel any upcoming unpaid parental leave they might have, or, if they are already on leave, require them to return to work earlier than they may wish to.

The bill will also provide better and clearer access to compassionate leave in relation to stillborn babies and babies who die during a parent's unpaid parental leave. The government understands that employers want to support employees who have experienced such a loss. Under this bill, an employee will be allowed to access compassionate leave for their stillborn or infant babies when already on unpaid parental leave without having to forgo their right to either.

Employers can of course continue to offer leave that goes beyond the minimum safety net, including paid parental leave through enterprise agreements, employment contracts and workplace policies.

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.

Premature birth and immediate hospitalisation

The bill will also remove a current legislative barrier that hampers sensible arrangements being made at the workplace level where an employee's baby is hospitalised immediately following birth.

Many parents of babies who are hospitalised after birth—a situation that particularly affects babies born prematurely—have said they would like the option to work while their baby is in hospital so that they may have more time at home with their babies once they are discharged from hospital. Currently under the Fair Work Act, if an employer and employee agree for the employee to return to work while their baby is in hospital, the employee will then lose the remainder of their unpaid parental leave entitlement.

The bill will remove this restriction, allowing employers and employees to agree to the employee 'pausing', in effect, their unpaid parental leave, returning to work for the period their baby is in hospital and resuming leave once their baby is discharged from hospital.

It is important that the legislative framework gives employers and employees the ability to discuss and make arrangements that suit them. Importantly, those parents who pause their unpaid parental leave will ultimately have more unpaid parental leave available to spend with their baby at home.

Flexible unpaid parental leave

Finally, this bill will make unpaid parental leave more flexible for families to structure their work and caring in ways that suit them by introducing the capacity for an employee to take a portion of their unpaid parental leave flexibly.

This change will provide employees with greater choice in how they use up to 30 days of their existing 12-month unpaid parental leave entitlement.

This change complements the new flexible parental leave payment under the government's Paid Parental Leave scheme. Employees will be able to take up to 30 days of unpaid parental leave flexibly and claim flexible parental leave payment from Services Australia for these days, if they are eligible. Ensuring there is a corresponding leave entitlement to enable parents to claim flexible parental leave payments will reduce unnecessary stress for parents in the joyful but often very demanding period of new parenthood.

Under the proposed changes to the unpaid parental leave entitlement and the recent changes to the parental leave payment, parents will have access to up to 30 flexible days until the baby's second birthday.

This change is significant in that it reduces the current rigidity of unpaid parental leave. Many parents would like to combine working and caring for their newborn child but are not currently able to achieve this blend using unpaid parental leave, which generally must be taken in a single continuous block. Once a parent returns to work, they will usually forfeit any remaining untaken leave.

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.

The new capacity for parents to take up to 30 days of their 12-month entitlement to unpaid parental leave flexibly could mean, for example, a new parent spending a block of unpaid parental leave with their newborn after birth and then taking 30 days flexibly after they return to work.

Employees will be able to take these days as a single day, groups of days or a single continuous block.

The measures in the bill will require employees to give their employer appropriate notice of their intention to use some of their 12-month entitlement flexibly and separate notice before actually taking flexible unpaid parental leave, aligned with the existing notice provisions for unpaid parental leave in the Fair Work Act as far as possible.

This will therefore assist employers to best support their employees who are new parents while also balancing and managing workflow priorities and the needs of their broader workforce.


The amendments in the bill are balanced reforms that will provide new parents with more choices and flexibility about how they use parental leave, and they reflect contemporary expectations about how families should be able to structure work and family arrangements.

These expectations and the needs of Australian families for greater flexibility to combine work and care have been brought into sharp relief by the impact of the COVID-19 pandemic. More flexibility for parents in how leave is taken following birth, we believe, is an important part of reshaping how we approach work and care.

The improvements to the unpaid parental leave provisions of the Fair Work Act contained in the bill have been carefully considered and consulted on at length. They are based on the data and evidence presented to the government by key stakeholders, including, importantly, many parents themselves.

On behalf of the government, I want to thank all of those parents who shared their stories, noting that for many of those parents these were incredibly painful memories to relive. I commend the bill to the House.

Debate adjourned.