Thursday, 5 August 2021
Fair Work Amendment (Improving Paid Parental Leave for Parents of Stillborn Babies) Bill 2021; Second Reading
That this bill be now read a second time.
I seek leave to table an explanatory memorandum relating to the bill.
I table an explanatory memorandum and seek leave to have the second reading speech incorporated in Hansard and to continue my remarks.
The speech read as follows—
The Fair Work Amendment (Improving Paid Parental Leave for Parents of Stillborn Babies) Bill 2021is an important reform to equalise Australia's paid parental leave (PPL) scheme.
This Bill will amend the Fair Work Act 2009 to ensure that the parents of stillborn babies can access the same quantum of employer-paid PPL that they would be entitled to regardless of whether the pregnancy ended in stillbirth or with a live birth.
At the core of this Bill is the understanding that parents of stillborn children are parents too.
They have responsibilities to their child, including making decisions surrounding autopsy, attending follow-up medicals appointments, selecting gravesites or cremation, and arranging funerals and services. Parents also need time to recover after birth, both physically - the same as any other parent - but also psychologically, given the extreme trauma and grief of stillbirth.
It is worth repeating that, in Australia, 6 babies are lost to stillbirth each day - or approximately 2,200 babies every year. The rate of death from stillbirth is higher than the national road toll, and stillbirth is the number one cause of death for infants in our country.
The Commonwealth's Parental Leave Pay already recognises these facts and provides for parents of a stillborn baby to receive the same government-paid PPL entitlements as the parents of a baby born live under the scheme.
However, a key issued raised by witnesses to the Senate Select Committee on Stillbirth Research and Education was the inequality of employer-paid PPL schemes for parents whose baby is born still.
In addition to the government-paid aspect of the PPL scheme, employers can also elect to provide additional employer-paid entitlements, such as topping-up the government-paid entitlement to reflect their normal wages, allowing annual leave or long-service leave to be accessed outside of the normal regulations, or continuing payment of superannuation contributions, to their employees who become parents. These entitlements are typically outlined in an employment contract, registered agreement or a workplace policy.
However, in the private sector, these contracts and agreements often do not consider the circumstances of a stillbirth. Without explicit entitlements for employees who have experienced a stillbirth in these agreements, often it is left to a manager or direct supervisor to make the significant decision as to whether or not parents of a stillborn baby are entitled to the same employer-paid entitlements as if the baby was born live.
The Committee heard evidence that the ambiguity existing in employer-paid PPL was most likely through oversight or misunderstanding of stillbirth, rather than ill-intent.
Regardless, this oversight and ambiguity can have an enormous impact on the decisions that parents make while recovering and grieving the stillbirth of a child.
In one case, a mother gave evidence to the Committee that she was forced to return to work by her manager just 11 days after her baby's stillbirth.
A report by Price Waterhouse Coopers has found that mothers who returned to work for financial reasons following a stillbirth had a productivity rate of just 26% of their normal rate after 30 days.
Given this evidence, the first recommendation of the bipartisan, unanimous report of the Committee was that:
"… the Australian government reviews and amends the Fair Work Act 2009 (Cth) and provisions relating to stillbirth in the National Employment Standards (NES) to ensure that:
- provisions for stillbirth and miscarriage are clear and consistent across all employers, and meet international best practice such as those contained in the Ausgrid Enterprise Agreement (see Attachment B); and
- legislative entitlements to paid parental leave are unambiguous in recognising and providing support for employees who have experienced stillbirth".
As such, this Bill will complement a previous Bill introduced by the Government, the Fair Work Amendment (Improving Unpaid Parental Leave for Parents of Stillborn Babies and Other Measures) Bill 2020, which improved access to unpaid parental arrangements for parents of stillborn babies, but failed to consider issues surrounding employer-paid parental leave entitlements, per the Committee's recommendation.
This Bill will guarantee that employees can access the same quantum of entitlement to employer-paid PPL regardless of whether the pregnancy ended in stillbirth or with a live birth.
For parents of stillborn babies, this Bill will explicitly preserve their entitlement to employer-paid PPL regardless of whether the entitlement is legislative or one arising under an industrial instrument.
The Bill further outlines the standard evidentiary requirements for accessing said leave, the requirements for an employee to alter or cancel their leave, in full or in part, and ensures that an employer cannot cancel paid parental leave, in full or in part, in the event of an employee experiencing a stillbirth.
In sum, this Bill will make access to employer-paid PPL entitlements equal and unambiguous for all Australian parents.
On that basis, I commend the Bill to the Senate.