Senate debates

Monday, 30 August 2021


Fair Work Amendment (Improving Paid Parental Leave for Parents of Stillborn Babies) Bill 2021; Second Reading

10:02 am

Photo of Kristina KeneallyKristina Keneally (NSW, Australian Labor Party, Deputy Leader of the Opposition in the Senate) Share this | | Hansard source

I rise to speak on the Fair Work Amendment (Improving Paid Parental Leave for Parents of Stillborn Babies) Bill 2021. At its heart this private senator's bill seeks to acknowledge a simple truth—that parents of stillborn babies are parents too. In Australia six babies are lost to stillbirth each day. That's approximately 2,200 babies every year, or roughly one in every 135 births in our country. The rate of death from stillbirth is higher than the national road toll and remains the No. 1 cause of death for infants. Sadly, it has been like this for a very long time. The rate of stillbirth has remained stubbornly high in Australia for over 20 years, and 20 years is about as long as we have been keeping track of the statistics.

Since 2018 this chamber has sought to shine a light on this particular issue. These efforts have been uniformly bipartisan and have delivered real outcomes for Australian families. In particular I reflect on the work of the Senate Select Committee on Stillbirth Research and Education, an inquiry that I believe demonstrated the very best of what we can achieve in this place. Through that inquiry the committee heard evidence, both in person and through written submissions, from hundreds of parents, advocates, medical experts and researchers about the impact of stillbirth in our community. Their testimony shaped and informed a set of recommendations designed to address the tragedy of stillbirth in this country. For the first time in our nation's history we now have a firm foundation to shape and inform our efforts to address stillbirth in Australia, to save babies' lives.

I thank my colleagues across the chamber for their support for this inquiry and other related motions that have sought to highlight the experiences of parents of babies born still and to commemorate their immeasurable losses. I particularly acknowledge the chair of that inquiry, Senator Malarndirri McCarthy; the deputy chair, Senator Jim Molan; and Senator Janet Rice and Senator Catryna Bilyk.

Now that we have these recommendations from the Senate select committee on stillbirth, it's important that we implement them. We have a long way to go in addressing the issue of stillbirth in our community and much of the committee's work remains unrealised—although I do acknowledge and appreciate the efforts of the Minister for Health and Ageing, Greg Hunt, to ensure the delivery of a national stillbirth action plan. Today, with this private senator's bill, we seek to continue the work the committee started, with the welfare of Australian families and particularly parents front of mind.

This amendment to the Fair Work Act seeks to address inequalities in our employer paid parental leave scheme. We don't often talk about stillbirth in our society. It is too traumatic; it is tragic; it is raw. We often don't talk about the experiences of parents whose child is stillborn—what it means to be the parent of a child you don't get to bring home. The unique parental responsibilities required of parents of stillborn children include making decisions about autopsies, attending follow-up medical appointments, selecting gravesites or organising cremation, and arranging funerals and other commemorative services. Parents are required to do all these things during a time of intense mourning and grief while attempting to recover both physically—the same as any other parent who gives birth—and psychologically, given the extreme trauma and grief of stillbirth. We rarely, if ever, talk about these experiences. Is it any wonder workplace paid parental leave policies haven't considered these experiences either?

The Senate select committee heard evidence from many parents about the impact of employer paid parental leave policies that do not include provisions relating to stillbirth. We heard that workplace policies are often too narrow, too rigid, too prescriptive—or, indeed, silent. We heard that these policies rarely consider the realities of being a parent of a stillborn baby or even the reality of stillbirth itself. The impact of this blind spot is immense. In one case, a mother who gave evidence to the committee was forced by her employer to return to work just 11 days after her baby was stillborn. She had given birth. She had barely recovered from the physical act of giving birth. She had not in any way completed the recovery from her grief and her trauma. Yet she was required to return to work.

The committee did not find malice or ill intent in how these policies are formulated. It is simply a consequence of our silence on stillbirth—a repercussion of our inability to discuss things that are tragic and difficult and therefore tacitly allowing gaps in the safety net that is designed to support all parents. The system is failing because of a misunderstanding of the realities of stillbirth and ambiguous workplace policies that fail to acknowledge a public health issue that impacts more than 2,000 Australian families every year. A report by PricewaterhouseCoopers found that mothers who returned to work for financial reasons following a stillbirth had a productivity rate of 26 per cent of their normal rate after 30 days. Clearly employer paid parental leave schemes that ignore stillbirth help nobody. There is a better way. We know that, because a number of major Australian companies have led by example and changed their policies to acknowledge stillbirth and to ensure that their employees are properly provided for, regardless of the circumstances of their baby's birth.

I thank those companies for their leadership on this issue and the support they extend to families in a time of immense pain and grief. This is best practice in this space, and as a parliament we should enshrine it in law in order to protect all Australian families. I note that the public paid parental leave scheme that is provided by the Commonwealth already grants paid parental leave to parents of stillborn babies. We should expect that employer paid schemes do the same.

The very first unanimous recommendation of the bipartisan Senate Select Committee on Stillbirth Research and Education 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:

      In line with this recommendation, this bill provides clarity by enshrining in law an expectation that employers will provide the same support to parents regardless of the circumstances of the birth of their child.

      So much of what we learned from the stillbirth inquiry can be distilled into this: silence is deadly. Our inability as a community to discuss stillbirth has driven tragic outcomes for too long. We have allowed stillbirth to be suffered in silence, as a personal tragedy rather than as a public health issue. It is through acknowledging this issue that we can achieve better outcomes for parents of stillborn children. This private senator's bill reflects this by shining a light on the issue of stillbirth. We can help Australians in their time of need.

      With this bill Labor seeks to bring necessary reforms to our paid parental leave scheme in line with recommendations of the bipartisan Senate Select Committee on Stillbirth Research and Education. This bill will amend the Fair Work Act 2009 to ensure parents of stillborn babies can access the same quantum of employer paid leave they would have been entitled to if the pregnancy had ended in live birth. For parents of stillborn babies, this bill would explicitly preserve their entitlements to employer paid parental leave 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, outlines the requirements for an employee to alter or cancel their leave, in full or in part, and ensures that an employer can't cancel the leave, in full or in part, in the event of the employee having a stillbirth.

      The 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 did not consider issues surrounding employer paid parental leave entitlements as recommended by the committee. This was the intent of the committee and its recommendations and we ought to address it fully.

      I am grateful to the Senate for the opportunity to speak to this bill today. Since my time began in this place, I have always found this chamber to be supportive of any effort to address stillbirth in our community. I note that we will soon commemorate International Pregnancy and Infant Loss Remembrance Day, on 15 October. It is the first time that the parliament will formally recognise this day after a motion passed in this place in February to officially and eternally honour that date in remembrance of the many, many lives lost to stillbirth and miscarriage each year. That motion was but another step in a sustained effort in this place over the last few years to recognise, understand and ultimately reduce stillbirth in our community. Like all such efforts, that motion enjoyed the broad support of this place, as all efforts to address stillbirth should.

      It was in this spirit that I wrote to the Attorney-General, Michaelia Cash, about this bill, and I thank her for agreeing to work constructively with Labor as we pursue these reforms. I will continue to work with the Attorney-General to ensure that we can secure an outcome for Australian families. I also want to acknowledge the support of industry stakeholders, including the ACTU, the Business Council of Australia and the Australian Chamber of Industry and Commerce. The broad support for this bill is heartening and it reflects the determination of the broader community to reduce the rate of stillbirth in our community and support those who experience it.

      I would also like to acknowledge and congratulate Stillbirth Foundation Australia for its efforts in the past six years to champion the cause of ensuring that parents of stillborn babies are able to access paid parental leave. One of Australia's greatest prime ministers, Paul Keating, once said:

      … the great things about Australian social democracy reflect a fundamental belief in justice … our capacity over the years to go on extending the realms of participation, opportunity and care.

      With this bill, we seek to continue that tradition here today. These reforms are just, because they reflect the reality of stillbirth for so many Australian families. They shine a light on this issue that is often ignored by society because it is too difficult or tragic to contemplate.

      I again reiterate that this legislation is a response not to nefarious practices by employers but, rather, to a lack of clarity that exists in the shadow of an issue that impacts so many but is so rarely discussed. We have an opportunity here today to remove that ambiguity. This bill will expand our circle of empathy on a subject that for too long has been considered taboo. With it, we explicitly acknowledge the role of parents with children who are stillborn, and we seek to do more to increase their participation by expanding a scheme that is designed to support parents regardless of whether their child is born still or born alive. By doing so, we increase their opportunities and their access to care and support at a time when they need it most. I thank senators for the contributions that they have made to date and that they will make on this bill. I acknowledge the work of families, parents, advocates, medical professionals, counsellors and others who work tirelessly to address stillbirth in our community, and I commend this bill to the Senate.

      10:15 am

      Photo of Hollie HughesHollie Hughes (NSW, Liberal Party) Share this | | Hansard source

      Having a baby is one of the most exciting, wonderful and scary times in anyone's life. I know how hard I had to try to fall pregnant, but that was just step 1. My mother had seven miscarriages before I was born, and one came very close to full term; I've only ever heard her referred to as Sally. It's not something my mother really spoke about, and unfortunately I don't have the opportunity to speak with her about it now. But, as you can imagine, after my mother's seven miscarriages, neither she nor I were particularly calm women during my first pregnancy.

      Because I was on fertility treatment, everything was closely monitored, so I knew I was pregnant at five weeks. But this silly old rule still exists that you don't tell anyone until 12 weeks because miscarriage is most likely to occur in those first three months. You get through those first 12 weeks, and you hold your breath at every obstetrics appointment until you hear that heartbeat. That sound—every parent knows it—you think, at the time, is the best sound in the world, and that sound is only overtaken when you hear the first laugh and giggle from your child. Those laughs cancel out every sleepless night and nappy blowout.

      My beautiful baby was born after being induced. She was quite happy where she was, and, 10 days past the due date, it was time for her to face the world. But during the induction her heartbeat started to go up and down, and there were concerns around the cord. I'd always told my obstetrician I wanted a healthy baby and I didn't care how he got them out, so we went to plan B. Millicent May Hughes then entered the world within eight minutes, with a gorgeous big cry as she was lifted over my head into her dad's arms.

      Whilst we had a beautiful baby girl at the end of this pregnancy, when we were being taken back to my room, one of the nurses said to Millie's dad that they'd moved me to a different room because the bigger room with the ensuite that I was supposed to be in had been given to another mother—a mother who was coming in to deliver her stillborn baby. As anyone who's ever had an emergency caesar knows, the painkillers coupled with the postpartum hormones can make everything a bit of a blur—let alone having this beautiful baby lying next to you in the crib, learning to feed and having skin-to-skin contact—but neither Stewart nor I have ever forgotten that moment. I think we both held our precious little girl that little bit tighter, knowing how lucky we were to have her.

      In some ways, that wasn't the worst stillbirth experience that I saw after I had Millie. As a new mother, you're invited to mothers group. Sometimes you make lifelong friends and sometimes the only thing you have in common with those women is that you're all new mums, but it's a really important experience. You learn from each other, you learn that you're not the only one doing something wrong, and it's a place where hormonal and exhausted tears are supported and usually shared. At the end of the six-week community health path, my group split into two. One decided they wanted to meet at the park and go for walks, in the middle of winter in Orange. Needless to say, that was not my group! Mine decided we would meet for lunch every week.

      As Melbourne Cup approached, I asked the mothers group to come to my place for lunch, and one of the girls asked if they could bring with them a friend who had a baby the same age as ours. When Jodie arrived and I had a cuddle with her beautiful boy, I asked her why she hadn't been in our mothers group, since her baby was the same age as ours. Was she perhaps in another group?

      Jodie told me she wasn't invited to mothers group as this wasn't her first birth. Two years earlier, Jodie had delivered a stillborn baby girl. The emotion was so raw in Jodie's voice as she spoke to me about it, and all I could feel was building rage. In what world do we exclude a woman with her second baby from mothers group after her first was stillborn? To this day, I still get so upset about it.

      We need to bring miscarriage and stillbirth out of the closet and into the light. Every woman who has fallen pregnant has felt the butterfly flutters, the gymnastic rolling around and the odd the serious kick. The loss they experience at any stage of the pregnancy is raw and real, as is the grief. I know that this is something that Senator Keneally understands. I have supported her motions in this area to recognise the tragedy of stillbirth and the awful situation those families face. Sometimes in life there are things you simply can't understand until you experience it. I know what our family's gone through in having a special needs child. People can empathise, but they can never fully understand. So, whilst my heart breaks for all the mothers and fathers who have experienced this grief, I can only stand here in empathy and, quite frankly, in awe. They pick themselves up, and many who are lucky to then have a rainbow baby go on with their family life. As a mum who was lucky to deliver three beautiful and healthy babies, I can say I'm not sure I'd be as strong as them.

      Thank you, Senator Keneally, for advocating in this space and being so open about your gorgeous girl Caroline and the contribution she's made to your family. I am pleased that we've taken a step to ensure that there is a clear and consistent minimum standard when it comes to parental leave for parents who experience this tragic loss. These parents would be able to take paid parental leave as they planned, without having to worry about returning to work before they're ready and without facing additional bureaucratic hurdles. I look to this place to support the Fair Work Amendment (Improving Paid Parental Leave for Parents of Stillborn Babies) Bill 2021 currently before us that enables an employee to take compassionate leave if they or their partner experience a miscarriage. We need to bring this into the open and acknowledge the loss that's felt that requires time to grieve.

      What we do as a government is legislate the minimum standard. There are over 60 organisations that we know of that provide more generous provisions to parents who experience a stillbirth: organisations such as Bunnings, HSBC, Woolworths, BPAY and Cricket Australia. We commend those organisations and really would encourage all employers to understand the emotions and the psychological and physical impacts of pregnancy loss or a stillbirth and provide extra support, as best they can, to the employees in need. I promise them that loyalty to their staff at that horrific time in their life will be repaid tenfold.

      Again, I want to commend Senator Keneally for her advocacy and for working with Minister Cash in close consideration of this bill. By talking about things such as miscarriage and stillbirth, we bring them out of the shadows and we remove any stigma around the issues—stigma that should never have existed in the first place. By talking openly and by government legislating a minimum standard, organisations and employers will be encouraged to think more about this issue: how it affects their staff and how they can best support them through such a tragic event.

      10:24 am

      Photo of Larissa WatersLarissa Waters (Queensland, Australian Greens) Share this | | Hansard source

      ( [by video link] I rise to speak on the Fair Work Amendment (Improving Paid Parental Leave for Parents of Stillborn Babies) Bill 2021. This bill would ensure employer related paid parental leave is available to parents affected by stillbirth. Stillbirth, miscarriage and infertility are issues that affect so many families and, sadly, are issues which continue to be considered taboo. The silence around the issue can compound the grief, trauma and isolation experienced by many families.

      I will only speak briefly on this bill today to make space for those in the chamber who have personal experience with the profound loss of a stillborn baby; my heart goes out to all of them. I'd like to acknowledge all of the senators in this chamber who have experienced stillbirth. In particular, I thank Senator Keneally and others for continuing to talk about stillbirth as a public health issue, a mental health issue and a social issue.

      I'd also like to acknowledge the work done by my colleague Senator Janet Rice on the Senate Select Committee on Stillbirth Research and Education. A few years ago, that select committee recommended that employment laws be reviewed to ensure that provisions for stillbirth and miscarriage are clear and consistent across employers and meet international best practice and that legislative entitlements to paid parental leave are unambiguous in recognising and providing support for employees who have experienced stillbirth.

      The profound grief caused by the loss of a child can be as all-consuming for parents as the experience of having a child born healthy. For many, returning to work when they expected to be on parental leave can exacerbate their trauma. Many grieving parents are unable to return to work and bear the costs of extended periods of unpaid leave, part-time work or unemployment on top of medical costs and counselling expenses.

      Stillbirth is not about numbers and it's not about dollars, but a study by PwC for the Stillbirth Foundation demonstrates the impact of failing to provide parents affected by stillbirth with adequate leave to support their recovery. That study estimated that the cost of absenteeism by parents and family members, presenteeism—a loss of focus, enthusiasm or inclusion while at work—and loss of productivity from bereaved parents leaving the workforce was $368 million.

      The government's Paid Parental Leave scheme recognises the need for support and provides parents who have experienced stillbirth with the same PPL entitlements that they would have been entitled to had the unthinkable not happened. It's time for employer-paid parental leave schemes to do exactly the same.

      In addition to recommendations around parental leave, the select committee made a suite of suggestions to improve support for families who have experienced stillbirth, including improved data collection to support research, facilitating stillbirth autopsies and investigations, national guidelines for hospitals and health centres on best practice, support for bereaved families, developing education and awareness-raising materials and a national action plan to reduce stillbirth. Implementation of the National Stillbirth Action and Implementation Plan will go a long way to addressing those objectives.

      It's critical that society start to talk more openly about stillbirth, miscarriage and infertility and provide support for those affected, including partners and family members. The Greens support an expedited rollout of the National Stillbirth Action and Implementation Plan.

      We also support continuity-of-care models, particularly the Birthing on Country and Birthing in Our Community initiatives, which have been shown to reduce stillbirths and infant mortality in First Nations communities.

      Last year the Greens championed the removal of the unfair discrepancy in eligibility for stillbirth payments, and we welcome the government's decision to finally adopt that reform.

      We support giving leave entitlements to workers affected by miscarriage. We support this private member's bill today to remove barriers for parents who experience stillbirth from accessing employer-paid parental leave entitlements.

      Whilst we're talking about parental leave, I might just add—slightly off topic—for those families who are lucky enough to have a baby born healthy, we do need to do more to align paid parental leave with international expectations. We need to remove the discriminatory impacts on families where the birth parent is the higher income earner, because it's 2021; it happens these days. We need to support families to share leave more equitably. Parents should be entitled to a minimum of 26 weeks of paid leave, and more action should be taken to encourage and facilitate fathers to share the leave and the care load.

      With those brief comments, out of respect for those in the chamber who have more experience with this issue than I do, I commend this bill to the chamber. I thank all senators for their work on this very important topic.

      10:29 am

      Photo of David VanDavid Van (Victoria, Liberal Party) Share this | | Hansard source

      I rise to speak on the Fair Work Amendment (Improving Paid Parental Leave for Parents of Stillborn Babies) Bill 2021, which has been placed in front of us today by Senator Keneally. I would like to start by commending Senator Keneally on her advocacy for this issue. Thank you very much, Senator.

      When I read the Senate Select Committee on Stillbirth Research and Education's final report, the words that really hit me were that this was 'a hidden tragedy', because I don't think the topic of stillbirths can be described in any other way. This is not something that you hear talked about in the news, in the media or around the dinner table with friends and family, yet it affects thousands of Australians every year. In 2018, 2,789 babies died in the perinatal period; of those, three-quarters were stillbirths. Despite the numerous medical and technological advancements that we have achieved in recent times, the rate of stillbirths has remained the same for the last two decades. This truly is a hidden tragedy that is occurring within our country and one that is not widely discussed. As such, parents and families often suffer through this process alone. I know we did. Open and public discussion about the topic of stillbirths is vitally important. The more awareness we raise around this, the better society can support and assist those who are afflicted with the pain of going through a stillbirth pregnancy. The loss of a child of any age is unthinkable and often goes unspoken; however, it is important that we speak about it.

      The Senate Select Committee on Stillbirth Research and Education's final report outlines how many of our societal attitudes towards death underpin the silence and stigma surrounding stillbirth. Therefore it is important—for those who have suffered from a stillbirth, as well as those who may be afflicted by this in the future—that we talk about this. Open and honest discussions with family and friends can and will raise awareness around this issue and can only help those who suffer in silence. In our roles as senators for our various constituencies, if we do not speak about such important issues then they will remain hidden and unaddressed.

      To go through such a tragedy at any stage of your life would be horrible, but to feel as though you're going through it alone would make it that much worse. This is why the National Stillbirth Action and Implementation Plan is so important. Released in December last year, the plan provides a range of actions to reduce stillbirth in Australia. While this is a crucial first step, stillbirths will not stop happening overnight. The plan has a primary goal of reducing stillbirths by 20 per cent over five years. To achieve this, the plan aims to address five priority areas:

                With this plan in place, I'm hopeful that we can make some real progress in reducing the number of stillbirths occurring in Australia. This will improve the lives of thousands of Australians and is a worthy goal to pursue. It is important that we support Australian families, especially when they're doing it tough and going through all the emotions that come from suffering a stillbirth. The Morrison government is committed to this end.

                This government understands that, in starting or raising a family, people are presented with a unique set of challenges and that many of these challenges impose on an individual's ability to participate effectively in the workforce. This is why the government has committed to supporting Australians in the workforce through pregnancy and parenthood and to improving workplace settings for employee parents and those who are expecting. Action taken by the government through the Fair Work Amendment (Improving Unpaid Parental Leave for Parents of Stillborn Babies and Other Measures) Act 2020 ensured that all provisions related to unpaid parental leave in the Fair Work Act provide a clear and consistent minimum standard, with improved support for those employees who have experienced stillbirth, to recognise the grief and emotional trauma of such circumstances. While recognising that most employers are obviously supportive of their employees, particularly when their employees have suffered such a tragic loss, this act ensures that the entitlement to unpaid parental leave for a parent whose baby is stillborn is precisely as it would have been if their baby had lived. The legislation also ensures that parents of stillborn babies or children who died during the first 24 months of life can take compassionate leave while on unpaid parental leave. It also reduces the rigidity of parental leave for parents of babies born prematurely and newborns who require hospitalisation immediately following birth, providing an opportunity to effectively put their leave on hold and return to work until the baby is ready to go home.

                In recognition of the suffering caused by stillbirths, the Morrison government has also amended the stillborn baby payment to provide increased financial support to families who lose a child through stillbirth or within the first year after birth. Since the beginning of 2021, a single higher payment of $3,601.81 has aligned the assistance available to families who experience a stillbirth, regardless of whether it's their first or a subsequent stillbirth, with the assistance available to families who lose a child after birth. This support will go a long way to supporting those who suffer from a stillbirth.

                Currently before the Senate is the Sex Discrimination and Fair Work (Respect at Work) Amendment Bill 2021. This is also an important bit of legislation. It will enable an employee to take compassionate leave if the employee or their spouse or de facto partner has a miscarriage. It is important that this bill be passed. Like stillbirths, the topic of miscarriages is often not widely discussed, and therefore parents and families often suffer in silence. This legislation, however, provides further evidence of the Morrison government's wide-ranging commitment to addressing workforce issues, regardless of whether these are front-page news or hidden tragedies such as stillbirths and miscarriages. We want to ensure that everyone, regardless of the situation, has access to the leave requirements they need to properly heal physically, emotionally and psychologically.

                While the government legislates minimum conditions for compassionate leave, many employers offer more than this minimum. In fact, there are 60 large organisations in Australia, such as HSBC, Bunnings, Woolworths, and many others, who provide specific leave entitlements through their workplace policies and enterprise agreements, in addition to the minimum standards in the Fair Work Act, to employees who suffer a stillbirth. It is heartening to know that there are many employers out there who understand the emotional, psychological and physical impacts of pregnancy loss and provide a level of support to their employees beyond what is required. This is why advocacy around this issue is so important. The more awareness is spread, the more compassion we are likely to see. Careful consideration of these important issues is necessary. While ensuring that these issues are adequately addressed, it is important to also consider whether legislative change is the best vehicle to promote cooperation between employers and employees. As I've mentioned, there are a number of companies who are going above and beyond to support employees through the trauma of a stillbirth. This is something that, as a government, we want to encourage.

                Currently, the Fair Work Act does not mandate conditions beyond minimums. This is a longstanding principle that has been in place since the establishment of the Fair Work Act. As it stands, the Fair Work Act promotes enterprise bargaining that is critical to productivity growth and cooperative workplaces. In this context, regulating employer paid parental leave would be a significant departure from this longstanding principle and would have the capacity to damage the spirit of cooperation between employers and employees and their willingness to bargain. We want employers and employees to work together on issues such as this to come to agreements that are mutually beneficial for all parties involved.

                The Morrison government is currently considering non-legislative mechanisms which may be appropriate to effect change at the workplace level. This could include educational materials and the championing of best practice to prompt employers to think beyond their obligations under the minimum standards and review their parental leave policies to provide more support to parents of stillborn babies. As discussed earlier, this is a hidden tragedy occurring within our society. Many employers may not be aware of the number of Australians that this affects and therefore have not acted to address this issue within their businesses.

                In concluding, I would again like to commend Senator Keneally for her work on this. As with the Senate Select Committee on Stillbirth Research and Education, this is a bipartisan issue that the government wishes to remain bipartisan on. Helping those who have been dealt such a difficult hand goes beyond politics, and it should remain this way into the future. I commend the bill to the Senate.

                10:40 am

                Photo of Marielle SmithMarielle Smith (SA, Australian Labor Party) Share this | | Hansard source

                [by video link] The Fair Work Amendment (Improving Paid Parental Leave for Parents of Stillborn Babies) Bill 2021 represents an absolutely remarkable achievement by senators in this place, and it would not be possible without the dedicated work of Senator Keneally, who introduced it, and the hardworking members of the Select Committee on Stillbirth Research and Education—Senators McCarthy, Molan, Bilyk and Rice. I want to acknowledge what is clearly very personal, raw and present grief for those senators who have contributed to the debate so far. It's an incredible thing to channel personal pain and tragedy, to take it out of the shadows, out of the place of personal and family grief, and to use it to drive policy change. It is remarkable, and I commend and acknowledge those senators in this place who have done that, as well as those here who may have felt or experienced it but aren't yet ready to speak and share it.

                For too long those experiencing the pain of stillbirth and the grief which comes from it have done so alone. This bill is part of broader efforts in this place and in the community to take stillbirth out of the shadows, out of a world of personal pain and grief, and bring it into the open to talk about it and share in it so that we can right the policy wrongs and the policy failures that have for too long compounded this grief and pain.

                The measures in this bill will provide support to families, and especially mothers, during what are undoubtedly the most difficult moments, hours, days and months of their lives. It corrects a historical wrong which prevented parents who experienced a stillbirth from accessing paid parental leave. It means parents will have the space and time to grieve without being forced to return to work. According to stillbirth awareness charity Still Aware, six babies in Australia are born still every day, and the rate of death from stillbirth among infants is higher than the national road toll—indeed, it is the No. 1 cause of death for infants. The parents of babies that are stillborn do not wake up the next day no longer parents or without parental responsibility; they deal with profound grief, unimaginable for many of us. They go through the traumatic experience of medical procedures, autopsies and funerals, and the physical and psychological challenges which will prevent them from working in any productive capacity in the weeks and months after their baby's death.

                This committee's work was remarkable, and the committee heard significant numbers of stories and horrific accounts of mothers required to return to work in incredibly short time frames—in one case 11 days after giving birth to a stillborn baby. From this committee's work and these personal stories and tragedies comes important legislative reform. I acknowledge those organisations and businesses, and the trade union movement, who have already led in this area to provide support for families, mothers and parents. They have recognised not only that this is the right thing to do morally but that it makes economic sense to support parents going through this. However, the ultimate responsibility to ensure these measures reach the parents who need them lies with this parliament, with legislative reform and with bipartisan efforts to do better and to fix these historical wrongs and policy failures which have compounded grief.

                Again, I thank the senators whose work has brought this bill before us for bravely sharing their grief with the parliament and with the nation, and for channelling that grief to make a difference to the lives of many mothers, fathers and families who were struggling in silence and in the shadows. Your voices, your advocacy and your work mean they will be a little bit less alone.

                10:44 am

                Photo of Malarndirri McCarthyMalarndirri McCarthy (NT, Australian Labor Party) Share this | | Hansard source

                [by video link] I support the Fair Work Amendment (Improving Paid Parental Leave for Parents of Stillborn Babies) Bill 2021. On 4 December 2018 I tabled a report as chair of the Select Committee on Stillbirth Research and Education. I carried that report into this place on a coolamon, symbolic of the way First Nations people have carried their cherished babies. I said at the time that this committee and the recommendations contained in the report would make a change and would make a difference. I'm incredibly proud of the work of this committee and the change that it has driven so far—change to make a difference in the lives of parents and in the lives of babies. But, importantly, change must happen to honour the babies that have been lost, to honour the spirits of the children yet to come and to honour and recognise the stories that families shared on this committee's journey, the stories of loss and grief and ongoing trauma.

                This legislation is part of that journey, part of the ongoing work of the committee to acknowledge and honour all of those who participated in it. I am proud of the work that has carried on since the report was tabled in 2018, but there is still an enormous amount of work to do to tackle the fiscal, social and emotional toll of stillbirth in our country. In Australia six 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 a No. 1 cause of death for infants. Stillbirths directly and indirectly cost the economy $681 million between 2016 and 2020.

                Photo of Sue LinesSue Lines (WA, Deputy-President) Share this | | Hansard source

                Senator McCarthy, we seem to have lost the audio. We might have to go to Senator Bilyk.

                10:47 am

                Photo of Catryna BilykCatryna Bilyk (Tasmania, Australian Labor Party) Share this | | Hansard source

                In rising to speak on the Fair Work Amendment (Improving Paid Parental Leave for Parents of Stillborn Babies) Bill 2021, I want to begin by thanking the parents who told their brave stories at the inquiry. It's been a journey for everybody. Some parents had very, very recently had their little person born still, and for them to come forward and tell their brave stories was of great significance and obviously helped us to write our report. I also want to thank Kristina Keneally for bringing up this topic. Although I am the parent of a stillborn child, it's not a topic that I thought would get any resonance during the time I've been in the Senate. So I'm really grateful to Senator Keneally for bringing this forward, which enabled us to carry out the committee work that we did. I also thank the other members of the Senate committee. I thank each and every one of you for the respect, care and dignity you gave to parents of stillborn babies.

                When my first child Timothy was born still back in 1983, the hospital staff suggested they would take him away immediately. I refused, and I'm really glad I did. We held on to our baby, we bathed him, we dressed him and we said goodbye to him and then we could let him go. I can't say we were ready, but we let him go at a time that was of our calling, not of the hospital's calling. Since I gave birth to our beautiful boy Timothy, a much greater understanding has developed of the importance of parents having time with their stillborn babies as part of the grieving process. But, while some aspects of our approach to supporting parents of stillborn babies have improved substantially, there are others, I'm afraid to say, that are still stuck firmly in the Dark Ages.

                One approach to paid parental leave seems to follow an attitude that, if you don't have a live baby, you're not a parent. Well, take it from me, we are. Parents of stillborn babies are still parents and deserve to be treated as such. A mother who experiences stillbirth needs time to recover from the birth, not just mentally but physically. All parents need time to be with their babies, to hold them and to be able to say a proper goodbye. They need time to make funeral arrangements and autopsy arrangements should they choose to have an autopsy. They need time to seek support and comfort from family, friends, loved ones and mental health professionals. They need time to provide support to their own family and their stillborn baby's living siblings, if they have them. Most of all, they need time to grieve. For most parents, the grief of stillbirth will never leave them, but, given the right amount of time and support, a parent can at least come to terms with their grief and not have it dominate their life. It's often misunderstood how traumatic a stillbirth is. It can be just as distressing for a parent as the death of an infant or another child. So the amount of time that is needed to grieve is substantial.

                The Fair Work Amendment (Improving Paid Parental Leave for Parents of Stillborn Babies) Bill 2021 addresses an issue that arose from the Senate inquiry into stillbirth, which concluded almost three years ago. The Senate inquiry's report noted that, according to the International Labour Organization, compulsory leave of six weeks should be provided to all women in the event of a stillborn child as a health related measure. But, currently, only 12 of 170 countries with maternity benefit policies include any specific provision for stillbirth related leave. Unfortunately, a number of employers have unclear policies on parental leave for parents who have experienced stillbirth, and often decisions on when an employee returns are made by middle managers, usually with little understanding of the impact of stillbirth.

                The first recommendation of the Senate inquiry's report was to ensure legislative entitlements for employees who experienced stillbirth. Despite the government agreeing to this recommendation, they extended only unpaid leave for employees who have experienced stillbirth. While any extension of leave provision for parents of stillborn babies is welcome, extending only unpaid leave does not go nearly far enough. It does, thankfully, mean that employees can have some peace of mind knowing that it will not cost them their job if they refuse to return to work too soon. But, under the current arrangements, financial pressure will compel many workers to return to work before they are ready. For employees who return to work too soon following a stillbirth, it can't help but delay their emotional recovery. The damage this could do to an employee's emotional wellbeing will ultimately cost that workplace, too.

                A study by PricewaterhouseCoopers released in 2016 estimated that the direct and indirect costs of stillbirth would total $681.4 million in the five-year period from 2016 to 2020. Of that cost, $278.4 million, or just over 40 per cent, would be in absenteeism and presenteeism. In cases where a bereaved mother returns to work for financial reasons following a stillbirth, the PwC study found that she maintains 26 per cent of the normal workplace productivity 30 days after her return. I think it's worth reflecting on this statistic. It makes you think about what kind of emotional trauma someone must be going through if they can only produce a quarter of their normal output. Is having to work through this trauma delaying the mother's ability to recover? Yes, it is. What flow-on effect is that having on the productivity and the morale of work colleagues? But, if parents don't return to work, the alternative may be to add more financial stress on top of funeral expenses and possibly also hospital expenses. Mr Troy Wright from the Community and Public Sector Union's New South Wales branch highlighted to the Senate inquiry the disparity between leave entitlements and the return to work. He said:

                The Fair Work Act makes provision for two days of compassionate leave, which parents can access in the event of a stillbirth. Employment agreements may provide further leave entitlements not specifically related to stillbirth, but often these are not enough for parents to recover.

                A submission to the inquiry from parents Tim and Leanne Smith explained how long recovery can take. Leanne wrote:

                I was not a functioning member of society or the workforce for at least 6 months. I believe that people need to be given sufficient time away from the workforce in the first instance to deal with the emotional and physical turmoil.

                Another submission, from Annette Kacela and Christopher Lobo, highlighted the vast differences between workplaces in their approach to supporting employees. Annette wrote:

                Following the stillbirth of our son Thomas, neither Christopher nor I were capable of immediately returning to work due to the sheer devastation, grief and crippling mental effects. We have since returned to our respective employers to different departments. Christopher's employer granted him paid leave for 2 months who was exceptionally supportive of the circumstances and even contacted him on multiple occasions to ensure his and our family's wellbeing. My employer dealt with Thomas's passing in stark contrast, I was on leave for four months where I was required to use all of my personal and annual leave entitlements which I had been accumulating in preparation for Thomas live birth, the remainder of the time was un-paid.

                …   …   …

                The non-supportive work culture demonstrated by my employer compounded the situation we were already in. I was also requested to complete my 'on-call' shifts over the Christmas period that I had to decline, this gesture clearly demonstrated the lack of awareness …

                Among the parents giving evidence to the inquiry, the shortest period of time given to them before they were required to return to work was 11 days. After 11 days this poor woman had to return to work. I can only imagine what sort of trauma that caused.

                I am pleased to find out that a number of employers have taken it upon themselves to make specific provisions of paid leave entitlements for stillbirth. There's a list that the Stillbirth Foundation Australia maintains, and so far there are 51 businesses on the list, covering close to 800,000 employees. I'd love to be able to name them all in this speech and thank them individually, but I simply can't in the time I have.

                I know there is a time limit for this speech, and I know that Senator McCarthy is back online and would like to continue her speech. As she is the chair of the committee, I think it's only fair that I give the rest of the time to Senator McCarthy. I just want to say this: I commend Senator McCarthy—so much—for her very capable chairing of the committee, because, as I said earlier, it was a very sensitive and, at times, a very emotional inquiry. It's a tragedy that is so shocking. A stillbirth is so painful that you never fully recover from it, even several decades later. Last night, when I was thinking about this speech, I was crying. I don't say that to garner support from people; I say it so that people understand that, 38 years later, that grief is still real. Yes, my life has gone on. Yes, we've managed to go on and have other children. Not everybody is that lucky, of course. I will say this: if there's been something positive that's come out of our experience, it's our appreciation for and understanding of the deep, profound grief that is still confronting so many families today—six families a day in Australia—and what we need to do to help them through it. It's a shared experience that I believe has brought me, Senator Keneally, Senator McCarthy and other colleagues closer together. I would also like to quickly acknowledge and thank the shadow minister for industrial relations, Mr Tony Burke, for his work on this bill and for his advocacy for stillbirth leave more generally.

                I've spoken at length about the impact of stillbirths on parents, because that's what this bill addresses, but our colleague Chris Bowen's mother suffered a stillbirth and that's an important reminder to people. It's wonderful to have so many strong advocates for action on stillbirth in both the House and the Senate. We're starting to break that silence. We've made significant progress on the issue over the past few years, and I hope that with this bill we can make even more. I commend the bill to the Senate.

                Photo of Malarndirri McCarthyMalarndirri McCarthy (NT, Australian Labor Party) Share this | | Hansard source

                [by video link] by leave—A key issue raised by witnesses and submitters in relation to employment matters concerned leave entitlements for parents who experienced a stillbirth. We heard evidence from women who had been made redundant while recovering from a stillbirth. The first recommendation in the bipartisan report of the Senate select committee on stillbirths was to amend the Fair Work Act to ensure that legislative entitlements to paid parental leave are unambiguous in recognising and providing support for employees who have experienced stillbirth. The government agreed to this recommendation. However, in 2020 the government amended the Fair Work Act to extend unpaid parental leave to parents of stillborn babies, but this did not include paid leave. This bill will fully implement the committee's bipartisan recommendation and equalise paid parental leave entitlements for all parents.

                The Commonwealth's parental leave pay already provides parents of a stillborn baby with the same leave entitlements as parents of a baby born live. However, in the private sector, without explicit entitlements for employees who have experienced a stillbirth, often it is a manager or direct supervisor making the significant decision as to whether parents of a stillborn baby can access paid parental leave. During the Senate select committee's hearings, we heard evidence about the difficulties and inconsistencies experienced by employees in the private sector when seeking access to paid parental leave after stillbirth. Some of those stories were truly horrifying. 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. Parents of a stillborn child have to deal with the physical trauma as well as the emotional. Like any mother of a new baby, she must recover from the birth, and this includes the usual experiences for women after birth, such as lactation, hormone fluctuation, and the healing of any incisions or surgery the birth may have required.

                A report by PricewaterhouseCoopers found that mothers who returned to work for financial reasons following a stillbirth had a productivity rate of just 26 per cent of their normal rate after 30 days. This was supported by evidence given to the Senate inquiry, such as that from one mother, who told us:

                ...I now find myself mentally unprepared to re-join the workforce in the immediate future due to a lack of drive and mental capacity to be able to fulfil work obligations. Re-joining the workforce too soon may result [in] a phenomenon known as presenteeism, where an employee is physically present, but mentally absent. Further, the prolonged period of remaining at home without an active income will eventuate in financial burden, and potentially a strain on the relationships within the household.

                The ambiguity in existing company parental leave policies is most likely through oversight or misunderstanding of stillbirth rather than an ill intent, but there is no misunderstanding the traumatic and long-term impacts that a forced return to work after such a tragedy can have on a family. This bill will fully implement the committee's bipartisan recommendations and equalise paid parental leave entitlements for all parents.

                In 2018, Stillbirth Foundation Australia established a registry of private sector employers that provide specific paid leave provisions in their employee agreements for parents of stillborn babies. The registry now includes 51 businesses, covering nearly 800,000 employees, including Bunnings, Woolworths, Cricket Australia, Optus, Wesfarmers, Telstra, PwC and Origin Energy. I acknowledge these companies and the many more that have set up or are looking to establish these paid leave provisions, but the entitlement can still vary widely from company to company. This legislation will ensure that employees can access the same entitlement to employee paid parental leave regardless of whether the pregnancy ended in a stillbirth or with a live birth and regardless of whether the entitlement is legislative or one arising under an industrial instrument. It makes economic sense for a company to help parents recover from their baby's birth and death. The move to introduce PPL for the parents of stillborn babies would not cost companies anything additional, given that they have already made provision for paid parental leave for applicants.

                According to the Centre of Research Excellence in Stillbirth, the economic impact of stillbirth is significant and far reaching and extends further than just a direct cost to the healthcare sector. One important area in which major employer groups might see benefits from targeted stillbirth research is in the impact of pregnancy loss on women and their families in terms of time off work, altered work performance and other employment-related impacts. Improving bereavement care and recovery after stillbirth has potential beneficial spin-offs for employers and the broader economy, and this could encourage investment from the corporate sector.

                As I said, the work of the Senate Select Committee on Stillbirth Research and Education continues to make a very real difference. Our report called for a national stillbirth action plan to reduce the rate of stillbirth, and I was pleased to see the government take up our recommendation and commit funding towards a 10-year national stillbirth action and implementation plan in December 2020.

                I'd also like to note the development of the Safer Baby Bundle. This evidence based package aims to reduce risk factors for stillbirth and improve clinical management of pregnant women who may be at increased risk of stillbirth. The Safer Baby Bundle is currently being implemented in New South Wales, Queensland and Victoria and will be extended to all states and territories. It's jointly funded through a National Health and Medical Research Council partnership project and the Medical Research Future Fund. The evidence based components of the Safer Baby Bundle are: smoking cessation support, improving awareness and management of women with decreased foetal movements, improving detection and management of impaired foetal growth, provision of maternal safe sleeping advice and improving decision-making around timing of birth for women with risk factors.

                The COVID-19 pandemic has resulted in widescale changes in the way antenatal care is provided and has resulted in some delays in implementing the SBB. Despite these challenges, there are currently 82 maternity services involved in varying stages of implementation across Queensland, New South Wales and Victoria, accounting for approximately half of all births in these states. I'm informed that all other jurisdictions are planning to implement the SBB over the coming year, which is very welcome news.

                The Senate Select Committee on Stillbirth Research and Education's report examined the risk factors, which related not only to individual maternal health factors but also to issues such as geographical location and race. Around 33 per cent of all stillbirths in Australia happen to women who live in regional and remote areas of our country. According to the Australian Institute of Health and Welfare data, the further women are from a major city, the higher the rate of stillbirth, and the rate for First Nations women is double that. There are higher stillbirth rates amongst culturally and linguistically diverse communities in Australia, so our women from non-English-speaking backgrounds suffer a great deal in silence.

                There is a clear need to improve the cultural protocols around dealing with families who have suffered stillbirth The committee heard very disturbing evidence about six stillborn babies of Indigenous descent who remained in a morgue at the Katherine hospital for a number of years, six years in some cases. Evidence was presented in relation to the difficulty of contacting families who lived in very remote communities and the lack of resources available for locating and working with bereaved families. It was noted that there may also be financial issues. Since the report was handed down, I have heard of similar situations with babies in morgues long term in other locations around Australia.

                While I'm heartened to see action on so many fronts in terms of stillbirth prevention, the fates of these babies still disturbs me deeply. Every preventable stillbirth is a tragic outcome of pregnancy. Stillbirths still affect more than 2,000 Australian families each year. For too long there has been a culture of silence around stillbirth, regarded as a hidden tragedy with personal, social and financial consequences. I am proud that the work of the Senate select committee has gone a long way to breaking that silence. There have been significant commitments made to reducing the rates of stillbirth and the impact it has on our families and the wider Australian community.

                I believe the Senate Select Committee on Stillbirth Research and Education demonstrated how this parliament can work in a collegiate and bipartisan manner to drive positive change. In the words of Senator Jim Molan, one of my colleagues on the Senate committee, on the occasion of the tabling of the report, 'This is how parliament should work.' This was endorsed at the time by committee member Senator Rice, who said, 'It is truly representative of the Senate working at its best.'

                This legislation encompasses the very first recommendation of the select committee and corrects the oversight in the government's recent legislation introducing unpaid parental leave for the parents of stillborn babies. I urge senators to support Senator Keneally, Senator Bilyk and me in the work that still needs to be done here to continue the work of the committee as a whole and support this bill introducing much needed paid parental leave for the parents of stillborn babies. They have suffered enough, and worrying about their next pay packet should not play a part in their grief.

                I seek leave to continue my remarks later.

                Leave granted; debate adjourned.