Government to give parents of stillborn babies more leave, and allow all parents to use unpaid parental leave flexibly

The federal government is moving ahead with plans to give parents of stillborn babies access to the same unpaid parental leave entitlements as other families.

On Thursday, Attorney-General Christian Porter introduced legislation into parliament that will give parents who experience a stillbirth or infant death a guaranteed 12 months of unpaid parental leave.

Under current arrangements, parents who experience a stillbirth or infant death are only given access to six weeks of guaranteed unpaid leave, although some organisations choose to offer additional leave. 

The Fair Work Amendment (Improving Unpaid Parental Leave for Parents of Stillborn Babies and Other Measures) Bill 2020 is designed to give these parents access to the same amount of leave that parents of healthy babies are entitled to.

In a statement on Thursday, Porter said more than 2,000 Australian families experience a stillbirth each year, and many others lose their child soon after birth because of medical complications. 

“This change to unpaid leave entitlements will give these parents the time and space they need to grieve the loss of their baby, without having to worry about returning to work before they’re ready to do so,” he said. 

The legislation will also give more flexibility to parents of premature babies, or babies that require immediate hospitalisation after birth, by allowing them to go back to work while their child is in hospital, if they choose to, and then recommence unpaid parental leave when their child comes home. 

“Parents have told us that not being able to pause their leave while their child is in hospital meant that they had little or no leave left once their baby was ready to come home,” said Porter. 

The changes proposed by the government will make sure employers are not able to cancel a parent’s already scheduled unpaid parental leave if their child dies in the first 24 months of their life, and clarify arrangements for compassionate leave in relation to stillborn babies or babies who die while a parent is on parental leave. 

“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,” Porter said while speaking in parliament. 

Up to 30 days unpaid parental leave to be used ‘flexibly’

Additionally, the proposed laws contain extra flexibility provisions that will allow all parents to vary when they use some of their unpaid leave. 

Currently, parents who choose to take unpaid parental leave are generally required to do so in one continuous period, which means they forfeit any unused leave if they return to work before 12 months is up. 

The changes proposed by the government would allow parents to use up to 30 days of their 12-months’ leave flexibly, either as single days, groups of days, or a 30-day block, within two years from the birth or adoption of their child. 

Porter said on Thursday a corresponding change to the government’s paid parental leave scheme means eligible parents would be able to claim flexible parental leave payments from Services Australia for those 30 days. 

He said the change is designed to reduce 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.”

Porter said current rules “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”, as well as “deter[ing] men from taking leave to care for their newborns as they must stop working completely while they are on unpaid parental leave”. 

Employees would be required to give their employer appropriate notice if they intend to use some of their unpaid parental leave flexibly, said Porter, to “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 legislation, which was tabled in parliament on Thursday afternoon, is in response to recommendations made by a Senate committee in 2018, which looked at the need for greater education and support in relation to stillbirths. 

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