Chapter 4: Leave entitlements

The Review received submissions from individuals and families describing how the Act's current provisions have impacted their parental leave and family planning. While many people had positive experiences in taking maternity leave under the Act, others experienced difficulties because of leave not being available, being insufficient in length, or involving strict rules around how it may be taken.

This chapter outlines feedback the Review received on leave entitlements under the Act, and provides recommendations on how the Act may be revised to more effectively meet the needs of families in the Commonwealth public sector today.

As detailed in Chapter 2, the Act provides 52 weeks' leave to employees who have become pregnant, the first 12 weeks of which is with pay.[92] It does not provide any leave for fathers, partners, or any other type of parent or carer. To supplement the Act, agencies provide for additional leave - paid and unpaid - in individual enterprise agreements, with entitlements varying across the APS. The average additional paid leave provided by agencies is 4.9 weeks for birth mothers (16.9 weeks paid leave in total), and 3.2 weeks paid leave for partners[93].

The majority of submissions to the Review noted that the current quantum of paid leave is no longer competitive with the private sector or other public sector employers across Australia. As discussed in Chapter 3, the length of paid leave available at a number of other public sector employers and large private sector employers is higher than is available under the Act, especially for non-birth parents. For the APS to remain competitive as an employer of choice, the amount of paid leave provided to employees who become parents, needs to increase.

"We are at significant risk of losing talent early in staff careers due to choices about maternity and paternity leave, because of the competitiveness of the policies in the private sector, compared to the Government."

- Employee network submission[94]

Pregnant employees

To protect the health of the pregnant employee and their unborn child, the Act requires maternity leave to commence six weeks before the expected date of birth and continue until six weeks after the actual date of birth.[95] The employee may work within the six weeks before their expected due date only if they provide a medical certificate that certifies their fitness for duty.[96]

Submissions to the Review observed that pregnant employees will often strive to continue to work during this period (with a medical certificate), in order to preserve sufficient paid leave for after their child is born. While many employees choose to work closer to the date of birth where they are able, feedback indicates that the current structure of leave entitlements may pressure pregnant employees to risk their health, and potentially that of their baby, so as to delay the Act's 12 weeks' paid leave until after the child is born. Submissions also reflected the view that the decision on when to stop working should be made by the pregnant employee and their medical practitioner, and not as a way to manage an insufficiency of paid maternity leave.

A number of submissions made the point that while access to equal parental leave entitlements for both parents is desirable, the pregnant employee's health and recovery from birth must be factored into the length of paid leave provided. In recognition of the need for pregnant employees to manage their health and that of their child before and after the birth, the Review considers a separate period of paid leave for pregnant employees is appropriate.

Introducing a period of paid Pregnancy Leave from six weeks before the expected date of delivery would protect the health of employees in the late stages of pregnancy, and provide the employee with choice in managing this period without the flow on effect of reducing the paid leave available when their child is born. In line with medical evidence provisions in the Fair Work Act, should a pregnant employee choose to remain at work within the six week period, and the employer is concerned they are unfit to continue working, it is proposed the employer may request a medical certificate from a medical practitioner confirming the employee is fit to continue to work.[97]

Submissions noted that it is currently unclear whether a medical certificate for this purpose could be also provided by a midwife and not just a medical practitioner, creating additional steps for mothers who primarily receive midwifery care. The Review took the view that evidence regarding the estimated date of birth, for the purpose of giving notice and planning leave dates, could include from a registered midwife. This is in keeping with the Fair Work Act's evidence requirements.[98] For certification of continued fitness in the 6 weeks before birth where requested by the employer, the Review took the view that the Fair Work Act standard of a certificate from a medical practitioner is appropriate.

The Review proposes that Pregnancy Leave would not be transferrable to the period after the child is born. This is so pregnant employees would have the option to take leave for the full period from 34 weeks' gestation and prioritise their health, as well as equal paid parental leave as partners and other parents after the birth. Following the birth, the employee would be entitled to a separate period of paid leave called Parental Leave, as discussed below.

Submissions called for greater flexibility regarding the Act's current mandated 'confinement period'. Introducing paid Pregnancy Leave will improve choice for pregnant employees in the final weeks of pregnancy, balanced with health safeguards.

Recommendation 1: Provide Pregnancy Leave

1.1   A pregnant employee is to be entitled to paid Pregnancy Leave to manage their health and the health of their unborn child.

1. Pregnancy Leave to be available from 6 weeks before the pregnant employee's expected date of birth, and finishes on the child's date of birth.
2. Evidence of the estimated date of birth can include from a registered midwife.
3. Where a pregnant employee chooses to remain at work closer to the expected date of birth, the agency may request a certificate from a medical practitioner if there are concerns regarding the employee's continued fitness to work.

1.2   Pregnancy Leave is only available during pregnancy from 34 weeks' gestation and cannot be transferred to a period after the birth of a child.

Parental leave

The Review recognises that the intent of Maternity leave in the Act is to not only protect the health of mothers and their newborn children, but also to care for the child. Submissions overwhelmingly called for all parents to have the opportunity to take parental leave and be actively involved in caring for their children.

Recovery from birth

Once an employee has given birth, there follows a period of time for recovery and caring for the newborn. As discussed previously, many mothers try to maximise the availability of paid leave under the Act by postponing their leave until after the child is born. The introduction of Pregnancy leave safeguards the health of the pregnant employee in the period leading up to the birth. It follows that another period of leave, specifically Parental Leave, should be available once the birth has taken place. The amount of leave - paid and unpaid - is discussed below.

Fathers and partners offered supporting role only

The Act does not provide any leave - paid or unpaid - for employees who are fathers or partners. These employees generally have access to supporting partner leave provided by agency enterprise agreements, with the average amount being 3.2 weeks in the APS[99]. Submissions strongly conveyed the view that this is insufficient time for the employee to bond and care for the child, care for their partner recovering from childbirth, and ensure an equitable division of caring and domestic work is established early.

Partners also described the difficulty in balancing the use of other leave entitlements, such as annual leave to attend appointments with their partner before birth, and ensuring they had adequate remaining leave for the period following the birth.

"We are failing our dads and supporting partners in the APS. If a woman has a C-section and cannot drive for six weeks, the partner has to be back at work, it's incredibly stressful for that household. The APS can and should do more to be competitive in the job market and to support its people."

- Individual submission[100]

Minimal amounts of paid leave for partners also reinforces a standard that fathers will be 'supporters' at the time of birth, rather than being substantively involved in caring for their children in the early years.[101] The current length of paid leave for fathers and partners in the APS creates barriers to these employees taking on a greater role in caring for a new child, which has flow-on effects for gender equality.

"Under the current employment agreements at many Commonwealth departments, the non-birth-giving parent would only be entitled to two weeks of paid leave. In some cases, there is not an option to even take this at half pay. Two weeks can't adequately be described as an opportunity to look after or bond with a child"

- Individual submission[102]

Partners as caregivers

Supporting partner entitlements in agency enterprise agreements are insufficient for partners to take on primary or equal caring responsibility. This limits choice for APS families in managing caregiving in a way that suits their needs.

"In a tight labour market, it will become increasingly difficult for the Commonwealth to attract non-birth parents of child-bearing age when others are offering far more generous arrangements."

- Individual submission[103]

The Review received submissions from employees who are fathers and partners who took on, or attempted to take on, the role of 'primary caregiver' for their newborn. These employees were generally unable to access parental leave equivalent to entitlements for birth mothers under the Act.

Instead, such employees had to rely on a combination of other leave in addition to any supporting partner leave available, such as annual leave, long service leave and personal leave, as well as unpaid miscellaneous leave. As with mothers taking maternity leave, unpaid leave has implications for superannuation, performance increments, and accrual of annual leave and long service leave, and actively discourages fathers and partners from taking leave.

It also creates administrative complications for agencies. Submissions noted that in many agencies, an employee who was the primary carer of an adopted child could receive the equivalent entitlement to birth mothers under the Act, but partners of birth mothers - even as the 'primary caregiver' - could not.

"Our approach was to both take leave from birth and then have dad (Commonwealth Public Servant) be the primary caregiver to allow mum (state/territory public servant) to return to work full time...We estimate that, all else being equal, a straight swap of roles (with a salary swap, mum taking more leave and being the primary caregiver and dad having a reduced caregiving role) would have seen the family being more than $25,000 better off...One of our key frustrations throughout the process was that most of the schemes, legislation and enterprise agreements almost required birth mothers to be primary carers and disincentivised biological fathers from doing so."

- Individual submission[104]

"In my case, my husband was wanting to share the primary care over the first year but was not eligible for any parental leave to do so. Until these structural, systemic inequalities with parental leave are addressed, we cannot work on the cultural change required to allow men to feel they can take that primary care role."

- Individual submission[105]

Submissions highlighted how the current structure of entitlements affects same-sex and gender diverse couples in the APS. Employees discussed their experiences of planning for the non-birth parent to be the child's primary carer, as they had seen peers employed outside the APS do. Being unable to access adequate leave created stress and financial burden, and failed to recognise the needs of their family. Feedback indicated that current entitlements may also send a message of a lack of employer support for all families.

"To my absolute shock, I realised...that the current drafting of the Act did not allow [employing agency] to offer maternity leave for the non-pregnant parent. I have been devastated by this and the flow on effects have applied extra stress and pressure on our relationship and this process.

"From a personal perspective, the continued implementation of the current Act makes me feel that [agency] and the APS place a higher value on the heteronormative relationship dynamic. It makes me feel like my family dynamic is less worthy and that to get what 'they' have, I have to sacrifice something for it - whether that's financial sacrifice or sacrificing the emotional connection with my family. It has left me feeling unseen as an employee.

"While I love my job and working with the APS, I have been actively considering alternative employment solely because of this issue. I have also found myself hesitating and providing caution to peers in the private sector who are entering the age of creating a family and considering applying for roles with the APS."

- Individual submission[106]

Primary and secondary caregiver, supporting partner labels

Submissions from individuals, agencies and advocacy groups reflected on attaching labels such as 'primary carer', 'secondary carer' or 'supporting partner' to leave entitlements. While the terms themselves are gender neutral, primary carer leave is most commonly used by mothers, and secondary carer leave is most commonly used by fathers.[107] Data from the Australian Bureau of Statistics shows that in the non-public sector, 93.5 per cent of primary parental leave in 2018-19 was taken by women, and 96 per cent of secondary parental leave was taken by men.[108]

'Primary carer' parental leave is the type of leave most likely to affect a person's career trajectory.[109] Generally, it is significantly longer in duration than 'secondary carer' leave and research has found this sends a clear signal that the primary carer will do most of the care while the secondary carer will care for only a short period.[110] Use of 'primary' and 'secondary' carer terms reinforce traditional gender roles where women are expected to be the 'primary' carer of a child and partners are not encouraged to share care and labour equally. Leading practice in the private sector is to remove these terms and provide all parents with equal access to parental leave regardless of their gender or carer status.[111]

Shared leave pool

Some employers, including a small number of APS agencies,[112] offer parental leave where employee couples can access one shared pool of leave, or an employee can transfer unused leave to their partner in certain circumstances. These policies are often based on a distinction between primary and secondary carers. Shared leave arrangements may also serve to reinforce traditional gender roles, where a woman uses the entirety of the pooled leave and men are not incentivised to take parental leave.

Some submissions to the Review noted that shared arrangements may create risks for the health of the birth parent and child, and may be exploited in situations of family and domestic violence. For example, they may result in circumstances where a birth parent feels pressure to return to work earlier than preferred, in order for their partner to access additional leave. This can impact on a birth parent's recovery from birth as well as their ability to breastfeed.

The Review considers that a flexible approach with parental leave entitlements that are equal for each parent is appropriate to enable and encourage parenting that is equally shared. This simplifies administration and allows for greater flexibility in how parents may take leave and divide caregiving.

Shared care policies make it easier for both parents to return to work, particularly where these policies are flexible.[113] Enabling parents to use parental leave flexibly provides greater opportunities for all parents to combine part-time work with care of their child.[114] This approach also supports families as they adjust to new domestic arrangements in which care is shared for longer than just the child's early years but also into the school aged years.

"I support a holistic approach (including gender equality and inclusion) in providing other parental leave entitlements and arrangements to capture the needs of modern families - but not at the expense of provisions for the birthing parent/primary carer who have an emotional, physical and biological need for the support that makes it particularly complex to trade your entitlements to others. Any holistic approach should be additional and consider how to build on the existing entitlements rather than reducing the existing entitlements of the birthing parent."

- Individual submission[115]

Equal access to parental leave

A key way for the APS to be more competitive in the current labour market is to provide appropriate paid parental leave to all parents and allow families choice in how they balance work with caring for their child. It would allow all parents, if they choose, to have quality time to care for their child and adjust to life as a parent.

"The time I spent sharing experiences, sharing the first few months of my children's lives and supporting my children and my wife, were immensely rewarding (at times challenging!!) but they were wonderful experiences that can only be experienced during those early stages of your child's life. There are many other experiences as they grow up, but those first few months and the critical support that I was able to provide will remain with me forever."

- Individual submission[116]

Equal access to parental leave promotes gender equality by allowing families to choose how care will be provided to the child and allowing the birth parent to return to the workforce when they are ready. Women's disproportionate share of unpaid care and domestic work, lack of workplace flexibility and time out of the workforce is a key contributor to the gender pay gap.[117]

Submissions to the Review strongly advocated for access to equal entitlements for all employees who become parents. Reasons provided included attraction and retention in order to compete with the private sector, gender equality, productivity, and the opportunity to provide employees a healthy work-life balance. Particularly in a post COVID‑19 world, managing work-life balance has become a priority for many parents.[118]

Families are looking for the flexibility to set up a domestic arrangements as soon as the child is born in which care is shared more equally, with new routines that can continue on more enduring basis as the child grows beyond the early years.

"Gender neutral parental leave enabled my family and I to make decisions that worked best for our family unit as both my husband and I took paid parental leave to care for our daughters. I returned to work when my babies were 8 months of age knowing they were cared for by their other parent and I continued to be able to breastfeed. Due to the support and flexibility, I completed my MBA and was able to progress my career."

- Individual submission[119]

Duration of leave

As detailed in Chapter 3, a number of non-Commonwealth employers offer up to 26 weeks of paid leave. The quantum of paid parental leave offered by leading employers is increasing. Submissions, including from agencies, overwhelmingly supported increasing the duration of paid parental leave under the Act. Suggestions in agency submissions ranged from 14 to 36 weeks' paid leave, with the most common suggestion being 26 weeks.

"The quantum of parental leave provided by employers is a competitive factor when individuals, particularly with high-demand skills, are choosing between roles."

- Agency submission[120]

The International Labour Organization (ILO),[121] World Health Organisation (WHO),[122] and United Nations International Children's Fund (UNICEF)[123] recommend 18 weeks of paid maternity leave as a period of rest relating to childbirth to safeguard the health and nutrition of the mother and her child.[124]

Additionally, the WHO and UNICEF recommend paid paternity leave to protect the health of the mother and baby,[125] as leave taken by the partner around the time of the birth can be critical in caring for the mother while they recover and providing support with newborn care including breastfeeding.

"Receiving less leave than potential other employers that are open to me made me think that the APS and [the agency] does not value me as an employee."

- Individual submission[126]

The Review considers providing both parents with an equal entitlement to up to 24 months of Parental Leave, with 18 weeks of that leave being with pay. This helps to ensure families have the opportunity to equally share the caring and set up enduring shared domestic routines. It also signals more broadly that the APS and the Commonwealth is an employer of choice for employees considering having children. Moving to 18 weeks for the partner is a significant advancement in paid leave for many agencies, and may need to be implemented in stages over time.

Aligning with the Fair Work Act's parental leave, parents could use this 18 weeks of paid leave flexibly within 24 months of the child's birth. Flexible parental leave and its benefits for families are discussed further in Chapter 7.

While parents may take Parental Leave flexibly it is important to safeguard the health needs of the employee who has given birth. In line with the Fair Work Act and Paid Parental Leave scheme, an employee may not return to work within 14 days of giving birth, and must provide a medical certificate confirming fitness for work if they seek to return within two to six weeks after giving birth.[127]

"The ANMF considers provision of a comprehensive package of parental leave entitlements are all essential to women's economic empowerment and choice and are wholly supportive and compatible with promoting maternal and child health."

- Union submission[128]

Recommendation 2: Provide Parental Leave

2.1   Provide up to 24 months of Parental Leave to new parents, to be used within 24 months from the date of the child's birth.

1. 18 weeks of Parental Leave is with pay, and the remainder without pay.
2. Parental Leave is to be provided as a separate and equal entitlement to new parents, so there is an equal opportunity to care for the child.
3. For employees who give birth, Parental Leave is in addition to Pregnancy Leave. The employee may not return to work within 2 weeks after giving birth. An employee who wishes to return to work within 2-6 weeks after giving birth must provide a medical certificate certifying fitness to work.

Parental leave for all parents

Adoption and long-term foster parents

The Act does not provide leave entitlements to parents who adopt or foster a child. However as described in Chapter 2, most APS enterprise agreements provide primary carers of an adopted or long-term foster child with equivalent leave entitlements to those provided for birth mothers.[129] However, as with birth-related leave, entitlements are inconsistent across the APS, and focus on the primary carer only.

"By including all these provisions in the Act, it will formalise what is already taking place, provide consistency across APS agencies and facilitate processing, enabling entitlements to come from one instrument rather than several, as is currently the case."

- Agency submission[130]

Submissions called for coverage of the Act to be expanded to include employees who adopt and foster, and to ensure these entitlements are protected in legislation in the same way as maternity leave. As noted in Chapter 3, private sector employers are also increasingly extending the scope of their parental leave policies to formal adoption and long-term fostering.[131] Notwithstanding an increased focus on long-term fostering, it is noted that NES parental leave does not include leave for long-term fostering. The Review considers Parental Leave should be extended to included adoptive parents, however leave for long-term fostering not be included in a new Act at this time. Agencies may consider continuing to offer leave for long-term fostering through the agency's industrial instrument or workplace arrangement, such as an enterprise agreement.

Recommendation 3: Extend Parental Leave to include adoption

3.1   Parental Leave under the Act is to be available to both parents of a child who is adopted from the day of placement of the child, provided that the child:

1. is under 16 as at the day of placement, or the expected day of placement;
2. has not lived continuously with the employee for a period of 6 months or more as at the day of placement, or the expected day of placement; and
3. is not (otherwise than because of the adoption) a child of the employee or the employee's spouse or de facto partner.

3.2   Paid leave for a parent of a child under a long-term foster care arrangement may be considered for inclusion in an agency's industrial instrument or workplace arrangement, such as an enterprise agreement.

Kinship care

Kinship care including traditional First Nations adoption and foster care practices were raised during the Review, with a small number of agencies already recognising these forms of care through paid parental leave entitlements in enterprise agreements.

The Review notes the importance of policies that are inclusive of First Nations employees. This aligns with the Commonwealth Aboriginal and Torres Strait Islander Workforce Strategy 2020-2024 objective of increased ongoing representation of First Nations employees at all levels of the Commonwealth public sector, including by improving the employee experience for all First Nations employees across the Commonwealth.[132]

The Review received feedback that the Act does not currently include culturally appropriate language or definitions of traditional First Nations adoption practices, caregiving or kinship structures. However, it is critical that further consultation is conducted to ensure any legislative change and its implementation is undertaken in a culturally appropriate way.

This includes consultation and co-design with First Nations peak bodies and communities to ensure healing based, trauma informed, culturally safe and appropriate solutions in accordance with the National Agreement on Closing the Gap.

Recommendation 4: Undertake extensive engagement on extending Parental Leave to incorporate First Nations kinship care practices

4.1   Undertake engagement to inform future proposals to extend Parental Leave to include kinship care that takes into account traditional First Nations adoption, foster and kinship practices.

4.2   This should include significant national engagement and co-design with First Nations peak bodies and communities to ensure Parental Leave provisions are cultural appropriate and promote healing based, trauma informed, culturally safe and appropriate kinship practices, in accordance with the National Agreement on Closing the Gap.

Surrogacy

As the Act applies to eligible female employees who have become pregnant, an employee acting as a surrogate is entitled to all maternity leave benefits under the Act.[133] On a similar basis, Pregnancy Leave is to be available to any pregnant employee and regardless of whether the pregnant employee is acting as a surrogate.

The Act does not currently provide entitlements to parents welcoming a child via surrogacy, and leave for intended parents is provided through individual agency enterprise agreements and policies*.* Many submissions to the Review called for surrogate parents to be entitled to parental leave noting that leading private sector employers are increasingly extending entitlements to surrogacy, and supporting parental leave being available in all circumstances where there is a new baby.[134]

Australian laws relating to surrogacy are complex and evolving. Commercial surrogacy is illegal in all states and territories. It is also illegal for residents of the ACT, NSW and Queensland to enter into overseas commercial surrogacy arrangements, and these arrangements may not fulfil the requirements for transfer of legal parentage under Australian state and territory law.[135]

The legal status of altruistic surrogacy varies across states and territories, and whether a surrogacy arrangement complies with jurisdictional laws depends on the individual arrangement.[136] Given the legal complexity and lack of a uniform national legislative framework, most agency enterprise agreements do not provide parental leave for surrogate parents. This issue raises particular complexity in the context of developing a legislated entitlement to parental leave.

Surrogacy is an evolving legal and policy space, and the Review acknowledges the importance of parental leave entitlements being inclusive for all families. Further work is required to ensure any future provision of leave aimed at supporting surrogacy arrangements should consider issues such as compliance with state and territory laws, interaction of entitlements with formal Parentage Orders, and evidence requirements.

As introducing legislative leave provisions aimed at supporting surrogacy arrangements is not feasible at this stage, the Review recommends that agencies continue to accommodate parental leave needs through miscellaneous leave only where they are satisfied a surrogacy arrangement complies with relevant state and territory law. Agencies may consider seeking legal advice given the complexity of this issue.

Recommendation 5: Undertake research on extending Parental Leave entitlements to legal surrogacy arrangements

5.1   Research how Parental Leave could be extended to include the intended parents of a child born through a surrogacy arrangement that meets the requirements of applicable state or territory law, including the evidence that would be appropriate for such arrangements.

5.2   In approving leave applications, agencies to take steps to ensure the surrogacy arrangement is compliant with jurisdictional legislation, and may wish to seek legal advice given the complexity of this area.

Pregnancy loss

Stillbirth and neonatal death

Under the Act, the birth mother has access to all maternity leave entitlements (including paid leave) in the tragic event that their pregnancy ends from 20 weeks' gestation onwards[137], or their child dies while they are on maternity leave. Employees are also entitled to up to two days of paid compassionate leave under the Fair Work Act if a baby in their immediate family or household is stillborn or dies.[138] The Review considers that pregnant employees should continue to receive this important support when dealing with such tragic loss.

The Review received submissions from individuals sharing their experiences of pregnancy loss and notes that stillbirth and neonatal death are sensitive topics which have a profound impact on parents. Consistent with the intention of Parental Leave, the Review considers both parents should be entitled to Parental Leave in the event of stillbirth or neonatal death, recognising the impact of this loss on families. However, for the partner of a woman who has given birth to a stillborn child, the paid leave component should be for a lower period, such as 2 weeks.

Prior to any potential legislative change however, the Review encourages agencies to provide partners with equivalent entitlements under current enterprise agreements where a partner experiences a stillbirth. Some employees have been unable to access entitlements due to the way agency enterprise agreements are drafted.

"...the parenting leave provision [within enterprise agreement] state that "Within 12 months of the birth...an[d] employee who has or will have responsibility for the care of a child and who is otherwise ineligible for leave under the Act...is entitled to 20 days leave with pay...to care for the child." I was precluded from claiming parenting leave due to the wording in the agreement because it was determined that there was no child to care for. This denial of access to parenting leave based on this distinction may signal a lack of understanding and potentially an oversight when the agreement was negotiated but it also contributes to the stigma that surrounds stillbirth."

- Individual submission[139]

Additionally, the meaning of stillbirth within the Act does not currently capture the full definition that now applies in the Fair Work Act and Paid Parental Leave Act. In addition to the gestation period of at least 20 weeks, both Acts recognise stillbirth where a child weighs at least 400 grams at delivery.[140] The Review recommends the meaning of stillbirth be extended to align with the Fair Work Act and Paid Parental Leave Act.

Recommendation 6: Extend stillbirth entitlement to partners and broaden definition

6.1   Pregnant employees to retain entitlement to Parental Leave in the event of stillbirth.

6.2   Expand the Act's current provisions allowing pregnant employees to retain full entitlement to Parental Leave if their pregnancy ends other than by a live birth from 20 weeks' gestation, to include circumstances where a child weighs at least 400 grams at delivery (consistent with the Fair Work Act and Paid Parental Leave Act).

6.3   The partner of a woman who gives birth to a stillborn child remains entitled to Parental Leave, with the paid leave component to be limited to 2 weeks.

Miscarriage

While the Act provides full leave entitlements for pregnancy loss from 20 weeks' gestation, it contains no entitlement for pregnancy loss before 20 weeks. Some agencies provide entitlements for compassionate leave and miscarriage in their enterprise agreements.

Parents may also access further entitlements under the Fair Work Act - a pregnant employee, or an employee's spouse or de facto partner, who experiences a miscarriage may access two days of paid compassionate leave,[141] and unpaid special maternity leave is available where an employee is not fit for work because of pregnancy loss after 12 weeks' gestation.[142]

The Review received submissions from individuals sharing personal experiences of miscarriage. The Review recognises that miscarriage is a sensitive and emotionally difficult topic that affects many employees across the APS. Submissions to the Review advocated for a revised Act to provide support for employees who experience both the physical and emotional challenges of pregnancy loss. Paid leave formally acknowledges a baby and their loss while providing parents with time to physically heal and emotionally process grief.[143]

"Having supported a staff member through the horrible misfortune of the miscarriage of her child, I was surprised that she was only entitled to use her sick leave despite the fact if the baby was an extra couple of weeks older, she would have been able to access her maternity leave. The mourning and healing that goes along with the loss of a baby felt diminished by the fact it wasn't recognised in our leave."

- Individual submission[144]

The Review proposes that introducing one week of paid Pregnancy Loss Leave for pregnant employees and partners of women who experience pregnancy loss between 12 weeks' gestation and the end of 19 weeks' gestation will better support families who experience pregnancy loss. Where pregnancy loss occurs at less than 12 weeks' gestation, two days of paid compassionate leave is available for both parents under the Fair Work Act.

Recommendation 7: Provide paid Pregnancy Loss Leave

7.1   An employee who experiences pregnancy loss between 12 weeks' gestation and the end of 19 weeks' gestation that is not a still birth is to be entitled to one week (5 days) of paid Pregnancy Loss Leave.

7.2   Pregnancy Loss Leave is to be provided as a separate and equal entitlement to both parents.

7.3   Pregnancy Loss Leave must be taken in one continuous period and is in addition to entitlements to compassionate leave for miscarriage provided under the Fair Work Act.

Premature birth

The Review received feedback around providing additional support for parents of premature and hospitalised babies. A birth is considered premature if it occurs before 37 weeks' gestation.

As leave provided under the Act and enterprise agreements is generally provided in one continuous period, employees reported using all their paid leave entitlement while their baby was still in hospital. In contrast, under the Fair Work Act where a child is hospitalised after birth or there are gestational or birth-related complications, an employee may put their unpaid parental leave on hold for the duration of the child's hospitalisation.[145] The Paid Parental Leave Act also allows an employee to return to work for this period without losing their entitlement to Parental Leave Pay, provided this is no earlier than 14 days after birth.[146]

"[M]y twin children arrived 15 weeks early. This was a shocking and traumatic experience for me and my husband. We were in shock emotionally as we had two critically ill children, I was recovering physically from birth, and we were now parents, which practically means spending many hours a day at hospital caring for the babies, making decisions about their health, and having our minds filled with thoughts for their care and wellbeing. I could not practically return to work, not least of all because of the physical effects of my birth experience. Because my babies arrived early, I was no longer eligible for paid maternity leave. I also could not work for an additional three months that I had anticipated working. The effect is that I lost six months of income, as a result of the gaps in the Maternity Leave Act."

- Individual submission[147]

In the NSW public service, paid leave is available where an employee or their spouse gives birth before 37 weeks' gestation.[148] This leave may be taken from the child's date of birth up to the end of 36 weeks' gestation, and the parent may then take the separate parental leave they would have been entitled to had the child been born at full term.

Providing paid leave in this way may also assist mothers in receiving support to express if they are breastfeeding, as well as providing care to the child through skin-to-skin contact and other means in hospital without financial pressure forcing them back to work.[149]

The Council of Australian Governments Health Council Australian National Breastfeeding Strategy: 2019 and Beyond notes that premature and hospitalised children often have more complex health needs than other children and their mothers have high rates of depression and anxiety.[150]

Additionally, preterm infants are at increased risk of necrotising enterocolitis (NEC), and human milk has been identified as providing protection against NEC for premature babies, with the mother's own milk preferable if available.[151]

"Premature birth or other birth complications also impact on the child and can involve many months of care. The ability to access parental leave entitlements in these circumstances should be supported in the Act as a base entitlement."

- Union submission[152]

The Review considers the introduction of paid Premature Birth Leave would provide appropriate support to pregnant employees from the date of birth up to the end of what would have been 36 weeks' gestation. Eligibility for the full entitlement of paid parental leave would commence from what would have been 37 weeks' gestation.

Partners of women who have given birth prematurely would also be eligible for Premature Birth Leave from the child's date of birth up to what would have been the end of 36 weeks' gestation. Eligibility for Parental Leave would commence on what would have been 37 weeks' gestation.

The ability to take Parental Leave flexibly would allow both parents the choice to take the paid leave at a time that best suits the family's circumstances. For example, taking a portion while the child is in hospital and the majority once the child is at home. To align with the intention of the Fair Work Act, employees who have given birth are not to return to work earlier than 14 days post birth where their child was hospitalised immediately after birth and remains in hospital.

Recommendation 8: Provide paid Premature Birth Leave

8.1   In circumstances of a live birth before 37 weeks' gestation, both parents are entitled to paid Premature Birth Leave from the date of the child's birth up to the end of what would have been 36 weeks' gestation. Parental Leave is then available from what would have been 37 weeks' gestation.