1. This circular is to inform Australian Government employers of the recent changes to the Fair Work Act (2009) that provide improved support for parents who experience traumatic events during or in anticipation of unpaid parental leave, including stillbirth, premature birth or death of an infant.
2. These changes apply to an employee’s entitlements under the National Employment Standards (NES). They do, therefore, override provisions in enterprise agreements or other industrial instruments where those provisions are less beneficial than the NES.
3. The Fair Work Amendment (Improving Unpaid Parental Leave for Parents of Stillborn Babies and Other Measures) Act 2020 improves entitlements under the National Employment Standards (NES) for unpaid parental leave. The amendment ensures that parents of stillborn babies or children who die in the first 24 months of life receive the same entitlement to unpaid parental leave as parents of live babies.
4. The amendments will also provide new parents with flexibility in how they choose to take their unpaid parental leave by allowing employees to use up to 30 days of their existing entitlement to 12 months unpaid parental leave on a flexible basis (in days or weeks) any time up to two years after the birth or adoption of their child.

Stillbirth, death of a child in the first 24 months of life and hospitalisation of children immediately after birth

5. Prior to the amendment, parents who experienced a stillbirth or death of a child could have their upcoming unpaid parental leave under the Fair Work Act 2009 cancelled by their employer, or be recalled back to work where unpaid parental leave had already commenced. The amendment ensures that a parent whose child is stillborn or dies in the first 24 months of life is entitled to access the unpaid parental leave framework as if they had a living, healthy child.
6. The amendment also allows for an employee whose child is stillborn, or dies within the first 24 months of life, who wishes to return to work from unpaid parental leave earlier than initially agreed with their employer, to do so within four weeks of providing their employer with written notice.
7. Employees who are on unpaid parental leave will be entitled to take compassionate leave following the stillbirth or death of a child in relation to whom the employee is taking unpaid parental leave.
8. Additionally, employees are able to take compassionate leave in relation to a stillborn child if that child would have been an immediate family or household member had the child been born alive.
9. Employees whose children require hospitalisation immediately following birth can now arrange with their employer to pause their unpaid parental leave and return to work during the period that their baby is hospitalised. The employee can then resume their unpaid parental leave once their child is discharged from hospital.
10. Agencies are encouraged to consider the application of enterprise agreements or other industrial instruments in a compassionate and supportive manner for employee parents of unwell, stillborn, or deceased children.

Flexible unpaid parental leave

11. The amendment complements the flexible Paid Parental Leave arrangements under the Paid Parental Leave Amendment (Flexibility Measures) Act 2020 which give parents greater flexibility around how they access their Parental Leave Payment. Further information about changes to the Paid Parental Leave Scheme can be found in Circular 2020/8: Changes to Parental Leave Pay to Improve Flexibility.
12. This amendment provides parents with corresponding flexibility in relation to their unpaid parental leave entitlements under the NES in the Fair Work Act 2009, and as part of the NES, will override any inconsistent provisions under their contract, enterprise agreement or other industrial instrument that may previously have prevented this. This means parents on unpaid parental leave can use their unpaid leave more flexibly.
13. Employees entitled to unpaid parental leave under the Fair Work Act 2009 are now able to take up to 30 days (6 weeks) of their 12-month unpaid parental leave period on a flexible basis. This leave is known as flexible unpaid parental leave.
14. The flexible leave needs to be taken within 24 months of the birth or adoption of the child, and can be taken in a period, or periods, of a day or more.

Interaction with other leave entitlements

Enterprise agreements

15. Agencies need to review and consider the terms of their enterprise agreement, internal policies or other industrial instruments to ensure they align with these changes to the Fair Work Act 2009.

Agencies should ensure provisions in enterprise agreements do not hinder access to these new arrangements.

Long Service Leave

16. Agencies should note that where a full-time employee uses unpaid leave to facilitate a part-time working hours arrangement, they are considered to be a full-time employee for the purposes of long service leave. This means that their accrual date will be deferred by each of the days of leave without pay, unless the delegate determines that they will count for service for the purposes of the Long Service Leave (Commonwealth Employees) Act 1976.

Maternity Leave under the Maternity Leave (Commonwealth Employees) Act 1973

17. Stillbirth or the death of a child does not end any paid or unpaid parental leave for employees covered by the Maternity Leave (Commonwealth Employees) Act 1973.
18. In certain circumstances, it is also possible to pause paid maternity leave entitlements, including to allow an employee to return to work while a child is in hospital. Agencies may wish to seek advice from the APSC in such circumstances.

Further information

19. The Fair Work Ombudsman has published information about these changes to the Fair Work Act 2009 on its website.
20. Agencies with questions on these issues are encouraged to contact their APSC relationship manager, or the Workplace Relations inbox at workplacerelations@apsc.gov.au.