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2019-2021
THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA
SENATE
FAIR WORK AMENDMENT (IMPROVING PAID PARENTAL LEAVE FOR
PARENTS OF STILLBORN BABIES) BILL 2021
EXPLANATORY MEMORANDUM
(Circulated by authority of Senator Keneally)
FAIR WORK AMENDMENT (IMPROVING PAID PARENTAL LEAVE
FOR PARENTS OF STILLBORN BABIES) BILL 2021
OUTLINE
This Bill will amend the Fair Work Act 2009 to ensure that the parents of stillborn babies can
access the same quantum of employer-paid paid parental leave (PPL) that they would be
entitled to regardless of whether the pregnancy ended in stillbirth or with a live birth.
The Senate Select Committee on Stillbirth Research and Education found a key issue raised
by witnesses and submitters in relation to employment matters concerned leave entitlements
for parents who experienced a stillbirth.
The Commonwealth's Parental Leave Pay provides for parents of a stillborn baby to receive
the same entitlement as parents of a baby born live. This government-paid aspect of the PPL
scheme is set at eighteen weeks leave at the National Minimum Wage, and up to 12 months
unpaid leave.
In addition to the government-paid aspect of the PPL scheme, employers can also elect to
provide additional employer-paid entitlements, such as topping-up the government-paid
entitlement to reflect their normal wages, allowing annual leave or long-service leave to be
accessed, paying superannuation contributions etc, to their employers. These entitlements are
typically outlined in an employment contract, registered agreement or a workplace policy.
However, in the private sector, without explicit entitlements for employees who have
experienced a stillbirth, often it is left to a manager or direct supervisor to make the
significant decision as to whether or not parents of a stillborn baby are entitled to the same
employer-paid parental leave as if the baby was born live.
As a result of this finding, the first recommendation of the Committee was that:
" ... the Australian government reviews and amends the Fair Work Act 2009 (Cth) and
provisions relating to stillbirth in the National Employment Standards (NES) to ensure that:
o provisions for stillbirth and miscarriage are clear and consistent across all
employers, and meet international best practice such as those contained in the
Ausgrid Enterprise Agreement (see Attachment B); and
o legislative entitlements to paid parental leave are unambiguous in recognising
and providing support for employees who have experienced stillbirth".
This Bill will complement a previous Bill introduced by the Government, the Fair Work
Amendment (Improving Unpaid Parental Leave for Parents of Stillborn Babies and Other
Measures) Bill 2020, which improved access to unpaid parental arrangements for parents of
stillborn babies, but failed to address issues surrounding employer-paid parental leave
entitlements per the Committee's recommendation.
This Bill will ensure that employees can access the same quantum of entitlement to
employer-paid parental leave regardless of whether the pregnancy ended in stillbirth or with a
live birth, and regardless of whether the entitlement is legislative or one arising under an
industrial instrument. Specifically, for parents of stillborn babies, this Bill will explicitly
preserve their entitlement to paid parental leave, outline the standard evidentiary
requirements for said leave, and ensure that an employer cannot cancel paid parental leave
due to the circumstances of a birth.
NOTES ON CLAUSES
Clause 1: Short Title
1. Clause 1 is a formal provision specifying the short title of the Bill.
Clause 2: Commencement
2. The whole of this Act will commence the day after the Act receives the Royal Assent.
Clause 3 - Schedules
3. Each Act specified in a Schedule to this Act is amended or repealed as is set out in the
applicable items in the Schedule. Any other item in a Schedule to this Act has effect
according to its terms.
Schedule 1--Amendments
Fair Work Act 2009
Item 1 - Section 12
4. Inserts a definition of "paid parental leave" in the Dictionary section of the Act.
Item 2 - After Section 79
79AA Effect of stillbirth on paid parental leave
Stillbirth--preserving entitlement to paid parental leave
5. Subsections (1) and (2) preserve parents' entitlements to paid parental leave in the event
of a stillbirth, regardless of whether the entitlement is provided for by a fair work or
workplace instrument, a workplace law or an order of an industrial body.
Stillbirth--employer cannot cancel paid parental leave
6. Subsection (3) prevents an employer from cancelling paid parental leave, in full or in part,
in the circumstances of an employee experiencing a stillbirth.
Stillbirth--employee cancelling leave or returning to work
7. Subsections (4) to (6) allow for employees to cancel or alter their leave arrangements
either before or during the period of leave. In such an instance, the employee must
provide written notice of their intention, and in the case of when leave has already started,
the specified day for the return to work must be at least four weeks after the employer
receives the notice.
Evidence
8. Subsections (7) and (8) require an employee to, if required by an employer, provide
evidence that would satisfy a reasonable person of the circumstances of the birth,
including, but not limited to, a medical certificate.
Section applies despite provisions to the contrary
9. Subsection (9) clarifies that section 79AA applies despite anything contrary in the relevant
instrument, order, contract or law which provides for the entitlement to paid parent leave.
Item 3 - In the appropriate position in Schedule 1
10. Item 3 inserts new Part 12 in Schedule 1 of the Fair Work Act 2009 to specify transitional
provisions for the commencement of the amendments contained in the Bill.
Part 12 - Amendments made by the Fair Work Amendment (Improving Paid Parental
Leave for Parents of Stillborn Babes) Act 2021
51 - Definitions
11. Clause 51 of Part 12 to Schedule 1 defines "amending Act" and "Schedule 1
commencement day" in the context of the Bill.
52 - Amendments about stillbirth
12. Clause 52 of Part 12 to Schedule 1 states that the amendments contained in the Bill apply
in relation to the stillbirth of a child on or after the date which Schedule 1 of the Bill
commences.
STATEMENT OF COMPATIBILITY WITH HUMAN RIGHTS
Prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011
Fair Work Amendment (Improving Paid Parental Leave for Parents of Stillborn
Babies) Bill 2021
This Bill is compatible with the human rights and freedoms recognised or declared in the
international instruments listed in section 3 of the Human Rights (Parliamentary Scrutiny)
Act 2011.
Overview of the Bill
The Fair Work Amendment (Improving Paid Parental Leave for Parents of Stillborn Babies)
Bill 2021 (the Bill) will amend the Fair Work Act 2009 to ensure that the parents of stillborn
babies can access the same quantum of employer-paid paid parental leave that they would be
entitled to regardless of whether the pregnancy ended in stillbirth or with a live birth.
In doing so, the Bill will improve access to paid parental leave provisions in the Fair Work
Act 2009 to provide greater support to parents who experience a stillbirth, ensuring that they
can access the same quantum of entitlement to employer-paid parental leave regardless of
whether the pregnancy ended in stillbirth or with a live birth, and regardless of whether the
entitlement is a legislative or one arising under an industrial instrument.
Further, for parents of stillborn babies, this Bill will explicitly preserve their entitlement to
paid parental leave, outline the standard evidentiary requirements for said leave, and ensure
that an employer cannot cancel or alter paid parental leave, in full or in part, due to the
circumstances of a birth. The Bill also ensure that parents can alter their leave by written
notice provided to their employer, whether the live has begun or is ongoing.
Human rights implications
Rights at work
Article 7 of the International Covenant on Economic, Social and Cultural Rights (ICESCR)
recognises the 'right of everyone to the enjoyment of just and favourable conditions of work'
including the right to 'equal opportunity for everyone to be promoted in his employment to
an appropriate higher level'. The UN Committee on Economic Social and Cultural Rights has
commented that Article 7 of the ICESCR requires a country to take steps to 'reduce the
constraints faced by men and women in reconciling professional and family responsibilities
by promoting adequate policies for childcare and care of dependant family members.'
This Bill will guarantee employees access to their employer-paid parental leave entitlement,
which will enhance parents' ability to balance their caring and professional responsibilities.
Right to maternity leave
The right to maternity leave is contained within Article 11(2)(b) of the Convention on the
Eliminations of All Forms of Discriminations against Women (CEDAW) and Article 10(2) of
the ICESCR. Article 11(2)(b) of the CEDAW requires States Parties 'to introduce maternity
leave with pay or with comparable social benefits without loss of former employment,
seniority or social allowances'.
This Bill will improve access to paid parental leave provisions to provide greater support to
parents who experience a stillbirth, ensuring that they can access the same quantum of
entitlement to employer-paid parental leave regardless of whether the pregnancy ended in
stillbirth or with a live birth. This invokes the intent of the right to maternity, preserving the
entitlement to return to former employment without jeopardising their position due to being
forced to return without proper leave to recuperate and recovery after experiencing a
stillbirth.
Right to health
The right to protection of health and safety in working conditions, including the safeguarding
of the function of reproduction is contained within Article 11(1)(f) of CEDAW.
The measures contained in this Bill protect this right by ensuring that a parent cannot be
directed back to work from employer-paid parental leave after experiencing a stillbirth. The
changes protect the employee's health and safety, recognising that while some employees
may be ready to return to work earlier than the date they initially intended to end their paid
parental leave, this should be a matter for the employee to decide.
Rights of parents and children
Articles 3, 5 and 18 of the Convention on the Right of the Child (CRC) and Article 5 of the
CEDAW recognise the rights of the parents and children. Article 3(1) of the CRC provides
that the best interests of the child must be a primary consideration in all actions undertaken
by legislative bodies and Article 18(1) states that parties shall use their best efforts to ensure
recognition of the principle that both parents have common responsibilities for the upbringing
and development of the child. Article 5(b) of the CEDAW provides parties shall take
measures to promote the recognition of the common responsibility of men and women in the
upbringing and development of their children.
This Bill recognises that the parents of stillborn children are parents too, and it extends access
to paid-parental leave provisions to allow parents to fulfil their responsibility to care for their
child. These reforms will promote the understanding of the important role that parents play
after having experienced a stillbirth.
Conclusion
This Bill is compatible with human rights because it does not limit, but rather enhances rights
to work, maternity leave and the rights for parents and families.
Senator the Hon. Kristina Keneally