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2019-2020
THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA
HOUSE OF REPRESENTATIVES
FAIR WORK AMENDMENT (IMPROVING UNPAID PARENTAL LEAVE FOR
PARENTS OF STILLBORN BABIES AND OTHER MEASURES) BILL 2020
EXPLANATORY MEMORANDUM
(Circulated by the authority of the Attorney General and Minister for Industrial Relations, the
Hon Christian Porter MP)
Outline
FAIR WORK AMENDMENT (IMPROVING UNPAID PARENTAL LEAVE FOR
PARENTS OF STILLBORN BABIES AND OTHER MEASURES) BILL 2020
OUTLINE
The Fair Work Amendment (Improving Unpaid Parental Leave for Parents of Stillborn
Babies and Other Measures) Bill 2020 (the Bill) would amend the Fair Work Act 2009 (the
Fair Work Act) to improve the unpaid parental leave (UPL) entitlements in the National
Employment Standards for new parent employees who experience traumatic events during or
in anticipation of UPL, including stillbirth and premature birth. The changes fulfil the
Government's commitment in responding to the Senate Select Committee on Stillbirth
Research and Education Report (the Stillbirth Report) to review the operation of the Fair
Work Act to ensure that all provisions relating to stillbirth provide a clear and consistent
minimum standard. The Bill would also make changes to complement the new flexible
government-funded Paid Parental Leave scheme administered by Centrelink under the Paid
Parental Leave Act 2010 (PPL Act) to provide parents with corresponding flexibility in
relation to their UPL entitlements.
Stillbirth, death of a child in the first 24 months of life and hospitalisation of children
immediately after birth
Currently, the Fair Work Act provides eligible employee parents with an entitlement to up to
12 months' job protected UPL associated with the birth or adoption of a child if they have, or
will have, a responsibility for the care of the child. If an employee has started birth-related
UPL when their child is stillborn or dies, they are entitled to remain on UPL unless their
employer directs them to return to work with six weeks' notice. They can also choose to
return to work within four weeks' (with the employer notifying the specific day of return in
that period). If an employee is not on UPL when the child is stillborn or dies, either the
employee or their employer can cancel any upcoming leave.
The Stillbirth Report raised concerns that the UPL provisions in the Fair Work Act are
inadequate because they treat parents of stillborn children differently to parents of live babies.
The Bill would improve and clarify minimum leave entitlements for parents of stillborn
babies and babies who die during the first 24 months of life by:
ensuring that parents of stillborn babies have the same entitlement to UPL as parents of
live babies (including by allowing these employees to start UPL in relation to a stillborn
child even if they have not previously given notice to their employer);
removing an employer's ability to recall a parent on UPL back to work or cancel any
upcoming planned period of UPL following a stillbirth or death of a child or an infant;
ensuring employees in these circumstances who wish to return to work earlier can do so
by providing their employer with at least four weeks' written notice;
allowing employees who are on UPL to take compassionate leave following the stillbirth
or death of the child in relation to whom the employee is taking UPL; and
House of Representatives i Fair Work Amendment (Improving Unpaid
Parental Leave for Parents of Stillborn
Babies and Other Measures) Bill 2020
Outline
making explicitly clear that 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.
The Bill will also improve UPL entitlements for parents who experience premature birth and
other birth related complications that require the baby to be hospitalised immediately
following birth. Currently, parents of premature babies have the same entitlement to UPL as
other parents. However, because UPL must generally be taken in a single continuous period,
premature babies and other babies with birth-related complications who remain in hospital for
some time following birth may result in affected parents having less time at home with their
child than they had initially expected. To address this, the Bill would allow parents of
premature babies and newborns who require hospitalisation immediately following birth to
agree with their employer to effectively put their UPL 'on hold' while their baby is
hospitalised, and resume their UPL when the baby goes home. This measure aligns with the
PPL Act, which allows parents in this situation to return to work and continue to receive the
Government-funded parental leave payment (PLP).
Flexible unpaid parental leave
The Bill would also amend the Fair Work Act to complement changes to the PPL Act which
were made by the Paid Parental Leave Amendment (Flexibility Measures) Act 2020
(PPL Amendment Act). Under the PPL Act, eligible parents are entitled to 18 weeks of PLP,
paid at the national minimum wage. The PPL Amendment Act, which received Royal Assent
on 16 June 2020, amended the PPL Act to implement the new flexible parental leave scheme,
as announced in the Women's Economic Security Statement 2018. The intention of the new
scheme is to provide families with more options about how to access the PLP and to support
women's economic independence by allowing parents to claim the PLP more flexibly.
The amendments made by the PPL Amendment Act allow parents to take:
the first 12 weeks of PLP in a continuous block within 12 months of the birth or
adoption; and
the remaining 30 days of their payment (the equivalent of six weeks), at any time after
the initial period and within 24 months of the birth or adoption.
Flexible PLP has been available to eligible parents since 1 July 2020.
In order for an employee to access the PLP, the employee must generally not be at work.
Typically, employees access their UPL entitlement under the Fair Work Act during the period
they are claiming the PLP. UPL must generally be taken in a single 'continuous' period.
Once an employee returns to work, they will usually forfeit any remaining untaken UPL.
Without changes to the Fair Work Act, employees wishing to access flexible PLP will
generally need to negotiate additional time off work or a part-time return to work with their
employer.
To address this, the Bill would amend the Fair Work Act to allow parents to take up to 30
days of their entitlement to 12 months of UPL flexibly, including on a single-day basis, at any
time within two years of their child's birth or placement. Any period of 'continuous' UPL an
employee wishes to take in relation to the child must be taken first, before the first day of
House of Representatives ii Fair Work Amendment (Improving Unpaid
Parental Leave for Parents of Stillborn
Babies and Other Measures) Bill 2020
Outline
flexible UPL, consistent with flexible PLP. These measures ensure that parents who wish to
claim flexible PLP have access to a corresponding flexible unpaid leave entitlement.
Parents may choose to access a portion of their UPL entitlement flexibly for a number of
reasons, for example, to facilitate a gradual return to work or shared caring responsibilities
between parents. While employees could use flexible UPL in a structured manner to reduce
their regular days of work, any such arrangement is not a 'part-time' arrangement, but a leave
entitlement. The use of the leave in this manner would also be limited to a maximum of 30
days, which must be used within the first two years from the child's date of birth or
placement. Employees who wish to make a permanent change to their working arrangements
after returning from UPL currently have an entitlement under section 65 of the Fair Work Act
to request a flexible working arrangement, which an employer may only refuse on reasonable
business grounds.
House of Representatives iii Fair Work Amendment (Improving Unpaid
Parental Leave for Parents of Stillborn
Babies and Other Measures) Bill 2020
Financial Impact Statement
FINANCIAL IMPACT STATEMENT
Nil
House of Representatives iv Fair Work Amendment (Improving Unpaid
Parental Leave for Parents of Stillborn
Babies and Other Measures) Bill 2020
Statement of Compatibility with Human Rights
STATEMENT OF COMPATIBILITY WITH HUMAN RIGHTS
Prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011
Fair Work Amendment (Improving Unpaid Parental Leave for Parents of Stillborn
Babies and Other Measures) Bill 2020
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
This Bill improves the operation of the unpaid parental leave (UPL) provisions of the Fair
Work Act 2009 (the Fair Work Act) to provide greater support to parents who experience
stillbirth, infant death, premature birth and hospitalisation of their baby immediately
following birth. It will also provide parents with more choice in how they balance work and
caring for a child in the first 24 months after the child's date of birth or placement.
The measures in this Bill will ensure that the entitlement to UPL for a parent whose baby is
stillborn will be as it would have been if their baby had lived. For an employee whose child is
stillborn or dies during the first 24 months of life, the Bill will ensure that it is the employee
who decides whether to start the notified period of UPL and, if the leave has already started,
whether to remain on leave as originally intended or to return to work earlier. As such, their
employer will no longer be able to cancel any upcoming UPL the employee has given notice
of, or, if the employee is already on leave, require them to return to work from UPL earlier
than they intended to. In addition, if an employee is not on UPL when the child is stillborn,
the employee will still be able to start UPL, even if they have not previously given notice of
the taking of that leave.
The Bill will ensure that the entitlement to compassionate leave will be available to all
employees for whom the stillborn child would have been an immediate family or household
member if the child had been born alive. The Bill will also extend compassionate leave to an
employee who is on UPL following the stillbirth or death of the child in relation to whom the
employee is taking UPL.
The measures contained in this Bill will also enable parents to pause their UPL if their baby
is born prematurely, or is hospitalised immediately following birth, including due to
gestational or birth-related complications, by agreement with their employer. If an employer
and employee agree to the employee pausing their UPL, the employee will have more time to
spend at home with their baby after discharge from hospital.
The Bill will also create an exception to the general requirement that UPL must be taken in a
single continuous period, to allow parents to take up to 30 days of their 12 month UPL
entitlement flexibly, including as single days within 24 months of the child's birth, or
placement in the case of adoption. Flexible UPL will give families more choice and
flexibility in how they choose to combine care and work responsibilities, promoting mothers'
engagement in paid work in the early stage of their child's life and fathers' engagement in
providing care to their infant.
House of Representatives v Fair Work Amendment (Improving Unpaid
Parental Leave for Parents of Stillborn
Babies and Other Measures) Bill 2020
Statement of Compatibility with Human Rights
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.'1
The amendments that allow employees to take a portion of their UPL entitlement flexibly will
enhance parents' ability to balance their caring and professional responsibilities. These
amendments maintain existing protections for employees' right to return to their pre-parental
leave position following a period of parental leave by ensuring that the return to work
guarantee applies to all periods of UPL, including any leave taken flexibly.
The amendments that allow employers and employees to agree to the employee pausing their
UPL while their child is hospitalised will also give parents the social and financial benefits of
working while their child is in hospital and allow them to have more of their UPL period at
home with their baby.
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'.
Amendments to the Fair Work Act to improve flexibility for parents accessing UPL will not
reduce the existing entitlement to 12 months of UPL. The amendments will promote the
intent of maternity leave rights by ensuring that the return to work guarantee will continue to
apply to all periods of UPL, including any leave taken flexibly. The measures will support the
right to maternity leave by providing greater flexibility in how parents choose to use their
UPL in the first 24 months of their child's life and promote an understanding that it is
appropriate for mothers (and fathers) to take time out of the workforce to provide care for
their children. Amendments made by this Bill will complement recent changes to the
government-funded Paid Parental Leave scheme, which introduced the new flexible parental
leave payment (PLP), by providing employee parents who wish to access the new flexible
PLP with a corresponding flexible leave entitlement.
The changes that will enable parents of babies who are hospitalised immediately following
birth to return to work also better align UPL under the Fair Work Act with the PPL scheme.
Under the PPL scheme, parents are able to return to work during this period and continue to
receive the PLP.
1
Committee on Economic, Social and Cultural Rights, General Comment No. 16 ( 34th Session, 2005)
House of Representatives vi Fair Work Amendment (Improving Unpaid
Parental Leave for Parents of Stillborn
Babies and Other Measures) Bill 2020
Statement of Compatibility with Human Rights
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 UPL after experiencing a stillbirth, or the death of their child before 24
months. 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 UPL, 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.
Amendments to the Fair Work Act to allow parents to take a portion of their UPL flexibly
will support working parents to fulfil their responsibility to care for their child by providing
more choice in how UPL can be combined with paid work. These amendments will promote
the understanding that both parents have an important role to play in raising children by
facilitating flexible shared caring arrangements.
Amendments to enable parents to return to work while their child is hospitalised also provide
greater scope for parents to care for their child after discharge by extending the period of time
they have at home with their child. This also recognises that premature babies, who can
require a significant period of hospitalisation after birth, may also need greater care and
support in the year following their initial discharge from hospital.
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.
House of Representatives vii Fair Work Amendment (Improving Unpaid
Parental Leave for Parents of Stillborn
Babies and Other Measures) Bill 2020
Notes on Clauses
NOTES ON CLAUSES
In these notes on clauses, the following abbreviations are used:
Act Fair Work Act 2009
Bill Fair Work Amendment (Improving Unpaid Parental Leave for Parents of
Stillborn Babies and Other Measures) Bill 2020
NES National Employment Standards
PLP parental leave pay
PPL Act Paid Parental Leave Act 2010
PPL paid parental leave
UPL unpaid parental leave
Clause 1 - Short title
1. This is a formal provision specifying the short title.
Clause 2 - Commencement
2. The table in this clause sets out when the provisions of the Bill commence. Schedule 1,
which deals with amendments relating to stillbirth, death and hospitalisation of infant
children, will commence the day after Royal Assent. Schedule 2, which deals with
amendments to provide for flexible UPL, will commence immediately after Schedule 1.
Staggered commencement is necessary as there are some provisions that are amended by
both Schedules.
Clause 3 - Schedules
3. Clause 3 provides that each Act that is specified in a Schedule is amended or repealed as
set out in that Schedule, and any other item in a Schedule to the Bill has effect according
to its terms.
House of Representatives 1 Fair Work Amendment (Improving Unpaid
Parental Leave for Parents of Stillborn
Babies and Other Measures) Bill 2020
Schedule 1 - Amendments about stillbirth, death and hospitalisation of children
SCHEDULE 1 - AMENDMENTS ABOUT STILLBIRTH, DEATH AND
HOSPITALISATION OF CHILDREN
Overview
4. This Schedule would amend the NES to:
ensure that the entitlement to UPL is available in full to parents of a stillborn baby as
it would have been if their baby had lived;
remove the ability of employers to recall employees on UPL back to work or cancel
any upcoming planned period of UPL for which the employee has given notice if the
child is stillborn or dies within the first 24 months of life;
provide that an employee who is not on UPL when the child is stillborn, may still take
UPL even if they have not previously given notice of the taking of UPL;
provide parents with the entitlement to take compassionate leave while on UPL if
their child to which the UPL relates is stillborn or dies;
amend the entitlement to compassionate leave to make clear that an employee can
take compassionate leave in relation to a stillborn child; and
provide that where a baby remains in hospital or is hospitalised immediately
following birth, the employer and employee can agree to the employee returning to
work while their baby is in hospital and recommencing their UPL when the baby is
discharged.
Amendments to the Fair Work Act 2009
Item 1 - section 12
5. This item inserts a signpost definition of 'stillborn' into the Dictionary at section 12
which then refers readers to new subsection 77A(2).
Item 2 - section 70 (note)
6. This item repeals the current note to section 70 and replaces it with a more general note to
inform readers that the entitlement to UPL may be affected by other provisions of
Division 5 (parental leave and related entitlements). Provisions affecting section 70
include the new provisions dealing with an employee's entitlement to UPL if they
experience a stillbirth or death of a child within the first 24 months of life, or if their child
is hospitalised immediately after birth.
Item 3 - at the end of subsections 71(2) and 72(2)
7. This item inserts an identical note to the end of subsections 71(2) and 72(2) to clarify that
an employee is taken not to be on UPL during a permitted work period under new section
78A while the child remains in hospital due to premature birth or a birth-related
complication or illness.
House of Representatives 2 Fair Work Amendment (Improving Unpaid
Parental Leave for Parents of Stillborn
Babies and Other Measures) Bill 2020
Schedule 1 - Amendments about stillbirth, death and hospitalisation of children
Item 4 - paragraph 74(5)(a)
8. Paragraph 74(5)(a) currently sets out evidence requirements that apply to UPL that is
birth-related leave (defined in subsection 67(4)). This item amends paragraph 74(5)(a) to
enable an employer to require an employee who has given notice of the taking of birth-
related leave to provide evidence of:
a. the child's actual or expected date of birth; or
b. if relevant, that paragraph 77A(1)(a) (which deals with stillbirth) applies in
relation to the child.
9. Consistent with requirements to establish eligibility for leave elsewhere under the NES,
the employer may require that this evidence be a medical certificate (see section 74(6)).
Item 5 - at the end of subsection 74(6)
10. This item adds a legislative example at the end of section 74(6), which makes clear that
where an employee is seeking to take UPL in relation to a stillborn child, the type of
evidence an employer could require from the employee includes certification by a
medical practitioner of the child as having been delivered.
Item 6 - section 77A Effect of stillbirth or death of child on unpaid parental leave
Stillbirth - preserving entitlement to birth-related leave
11. This item repeals and replaces section 77A. Existing section 77A provides that if a
pregnancy ends other than by birth of a living child or the child dies after being born,
birth-related UPL may be cancelled by either the employer or employee before it starts,
or, if the UPL has already started, the employer may cancel the leave with at least six
weeks' notice and the employee may give notice that they want to return within four
weeks.
12. New section 77A makes clear that it deals with an employee's entitlement to UPL
following a stillbirth or death of a child during the first 24 months of life.
13. New subsection 77A(1) provides that, if a child is stillborn and the employee would have
been entitled to birth-related UPL if the child had been born alive, then the employee
continues to be entitled to UPL, despite the child being stillborn. This means parents of
stillborn children can access the UPL framework just like any other parent. For example,
once the amendments made by Schedule 2 commence, parents of stillborn babies will be
able to take flexible UPL if they choose.
14. In assessing an employee's eligibility for UPL under section 70 following a stillbirth,
regard would need to be had to whether the employee would have had a responsibility for
the care of the child if the child had been born alive (see subsection 70(b)).
15. New subsection 77A(2) contains the new definition of stillborn, which is the same as the
definition in the PPL Act. It provides that a stillborn child is a child:
House of Representatives 3 Fair Work Amendment (Improving Unpaid
Parental Leave for Parents of Stillborn
Babies and Other Measures) Bill 2020
Schedule 1 - Amendments about stillbirth, death and hospitalisation of children
a. who weighs at least 400 grams at delivery or whose period of gestation was at
least 20 weeks; and
b. who has not breathed since delivery; and
c. whose heart has not beaten since delivery.
16. New subsection 77A(3) deems references to the birth of a child in Division 5 (parental
leave and related entitlements) to include a reference to the stillbirth of a child. This is
necessary to ensure that existing provisions in the division that refer to the birth of a child
can operate in relation to parents of stillborn children.
17. A new note will make clear to the reader that one of the effects of new subsection 77A(3)
is that even if an employee has not given notice in accordance with section 74 before the
stillbirth of the child, the employee could do so as soon as practicable under existing
paragraph 74(2)(b). These are the same arrangements as apply for parents of live babies
who have not given notice before the birth of their child. Another effect of new
subsection 77A(3) is that at least one parent must generally start birth-related UPL no
later than the date of stillbirth under existing sections 71 and 72.
Stillbirth or death of child - cancelling leave or returning to work
18. New subsection 77A(4) provides that if an employee is entitled to UPL in relation to a
child and the child is stillborn or dies during the first 24 months of life:
a. before the period of leave starts, the employee may give his or her employer
written notice cancelling the leave (paragraph 77A(4)(a)); or
b. if the period of leave has already started, the employee may give his or her
employer written notice that the employee wishes to return to work on a specified
day (paragraph 77A(4)(b)).
19. New subsection 77A(5) specifies that the day for the purposes of paragraph 77A(4)(b)
must be at least 4 weeks after the day when the employer receives the notice.
20. The effect of subsections (4) to (5) is that it is only the employee and not their employer
who can decide whether to cancel or reduce a period of UPL following a stillbirth or
death of a child within the first 24 months of life. These subsections apply equally to
parents of an adopted child who dies within the first 24 months of life.
21. New subsection 77A(6) provides that if an employee has given notice under
subsection 77A(4), the employee's entitlement to UPL ends:
a. immediately after the employee cancels UPL under paragraph 77A(4)(a); or
b. immediately before the specified day under paragraph 77A(4)(b).
22. Once an employee has cancelled or reduced their period of UPL in accordance with new
subsection 77A(4), the employee is no longer entitled to any UPL. For example, if an
employee had intended to take several periods of concurrent UPL as well as flexible UPL
House of Representatives 4 Fair Work Amendment (Improving Unpaid
Parental Leave for Parents of Stillborn
Babies and Other Measures) Bill 2020
Schedule 1 - Amendments about stillbirth, death and hospitalisation of children
and cancels an upcoming planned period of concurrent UPL, the employee will have
cancelled all future notified UPL and will not be entitled to take any UPL after that time.
23. New subsection 77A(7) clarifies that nothing in new section 77A limits the capacity for
employers and employees to agree to reduce the period of UPL under existing section 77.
Item 7 - subsections 78(1) and (1A)
24. This item updates and consolidates existing subsections 78(1A) and (1) and is a
consequential amendment to clarify that section 78, which applies if the employee ceases
to have responsibility for the care of a child, does not apply if the child is stillborn or dies
within the child's first 24 months of life.
Item 8 - after section 78
Hospitalised children
25. This item inserts new section 78A, which provides special rules that apply in relation to
hospitalised children following birth.
26. Subsection 78A(1) allows an employee who has given notice of a period of UPL and
whose child is required to remain in hospital after birth, or is hospitalised immediately
after birth, to reach an agreement with their employer that the employee will not take
UPL for the period during which the child remains in hospital. This period of work while
the child is hospitalised is called the 'permitted work period'. Consistent with the existing
rules, if earlier notice is not practicable, the employee may give notice of a period of UPL
after the birth of the child. The parties can agree to the employee returning to work for all
or only part of the child's period of hospitalisation, but the permitted work period cannot
continue after the child is discharged.
27. Paragraph 78A(1)(a) sets out possible reasons why a child may be required to remain in
hospital or be hospitalised immediately after birth. These reasons include because:
a. the child was born prematurely; or
b. the child developed a complication or contracted an illness during gestation or at
birth; or
c. the child developed a complication or contracted an illness following birth.
28. A person can go back to work and continue to receive the PLP under the PPL scheme in
the same circumstances.
29. Importantly, the reasons specified in paragraph 78A(1)(a) in which a child may be
hospitalised are non-exhaustive and reflect the circumstances currently listed in the Paid
Parental Leave Rules 2010.
30. A new note to subsection 78A(1) reminds readers that the protection against undue
influence or undue pressure in section 344 can apply to an employee's decision about
whether to agree to a permitted work period.
House of Representatives 5 Fair Work Amendment (Improving Unpaid
Parental Leave for Parents of Stillborn
Babies and Other Measures) Bill 2020
Schedule 1 - Amendments about stillbirth, death and hospitalisation of children
31. New subsection 78A(2) sets out the following rules that apply to a permitted work period:
a. the employee is not on UPL during the permitted work period;
b. the permitted work period does not break the continuity of the employee's UPL;
and
c. the end date of the employee's UPL is automatically extended by a period equal to
the permitted work period.
32. A new note to subsection 78A(2) makes clear that where an employee has a period of
UPL either side of the permitted work period, the periods are still treated as a single
continuous period of UPL.
33. The effect of these rules is that an employee's UPL is effectively put on hold during the
permitted work period. Because the employee is not on unpaid leave during this period,
any work performed by the employee counts towards the employee's period of service
with the employer for the purpose of accruing leave and other entitlements under the
NES. Employees can also take any other form of leave other than UPL during the
permitted work period, such as paid personal/carer's leave.
34. The permitted work period has the effect of extending the employee's UPL end date,
regardless of the employee's working patterns. For example, if the permitted work period
lasted for 10 weeks, the employee's UPL end date would be extended by 10 weeks,
regardless of the number of days the employee worked each week during the period. This
ensures that employees can have as much time at home with their child after discharge
from hospital as they had intended.
When permitted work period must start
35. New subsection 78A(3) makes clear that a permitted work period must start after the birth
of the child. This means at least one parent will be on UPL prior to the permitted work
period because birth-related leave must start generally no later than the child's date of
birth (see existing subsections 71(3) and (4) and 72(3)).
When permitted work period ends
36. New subsection 78A(4) provides for when the permitted work period must end. The
permitted work period ends at the earliest of the following:
a. the time agreed by the employee and employer;
b. the end of the day of the child's first discharge from hospital after birth;
c. if the child dies before being discharged - the end of the day the child dies.
37. This means that an employee can end their permitted work period at a time agreed with
their employer, even if this date is before the child is discharged from hospital. Once the
permitted work period ends, the employee must resume UPL. If the child dies, the rules in
section 77A will apply to the employee's UPL entitlement. This means the employee will
House of Representatives 6 Fair Work Amendment (Improving Unpaid
Parental Leave for Parents of Stillborn
Babies and Other Measures) Bill 2020
Schedule 1 - Amendments about stillbirth, death and hospitalisation of children
be able to remain on UPL unless they provide four weeks' notice to their employer that
they wish to return to work.
Only one permitted work period allowed
38. New subsection 78A(5) provides that there can only be one agreed permitted work period
under subsection 78A(1). If the child is re-hospitalised at a later time during the UPL
period, the employee cannot take another permitted work period.
Evidence
39. New subsection 78A(6) enables an employer to require the employee to provide evidence
that would satisfy a reasonable person either that paragraph (1)(a) applies in relation to
the child, or that the employee is fit for work or both. New subsection 78A(7) clarifies
that the employer may request the evidence referred to in subsection (6) to be a medical
certificate.
Illustrative example - permitted work period
Carey's child is born prematurely at 29 weeks' gestation. She starts UPL on the date of birth
and gives her employer notice as soon as practicable that she will take eight months of UPL.
Carey's baby needs to be cared for in a neonatal intensive care unit (NICU) until he is ready
to go home. Carey's doctor does not know exactly how long her son will require
hospitalisation, but estimates it could be around three months.
One month after the birth, Carey decides she would like to return to work. Carey feels that
being around colleagues would give her a much needed sense of normalcy and she would like
to supplement her income given the unexpected hospital fees. Carey and her employer agree
that she will commence a permitted work period, which will end two months later.
During the permitted work period, Carey works her regular hours and continues to accrue
leave and other entitlements under the NES, such as annual leave. Because Carey is at work
during this time and not on UPL, she can access other leave entitlements as normal. For
example, one day Carey is sick and takes a day of paid personal leave.
Carey's son is discharged from hospital three months after his birth. Carey must recommence
UPL the day after her son is discharged, or on the day agreed with her employer, whichever
comes first. The end date of Carey's UPL is automatically extended by the permitted work
period, which in this case is two months. This means Carey can spend seven months at home
with her child on UPL. The periods of UPL Carey took either side of the permitted work
period are taken to be a single continuous period of eight months UPL in total.
Once Carey returns to UPL, the normal UPL rules apply. For example, Carey could extend
her UPL period up to a total of 12 months under existing section 75 and she could seek her
employer's agreement to extend her UPL period beyond 12 months under existing section 76.
If Carey's child returns to hospital at a later time during her UPL period, Carey cannot take
another permitted work period. If she would like to perform work during this second period
when her child is hospitalised, she must either end her UPL (in which case she will forfeit
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Parental Leave for Parents of Stillborn
Babies and Other Measures) Bill 2020
Schedule 1 - Amendments about stillbirth, death and hospitalisation of children
any remaining untaken UPL) or she can utilise her existing entitlement to up to 10 keeping in
touch days under section 79A, with the agreement of her employer.
Item 9 - subsection 79(2)
40. This item repeals subsection 79(2) and substitutes it with new subsection 79(2), which
provides that while an employee is taking UPL, the employee is not entitled to take:
a. paid personal/carer's leave; or
b. compassionate leave, unless the permissible occasion is the stillbirth or death of
the child in relation to whom the employee is taking unpaid parental leave.
41. The effect of this amendment is that employees will be able to take up to two days of
compassionate leave if the child in relation to whom the employee is taking UPL is
stillborn or dies.
Item 10 - paragraph 80(1)(b)
Item 11 - subsection 80(1) (after note 1)
42. The amendments made by these items make clear the interaction between the entitlement
to unpaid special maternity leave in section 80 and the entitlement to UPL under section
77A in the case of stillbirth. Currently, there may be circumstances when a female
employee could qualify for both types of leave if her pregnancy ends other than by the
birth of a living child, which may cause confusion for employers and employees.
43. The amendments repeal paragraph 80(1)(b) and substitute it with a new paragraph, which
makes clear that a female employee is not entitled to unpaid special maternity leave if her
child is stillborn. A new note reminds the reader that employees who experience a
stillbirth are entitled to UPL under section 77A.
44. The amendments also make a minor technical amendment to section 80 to reframe the
current requirement that the pregnancy end 'within 28 weeks of the expected date of
birth' to a pregnancy ending 'after a period of gestation of at least 12 weeks', consistent
with the structure of the new definition of stillbirth.
45. A female employee whose pregnancy ends after 12 weeks gestation who is not fit for
work will continue to be entitled to unpaid special maternity leave under section 80.
Item 12 - paragraphs 84A(b) and (c)
46. Section 84A currently requires an employer, before engaging an employee to perform the
work of another employee who is taking UPL, to notify the replacement employee that
the engagement is temporary and that the employee and employer have particular rights
and obligations under the Act. This item makes a consequential change to section 84A to
make clear that an employer is required to notify a replacement employee that the
employee on UPL:
a. has a right under section 77A to cancel UPL or end the leave early if the child is
stillborn or dies within the first 24 months of life; and
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Babies and Other Measures) Bill 2020
Schedule 1 - Amendments about stillbirth, death and hospitalisation of children
b. is entitled to the return to work guarantee under section 84.
Item 13- section 104
Item 14 - paragraph 105(1)(b)
47. These amendments make clear that an employee is entitled to compassionate leave in
relation to a stillborn child. The amendment to the entitlement in section 104 in this
circumstance is not restricted to parents of the stillborn child but extends to all
relationships currently covered by section 104. This includes all employees for whom the
stillborn child would have been an immediate family or household member if the child
had been born alive.
48. A consequential change to paragraph 105(1)(b) ensures employees can take
compassionate leave in relation to a stillbirth.
Item 15 - in the appropriate position in Schedule 1
49. This item inserts a new Part 9 - Amendments made by the Fair Work Amendment
(Improving Unpaid Parental Leave for Parents of Stillborn Babies and Other Measures)
Act 2020 into Schedule 1 to the Act.
Section 41 - Definitions
50. New section 41 provides that in new Part 9:
a. 'amending Act' is defined to mean the Fair Work Amendment (Improving Unpaid
Parental Leave for Parents of Stillborn Babies and Other Measures) Act 2020;
and
b. 'Schedule 1 commencement day' means the day on which Schedule 1 to the
amending Act commences.
Clause 42 - Amendments about stillbirth, death and hospitalisation of children
Unpaid parental leave
51. New clause 42 provides transitional arrangements in relation to stillbirth, death and
hospitalisation of children. As a general rule, the amendments made by Schedule 1 to the
Bill will apply to births, deaths and stillbirths that occur on or after the Schedule 1
commencement day.
52. New subclauses 42(1) to (3) provide transitional arrangements in relation to UPL. New
subclause 42(1) provides that the amendments made by Schedule 1 apply to stillbirths or
deaths of children on or after the Schedule 1 commencement day, subject to clauses (2) to
(4).
53. New subclause 42(2) provides that section 78A, which provides rules in relation to
hospitalised children, applies to children born on or after the Schedule 1 commencement
day.
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Parental Leave for Parents of Stillborn
Babies and Other Measures) Bill 2020
Schedule 1 - Amendments about stillbirth, death and hospitalisation of children
54. New subclause 42(3) provides that the consequential change to section 84A regarding
replacement employees applies if:
a. the replacement employee is engaged on or after the Schedule 1 commencement
day; and
b. the child in relation to whom the employee is taking UPL was not stillborn, or did
not die, before the Schedule 1 commencement day.
Unpaid special maternity leave
55. New subclause 42(4) provides that the amendments to unpaid special maternity leave
apply to a pregnancy that ends on or after the Schedule 1 commencement day.
Compassionate leave
56. New subclause 42(5) provides that the amendments to compassionate leave apply in
relation to stillbirths that occur on or after the Schedule 1 commencement day.
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Parental Leave for Parents of Stillborn
Babies and Other Measures) Bill 2020
Schedule 2 - Amendments about flexible unpaid parental leave
SCHEDULE 2 - AMENDMENTS ABOUT FLEXIBLE UNPAID PARENTAL LEAVE
Overview
57. Schedule 2 will amend the Act to provide the ability for employees who are eligible to
take UPL to take up to 30 days of their 12-month entitlement to UPL flexibly. Employees
will be able to take flexible UPL, including on a single day-at-a-time basis, within 24
months of the birth or adoption of the child. If an employee is also intending to take
another period of UPL other than flexible UPL, that other period must be taken first. That
is, once an employee has accessed flexible UPL they will no longer be able to access any
other form of UPL in relation to that child.
58. Consistent with the existing framework, employees wishing to take flexible UPL will be
required to give written notice of two components of their leave:
First, they must specify the number of days of flexible UPL they intend to take. This
will generally be at least 10 weeks before they commence a period of UPL, unless
their employer agrees to a later date.
Second, employees must specify a day on which the employee will take flexible UPL
at least four weeks before the day, or, if this is not practicable, as soon as practicable.
Fair Work Act 2009
Item 1 - section 12
59. This item inserts three new signpost definitions into the Dictionary at section 12 of the
Act:
a. flexible day (new subsection 74(3C));
b. flexible unpaid parental leave (new subsection 72A(1)); and
c. notional flexible period (new subsection 72A(6)).
Item 2 - Section 12 (definition of pre-parental leave position)
60. This item moves the definition of 'pre-parental leave position' from subsection 83(2) of
the Act to the Dictionary at section 12, and makes a consequential amendment to the
definition to make clear its operation in relation to periods of flexible UPL. This
definition is relevant to an employer's consultation obligations during UPL under section
83 and the return to work guarantee in section 84.
61. The amended definition makes clear that an employee's pre-parental leave position in
relation to a particular period of UPL is the position the employee held before starting
that period of leave, disregarding any reduced working hours due to pregnancy or any
transfer to a safe job that occurred before that period of leave. In the case of an employee
taking flexible UPL (irrespective of the length), this will be the position they were
employed in immediately before they took that period of flexible UPL. For further
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Parental Leave for Parents of Stillborn
Babies and Other Measures) Bill 2020
Schedule 2 - Amendments about flexible unpaid parental leave
guidance on the operation of this definition in the context of the return to work guarantee,
see paragraph 109 below.
Item 3 - subsection 69(2) (note)
62. Subsection 69(2) provides that if an employee who has taken a step that is required or
permitted by a provision in Division 5 (parental leave and related entitlements) in relation
to one employer and their employment is transferred to another employer, the employee is
deemed to have taken that step in relation to the other employer.
63. The existing note to subsection 69(2) provides examples of the steps covered by
subsection 69(2) and lists all steps that can be taken under section 74, which deals with
notice and evidence requirements. This item amends the note to refer more generally to
complying with notice and evidence requirements under section 74. This is a
consequential change to account for the additional steps that may be required or permitted
as a result of the new measures in this Bill.
Item 4 - subsection 71(2) (notes 2 and 3)
Item 5 - subsection 72(2) (notes 2 and 3)
64. Subsections 71(2) and 72(2) contain the general rule that unpaid parental leave must be
taken in a single continuous period. There are a number of exceptions to that rule,
including the new exceptions in the Bill for flexible UPL and the capacity to work while a
child is hospitalised immediately after birth (new section 78A as inserted by Schedule 1
to the Bill). Other existing exceptions to this rule include where pregnant employees may
be required to take UPL within 6 weeks before birth (see subsection 73(4)), and
entitlements to take concurrent UPL (see subsection 72(5)), and keeping in touch days
(see section 79A). Notes 2 and 3 to each of subsections 71(2) and 72(2) refer to some, but
not all, of these exceptions.
65. These items repeal notes 2 and 3 to each of subsections 71(2) and 72(2) and inserts a new
note to each subsection that lists each of the relevant exceptions to the general rule that
UPL must be taken in a single continuous period.
66. Note 3 to subsections 71(2) and 72(2), dealing with the capacity to work while a child is
hospitalised immediately after birth, will only have been inserted by Schedule 1 to this
Bill. This is necessary because Schedule 1 may commence before this Schedule.
Item 6 - subsection 72(3)
Item 7 - paragraph 72(3)(a)
Item 8 - subparagraph 72(3)(a)(i)
Item 9 - paragraph 72(3)(b)
Item 10 - subsection 72(4)
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Schedule 2 - Amendments about flexible unpaid parental leave
Item 11 - paragraph 72(4)(b)
67. The amendments to subsections 72(3) and (4) made by these items are consequential to
the creation of the new flexible UPL. They ensure that the rules are clear for members of
an employee couple who take a 'continuous' main block of UPL in accordance with
section 72 about when that block of leave must start for each member of the employee
couple.
Item 12 - paragraph 72(6)(a)
Item 13 - paragraph 72(6)(b)
68. These items make minor technical amendments to reformat paragraphs 72(6)(a) and (b) to
be consistent with the structure of other similar provisions in the division.
Item 14 - at the end of section 72
69. This item inserts new subsection 72(7), which provides that, to avoid doubt, if one parent
takes flexible UPL during another parent's period of UPL, the parent taking flexible UPL
is not taken to be taking 'concurrent leave' (see subsection 72(5)). This clarifies that
flexible UPL and concurrent leave are two different subtypes of UPL and ensures that
certain rules that apply to concurrent leave do not apply to flexible UPL, such as the
requirement to take concurrent leave in minimum two-week blocks.
70. A new note to subsection 72(7) makes clear that the combined effect of this subsection,
existing paragraph 72(5)(a) and new subsection 72A(9) is that the current maximum of
period of UPL that two parents may take at the same time of eight weeks is retained,
whether the leave consists of concurrent leave, or a mixture of concurrent and flexible
UPL.
Item 15 - after section 72
Taking up to 30 days' leave during 24 months starting on date of birth or day of placement
71. This item inserts new section 72A, which provides for flexible UPL.
72. New subsection 72A(1) allows an eligible employee to take up to 30 days of the 12
months of UPL to which they are entitled under section 70 as flexible UPL. Flexible UPL
can only be taken within the 24 month period starting from the child's date of birth (or
date of placement in the case of adoption). As a result, employees cannot take flexible
UPL before the child's birth or placement.
73. New note 1 to subsection 72A(1) reminds the reader that, because flexible UPL is a form
of UPL, it comes out of the employee's entitlement to up to 12 months' UPL under
section 70. This means the new entitlement to take up to 30 days of flexible UPL does not
increase or decrease the overall existing entitlement of up to 12 months' UPL.
74. New note 2 to subsection 72A(1) clarifies that the number of days of flexible UPL that
the employee can take cannot be more than the number of days they have provided notice
to their employer that they will take under section 74. For example, if an employee has
notified their employer under section 74 that they will take 20 days of flexible UPL, they
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Parental Leave for Parents of Stillborn
Babies and Other Measures) Bill 2020
Schedule 2 - Amendments about flexible unpaid parental leave
are not entitled to take more than 20 days of flexible UPL, noting that an employer can
agree to an employee increasing the number of days of flexible UPL they will take up to a
maximum of 30.
75. New subsection 72A(2) makes clear that the ability to take up to 30 days of flexible UPL
is available in full to part-time and casual employees who are entitled to UPL.
How flexible unpaid parental leave may be taken
76. New subsection 72(3) allows an employee to take flexible UPL in one continuous period
of one or more days or as separate periods of at least one or more days. This means
employees can take multiple days of flexible UPL in a row, or they can take a single day
flexibly, but employees cannot take flexible UPL for less than a day. This aligns with the
operation of the flexible PLP scheme.
Effect of taking unpaid parental leave under other provisions
77. New subsection 72A(4) makes clear that an employee can take flexible UPL whether or
not they have taken another form of UPL under another provision of Division 5 (parental
leave and related entitlements). This means an employee can take flexible UPL as their
only form of UPL if they choose.
78. New subsections 72A(5) to (7) provide rules for deducting any period of flexible UPL an
employee chooses to take from the employee's existing 12 month UPL entitlement.
79. New subsection 72A(5) effectively provides that an employee's entitlement to take any
other form of UPL (other than flexible UPL) is 12 months less the employee's 'notional
flexible period' (disregarding any extension under section 76).
80. The 'notional flexible period' is an abstract concept that allows the capped 12 month
entitlement to UPL to be reduced by the amount of flexible UPL an employee intends to
access in a way that is consistent for all employees, regardless of their specific working
patterns or the particular days on which they ultimately take their flexible UPL days. This
is because all employees, regardless of their specific working patterns, are entitled to the
same overall 12 month period of UPL.
Meaning of notional flexible period
81. New subsections 72A(6) and (7) provide the new definition of 'notional flexible period',
being the period that the employee would be on flexible UPL if the employee took all the
flexible leave days in a single continuous block, assuming the employee ordinarily works
full-time Monday to Friday and there are no public holidays during the period. For
example, for an employee taking:
a. the full 30 flexible days, the notional flexible period would be six weeks;
b. 20 flexible days, the notional flexible period would be four weeks;
c. 12 flexible days, the notional flexible period would be two weeks and two days, or
16 calendar days (two weeks including weekends plus two more days).
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Babies and Other Measures) Bill 2020
Schedule 2 - Amendments about flexible unpaid parental leave
82. The effect of these provisions is that an employee's entitlement to take a continuous
period of 12 months of UPL will be reduced by the amount of flexible UPL an employee
elects to take by reference to a standard five-day working week.
Illustrative example 1 - 'notional flexible period' and return to work for 30 flexible
days
Catriona is employed on a full-time basis. She intends to take a 'continuous' period of UPL
under section 71 starting on Thursday 1 July 2021. Catriona also wishes to take 30 days of
flexible UPL within the 24 months of her child's life. As such, Catriona's notional flexible
period is six weeks. The last day on which Catriona could be on her continuous period of
UPL would therefore be Thursday 19 May 2022 and she would be required to return to
work the following day. Catriona may then use her 30 flexible UPL days as suits her needs
until her child's second birthday.
Illustrative example 2 - 'notional flexible period' and return to work for 10 flexible
days
Huon is employed Friday to Monday each week. He is in the process of adopting a child
and decides to take a 'continuous' period of UPL under section 71 starting on the child's
day of placement, Friday 30 July 2021. Huon also chooses to take ten days of flexible UPL.
This means Huon's notional flexible period is two weeks. The last day Huon could remain
on his continuous period of UPL would therefore be Friday 15 July 2022. If he took the full
period of leave, his first day back at work would therefore be Saturday 18 July 2022.
Illustrative example 3 - 'notional flexible period' and return to work for 20 flexible
days with a previous period of concurrent leave
Juan is employed Monday to Thursday each week. Juan's partner plans to take eight months
of 'continuous' UPL under section 72 starting on their child's date of birth, and Juan
decides to take four weeks of concurrent leave starting on the same day and 20 days of
flexible UPL before his child turns two. Juan's child is born on Wednesday 1 September
2021. The last day of Juan's period of concurrent leave is Tuesday 28 September 2021 and
the last day of his partner's period of UPL is 30 April 2022.
Juan also decides to take a period of continuous UPL starting immediately after his
partner's period of UPL (on 1 May 2022). As Juan is taking 20 flexible UPL days, this
means his notional flexible period is four weeks. The last day Juan's continuous period of
UPL could be is therefore Sunday 5 March 2023 at the latest (12 months continuous UPL
less four weeks concurrent leave, less the notional flexible period).
Entitlement to take unpaid parental leave under other provisions ends on taking flexible
unpaid parental leave
83. New subsection 72A(8) provides that an employee's entitlement to any other UPL (other
than flexible UPL) ends on the first day the employee takes flexible UPL. A new note
clarifies that the effect of subsection 72A(8) is that any period of UPL an employee
wishes to take in addition to a period of flexible UPL must be taken first, before any
period of flexible UPL. This is consistent with the operation of the new flexible PLP
scheme.
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Parental Leave for Parents of Stillborn
Babies and Other Measures) Bill 2020
Schedule 2 - Amendments about flexible unpaid parental leave
Members of employee couples
84. New subsection 72A(9) ensures that employee couples will each be able to take flexible
UPL on the same day, however, employee couples will continue to be able to take a
maximum of eight weeks of UPL at the same time. A new note reminds the reader that
UPL taken by one member of an employee couple at the same time as the other member
of the employee couple could be concurrent leave (see subsection 72(5)) or flexible UPL.
Illustrative example - members of an employee couple taking UPL together, including
flexible UPL and concurrent leave
Ann and Steve are having a baby together. Ann decides to take 16 weeks of 'continuous'
UPL under section 72 commencing two weeks prior to the baby's expected date of birth.
She also decides she will take 30 days of flexible UPL before her child turns two. Steve
decides to take four weeks of concurrent leave starting on the child's date of birth and 30
days of flexible UPL at a later time before the child's second birthday.
Ann and Steve's baby is born on its expected due date. After Steve's four weeks of
concurrent leave, he returns to work while Ann remains on UPL. When Ann returns to
work, Steve's parents look after their child for three months, after which time Steve will
take 20 days of flexible UPL as a four-week block.
Ann returns to work after her 16 weeks of continuous UPL and, after his parents' three
months looking after the baby, Steve starts his four weeks of flexible UPL in one block.
Ann and Steve organise to attend an interview at their preferred child-care centre on a day
four weeks later, and both Ann and Steve want to attend. Ann decides to take flexible UPL
on the day she attends the interview. This means Ann and Steve are both on UPL at the
same time on the day they attend the interview. This is possible because the total period that
Ann and Steve have previously been on UPL at the same time is four weeks (when Steve
took concurrent leave at the child's birth), which falls well below the eight week maximum.
However, if Steve had taken eight weeks of UPL at the time of the birth while Ann was on
UPL, Ann would not have been able to take flexible UPL to attend the interview as the
couple would have already used their maximum entitlement of eight weeks' UPL at the
same time. Ann could still use any accrued annual leave or miscellaneous leave to attend the
interview.
Multiple births
85. New subsection 72A(10) ensures that if an employee has twins, triplets etc., or adopts
more than one child at the same time, the employee can only take a maximum of 30 days
of flexible UPL, rather than 30 days in relation to each child.
Interaction with sections 71 and 72
86. New subsection 72A(11) clarifies that any period of flexible UPL an employee takes is an
exception to the rules in sections 71 and 72:
a. about when UPL must start; and
b. that UPL must be taken in a single continuous period.
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Schedule 2 - Amendments about flexible unpaid parental leave
Item 16 - at the end of subsection 73(3)
87. This item adds a new note to subsection 73(3), which clarifies that an employer cannot
require a female employee who is pregnant with a child to take flexible UPL prior to the
birth of the child under section 73. This is because leave under section 73 is taken prior to
birth, and flexible UPL can only be taken from the day of birth.
Item 17 - subsection 73(4)
88. This item makes a minor technical amendment to reformat subsection 73(4) to be
consistent with the structure of other similar provisions in the Division.
Item 18 - subsection 74(1) (heading)
Item 19 - subsection 74(1)
89. Section 74 currently sets out the notice and evidence requirements for taking a period of
UPL. These items make consequential amendments to subsection 74(1) to make clear that
an employee must give their employer written notice of the taking of UPL, whether under
sections 71 or 72 or as flexible UPL.
Item 20 - before subsection 74(2)
Item 21 - subsection 74(2)
90. These items are consequential amendments to clarify that the existing notice requirements
in subsection 74(2) apply in relation to leave taken under section 71 or 72, but not in
relation to flexible UPL. Notice requirements for taking flexible UPL will be provided in
new subsections 74(3A) to (3D).
Item 22 - after subsection 74(3)
91. This item inserts new subsections 74(3A), (3B), (3C) and (3D), which provide the first of
two sets of notice requirements in relation to flexible UPL.
92. New subsections 74(3A) and (3C) require an employee to give written notice to their
employer of the total number of days (flexible days) of flexible UPL that the employee
wishes to take.
a. If the employee wishes to take flexible UPL and another period of UPL under
either section 71 or 72, the notice must be given at the same time the employee
gives notice of the taking of the first period of UPL the employee will take in
relation to the child (paragraph 74(3A)(a)). This will be at least ten weeks before
the first period of UPL, or, if that is not practicable, as soon as practicable (which
may be a time after the leave has started) (see subsection 74(2)).
b. If an employee wishes to only take flexible UPL, the notice must be given at least
ten weeks before the employee starts flexible UPL (paragraph 74(3A)(b)).
93. However, the employer can agree to the notice under subsection 74(3A) being given at a
later time (subsection 74(3B)).
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Babies and Other Measures) Bill 2020
Schedule 2 - Amendments about flexible unpaid parental leave
94. New subsection 74(3D) allows for an employee to change the number of flexible days in
the notice, with the agreement of their employer. This includes that the employer may
agree to reduce the number of flexible days to zero, or increase the number of flexible
days to no more than 30.
Illustrative example 1 - notice of 'continuous', concurrent and flexible leave when
both parents intend to take UPL
Zara and Kayzad are having a baby together. Zara decides to take 12 months of
'continuous' UPL under section 72 commencing three weeks before her child's expected
date of birth and notifies her employer ten weeks before starting that period of leave. Four
weeks before she is due to begin her continuous UPL, Zara confirms with her employer the
start and end dates of her UPL.
Kayzad decides to take four weeks of concurrent leave starting on their child's date of birth.
He and Zara have not yet decided whether he will take a 'continuous' period of UPL after
Zara's 12 month period has ended, but he does know he wants to be able to take five days of
flexible UPL at some stage before their child turns two. Ten weeks before their child's
expected date of birth, he gives his employer written notice of the four weeks of concurrent
leave and five days of flexible UPL he intends to take. Four weeks before starting
concurrent UPL, Kayzad confirms the start and end dates of that period of leave.
During Zara's 12-month period of UPL, she and Kayzad decide he will take a six-month
period of continuous UPL starting immediately after Zara's period of continuous UPL ends.
Ten weeks before the end of Zara's UPL, Kayzad gives his employer written notice that he
will take six months of continuous UPL. Four weeks before commencing his continuous
UPL, Kayzad confirms the start and end dates of this period of leave.
Illustrative example 2 - employer's agreement required to change notified UPL and
later request to take flexible UPL days not previously notified
Simone works full-time. Ten weeks before the expected date of birth of her child, Simone
gives her employer written notice that she will take ten months of 'continuous' UPL under
section 71, starting on her child's date of birth. She also gives written notice confirming the
start and end dates four weeks before starting the leave.
When Simone's child is six months old, Simone has an unexpected change in her financial
circumstances and realises she cannot afford to continue on UPL for another four months.
Simone would like to return to work, but thinks she would benefit from being able to take
30 days of flexible UPL up until her child's second birthday.
Simone has no automatic right to come back to work early without her employer's
agreement. Since Simone did not give her employer notice that she would take flexible UPL
at the same time she notified her employer that she would be taking continuous UPL, she
also has no automatic right to take flexible UPL without her employer's agreement.
However, Simone's employer is happy to agree to her reducing her continuous UPL period
and giving notice that she will take 30 days of flexible UPL.
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Schedule 2 - Amendments about flexible unpaid parental leave
Illustrative example 3 - notice of flexible UPL has been given, but employee later
decides they would rather take an unbroken 12 month period of UPL instead
Lewis and his partner are having a baby, and they have decided that only Lewis will take
UPL. Ten weeks before his child's expected date of birth, Lewis gives his employer written
notice that he will take 46 weeks of 'continuous' UPL under section 71 starting on his
child's date of birth and 30 days of flexible UPL at a later time before his child turns two.
Four weeks before starting his initial continuous block, Lewis gives his employer written
notice confirming the start and end dates of that period of leave.
Lewis' child is born on the expected due date. Six months in to his UPL, Lewis decides he
would like to take a full, unbroken 12 months at home with his child. Lewis' employer
agrees to reduce the number of flexible UPL days he will take to zero so that Lewis is then
able to exercise his existing right under section 75 to extend his continuous period of UPL
up to the full 12 months.
While Lewis could have chosen to take each of his 30 flexible UPL days in a continuous
block immediately after his continuous period of UPL ends, he decides not to do this so that
he is still able to request to extend his UPL beyond 12 months under section 76 (which he
would not have been able to do had he started taking flexible UPL). Lewis is also keen to
use the remainder of his entitlement to keeping in touch days under section 79A, which he
cannot use once he has started flexible UPL.
Item 23 - subsection 74(4) (heading)
Item 24 - subsection 74(4)
95. These items make consequential amendments to clarify that the existing requirement in
subsection 74(4) that an employee confirm the start and end dates of their UPL at least
four weeks before starting that period of leave only applies to UPL taken under sections
71 or 72, not to flexible UPL.
Item 25 - after subsection 74(4A)
Taking flexible unpaid parental leave - notifying days on which employee will take leave
96. This item inserts new subsection 74(4B), which provides the second set of notice
requirements in relation to flexible UPL.
97. Under subsection 74(4B), an employee must give their employer written notice of a
particular day on which the employee will take flexible UPL:
a. at least four weeks before the day the employee will take flexible UPL; or
b. if that is not practicable, as soon as practicable (which may be after the leave has
started).
98. An employee can provide multiple notices for each flexible day they are taking, or a
single notice setting out multiple specific dates. For example, they could provide for all
their flexible days in one notice provided four weeks before the first of those flexible
days.
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Parental Leave for Parents of Stillborn
Babies and Other Measures) Bill 2020
Schedule 2 - Amendments about flexible unpaid parental leave
99. Subsection 74(4C) allows an employee to change the day on which the employee takes
their flexible UPL from the day specified in their notice to their employer provided under
s 74(4B), if their employer agrees.
Illustrative example 1 - notice of the taking of flexible UPL in a consistent pattern
Geraldine is nearing the end of a 'continuous' period of 8 months of UPL under section 71,
and has previously given her employer the required notice that she intends to take 30 days
of flexible UPL. Four weeks before Geraldine takes her first day of flexible UPL, she
provides her employer with notice that she will take a day of flexible UPL every Friday for
30 weeks. Since Geraldine has given her employer notice of the days on which she will take
all of her flexible days at least four weeks in advance, she does not need to give her
employer any further notice in order to take flexible UPL.
If Geraldine wanted to modify this arrangement in order to take a single day of flexible UPL
other than on a specified Friday, she would need her employer's agreement to do so.
Illustrative example 2 - notice of the taking of a day of flexible UPL 'as soon as
practicable'
Kayzad is back at work after he took six months of 'continuous' UPL under section 72
immediately after his wife, Zara, finished her 12 months of UPL (which started three weeks
before birth). Kayzad has left available to him the five days of flexible UPL he previously
gave his employer the required notice that he intended to take.
One day, the childcare centre announces an upcoming 'parents afternoon' including a
concert put on by the children. The event is going to be held in three weeks' time, during
Kayzad's ordinary working hours. Kayzad decides to use one of his five flexible UPL days
to take the whole day off in order to attend the afternoon event. As Kayzad did not know
about the event in advance, he cannot give his employer the normal four weeks' notice, so
gives notice as soon as practicable, being as soon as he finds out about the event.
Item 26 - subsection 74(5) (at the end of the heading)
100. This item is a technical amendment to add 'requirements' to the end of the heading.
Item 27 - subsection 74(7)
101. This item is a consequential amendment to make clear that an employee is not entitled
to take flexible UPL unless they comply with the relevant notice and evidence
requirements.
Item 28 - paragraph 75(1)(a)
102. This item is a consequential amendment to make clear that the right to extend a period of
UPL under section 75 only applies to a 'continuous' period of UPL taken under sections
71 or 72, and not to flexible UPL.
House of Representatives 20 Fair Work Amendment (Improving Unpaid
Parental Leave for Parents of Stillborn
Babies and Other Measures) Bill 2020
Schedule 2 - Amendments about flexible unpaid parental leave
Item 29 - at the end of subsection 75(2)
103. The amendment made by this item ensures that any flexible UPL an employee has given
notice that they will take is accounted for in working out whether they are eligible to (and
if so by how much they can) extend their 'continuous' UPL under section 75 (extending
where an employee is not otherwise taking their full 12 months) or section 76 (extending
beyond the initial 12 month period).
Item 30 - subsection 76(1)
104. This item is a consequential amendment to make clear that the right to request to extend a
period of UPL under section 76 beyond 12 months only applies to a 'continuous' period
of UPL taken under sections 71 or 72, and not to flexible UPL.
Item 31 - paragraphs 76(6)(a) and (b)
105. This item makes consequential amendments to subsection 76(6) to ensure that any
flexible UPL a member of an employee couple has taken or given notice that they will
take is factored in when determining the length of any possible extension of UPL beyond
12 months with the employer's agreement under section 76.
Item 32 - at the end of section 79A
106. This item inserts new subsection 79A(5), which provides that the entitlement to take
keeping in touch days while on UPL does not apply when an employee is on flexible
UPL. This is because keeping in touch days are designed to assist employees during a
long, continuous period of leave, whereas employees who are taking flexible UPL days
are already part of the workplace.
Item 33 - subsection 83(1)
Item 34 - paragraph 83(1)(a)
107. These items amend subsection 83(1) to make clear that the requirement for an employer
to consult an employee on UPL about decisions that will have a significant effect on the
status, pay or location of the employee's pre-parental leave position does not apply to
employees on flexible UPL. This is because employees on flexible UPL are not away
from their job for a long period of time and will therefore be treated like any other
employee taking short periods of leave.
108. Employees on flexible UPL are also protected under the general protections (see Part 3-
1), including from adverse action because they have exercised a workplace right, such as
the right to take leave.
Item 35 - subsection 83(2)
Item 36 - section 84
109. These items ensure that the return to work guarantee applies to all employees on UPL,
including employees on periods of flexible UPL. In combination with the changes to the
definition of 'pre-parental leave' (made by item 2, see paragraphs 60 and 61 above), this
House of Representatives 21 Fair Work Amendment (Improving Unpaid
Parental Leave for Parents of Stillborn
Babies and Other Measures) Bill 2020
Schedule 2 - Amendments about flexible unpaid parental leave
means that when an employee takes a period of flexible UPL, the return to work
guarantee applies to the position the employee held immediately before that period of
UPL, and not to the position the employee held before they took their first period of UPL.
Illustrative example - return to work guarantee for periods of flexible UPL
Katherine is employed as an associate structural engineer at a small engineering firm. She
works full-time, Monday to Friday. Katherine decides to take eight months of UPL starting
four weeks before her child's expected date of birth and five days of flexible UPL before
her child's second birthday.
When Katherine returns to work after the first eight-month period of UPL, she is entitled to
return to the position of full-time associate structural engineer, which is the role she held
immediately before that period of leave.
Three months later, Katherine is promoted to the position of principal structural engineer.
To ease the transition into this new role, Katherine decides to take a day of flexible UPL
each Monday for five weeks. During this period, every Tuesday when Katherine returns to
work following a day of flexible UPL, she is entitled to return to the position she held
immediately before that day of leave, which in this case would be the principal structural
engineer role.
Item 37 - section 84A
Item 38 - at the end of section 84A
110. The amendments to section 84A made by these items provide that the notification
requirements for replacement employees do not apply in relation to a period of flexible
UPL. This is because employees may take flexible UPL for a very short period, including
for a single day. The purpose of the notification requirements relating to replacement
employees contemplate replacements employees covering long periods of leave.
Item 39 - section 106E
111. Item 39 amends section 106E to include the entitlement to 30 days of flexible UPL as
another type of non-accrual or occasion-based leave entitlement provided by reference to
'days'.
Item 40 - clause 41 of Schedule 1
112. This item provides that in new Part 9 of Schedule 1 to the Act (as inserted by Schedule 1
to the Bill), 'Schedule 2 commencement day' means the day on which Schedule 2 to the
amending Act commences.
Item 41 - at the end of Part 9 of Schedule 1
Clause 43 - Amendments about flexible unpaid parental leave
113. This item inserts a new clause 43 at the end of Part 9 of Schedule 1 to the Act. Clause 43
provides transitional arrangements in relation to flexible UPL.
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Parental Leave for Parents of Stillborn
Babies and Other Measures) Bill 2020
Schedule 2 - Amendments about flexible unpaid parental leave
114. Subclause 43(1) provides that the new entitlement to flexible UPL only applies in relation
to a child if the child's date of birth or day of placement is on or after the Schedule 2
commencement day.
115. Subclauses 43(2) to (5) provide transitional arrangements for employees who gave notice
to their employer of the taking of UPL before the Schedule 2 commencement day, but
their child was born or placed on or after that day. These employees would be eligible for
flexible UPL and flexible PLP, but would not be able to comply with the relevant notice
requirements for flexible UPL without these transitional arrangements.
116. Subclause 43(2) gives these employees one month from the Schedule 2 commencement
day to amend their notice of UPL to accommodate any intention to take a portion of their
UPL flexibly. The amended notice must specify the number of days of flexible UPL that
the employee intends to take (subclause 43(3)), and may bring forward the return to work
date that applies in relation to the employee's continuous period of UPL, but only if the
change is necessary to allow the employee to take flexible UPL (subclause 43(4)). This
means an employee cannot bring their return to work date forward by more than six
weeks.
Illustrative example - employee decides, under the transitional provisions, to amend
notice previously given to take advantage of the new flexible UPL
Isobel gave her employer written notice prior to the Schedule 2 commencement day that she
will take 12 months of 'continuous' UPL under section 71 starting two weeks before the
birth of her child (who is due five weeks after the Schedule 2 commencement day).
After the new provisions providing for flexible UPL commence, Isobel decides that she
wants to take advantage of the new capacity to take flexible UPL. A week after the
Schedule 2 commencement day, Isobel amends her notice with her employer to specify that
she will take 30 days of flexible UPL. This will bring forward Isobel's return to work date
that applies to her continuous period of UPL by six weeks. As originally notified (and
which was not altered by Isobel amending her notice to account for flexible UPL), Isobel
commences her continuous period of UPL two weeks later.
Had Isobel specified that she wanted to take fewer flexible days then her originally notified
'continuous' period would have been reduced by a shorter period. For example, had Isobel
only specified in her amended notice that she will take 20 days of flexible UPL, her return
to work date would only come forward by four weeks.
117. The amended notice is taken to comply with the notice requirements for flexible UPL
(subclause 43(5)).
118. Subclause 43(6) provides that an employee who amends their notice within the one month
period after the Schedule 2 commencement day to accommodate the taking of flexible
UPL cannot take a day of flexible UPL within four weeks of amending their notice.
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Parental Leave for Parents of Stillborn
Babies and Other Measures) Bill 2020