Issue 1 2021 - Important changes to parental leave provisions

Updated: Jun 28

The Fair Work Act unpaid parental leave provisions have been changed to improve conditions for when a baby is stillborn and provide greater flexibility for parents when a baby is hospitalised or dies. Parents can also now take some of their unpaid parental leave flexibly - rather than in a single block as previously required. Employers should ensure they understand the new rules.


Following the Senate Select Committee on Stillbirth Research and Education Report, and changes made to the government paid parental leave scheme last year, the Fair Work Act 2009 (Cth) has been amended to provide greater support for employee parents when traumatic events occur in relation to childbirth and unpaid parental leave (“UPL”).

The Fair Work Amendment (Improving Unpaid Parental Leave for Parents of Stillborn Babies and Other Measures) Bill 2020 received royal assent on 26 November 2020. The main changes are:

  • Parents of stillborn babies now 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).

  • An employer can no longer recall a parent on UPL back to work or cancel any upcoming planned period of UPL following a stillbirth or death of an infant. If employees in these circumstances wish to return to work earlier, they may do so by providing their employer with at least four weeks’ written notice.

  • Employees who are on UPL may take compassionate leave following the stillbirth or death of the child in relation to whom the employee is taking UPL.

  • Employees can 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.

  • Parents who experience premature birth and other birth-related complications that require the baby to be hospitalised immediately following birth may now 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. Previously, the UPL had to be taken in one block, even though the new parents would effectively have less time at home with the newborn.

  • Parents can now 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 flexible UPL.

Employees who wish to make a permanent change to their working arrangements after returning from UPL already 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.

What should employers do?

Employers should ensure they understand these changes. They should also review all policies and procedures to ensure they reflect the new flexibility. Contracts for replacement employees should be amended to ensure that they are flexible enough to cope with these potential variations to a period of parental leave.

Require further information/assistance?

If you require further information or specific advice about your situation, please contact one of our consultants.