Changes to Unpaid Parental Leave under the Fair Work Act

New National laws have commenced amending unpaid parental leave entitlements for parents of stillborn babies and babies requiring hospitalisation.

Fair Work Amendment (Improving Unpaid Parental Leave for Parents of Stillborn Babies and Other Measures) Act 2020 No.105 (Cth)

This article applies to all employers.

On 27 November 2020, the Fair Work Amendment (Improving Unpaid Parental Leave for Parents of Stillborn Babies and Other Measures) Act 2020 No.105 (Cth) (the Amending Act) amended the Fair Work Act 2009 (Cth) (the Act).

The key changes brought about by the Amending Act are discussed below.

Extended access to unpaid parental leave

Stillborn babies and babies who die during the first 24 months of their life

With a view to recognising the rights of parents of stillborn babies, to ensure they have the same entitlements to unpaid parental leave (UPL) as parents of living babies, the Amending Act has introduced section 77A to the Act to provide that parents of stillborn babies are now entitled to 12 months of UPL. A stillborn child is a child who weighs at least 400 grams at delivery or whose period of gestation was at least 20 weeks and who has not breathed since delivery and whose heart has not beaten since delivery.

As a result of this amendment, employers are no longer permitted under the Act to cancel an employee’s entitlement to UPL, or direct an employee on UPL to return to work in the event that the employee has a stillbirth or where their child dies during the 24 month period since their date of birth.

Babies requiring hospitalisation

Organisations should also be aware that the Act has now been amended to enable parents of premature babies and babies requiring hospitalisation following their birth to agree with their employer to return to work while their baby is hospitalised so that the period of UPL is effectively put on hold. More specifically, the newly introduced section 78A permits an employee who has given notice of UPL and their employer to agree that the employee may return to work for a period if the child is required to remain in hospital after the child’s birth or is hospitalised immediately after its birth (either due to a premature birth or a complication or illness the child has contracted). The Act refers to this as the permitted work period.  The permitted work period does not break the continuity of the original leave period and the original leave period is extended for a period equal to the return to work period.

The permitted work period ends at either the earliest of the following, the time agreed by the employee and employer, the end of the day of the child’s first discharge from hospital after birth or if the child dies before being discharged the end of the day the child dies. The employer and the employee may not agree to more than 1 permitted work period, which means that if the child is re-hospitalised at a later time during the UPL period, the employee cannot take another permitted work period.

New changes to flexible unpaid parental leave

Organisations should also be aware that under the newly introduced section 72A of the Act, employees may now take up to 30 days of their entitlement to UPL on a flexible basis. Flexible UPL can be taken for periods as short as 1 day or separate periods of 1 or more days in length. The employee must take the flexible UPL within the first 24 months after the day of birth or adoption of the employee’s child.

It is important to note that where 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).


Organisations should ensure HR staff are made aware of the new changes to UPL entitlements as discussed above.  In addition, organisations should update their parental leave policies to reflect these new entitlements.


For further information please contact the Law Compliance team:

Phone: 1300 862 667


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