Paid leave for parents who experience miscarriage

The ‘Respect@Work’ provisions of the Fair Work Act 2009 (Cth) (FW Act) have been well publicised and have made the news for their establishment of a new, stop sexual harassment jurisdiction in the Fair Work Commission. However, a little-known addition of the Respect@Work provisions has been to extend the entitlements to compassionate leave to include circumstances when a person experiences a miscarriage. The changes are aimed at addressing gender-based gaps in Australian workplaces as a result of the 2020 recommendations made to parliament by the Australian Human Rights Commission.

When it comes to building strong relationships with employees, managing requests for compassionate and/or bereavement leave, and providing appropriate time for employees to emotionally recover before coming back into a workplace after family or household loss is essential. In Australia, these sentiments are recognised in the FW Act, and every employee is entitled to compassionate or bereavement leave. We break down the ins-and-outs of compassionate leave below.

When can compassionate leave be taken?

All employees (including casual employees) are entitled to 2 days of compassionate leave each and every time:

• a member of their ‘immediate family’ or household dies, or contracts or develops a life-threatening illness or injury;
• a child of the employee’s immediate family or household is stillborn; or
• the employee or their partner has a miscarriage.

An ‘immediate family member’ includes partners, parents, and children, and grandparents, and of course extends to include step and adoptive relations. It also extends to include other relatives such as aunts, uncles, and cousins, if they are a member of the employee’s household or otherwise where the employer has agreed.

A ‘miscarriage’ occurs when there is the loss of a pregnancy prior to 20 weeks gestation. Under the new provisions, an employee who experiences a miscarriage, or their partner, are entitled to compassionate leave. A ‘still birth’ occurs when there is a loss of a pregnancy at or after 20 weeks gestation. Employees are entitled to compassionate leave if they or their partner experiences a still birth, or where a member of the employee’s household does.

What is the entitlement?

Each time an immediate family or household member dies, or contracts or develops a life-threatening illness or injury, a full time or part-time employee becomes entitled to 2 days of paid compassionate leave. Alternatively, casual employees are only entitled to unpaid leave. Leave can be taken in a continuous 2-day period, as 2 separate single days, or over any period agreed to by the employer and employee.

A common myth we hear, and a mistake a lot of employers make, is that compassionate leave should be deducted from an employee’s sick leave accrual. However, compassionate leave is neither accumulated nor taken from sick leave, carer’s leave or annual leave. Instead, it is a separate entitlement, available to be taken whenever an employee needs, and can be used even if the employee is already on another type of leave. Compassionate leave should be processed at an employee’s base hourly rate.

Notice and evidence requirements for compassionate leave

Employees requesting compassionate leave must give their employer notice ‘as soon as possible.’ Sometimes, practically, this cannot occur until after the leave has started. Employees should also specify the period or expected period of the leave. Employers can request evidence where reasonable (such as a death certificate), or other evidence as required under an industrial instrument. Ultimately, employers may choose not grant the leave where appropriate evidence is not provided, but as always, caution should be exercised.

If you need advice on how to managing a request for compassionate leave or any other leave entitlements, please contact NRA Legal for a confidential discussion on 1800 572 679.

By Kezia Wright and Sarah Morison, NRA Legal