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A Bill for an Act to amend the Fair Work Act 2009 in relation to paid parental leave, and for related purposes
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Registered 05 Aug 2021
Introduced Senate 05 Aug 2021
Table of contents.

2019‑2021

 

The Parliament of the

Commonwealth of Australia

 

THE SENATE

 

 

 

 

Presented and read a first time

 

 

 

 

Fair Work Amendment (Improving Paid Parental Leave for Parents of Stillborn Babies) Bill 2021

 

No.      , 2021

 

(Senator Keneally)

 

 

 

A Bill for an Act to amend the Fair Work Act 2009 in relation to paid parental leave, and for related purposes

  

  


Contents

1............ Short title............................................................................................. 1

2............ Commencement................................................................................... 1

3............ Schedules............................................................................................ 2

Schedule 1—Amendments                                                                                                3

Fair Work Act 2009                                                                                                     3

 

 


A Bill for an Act to amend the Fair Work Act 2009 in relation to paid parental leave, and for related purposes

The Parliament of Australia enacts:

1  Short title

                   This Act is the Fair Work Amendment (Improving Paid Parental Leave for Parents of Stillborn Babies) Act 2021.

2  Commencement

             (1)  Each provision of this Act specified in column 1 of the table commences, or is taken to have commenced, in accordance with column 2 of the table. Any other statement in column 2 has effect according to its terms.

 

Commencement information

Column 1

Column 2

Column 3

Provisions

Commencement

Date/Details

1.  The whole of this Act

The day after this Act receives the Royal Assent.

 

Note:          This table relates only to the provisions of this Act as originally enacted. It will not be amended to deal with any later amendments of this Act.

             (2)  Any information in column 3 of the table is not part of this Act. Information may be inserted in this column, or information in it may be edited, in any published version of this Act.

3  Schedules

                   Legislation that is specified in a Schedule to this Act is amended or repealed as set out in the applicable items in the Schedule concerned, and any other item in a Schedule to this Act has effect according to its terms.

Schedule 1Amendments

  

Fair Work Act 2009

1  Section 12

Insert:

paid parental leave: see subsection 79AA(2).

2  After section 79

Insert:

79AA  Effect of stillbirth on paid parental leave

Stillbirth—preserving entitlement to paid parental leave

             (1)  If:

                     (a)  a child is stillborn; and

                     (b)  an employee would have been entitled to paid parental leave, if the child had been born alive;

then the employee is taken to be entitled to the paid parental leave, despite the stillbirth of the child.

             (2)  For the purposes of this Act, paid parental leave means an entitlement for an employee to take paid leave that:

                     (a)  is leave associated with the birth of a child of the employee or the employee’s spouse or de facto partner; and

                     (b)  is paid for by the employer; and

                     (c)  is provided for by or under one or more of the following:

                              (i)  a fair work instrument;

                             (ii)  a workplace instrument;

                            (iii)  a workplace law;

                            (iv)  an order of an industrial body;

                             (v)  a contract of employment between the employee and employer;

                            (vi)  the Maternity Leave (Commonwealth Employees) Act 1973;

                           (vii)  another law prescribed by the regulations for the purposes of this subparagraph.

Stillbirth—employer cannot cancel paid parental leave

             (3)  If:

                     (a)  a child is stillborn; and

                     (b)  an employee is entitled to a period of paid parental leave in relation to the child;

the employer is not entitled to cancel the period of leave or a part of the period of leave.

Stillbirth—employee cancelling leave or returning to work

             (4)  If a child is stillborn, an employee who is entitled to a period of paid parental leave in relation to the child may:

                     (a)  before the period of leave starts, give his or her employer written notice cancelling the leave; or

                     (b)  if the period of leave has started, give his or her employer written notice that the employee wishes to return to work on a specified day.

             (5)  For the purposes of paragraph (4)(b), the specified day must be at least 4 weeks after the employer receives the notice.

             (6)  If the employee takes action under subsection (4), the employee’s entitlement to paid parental leave in relation to the child ends:

                     (a)  if the action is taken under paragraph (4)(a)—immediately after the cancellation of the leave; or

                     (b)  if the action is taken under paragraph (4)(b)—immediately before the specified day.

Evidence

             (7)  If:

                     (a)  an employee is taking, or proposing to take, paid parental leave; and

                     (b)  paragraph (1)(a) is relevant to the employee;

the employee must, if required by the employer, give the employer evidence that would satisfy a reasonable person that paragraph (1)(a) applies in relation to the employee.

             (8)  Without limiting subsection (7), an employer may require the evidence referred to in that subsection to be a medical certificate.

Section applies despite provisions to the contrary

             (9)  This section applies despite anything to the contrary in the relevant instrument, order, contract or law referred to in paragraph (2)(c) that provides for the entitlement to paid parental leave.

3  In the appropriate position in Schedule 1

Part 12Amendments made by the Fair Work Amendment (Improving Paid Parental Leave for Parents of Stillborn Babies) Act 2021

  

51  Definitions

                   In this Part:

amending Act means the Fair Work Amendment (Improving Paid Parental Leave for Parents of Stillborn Babies) Act 2021.

Schedule 1 commencement day means the day on which Schedule 1 to the amending Act commences.

52  Amendments about stillbirths

                   The amendments of Division 5 (parental leave and related entitlements) of Part 2‑2 made by Schedule 1 to the amending Act apply in relation to the stillbirth of a child on or after the Schedule 1 commencement day.