Miscarriage Leave – providing paid leave to families who experience a miscarriage

Historical changes have been made to the Fair Work Act 2009 (FW Act) which, among other things, broadens the scope for when an employee may take paid compassionate leave.  In light of the Respect@Work: National Inquiry into Sexual Harassment in Australian Workplaces, the Report recognised the importance of providing paid leave to families who experience a miscarriage.

The Sex Discrimination and Fair Work (Respect at Work) Amendment Bill 2021 (Bill) was passed by the Senate on 2 September 2021 and contains significant amendments  which set out entitlements for permanent employees in relation to compassionate leave.

In accordance with the amendments set out in the Bill, permanent employees:

1. are entitled to two days of paid compassionate leave when an employee, or the employee’s spouse or de facto partner, has a miscarriage; and
2. may take compassionate leave if the leave is taken after the employee, or the employee’s spouse or de facto partner, has a miscarriage.

This means that both parents are entitled to paid compassionate leave after a miscarriage.  Importantly, the arrangements for taking compassionate leave also apply to leave that is taken in relation to a miscarriage, including that the compassionate leave may be taken as:

1.  a single continuous two day period; or
2. two separate periods of one day each; or
3. any separate periods to which the employee and his or her employer agree.

Practically speaking, given the amendments to the FW Act provide an entitlement to employees to access compassionate leave in the event of a miscarriage, employers cannot require their employees to use their accrued personal/carer’s leave to cover periods of absence due to miscarriage situations in the first instance.

These amendments build on the 2020 amendments to the FW Act which introduced access to unpaid parental leave and compassionate leave for families dealing with the trauma of stillbirths, infant deaths and premature births.