Circular 2021/08: Changes to the Fair Work Act 2009 to provide Compassionate Leave for Miscarriage

1. This circular is to inform Australian Government employers of the recent changes to the Fair Work Act 2009 that provide improved support for parents who experience miscarriage.
2. The changes apply to an employee’s entitlements under the National Employment Standards (NES). Therefore, they override provisions in enterprise agreements or other industrial instruments where those provisions are less beneficial than the NES.
3. The Sex Discrimination and Fair Work (Respect at Work) Amendment Act 2021 amended the Fair Work Act to provide up to two days’ compassionate leave if an employee, or an employee’s spouse or de facto partner, has a miscarriage.
4. Miscarriage is defined as the spontaneous loss of the embryo or fetus before 20 weeks’ gestation.
5. Employees are now eligible for up to two days’ paid compassionate leave in the event that they miscarry, or their spouse or de facto partner miscarries.
6. Compassionate leave for casual employees will be unpaid, in line with the Fair Work Act 2009.
7. Agencies should ensure employees accessing this leave comply with the existing notice and evidence requirements that already apply to employees taking compassionate leave for the other prescribed occasions. More information can be found on the Fair Work Ombudsman website.
8. This recent change is addition to an earlier NES change which entitles an employee to compassionate leave following the stillbirth or death of a child (refer Circular 2020/10: Changes to Unpaid Parental Leave for Parents of Stillborn or Premature Babies and Providing Greater Flexibility for Taking Unpaid Parental Leave).

Further information

9. The Fair Work Ombudsman has published information about these changes to the Fair Work Act 2009 on its website.
10. Agencies with questions on these issues are encouraged to contact their APSC relationship manager, or the Workplace Relations inbox at workplacerelations@apsc.gov.au.