Fair Work Act 2009

This section applies if:

a child is stillborn or dies; and

an employee would have been entitled to leave, under the terms and conditions of the employee’s employment, if the child had not been stillborn or died; and

that leave is paid for by the employee’s employer and is associated with:

the birth of a child of the employee or the employee’s spouse or de facto partner; or

the placement of a child with the employee for adoption.

For the definition of a stillborn child, see subsection 77A(2).

The employee’s employer must not, because of the stillbirth or death:

refuse to allow the employee to take that leave; or

cancel any part of that leave without being requested by the employee to do so.

This subsection is a civil remedy provision (see Part 4‑1).

Despite subsection (2), the employer may refuse or cancel that leave if, under the terms and conditions of the employee’s employment:

the employer is expressly allowed to refuse or cancel that leave because of stillbirth or the death of a child; or

the employee is expressly not entitled to that leave because of stillbirth or the death of a child.

However, subsection (3) does not apply if the terms and conditions are varied, after the commencement of this section, unilaterally by the employer to provide as mentioned in paragraph (3)(a) or (b).

Despite subsection (2), the employer may refuse or cancel that leave if, under the terms and conditions of the employee’s employment, the employee is entitled to other leave that expressly addresses stillbirth or the death of a child.

For the purposes of subsection (5), in working out whether the employee is entitled to other leave, disregard:

unpaid parental leave to which the employee is entitled under section 70 or under terms that have the same (or substantially the same) effect as that section; and

compassionate leave to which the employee is entitled under section 104 or under terms that have the same (or substantially the same) effect as that section.