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This is a Bill, not an Act. For current law, see the Acts databases.
2019-2020
The Parliament of the
Commonwealth of Australia
HOUSE OF REPRESENTATIVES
Presented and read a first time
Fair Work Amendment (Improving
Unpaid Parental Leave for Parents of
Stillborn Babies and Other Measures)
Bill 2020
No. , 2020
(Industrial Relations)
A Bill for an Act to amend the
Fair Work Act 2009
in relation to unpaid parental leave, and for related
purposes
No. , 2020
Fair Work Amendment (Improving Unpaid Parental Leave for Parents
of Stillborn Babies and Other Measures) Bill 2020
i
Contents
1
Short title ........................................................................................... 1
2
Commencement ................................................................................. 1
3
Schedules ........................................................................................... 2
Schedule 1--Amendments about stillbirth, death and
hospitalisation of children
3
Fair Work Act 2009
3
Schedule 2--Amendments about flexible unpaid parental leave
11
Fair Work Act 2009
11
No. , 2020
Fair Work Amendment (Improving Unpaid Parental Leave for Parents
of Stillborn Babies and Other Measures) Bill 2020
1
A Bill for an Act to amend the
Fair Work Act 2009
1
in relation to unpaid parental leave, and for related
2
purposes
3
The Parliament of Australia enacts:
4
1 Short title
5
This Act is the
Fair Work Amendment (Improving Unpaid Parental
6
Leave for Parents of Stillborn Babies and Other Measures) Act
7
2020
.
8
2 Commencement
9
(1) Each provision of this Act specified in column 1 of the table
10
commences, or is taken to have commenced, in accordance with
11
2
Fair Work Amendment (Improving Unpaid Parental Leave for Parents
of Stillborn Babies and Other Measures) Bill 2020
No. , 2020
column 2 of the table. Any other statement in column 2 has effect
1
according to its terms.
2
3
Commencement information
Column 1
Column 2
Column 3
Provisions
Commencement
Date/Details
1. Sections 1 to 3
and anything in
this Act not
elsewhere covered
by this table
The day this Act receives the Royal Assent.
2. Schedule 1
The day after this Act receives the Royal
Assent.
3. Schedule 2
Immediately after the commencement of the
provisions covered by table item 2.
Note:
This table relates only to the provisions of this Act as originally
4
enacted. It will not be amended to deal with any later amendments of
5
this Act.
6
(2) Any information in column 3 of the table is not part of this Act.
7
Information may be inserted in this column, or information in it
8
may be edited, in any published version of this Act.
9
3 Schedules
10
Legislation that is specified in a Schedule to this Act is amended or
11
repealed as set out in the applicable items in the Schedule
12
concerned, and any other item in a Schedule to this Act has effect
13
according to its terms.
14
Amendments about stillbirth, death and hospitalisation of children
Schedule 1
No. , 2020
Fair Work Amendment (Improving Unpaid Parental Leave for Parents
of Stillborn Babies and Other Measures) Bill 2020
3
Schedule 1--Amendments about stillbirth,
1
death and hospitalisation of children
2
3
Fair Work Act 2009
4
1 Section 12
5
Insert:
6
stillborn
: see subsection 77A(2).
7
2 Section 70 (note)
8
Repeal the note, substitute:
9
Note:
The employee's entitlement under this section may be affected by
10
other provisions of this Division.
11
3 At the end of subsections 71(2) and 72(2)
12
Add:
13
Note 3:
An employee is taken not to be on unpaid parental leave during a
14
permitted work period that occurs while a child remains in hospital
15
due to premature birth or a birth-related complication or illness (see
16
section 78A).
17
4 Paragraph 74(5)(a)
18
Repeal the paragraph, substitute:
19
(a) if the leave is birth-related leave:
20
(i) of the date of birth, or the expected date of birth, of the
21
child; and
22
(ii) that paragraph 77A(1)(a) (which deals with the stillbirth
23
of a child) applies in relation to the employee, if
24
relevant; or
25
5 At the end of subsection 74(6)
26
Add:
27
Example: If the application of paragraph 77A(1)(a) (which deals with the
28
stillbirth of a child) is relevant--certification by a medical practitioner
29
of the child as having been delivered.
30
Schedule 1
Amendments about stillbirth, death and hospitalisation of children
4
Fair Work Amendment (Improving Unpaid Parental Leave for Parents
of Stillborn Babies and Other Measures) Bill 2020
No. , 2020
6 Section 77A
1
Repeal the section, substitute:
2
77A Effect of stillbirth or death of child on unpaid parental leave
3
Stillbirth--preserving entitlement to birth-related leave
4
(1) If:
5
(a) a child is stillborn; and
6
(b) an employee would have been entitled to unpaid parental
7
leave that is birth-related leave, if the child had been born
8
alive;
9
then the employee is taken to be entitled to the unpaid parental
10
leave, despite the stillbirth of the child.
11
(2) A
stillborn
child is a child:
12
(a) who weighs at least 400 grams at delivery or whose period of
13
gestation was at least 20 weeks; and
14
(b) who has not breathed since delivery; and
15
(c) whose heart has not beaten since delivery.
16
(3) The provisions of this Division have effect in relation to the
17
employee as if the birth of a child included the stillbirth of a child.
18
Note:
One effect of this subsection is that if the employee has not given
19
notice in accordance with section 74 before the stillbirth of the child,
20
the employee can do so as soon as practicable (which may be a time
21
after the leave has started).
22
Stillbirth or death of child--cancelling leave or returning to work
23
(4) If a child is stillborn, or dies during the 24-month period starting
24
on the child's date of birth, then an employee who is entitled to a
25
period of unpaid parental leave in relation to the child may:
26
(a) before the period of leave starts, give his or her employer
27
written notice cancelling the leave; or
28
(b) if the period of leave has started, give his or her employer
29
written notice that the employee wishes to return to work on
30
a specified day.
31
Amendments about stillbirth, death and hospitalisation of children
Schedule 1
No. , 2020
Fair Work Amendment (Improving Unpaid Parental Leave for Parents
of Stillborn Babies and Other Measures) Bill 2020
5
(5) For the purposes of paragraph (4)(b), the specified day must be at
1
least 4 weeks after the employer receives the notice.
2
(6) If the employee takes action under subsection (4), the employee's
3
entitlement to unpaid parental leave in relation to the child ends:
4
(a) if the action is taken under paragraph (4)(a)--immediately
5
after the cancellation of the leave; or
6
(b) if the action is taken under paragraph (4)(b)--immediately
7
before the specified day.
8
Interaction with section 77
9
(7) Subsections (4) to (6) do not limit section 77 (which deals with the
10
employee reducing the period of unpaid parental leave with the
11
agreement of the employer).
12
7 Subsections 78(1) and (1A)
13
Repeal the subsections, substitute:
14
(1) This section applies to an employee who has taken unpaid parental
15
leave in relation to a child if the employee ceases to have any
16
responsibility for the care of the child for a reason other than
17
because the child:
18
(a) is stillborn; or
19
(b) dies during the 24-month period starting on the child's date
20
of birth.
21
8 After section 78
22
Insert:
23
78A Hospitalised children
24
Agreeing to not take unpaid parental leave for a period while child
25
remains in hospital
26
(1) If:
27
(a) a child is required to remain in hospital after the child's birth,
28
or is hospitalised immediately after the child's birth,
29
including because:
30
(i) the child was born prematurely; or
31
Schedule 1
Amendments about stillbirth, death and hospitalisation of children
6
Fair Work Amendment (Improving Unpaid Parental Leave for Parents
of Stillborn Babies and Other Measures) Bill 2020
No. , 2020
(ii) the child developed a complication or contracted an
1
illness during the child's period of gestation or at birth;
2
or
3
(iii) the child developed a complication or contracted an
4
illness following the child's birth; and
5
(b) an employee, whether before or after the birth of the child,
6
gives notice in accordance with section 74 of the taking of a
7
period of unpaid parental leave (the
original leave period
) in
8
relation to the child;
9
then the employee may agree with his or her employer that the
10
employee will not take unpaid parental leave for a period (the
11
permitted work period
) while the child remains in hospital.
12
Note:
Section 344 prohibits the exertion of undue influence or undue
13
pressure on the employee in relation to a decision by the employee
14
whether to agree.
15
(2) If the employee and employer so agree, then the following rules
16
have effect:
17
(a) the employee is taken to not be taking unpaid parental leave
18
during the permitted work period;
19
(b) the permitted work period does not break the continuity of
20
the original leave period;
21
(c) the employee is taken to have advised the employer, for the
22
purposes of subsection 74(4), of an end date for the original
23
leave period that is the date on which that period would end
24
if it were extended by a period equal to the permitted work
25
period.
26
Note:
One effect of paragraph (b) is that, if the employee takes periods of
27
unpaid parental leave either side of the permitted work period, the
28
periods are still treated as a single continuous period for the purposes
29
of sections 71 and 72.
30
When permitted work period must start
31
(3) The permitted work period must start after the birth of the child.
32
When permitted work period ends
33
(4) The permitted work period ends at the earliest of the following:
34
(a) the time agreed by the employee and employer;
35
Amendments about stillbirth, death and hospitalisation of children
Schedule 1
No. , 2020
Fair Work Amendment (Improving Unpaid Parental Leave for Parents
of Stillborn Babies and Other Measures) Bill 2020
7
(b) the end of the day of the child's first discharge from hospital
1
after birth;
2
(c) if the child dies before being discharged--the end of the day
3
the child dies.
4
Only one permitted work period allowed
5
(5) Only one period may be agreed to under subsection (1) for which
6
the employee will not take unpaid parental leave in relation to the
7
child.
8
Evidence
9
(6) The employee must, if required by the employer, give the employer
10
evidence that would satisfy a reasonable person of either or both of
11
the following:
12
(a) that paragraph (1)(a) applies in relation to the child;
13
(b) that the employee is fit for work.
14
(7) Without limiting subsection (6), an employer may require the
15
evidence referred to in that subsection to be a medical certificate.
16
Note:
Personal information given to an employer under this section may be
17
regulated under the
Privacy Act 1988
.
18
9 Subsection 79(2)
19
Repeal the subsection, substitute:
20
(2) While an employee is taking unpaid parental leave, the employee is
21
not entitled to take:
22
(a) paid personal/carer's leave; or
23
(b) compassionate leave, unless the permissible occasion is the
24
stillbirth or death of the child in relation to whom the
25
employee is taking unpaid parental leave.
26
10 Paragraph 80(1)(b)
27
Repeal the paragraph, substitute:
28
(b) all of the following apply:
29
(i) she has been pregnant;
30
(ii) the pregnancy ends after a period of gestation of at least
31
12 weeks otherwise than by the birth of a living child;
32
Schedule 1
Amendments about stillbirth, death and hospitalisation of children
8
Fair Work Amendment (Improving Unpaid Parental Leave for Parents
of Stillborn Babies and Other Measures) Bill 2020
No. , 2020
(iii) the child is not stillborn.
1
11 Subsection 80(1) (after note 1)
2
Insert:
3
Note 1A: If the child is stillborn, the female employee may be entitled to unpaid
4
parental leave (see section 77A).
5
12 Paragraphs 84A(b) and (c)
6
Repeal the paragraphs, substitute:
7
(b) of the rights the employee taking unpaid parental leave has
8
under:
9
(i) subsections 77A(4) and (5) (which provide a right to
10
cancel the leave or end the leave early if the child is
11
stillborn or dies within 24 months); and
12
(ii) section 84 (which deals with the return to work
13
guarantee); and
14
13 Section 104
15
Omit all the words after "(a
permissible occasion
)", substitute:
16
when:
17
(a) a member of the employee's immediate family or a member
18
of the employee's household:
19
(i) contracts or develops a personal illness that poses a
20
serious threat to his or her life; or
21
(ii) sustains a personal injury that poses a serious threat to
22
his or her life; or
23
(iii) dies; or
24
(b) a child is stillborn, where the child would have been a
25
member of the employee's immediate family, or a member of
26
the employee's household, if the child had been born alive.
27
14 Paragraph 105(1)(b)
28
After "household", insert ", or the stillbirth of the child,".
29
15 In the appropriate position in Schedule 1
30
Insert:
31
Amendments about stillbirth, death and hospitalisation of children
Schedule 1
No. , 2020
Fair Work Amendment (Improving Unpaid Parental Leave for Parents
of Stillborn Babies and Other Measures) Bill 2020
9
Part 9--Amendments made by the Fair Work
1
Amendment (Improving Unpaid Parental
2
Leave for Parents of Stillborn Babies and
3
Other Measures) Act 2020
4
5
41 Definitions
6
In this Part:
7
amending Act
means the
Fair Work Amendment (Improving
8
Unpaid Parental Leave for Parents of Stillborn Babies and Other
9
Measures) Act 2020
.
10
Schedule 1 commencement day
means the day on which
11
Schedule 1 to the amending Act commences.
12
42 Amendments about stillbirth, death and hospitalisation of
13
children
14
Unpaid parental leave
15
(1) The amendments of Division 5 (parental leave and related
16
entitlements) of Part 2-2 made by Schedule 1 to the amending Act
17
apply in relation to the stillbirth or death of a child on or after the
18
Schedule 1 commencement day, subject to subclauses (2) to (4).
19
(2) Section 78A (hospitalised children), as inserted by Schedule 1 to
20
the amending Act, applies in relation to a child born on or after the
21
Schedule 1 commencement day.
22
(3) The amendment of section 84A (replacement employees) made by
23
Schedule 1 to the amending Act applies if:
24
(a) an employer engages the replacement employee on or after
25
the Schedule 1 commencement day; and
26
(b) the child in relation to whom the other employee is taking
27
unpaid parental leave was not stillborn, or did not die, before
28
that day.
29
Schedule 1
Amendments about stillbirth, death and hospitalisation of children
10
Fair Work Amendment (Improving Unpaid Parental Leave for Parents
of Stillborn Babies and Other Measures) Bill 2020
No. , 2020
Unpaid special maternity leave
1
(4) The amendments of section 80 (unpaid special maternity leave)
2
made by Schedule 1 to the amending Act apply to a pregnancy that
3
ends on or after the Schedule 1 commencement day.
4
Compassionate leave
5
(5) The amendments of Subdivision C (compassionate leave) of
6
Division 7 of Part 2-2 made by Schedule 1 to the amending Act
7
apply in relation to a permissible occasion that occurs on or after
8
the Schedule 1 commencement day.
9
Amendments about flexible unpaid parental leave
Schedule 2
No. , 2020
Fair Work Amendment (Improving Unpaid Parental Leave for Parents
of Stillborn Babies and Other Measures) Bill 2020
11
Schedule 2--Amendments about flexible
1
unpaid parental leave
2
3
Fair Work Act 2009
4
1 Section 12
5
Insert:
6
flexible day
: see subsection 74(3C).
7
flexible unpaid parental leave
: see subsection 72A(1).
8
notional flexible period
: see subsection 72A(6).
9
2 Section 12 (definition of
pre-parental leave position
)
10
Repeal the definition, substitute:
11
pre-parental leave position
: an employee's
pre-parental leave
12
position
, in relation to a particular period of unpaid parental leave,
13
is:
14
(a) unless paragraph (b) applies, the position the employee held
15
before starting the period of unpaid parental leave; or
16
(b) if, before starting the period of unpaid parental leave, the
17
employee:
18
(i) was transferred to a safe job because of her pregnancy;
19
or
20
(ii) reduced her working hours due to her pregnancy;
21
the position the employee held immediately before that
22
transfer or reduction.
23
3 Subsection 69(2) (note)
24
Omit all the words after "(for example)", substitute "complying with a
25
notice or evidence requirement of section 74 in relation to the first
26
employer".
27
4 Subsection 71(2) (notes 2 and 3)
28
Repeal the notes, substitute:
29
Note 2:
For provisions affecting the rule in this subsection, see:
30
Schedule 2
Amendments about flexible unpaid parental leave
12
Fair Work Amendment (Improving Unpaid Parental Leave for Parents
of Stillborn Babies and Other Measures) Bill 2020
No. , 2020
(a) subsection 72A(11) (flexible unpaid parental leave); and
1
(b) subsection 73(4) (pregnant employee may be required to take
2
unpaid parental leave within 6 weeks before the birth); and
3
(c) paragraph 78A(2)(b) (permitted work periods while child is
4
hospitalised); and
5
(d) subsection 79A(1) (keeping in touch days).
6
5 Subsection 72(2) (notes 2 and 3)
7
Repeal the notes, substitute:
8
Note 2:
For provisions affecting the rule in this subsection, see:
9
(a) subsection (6) (concurrent leave); and
10
(b) subsection 72A(11) (flexible unpaid parental leave); and
11
(c) subsection 73(4) (pregnant employee may be required to take
12
unpaid parental leave within 6 weeks before the birth); and
13
(d) paragraph 78A(2)(b) (permitted work periods while child is
14
hospitalised); and
15
(e) subsection 79A(1) (keeping in touch days).
16
6 Subsection 72(3)
17
After "is birth-related leave", insert "other than flexible unpaid parental
18
leave".
19
7 Paragraph 72(3)(a)
20
Omit "first,".
21
8 Subparagraph 72(3)(a)(i)
22
Omit "the member of the employee couple whose period of leave starts
23
first", substitute "the employee".
24
9 Paragraph 72(3)(b)
25
Repeal the paragraph, substitute:
26
(b) any period of unpaid parental leave (other than flexible
27
unpaid parental leave) that the other employee takes must
28
start immediately after the end of the first employee's period
29
of leave taken in accordance with paragraph (a) (or that
30
period as extended under section 75 or 76).
31
10 Subsection 72(4)
32
After "is adoption-related leave", insert "other than flexible unpaid
33
parental leave".
34
Amendments about flexible unpaid parental leave
Schedule 2
No. , 2020
Fair Work Amendment (Improving Unpaid Parental Leave for Parents
of Stillborn Babies and Other Measures) Bill 2020
13
11 Paragraph 72(4)(b)
1
Repeal the paragraph, substitute:
2
(b) any period of unpaid parental leave (other than flexible
3
unpaid parental leave) that the other employee takes must
4
start immediately after the end of the first employee's period
5
of leave taken in accordance with paragraph (a) (or that
6
period as extended under section 75 or 76).
7
12 Paragraph 72(6)(a)
8
Omit "that the employee must take his or her leave in a single
9
continuous period (see subsection (2))", substitute "in subsection (2)
10
that the employee must take his or her leave in a single continuous
11
period".
12
13 Paragraph 72(6)(b)
13
Omit "about when the employee's period of unpaid parental leave must
14
start (see subsection (3) or (4))", substitute "in subsections (3) and (4)
15
about when the employee's period of unpaid parental leave must start".
16
14 At the end of section 72
17
Add:
18
(7) To avoid doubt, if the other employee takes flexible unpaid
19
parental leave during the first employee's period of leave, the other
20
employee's leave is taken not to be concurrent leave.
21
Note:
The combined effect of this subsection, paragraph (5)(a) and
22
subsection 72A(9) is that members of an employee couple cannot take
23
longer than 8 weeks of unpaid parental leave at the same time,
24
whether the leave is taken under this section (including as concurrent
25
leave) or as flexible unpaid parental leave.
26
15 After section 72
27
Insert:
28
Schedule 2
Amendments about flexible unpaid parental leave
14
Fair Work Amendment (Improving Unpaid Parental Leave for Parents
of Stillborn Babies and Other Measures) Bill 2020
No. , 2020
72A Flexible unpaid parental leave
1
Taking up to 30 days' leave during 24 months starting on date of
2
birth or day of placement
3
(1) An employee may take up to 30 days of unpaid parental leave
4
(
flexible unpaid parental leave
) during the 24-month period
5
starting on the date of birth or day of placement of the child if the
6
requirements of this section are satisfied in relation to the leave.
7
Note 1:
The flexible unpaid parental leave is unpaid parental leave and so
8
comes out of the employee's entitlement to 12 months of unpaid
9
parental leave under section 70.
10
Note 2:
The number of days of flexible unpaid parental leave that the
11
employee takes must not be more than the number of flexible days
12
notified to the employer under subsection 74(3C) (subject to any
13
agreement under subsection 74(3D)).
14
(2) Flexible unpaid parental leave is available in full to part-time and
15
casual employees.
16
How flexible unpaid parental leave may be taken
17
(3) The employee must take the flexible unpaid parental leave as:
18
(a) a single continuous period of one or more days; or
19
(b) separate periods of one or more days each.
20
Effect of taking unpaid parental leave under other provisions
21
(4) The employee may take the flexible unpaid parental leave whether
22
or not the employee has taken unpaid parental leave under another
23
provision of this Division in relation to the child.
24
(5) However, the employee may take flexible unpaid parental leave
25
after taking one or more periods of unpaid parental leave under
26
another provision of this Division only if the total of those periods
27
(disregarding any extension under section 76) is no longer than 12
28
months, less the employee's notional flexible period.
29
Meaning of
notional flexible period
30
(6) An employee's
notional flexible
period
is the period during which
31
the employee would be on flexible unpaid parental leave if the
32
Amendments about flexible unpaid parental leave
Schedule 2
No. , 2020
Fair Work Amendment (Improving Unpaid Parental Leave for Parents
of Stillborn Babies and Other Measures) Bill 2020
15
employee took leave for all the employee's flexible days in a single
1
continuous period.
2
(7) For the purposes of subsection (6), assume that:
3
(a) the employee ordinarily works each day that is not a Saturday
4
or a Sunday; and
5
(b) there are no public holidays during the period.
6
Entitlement to take unpaid parental leave under other provisions
7
ends on taking flexible unpaid parental leave
8
(8) The employee's entitlement to any unpaid parental leave in relation
9
to the child that is not flexible unpaid parental leave ends on the
10
first day the employee takes flexible unpaid parental leave.
11
Note:
This means that if the employee is to take unpaid parental leave under
12
another provision of this Division, the leave must be taken before the
13
employee takes the flexible unpaid parental leave.
14
Members of employee couples
15
(9) A member of an employee couple (the
first employee
) may take
16
flexible unpaid parental leave on the same day as the other member
17
of the couple (the
other employee
) is taking unpaid parental leave
18
only if the total of all periods of unpaid parental leave the first
19
employee takes at the same time as the other employee is no longer
20
than 8 weeks.
21
Note:
The unpaid parental leave making up the first employee's total could
22
be leave the first employee has taken under section 72 (including
23
concurrent leave) or flexible unpaid parental leave.
24
Multiple births
25
(10) An employee is not entitled to take flexible unpaid parental leave
26
in relation to a child if:
27
(a) the child and another child:
28
(i) are born during the same multiple birth; or
29
(ii) are both placed with the employee for adoption and
30
have the same day of placement; and
31
(b) the employee takes flexible unpaid parental leave in relation
32
to the other child.
33
Schedule 2
Amendments about flexible unpaid parental leave
16
Fair Work Amendment (Improving Unpaid Parental Leave for Parents
of Stillborn Babies and Other Measures) Bill 2020
No. , 2020
Interaction with sections 71 and 72
1
(11) Flexible unpaid parental leave taken by an employee is an
2
exception to the rules in sections 71 and 72 about:
3
(a) taking the employee's unpaid parental leave in a single
4
continuous period; and
5
(b) when the employee's period of unpaid parental leave must
6
start.
7
16 At the end of subsection 73(3)
8
Add:
9
Note:
The combined effect of this subsection and subsection 72A(1) is that
10
the employer cannot require the employee to take any part of the
11
period of leave as flexible unpaid parental leave.
12
17 Subsection 73(4)
13
Repeal the subsection (not including the heading or the note), substitute:
14
(4) The period of leave is an exception to the rules in sections 71 and
15
72 about:
16
(a) taking the employee's unpaid parental leave in a single
17
continuous period; and
18
(b) when the employee's period of unpaid parental leave must
19
start.
20
18 Subsection 74(1) (heading)
21
Repeal the heading, substitute:
22
General requirement to give notice of taking leave
23
19 Subsection 74(1)
24
After "or 72", insert ", or flexible unpaid parental leave,".
25
20 Before subsection 74(2)
26
Insert:
27
Amendments about flexible unpaid parental leave
Schedule 2
No. , 2020
Fair Work Amendment (Improving Unpaid Parental Leave for Parents
of Stillborn Babies and Other Measures) Bill 2020
17
Notice requirements--leave to be taken under section 71 or 72
1
21 Subsection 74(2)
2
Omit "The employee", substitute "If the leave is to be taken under
3
section 71 or 72, the employee".
4
22 After subsection 74(3)
5
Insert:
6
Notice requirements--flexible unpaid parental leave
7
(3A) If the leave is flexible unpaid parental leave, the employee must
8
give the notice to the employer:
9
(a) in the case where the employee also takes unpaid parental
10
leave (the
original leave
) under section 71 or 72:
11
(i) at the same time as the employee gives notice in
12
accordance with subsection (2) in relation to the original
13
leave, unless subparagraph (ii) applies; or
14
(ii) if the employee takes more than one period of leave
15
under section 72--at the same time as the employee
16
gives notice in accordance with subsection (2) in
17
relation to the first of those periods of leave; or
18
(b) otherwise--at least 10 weeks before starting the flexible
19
unpaid parental leave.
20
(3B) However, the notice may be given at any later time if the employer
21
agrees.
22
(3C) The notice must specify the total number of days (
flexible days
) of
23
flexible unpaid parental leave that the employee intends to take in
24
relation to the child.
25
(3D) If the employer agrees, the employee may:
26
(a) reduce the number of flexible days, including by reducing the
27
number of flexible days to zero; or
28
(b) increase the number of flexible days, but not so as to increase
29
the number of flexible days above 30.
30
23 Subsection 74(4) (heading)
31
Repeal the heading, substitute:
32
Schedule 2
Amendments about flexible unpaid parental leave
18
Fair Work Amendment (Improving Unpaid Parental Leave for Parents
of Stillborn Babies and Other Measures) Bill 2020
No. , 2020
Taking leave under section 71 or 72--confirming or changing
1
intended start and end dates
2
24 Subsection 74(4)
3
Omit "At least", substitute "If the leave is to be taken under section 71
4
or 72, then at least".
5
25 After subsection 74(4A)
6
Insert:
7
Taking flexible unpaid parental leave--notifying days on which
8
employee will take leave
9
(4B) The employee must give the employer written notice of a flexible
10
day on which the employee will take flexible unpaid parental
11
leave:
12
(a) at least 4 weeks before that day; or
13
(b) if that is not practicable--as soon as practicable (which may
14
be a time after the leave has started).
15
(4C) If the employer agrees, the employee may change a day on which
16
the employee takes flexible unpaid parental leave from a day
17
specified in a notice under subsection (4B).
18
26 Subsection 74(5) (at the end of the heading)
19
Add "
requirements
".
20
27 Subsection 74(7)
21
After "or 72", insert ", or flexible unpaid parental leave,".
22
28 Paragraph 75(1)(a)
23
After "(the
original leave period
)", insert "under section 71 or 72".
24
29 At the end of subsection 75(2)
25
Add:
26
; (d) if the employee has given notice in accordance with
27
subsection 74(3A) or (3B) of the taking of flexible unpaid
28
parental leave--a period equal to the employee's notional
29
flexible period.
30
Amendments about flexible unpaid parental leave
Schedule 2
No. , 2020
Fair Work Amendment (Improving Unpaid Parental Leave for Parents
of Stillborn Babies and Other Measures) Bill 2020
19
30 Subsection 76(1)
1
After "takes unpaid parental leave", insert "under section 71 or 72".
2
31 Paragraphs 76(6)(a) and (b)
3
Repeal the paragraphs, substitute:
4
(a) the request must specify:
5
(i) any amount of unpaid parental leave that the other
6
member of the employee couple has taken, or will have
7
taken, in relation to the child before the extension starts;
8
and
9
(ii) if the other member has given notice in accordance with
10
subsection 74(3A) or (3B) of the taking of flexible
11
unpaid parental leave--the number of flexible days for
12
the other member that will not have been taken before
13
the extension starts;
14
(b) the period of the extension cannot exceed 12 months, less any
15
periods of the following kinds:
16
(i) any period of unpaid parental leave, other than flexible
17
unpaid parental leave, that the other member of the
18
employee couple has taken, or will have taken, in
19
relation to the child before the extension starts;
20
(ii) if subparagraph (a)(ii) applies--a period equal to the
21
other member's notional flexible period;
22
32 At the end of section 79A
23
Add:
24
(5) Subsection (1) does not apply in relation to the employee on and
25
after the first day on which the employee takes flexible unpaid
26
parental leave in relation to the child.
27
33 Subsection 83(1)
28
Omit "(1)".
29
34 Paragraph 83(1)(a)
30
Repeal the paragraph, substitute:
31
(a) an employee is taking a period of unpaid parental leave, other
32
than flexible unpaid parental leave; and
33
Schedule 2
Amendments about flexible unpaid parental leave
20
Fair Work Amendment (Improving Unpaid Parental Leave for Parents
of Stillborn Babies and Other Measures) Bill 2020
No. , 2020
35 Subsection 83(2)
1
Repeal the subsection.
2
36 Section 84
3
After "On ending", insert "a period of".
4
37 Section 84A
5
Before "Before an employer", insert "(1)".
6
38 At the end of section 84A
7
Add:
8
(2) Subsection (1) does not apply in relation to the taking of flexible
9
unpaid parental leave.
10
39 Section 106E
11
Omit "section 85", substitute "sections 72A and 85".
12
40 Clause 41 of Schedule 1
13
Insert:
14
Schedule 2 commencement day
means the day on which
15
Schedule 2 to the amending Act commences.
16
41 At the end of Part 9 of Schedule 1
17
Add:
18
43 Amendments about flexible unpaid parental leave
19
Application provision
20
(1) The amendments of Division 5 of Part 2-2 made by Schedule 2 to
21
the amending Act apply in relation to a child if the child's date of
22
birth, or day of placement, is on or after the Schedule 2
23
commencement day.
24
Amendments about flexible unpaid parental leave
Schedule 2
No. , 2020
Fair Work Amendment (Improving Unpaid Parental Leave for Parents
of Stillborn Babies and Other Measures) Bill 2020
21
Transitional provision--giving notice of taking flexible unpaid
1
parental leave
2
(2) If:
3
(a) before the Schedule 2 commencement day, an employee
4
gives notice to an employer in accordance with
5
subsection 74(1) of the taking of a period (the
initial leave
6
period
) of unpaid parental leave under section 71 or 72 in
7
relation to a child; and
8
(b) the child's date of birth or day of placement is on or after the
9
Schedule 2 commencement day;
10
then the employee may, during the 1-month period starting on the
11
Schedule 2 commencement day, give the employer written notice
12
of the taking of flexible unpaid parental leave.
13
(3) The notice under subclause (2) must specify the number of days of
14
flexible unpaid parental leave that the employee intends to take in
15
relation to the child.
16
(4) The employee may, in the notice under subclause (2), advise the
17
employer of a change to the end date of the initial leave period, but
18
only if the change is necessary to allow the employee to take the
19
flexible unpaid parental leave for the number of days referred to in
20
subclause (3).
21
(5) If the employee gives notice in accordance with subclauses (2) and
22
(3), then:
23
(a) the notice is taken to be a notice given under subsection 74(1)
24
in relation to the taking of flexible unpaid parental leave; and
25
(b) subsections 74(3A) and (3B) are taken to have been complied
26
with in relation to the giving of that notice; and
27
(c) if the notice contains advice as referred to in subclause (4)--
28
the employee is taken to have complied with subsection 74(4)
29
in relation to the initial leave period.
30
(6) The employee cannot take flexible unpaid parental leave before the
31
end of 4 weeks starting on the day the notice under subclause (2) is
32
given, despite subsection 74(4B).
33