New laws introduce leave for pregnancy loss before 20 weeks

17 January 2022 By Glen Cranwell
Glen Cranwell

The introduction of two days of compassionate leave is an important acknowledgement that early pregnancy loss is very real, writes Glen Cranwell.

NB: This story may be distressing or triggering for some readers. Discretion is advised.

In a landmark development, the Commonwealth Parliament has recently enacted amendments to the Fair Work Act 2009 (Cth) to give employees covered by the Fair Work system an entitlement to two days of compassionate leave for miscarriage.

In introducing the amendments, the Minister for Families and Social Services, Senator Anne Ruston, said: “A miscarriage can be an incredibly difficult experience for many families and sadly one that is often surrounded with social stigma and silence.”

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It is estimated that one in five confirmed pregnancies in Australia ends in miscarriage before 20 weeks; however, the Fair Work Act did not previously provide any specific leave entitlements for miscarriage.

This change ensures that an employee can take time away from work to grieve and come to terms with their loss.

Amendments to the Fair Work Act

On 10 September 2021, royal assent was given to the Sex Discrimination and Fair Work (Respect at Work) Amendment Act 2021 (Cth). The amendments relating to leave for early pregnancy loss were the culmination of the “Leave for Loss” campaign, led by the Pink Elephants Support Network. 

The amendments inserted the following definition of miscarriage into s 12 of the Fair Work Actmiscarriage means a spontaneous loss of an embryo or foetus before a period of gestation of 20 weeks.

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Section 104(1)(c) of the Fair Work Act creates an entitlement to two days of compassionate leave for an employee who has a miscarriage, as well as the employee’s spouse or de facto partner. Consistent with the definition of miscarriage, s 104(2) of the Fair Work Act provides that s 104(1)(c) does not apply to pregnancy loss after 20 weeks. It also does not apply to a former spouse or de facto partner.

Section 105(2) of the Fair Work Act provides that the leave may be taken as:

  • A single continuous two-day period;
  • Two separate periods of one day each; or
  • Any separate periods to which the employee and his or her employer agree.

Section 106 of the Fair Work Act provides that compassionate leave is to be paid, other than for casual employees where the leave is to be unpaid.

Raising Awareness

I have two main purposes in writing this brief article.

The first is to promote awareness of leave for early pregnancy loss. My wife and I have experienced a total of five miscarriages on our journey towards having a family. Three of those miscarriages took place since I have been a member of the Queensland Civil and Administrative Tribunal, where I would have been entitled to two days of paid leave under equivalent Queensland legislation had I been aware of it. If someone in my position was unaware of the leave entitlement, it is likely that many others are unaware as well.

My second purpose is to address the reluctance that some employees might feel in disclosing to their employer that they or their partner have suffered a miscarriage. In a speech in support of the Amendment Act, the member for Ryan, Julian Simmonds, quoted his wife as saying:

“I think it’s really important, because it’s something people shouldn’t be embarrassed about. I think it’s the only kind of loss people don’t talk about. If someone in your family dies, you don’t pretend that you’re okay. You let them know that you are grieving and that you’re sad, and I think the more people talk about it, the less people feel they need to hide it and the more sensitive people will be about asking whether or not you’re planning a family, how it’s going and those kind of things.”

My wife and I experienced our first miscarriage at the very beginning of our marriage. Our sense of loss was crushing. As with many newlywed couples, people were always asking us, “when are you going to have children?” One day I decided to give an honest answer and said, “we’ve had a miscarriage, and there are some complications that we are working through”. My questioner revealed she had also had a miscarriage and spoke openly about her own grief. It was a relief to know that we were not alone, and it prompted me to have more honest conversations. My wife started wearing a ribbon on Pregnancy and Infant Loss Remembrance Day, which is held annually on 15 October. Little by little, we began to heal.

The introduction of two days of compassionate leave is an important acknowledgement that early pregnancy loss is very real, and an opportunity for those affected to take time to start the process of healing – both physically and emotionally.

Glen Cranwell is a member of the Queensland Civil and Administrative Tribunal and a former member of the Administrative Appeals Tribunal. The views expressed are his own.

Support for those experiencing early pregnancy loss can be found through organisations such as the Pink Elephants Support Network, Bears of Hope and SANDS.

New laws introduce leave for pregnancy loss before 20 weeks
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