At a glance
- The Australian Government has implemented protections 'guaranteeing' pre-approved employer-funded parental leave for parents that experience stillbirth or infant loss.
- Employers are now prohibited from cancelling pre-approved, employer-funded paid parental leave in the case of stillbirth or infant loss.
In November 2025, the Fair Work Act 2009 (Cth) was amended to prohibit employers from refusing or cancelling employer-funded paid parental leave for an employee because the employee's child is stillborn or dies. This applies to employees who would be entitled to paid parental leave with their employer where:
- their child had not been stillborn or died; or
- the leave is associated with the birth of a child of the employee's spouse or de facto partner, or the placement of a child with the employee for adoption.
An employer can only refuse or cancel the leave if one of the following exemptions apply:
- the cancellation of pre-approved paid parental leave in the event of stillbirth or death is already permitted under the employee's terms and conditions of employment (ie an employment contract or enterprise agreement). However, this protection does not apply to any employment agreements varied post 7 November 2025 in order to permit such a cancellation; or
- leave associated with stillbirth and / or death is provided by the employer as a separate leave type. If this is the case, employers are within their rights to direct affected workers to take that form of leave instead.
Employers should review their current paid parental leave policy to ensure that it reflects the above changes where applicable. Employers may wish to keep these protections front of mind when drafting new employment contracts or reviewing their leave structures.
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