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Leave for early pregnancy loss

On 14 October 2021, the Attorney-General and Minister for Justice, Shannon Fentiman, spoke in the Queensland Parliament about International Pregnancy and Infant Loss Remembrance Day, held annually on 15 October.

She said:

“Every year around 3000 babies are lost through stillbirth or newborn death. This is a day to acknowledge the loss and to end the stigma associated with pregnancy loss and infant death. Still now it remains a topic that we rarely discuss and so many often still feel shame. We know that experiencing a miscarriage or stillbirth can be an extremely difficult time. That is why we have made sure that our Queensland government employees have access to two days bereavement leave if they or their spouse suffer a miscarriage and 14 weeks’ full-paid leave if an employee experiences a stillbirth. We all have a responsibility to help end this stigma and ensure that families that are impacted are supported.”1

In a landmark development, the Commonwealth Parliament has recently introduced an entitlement to two days of compassionate leave for early pregnancy loss for employees covered by the Fair Work Act 2009 (Cth) (Fair Work Act).

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 amending Act inserted the following definition of miscarriage into s12 of the Fair Work Act:

‘miscarriage’ means a spontaneous loss of an embryo or fetus before a period of gestation of 20 weeks.

Section 104(1)(c) of the Fair Work Act was inserted to create 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:

“(1) An employee is entitled to 2 days of compassionate leave for each occasion (a permissible occasion) when:

(c) the employee, or the employee’s spouse or de facto partner, has a miscarriage.”

Consistent with the definition of miscarriage, s104(2) of the Fair Work Act provides that s104(1)(c) does not apply to pregnancy loss after 20 weeks.2 It also does not apply to a former spouse or de facto partner.

Section 105(2) of the Fair Work Act sets out how the leave may be taken:

“(2) An employee may take compassionate leave for a particular permissible occasion as:

(a) a single continuous 2 day period; or

(b) 2 separate periods of 1 day each; or

(c) 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.

In introducing the amending Act into the Commonwealth Parliament, the Minister for Families and Social Services, Senator Anne Rushton, said:

“A miscarriage can be an incredibly difficult experience for many families and sadly one that is often surrounded with social stigma and silence.

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

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

While not everyone who experiences a miscarriage will want to access compassionate leave, it is important that we give employees the choice to access that leave, should they choose to.”3

‘Leave for Loss’ under Queensland legislation

As noted by the Attorney-General, the entitlement to two days of bereavement leave for early pregnancy loss already existed for employees covered by the Industrial Relations Act 2016 (Qld).

Section 47(2)(a)(ii) of the Industrial Relations Act provides that a non-casual employee is entitled to at least two days of paid bereavement leave in circumstances where “the employee, or the employee’s spouse, is pregnant and the pregnancy ends other than by the birth of a living child”.

Sections 48(1)(a)(ii) and 48(2)(a)(ii) of the Industrial Relations Act provides that the leave is to be unpaid for casual employees.

In contrast to the Commonwealth legislation, spouse as defined in Schedule 5 of the Industrial Relations Act includes a former spouse. Schedule 1 of the Acts Interpretation Act 1954 (Qld) in turn defines spouse to includes a de facto or civil partner.

Pursuant to s54(1)(a) of the Public Service Act 2008 (Qld), the Minister for Employment and Industrial Relations has directed that Queensland Government employees are entitled to two days of paid bereavement leave.4

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 QCAT, where I would have been entitled to the two days of bereavement leave under Queensland legislation. I was unaware of my leave entitlement until I read the Attorney-General’s speech quoted at the beginning of this article. 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 Amending 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.”5

My wife and I experienced our first miscarriage at the very beginning of our marriage. Our sense of loss was crushing. As with many newly wed 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 about her own grief. It was a relief knowing that we were not alone, and prompted me to have more honest conversations. My wife started wearing a ribbon on 15 October.

The broader 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 begin to heal from their loss – both physically and emotionally.

Support for those experiencing pregnancy loss can be found through organisations such as the Pink Elephants Support Network.

Glen Cranwell is an associate member of Queensland Law Society. The views expressed are his own.

Footnotes
1 Queensland Parliament, Hansard, 14 October 2021, p3077.
2 Section s77A of the Fair Work Act provides for an entitlement to unpaid parental leave under the Fair Work Act in those circumstances.
3 Commonwealth Parliament, Hansard, Senate, 24 June 2021, p31.
4 Minister for Employment and Industrial Relations Directive: Special Leave (Directive 05/17), Schedule 1, item 6. For the entitlement of Queensland Government employees to 14 weeks’ paid leave where the loss occurs after 20 weeks, see Minister for Industrial Relations Directive: Paid Parental Leave (Directive 05/20), [10.5.2].
5 Commonwealth Parliament, Hansard, House of Representatives, 2 September 2021, p17.

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