Paid Parental Leave and Other Legislation Amendment (Dad and Partner Pay and Other Measures) Act 2012 (109 of 2012)

Schedule 2   Other amendments

Part 2   Amendments commencing the day after Royal Assent

Fair Work Act 2009

16   After section 77

Insert:

77A Pregnancy ends (other than by birth of a living child) or child born alive dies

Application of this section

(1) This section applies to unpaid parental leave, if:

(a) the leave is birth-related leave; and

(b) either:

(i) the pregnancy ends other than by the child being born alive; or

(ii) the child dies after being born.

Cancellation of leave

(2) Before the leave starts:

(a) the employee may give the employer written notice cancelling the leave; or

(b) the employer may give the employee written notice cancelling the leave.

Example: Subsections (2) and (3) do not apply if:

(a) the child dies after being born; and

(b) the employee is the female employee who gave birth to the child.

This is because in this case the leave must not start later than the date of birth of the child (see subsection 71(3)).

(3) If the employee or employer does so, the employee is not entitled to unpaid parental leave in relation to the child.

Note: If the employee is the female employee who was pregnant with the child and the employee is not fit for work, she may be entitled to:

(a) paid personal leave under Subdivision A of Division 7; or

(b) unpaid special maternity leave under section 80.

Return to work

(4) The employee may give the employer written notice that the employee wishes to return to work:

(a) after the start of the period of leave, but before its end; and

(b) within 4 weeks after the employer receives the notice.

(5) The employer:

(a) may give the employee written notice requiring the employee to return to work on a specified day; and

(b) must do so if the employee gives the employer written notice under subsection (4);

unless the leave has not started and the employer cancels it under subsection (2).

(6) The specified day must be after the start of the period of leave, and:

(a) if subsection (4) applies - within 4 weeks after the employer receives the notice under that subsection; or

(b) otherwise - at least 6 weeks after the notice is given to the employee under subsection (5).

(7) The employee's entitlement to unpaid parental leave in relation to the child ends immediately before the specified day.

Interaction with section 77

(8) This section does not limit section 77 (which deals with the employee ending the period of unpaid parental leave with the agreement of the employer).