Section 77A — Fair Work Act 2009: Effect of stillbirth or death of child on unpaid parental leave

Stillbirth—preserving entitlement to birth-related leave (1) If: (a) a child is stillborn; and (b) an employee would have been entitled to unpaid parental leave that is birth-related leave, if the child had been born alive; then the employee is taken to be entitled to the unpaid parental leave, despite the stillbirth of the child. Note: In addition, an employer generally must not refuse or cancel employer-funded paid parental leave for an employee because the employee’s child is stillborn or dies (see section 333X). (2) A stillborn child is a child: (a) who weighs at least 400 grams at delivery or whose period of gestation was at least 20 weeks; and (b) who has not breathed since delivery; and (c) whose heart has not beaten since delivery. (3) The provisions of this Division have effect in relation to the employee as if the birth of a child included the stillbirth of a child. Note: One effect of this subsection is that if the employee has not given notice in accordance with section 74 before the stillbirth of the child, the employee can do so as soon as practicable (which may be a time after the leave has started). Stillbirth or death of child—cancelling leave or returning to work (4) If a child is stillborn, or dies during the 24-month period starting on the child’s date of birth, then an employee who is entitled to a period of unpaid parental leave in relation to the child may: (a) before the period of leave starts, give the employee’s employer written notice cancelling the leave; or (b) if the period of leave has started, give the employee’s employer written notice that the employee wishes to return to work on a specified day. (5) For the purposes of paragraph (4)(b), the specified day must be at least 4 weeks after the employer receives the notice. (6) If the employee takes action under subsection (4), the employee’s entitlement to unpaid parental leave in relation to the child ends: (a) if the action is taken under paragraph (4)(a)—immediately after the cancellation of the leave; or (b) if the action is taken under paragraph (4)(b)—immediately before the specified day. Interaction with section 77 (7) Subsections (4) to (6) do not limit section 77 (which deals with the employee reducing the period of unpaid parental leave with the agreement of the employer).