Stillbirth, premature birth or infant death

Find information about entitlements for an employee who experiences a stillbirth, premature birth or death of a child.

On this page:

Unpaid parental leave

If an employee’s baby is stillborn or their child dies in the first 24 months of life, they can take up to 12 months’ unpaid parental leave. Their employer can’t:

  • call them back to work
  • cancel their unpaid parental leave.

Employees who experience a stillbirth or death of their child can choose to cancel their unpaid parental leave and return to work.

If the employee hasn’t started their unpaid parental leave, they just need to give written notice to cancel their leave. If they decide to return to work after starting their leave, they need to give their employer at least 4 weeks’ written notice before they return.

Employers and employees can agree to an earlier return date.

Compassionate leave

Access to compassionate leave depends on whether the employee has started unpaid parental leave.

For information about compassionate leave while pregnant, visit Entitlements while pregnant.

For information about compassionate leave while on unpaid parental leave, visit Accruing and taking other leave during parental leave.

Premature birth and birth-related complications

An employee can agree with their employer to put their unpaid parental leave on hold if:

  • they experience a premature birth or gestational or other birth-related complications
  • their newborn has to stay in hospital or be hospitalised immediately after birth.

This means that while their newborn is in hospital, parents can return to work and the period when they are back at work will not be deducted from their unpaid parental leave.

The employee can then resume their unpaid parental leave:

  • at a time agreed with their employer
  • at the end of the day when the newborn is discharged from the hospital, or
  • at the end of the day in the scenario that the newborn dies.

Source reference: Fair Work Act 2009 s. 77A, 106-7

Returning to work early due to stillbirth or infant death

An employee can reduce or cancel their period of unpaid parental leave if they experience a stillbirth or death of a child.

Death of a child, or ‘infant death’ under the Fair Work Act is when a child dies within the first 24 months of life.

Before parental leave has started

An employee can cancel their unpaid parental leave with written notice before it starts.

An employer can’t require an employee to return to work or cancel their upcoming unpaid parental leave after the employee experiences a stillbirth or death of a child.

Where an employee experiences a stillbirth or death of a child, the employee can take unpaid parental leave even if they haven’t previously given notice to their employer. The employee has to notify their employer as soon as they can.

After parental leave has started

If the employee has started unpaid parental leave but the infant is stillborn or dies, the employee is still entitled to be on unpaid parental leave unless the employee ends the leave.

An employee can end the leave by giving their employer at least 4 weeks’ written notice of their new return to work date.

Employers and employees can agree to the employee returning to work on an earlier date.

An employer can’t require an employee to return to work or cancel any upcoming planned leave after a stillbirth or infant death.

Source reference: Fair Work Act 2009 s.77, 77A and 78

Support available

Support services are available if you've experienced or are impacted by stillbirth.

Stillbirth Foundation Australia provide practical resources and emotional help for parents who have experienced a stillbirth.

They also provide resources and advice for family members, friends and colleagues who are supporting someone through the impact of stillbirth.

Source reference: Fair Work Act 2009 s.77A

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