Key points
- The Fair Work Amendment (Baby Priya’s) Bill 2025 (the Bill) amends the Fair Work Act 2009 (the Act) to make entitlements to parental leave in cases of stillbirth or the death of a child more consistent, whether the leave is unpaid or paid parental leave.
- The Bill only deals with the operation of entitlements to paid parental leave under the terms and conditions of an employee’s employment in cases of stillbirth or death of a child. It does not alter the existing provisions dealing with employees’ entitlements to unpaid parental leave in the case of the stillbirth or death of a child.
- The Bill will prevent employers from unilaterally cancelling periods of paid parental leave in cases of still birth. However, the Bill will not prevent employers and employees from agreeing to cancel such periods of leave.
- The Bill does not impose any requirement on employers to provide employer-funded paid parental leave.
- For stillbirths that occur under surrogacy arrangements, whilst the surrogate parents will have their PPL entitlement protected, it does not appear that this will be the case for the intended parents if the stillbirth or death of the child occurs prior to the legal parentage of the child being transferred to them under state and territory legislation.
- At the time of writing, the Bill had not been referred to or reported on by any parliamentary committees.
Introductory Info
Date of introduction: 9 October 2025
House introduced in: House of Representatives
Portfolio: Employment and Workplace Relations
Commencement: The day after Royal Assent.
Purpose of the Bill
Currently the Fair Work Act 2009 (the Act) provides many employees with an entitlement to unpaid parental leave (UPL), but not an entitlement to employer-funded paid parental leave (PPL). Instead, entitlements to PPL arise from agreements between employers and employees on an individual contractual basis, from workplace policies or via industrial instruments, such as enterprise agreements.
The Act contains rules preventing periods of UPL from being unilaterally cancelled by employers in cases of stillbirth or miscarriage. However, as no such rules apply to PPL employers in some instances can unilaterally cancel periods of PPL in cases of stillbirth.
The purpose of the Fair Work Amendment (Baby Priya’s) Bill 2025 (the Bill) is to amend the Act to prevent employers from refusing or unilaterally cancelling certain PPL entitlements in the event of stillbirth or early infant death.
The Bill is named after Baby Priya who heartbreakingly died when she was just 42 days old. According to Red Nose Australia:
In the aftermath, her mother, who has chosen not to be identified publicly, was told that her paid parental leave was no longer available. Meanwhile, her husband Chris was allowed to take his full leave entitlement.
Background
Distinguishing types of parental leave and payments
Employees who become parents can potentially access three different entitlements:
The Bill is concerned with preserving entitlements to employer-funded PPL, which are determined by the terms and conditions under which employees are employed. This is distinct from government-funded PLP payments under the PPL Act.
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Previous legislation regarding leave entitlements in cases of stillbirth
The Senate Select Committee on Stillbirth Research and Education was established on 27 March 2018 with several terms of reference, including ‘quantifying the impact of stillbirths on the Australian economy’. It tabled its report on 4 December 2018, which, among other things, recommended that the Australian government review and amend the Act to ensure that:
- provisions for stillbirth and miscarriage are clear and consistent across all employers, and meet international best practice such as those contained in the Ausgrid Enterprise Agreement (relevant clauses of which were included at paragraph 3.71 of the Committee’s report); and
- legislative entitlements to paid parental leave are unambiguous in recognising and providing support for employees who have experienced stillbirth.
The Morrison Government, in its response to the report published on 11 July 2019, agreed with and accepted this recommendation.
The Fair Work Amendment (Improving Unpaid Parental Leave for Parents of Stillborn Babies and Other Measures) Act 2020 (UPL Act) made amendments to the Act to provide consistent UPL and other related leave entitlements in relation to stillbirths. As stated in the Explanatory Memorandum for the Bill that introduced the UPL Act:
… [t]he changes fulfil the Government’s commitment in responding to the [Committee] Report … to review the operation of the Fair Work Act to ensure that all provisions relating to stillbirth provide a clear and consistent minimum standard (p. i).
Current operation of the Act
The effect of the amendments made by the UPL Act is that, currently, under the Act:
- where a child is stillborn, employees have an entitlement to UPL and related entitlements as if the child had been born alive (section 77A of the Act)
- where a child is stillborn or dies during the 24-month period starting on the child’s date of birth:
- employers cannot unilaterally cancel periods of UPL (section 77 of the Act) but
- an employee may give notice to cancel or reduce the leave period (subsection 77A(4) of the Act).
Legal basis for employer-funded paid parental leave entitlements
Entitlements to PPL are determined between employers and employees, either on an individual contractual basis, through workplace policies or from industrial instruments, such as enterprise agreements. The Act does not currently make express provision regarding PPL, nor do PPL entitlements form part of the NES, as is the case with UPL.
The Bill would amend the Act to preserve entitlements to PPL in situations of stillbirth or death of a child by preventing employers from:
- refusing to allow employees to take PPL or
- unilaterally cancelling approved periods of PPL.
However, the above prohibitions will not apply if the terms and conditions of the employee’s employment:
- expressly allows the employer to refuse or cancel leave in the case of stillbirth or death of a child, or
- the employee is entitled to other forms of leave that expressly address the stillbirth or death of a child (other than UPL, compassionate leave or other forms of leave that have the same or ‘substantially the same’ effect).
Policy position of non-government parties/independents
At the time of writing, no statements on the Bill by non-Government parties or independents were identified.
Key issues and provisions
The Explanatory Memorandum (p. 1) to the Bill states that the Bill will:
… implement the government’s election commitment to stop employers from cancelling employer-funded paid parental leave if an employee’s child is stillborn or dies.
The Australian Services Union and Red Nose Australia have indicated their support for the Bill, which reportedly arose partly in response to an on-line petition organised by the parents of baby Priya that gathered over 32,000 signatures.
Preserving paid parental leave in cases of stillbirth or death of a child
Proposed section 333X (at item 5 of the Bill) preserves PPL entitlements in cases of stillbirth or death of a child. It does this by providing in proposed subsection 333X(2) that an employer must not, because of the stillbirth or death of a child of the employee or the employee’s spouse or de facto partner:
- refuse to allow the employee to take PPL or
- cancel the employee’s PPL (or part of it) without being asked by the employee to do so.
The effect of this is that employers are prohibited from refusing or unilaterally cancelling certain PPL entitlements in the event of stillbirth or early infant death, unless one of the two exceptions discussed below apply.
Exception: availability of other forms of leave
The first exception to the proposed prohibition is under proposed subsections 333X(5) and (6). This would provide an exception where the employee is entitled to other forms of leave that expressly address the stillbirth or death of a child other than:
- UPL or compassionate leave under section 70 or section 104 of the Act, respectively, or
- forms of leave available to the employee that have the same or ‘substantially the same’ effect as UPL or compassionate leave under the NES.
The Explanatory Memorandum (p. 10) notes:
This is intended to avoid interfering with arrangements agreed in good faith between employers and employees where the parties have clearly turned their minds to the leave an employee would receive in the event of the stillbirth or death of an employee’s child
…
employers must disregard an eligible employee’s entitlement to compassionate leave and unpaid parental leave under the NES—or an entitlement under their terms and conditions of employment with the same or substantially the same effect—when working out whether the employee is entitled to other leave for applying the exception
….
The intention of [the exception] is to provide an exception for entitlements that have been negotiated in good faith between employers and employees in relation to arrangements that apply in the case of stillbirth or death of an employee’s child. Conversely, NES entitlements represent a mandatory minimum standard rather than the result of such negotiation.
Exception: existing terms of employment allow for unilateral refusal or cancellation
The second exception to the proposed prohibition is set out in proposed subsection 333X(3) and applies where the terms and conditions of the employee’s employment expressly provide:
- that the employer can refuse or cancel PPL because of the stillbirth or death of a child or
- that the employee is not entitled to PPL because of the stillbirth or death of a child.
The Explanatory Memorandum notes (p. 9):
This is intended to ensure that the protection in new subsection 333X(2) would not interfere with terms and conditions agreed in good faith between an employer and employee about what happens to an employee’s entitlement to employer-funded paid parental leave in the event of a stillbirth or death of a child.
This exception would not apply if an employee’s terms and conditions provide for employer-funded paid parental leave but are silent or unclear on what happens in the event of a stillbirth or death of a child.
Importantly, proposed subsection 333X(4) provides that this exception does not apply if the relevant terms and conditions are unilaterally varied by the employer after the Bill commences. In this regard the Explanatory Memorandum notes (p. 9):
This is intended to prevent employers from unilaterally varying, or attempting to vary, terms and conditions of employment on foot at or before commencement of the Bill to avoid the effect of new subsection 333X(2), for example in a workplace policy that forms part of the contract of employment.
New subsection 333X(4) would not prevent employers and employees, after the commencement of the proposed amendments, from continuing to bargain in good faith or negotiate for new terms and conditions when entering into new enterprise agreements or employment contracts that expressly provide for what happens in the event of a stillbirth or infant death.
Parentage and leave entitlements for surrogacy arrangements
The Explanatory Memorandum to the Bill states (p. 1, emphasis added):
The Bill would give parents greater certainty around their employer-funded paid parental leave arrangements in the event of a stillbirth or death, including in surrogacy and adoption arrangements.
However, as detailed below, the proposed amendments may not cover all parties in surrogacy arrangements.
Surrogacy arrangements and legal parentage in Australia
To understand the Bill's operation, a brief summary of Australian surrogacy terminology is necessary. Surrogacy is the process where a woman, the surrogate, agrees to carry and give birth to a child on behalf of one or more intended parents.
Surrogacy in Australia is limited to altruistic surrogacy; commercial surrogacy is illegal. The surrogate parents are the person who gives birth and (potentially) their spouse or de facto partner. An intended parent is a person who enters into a surrogacy arrangement with another person who will carry a child on their behalf. Surrogacy, and particularly the transfer of legal parentage and parental responsibility, is regulated by state and territory laws (para 21) as well as Commonwealth laws, including the Family Law Act 1975.
Critically, at the time of birth, only the surrogate (and sometimes their partner) is the legal parent of the child.
Legal parentage can only be transferred to the intended parents via a court order under relevant state and territory surrogacy laws. These laws generally require a period of approximately one month after the child's birth before an application for a parentage order can be made.[1] Until that occurs, the surrogate is the parent of the child, not the intended parents.
Surrogacy arrangements are uncommon, with the most recent report from the Australian and New Zealand Assisted reproduction Database (ANZARD) suggesting that in 2023, across both Australia and New Zealand, there were 131 clinical pregnancies as a result of surrogacy arrangement cycles, which resulted in 104 live births.
Parentage under the Fair Work Act
Section 17 of the Act refers to the Family Law Act 1975 to define who is a 'child' of a person under various circumstances (for example, in section 70 for the purpose of UPL). The application of this definition to surrogacy is not explored in detail here. Briefly however, section 60HB of the Family Law Act provides that, for the purposes of that Act, a child born under a surrogacy arrangement becomes the child of the intended parents once a court order under a relevant state or territory law is made. The Fair Work Ombudsman (FWO) summarises the current position under the Act as follows:
It appears likely that most employer-funded PPL entitlements operate in a similar manner, given that the inclusion of terms in enterprise agreements dealing specifically with surrogacy and paid parental leave appears to be relatively uncommon.
Given that the transfer of legal parentage occurs after birth, intended parents appear at risk of not having access to PPL entitlements if a stillbirth occurs before the legal transfer from the surrogate parent is complete at the time of the stillbirth or death of the child, as examined below.
Entitlements of surrogate parents under the Bill
While the Bill expressly preserves PPL entitlements associated with the placement of a child with an employee for adoption (proposed subparagraph 333X(1)(c)(ii)), surrogacy arrangements are not expressly referenced in the Bill text.
Aside from adoption arrangements, the leave entitlements that would be preserved under proposed subparagraph 333X(1)(c)(i) are those ‘associated with the birth of a child of the employee or the employee’s spouse or de facto partner’.
In the event of a stillbirth or early infant death, the surrogate parents are likely to have an entitlement to PPL (where this is available under their employment terms), which the Bill will protect. This is especially likely if the death occurs prior to the intended parents obtaining legal parentage, because the child is legally the child ‘of the’ surrogate parents at that time (as they have legal parentage at that time).
Entitlements of intended parents under the Bill
As noted by the ALRC (para 56), the surrogate parent is the child’s legal parent at birth, and remains so until the parties go through a judicial process to transfer legal parentage to the intended parents, as noted above. In that regard, several reports have found that this results in uncertainty around the timing of when legal parentage is transferred to the intended parents of a surrogacy arrangement. For example:
- The 2016 Standing Committee on Social Policy and Legal Affairs Report on its Inquiry into Surrogacy noted that the processes and timing for transferring legal parentage and parental responsibility are complex and sometimes unclear (paras 1.42-1.43) and
- the 2025 Australian Law Reform Commission’s (ALRC) Issues Paper on the Review of Surrogacy Laws notes that timing, uncertainty and expense cause concerns around legal domestic surrogacy arrangements and when legal parentage is transferred to the intended parents (paras 57–58, 63).
This uncertainty as to the timing of legal parentage transfers has significant implications for the Bill's measures in relation to intended parents:
- Stillbirth: At the time of a stillbirth, the intended parents will likely not have legal parentage of the child and therefore they likely would be ineligible for PPL under proposed paragraph 333X(1)(c)(i)
- Early infant death: Where a child of the surrogate parents dies within the first month of birth, the intended parents are similarly unlikely to have obtained legal parentage and therefore they likely would be ineligible for PPL for the same reasons.
- Parentage orders for deceased children: Intended parents may also be unable to apply for a parentage order under state and territory legislation to transfer the legal parentage of a deceased child, leading to the same outcome of PPL ineligibility.
Some jurisdictions allow parentage declarations regardless of whether the child is alive.[2] This digest does not explore the legal effect of such declarations. However, if such declarations apply to a surrogacy, an intended parent’s entitlement to PPL would appear to be contingent on obtaining such a court declaration at or before the time they sought to access PPL.
Applicable penalties for breaches of the proposed protections
The effect of item 6 is to bring breaches of the new protections within the Act’s existing civil remedy framework. As a result, where an employer unilaterally cancels PPL or refuses to approve PPL in contravention of proposed section 333X, an employee, an employee organisation (trade union) or the FWO can commence court proceedings. The result is that the maximum civil penalty for breaches of the new protections will be:
- for an individual: 60 penalty units ($19,800) or 600 penalty units ($198,000) for a serious contravention
- for a body corporate that is a small business: 300 penalty units ($99,000), or 3,000 penalty units ($990,000) for a serious contravention (paragraph 546(2)(b) of the Act)
- for a body corporate that is not a small business: 1,500 penalty units ($495,000), or 15,000 penalty units ($4,950,000) for a serious contravention.
Serious contraventions are defined under subsection 557A(1) of the Act by reference to knowledge or recklessness in the contravention.
Application provisions
Item 7 will insert proposed Part 20 into Schedule 1 of the Act, setting out how proposed section 333X will apply.
The amendments are not retrospective. They apply only if the stillbirth or death of a child occurs on or after the commencement of the Bill.
The operation of proposed section 333X depends on the source of the PPL entitlement.
Proposed clause 128 deals with the application of proposed section 333X to workplace instruments (e.g., enterprise agreements). It provides that proposed section 333X will apply to PPL entitlements set out in instruments other than employment contracts, regardless of when the instrument was made (before, on, or after commencement).
Proposed clause 129 deals with the application of proposed section 333X to employment contracts. It provides that proposed section 333X will apply to new contracts entered into after proposed section 333X commences. For contracts in effect immediately before commencement, proposed section 333X still applies if:
- the stillbirth or death occurs after commencement and
- the employee has not yet given notice of their intention to take leave or is at any stage of the leave application process at the time of commencement.
This includes an employee whose notice requirements have not been fully met, whose leave is awaiting approval, or whose leave has been approved or commenced.
Further details on the application provisions can be found at pages 13 to 15 of the Explanatory Memorandum.