Government proposes paid miscarriage leave

In June, the Morrison Government introduced the Sex Discrimination and Fair Work (Respect at Work) Amendment Bill 2021 into Parliament. The proposed legislation, in part, seeks to amend the Fair Work Act 2009 by implementing certain recommendations of the Australian Human Rights Commission report, Respect@Work: National Inquiry into Sexual Harassment in Australian Workplaces.

The Bill proposes to amend the Fair Work Act 2009 (the FW Act) to provide that a worker who is sexually harassed at work may apply for a Fair Work Commission (FWC) order to stop the sexual harassment (as is currently the case in reference to workplace bullying) and permit the FWC to make an order to stop sexual harassment following a single instance of sexual harassment. The Bill also seeks to amend the FW Act to clarify that sexual harassment in connection with an employee’s employment can be a valid reason for dismissal by changing the definition of ‘serious misconduct’ to expressly include sexual harassment. Finally, the proposed legislation will vary the existing entitlement to compassionate leave, within the National Employment Standards (NES), to include miscarriage as a permissible occasion.

Rather than creating a separate or completely new entitlement to paid leave, if passed, the legislation would allow full-time and part-time employees to access the NES minimum entitlement of two days of paid compassionate leave in the event of a miscarriage. The Bill’s explanatory memorandum identifies the entitlement would be available if the employee, or the employee’s spouse or de facto partner, has a miscarriage.

The Bill also proposes to amend the Sex Discrimination Act 1984 with the Government reporting the changes are designed to align it with model OHS laws and make it easier to understand and use.