Civil Law

By Aulich


Miscarriage Leave

One in four pregnancies in Australia will end in miscarriage. This is a high percentage of women suffering at any one point, and often suffering in silence.

I personally have not suffered a miscarriage, but I know a number of women who have, including my mother and sister. It wasn’t until they went through a miscarriage that I learnt more about it and how traumatic it can be. Not only the physical aspect, which can be days or weeks of debilitating pain and bleeding, there is the mental and emotional toll that can be far worse than the physical aspect.

The Sex Discrimination and Fair Work (Respect at Work) Amendment Bill 2021 recently passed in September 2021 which amended the Fair Work Act 2009 to include miscarriage as a ground for compassionate leave.

Employees are now entitled to two days leave if they suffer a miscarriage before 20 weeks.

By including this in legislation, this works towards removing the stigma around miscarriage so employees can feel comfortable to take time off when going through a traumatic experience.

Two days leave is the statutory minimum. However, workplaces can extend this. Public servants in New South Wales, for example, are provided five days leave.

There is also the workplace culture to consider. Having an open and supportive culture enables your employees to feel looked after. Many workplaces (Aulich is one of them) offer Employee Assistance Programmes (EAP) where the workplace pays for its employees to access confidential counselling. A workplace that has an EAP service should also encourage staff to make use of such resources.  These form part and parcel of a safe workplace and positive workplace culture, which ultimately leads to employee productivity and business success.

What the Legislation Says

All employees, including casual employees, are entitled to two days of compassionate leave (also known as bereavement leave).

This leave can be taken when a member of an employee’s immediate family dies (including a stillborn child), or contracts or develops a life-threatening illness or injury. Further to this, miscarriage is now included as a ground for compassionate leave. Miscarriage is defined as the spontaneous loss of an embryo or fetus before a period of gestation of 20 weeks.

Full-time and part-time employees receive paid compassionate leave. Casual employees receive unpaid compassionate leave.

Employment Agreements and Leave Policy

You do not need to change your employment agreements to include miscarriage as a ground for leave as it is a legislative change that falls under compassionate leave.

However, if it has been a while since you have last updated your employment agreements, it is a good idea to seek legal advice to ensure your agreements conform to the current legislation.

Employers should update their leave policies to include miscarriage leave entitlements.

If you are an employer that needs legal advice, including assistance in updating your employment agreements; or an employee who requires legal advice, you should contact the team at Aulich Civil Law on 6279 4222 or