After a miscarriage, you and your current spouse or de facto partner each get 2 days of compassionate leave. Full-time and part-time employees are paid their base rate for those days; casual employees take them unpaid.
If you are reading this after a loss, that short answer may be all you need today. The detail below is here for when you want it. Miscarriage leave is not a separate entitlement in the Fair Work Act: it is part of compassionate leave, under s 104(1)(c), and it has applied since 11 September 2021, when the Sex Discrimination and Fair Work (Respect at Work) Amendment Act 2021 commenced. This guide covers who is included, where the law separates a miscarriage from a stillbirth, what the 2 days are worth, how to ask for them, and what you can use if you need more time.
Key takeaways
- 2 days of compassionate leave for each miscarriage, for the person who was pregnant and for their current spouse or de facto partner.
- Pay is your base rate for ordinary hours unless you are casual, in which case the days are unpaid. Nothing comes off your sick leave balance.
- A former partner, a partner who does not live with you as a couple, and the baby's grandparents are not covered for a miscarriage.
- A loss at 20 weeks or more, or of a baby weighing 400 grams or more, is a stillbirth in law. More of the family is then covered, and unpaid parental leave stays available.
- Tell your employer as soon as practicable, even after the leave starts. Evidence is needed only if your employer asks, and a statutory declaration can be enough.
Who gets miscarriage leave
Section 104(1)(c) gives the leave when "the employee, or the employee's spouse or de facto partner, has a miscarriage". So the circle is narrow: the person who was pregnant and their current partner, each from their own employer. A stillbirth is different, because s 104(1)(b) covers anyone the baby would have been immediate family or household to. The table shows both.
| Your relationship | Miscarriage (before 20 weeks and under 400 g) | Stillbirth (20 weeks or more, or 400 g or more) |
|---|---|---|
| You were pregnant | Yes, 2 days | Yes, 2 days |
| Your current spouse | Yes, 2 days | Yes, 2 days |
| Your current de facto partner, same sex or different sex, living with you as a couple | Yes, 2 days | Yes, 2 days |
| A partner who does not live with you as a couple | No: not a de facto partner under s 12 | Yes, if the baby would have been their child |
| A former spouse or former de facto partner | No: excluded by s 104(2)(b) | Yes, if the baby would have been their child |
| Grandparents (the baby would have been their grandchild) | No | Yes, 2 days |
| Anyone else who lives in your household | No | Yes, 2 days |
| Aunts, uncles and cousins who live elsewhere | No | No |
Two definitions in s 12 explain the partner rows. A de facto partner is someone you live with "in a relationship as a couple on a genuine domestic basis", whether you are the same sex or different sexes, so a partner who lives elsewhere falls outside the miscarriage limb. And because s 12 says "spouse includes a former spouse" (with the same rule for de facto partners), s 104(2)(b) was needed to stop the miscarriage limb reaching an ex-partner.
"(1) An employee is entitled to 2 days of compassionate leave for each occasion (a permissible occasion) when: ... (b) a child is stillborn, where the child would have been a member of the employee's immediate family, or a member of the employee's household, if the child had been born alive; or (c) the employee, or the employee's spouse or de facto partner, has a miscarriage. (2) Paragraph (1)(c) does not apply: (a) if the miscarriage results in a stillborn child; or (b) to a former spouse, or former de facto partner, of the employee." Fair Work Act 2009 (Cth) s 104, Compilation No. 73 (7 July 2026).
Start date: the Respect at Work Amendment Act 2021 (No. 104, 2021) was assented to on 10 September 2021 and commenced on 11 September 2021; Schedule 1 items 6 to 9 inserted the miscarriage definition, s 104(1)(c), s 104(2) and s 105(1)(c). FWO, Respect at Work (updated 17 June 2026).
Miscarriage or stillbirth: the 20-week and 400-gram line
The Act uses two tests, and either one can move a loss across the line. A miscarriage is "a spontaneous loss of an embryo or fetus before a period of gestation of 20 weeks" (s 12). A stillborn child is one who weighed at least 400 grams at delivery or reached at least 20 weeks' gestation, and who has not breathed or had a heartbeat since delivery (s 77A(2)). Where a loss before 20 weeks results in a stillborn child, the miscarriage limb does not apply (s 104(2)(a)). That means a loss at 19 weeks of a baby weighing 400 grams or more is a stillbirth in law, and a loss at exactly 20 weeks is a stillbirth too.
| What happened | In law | Who gets 2 days of compassionate leave |
|---|---|---|
| Loss at 9 weeks | Miscarriage | You and your current spouse or de facto partner |
| Loss at 19 weeks, baby under 400 grams | Miscarriage | You and your current spouse or de facto partner |
| Loss at 19 weeks, baby 400 grams or more, no breath or heartbeat since delivery | Stillbirth | Everyone the baby would have been immediate family or household to |
| Loss at 20 weeks or later, no breath or heartbeat since delivery | Stillbirth | Everyone the baby would have been immediate family or household to |
| A baby born alive who then dies | Death of a family member | Everyone the baby was immediate family or household to |
The line matters for more than compassionate leave. After a stillbirth, unpaid parental leave and Parental Leave Pay can still be available, as the stillbirth section below explains. After a miscarriage, the other options are sick leave, carer's leave for a partner and, in some cases, unpaid special parental leave.
How miscarriage leave is paid, and casuals
If you are full-time or part-time, your employer pays the 2 days at your base rate of pay for your ordinary hours in that period (s 106). The FWO notes that base rate leaves out bonuses and incentive payments, loadings, allowances, overtime and penalty rates. A part-time employee is paid only for ordinary hours that fall on the leave days, so a day you would not have worked carries no pay. If you are casual, the leave is unpaid, but you are still entitled to take it.
Pay is days × ordinary hours a day × base rate. On 7.6-hour days:
| Base rate | NES: 2 days (15.2 hours) | Higher Education awards: 3 days (22.8 hours) | Casual |
|---|---|---|---|
| $28.00 an hour | $425.60 | $638.40 | $0.00 |
| $32.00 an hour | $486.40 | $729.60 | $0.00 |
| $36.00 an hour | $547.20 | $820.80 | $0.00 |
| $40.00 an hour | $608.00 | $912.00 | $0.00 |
Compassionate leave is its own entitlement. It does not accumulate, it is not part of your sick and carer's leave, and it cannot be cashed out. If you are already on annual leave when the miscarriage happens, you can take compassionate leave for those days instead.
Mei and Jordan. Mei is full-time on a base rate of $36.00 an hour with 7.6-hour days. She miscarries at 9 weeks and takes 2 days of compassionate leave, paid at 2 × 7.6 × $36.00 = $547.20. She is not well enough to go back, so she then takes 3 days of paid sick leave on a medical certificate.
Jordan, her de facto partner, lives with her and works as a casual. He takes 2 days of unpaid compassionate leave from his own employer.
Mei's mother has no NES compassionate leave for the miscarriage. Had the loss been at 21 weeks, it would have been a stillbirth, and her mother would have had 2 days.
How to take it: notice, evidence and timing
You can take the 2 days together, as two single days, or in other separate periods your employer agrees to (s 105(2)). The leave is taken after the miscarriage (s 105(1)(c)), and s 105 sets no deadline between the loss and the leave.
- Notice. Tell your employer once you reasonably can. The Act accepts notice given after you have already stopped work, as long as it says how many days you expect to need (s 107(2)).
- Evidence. Only if your employer asks. It must be evidence that would satisfy a reasonable person that the leave is for a miscarriage (s 107(3)). The FWO gives a statutory declaration as an example and says the request has to be reasonable. Your award or agreement may say what kind of evidence it expects (s 107(5)).
- Why it matters. The Act makes the entitlement depend on giving notice and, if asked, evidence (s 107(4)). A short message to your manager saying you are taking compassionate leave, and for how long, covers the notice step.
When 2 days is not enough
Two days is a minimum, not a measure of how long recovery or grief takes. These are the other entitlements people use:
- Sick leave, if you were pregnant and are not fit for work. The FWO says personal illness "can include stress and pregnancy related illnesses". It comes from your paid personal/carer's balance; casuals have no paid sick leave.
- Carer's leave, if your partner needs care. Section 97(b)(i) lets you take paid carer's leave to care for a spouse or de facto partner affected by a personal illness. A casual partner can take 2 days of unpaid carer's leave per occasion. See carer's leave.
- Unpaid special parental leave. If the pregnancy ends after 12 weeks other than by the birth of a living child, the baby was not stillborn, and the employee who was pregnant is not fit for work, that employee can take unpaid special parental leave. Notice is due as soon as possible, and the employer can ask for evidence such as a medical certificate.
- Annual leave. A request to use your annual leave can be turned down only on reasonable grounds (s 88(2)).
After a stillbirth or the death of a baby
After a stillbirth, compassionate leave reaches every employee the baby would have been immediate family or household to, grandparents included. Unpaid parental leave also survives. If a baby is stillborn or a child dies in the first 24 months of life, the parent keeps a right to as much as 12 months of unpaid parental leave (up to 24 with employer agreement), and the employer cannot call them back to work or cancel the leave. A parent who has not started the leave can cancel it by written notice, and one who wants to come back early must give at least 4 weeks' written notice. After a stillbirth, unpaid parental leave can be taken even without earlier notice. Compassionate leave can also be taken during unpaid parental leave.
Employer-funded paid parental leave cannot be refused or cancelled because of a stillbirth or a child's death, where the child is stillborn or dies on or after 7 November 2025. The government's Parental Leave Pay may also still be available, but you must claim it and meet the eligibility rules. Services Australia can pay it to you directly rather than through your employer; it cannot be paid as a lump sum. A parent with a partner is exempt from the reserved-days limit, so can claim all the available days, and from the limit on taking days at the same time as a partner. After a stillbirth the family chooses between Parental Leave Pay and Stillborn Baby Payment. After a neonatal death, Parental Leave Pay and Family Tax Benefit bereavement payments may both be paid.
Returning to work after this kind of loss is covered in returning to work after maternity or parental leave. To check the work test for the government payment, use the Paid Parental Leave work test calculator; to plan the leave itself, use the maternity leave calculator or the Parental Leave Pay calculator.
Awards and public sector employers that give more
The NES is a floor. University staff covered by the Higher Education Industry-Academic Staff-Award 2020 (clause 21.2) or the Higher Education Industry-General Staff-Award 2020 (clause 25) get 3 days of compassionate leave for each permissible occasion, and a miscarriage is one of those occasions. University general staff can check the Higher Education (General Staff) Award; for any other industry, start from the list of awards.
Public sector agreements set their own terms on top of the NES. In the Victorian Public Service, clause 61 of the enterprise agreement covers compassionate leave when an employee or their spouse or de facto partner has a miscarriage, and the government's policy points to clause 62.15 (special parental leave) where a pregnancy ends other than by a live birth. Check your agreement for the number of days. For Australian Public Service employees, APSC Circular 2021/08 says the miscarriage change overrides less generous terms in enterprise agreements, because it is part of the NES.
Miscarriage leave: questions
Is there miscarriage leave in Australia?
Yes. Under the National Employment Standards a miscarriage is a permissible occasion for compassionate leave, which gives 2 days each time.
Is miscarriage leave paid?
For full-time and part-time employees, yes, at the base rate for the ordinary hours they would have worked. For casuals it is unpaid.
Does my partner get miscarriage leave?
Yes, if you are married or live together as a couple, including same-sex de facto couples. A former partner does not, and neither does a partner who lives separately.
How do I apply for miscarriage leave?
Tell your employer as soon as you reasonably can, even if the leave has already begun, and say how many days you need. If they ask for evidence, give something a reasonable person would accept, such as a statutory declaration.
Do I need a medical certificate?
The Act does not require one for compassionate leave, although your award or agreement may say what evidence it expects. A certificate becomes relevant if you take sick leave afterwards and your employer asks for evidence.
Does miscarriage leave come out of my sick leave?
No. Compassionate leave is separate from your personal/carer's balance, so your sick leave is untouched.
Do grandparents get leave?
Not for a miscarriage, because the miscarriage limb covers only the employee and their current partner. For a stillbirth, yes: the baby would have been their grandchild, which is immediate family.
Can I get Parental Leave Pay after a stillbirth?
You may, if you claim and meet the eligibility rules. You will need to choose between Parental Leave Pay and Stillborn Baby Payment, and a parent with a partner can claim all the available days.
Is miscarriage leave different in Victoria or for government employees?
Private sector employees in Victoria get the national 2 days. Public sector agreements can give more: the Victorian Public Service agreement covers miscarriage in clause 61, so check it for the number of days. APS agreements cannot give less than the NES.
When did miscarriage leave start?
On 11 September 2021, the day after the Respect at Work Amendment Act 2021 received Royal Assent.
Author & reviewer
Sarah has spent over a decade advising Australian SMBs on Fair Work, NES compliance, and payroll. Based in Sydney, she has worked across hospitality, retail and professional services.