Breastfeeding in the Workplace
In Australia, federal and state legislation prohibits employers from discriminating against a worker on the basis of breastfeeding. In fact, employers have a legal responsibility to make reasonable accommodations to support a worker who is breastfeeding in the workplace. This article looks at the rights of workers to breastfeed in the Australian workplace.
Breastfeeding as protected attribute
All states and territories have legislation that protect a worker’s right to undertake paid work while they are breastfeeding a child. For instance, in Victoria, breastfeeding is a protected attribute under the Equal Opportunity (Breastfeeding) Act 2000, requiring employers to make reasonable efforts to accommodate the needs of a lactating worker. This legislation also creates a positive duty on the employer to eliminate discrimination, victimisation and sexual harassment towards workers who are breastfeeding. Complying with a positive duty is designed to help prevent discrimination before it occurs.
At a Commonwealth level, the Federal Sex Discrimination Act 1984 protects the rights of breastfeeding individuals so that anyone who discriminates against them is breaking the law. Through amendments, this law now treats breastfeeding as a separate basis for discrimination, instead of merely a subset of sex discrimination. Most recently, the nation’s central employment law, the Fair Work Act 2009, was amended to include breastfeeding in the general protections provisions, bringing it in line with other federal and state discrimination laws.
Reasonable accommodations
Under the legislation mentioned above, employers are obliged to take reasonable steps to accommodate a breastfeeding worker. The employer must prove that any refusal is because the employee’s request was unreasonable given the specific circumstances. It is discriminatory if an employer:
- does not arrange suitable space for breastfeeding or expressing milk
- does not allow the worker to organise their breaks to facilitate breastfeeding or expressing milk
- insists that the employee work night shifts if there are available shifts that would better accommodate breastfeeding
- tells the worker that they must stop lactating before they can return to work.
Crucially, however, the onus is on the worker themselves to negotiate these accommodations with their employer.
Case study
The Australian Capital Territory Civil and Administrative Tribunal (the Tribunal) recently heard a discrimination complaint based on the protected attribute of breastfeeding. In Complainant 202258 v Southern Restaurants (Vic) Pty Ltd (Discrimination) [2023], a former worker claimed she was unreasonably disadvantaged at work because she was breastfeeding. The complainant worked for years as an assistant restaurant manager for an operator of multiple KFC franchises in Australia before she went on parental leave in June 2021. She started discussions to return to work in November 2021, but did not actually start work until March 2022 and resigned in November 2022.
During this time, the worker had multiple discussions with her employer about her need to express milk during her shifts. To begin with, the employee asked for certain shifts so she could share childcare responsibility with her husband. The employer responded by arranging a meeting with head office where the employee claimed she was asked intrusive questions by male managers about breastfeeding and expressing milk, and she felt pressured to wean her child or shift her child to formula. The employer denied this accusation but provided no contrary evidence from the managers who attended the meeting. The employer then advised the worker that she could return to work as a casual to facilitate her breastfeeding responsibilities.
The employee subsequently submitted a request for flexible working arrangements, including a clean and private room with comfortable seating, adequate time to express, a refrigerator to deposit expressed milk, and facilities to wash and keep equipment. As an alternative, the employee asked that she be allowed to take her unpaid meal break at a nearby shopping mall that had a parent’s room where she could express milk. The employer responded that while they could allow access to a refrigerator and wash sink, they could not provide her with a private and a comfortable seating area because of the store’s layout. The employer also would not permit the employee to leave the store to use the nearby parent’s room, as management personnel were required to remain on site unless another health and safety trained manager was on the premises. As it was too costly to have two senior managers on the same shift, the employer could not accommodate her request.
Ultimately, the employer and employee formulated a return-to-work plan that included a pop-up tent in the storeroom with a fold-out chair for her to express milk. However, when the employee saw the arranged set-up, she was concerned that this would not suit her needs, as the tent was cramped, uncomfortable and thin and there were no doors to the storeroom. The worker complained about the arrangement and asked again to leave the store during her shift but was refused permission.
The Tribunal was satisfied that the employer’s conditions of employment disadvantaged the employee who wanted to express milk during her shift. The Tribunal decided that the employment conditions were not reasonable as the employer could have arranged for health and safety training for other employees so that the lactating worker could leave the premises during her shift. Additionally, the employer had not adequately explored alternative arrangements to accommodate the worker’s request, such as temporarily transferring staff to other stores. The Tribunal also found that the employer could have made relatively minor alterations, such as installing a door to the storeroom.
As this case demonstrates, employers must take reasonable steps to rectify any situation where an employment condition might disadvantage employees with a protected attribute. The employment law team at Go To Court can provide further advice about breastfeeding in the workplace and the legal obligations of employers to facilitate a parent’s return to work. Please get in touch with our offices on 1300 636 846.