There are a number of personal attributes that are protected by Australia’s federal and state anti-discrimination laws, such as a person’s race, sex, pregnancy, marital status, family responsibilities, breastfeeding, age, disability, sexual orientation, gender identity or intersex status.
In a unique decision, the Australian Capital Territory Civil and Administrative Tribunal was recently required to determine a complaint of discrimination based on the protected attribute of breastfeeding. It is a timely decision noting that the Fair Work Act 2009 (Cth) was recently amended to include breastfeeding as a protected attribute under its general protections provisions.
In Complainant 202258 v Southern Restaurants (Vic) Pty Ltd (Discrimination)  ACAT 57, a former employee of Southern Restaurants (Vic) Pty Ltd (the Employer) claimed that she had been unreasonably disadvantaged by a workplace condition because she was breastfeeding her child.
The Employer operated a number of KFC franchises across Australia. The employee had been employed since 2015 and, at the time she commenced parental leave in June 2021, held the position of Assistant Restaurant Manager.
In September 2021, she commenced discussions with the Employer in preparation for her return to work in November 2021. Ultimately, the employee did not return to work until March 2022 and then resigned in November 2022.
During this period, the employee and the Employer had engaged in a number of discussions about the employee’s return to work and her need to express milk during working hours.
Initially, the employee requested to work certain shifts so that she could co-ordinate childcare arrangements with her husband. This resulted in a meeting with Head Office during which the employee claimed that she was asked probing and inappropriate questions about breastfeeding and expressing milk by male managers, which made her feel pressured to wean or formula-feed her child. The Employer denied this but did not provide any direct evidence from those who attended the meeting.
The employee was then advised that she had the option of returning to work as a casual staff member which might allow her to balance her breastfeeding responsibilities.
In October 2021, the employee made a written request for flexible working arrangements, which included provision of a private and clean room with a comfortable chair, a refrigerator to store expressed milk, sufficient time to express, and facilities to wash and store equipment.
In the absence of these accommodations, then the employee requested that she be allowed to take her unpaid meal break to express milk at a nearby mall which had a parents room.
In response, the Employer stated that it could provide her with refrigeration and a wash sink but it would not be able to accommodate her request for a private room and comfortable chair (as the store’s layout did not allow for this).
Further, the employee would not be permitted to leave the store to express milk as it was a condition of employment of management-level employees that they remain in the store unless there was another management employee on-site trained in work health and safety. As the Employer could not guarantee that another manager would always be on shift and it was too costly and inefficient to have two managers on shift, the employee therefore could not leave the store.
Ultimately in March 2022, the Employer and employee agreed on a return-to-work plan which included provision of a pop-up tent in the back storeroom with a fold-out chair given the employee was not permitted to leave the store to express milk.
However, upon seeing the tent and chair provided by the Employer, the employee raised concerns that it would be unsuitable for her needs. She noted that once the chair was placed inside the tent it became very cramped and uncomfortable for her to sit inside. In addition to this, the walls of the tent were very thin and there was no door into or out of the storeroom. Whilst staff were advised not to enter the storeroom while the employee was expressing milk, she was concerned that anyone could walk in if they needed to access food or in an emergency.
Despite complaining about the unsatisfactory nature of the arrangement and that she intended instead to access her unpaid meal breaks during her shift, the Employee was again advised that she had to remain on-site.
From this point until her resignation, the employee would only leave the work site during her unpaid meal breaks to express milk when there was another manager on site. This involved her having to express at later times and caused significant pain and discomfort.
In considering the claim, the Tribunal was satisfied that the employee had been disadvantaged by the Employer’s condition of employment. The Tribunal found that the effect of the condition was that it disadvantaged employees who wished to express milk to breastfeed their children during a shift, when there was no other manager on site, and they could not leave the premises. Those employees would have to express milk on-site in unsuitable facilities, and for the employee, the inappropriate facilities provided by the Employer had the effect of causing her embarrassment and discomfort.
The Tribunal then considered the Employer’s condition of employment and whether it was reasonable in all the circumstances despite the disadvantage suffered by the employee. It found that the condition was not reasonable, noting:
In all, the Employer had not satisfied the Tribunal that the solutions proposed by the employee, which would have avoided the disadvantage she suffered, were unreasonable or disproportionate financial or operational burdens. It stated at paragraph : “While the [Employer] does not have to provide the gold standard … it is obliged to do what it reasonably can in the context of its business to ensure no disadvantage flows to an employee with the breastfeeding attribute from the condition it imposes.”
The matter was listed for further directions to determine next steps.
Lessons for employers
This case is a reminder to employers of the need to ensure that, where a particular workplace condition might be disadvantageous to an employee with a protected attribute, it is obligated to do what it reasonably can to ensure that the employee is not disadvantaged because of that attribute.
Also, as mentioned above, it is a timely decision noting that the general protections provisions of the Fair Work Act 2009 (Cth) were recently amended to include breastfeeding as a protected attribute, to bring it in line with the already existing Federal and State anti-discrimination laws.
Shane Koelmeyer is a leading workplace relations lawyer and Director at Workplace Law. Workplace Law is a specialist law firm providing employers with legal advice, training and representation in all aspects of workplace relations, employment-related matters and WH&S.
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Information provided in this blog is not legal advice and should not be relied upon as such. Workplace Law does not accept liability for any loss or damage arising from reliance on the content of this blog.
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