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Breastfeeding Anti-Discrimination Case the First of its Kind
Australia has its first-ever decision in any anti-discrimination jurisdiction of Australia concerning breastfeeding.
In September 2023, the Australian Capital Territory Civil & Administrative Tribunal (ACTCAT) found that an employer had discriminated against an employee by imposing upon her unreasonable conditions of employment which caused the employee to be disadvantaged because she was breastfeeding.
What happened leading up to proceedings?
After returning to work from parental leave, the employee, who was a manager at a fast-food franchise, requested time to express milk during her shifts and provide facilities to do so at work, specifically a private room with a chair, refrigerated storage for the expressed milk and facilities to wash and store pumping equipment.
The employer indicated that no private room was available for use, but she could use the public bathroom. The employee explained she could not express milk in a bathroom stall and suggested that she could use her unpaid meal breaks to visit the local shopping centre across the road and express in the parents’ room. The employer rejected this suggestion on the basis that it would be a work, health and safety risk to employees and patrons.
Despite considerable efforts by the employee to offer solutions to the employer, the only accommodations the employer made were to purchase a tent and foldout chair which were placed into its storeroom which did not have a door and was accessed by other members of staff. The employee experienced considerable anxiety expressing in a cramped space that was not private. The employee was ultimately made to feel that in order to keep her employment as a manager, she would need to give up breastfeeding.
The Arguments before the Tribunal
The employer argued that it was an inherent requirement of a manager’s role to be on-site as it is certified under the franchisor agreement that management are available to attend all health and safety emergencies. It claimed that it would be too costly to accommodate the employee’s request to go offsite as it would require two managers to be present when the employee was working.
In addition, the employer claimed it offered flexible and practical working arrangements including the employee taking annual leave, part time shift patterns, temporary work as a casual team member, relocation to a different worksite which may have more suitable facilities and the arrangement of the tent and chair in the storeroom.
The employer noted that all Managers and Assistant Managers receive an above award salary in recognition of the constraints on their ability to take a break. The employer considered that any disadvantage experienced by the applicant was mitigated by the on-site arrangements it made for the applicant and ultimately was trumped by the employer’s health and safety obligations.
The Commission noted that the policy decision of the employer was not mandated by law and it was possible for the Respondent to make amendments in specific circumstances.
It specifically commenced that the provisions made for the employee by way of a tent and chair were not appropriate and had caused embarrassment and discomfort which constitute a disadvantage.
The Tribunal found that the employer had “failed to adjust to the needs of a modern workplace where woman can give birth, breastfeed their children and return to the workforce”.
Learnings for Employers
Employers are not expected to provide Hilton-level breastfeeding facilities, but they are certainly obliged to do what is reasonable in the circumstances. The Tribunal acknowledged that desiring accommodations that would allow a mother returning to the workplace to breastfeed their child or express breast milk is not an unreasonable demand.
Michael Scott, Associate