As an employer, it is important to know what measures you need to take if you have an employee who is breastfeeding.
Why Accommodate a Breastfeeding Employee?
Any person feeding their child their own breastmilk is breastfeeding, including direct feeding and bottle/cup feeding of expressed milk. Unlike formula feeding, many children continue breastfeeding beyond 12 months, with natural weaning occurring between 2–7 years old. Employees may therefore need flexibility and accommodations for years after returning to work.
Expressing milk while away from the child is essential for the breastfeeding person’s health, reducing risks of engorgement, leaking, and illnesses like mastitis.
Legal Requirements
Anti-Discrimination Laws
The Equal Opportunity Act 2010 (Vic) identifies breastfeeding as a protected attribute. It prohibits direct discrimination (treating someone unfavourably because of protected attributes) and indirect discrimination (rules that disadvantage people with particular attributes). Employers must accommodate parental and carer responsibilities.
The Sex Discrimination Act 1984 (Cth) makes it illegal to treat women less favourably based on breastfeeding.
Occupational Health and Safety
Preventing employees from expressing milk could impact their health and wellbeing, creating potential safety concerns.
Fair Work Act 2009 (Cth)
Section 65 entitles employees to seek flexible work arrangements, including lactation breaks. The Act prevents adverse action against employees exercising workplace rights.
Enterprise Agreements
Some agreements provide breaks for breastfeeding/pumping and accommodations like private spaces and refrigeration.
Court Decisions
A recent ACT Civil and Administrative Tribunal case (Complainant 202258 v Southern Restaurants (Vic) Pty Ltd, 2023) found a KFC franchisee indirectly discriminating by:
- Refusing to provide a suitable expressing area, offering only a small tent-style toilet in a storeroom
- Denying unpaid break requests
- Suggesting the employee reduce her role to manage breastfeeding responsibilities
The tribunal emphasised that employers must “reasonably” accommodate breastfeeding needs within their business context, noting that “catering to the needs of breastfeeding employees is not an outlandish demand.”
For advice on workplace accommodations, contact Morgan Couzens Legal on (03) 5722 4681.
The information provided in this article is produced for guidance purposes only and is not legal advice. The information contained in this article is based on the current state of the law at the time of writing. The law may have changed since this article was written.
Morgan Couzens Legal does not accept liability for any loss or damage arising from reliance on the content of this or any article produced by Morgan Couzens Legal. Liability is limited by a scheme approved under Professional Standards Legislation.
Legal advice should be sought for your individual circumstances. For advice tailored to your individual circumstances, please contact us by telephone on (03) 5722 4681.