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The ACT Civil and Administrative Tribunal (ACAT) found that an employer was liable for unlawful discrimination pertaining to the attribute of breastfeeding.
A long-term KFC employee who operated in a managerial role was the centrepiece to a major case on breastfeeding discrimination in the workplace. The case itself serves as a stark reminder for Australian employers about their compliance and obligations to their employees.
The employee worked at a KFC store in Tuggeranong, looking to return to her job following the birth of her first child.
Upon her return, the worker had a meeting with the local management, and she left feeling disgruntled – leading to her filing an application to her employer’s chief people officer. The application requested flexible working arrangements so she could balance both her breastfeeding and parental responsibilities with her managerial duties.
The application – which was filed in accordance with the Fair Work Act 2009 – requested a private and clean room with a comfortable chair; a refrigerator in which to store expressed milk; sufficient time to express; and facilities to wash and store equipment.
The worker also offered an alternative that would allow her to take short periods of time away from the workplace to express breastmilk in a parent’s room at a nearby mall. The employer, however, relayed that they could not provide a private room because of the layout of that particular store or allow her to leave the store as she held a management role.
Due to this, a new plan between the two parties was put in place, with the worker being provided access to a chair that was set up in one of the back storerooms. The worker could access this room during meal breaks and express, to which she could store the expressed milk in a labelled container.
This gesture, however, lacked the needed privacy that the worker required as the storeroom was accessible to other workers and did not have a door. This led to the worker being provided with a small tent cover for privacy.
During the seven-month period that this continued, the worker would often frequent the mall during her unpaid meal breaks to express milk – yet only when there was another manager on site.
Looking into the claim from the employee, the ACAT found that the “employer failed to provide a ‘pass’ level solution”.
“The facility it provided was a small ensuite tent of the kind used to cover a camp toilet. With a chair inside, it was cramped. It had to be erected by the employee each time it was used. There was no door in the storeroom where it was located,” Damon King of HopgoodGanim Lawyers said in a blog post on the firm’s website.
“Even though staff were instructed not to enter while the applicant was expressing, there was a likelihood they would do so if the need for store products or an emergency arose.”
Due to these findings, the tribunal awarded the worker $90,000, which included general damages of $80,000 and special damages of $10,000 for psychiatric injury caused by the breastfeeding discrimination.
According to the tribunal, the case offers employers a new perspective on the duty of care obligations.
“The [employer] has not adjusted to the needs of a modern workplace where women can give birth, breastfeed their children, and return to the workforce in a welcoming and accommodating faction,” it said.
“If the [employer] insists on compliance with a condition about the arrangements for breastfeeding or expressing at work, it must ensure that the condition does not unreasonably disadvantage an employee who is doing so. This may well require change in the physical arrangements of the stores, the operational requirements of managers, and/or in the attitude of the [employer].
“... Employers will have different capacities to ensure that they do not disadvantage employees possessing the breastfeeding attribute. A small business is unlikely to be able to provide private spaces for such attributes.
“A sink for washing equipment and a refrigerator for storing milk may be all that is possible in most circumstances. However, in those circumstances (unlike the employers), it is likely that an employee may leave the premises during their break to take advantage of facilities provided by a shopping mall or community centre (as the employee wished to do).”
This case is Complainant 202258 v Southern Restaurants Vic Pty Ltd Discrimination 2025 ACAT 3 2025-01-22.
RELATED TERMS
An employee is a person who has signed a contract with a company to provide services in exchange for pay or benefits. Employees vary from other employees like contractors in that their employer has the legal authority to set their working conditions, hours, and working practises.
Kace O'Neill
Kace O'Neill is a Graduate Journalist for HR Leader. Kace studied Media Communications and Maori studies at the University of Otago, he has a passion for sports and storytelling.
