On 25 September 2023, the ACT Civil and Administrative Tribunal (“Tribunal”) decided that a KFC franchisee indirectly discriminated against an employee by asking her to breastfeed her child in a small tent within a storeroom with no door.

The Tribunal believes this to be the first reported Australian anti-discrimination case involving breastfeeding employees. (Complainant 202258 v Southern Restaurants (Vic) Pty Ltd (Discrimination) [2023] ACAT 57 (25 September 2023))

Facts

The employee was the assistant restaurant manager at KFC’s ACT Tuggeranong store, which is owned by Southern Restaurants Group, the largest private KFC franchise owner in Australia. In September 2021, the employee discussed her return-to-work arrangements with managers following parental leave.

Subsequently, the employee made a flexible working arrangement request under s 65 of the Fair Work Act 2009 (Cth) for “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.” She suggested that if her request could not be accommodated, that alternatively she be allowed to take unpaid breaks to express milk in the parents room of the shopping centre across the road.

The company was able to provide the employee with a refrigerator and facilities to wash and store equipment but was unable to provide a private room and comfortable chair due to cost and impracticality. The company also advised that she was unable to leave the store to express milk if no other managers were on site to manage OHS issues.

Southern Restaurants Group agreed to provide the employee “a pop-up tent and foldout chair” to express milk within the doorless storeroom. In March 2022, the employee returned to work. The employee complained about the restricted space and lack of privacy.

Southern Restaurants Group advised the Tribunal that it is company policy for the “responsible manager” to remain onsite while on a break to manage the worksite and OHS issues as they arise. However, the employee advised the Tribunal that on about 50% of her shifts, either no other managers attended the site or she took her breaks later than she wished while waiting for another manager to arrive which “caused significant physical pain and discomfort.”

Tribunal’s findings

Presidential Member Heidi Robinson and Senior Member Lea Drake found that the employer contravened s 8(3) of the Territory’s Discrimination Act by imposing a “condition” (requiring managers to remain on site) which disadvantaged the employee because of a protected attribute (breastfeeding). This condition was not “reasonable in the circumstances.”

The Tribunal found that the company policy which required managers to remain onsite was not mandated by law and could be modified.

The Tribunal accepted that a tent in a doorless storeroom “was not an appropriate place ..to express milk” and caused the employee “embarrassment and discomfort” which was a “form of disadvantage”.

The Tribunal rejected the company’s argument that alternative arrangements imposed an “unreasonable or disproportionate financial or operational burden”, including arrangements to add a door to the storeroom, transfer the employee to another store or provide junior employees with OHS training so they could act as her substitute during her short absences.

Lessons for Employers:

The Fair Work Act 2009 (Cth) has expanded to include the workplace right of breastfeeding. An employer needs to make reasonable arrangements for breastfeeding employees, including the following:

• A suitable room;
• Ensure privacy;
• Ensure comfortable seating;
• Access to power for a breast pump;
• Storage for equipment (such as a breast pump);
• A fridge to store any breast milk; and
• Appropriate breaks to breastfeed or express milk.

If you would like to discuss these or other workplace issues please contact Andrew Bland or call 02 9412 3077.