Facts
The applicant was a woman in her early twenties, who had been a long-term employee of the respondent as an Assistant Restaurant Manager. The respondent is part of the Southern Restaurants Group, the largest private KFC franchise owner in Australia.
The applicant submitted to the Tribunal that she planned to return to work from parental leave in November 2021 with flexible work arrangements to accommodate for her breastfeeding needs. Pursuant to the Fair Work Act 1998 (Cth),[1] she requested she be provided with 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 respondent provided the applicant with a pop-up tent in a back storeroom with a chair. The storeroom was a small space without a door and therefore no privacy. The applicant believed that the sound of her expressing milk was audible to other staff. A staff member could enter the storeroom at any time. The respondent submitted to the Tribunal that it could not provide a private room due to the store layout and lack of private rooms. Further, any changes to store layout would have incurred to the respondent significant costs.
Due to the unsatisfactory work environment, the applicant began to leave site to express her milk at a local mall during unpaid meal breaks, but only when there was another manager on site. The respondent submitted that it could not permit the applicant to leave the store when she was operating in her management role, due to the policy that there must be at least one manager on site at any given time to respond to health and safety matters. It was further submitted it was too costly and inefficient to regularly ensure that there were two managers on site for the applicant’s shifts. Regularly, no other managers were present on site and therefore she could not take breaks to express milk. This caused the applicant significant pain and discomfort.
The applicant further proposed she be transferred to a nearby KFC restaurant, where more suitable facilities to express milk were available. This was initially declined by the respondent, to which it submitted would be disrupting to staff arrangements. Eventually, a transfer was agreed upon when the store could accommodate another manager, but the applicant resigned before the transfer occurred.
The applicant submitted to the Tribunal she felt ultimately “trapped and pressured to discontinue breastfeeding”[2] due to the respondent’s response to her ongoing requests and issues raised. She further submitted to the Tribunal that the respondent was ill informed regarding breastfeeding, and that the respondent had suggested that she step back to a casual role on multiple occasions to accommodate for her breastfeeding needs, which would be a demotion.
Findings
The Discrimination Act 1991 (ACT) (“Discrimination Act”) protects persons with protected attributes from direct and indirect discrimination[3] in certain areas of public life, including employment[4]. One of the protected attributes is breastfeeding.[5] Queensland offers similar protections for breastfeeding at work under the Anti-Discrimination Act 1991 (Qld).[6] The applicant alleged that she was indirectly discriminated against as per section 8(3) of the Discrimination Act.
The Tribunal referred to the case of Australian Capital Territory v Wang[7] as a framework for applying section 8 of the Discrimination Act. Under this framework and the Act, the applicant is required to establish in evidence that the respondent had been imposing, or proposing to impose, a condition or requirement that has, or is likely to have, the effect of disadvantage due to her protected attribute. If successful, the onus is then on the respondent to demonstrate that the effect of the disadvantage was not due to her protected attribute, or alternatively that the condition or requirement imposed was reasonable in the circumstances.
Was there a particular condition or requirement in the circumstances of this application?
The Tribunal found that the respondent imposes as a condition of employment upon mangers of its stores, in that they may not leave the store unless there is another manger on site, trained in work health and safety.
Was the condition imposed by the respondent?
The Tribunal found that the respondent imposed the condition upon the applicant, as a manger of one of the stores, and insisted upon her compliance. The condition was not mandated by law or any work place regulation, rather, a term of employment imposed for commercial reason. The respondent was found to have resisted variation or flexibility relating to the condition.
Was the effect of the condition to disadvantage certain people with that attribute?
The Tribunal found that the effect of this condition was disadvantageous upon employees with the attribute of breastfeeding, and that the disadvantage arose because of the imposition of the condition of the respondent, and their failure to make appropriate alternative arrangements.
The Tribunal further noted that the respondent’s submission that it let the applicant leave the store “most of the time” to express milk was not a sufficient accommodation.
Did the detriment occur because the applicant had that attribute?
The Tribunal was satisfied that that the imposition of the condition upon the applicant resulted in her ill health, arising from the workplace response, due to her attribute of breastfeeding.
Was the condition reasonable in all the circumstances?
The Tribunal was not satisfied that the condition imposed by the respondent was reasonable, nor were the alternatives suggested by the applicant unreasonable.
Conclusion
The Tribunal was ultimately satisfied that the applicant had been indirectly discriminated against by the respondent, on the grounds of her status as a breastfeeding mother, by imposing upon her a condition which was disadvantageous and not reasonable.
The Tribunal concluded that the respondent’s condition imposed upon managers to not leave the site was “not a reasonable response to the needs of a modern workforce”;[8] nor when applied in actual effect would achieve the outcome that the respondent sought:
“The respondent insists on the condition being enforced so that a manager trained in work health and safety would be available in an emergency, but the Tribunal questions how an employee half undressed, on a chair, in a tent could be a responsive manager in any emergency in any case.”
The Tribunal further commented on the duty of employers to appropriately accommodate for persons who are breastfeeding in the workforce:
“Catering to the needs of breastfeeding employees is not an outlandish demand. Women remaining in the workforce after giving birth has become a commonplace occurrence. In the future, there will be other employees who will wish to breastfeed their child. It is an unavoidable workplace issue which needs to be met and dealt with in an appropriate fashion.”[9]
The matter was listed for further direction.
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This article was written by Luke Borgert and Sarah Gates
[1] Fair Work Act 1998 (Cth) s 65.
[2] Complainant 202258 v Southern Restaurants (Vic) Pty Ltd (Discrimination) [2003] ACAT 57, 12.
[3] Discrimination Act 2011 (ACT) s 8.
[4] Discrimination Act 2011 (ACT) s 10.
[5] Discrimination Act 2011 (ACT) s 7(1)(d).
[6] See s 7, 9 and 15.
[7] Australian Capital Territory v Wang [2019] ACAT 65.
[8] Complainant 202258 v Southern Restaurants (Vic) Pty Ltd (Discrimination) [2003] ACAT 57, 36.
[9] Ibid, 36.