Tribunal orders $90,000 compensation
In a series of recent decisions handed down by the ACT Civil and Administrative Tribunal, an employer was found liable for unlawful discrimination on the grounds of the attribute of breastfeeding, reportedly for the first time in Australia. The tribunal’s decisions have far-reaching consequences for public- and private-sector workplaces nationwide, given they address the relevance of modern community expectations when applying the law, particularly in relation to acceptable standards of compliance, but also in terms of the serious financial consequences for employers when they unreasonably fail to meet such standards.
The employer was part of the Southern Restaurants Group, reported to be the largest private KFC franchise owner in Australia, operating fast food restaurants under the banner “KFC” in Victoria, New South Wales and the Australian Capital Territory.
The complainant was a long-term permanent employee in her early 20s, who was employed in a managerial role at a KFC store in Tuggeranong and looking to return to work following the birth of her first child.
After an initial unsatisfactory return-to-work meeting with local management, the employee made an application to the employer’s Chief People Officer in accordance with the Fair Work Act 2009 (Cth), for flexible working arrangements to enable her to balance her breastfeeding and parental responsibilities with her work duties and responsibilities (FWA Request).
In accordance with the FWA Request, the employee requested that 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
Facilities to wash and store equipment.
Alternatively, if the above requirements could not be met, the employee asked to be allowed to take short periods of time away from the workplace to express breastmilk at a nearby mall where the parents’ room met those requirements.
In response, the employer informed her that it could not:
Provide a private room because of the layout of that particular store.
Allow her to leave the store to express in circumstances where she was working in her management role. The rationale later provided was because it would potentially affect the health and safety of fellow employees and patrons, as the employer could not guarantee that another manager with appropriate health and safety training would also be on shift.
Ultimately, a compromise plan was agreed with the employee being provided with access to a comfortable chair in the back storeroom for expressing during meal breaks, refrigeration to store expressed milk in a labelled container, and the use of a wash sink. Given the storeroom was accessible to other workers and did not have a door, the employee was provided with a small tent cover for privacy.
For a period of seven months, the employee worked rostered shifts at the KFC store under those onerous working conditions. She would sometimes leave work to express her milk at the nearby mall during her unpaid meal breaks when there was another manager on-site. There were frequently no other managers on-site and she therefore could not take her break. Over that period, the employee’s mental health suffered and she eventually had to resign from her employment.
In upholding the employee’s complaint, the tribunal found:
The employer imposed a particular condition of employment on management-level employees in its stores. Management-level employees may not leave the store unless there is another management employee on-site trained in work health and safety.
The employer created a condition which will, in the absence of a responsive change to staffing arrangements or facilities, inevitably adversely affect persons with the breastfeeding attribute.
The effect of the condition imposed by the employer is to disadvantage employees with that attribute who wished to express milk to breastfeed their children during a shift, when there was no other manager onsite, and they cannot leave the premises. Those persons must express milk onsite in unsuitable facilities. This disadvantage arises because of the imposition of the condition and the failure of the employer to make appropriate alternate arrangements for breastfeeding employees.
The combination of the prohibition on leaving the premises during a shift, even during an unpaid break, and lack of appropriate onsite arrangements were detrimental to the employee and to any management employee returning from parental leave who may wish to express milk so as to breastfeed.
Further, the tribunal rejected the employer’s submissions in defence of the complaint in the following respects:
At the hearing, the Chief People Officer was cross-examined and questioned by the tribunal as to what arrangements would have to be entered into to achieve the training of junior employees. The Chief People Officer confirmed that, if an employee wished to become an assistant manager, they could be trained to attend to health and safety emergencies and the cost to the business would not have been high. Such employees could have acted in higher duties for the period during which the employee was absent expressing her milk in the parents’ room provided by the mall. Having such staff on shift at the same time as the employee would not have involved payment of higher duties’ wages except for the very limited time when the employee was absent. The tribunal was not satisfied that the practical or financial difficulties were a disproportionate burden on the employer.
Counsel submitted that the evidence demonstrated the employer did the best that it could with what was available in the framework of a fast-food operating environment and that the facilities provided, while not a gold standard, were adequate. The tribunal disagreed, satisfied 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 on the storeroom where it was located. 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.
On the question of compensation, the tribunal considered the circumstances of the case as serious. It held that the discrimination was gendered and involved a significant power imbalance between the employee and the employer, a large franchisee with significant resources available to it, including human resources and legal staff. Conversely, the employee was young, inexperienced, and in a vulnerable position as a first-time mother.
Moreover, it considered the employer’s response to the FWA Request to enable her to express milk for her child as hard to explain. It had the resources necessary to enable it to understand its obligations, and the skills, experience and resources necessary to obtain legal advice regarding its obligation to comply with legislation. Its discriminatory conduct was sustained over months.
When considering an appropriate level of compensation, the tribunal compared the facts to other decisions involving deliberate and serious unlawful conduct, including sexual harassment. It ordered a compensation award of $90,000, including general damages of $80,000 and special damages of $10,000 for medical expenses for psychiatric injury caused by the discrimination.
The damages award reflects a noticeable trend substantially upwards in the level of compensation for contraventions of federal and state anti-discrimination laws.
In addition to the award of $90,000, the employer was ordered to complete a review of its policies and procedures within six months, for the purpose of producing an effective policy to allow access of breastfeeding employees to adequate facilities for expressing milk during working hours.
The tribunal’s rulings provide other useful guidance for employers. It accepted that what was reasonable in terms of regulatory compliance responses may differ for small- to medium- and larger-sized businesses:
“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. 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 respondent.
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 respondent’s) 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).”
As these tribunal decisions highlight, discrimination law is highly technical and raises a myriad of practical issues for employers and other duty holders to consider in terms of achieving regulatory compliance. Indirect discrimination complaints, in particular, are notoriously complex to manage because the imposition of apparently neutral conditions of employment might be discriminatory in practical effect to certain unforeseen classes of employees.
In Queensland, important new reforms involving changes to the definitions of both direct and indirect discrimination, amongst other things, will take effect from 1 July 2025.
See Complainant 202258 v. Southern Restaurants (Vic) Pty Ltd [2023] ACAT 57 and [2025] ACAT 3.
Damon King is a Special Counsel in the Workplace and Employment practice at HopgoodGanim Lawyers in Brisbane.
