By Rebecca Hyde, Workplace Compliance Advisor at ClinLegal in Adelaide. Rebecca holds a Bachelor of Laws and Legal Practice (Hons) and a Bachelor of Behavioural Science (Psychology).
Employers have an obligation to make reasonable attempts to accommodate the needs of an employee who is a breastfeeding mother. When an employee returns to work after being on parental leave, you may wish to consider ways to make the transition back to work an enjoyable experience for both you and your employee, in a manner consistent with the law. One logistical consideration could be accommodating an employee who wishes to breastfeed her child during work hours. Supporting mothers to breastfeed or express milk at work can be a way to encourage staff retention after returning from parental leave, and promote a family friendly working environment within your practice. In addition, it will limit the risk of a discrimination claim.
What is the law?
State and Federal Anti-Discrimination, Sex Discrimination and Equal Opportunity laws provide that it is unlawful for employers to discriminate, both direct and indirect, against an employee (or potential employee) on the grounds that they are breastfeeding.1 Direct discrimination may occur when an employer deliberately treats an employee less favorably than other employees on the grounds that they are breastfeeding; for example choosing not to promote someone because they are breastfeeding. Indirect discrimination occurs when an employer sets a workplace condition that has the effect of disadvantaging a particular group. For example, if an employer prevented all employees from taking breaks throughout the day, this may have a more significant negative impact on an employee who wishes to breastfeed or express milk throughout the working day.
In addition, Fair Work laws provide that parents returning from parental leave may request flexible working arrangements with their employer to assist in the care of their child once back at work. This may include requesting flexibility in working hours to allow a mother to breastfeed or express milk during normal business hours. Employers do have the right to refuse the employees request if there are reasonable business grounds to refuse, but they must provide the employee with the reasons for their refusal.
What Can You Do?
As an employer, you may be considering how to balance the wants and needs of your employee while ensuring that a transition back to work after parental leave does not disrupt the ongoing work of the practice. Employers should discuss with mothers prior to them returning to work to determine whether they wish to breastfeed or express milk whilst working and make appropriate arrangements.
Appropriate arrangements may include:
- Providing a room within the practice for the employee to breastfeed or express milk in privacy. The room should be hygienic, have a comfortable space to sit, and have access to a power point. If your practice has limited facilities you may wish to consider using a first aid room.
- Ensuring that there is a refrigerator that can be used to store expressed breast milk at the practice. The breast milk should be stored in a sealed container, clearly labeled and where possible kept separate from staff food or medical products used in the practice.
- Arranging flexible working conditions that allow breaks to be taken throughout the working day to allow the employee to breastfeed her child or express milk. The employee may wish to have privacy while breastfeeding or expressing milk and depending on the size of your practice facilities, you may consider whether it is practical for an employee to take their breaks at a time when other employees are not also on their lunch break.
- Consider adopting workplace policies that promote a family friendly work practice, including a breastfeeding policy. Ensure that all employees are aware of the standards and respect afforded to all employees who wish to breastfeed while working at the practice to promote a culture of acceptance. Consider using ClinLegal’s Policy on Breastfeeding in the Workplace.
- Employers can also be accredited by the Australian Breastfeeding Association as a breastfeeding friendly workplace, who can provide further advice and assistance.
Tip- You can be assured that employees are aware of their rights for you to make arrangements to allow breastfeeding or expressing milk while working at your Practice. Consider adopting and promoting an appropriate breastfeeding workplace policy. In order to support your employee and limit the risk of a discrimination claim, consider these issues before your employee returns to work after having a baby.
1 This applies under the Federal Sex Discrimination Act 1984, Discrimination Act 1991 (ACT), Anti-Discrimination Act 1991 (QLD), Anti-Discrimination Act (NT), Anti- Discrimination Act 1998 (TAS), Equal Opportunity Act 2010 (VIC), Equal Opportunity Act 1984 (WA), Anti-Discrimination Act 1977 (NSW). Please note, the Equal Opportunity Act 1984 (SA) contains provisions that prohibit discrimination against someone who is breastfeeding as discrimination on the ground of association with a this is not applied to employment.
For further information or advice, contact us at [email protected] or visit www.clinlegal.com.au