By: Sian Gilbert, Dexter Cabal and Sarah Moore


Complainant 202258 v Southern Restaurants (VIC) Pty Ltd (Discrimination) [2023] ACAT 57

At a glance

  • On 25 September 2023, the ACT Civil and Administrative Tribunal delivered what is believed to be the first finding in Australia of discrimination on grounds of breastfeeding in the workplace, in favour of the breastfeeding parents.
  • The Tribunal found Southern Restaurants (VIC) Pty Ltd (the employer) had contravened Part 3 of the Discrimination Act 1991 (ACT) by placing conditions on the employee’s employment which were “not reasonable in the circumstances” and which were disadvantageous to the breastfeeding employee.1




In Australia, anti-discrimination laws provide varying degrees of protections for breastfeeding parents at the federal level and across the states and territories. Under federal law, the Fair Work Act 2009 (Cth) (FW Act) was amended in December last year to include breastfeeding as a protected attribute.2 Further, the Sex Discrimination Act 1984 (Cth) prohibits direct and indirect discrimination against breastfeeding,3 and at the territory level in the ACT, the Discrimination Act 1991 provides protections to individuals with ‘protected attributes’ such as breastfeeding.4 This protection against discrimination applies to ‘public life’, which includes in the workplace and covers direct and indirect discrimination. Direct discrimination occurs when an individual is ‘treated unfavourably’ due to a protected attribute which they possess. Additionally, indirect discrimination occurs when imposed conditions or policies are disadvantageous to people with certain ‘protected attributes’ and are unreasonable in the circumstances.


Complainant 202258 v Southern Restaurants

An indirect discrimination claim was brought by a KFC employee against their employer, a private KFC franchise owner, after arrangements were made for the employee to express milk in a cramped tent within a doorless storeroom. The tent was similar to those used to cover camping toilets and had to be erected by the employee each time she needed to use it. This arrangement was made following a denial of the employee’s request for flexible working arrangements under section 65 of the FW Act. Under section 65 of the FW Act, the employee had initially requested sufficient time to express milk (a) in a private room with the required facilities, or if this option could not be satisfied, (b) in a parents’ room at a nearby mall. The employer denied the first option on the basis a private room was “not practical and too costly to accommodate” as the store layout did not have private space.5 However, the employer was able to provide a fridge and wash facilities in addition to the tent and foldable chair. Additionally, the second option was denied due to work health and safety requirements as the employee could not leave the store in her position as Assistant Restaurant Manager when no other manager was present onsite who was trained in work health and safety. The employer suggested the employee could be demoted to a casual team member to accommodate her request. Additionally, a senior employee suggested the employee could express milk in the bathroom like she (the senior employee) had previously done.6



The Tribunal found the conditions imposed for breastfeeding were not suitable in the circumstances and constituted a disadvantage to the employee. The Tribunal found the tent arrangement was not appropriate, particularly as young staff could enter the storeroom even if instructed against doing so while the employee was expressing. The Tribunal accepted evidence by the employee that this arrangement caused “embarrassment and discomfort” which disadvantaged the employee.7 Additionally, the employer did not establish that it was reasonable to require the employee to remain on premises. For example, the Tribunal noted this requirement is “not a reasonable response to the needs of a modern workforce”, as a delay in expressing can be “extremely painful” and could expose the employee to risks of mastitis.8 The Tribunal held at [128]:

“The respondent 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 (sic). If the respondent 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 any employee…”

The Tribunal was satisfied there were financially reasonable alternatives the employer could have implemented to avoid disadvantaging the employee, such as by training junior staff in work health and safety or through organising a staff transfer so the employee could work at another store with appropriate facilities.9

However, it is important to note that what is deemed to be reasonable condition(s) to accommodate breastfeeding is dependent on the circumstances of the case. For example, the Tribunal in Southern Restaurants explained that each employer will have a different capacity in terms of accommodation, and in circumstances where a private space is not available, the employee may be able to utilise appropriate breastfeeding facilities off the premises.10


A reminder for employers and insurers

Southern Restaurants serves as a reminder of the importance of employers accommodating for the breastfeeding needs of employees in the workplace. While Southern Restaurants is believed to be the first reported breastfeeding discrimination case in Australia, insurers must be aware that discrimination cases may grow if employers do not adequately cater for the necessities of breastfeeding employees.


[1] Complainant 202258 v Southern Restaurants (VIC) Pty Ltd (Discrimination) [2023] ACAT 57

[2] Fair Work Act 2009 (Cth) s 351(1)

[3] Sex Discrimination Act 1984 (Cth) s 7AA

[4] Discrimination Act 1991 (ACT) s 7

[5] Complainant 202258 v Southern Restaurants (VIC) Pty Ltd (Discrimination) [2023] ACAT 57 at [24]

[6] Ibid. at [34]

[7] Ibid. at [115]

[8] Ibid. at [136]

[9] Ibid. at [123]

[10] Ibid. at [133]