Your rights at work when breastfeeding

Your legal rights

• Sex Discrimination Act 1984: Makes it unlawful to discriminate against a person because they are breastfeeding, pregnant or a parent
• Fair Work Act 2009: Makes it unlawful to discriminate against employees who are breastfeeding (including expressing breastmilk and breastfeeding over a period of time).
• Gender Equality Act 2012: Promotes workplace gender equality and inclusiveness. It does not specifically mention breastfeeding but encourages workplaces to support employees’ family responsibilities and create fair, equitable conditions for all genders.

• ACT: Discrimination Act 1991
• NSW: Anti-Discrimination Act 1977
• NT: Anti-Discrimination Act 2011
• QLD: Anti-Discrimination Act 1991
• SA: South Australia Equal Opportunity Act 1984
• TAS: Anti-Discrimination Act 1998
• VIC: Equal Opportunity Act 2010
• WA: Equal Opportunity Act 1984

You have a right to breastfeed or express and store breast milk at work. Breastfeeding is a protected ground of discrimination. Failure to provide adequate facilities may constitute discrimination and a breach of work health and safety laws. Also, failure to allow you to have breaks to facilitate breastfeeding or expressing milk may constitute discrimination.

From the Australian Human Rights Commission website

Workplaces have a positive duty

Under the Sex Discrimination Act 1984 (Cth), businesses and organisations now have what is called a positive duty. 

The positive duty requires every organisation, regardless of size, to take active steps to prevent sexual harassment, sex discrimination and related unlawful behaviour, shifting the focus from reacting after harm occurs to creating safe, respectful and inclusive workplaces.

This means they must take active steps to stop the following unlawful behaviour from happening:

• discrimination on the grounds of sex in a work context
• sexual harassment in connection with work
• sex-based harassment in connection with work
• conduct creating a workplace environment that is hostile on the grounds of sex
• related acts of victimisation.

• Shifts the responsibility away from individual employees enforcing their right to a safe and inclusive workplace to employers implementing a safe and inclusive workplace for all employees.
• Organisations must be proactive in preventing sexual harassment

Discrimination

Direct Discrimination

• You are treated unfairly because you are breastfeeding, pregnant or a parent.
• Example: Not being promoted because you are breastfeeding.

Indirect Discrimination

• A rule applies to everyone but unfairly disadvantages you.
• Example: A rule that all staff must work night shifts, when other shifts are available that would allow breastfeeding to continue.
   

It may be discrimination if you:

• Are not provided with a private, suitable space to breastfeed or express
• Cannot adjust work breaks to express milk
• Are forced onto night shifts when other shifts are available
• Are told to stop breastfeeding your baby before returning to work
• Are given a duration (i.e. 3 months) that breastfeeding will be supported
• You miss out on promotion or training opportunities because you are breastfeeding
   

Where to get help

If you believe you are experiencing discrimination, you can contact the organisations below. These organisations can help ensure workplaces comply with the law. They provide free information about your rights and can assist with resolving workplace issues.

The Commission handles complaints about discrimination under federal law. They can investigate concerns and offer conciliation to help both parties reach a resolution.

Call 1300 656

Visit website

Provide free advice about workplace rights and can help if your employer is not meeting their legal obligations.

Call 13 13 94

Visit website

Each state and territory also has their own commission:

• ACT: ACT Human Rights Commission 

• NSW: Anti-Discrimination New South Wales 

• NT: Northern Territory Anti-Discrimination Commission 

• QLD: Queensland Human Rights Commission 

• SA: Office of the Commissioner of Equal Opportunity  

• TAS: Equal Opportunity Tasmania 

• VIC: Victorian Equal Opportunity and Human Rights Commission

• VIC: Western Australian Equal Opportunity Commission