Australia: Employers Punished for Failure to Provide Adequate Facilities for Breastfeeding Mothers Returning to Work

Authors: Jenny Inness & Angela Zhang

In a recent judgement of the Federal Circuit and Family Court of Australia, the Consulate-General of the United Arab Emirates (“Consulate”) was ordered to pay an Australian worker almost $205,000 in compensation, penalties, interest and costs for unlawful adverse action taken against a breastfeeding mother returning to the workplace. This case is an important reminder to all employers that the failure to provide facilities for breastfeeding mothers can come at a major financial cost and lead to public and reputationally damaging litigation for employers.

 

UAE Consulate Found to Have Taken Adverse Action Due to Worker’s Breastfeeding Responsibilities

On 17 February 2026, in the case of Duarte v United Arab Emirates Ministry of Foreign Affairs [2026] FedCFamC2G 175, Justice Philip Corbett found that the Consulate-General of the United Arab Emirates had unlawfully required Ms Duarte (a waitress employed at the Melbourne Consulate) to regularly express and store breastmilk for her young child in a storeroom at the Consulate, and that the employer refused to provide her with facilities to store the milk, forcing Ms Duarte to store the breastmilk in a suitcase that she filled with ice.

Ms Duarte found these requirements humiliating and distressing. The Court stated in relation to the treatment of Ms Duarte that:

“[T]he applicant was treated very poorly by her former employer. There is also evidence of psychological harm and injury to the applicant due to that behaviour. The applicant’s evidence of hurt, humiliation and distress is uncontested. The humiliation of breastfeeding in a storeroom and storing milk in a suitcase is obvious, so too the stress caused by irregular and uncertain work hours when trying to care for an infant.”

The Court found that by refusing to provide Ms Duarte with appropriate breastfeeding facilities, the Consulate had taken unlawful discriminatory adverse action, in breach of section 351 of the Fair Work Act.

In addition, and prior to the above events taking place, Ms Duarte had asked her employer for parental leave, which she sought to commence in late December 2020. The Consulate also refused this request. The Court held that by refusing this request for unpaid parental leave, the employer had acted in breach of section 70, and was therefore guilty of contravening section 44 of the Fair Work Act.

Ms Duarte had also requested flexible work hours to care for her son, which involved finishing work 2 hours earlier. This request was also refused. The Court considered that Ms Duarte had exercised her legitimate workplace rights in making this request for flexible work hours, and indeed the Court was satisfied that Ms Duarte had exercised her workplace rights on eight separate occasions (including requesting leave and taking periods of leave, amongst other things).

Finally, on 1 November 2021, the Applicant’s employment was terminated, with a letter citing redundancy. This letter was sent after Ms Duarte had taken two days of annual leave.

The Court was satisfied that the Consulate had contravened section 340 of the Fair Work Act by taking unlawful adverse action, including the dismissal, because Ms Duarte had exercised her legitimate workplace rights.

The Court subsequently awarded Ms Duarte $48,190.46 for economic loss, $25,000 for non-economic loss for hurt, humiliation, and psychological harm, and imposed a $100,000 pecuniary penalty payable to Ms Duarte to achieve general and specific deterrence. The Court also ordered $25,232.61 in interest, and fixed costs at $4,960 due to the Consulate’s unreasonable failure to defend the proceeding.

 

KFC Franchise Found to Have Discriminated Against Assistant Manager Due to Breastfeeding Responsibilities

Notably, the above decision comes a year after the ACT Civil and Administrative Tribunal delivered the first breastfeeding discrimination decision in a workplace setting in Australia, in the case of Complainant 202258 v Southern Restaurants (Vic) Pty Ltd [2023] ACAT 57 (“Southern Restaurants”).

In the Southern Restaurants case, the complainant had brought a complaint against Southern Restaurants Group, one of KFC’s franchise operators in Australia, which also involved issues relating to the refusal of flexible working arrangements and inadequate facilities where she could express breastmilk.

After the complainant’s child was born in June 2021, the complainant (who was an Assistant Manager at a KFC store in Tuggeranong) had requested flexible working arrangements and appropriate facilities to express breastmilk, including a private room or permission to leave the store during breaks to use a nearby parents’ room. The employer refused both of these requests, citing a workplace policy requiring a certified manager to always remain on site for health and safety reasons. Instead, the employer offered limited facilities such as a refrigerator, sink, and eventually a small camping style privacy tent placed in a storeroom that provided very little privacy. This caused the complainant to experience anxiety, embarrassment, a lack of privacy, physical discomfort, and she ultimately resigned.

The Tribunal found that KFC’s conduct of imposing the condition that managers could not leave the premises unless another manager was present (purportedly for health and safety reasons), was not a reasonable condition, and the condition disadvantaged the complainant because of her protected attribute of breastfeeding, pursuant to sections 8 and 10 of the Discrimination Act and section 53CA of the Human Rights Commission Act in the Australian Capital Territory.

The Tribunal determined that feasible alternatives such as training staff, transferring employees, or installing a door were not properly considered, and the facilities provided to the Assistant Manager to breastfeed were inadequate. Accordingly, the Tribunal concluded that the employer had indirectly discriminated against the complainant on the basis of her breastfeeding responsibilities.

The Tribunal said the following about the situation the KFC Assistant Manager was put in upon her return to work:

“The applicant described herself as uncomfortable in those circumstances. This is not an unreasonable or surprising reaction. Expressing can be a very exposing process. It can be noisy. The woman expressing has one or two pumps attached to her breasts whilst her chest is uncovered. Sitting on a chair, half undressed, inside a small tent, in a room without a door, with a pump attached to her breasts making the usual pumping noise, would, in the Tribunal’s opinion, make the applicant uncomfortable, if not in a constant state of fight or flight.”

In the remedy decision, the Tribunal awarded the complainant $80,000 in general damages, and also ordered the employer to fund up to $10,000 in psychiatric treatment for 12 months. The Tribunal also directed the employer to review its workplace policies and implement management training to ensure compliance with anti-discrimination obligations and improve support for breastfeeding employees.

Both Duarte and Southern Restaurants concerned workplace discrimination experienced by breastfeeding employees and the failure of employers to adequately accommodate their needs. In both cases, the applicants sought to return to work after giving birth and required appropriate conditions to express breastmilk during shifts.

Each decision recognised that the workplace arrangements imposed by the employer caused significant disadvantage, distress, and humiliation to the employee. Both matters also highlighted that inadequate facilities, such as being required to express milk in a storeroom or other unsuitable environment, can constitute unlawful discrimination or unlawful treatment under Australian workplace laws. Ultimately, both decisions affirmed that employers have legal obligations to take reasonable steps to accommodate breastfeeding employees and ensure that workplace practices do not disadvantage them because of their parental and breastfeeding responsibilities.

Key Lessons for Employers

There are various matters that employers should have regard to in light of these decisions:

• Employers must ensure that breastfeeding employees are not disadvantaged in the workplace. Both cases demonstrate that requiring employees to express breastmilk in humiliating or unsuitable conditions, such as storerooms or temporary tents, may constitute unlawful discrimination. Employers should therefore provide clean, private, and appropriate facilities for expressing and storing breastmilk.
• Employers must genuinely consider requests for parental leave, flexible working arrangements, and workplace accommodations. In Duarte, the refusal of parental leave and flexible working arrangements contributed to findings of adverse action under the Fair Work Act 2009 (Cth). Employers should carefully assess such requests and ensure any refusal is carefully thought through, carefully communicated to the impacted employee, lawful and properly justified.
• Employers should also consider whether workplace policies could potentially lead to indirect discrimination. In Southern Restaurants, a condition requiring a manager to remain on site during breaks was found to constitute indirect discrimination because it disproportionately affected the applicant.
• The failure to provide appropriate facilities, flexibility, and policies for mothers could lead to costly, lengthy, and public litigation, where the imposition of pecuniary penalties is a possibility.

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