Breastfeeding and pregnancy discrimination are unlawful
In Australia, breastfeeding discrimination and pregnancy discrimination are both unlawful.
Unlawful discrimination happens when someone is treated less favourably because they are breastfeeding or pregnant or expressing milk, compared to another person who is not.
Breastfeeding is a natural and normal thing to do
Breastfeeding your baby is a natural and normal thing to do.
Most mothers work out how and where they are comfortable feeding their babies and where and when they are out.
Firstly, you are allowed to breastfeed in public places.
For example, restaurants, hotels, cafes, shopping centres, public swimming pools and public transport.
Secondly, you are also allowed to breastfeed and express milk while you are at work.
Although it is widely accepted that breastfeeding is important for mothers and babies, some people still feel the need to make critical comments.
In addition, others feel the need to confront mothers with unnecessary (and illegal) “rules”.
For example, it is unlawful for staff at a café tell you “you can’t do that here”, or if they ask you to leave because you are breastfeeding.
Discrimination on the basis of breastfeeding can also include humiliating or degrading comments.
It can also include unreasonable workplace policies that make it impossible for workers who are breastfeeding or expressing milk to comply with.
Workers should not feel they have to resign because they are breastfeeding.
Furthermore, they should not feel pressure to give up breastfeeding in order to return to work.
If you are at work, you are entitled to be given:
- breaks so that you can express milk, or feed your baby, and
- a place where you can express or feed comfortably.
Pregnancy discrimination happens when you are treated less favourably than another person because of pregnancy or potential pregnancy.
- Firing or refusing to hire you based on your pregnancy
- Reducing your hours or changing your shifts to your disadvantage
- Failing to allow you to take parental leave
- Refusing to promote you because you are pregnant
- Refusing to create a flexible working arrangement on your return to work, such as refusal of part-time work
- Changing your role to your disadvantage while you are on maternity leave
- Sacking you when you fall pregnant during probationary periods
Maternity and paternity leave
Employees are entitled to parental leave when a child is born or adopted.
Parental leave entitlements include:
- maternity leave
- paternity and partner leave
- adoption leave
- a right to return to old job
What is parental leave?
Parental leave is leave that can be taken when:
- an employee gives birth
- an employee’s spouse or partner gives birth
- an employee adopts a child under 16 years of age
Employees are entitled to 12 months of unpaid leave.
They can also request an additional 12 months of leave.
Who is eligible for parental leave?
All Australian employees are entitled to parental leave.
Employees are able to take parental leave if they:
- have worked for their employer for at least 12 months
- have or will have responsibility for the care of a child
If you are a casual employee, you will need to have been working for your employer on a regular basis for as least 12 months.
In addition to having a reasonable expectation of continuing work had it not been for the birth or adoption of a child.
What if you are having another child?
Employees who take parental leave don’t have to work for another 12 months to be eligible for another period of leave with that same employer.
However, if they have started working for a new employer, they will need to work with that employer for at least 12 months before they can take parental leave.
Flexible working arrangements
Flexibility in the workplace allows workers to make arrangements about working conditions that suit them.
This helps employees maintain their work/life balance, and can also help employers improve productivity.
Employers and employees can negotiate flexible working arrangements, so long as minimum entitlements are paid.
For example, changing start and finish times to allow a worker to attend to family responsibilities.
Return to Work Guarantee
The Return to Work Guarantee ensures an employee returning to work following maternity leave is entitled to:
- their pre-parental leave position; or
- an available position for which they are qualified and suited, which is nearest in status and pay to their pre-parental leave position, if their pre-parental leave position doesn’t exist any more.
How we can help
Our team of Australian workplace lawyers and industrial advocates can help people who have experienced discrimination on the basis of:
- pregnancy, or
- breastfeeding, or
- expressing milk.
We represent our clients and advocate on their behalf in the Human Rights Commission or any other relevant court or tribunal.
We have extensive experience negotiating substantial compensation pay outs for people who have experienced discrimination.
If you are dismissed from employment because of pregnancy or breastfeeding, you only have 21 days from the date of dismissal to file a claim, so don’t delay!
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LAST UPDATED: March 2022