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

ACT CIVIL & ADMINISTRATIVE TRIBUNAL

COMPLAINANT 202258 v SOUTHERN RESTAURANTS (VIC) PTY LTD (Discrimination) [2023] ACAT 57

DT 58/2022
Catchwords: DISCRIMINATION – discrimination on the basis of a protected attribute, breastfeeding – imposition of a workplace condition of employment – reasonableness of condition and alternate arrangements provided – indirect discrimination
Legislation cited: ACT Civil and Administrative Tribunal Act 2008 s 39
Discrimination Act 1991 ss 7, 8, 10, 30, 70
Fair Work Act 2009 (Cth) s 65
Human Rights Commission Act 2005 s 53C
Work Health and Safety Act 2011

Cases cited:Australian Capital Territory v Wang [2019] ACAT 65
Helen Styles and Philip Arthur Harrison [1989] FCA 342
Waters v Public Transport Corporation [1991] HCA 49

Tribunal:Presidential Member H Robinson
Senior Member L Drake

Date of Orders: 25 September 2023
Date of Reasons for Decision: 25 September 2023

AUSTRALIAN CAPITAL TERRITORY )
CIVIL & ADMINISTRATIVE TRIBUNAL ) DT 58/2022

BETWEEN:

COMPLAINANT 202258
Applicant

AND:

SOUTHERN RESTAURANTS (VIC) PTY LTD
Respondent

TRIBUNAL:Presidential Member H Robinson
Senior Member L Drake

DATE:25 September 2023

ORDER

The Tribunal finds that:

The respondent has discriminated against the applicant by imposing upon her a term and condition of employment, being that she remain on the premises at all times during her shift, including during unpaid breaks, that unreasonably disadvantaged her because she was breastfeeding in contravention of Part 3 of the Discrimination Act 1991.

The Tribunal orders that:

The matter is listed for further directions on 29 September 2023 to determine the next steps to be taken in the proceeding including the Orders the Tribunal must make pursuant to section 53C of the Human Rights Commission Act 2005.
………………………………..

Presidential Member H Robinson
For and on behalf of the Tribunal

REASONS FOR DECISION

This is an application concerning alleged unlawful discrimination under the Discrimination Act 1991 (the Discrimination Act). The complainant alleges that the respondent indirectly discriminated against her by imposing upon her a condition of employment that unreasonably disadvantaged her because she was breastfeeding her child.

The parties

The complainant is woman in her early twenties. At the time of making her complaint, she was a long-term employee of the respondent. She has since resigned her employment. The Tribunal accordingly makes an order pursuant to section 39 of the ACT Civil and Administrative Tribunal Act 2008 to make her identity private.
The respondent is part of the Southern Restaurants Group, which is the largest private KFC franchise owner in Australia, operating fast food restaurants under the banner ‘KFC’ in Victoria, New South Wales and the Australian Capital Territory.

The hearing

The complainant lodged her application with the ACT Human Rights Commission. As it could not be resolved there, it was referred to the Tribunal pursuant to section 53A of the Human Rights Commission Act 2005 (HRC Act).
Following referral, the Tribunal made directions, and the application was set down for hearing before the Tribunal on Thursday 23 March 2023.
At the hearing, Ms S Kelly, solicitor, from Legal Aid ACT, appeared for the applicant. Ms K Weir of Counsel appeared for the respondent.
In addition to the provision of two statements dated 30 November 2021[1] and 24 February 2023,[2] the applicant gave oral evidence and was cross-examined.
[1] Statement of the applicant dated 30 November 2022
[2] Statement of the applicant dated 24 February 2023
In addition to the provision of a statement dated 16 January 2023[3] and a supplementary statement dated 10th of February 2023,[4] Mr Tran, the respondent’s Chief People Officer, gave oral evidence for the respondent and was cross‑examined. The respondent did not call any other witnesses.
[3] Witness statement of Duy Tran dated 16 January 2023
[4] Supplementary Witness statement of Duy Tran dated 10 February 2023
At the request of the Tribunal, the respondent provided a floor plan of the Tuggeranong premises of the respondent.[5]
[5] Transcript of proceedings dated 23 March 2023, Exhibit R3
At the direction of the Tribunal, the applicant provided a statement of acts, circumstances or things which amount to unlawful discrimination under the Discrimination Act, and which were the subject of the complaint to the Human Rights Commission (Statement of acts).
The respondent provided written Submissions in Response (Response).

Role of the Tribunal

The Tribunal’s role in this application is to determine if the respondent breached its obligations under the Discrimination Act and, if so, whether it is liable to pay damages to the applicant of take other actions to remedy that breach.

Submissions from the applicant’s statement of acts and the evidence of the applicant

The applicant was employed by the respondent from 10 August 2015 until 8 November 2022. She commenced employment as a team member. On 22 October 2019, she was promoted to the position of Assistant Restaurant Manager (Level 3). From 12 November 2019 until her resignation on 8 November 2022, she was employed as an Assistant Restaurant Manager at various KFC stores.
The applicant provided detailed evidence concerning the history of her employment with the respondent from the age of 14, when she started work at the Yass store, until she moved to the Tuggeranong store on 8 May 2020.[6]
[6] Witness statement of the applicant dated 30 November 2022 at [5]-[12]
On 12 June 2021, the applicant commenced approved parental leave. She gave birth to her daughter on 27 June 2021. She was due to return to work from parental leave on 12 November 2021.
Until the applicant experienced opposition from the respondent concerning her conditions of work on return from maternity leave, she had high expectations that she would be able to return to work and that the respondent would support her. That expectation arose from the overwhelmingly positive experience she had had as an employee to that date.[7]
[7] Witness statement of the applicant dated 30 November 2022 at [15]
In September 2021, when the applicant was considering her return to work, she contacted Mr Kumar, the Restaurant Store Manager, to meet and discuss arrangements. She felt hopeful and excited about a return to work. She met with him on 28 September 2021 to discuss those arrangements. She requested shifts on weekends, during the day, and mid shifts to meet her childcare arrangements in sync with her husband’s work commitments.
Following that meeting, Mr Kumar contacted and informed her that the “big bosses” had indicated that her request was not ideal and that she would need to discuss it with the area manager. The applicant felt a loss of hope and excitement about her return to work and was confused and upset.[8]
[8] Witness statement of the applicant dated 30 November 2022 at [17]-[20]
On 22 October 2021, the applicant attended a meeting at Head Office with Mr Singh, the Area Manager, and another Restaurant Manager, Mr Ilyas, to discuss her request for flexible working arrangements. The applicant’s evidence as to what took place at that meeting is that:[9]
(a)She was asked by both men about what was involved in breastfeeding and expressing milk for her child.
(b)Mr Ilyas stated that the applicant would need to balance her managerial duties with breastfeeding duties. He questioned her in a way that made her feel pressured to wean or formula feed her child. The questions included how she going to handle this and what she was going to do if there were no other managers on shift. She felt that the implication was that it was her responsibility to find a solution.
(c)Mr Singh asked if she could express milk before and after her shifts rather than during shifts. She felt obliged to provide an in-depth explanation as to how milk supply works. She explained that she produces milk in accordance with her daughter’s feeding schedule, and it would cause her a great deal of discomfort and pain not to express during her shift. She also raised the importance of maintaining her milk supply.
(d)Mr Ilyas repeatedly recommended that the applicant ask other mothers employed by the respondent how they managed their breastfeeding responsibilities around their work commitments. The applicant felt humiliated and undermined by that suggestion. She felt that they were inferring that she could not make her own decisions about what was appropriate for her and her child, and questioned her decision to continue breastfeeding her daughter.
(e)The applicant suggested that they look for information on how to support and facilitate breastfeeding in the workplace. She was shocked that a large company such as KFC did not educate their leaders on how to support breastfeeding women returning to work and that KFC did not appear to have any policies or procedures for circumstances such as hers.
(f)At the end of the meeting, Mr Singh advised the applicant that he would seek advice from Mr Tran on how to assist her to return to work.
[9] Witness statement of the applicant dated 30 November 2022 at [21]
Following that meeting, Mr Singh telephoned the applicant and advised her that Mr Tran had informed him that she could only return to work on the same flexible conditions available to her when she went on parental leave. She informed him that she had no flexible arrangements in place at that time as they had not been required. She responded that she had a right to request flexible work arrangements. Mr Singh raised the option of her working as a casual staff member. He advised that this might allow her to balance her breastfeeding responsibilities.
On 26 October 2020, the applicant made a written application to the Chief People Officer for flexible working arrangements to enable her to balance her breastfeeding and parental responsibilities with a return to work. She requested, pursuant to section 65 of the Fair Work Act 2009 (Cth), that she be provided with:
(a)a private and clean room with a comfortable chair;
(b)a refrigerator in which to store expressed milk;
(c)sufficient time to express; and
(d)facilities to wash and store equipment.[10]
[10] Witness statement of the applicant dated 30 November 2022 at [26(c)]
If the above requirements could not be met, the applicant asked that she be allowed to take time away from work to express her milk at a nearby mall where the parents room met those requirements.
She also asked if she could return to work in 2022 on a full-time basis, once she had successfully eased back into the workforce and could accommodate work alongside her breastfeeding and parenting commitments.
On 3 November 2021, the respondent informed the applicant that it could not:
(a)provide a private room and comfortable chair at the KFC Tuggeranong store because:
[T]here [is] nowhere in the store that is private. KFC’s store layout does not have private rooms and therefore would not be able to accommodate this request given it’s not practical and too costly to accommodate.[11]; or
(b)allow her to leave the store to express breastfeed in circumstances where she was working in a management role.[12]
However, it could provide her with refrigeration to store her expressed milk in a labelled container and the use of a wash sink.
[11] Witness statement of the applicant dated 30 November 2022 at [28(4)] (emphasis added)
[12] Witness statement of the applicant dated 30 November 2022 at [27(a)]
The respondent suggested that the applicant become a casual team member. A movement to a casual team member position was a demotion.[13]
[13] Applicant’s statement of acts, facts, matters, circumstances or things amount to unlawful discrimination under the Discrimination Act 1991 (ACT) (Applicant’s statement of acts) dated 30 November 2022 at [7]
Between 3 and 4 November 2021, the applicant and Mr Tran exchanged emails. The applicant informed Mr Tran that she considered the respondent was not accommodating her breastfeeding responsibilities.
On 4 November 2021, the applicant submitted an application to the Fair Work Commission for a non-dismissal based general protection remedy.
Around 4 November 2021, the applicant began experiencing panic attacks. The first occurred while she was trying on work clothes. She was having difficulty sleeping and difficulty consuming anything other than coffee. She was continuously thinking and worrying about work. She did not wish to be alone. She needed to be around her partner and mother constantly for reassurance.[14]
[14] Witness statement of the applicant dated 30 November 2022 at [31]
The applicant sought the assistance of her treating general practitioner, Dr Luke Prentice, and was provided with a medical certificate stating that she was unfit for work. She would not have been able to return to work on 12 November 2022.[15]
[15] Witness statement of the applicant dated 30 November 2022 at [32]
On 11 November 2022, the applicant received an email from Mr Tran reiterating what aspects of her requests could be accommodated. She would be allowed to work part time, and the respondent would accommodate a full time return to work in February 2022. She was allowed to use a fridge to store her milk and use of a wash sink. Mr Tran confirmed that he would not always have a mid-manager available during her shifts.
The applicant’s solicitor from Legal Aid ACT corresponded with Mr Tran indicating that the applicant expected to return to her prior duties as an Assistant Manager rather than as a team member. The solicitor asked that the applicant’s breastfeeding responsibilities be met:
[B]y allowing her to access her entitlement to an unpaid meal break of no less than 30 minutes and no more than 60 minutes per shift without hindrance so that she can leave the work site to access the nearby facilities at the Tuggeranong Hyperdome and express milk for her newborn child…[16]
[16] Witness statement of the applicant dated 30 November 2022 at [37]
On 4 January 2021, Mr Tran telephoned the applicant. They discussed the applicant’s expectations on return to work regarding her breastfeeding needs; the needs of the business; alternatives to returning to work such as extending unpaid leave and accepting a new role as a team member; her entitlement to unpaid meal breaks; organizing a meeting between the parties to address the needs of both parties; and the process of requesting leave and who those requests can be made to.[17]
[17] Witness statement of the applicant dated 30 November 2022 at [38]
The applicant explained to Mr Tran the limited space in the Tuggeranong store and why she needed unpaid meal breaks to go to a nearby facility. The applicant referred the respondent to her award entitlement to a meal break. Mr Tran responded that meal breaks were already part of her hourly wages. He told the applicant that she could not leave during her breaks because it would affect the health and safety of employees and patrons. He could not guarantee that another manager with health and safety training would be on shift.[18] It is not necessary to detail all the negotiations between the applicant and the respondent between January and the applicant’s return to work on 26 March 2022, and the Tribunal has not done so.
[18] Witness statement of the applicant dated 30 November 2022 at [39]
On 8 February 2022, the applicant had a meeting with Ms Regal, the Acting Chief People Officer of the respondent, and a woman called Casey who worked in the People Excellence role for the respondent. She attended that meeting with her mother. The applicant was told that she could not access a meal break if she was the only manager on site. Cost efficiencies were discussed in relation to having another manager on site. Ms Regal spoke about her experience on returning to work after having had a child and informed the applicant that she had found time to express and used the bathroom. She indicated that it was ultimately the applicant’s decision, but that she should be familiar with the respondent’s expectations.[19]
[19] Witness statement of the applicant dated 30 November 2022 at [42(c)]
The applicant responded that she did not feel that she should have to express milk in a bathroom. If that requirement remained the same, there were other KFC stores, such as Queanbeyan, that had a lockable storage room, or mall stores where you might be able to access those requirements.[20] She was again offered a return to casual work.[21]
[20] Witness statement of the applicant dated 30 November 2022 at [42(c)]
[21] Witness statement of the applicant dated 30 November 2022 at [42(d)]
On 11 February 2022, the respondent lodged her complaint with the Human Rights Commission of the ACT.
On 14 February 2022, Ms Regal telephoned the applicant and asked her to send her an email listing her requirements. She indicated she was having difficulty understanding the applicant’s previous correspondence with Mr Tran.[22]
[22] Witness statement of the applicant dated 30 November 2022 at [44]
A return-to-work plan on agreed terms was entered into. The applicant requested further information about the space that would be made available to her for breastfeeding on-site, as she was not allowed to leave during her meal breaks. She was told that, although she could not leave the store, a pop-up tent would be provided in the back storeroom with a comfortable chair.[23]
[23] Witness statement of the applicant dated 30 November 2022 at [47]
A flexible work arrangement was approved on 7 March 2022. The applicant returned to work at the Tuggeranong store on 26 March 2022, pursuant to the following work arrangements:
(a)the applicant would be permitted to work 38 hours per fortnight on day and mid shifts and would be entitled to access her annual leave to “top up” her wages; and
(b)a pop-up tent and foldout chair would be made available in the storeroom of the KFC Tuggeranong store.
On 25 March 2022, when attending the Tuggeranong store for her first shift, the applicant found that no arrangements had been made for her attendance. There was no tent or chair. The applicant telephoned Ms Regal who advised that she needed to talk to Mr Singh, and that a tent and chair would be available the next day. She left the premises distressed.[24]
[24] Witness statement of the applicant dated 30 November 2022 at [49]
On 26 March 2022, the applicant attended work by which time the tent and a foldout chair had arrived. The applicant set up the tent. She had immediate concerns. The foldout chair fitted in the tent, but the applicant felt uncomfortable and cramped while sitting in the tent on the chair. The storeroom is small. It does not have a door. It is not private. In addition, the walls are very thin. The applicant believed that the sound of her expressing her milk would be audible to staff. As there was no door, any staff member would be able to walk in at any time to get something from the store. The set up that was intended to accommodate the applicant’s needs only served to worsen the applicant’s anxiety.[25]
[25] Witness statement of the applicant dated 30 November 2022 at [50]-[51]
On 30 March 2022, the applicant advised Mr Tran and Ms Regal that, because of the unsatisfactory nature of the arrangements in place, she intended to access unpaid meal breaks during her shift. She advised that she had been informed by the Fair Work Ombudsman that she should be able to access her break under the award. Mr Tran responded and advised the applicant that she had to remain on‑site as they had already provided her with relevant facilities for her to express in a safe manner.[26]
[26] Witness statement of the applicant dated 30 November 2022 at [52]
In April 2022, the applicant began seeing a psychologist referred by her general practitioner.[27]
[27] Witness statement of the applicant dated 30 November 2022 at [54]
On 22 June 2022, the respondent offered to allow the applicant to leave the worksite when there was another manager rostered on.

The applicant provided some details about her application for workers compensation, including an assessment by an independent medical assessor who diagnosed the applicant with an adjustment disorder with mixed anxiety and depressed mood.
The applicant renewed her request to be able to leave the premises during her unpaid meal breaks on those occasions when there were no other managers on site. This included an email forwarded on 30 March 2022. These further requests were denied.
Thereafter, negotiations took place between the applicant and the respondent. Eventually, on 17 October 2022, the respondent agreed that the applicant could work in the KFC Queanbeyan store because that store had a room with a closable door which would, in the applicant’s opinion, be better suited to her needs. Mr Tran was to advise her when the door could be fixed by a contractor.[28]
[28] Witness statement of the applicant dated 30 November 2022 at [62]-[63]
Between 26 March 2022 and 8 November 2022, the applicant worked rostered shifts at the KFC Tuggeranong store. She would leave the site to express her milk at the mall Parents room during her unpaid meal breaks when there was another manager on site. There were frequently no other managers on-site and she therefore could not take her break. This involved her having to express at a much later time when another manager arrived. This caused significant physical pain and discomfort.[29]
[29] Witness statement of the applicant dated 30 November 2022 at [65]-[67]
The applicant estimated that when she was working four days per week, occasions when she could not leave the site at all or would have to delay her break, were occurring twice a week.[30]
[30] Witness statement of the applicant dated 30 November 2022 at [68]
The applicant described the personal impact arising from the respondent’s failure to meet her breastfeeding needs and her interactions with the respondent on this issue as:
(a)She felt overwhelmed and destabilized.[31]
[31] Witness statement of the applicant dated 30 November 2022 at [70]
(b)She felt she had made a great commitment to her employment with the respondent, providing consistency and attendance on shifts during her teenage years whilst sacrificing other aspects of her life.[32]
[32] Witness statement of the applicant dated 30 November 2022 at [71]
(c)She felt overwhelmed and distressed by Mr Tran’s denial of flexible working arrangements.[33]
[33] Witness statement of the applicant dated 30 November 2022 at [72]
(d)She developed panic attacks and increasingly began to feel dreadful whenever she thought about anything to do with working at KFC.[34]
[34] Witness statement of the applicant dated 30 November 2022 at [72]-[75]
(e)She felt disassociated, could not sleep, and was unable to feel well rested.[35]
[35] Witness statement of the applicant dated 30 November 2022 at [73]
(f)She was constantly thinking about returning to work and the endless possibilities that might happen.[36]
[36] Witness statement of the applicant dated 30 November 2022 at [73]
(g)She did not eat properly, consumed mostly coffee, felt trapped in her own body and felt despair.[37]
[37] Witness statement of the applicant dated 30 November 2022 at [73]
(h)She avoided going to Tuggeranong because she did not want to see anyone she worked with and be questioned about work.[38]
[38] Witness statement of the applicant dated 30 November 2022 at [74]
(i)She became aware that many of the managers knew about her situation and that some joked about whether she would return all.[39]
[39] Witness statement of the applicant dated 30 November 2022 at [74]
(j)She dreaded each shift after her return to work, and wondered whether she would be approached and asked why she was allowed breaks or why she got special treatment.[40]
[40] Witness statement of the applicant dated 30 November 2022 at [75]
(k)She was worried that people were watching her and waiting for her to mess up.[41]
[41] Witness statement of the applicant dated 30 November 2022 at [75]
(l)When she used the Parents room at the mall she felt as if she had to rush back as soon as possible.[42]
[42] Witness statement of the applicant dated 30 November 2022 at [75]
(m)She felt isolated.[43]
[43] Witness statement of the applicant dated 30 November 2022 at [76]
(n)She felt trapped and pressured to discontinue breastfeeding.[44]
[44] Witness statement of the applicant dated 30 November 2022 at [76]
(o)The tent and chair did not provide for her reasonable requirements.[45]
[45] Witness statement of the applicant dated 30 November 2022 at [76]
(p)She felt physical symptoms such as dizziness and nausea in the lead up to her shifts and when dealing with the respondent.[46]
[46] Witness statement of the applicant dated 30 November 2022 at [77]
(q)She would feel pain and discomfort when she was unable to leave work to express.[47]
(r)She felt guilt, selfishness, and diminished self-worth because she was conscious that others in her position would have just accepted the situation.[48]
(s)The support of her family and partner assisted her.[49]
(t)She felt she had had strong relationships with the leaders within KFC in the past, based around trust, dedication, and reliability, but had she has lost that trust.[50]
(u)She worries about future employers questioning her ability to balance family and work responsibilities and treating her unfairly.[51]
(v)She feels relief at having left KFC, but the experience lingers with self‑doubt.[52]

Mr Tran’s evidence and the respondent’s response to the applicant’s statement of acts and evidence

[47] Witness statement of the applicant dated 30 November 2022 at [77]
[48] Witness statement of the applicant dated 30 November 2022 at [78]
[49] Witness statement of the applicant dated 30 November 2022 at [78]
[50] Witness statement of the applicant dated 30 November 2022 at [79]
[51] Witness statement of the applicant dated 30 November 2022 at [80]
[52] Witness statement of the applicant dated 30 November 2022 at [81]

Mr Tran has held that position of Chief People Officer with the respondent since April 2018. His duties include oversight of human resources including recruitment, and disciplinary and performance issues.
Mr Tran gave evidence regarding the applicant’s employment by the respondent as follows:
(a)The applicant worked at various KFC restaurants owned and operated by the respondent including Yass, Queanbeyan, and Jerrabomberra.[53]
(b)It is an inherent requirement of the applicant’s substantive role as an Assistant Restaurant Manager to assist the Restaurant General Manager with managing the worksite, including Occupational Health & Safety issues.[54]
(c)Before commencing parental leave, the applicant worked a rotating roster on a full-time basis. She would work approximately two to three shifts per week as the sole manager on site. As with all managers, the applicant was responsible for setting her own break times.[55]
[53] Witness statement of Duy Tran dated 16 January 2023 at [6]
[54] Witness statement of Duy Tran dated 16 January 2023 at [8]
[55] Witness statement of Duy Tran dated 16 January 2023 at [13]-[15]
The respondent’s policy is described below:
(a)There must always be at least one Restaurant Manager or Assistant Restaurant Manager on site at any one time who is appropriately trained to respond to health and safety matters.[56]
(b)It is a requirement under the respondent’s franchisor agreement that Management attend all health and safety emergencies. The Restaurant Operations Compliance Check mandated by the franchisor stipulates that the person in charge must be fully trained. Without a certified manager on duty, the restaurant would immediately shut.[57]
(c)The policy in relation to breaks is acknowledged by staff in their training and their contracts of employment.[58]
[56] Witness statement of Duy Tran dated 16 January 2023 at [16]
[57] Witness statement of Duy Tran dated 16 January 2023 at [16]
[58] Witness statement of Duy Tran dated 16 January 2023 at [17]
Mr Tran supplied a list of dangers (non-exhaustive) for which managers are required to be in attendance. It includes working with junior staff and the less well-trained.[59] These were listed by Mr Tran as:
[59] Witness statement of Duy Tran dated 16 January 2023 at [19]
(a)use of hot oil, boilers and other dangerous equipment;
(b)disposing of hot oil;
(c)dealing with irate and difficult customers;
(d)managing distressing situations;
(e)COVID-19 standards;
(f)crime prevention;
(g)customer injury/property damages;
(h)violent crime;
(i)robbery;
(j)harassment, bullying and discrimination;
(k)working with chemicals; and
(l)electrical isolation.[60]
[60] Witness statement of Duy Tran dated 16 January 2023 at [18]
Managerial staff can take a meaningful break as appropriate, but they are not able to leave the site if they are the only manager on site. All Managers and Assistant Restaurant Managers receive an above award salary in recognition of the additional responsibilities required.[61]
[61] Witness statement of Duy Tran dated 16 January 2023 at [20]
Mr Tran had approved the applicant’s application for parental leave, with an expected return date of 12 November 2021.[62]
[62] Witness statement of Duy Tran dated 16 January 2023 at [22]
In response to the applicant’s evidence regarding her consultation with Mr Singh and Mr Ilyas, Mr Tran stated that he had not been able to locate any file notes of any meeting, and that neither gentleman continued to work for the respondent. Neither had any authority to make any decisions or grant any requests for flexible working arrangements. That was, and is, Mr Tran’s responsibility.[63] Mr Tran annexed a note from Mr Singh indicating that the applicant’s request would be a matter for Mr Tran to determine.
[63] Witness statement of Duy Tran dated 16 January 2023 at [23]
Having regard to the condition that she remain onsite, the applicant requested:
(a)weekend work with a preference for day shifts and mid shifts;
(b)four days’ work per fortnight, taking accrued leave for the remaining ten days;
(c)a private and clean room with a comfortable chair;
(d)a fridge in which to store expressed milk;
(e)time to allow breastfeeding needs; and
(f)facilities to wash and store equipment.[64]
[64] Witness statement of Duy Tran dated 16 January 2023 at [24]
Mr Tran was the decision-maker regarding what the respondent’s response to the applicant’s request would be. The reasons Mr Tran provided as to why some of the applicant’s requests could not be accommodated are:
(a)It was too costly and inefficient to ensure that there were always two managers on site for each of the applicant’s shifts. There is no need for two managers on shift, and since 2021 the respondent has had difficulty in hiring managers given the current market.
(b)It would be a breach of the franchisor agreement for a non-management team member to attend to a health and safety emergency while the applicant was off-site because they are not appropriately trained, and the team members are typically junior.
(c)The storeroom at KFC Tuggeranong is an open storeroom with an open walkway. A door cannot be fixed without draftspersons, significant costs, and changes to the construction of the site.
(d)To transfer the applicant to the nearby KFC Queanbeyan restaurant would have disrupted other staff at Queanbeyan. It would have required the transfer of staff to Tuggeranong. Queanbeyan is a lower volume restaurant, therefore, less managers are allocated to KFC Queanbeyan. For these reasons the Tuggeranong store would be likely to be more flexible.[65]
[65] Witness statement of Duy Tran dated 16 January 2023 at [27]
In his evidence, Mr Tran traversed the correspondence between the parties which has already been detailed in the applicant’s evidence.
Mr Tran provided the meeting notes prepared by Ms Regal of her meeting with the applicant on 8 February 2022.[66] Ms Regal’s memo is extracted below:
Was meant to return to work after Mat leave on the 12/11 under flexible working conditions. These conditions have been denied and deemed too costly and not practical She has been offered to continue to take unpaid legal return as a team member. [The applicant] feels that after being an ARM for 2 years she has been thrown under the bus after being loyal to the company and wants action taken immediately so that she can return to work and be able to provide for her family. Her wish is to return to her role as an ARM and be able to take a break to breastfeed or express and has mentioned she is happy to work on dual manager shifts (busy days) where crossover managers are on to make this achievable. She believes Tuggeranong has the manpower to make this happen being it is a store with a four man team and normally there will be a shifty or training shifty on-site. Does not wish to return to a team member position as she does not wish to take a pay cut or lose any entitlements. She is proud of what she has achieved in her role as an ARM and doesn’t want those qualifications to be forgotten if she were to go back to a team member. Is open to returning to as a part time ARM working 2 shifts in one week and 3 the other if necessary but returning to full-time capacity is preferred for financial stability. [The applicant] lives in Queanbeyan so can move to any Canberra store if required. Would like somewhere with privacy to express, potentially a mall store where a parents room is available. If staying at Tuggeranong she has advised that the hypodome is just across the road and she could easily pop across the road to express. Is willing to work her breaks around the needs of the store to minimise any disruption to the running of the shift. She feels her requests are minimal and fair and just wants an outcome so that she can resume working.[67]
[66] Witness statement of Duy Tran dated 16 January 2023 at [41]
[67] Witness statement of Duy Tran dated 16 January 2023, Annexure 15
When the applicant returned to work in March 2022, she worked reduced hours as per her medical certificates, and the respondent accommodated the applicant’s limited capacity. It was able to offer her reduced hours from March 2022, until her resignation on 8 November 2022.[68]
[68] Witness statement of Duy Tran dated 16 January 2023 at [45]
Around October 2022, Mr Tran suggested to the applicant that she could transfer to the KFC Queanbeyan restaurant. At that time, that restaurant could accommodate another manager. He instructed the team to completely clean the storeroom and ensure the lock on the door was fixed by a contractor so that the applicant could use the storeroom to express milk privately during her shifts. However, the applicant resigned in November and therefore did not transfer to the KFC Queanbeyan store.
It was Mr Tran’s evidence that, of the 89 shifts the applicant worked between 22 March 2022 and her resignation on 8 November 2022, the applicant completed only seven shifts as the sole manager on site.[69] And in any event, during all of her shifts, she had access to facilities including a privacy screen, comfortable chair, and wash equipment to allow her to express milk on-site and clean her equipment. She also had access to a refrigerator to store expressed milk. The privacy screen and chair were obtained at the respondent’s cost.[70] For the other shifts, where another manager was on duty, the applicant would have been able to leave the premises for breaks to express milk.[71]

The applicant’s evidence in response to Mr Tran’s supplementary statement

[69] Witness statement of Duy Tran dated 16 January 2023 at [47]
[70] Witness statement of Duy Tran dated 16 January 2023 at [48]
[71] Witness statement of Duy Tran dated 16 January 2023 at [49] and Supplementary Witness statement of Duy Tran dated 10 February 2023, Annexure 17

The applicant claimed that there was frequently no other manager on site when she was scheduled to take her unpaid meal break. The effect of this was, for approximately half of her shifts on her return to work, she either could not take an unpaid meal break or had to take it later, once the other management level employee had arrived.[72]
[72] Witness statement of the applicant dated 24 February 2023 at [3]
Staff frequently swapped shifts to accommodate non-work commitments. She could not recall a time when the roster did not change. Shift changes were not recorded for management level employees, although management staff members were expected to ensure they were working full-time hours per week. The applicant rejected any proposition that the roster provided by Mr Tran was an accurate reflection of the number of times she was required to work as a sole manager.[73]
[73] Witness statement of the applicant dated 24 February 2023 at [4(a)]
When the applicant returned to work in 2022, there were a high number of employees, including management level employees, who were unable to work during the pandemic. She gave examples related to the absence of a particular employee for COVID-19 and personal reasons.[74]
[74] Witness statement of the applicant dated 24 February 2023 at [4(b)]
It was not uncommon for management level staff to arrive later than their scheduled shift time. If they started late, they would finish late. The applicant recalled that there were a significant number of occasions when she was working the day or mid-shift, and another management level employee would arrive between 15 minutes to an hour late and frequently around 30 minutes late. This impacted her ability to take a break and she had to wait for a management level person to cover for her.[75]
[75] Witness statement of the applicant dated 24 February 2023 at [4(c)]-[4(d)]
There were many shifts when other management level staff would arrive late for various personal reasons or having had to work a back-to-back shift the day before. Delays of 15 minutes were common. There was one occasion when another employee arrived two hours late. Because of the nature of breastfeeding, delays of this kind caused much discomfort.[76]

The applicant’s argument

[76] Statement of the applicant dated 24 February 2023 at [4(d)]

The applicant submits that the respondent imposed a condition or requirement of employment that management level employees are not permitted to leave the premises during unpaid meal breaks when there are no other managers on site.[77]
[77] The respondent does not agree that the meal breaks are unpaid
As she was a management level employee, that condition or requirement disadvantaged her because of her protected attribute, breastfeeding.
The applicant could not return to work on 12 November 2021 as she had planned to because her request for flexible work arrangements that would accommodate her breastfeeding obligations had not been approved. She could not return until March 2022.
The applicant suffered mental harm because of the respondent’s failure to accommodate an arrangement which would have allowed her to breastfeed. In particular, she has suffered a reduced capacity for work and a diagnosed adjustment disorder with mixed anxiety and depression.
Until 7 March 2022, the only option provided by the respondent for a return to work, if she intended to work and breastfeed or express in a private, safe, and hygienic setting, was to accept a demotion to a casual team member position.
Alternative arrangements were eventually agreed, including that she would have access to a private, safe, and hygienic place to express milk. However, on her return to work, the arrangements for her expressing milk on site did not meet her reasonable requirements. She was given a temporary tent, with little privacy, located in central storeroom, with no door.

Because of the respondent’s restriction on her leaving the site to access a private space if there was no other manager on site, she was frequently unable to leave during her breaks or was forced to take a break at a significantly delayed time causing her physical discomfort. As a result, the applicant suffered humiliation, hurt and distress.[78]
[78] Applicant’s statement of acts dated 30 November 2022 at [14(a)]-[14(f)]
The respondent’s discriminatory conduct occurred within an area of public life, being the applicant’s employment with the respondent. In particular, the terms and conditions afforded to an employee were contrary to section 10(2)(a) of the Discrimination Act and subjected the applicant to a detriment contrary to section 10(2)(d) of the Discrimination Act.[79]
[79] Applicant’s statement of acts dated 30 November 2022 at [15(a)]-[15(b)]
The applicant says that the facts establish a rebuttable presumption of discrimination under section 53CA of the Human Rights Commission Act 2005.
She further says that the defence of reasonableness is not available to the respondent because:
(a)the nature and extent of the disadvantage experienced by the applicant as a result of the conditions and requirements imposed by the respondent was very substantial;
(b)the respondent could have overcome that disadvantage in a number of ways, including but not limited to;
(i)      ensuring sufficient managers were rostered to provide cover for the brief period the applicant needed to leave the store;
(ii)     having an on-call manager who could attend if there was no other management level cover available;
(iii)   training a non-management level employee to attend health and safety emergencies in the applicant’s brief absence from the store; and
(iv)   offering the applicant the opportunity to work in another store where she could have access to a private room with a lockable door to express feed.[80]
[80] Applicant’s statement of acts dated 30 November 2022 at [17(a)]-[17(c)]
The defence to discrimination in section 30 of the Discrimination Act, originally relied on by the respondent – in relation to obligations under the Work Health and Safety Act 2011 – was abandoned at the hearing.[81]

The respondent’s submission in reply

[81] Applicant’s statement of acts dated 30 November 2022 at [18]; Transcript of proceedings dated 23 March 2023, page 10 lines 17-18

The respondent says that it is an inherent requirement of the role of an Assistant Restaurant Manager to assist the Restaurant General Manager to manage the worksite, including Occupational Health & Safety obligations, and the management of minors and junior team members.
As part of her employment contract, the applicant agreed to act in this position and comply with all Occupational Health & Safety and food safety rules, as well as all policies and procedures implemented by the respondent.
It is the respondent’s policy that there must be at least one Manager or Assistant Restaurant Manager on-site at any one time who was appropriately trained to respond to health and safety matters, because they must be fully first aid trained and certified.
This policy is intended to ensure that there is an adequately equipped staff member to provide immediate health and safety advice and assistance should an incident or emergency arise. This is of particular concern given the nature of the respondent’s business (as outlined in the evidence of Mr Tran).
Although the respondent acknowledges that the applicant met with Mr Kumar to discuss her return to work, it denies that Mr Kumar approved any flexible workplace request and, in any event, submits that such an approval would be outside his authority.
The respondent denies the applicant’s assertions regarding the follow-up meetings with Mr Singh and Mr Ilyas. The respondent submits that the meetings were completely respectful, and that there was no pressure or any inappropriate or uncomfortable questions. The applicant was informed that Mr Tran would be consulted.
On 26 October 2021, the applicant emailed a flexible working request. Mr Tran responded on 3 November and explained which of the applicant’s requests could be accommodated and which could not.
Since 3 November 2021, the respondent has actively engaged with the applicant to achieve a suitable flexible work arrangement accommodating the applicant’s breastfeeding responsibilities and the operational and legislative obligations of the respondent. There has been extensive correspondence, some of which is in the applicant’s complaint.
The flexible and practical working arrangements offered by the respondent include:
(a)taking additional leave until her breastfeeding responsibilities eased;
(b)returning to work on a part-time basis as an Assistant Manager and having the remainder paid in annual leave on a temporary basis which would allow her to express milk before or after her shifts;
(c)returning to work as a casual team member for a temporary period so that she would be able to leave the work premises to express milk, or express before and after her shifts, whilst retaining her right to later return to her substantive role;
(d)relocation to a different KFC worksite that has premises that can better accommodate a private locked space; and
(e)arranging for a privacy screen/tent, comfortable chair, and access to a washbasin and refrigerator.
The respondent submits that the core of the applicant’s complaint is focused on her not being permitted to leave the workplace to express milk. Pursuant to her award, the Fast Food Industry Award 2020, the applicant is entitled to an unpaid meal break of 30 minutes. However, it is the respondent’s policy that when there is no other Manager or Assistant Manager rostered on for that shift, the responsible manager is unable to leave the premises whilst on a break. This is for the safety reasons previously outlined in Mr Tran’s evidence.
The respondent submits that all Managers and Assistant Managers receive an above award salary in recognition of the additional responsibilities required.
The respondent submits that allowing the applicant to leave would jeopardise its position in relation to compliance with obligations under health and safety laws.
The respondent submits that it is not financially viable for the respondent to roster on another Assistant Manager or Manager for each of the applicant shifts in excess of what staffing level may otherwise be required on any given day or time.
The respondent submits it is not possible to appoint an Acting Manager in the applicant’s brief absence as all employees on site are not appropriately trained to act in such a position given that they tend to be junior, inexperienced staff incapable of acting in such a capacity and being responsible for health and safety.
The applicant has persistently refused to consider any alternative arrangement which is not her full-time role in which she is not permitted to leave the restaurant during allocated breaks, despite alternatives offered.
There are physical limitations within the Tuggeranong site. The respondent submits that it has “provided as best it can” a safe and private space for the applicant to express and store milk when she is required to remain on site, within those limitations.[82] This was described as follows:
(a)     Privacy screen located in the storeroom, (being the only separate ‘room’ on site other than restrooms), which is well lit and contains a clean comfortable chair in which to sit and privately express milk and has accessible power points;
(b)     Access to a refrigerator in order for any expressed milk to be stored safely in a separately marked container; and
(c)     Access to wash basin so that the Applicant can wash all necessary expressing equipment.[83]
[82] Respondent’s response dated 7 October 2022 at [16]
[83] Respondent’s response dated 7 October 2022 at [16]
The applicant has been absent from work since 24 September 2022, pending medical advice.
In addition, the respondent relies on section 8(4) of the Discrimination Act and submits that its policy requiring managers to remain on-site during their breaks when no other manager is available to be on-site is reasonable in all the circumstances for the reasons explained in its submission and therefore cannot constitute unlawful indirect discrimination.
In consideration of the reasonableness requirements under section 8(5) of the Discrimination Act, the respondent submits that:
(a)the extent of the disadvantage imposed by the requirement on the applicant to remain on-site has been mitigated by the on-site arrangements, the above award salary she receives as a consequence and because, for the majority of her shifts there is likely to be another manager present which would allow her to leave the premises during her breaks; and
(b)any disadvantage to the applicant caused by the respondent seeking to enforce its condition is not disproportionate to the results sought to be achieve by the respondent in relation to its health and safety obligations.[84]

Consideration

The statutory framework
[84] Respondent’s response dated 7 October 2022 at [20]

So far as the Tribunal is aware, there are no reported cases in any of the anti‑discrimination jurisdictions of Australia concerning breastfeeding parents at work.
The Discrimination Act 1991 (Discrimination Act) protects persons with certain “protected attributes” – as defined in section 7 of that Act (protected attributes) – from direct or indirect discrimination – as defined in 8 of the Act – in certain areas of public life, including employment. One of the protected attributes is breastfeeding.[85] While this term is not defined, it is not in dispute that the applicant was breastfeeding during the relevant period. Section 8 of the Discrimination Act defines direct and indirect discrimination as follows:
[85] Discrimination Act 2011 section 7(1)(d)
8      Meaning of discrimination
(1)     For this Act, discrimination occurs when a person discriminates either directly or indirectly, or both, against someone else.
(2)     For this section, a person directly discriminates against someone else if the person treats, or proposes to treat, another person unfavourably because the other person has 1 or more protected attributes.
(3)     For this section, a person indirectly discriminates against someone else if the person imposes, or proposes to impose, a condition or requirement that has, or is likely to have, the effect of disadvantaging the other person because the other person has 1 or more protected attributes.
(4)     However, a condition or requirement does not give rise to indirect discrimination if it is reasonable in the circumstances.
(5)     In deciding whether a condition or requirement is reasonable in the circumstances, the matters to be taken into account include —
(a)the nature and extent of any disadvantage that results from imposing the condition or requirement; and
(b)the feasibility of overcoming or mitigating the disadvantage; and
(c)whether the disadvantage is disproportionate to the result sought by the person who imposes, or proposes to impose, the condition or requirement.[86]
[86] Discrimination Act 2011 section 8 (emphasis added)
An act will only be unlawful under the Discrimination Act if it occurred in a protected area of public life. The workplace is one such area, as per section 10:
10 Applicants and employees
…
(2) It is unlawful for an employer to discriminate against an employee—
(a)in the terms or conditions of employment that the employer affords the employee; or
….
(d)by subjecting the employee to any other detriment.[87]
[87] Discrimination Act 2011 section 10 (emphasis added)
The applicant alleges that she was indirectly discriminated against, as per section 8(3) of the Discrimination Act.
The application of section 8 of the Discrimination Act has been discussed in Australian Capital Territory v Wang (Wang).[88] The helpful delineation of the necessary steps in the determination of whether indirect discrimination has occurred in that decision is set out below:
[88] [2019] ACAT 65; see also Phillips v Australian Capital Territory (as represented by Chief Minister, Treasury and Economic Development Directorate) [2021] ACAT 22 at 70.
[162] Four steps are involved in determining whether indirect discrimination occurred at the relevant time under section 8(1)(b):
(a)the existence of a particular ‘condition or requirement’;
(b) the imposition of the condition or requirement by a ‘person’, in this case the ACT as the prospective employer;
(c)the ‘effect’ of the imposed condition or requirement - specifically whether the effect of the condition or requirement is to disadvantage certain ‘people’ with an attribute referred to in section 7 of the Act; and
(d)demonstrating that the disadvantage occurs because the people have such an attribute.
These steps all involve mixed questions of law and fact.
[163] A fifth step is stated in section 8(2) and this step need only be taken where there is found to be indirect discrimination under section 8(1)(b).
[164] The fifth step involves deciding whether the condition or requirement is reasonable in the circumstances. Therefore, if a condition or requirement prima facie disadvantages people, it may nevertheless be permissible (in the sense of not falling within section (8)) because it is reasonable in the circumstances. Whether it is reasonable will be decided taking into account, pursuant to section 8(3), the nature and extent of the resultant disadvantage, the feasibility of overcoming or mitigating the disadvantage and whether the disadvantage is disproportionate to the result sought by the person who imposes or proposes to impose the condition or requirement. This step need not be taken unless the Appeal Tribunal decides that the condition or requirement is discriminatory.
[165] Section 8(1)(b) of the Discrimination Act does not stipulate a comparative test. It states only that the condition or requirement has (or is likely to have) the ‘effect’ of disadvantaging people. However how does one prove that the ‘effect’ of a condition or requirement disadvantages people because they have an attribute referred to in section 7? Rees, Rice and Allen comment as follows:
whether a requirement or condition has, or is likely to have, the effect of causing a disadvantage is a matter of evidence or could be a matter of judicial notice.[89]
[89] Australian Capital Territory v Wang [2019] ACAT 65 at [162]-[165] (citations omitted)
The HRC Act establishes who bears the onus of proof in discrimination proceedings, such as this, more generally:
53CA Onus of establishing complaint about discrimination etc
(1)     This section applies to a discrimination complaint, referred to the ACAT under this division, about discrimination by a person against another person by—
(a)treating, or proposing to treat, the other person unfavourably because of a protected attribute of the other person (direct discrimination); or
(b)imposing, or proposing to impose, a condition or requirement that has, or is likely to have, the effect of disadvantaging the other person because of a protected attribute of the other person (other than a condition or requirement that is reasonable in the circumstances) (indirect discrimination).
(2)     It is a rebuttable presumption that discrimination has occurred if the complainant—
(a)establishes that—
(i)for a complaint about direct discrimination—the treatment or proposed treatment is unfavourable; and
(ii)     for a complaint about indirect discrimination—the condition or requirement has, or is likely to have, an effect of disadvantaging the other person; and
(b)     presents evidence that would enable the ACAT to decide, in the absence of any other explanation—
(i)for a complaint about direct discrimination—that the treatment or proposed treatment is because of a protected attribute of the other person; or
(ii)for a complaint about indirect discrimination—that the effect of disadvantaging the other person is because of a protected attribute of the other person.
(3)     The presumption under subsection (2) is rebutted if the person complained about establishes that—
(a)for a complaint about direct discrimination—the treatment is not because of a protected attribute of the other person; or
(b)for a complaint about indirect discrimination—the effect of disadvantaging a person is not because of a protected attribute of the other person.
Note The onus of establishing an exception or exemption to discrimination is on the person seeking to rely on it (see Discrimination Act 1991, s 70).[90]
[90] Human Rights Commission Act 2005 section 53CA (emphasis added)
Additionally, section 70 of the Discrimination Act sets out who bears the onus of establishing an exception under that Act:
70 Onus of establishing exception etc
If, apart from an exception, exemption, excuse, qualification or justification under this Act, conduct would be an unlawful act, the onus of establishing the exception, exemption, excuse, qualification or justification lies on the person seeking to rely on it.
Following through these provisions:
(a)The applicant must establish that that the respondent has been imposing, or proposing to impose, a condition or requirement that has, or is likely to have, the effect of disadvantaging her because of a protected attribute (indirect discrimination).
(b)If she produces evidence that would enable the Tribunal to decide, in the absence of any other explanation, that she is disadvantaged because of her protected attribute of breastfeeding, then the onus will shift to the respondent to show that the effect of disadvantaging is not because of the protected attribute.
(c)If the respondent wishes to rely upon the ‘limitation’ in section 8(3) of the Discrimination Act, it must establish that the condition relied upon is reasonable in the circumstances.
A note about evidence
In its submissions in response, the respondent purported to give evidence about what took place in the meetings referred to in the evidence of the applicant with the senior male employees. There was no direct evidence provided by any of those persons or by the HR director, Ms Regal – that is, none filed a witness statement or appeared at the hearing. It may be that they are no longer employed by the respondent, but that alone does not explain their failure to be called to give evidence in this matter. Indeed, no explanation was professed as to why they could not attend, or file witness statements. In the circumstances, the Tribunal has accepted the largely uncontested evidence of the applicant regarding her interactions with those representatives of the respondent.
Evidence about the “condition or requirement” imposed by the respondent
It is not in contest that the respondent imposed upon the workplace, and hence the complainant, a condition or requirement that managers not leave the worksite during breaks, paid or unpaid, unless there is another manager on site who is certified in work, health and safety (the condition). The respondent insists on compliance with the condition and refused to modify it to accommodate the applicant.
It is also not in contest that this is a policy decision made by the respondent, having regard to its operation considerations. It is not mandated by law. It is open to the respondent to adjust it, should it wish.
Consideration of the “effect” of the condition and whether it disadvantages persons who are breastfeeding
In Wang, the Appeal Tribunal observed that:
[185] The words ‘effect’ and ‘disadvantaging’ are not defined in the Discrimination Act. Another tribunal addressed section 8([5])(b) and the meaning of ‘disadvantage’ in Prezzi and Discrimination Commissioner (Prezzi) as follows:
[22]… While the term “disadvantage” might be thought to imply comparison, it does not necessarily do so. The context in which it is used may invite comparison, as where it is clear that what is in issue is comparative treatment, but it may also be used in a context where comparison is absent. The Macquarie Dictionary defines “disadvantage” as “absence or deprivation of advantage; any unfavourable circumstance or condition”. The primary meaning of “advantage” does not import comparison; the same dictionary gives it as “any state, circumstance, opportunity or means specially favourable to success, interest or any desired end”.
...
[24]It is thus unnecessary to inquire whether a complainant with a particular attribute has been dealt with less favourably, because of that attribute, than persons without that attribute. All that is required is whether the consequences of the dealing with the complainant are favourable to the complainant's interests or are adverse to the complainant's interests, and whether the dealing has occurred because of a relevant attribute of the complainant. The same inquiry must be made where what is in issue is a condition or proposed condition of dealing with the complainant by the person who is the subject of a complaint.
[186] Prezzi was approved by Beaumont ACJ (with whom Higgins and Gyles JJ agreed) in Edgley v Federal Capital Press of Australia Pty Ltd where their Honours considered the operation of subsections 8(1)(a) and 8(1)(b). Beaumont ACJ stated:
[54]… section 8(1)(a) is directed at adverse behaviour towards a person, because of an attribute. I emphasise that the conduct must be aimed at, or towards, the person complaining of discrimination.
[55]Secondly, s 8 applies where, although the particular conduct is not aimed at the Complainant, it has, or is likely to have, the “effect” of disadvantaging him or her, because of an attribute. In this context, the noun “effect” appears to have its primary dictionary meaning:
“[1]. That which is produced by some agency or cause; a result; a consequence: (e.g.) the effect of heat” (Macquarie).[91]
[91] Australian Capital Territory v Wang [2019] ACAT 65 at [185]-[186]

The “effect” of the condition upon the applicant was that during her breaks, she could not leave the premises. This meant she was required to either use the arrangements provided by her employer to express at work, in the conditions provided by the respondent, or refrain from expressing while at work.
The respondent agrees it imposed the condition upon the complainant, but says that the complainant was not disadvantaged by it. Rather, the respondent says, it facilitated the respondent expressing milk on the premises by providing the applicant with a privacy shield, or tent, a wash basin, and a place to store expressed milk, and that these arrangements ensured the respondent suffered no disadvantage (or that any disadvantage was reasonable).
The Tribunal has considered the facilities provided by the applicant. The “privacy shield” was variably described as a tent and a privacy screen. It is neither. It is a smallish tentlike cover provided for a camping toilet.[92] We accept the complainant’s evidence that the space inside the tent, with the chair inside, was cramped. The complainant was required to erect it in a storeroom when she wanted to use it. The storeroom had no door. The tribunal is satisfied that, even when staff are instructed not to enter, the likelihood is that they will enter, perhaps inadvertently, if the need for store products or an emergency arose. This is particularly the case, as the respondent has indicated, as the staff are young and not entirely reliable in such matters:
One of the biggest concerns I really had was when it was erected and if I was sitting inside the tent any team member or anybody else who is on shift would be able to walk into the same storeroom and stand literally beside it or have to squeeze through to get other equipment or goods that they needed to continue working.[93]
[92] Transcript of proceedings 23 March 2023, page 20 lines 44-46
[93] Transcript of proceedings 23 March 2023, page 22 lines 1-6
The Tribunal is satisfied that the “tent/privacy shield”, located as it was in an open, doorless storeroom that staff were otherwise required to enter to obtain necessary supplies, was not an appropriate place for the applicant to express milk. The Tribunal accepts the applicant’s evidence that the arrangements had the effect of causing her embarrassment and discomfort, particularly having regard to the discussions leading up to the decision to use it. This is a form of disadvantage.
The respondent does not appear to suggest that the disadvantage was caused by some reason other than breastfeeding. The respondent does, however, rely on the defence of reasonableness.
Was the condition reasonable?
In examining and determining reasonableness, the Tribunal must take into account all the circumstances of the case. The test was described by the Federal Court of Australia as an objective test that is “less demanding than one of necessity, but more demanding than a test of convenience”.[94]
[94] Re Secretary of the Department of Foreign Affairs and Trade v Helen Styles and Philip Arthur Harrison [1989] FCA 342 at 51
In Waters v Public Transport Corporation, Brennan J observed that:
There are two aspects to this criterion of reasonableness: first, whether the imposition of the condition is appropriate and adapted to the performance of the activity or the completion of the transaction; second, whether the activity could be performed or the transaction completed without imposing a requirement or condition that is discriminatory.[95]
[95] [1991] HCA 49 at [15] (Brennan J)
Accordingly, considering whether the condition was reasonable “in all the circumstances”, we have considered not just the requirements that there always be a trained and certified manager onsite, which is not itself unreasonable, but also the circumstances in which it was implemented by the respondent, and the alternatives available to it.
It is for the respondent to establish that the condition was reasonable. However, the applicant proposed a number of alternate arrangements that could have been made to satisfy the requirements of a long-term employee seeking to continue work whilst breastfeeding her child, while also meeting operational requirements.
First, the applicant submitted the respondent could have trained to certification a greater number of junior staff, giving them the appropriate required training in work health and safety, and ensuring that a trained employee was on site during the brief periods that the applicant left to express milk.
The respondent rejected this proposal based on expense, including the time required for such training, and the availability of staff. There is little substantive evidence to support this contention.
At the hearing, Mr Tran was cross examined by the applicant’s representative and questioned by the Tribunal as to what arrangements would have to be entered into to achieve the training of junior employees. Mr Tran confirmed that, if an employee wished to become an assistant manager, that they could be trained to attend to health and safety emergencies and the cost to the business would not have been high.[96]^.Such employees could have acted in higher duties for the period during which the applicant was absent expressing her milk in the Parents room provided by the mall. Having such staff on shift at the same time of the applicant would not have involved payment of higher duties wages except for the very limited time when the applicant was absent. The Tribunal is not satisfied that the practical or financial difficulties were a disproportionate burden on the respondent.
[96] Transcript of proceedings dated 23 March 2023, page 53 lines 5-17
The applicant further suggested that the respondent could have lawfully required staff to transfer from another store to enable the applicant to work in a store where there were appropriate facilities or sufficient certified managers. Mr Tran said in response that he has weighed the convenience to those employees against the disadvantage to the applicant and decided not to proceed with that course. The Tribunal does not suggest that balancing conflicting staff preferences would be any easy task, but we were not satisfied that even temporary arrangements had been adequately explored. Again, we note the onus is on the respondent to provide unreasonableness.
Finally, the applicant suggested the respondent could have put a door on the storeroom at Tuggeranong. Mr Tran’s evidence was that to rearrange the restaurant and provide a door to give the applicant the privacy in the restaurant was impractical and required a Development Approval (DA), “Again, a little bit too costly and may not be able to be accommodated”.[97] Neither the cost, nor any other difficulties were explained to the Tribunal’s satisfaction. There was no evidence regarding the requirement for a DA. The Tribunal asked Mr Tran if he had ever costed making changes to the storeroom, such as adding a door. He replied that he went to the “Development Team”, and they responded that it was not doable. When asked what reason was provided, he stated that they did not give him an answer, and they didn’t give him the cost.[98] In other words, Mr Tran did not know what the cost would be or what difficulties might have been encountered in making that adjustment, and hence he could not put that evidence before the Tribunal. We cannot conclude that straightforward step could not have been accommodated (even if, for example, the door were a temporary one).
[97] Transcript of proceedings dated 23 March 2023, pages 33 lines 38-41
[98] Transcript of proceedings dated 23 March 2023, page 34 lines 1-16
Pursuant to section 70 of the Discrimination Act, it is for the respondent to establish an exemption or exception, such as that the condition was a reasonable one. The Tribunal is not satisfied that the solutions proposed by the applicant and considered above amounted to an unreasonable or disproportionate financial or operational burden. Any of them would have avoided the disadvantage which flowed to the applicant from the respondent’s failure. Any of them would have provided a future solution should any other employee who rise to the rank of Assistant Manager need such facilities.
The Tribunal is satisfied that there were number of ways in which the respondent could have responded to the applicant’s breastfeeding attribute and avoided disadvantage.
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. 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 an employee who is doing so. This may well require change in the physical arrangements of the stores, the operational requirements of managers, and/or in the attitude of the respondent.
The Tribunal notes that Mr Tran spoke of the difficulty in hiring persons to fill positions in the current climate. Apart from the extensive list of dangers and difficulties outlined by Mr Tran as part of the obligations of manager, the attitude of the respondent to this applicant’s attribute is not likely to encourage women of childbearing age to consider the respondent as a long-term employer.
The Tribunal is also concerned by the conduct of the two male persons who interviewed the applicant when she first made her request for congenial breastfeeding conditions. The uncontested evidence of the applicant is that, then 20 years old and on her own, she was interviewed by two senior men who questioned her in relation to the breastfeeding process and made her feel uncomfortable.
It is also unfortunate that another senior employee suggested that the applicant express her milk in the toilet as she had done. It was certainly the case many years ago that toilets were the only place available to mothers who wished to express milk, but these days many corporations, retail premises, and government buildings now provide proper Parent Room facilities or other appropriate accommodations.
Counsel for the respondent submitted that the respondent is not obliged to provide the gold standard in breastfeeding facilities. Of course, it is not. Whilst the respondent does not have to provide the gold standard that counsel referred to, such as that provided by the Federal and ACT governments, it is obliged to do what it reasonably can in the context of its business to ensure no disadvantage flows to an employee with the breastfeeding attribute from the condition it imposes.
Employers will have different capacities to ensure that they do not disadvantage employees possessing the breastfeeding attribute. A small business is unlikely to be able to provide private spaces for such attributes. A sink for washing equipment and a refrigerator for storing milk may be all that is possible in most circumstances. However, in those circumstances (unlike the respondent’s) it is likely that an employee may leave the premises during their break to take advantage of facilities provided by a shopping mall or community centre (as the applicant wished to do).
Counsel for the respondent submitted that the evidence demonstrated the respondent did the best that it could with what was available to it in the framework of a fast-food operating environment and that the facilities provided, while not a gold standard, were adequate. The Tribunal disagrees. The tribunal is satisfied the respondent failed to provide a “pass” level solution. The facility it provided was a small ensuite tent of the kind used to cover a camp toilet. With a chair inside, it was cramped. It had to be erected by the applicant each time it was used. There was no door on the storeroom where it was located. Even though staff were instructed not to enter while the applicant was expressing, there was a likelihood thy would do so if the need for store products or an emergency arose.
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.
A breastfeeding mother obliged to remain on site and delay expressing from the time when she would normally express her milk will become engorged. This is an extremely painful condition. She may also leak, which is unsightly, uncomfortable and embarrassing. A breastfeeding mother who goes beyond the ordinary time for expressing risks mastitis. Insisting on compliance with a workplace condition which requires that managers working on their own remain in the workplace without proper facilities, and unable to move to locations with facilities, is not a reasonable response to the needs of a modern workforce.
The respondent insists on the condition being enforced so that a manager trained in work health and safety would be available in an emergency, but the Tribunal questions how an employee half undressed, on a chair, in a tent could be a responsive manager in any emergency in any case.
It is difficult to imagine how the respondent considered that such a solution would be satisfactory to the applicant or any other employee in that situation.
Mr Tran was asked if he sought any advice on these issues. His response was that he had asked his personal partner, who was breastfeeding, what the options might be regarding, for example, the need for frequency of expressing. This was not a satisfactory enquiry.
The Tribunal has considered the nature and extent of the disadvantage imposed by the imposition of the condition, the feasibility of overcoming or mitigating the disadvantage, and whether the disadvantage is disproportionate to the results sought by the respondent. The Tribunal has concluded the respondent’s response was not reasonable.
The Tribunal does not know if there were other employees in the past with the same protected attribute who did not pursue their desire to breastfeed their child. Catering to the needs of breastfeeding employees is not an outlandish demand. Women remaining in the workforce after giving birth has become a commonplace occurrence. In the future, there will be other employees who will wish to breastfeed their child. It is an unavoidable workplace issue which needs to be met and dealt with in an appropriate fashion.

Summary of Findings

Applying the criteria in Wang:
Was there a particular condition or requirement in the circumstances of this application?
The respondent imposes a particular condition of employment on management level employees in its stores. Management level employees may not leave the store unless there is another management employee on-site trained in work health & safety.
Was the condition imposed by the respondent?
The respondent insists on its employees’ compliance with the condition or requirement. It is insisted on the applicant’s compliance with it. The condition is not mandated by law or any workplace regulation. It is a term of employment imposed for commercial reason, as an efficient way of meeting workplace health and safety and other obligations. The respondent resists any variation or flexibility in relation to condition.
Was the effect of the condition to disadvantage certain people with that attribute?
The respondent has created a condition which will, in the absence of a responsive change to staffing arrangements or facilities, inevitably adversely affect persons with the breastfeeding attribute.
The effect of the condition imposed by the respondent is to disadvantage employees with that attribute who wished to express milk to breastfeed their children during a shift, when there was no other manager on site, and they cannot leave the premises. Those persons must express milk on-site in unsuitable facilities. This disadvantage arises because of the imposition of the condition and the failure of the respondent to make appropriate alternate arrangements for breastfeeding employees.
In the circumstances of this case, the respondent suggests that “most of the time” there was an ability to go off site to access facilities. The Tribunal prefers the evidence of the applicant as to that availability, but in any event, the Tribunal is not satisfied that “most of the time” is a sufficient accommodation.
The combination of the prohibition on leaving the premises during a shift, even during an unpaid break, and lack of appropriate on-site arrangements were detrimental to the applicant and to any management employee returning from parental leave who may wish to express milk so as to breastfeed.
Did the detriment occur because the applicant had that attribute?
Between November 2021 and March 2022, the applicant had no choice but to accept a demotion, or express before and after her shifts. At that stage, no on-site arrangements have been made. Later, arrangements were put in place to enable the applicant to express on site. However, this involved expressing in a temporary tent established in a room with no door, that would be regularly entered by staff obtaining supplies. This arrangement disadvantaged the applicant.
Accordingly, the Tribunal is applicant suffered a detriment because the steadfast imposition of the respondent’s condition, and the absence of reasonable alternate arrangements, eventually resulted in the applicant being unable to express during her shift and suffering discomfort and ill health arising from the workplace response to her attribute of breastfeeding.
Was the condition reasonable in all the circumstances?
The Tribunal is not satisfied that the condition was reasonable. The onus lay on the respondent to establish that it was. The applicant suggested reasonable alternatives that would have met any supervision, occupational health & safety concerns, or any other operational requirement. The respondent did not satisfy the Tribunal that these alternatives were unreasonable, or that the condition was, in any case, in all the circumstances in which it was imposed, reasonable.

Conclusion

The tribunal is satisfied that the respondent indirectly discriminated against the complainant on the grounds of her status as a breastfeeding mother by imposing upon her the condition that was disadvantageous to her and not reasonable in the circumstances.
The matter is listed for directions on 29 September 2023 to determine the steps to be taken in the proceeding.
………………………………..

Presidential Member H Robinson
For and on behalf of the Tribunal

Date(s) of hearing:	23 March 2023
Solicitors for the Applicant:	Ms S Kelly, Legal Aid ACT
Counsel for the Respondent:	Ms K Weir, HR Legal
Solicitors for the Respondent:	HR Legal