Employee rights


Keeping Abreast of Employment Issues

Elizabeth is your company’s sales manager and has just had three months off with her new baby. She is due back at work on Monday week and is coming into the office to discuss arrangements for her to restart work. As her employer, you’re pleased to have Elizabeth back on board but surprised to hear that she expects you to accommodate her breastfeeding her son in the office.

You refuse to allow for Elizabeth to breastfeed or express milk on work premises – but are you legally permitted to do so?

In April 2009, the Employment Relations Act was amended to place obligations on employers in respect of work place breastfeeding. An employer now must make available facilities for their employees who wish to breastfeed (or express milk) in the work place.

Your duty to provide facilities for Elizabeth is not absolute. The legislation states that facilities need only be provided for breastfeeding mothers as far as is reasonable and practicable. What is required will vary from business to business depending on the particular circumstances of each business.

There will be a number of factors for you to weigh up – including the cost to your business, health and safety requirements, your business environment and resources, Elizabeth’s (and any other breastfeeding mother’s) requirements, as well as the importance of recruiting and retaining your staff.

The Minister of Labour has published a code of employment practice on infant feeding. The code is not mandatory but it does provide a guide to employers as to their rights and obligations.

The code implicitly recognises that the facilities provided will vary but states that breastfeeding employees generally require a warm, clean and private space. It recommends that the space be large enough to change a nappy. This may prove problematic for some small businesses but depending on the circumstances, you may be able to share facilities, dedicate an area for only certain times of the day, or agree to off-site breast feeding breaks.

The code is clear, however, that toilets are not considered acceptable breastfeeding facilities.

Elizabeth tells you she is breastfeeding five times a day. She wants a morning break and an afternoon breastfeeding break, as well as feeding during her lunch time.

You agree that Elizabeth can breastfeed in the office but you don’t want her breastfeeding on company time. What are your options?

As an employer, you’re also required to provide breaks to allow breastfeeding (and for a mother to express milk) to take place during a work period. Again your duty is not absolute. If Elizabeth was a helicopter pilot, for example, it wouldn’t be reasonable to require you to give her a breastfeeding break mid-flight.

The breastfeeding breaks are in addition to any meal and rest breaks Elizabeth is entitled to. Importantly, breastfeeding breaks are only paid breaks if you and Elizabeth agree that they are to be paid breaks. That means you don’t have to pay Elizabeth for the extra breaks she is taking, but you may choose to do so in the spirit of goodwill and looking after a key employee.

The Department of Labour also offers a number of suggestions on how to accommodate breastfeeding employees, many of which are tailored towards small businesses with limited resources.