Legal Obligation- Breastfeeding

James Murphy Tax, WHS


I have a few questions regarding maternity leave (returning to work).

I have 2 staff members currently on maternity leave both breastfeeding. They are due to return March / April.

I am wondering what I can legally do regarding them being able to feed their babies – off site (as we are preschool 3-5 years) and do not have enough to cover ratios?


We need to be mindful that a business cannot discriminate against a person who is breastfeeding.

As each state differs on discrimination law, they all cover breastfeeding parents.

The answer to the question is that the employer does not have a legal obligation to let the employee go home to breastfeed but may find the employee takes the employer to the Anti-Discrimination tribunal.

Negation is the key word here, support breastfeeding in the workplace by allowing expressing of milk etc, as not to do so would be discriminatory, the matter of the business owners need for cover ratios to be maintained would be a key consideration in making an agreement.

The information below is from NSW Health when returning to work.

Can I go to work and still breastfeed my baby?

Many mothers return to work while their baby is breastfeeding. Although it may take some time before you get into a routine that works for you and your baby, it is well worth the effort. There are many ways you can balance breastfeeding and work. This will be determined partly by the kind of work you do and the length of time you will be away from your baby.

An increasing number of workplaces actively support women to return to work and breastfeed. Many workplaces are designated ‘mother friendly workplaces. This means that facilities are available to express and store breastmilk and mothers are entitled to ‘lactation breaks’ to breastfeed their baby or express.

Talk to your employer before you go on maternity leave to find out what options are available for you when you return to work.

There are a number of options for balancing breastfeeding and work:

  • Ideally you should feed your baby just before you go to work and as soon as you return home. You may be able to arrange childcare close to work so you can feed your baby in the ‘lactation breaks’.
  • If you miss a feed while you are at work, express and store your milk (see section on Expressing your breastmilk). This milk can be given to your baby at a later time.
  • Babies will need to be fed your breastmilk by spoon, bottle, or cup
    if under 6 months while you are at work. Once babies are over 6 months bottles may not be necessary as your breastmilk can be given by cup and they are eating family foods.
  • You also have the option to provide bottles of formula for worktime feeds while continuing to breastfeed at non-work times. Remember – the longer you breastfeed, the greater the benefits.