Legislative requirements and considerations

The obligation to implement workplace adjustments stems from various legislation. The below information provides a brief overview of the framework and the obligations to consider or implement adjustments.

Disability Discrimination Act 1992 (Cth)

The Disability Discrimination Act 1992 (DDA) is a Commonwealth law that makes it illegal to discriminate against people with a disability in various areas of life, including employment.

Under the DDA is it prohibited to treat people less favourably because of their disability. This prohibition requires employers to make reasonable adjustments to prevent discrimination, unless the adjustment would cause unjustifiable hardship.

Anti-Discrimination Act 1991 (Qld)

The Anti-Discrimination Act 1991 (ADA) makes unfair discrimination unlawful in Queensland. The ADA outlines the characteristics that are protected from discrimination and includes impairment. The Act also covers various areas of public life including employment. This applies to all aspects of work including recruitment, terms and conditions on which a job is offered, employment benefits, training, transfers, promotion and dismissal.

If a worker with an impairment needs special services or facilities to do their work, and supplying the special services or facilities would impose an unjustifiable hardship on the employer, it may be lawful for the employer to discriminate against the worker with the impairment.

Public Sector Act 2022 (Qld)

Under the Public Sector Act 2022, chief executives must take reasonable action to:

• promote, support and progress equity and diversity in the entity in relation to employment matters
• ensure people who are members of one or more diversity target groups are able to pursue careers, and compete for recruitment, selection and promotion opportunities, in the entity
• eliminate unlawful discrimination in the entity in relation to employment matters.

Work Health and Safety Act 2011 (Qld)

Under the Work Health and Safety Act 2011 (WHS Act) employers must ensure, so far as is reasonably practicable, the health and safety of their workers and others at the workplace. This includes, but is not limited to, providing a safe work environment, maintaining safe plant and systems of work and providing adequate facilities.

Managing the risk of psychosocial hazards at work Code of Practice 2022 is an approved code of practice under the WHS Act. It is a practical guide on how to prevent harm from psychosocial hazards at work, including psychological and physical harm. It provides information on how psychosocial hazards and risks can be controlled or managed and can be used to help decide what’s reasonably practicable to reduce risk.

Where an employee chooses to inform their employer of a pre-existing psychological injury, or if the employer otherwise knows of the pre-existing psychological injury, employers should ensure psychosocial hazards do not create further harm, so far as is reasonably practicable.

For more information, see Managing the risk of psychosocial hazards at work Code of Practice 2022 and Workers’ Compensation and Rehabilitation Act 2003 (Qld).

Application of legislation

In Queensland, the Commonwealth Disability Discrimination Act 1992 and the Anti-Discrimination Act 1991 operate concurrently.

When considering a request for adjustments, decisions need to be made in consideration of the broader legislative framework including:

• Information Privacy Act 2009 (Qld)
• Human Rights Act 2019 (Qld)

Associate

Associate is defined in the Disability Discrimination Act 1992 (Cth):

Under Section 7 of the Disability Discrimination Act 1992 (Cth), the Act applies in relation to a person who has an associate with a disability in the same way as it applies in relation to a person with a disability.

Carer or assistant

Carer or assistant is defined in the Disability Discrimination Act 1992 (Cth):

Under Section 8 of the Disability Discrimination Act 1992 (Cth), the Act applies in relation to having a carer, assistant, assistance animal or disability aid in the same way as it applies in relation to having a disability.

Disability

Disability is defined in the Disability Discrimination Act 1992 (Cth):

Impairment

Impairment is defined in the Anti-Discrimination Act 1991 (QLD):

Reasonable adjustment

Reasonable adjustment is defined in the Disability Discrimination Act 1992 (Cth) as an adjustment to be made by a person is a reasonable adjustment unless making the adjustment would impose an unjustifiable hardship on the person.

Special services or facilities

Employers are expected to make reasonable adjustments for people with an impairment. However, it can be lawful for an employer to discriminate against a person with an impairment, if the person would require special services or facilities and the supply of the special services or facilities would impose unjustifiable hardship.

Unjustifiable hardship

Queensland public sector entities are not required to make an adjustment that would cause them an unjustifiable hardship (see section 36 of the ADA and section 21B of the DDA).

The DDA (Cth) provides that unjustifiable hardship is based on an assessment of all the circumstances, including:

• the nature of the benefit or detriment likely to accrue to, or to be suffered by any person concerned;
• the effect of the disability of any person concerned;
• the financial circumstances, and the estimated amount of expenditure required to be made by the employer
• the availability of financial and other assistance to the employer
• any relevant action plans given to the Australian Human Rights Commission in accordance with section 64 of the DDA.

The ADA (QLD) provides that unjustifiable hardship depends on all the relevant circumstances of the case, including, for example:

• the nature of the special services or facilities
• the cost of supplying the special services or facilities
• the number of people who would benefit or be disadvantaged
• the financial circumstances of the employer
• the disruption that supplying the special services or facilities might cause
• the nature of any benefit or detriment to all people concerned.

Unjustifiable hardship is to be tested against the whole entity, not a division or unit within the entity. The onus is on the employer to prove that the adjustment would impose unjustifiable hardship.

Personal information is information about an individual whose identity is apparent or can reasonably be ascertained. Common examples include an individual’s name, signature, date of birth, medical records, employment details and commentary or opinions made by or about the individual.

Personal information also includes sensitive information which can include a person’s health information (such as disability), religious beliefs or racial or ethnic origin.

Entities can use personal information for the reason they collected it, for example to provide someone with adjustments, but the Information Privacy Act 2009 (Qld) also allows personal information to be used and disclosed for other reasons—complying with law, preventing a serious threat, assisting law enforcement, or with the individual’s consent.

Is formal ‘evidence’ of need necessary?

It may not be necessary for a person to provide formal documentary evidence of their disability, condition or neurodivergence when requesting an adjustment. Depending on the circumstances, a verbal discussion about adjustments may be enough to support and implement a change or purchase new equipment.

In other situations, further information or evidence may be required.

On a case-by-case basis, managers or delegates can:

• accept lived experience as suitable and credible evidence, or a brief description of the functional impact of the person’s condition on an aspect of work or of work on their condition
• if necessary and with the employee’s consent, ask the employee to share any existing advice, or seek further information from, their treating practitioner/s
• if necessary and with the employee’s consent, commission new assessments (usually at cost to the employer) to source practical options from an appropriate professional such as an occupational therapist

Where a manager (or human resources team) seeks funding from the Australian Government Job Access scheme, further evidence or assessments may be required by Job Access.

There are some instances where an employee or prospective employee may be legally required to share information about their disability, injury or medical condition or neurodivergence. For example, if they are directed to attend an Independent Medical Examination, or if it is likely to affect:

• their ability to meet a genuine occupational requirement of the role, and/or
• their own or someone’s safety.

Aside from any legal obligation to share information, it is the right of the person to decide whether they share information, when sharing would be necessary or beneficial, and how much information they share.

Under the Public Sector Act 2022, chief executives of a reframing entity have a positive duty (a legal obligation) to promote cultural safety and cultural capability at all levels of the public sector and support the aims, aspirations and employment needs of Aboriginal peoples and Torres Strait Islander peoples.

Promoting cultural safety during the development and implementation of workplace adjustments is key for Aboriginal peoples and Torres Strait Islander peoples. This may look like:

• recognising culturally significant connections and the cultural rights of the person (such as including kinship caring arrangements when promoting carers’ access to adjustments)
• doing your own critical self-reflection when you are challenged by a different perspective or don’t agree with the ‘reasonableness’ of an adjustment request
• ensuring that any support person or contact officer has an adequate level of cultural capability
• ensuring communication is culturally appropriate
• considering and mitigating any ways conscious or unconscious bias may impact the process
• using the resources available to consider human rights in decisions
• offering and promoting culturally capable specialist support to decision makers and employees.