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:

Associate

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

Associate, in relation to a person includes:

a spouse of the person; and
another person who is living with the person on a genuine domestic basis; and
a relative of the person; and
a carer of the person; and
another person who is in a business, sporting or recreational relationship with the person.

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):

For the purposes of this Act, a carer or assistant, in relation to a person with a disability, is one of the following who provides assistance or services to the person because of the disability:

a carer;
an assistant;
an interpreter;
a reader.

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):

disability, in relation to a person, means:

total or partial loss of the person’s bodily or mental functions; or
total or partial loss of a part of the body; or
the presence in the body of organisms causing disease or illness; or
the presence in the body of organisms capable of causing disease or illness; or
the malfunction, malformation or disfigurement of a part of the person’s body; or
a disorder or malfunction that results in the person learning differently from a person without the disorder or malfunction; or
a disorder, illness or disease that affects a person’s thought processes, perception of reality, emotions or judgment or that results in disturbed behaviour;

And includes a disability that:

presently exists; or
previously existed but no longer exists; or
may exist in the future (including because of a genetic predisposition to that disability); or
is imputed to a person.

To avoid doubt, a disability that is otherwise covered by this definition includes behaviour that is a symptom or manifestation of the disability.

Impairment

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

Impairment, in relation to a person, means—

the total or partial loss of the person’s bodily functions, including the loss of a part of the person’s body; or
the malfunction, malformation or disfigurement of a part of the person’s body; or
a condition or malfunction that results in the person learning more slowly than a person without the condition or malfunction; or
a condition, illness or disease that impairs a person’s thought processes, perception of reality, emotions or judgement or that results in disturbed behaviour; or
the presence in the body of organisms capable of causing illness or disease; or
reliance on a guide, hearing or assistance dog, wheelchair or other remedial device;

Whether or not arising from an illness, disease or injury or from a condition subsisting at birth, and includes an impairment that—

presently exists; or
previously existed but no longer exists.

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.