Legislative requirements and considerations

Multiple legislative frameworks promote and enable access to adjustments for Queensland public sector employees. Promoting and facilitating better access to adjustments also supports chief executives to:

• fulfil their positive duties under the Public Sector Act 2022 toward principles of equity, diversity, respect, inclusion and cultural safety
• prevent harm, manage risks and comply with the Work Health and Safety Act 2011 (Qld) and Managing the risk of psychosocial hazards at work Code of Practice 2022.

Workplace adjustments need to be considered and implemented in accordance with the Queensland public sector employment framework and the below legislative instruments:

• Disability Discrimination Act 1992 (Cth)
• Racial Discrimination Act 1975 (Cth)
• Anti-Discrimination Act 1991 (Qld)
• Public Sector Act 2022 (Qld)
• Industrial Relations Act 2016 (Qld)
• Information Privacy Act 2009 (Qld)
• Human Rights Act 2019 (Qld)
• Work Health and Safety Act 2011 (Qld)
• Workers’ Compensation and Rehabilitation Act 2003 (Qld)
• Managing the risk of psychosocial hazards at work Code of Practice 2022
• Code of Conduct for the Queensland public service (or an entity’s relevant Code of Conduct, per the Public Sector Ethics Act 1994 (Qld))
• subordinate legislation, directives, and local human resources and health and safety policy.

In Queensland, the Commonwealth discrimination laws and the Anti-Discrimination Act 1991 operate concurrently.

Queensland public sector entities are not required to make an adjustment that would cause them an unjustifiable hardship (see section 36 of the Anti-Discrimination Act 1991 and section 21B of the Disability Discrimination Act 1992).

Unjustifiable hardship is based on an assessment of what is fair or reasonable, considering all the circumstances and assessing a request against factors like:

• the type of service or facility
• how much disruption or ease of disruption the request may cause
• whether it would cause harm to the person or another person if implemented
• the cost of the request in context of the whole entity, not one division or unit
• the benefits the request would provide
• the entity’s size and the type of work it does.

There are no specific rules about what is or is not a ‘reasonable’ request, because it depends on the situation and the factors above. However, an adjustment is likely to be unreasonable if:

• it has a very high cost (to the extent it would be a hardship for the whole entity)
• it will cause great disruption in the workplace
• it will cause harm to someone.

‘Unjustifiable hardship’ is tested against the whole entity, not a division or unit within the entity. The onus is on the employer to prove an adjustment is unreasonable, not on the individual.

Genuine occupational requirements (also called the essential or inherent requirements) are the minimum tasks someone must achieve in their role—and these would be set out in a role description. They refer to what needs to be done rather than how they achieve it. They don’t cover all parts of a job.

If a requirement can be achieved by someone using an adjustment, then the person should be considered able to do the work.

The reason for the adjustment does not need to be tied to meeting a genuine occupational requirement. They can be for enabling general performance, wellbeing and participating fully in all aspects of employment.

Occasionally the requirements of a job are no longer essential and can be changed, adjusted or removed. Human resources teams can work with managers to assess the job design of roles to help determine if they are designed in a way that is healthy, safe and effective.

Queensland public sector workplaces have an obligation under the Work Health and Safety Act 2011 (WHS Act) to provide a healthy and safe work environment.

Managing the risk of psychosocial hazards at work Code of Practice 2022 is an approved code of practice under the WHS Act provides information on how these hazards and risks can be controlled and managed. Psychosocial hazards are anything in the design or management of work that increases the risk of psychological or physical harm.

This includes preventing the recurrence, aggravation, acceleration, exacerbation or deterioration of someone’s existing injury.

Personal information is any information about an identifiable individual and includes information about someone’s health, disability or medical condition, familial circumstances, or cultural background.

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 serious risk, 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. Taking a stepped approach can avoid breaching someone’s privacy in a discriminatory way and help determine if it is appropriate or necessary to ask for evidence of someone’s needs in relation to work.

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 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.

Employees and prospective employees only legally need to share information about their disability, injury or medical condition or neurodivergence 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.

If any of these apply, they may only be required to inform their manager of:

• the functional impacts of their condition on their work or how their work is interacting with their condition
• what assistance they need—without needing to share details like a diagnosis, medication or reasons for a prescribed routine, for example.

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.

Note, 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.

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.

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.