Member assistance

In addition to the provisions for workers living with a disability to apply for a flexible work arrangement, both the Equal Opportunity Act 2010 (Vic), and the Disability Discrimination Act 1992 (Cth) place an obligation on employers to provide reasonable adjustments to enable new and existing employees to fulfil the reasonable and genuine requirements of the role (in the context of the Equal Opportunity Act Vic 2010) or the inherent requirements of the role (in the context of the Disability Discrimination Act.). 

If a flexible work arrangement request made on the grounds of disability is refused, it may be possible to challenge that refusal,  of it is a reasonable adjustment under these provisions. 

What does a reasonable adjustment look like?

This in interpreted broadly. The Equal Opportunity Act provides some examples: 

• providing a ramp for access to the workplace or a particular software package for computers;
• modifying work instructions or reference manuals;
• allowing the person or employee to be absent during work hours for rehabilitation, assessment or treatment;
• allowing the employee to take breaks more frequently.

When is an adjustment reasonable? 

s.23 of the Equal Opportunity Act 2010 (Vic) provides an obligation on an employer to make adjustments providing it is reasonable. Criteria that are used to determine whether an adjustment is reasonable include:

• The requesting employee’s circumstances 
• The nature of the work being offered or performed 
• The type of adjustment required 
• The employer’s circumstances such as size and finances. 
• The effect of the adjustment for example, financial impact, 
• The consequences for the employer and employee of not making the adjustment 

This is a positive duty, where the employer has to demonstrate why it is not reasonable, rather than the worker demonstrate why it is reasonable. 

The Disability Discrimination Act 1992 (Cth) provides that an adjustment is reasonable up to the point it causes “unjustifiable hardship” to the employer. 

Reasonable adjustment case studies 

Muller v Toll Transport Pty Ltd (2) [2014] VCAT 472 

• VCAT determined that the employee needs to articulate the adjustments that are needed and the nature of the disability (including specific medical information)

Walker v Heathcote Health [2017] VCAT 171 

• VCAT held that a worker had not communicated to their employer their requirement to work night shift, and questioned whether such a request was reasonable in all the circumstances. 

Dzurbias v Mondelez Australia Pty Ltd 

• which sets out the three steps required to determine reasonable adjustments case
  • determine the reasonable and genuine requirements of the position
  • determine whether the worker can meet them, or requires adjustments to meet them
  • determine whether those adjustments are reasonable

Butterworth v Independence Australia Services [2015] VCAT 2056

• VCAT found that the duty to make reasonable adjustments do not require an employer to create another job for the employee or to keep the employee in work. They may require the employer to consider redeploying the employee in suitable roles in other parts of the organisation. The employer was therefore found to have discriminated against a worker by not doing so.

Bevilacqua v Telco Business Solutions [2015] VCAT 269

• VCAT found morning sickness is a disability under the Equal Opportunity Act 2010 (Vic). The decision means that employers are required to make reasonable adjustments for employees who need them for reasons of morning sickness. 

Reasonable accommodations 

Employers have a further obligation to provide reasonable accommodations for employees with responsibilities as parent or carer  under s.17 and s.19 of the Equal Opportunity Act Vic (2010), as with reasonable adjustments, the onus is on the employer to show that the accommodation is not reasonable.

SNAPSHOT: The difference between “reasonable adjustments and “Flexible Work Arrangements” 

1. A “flexible Work Arrangement” allows a worker caring for school aged children, living with a disability or in other particular circumstances to request changes to work arrangements such as hours and location.
2. A “reasonable adjustment” is a modification to enable a worker living with a disability to perform their role. 

 They may overlap, and the arguments used by employers in “defending” these requests may be similar. 

In our experience, employers will at times refuse requests for reasonable adjustments, by attempting to argue that the worker making the request cannot fulfil the inherent requirements of their role, or by expressing doubts about their fitness for work.

They may seek medical evidence and consult with you about it, under processes such as the “Fitness for Work” process outlined in clause 63 of the Nurses and Midwives (Victorian Public Sector)(Single Interest Employers) Enterprise Agreement 2020-2024.

Alternatively, if there is no Fitness for Work process or clause outlined in the EBA, an employer may issue a lawful and reasonable direction to provide medical evidence and/or attend an Independent Medical Examination (IME).

More information about inherent requirements, medical evidence and IMEs follows, but remember the ANMF is here to assist in ensuring procedures are correctly followed, and that an employer direction is indeed both lawful and reasonable.

What is an inherent requirement? 

The case law doesn’t define the inherent requirements of a role with much detail. In Qantas Airlines v Christie, the “inherent requirements” of a particular position are the “characteristic tasks or skills required for work done in that position.” In X v Commonwealth, it is defined as something “essential to the position.” 
In Qantas Airlines, one High Court Judge pointed out that there may be a difference between a job and a position. She pointed out that being an American-born citizen is an inherent requirement of the position of President of the United States, but this does not refer to the requirements to fulfil the tasks required of the position. 

Chivers v State of Queensland also emphasised the importance of looking at contractual terms, but not in isolation. So your contract of employment, position description and Letter of Offer/Acceptance may tell some of the story.

Both cases referred to rostering/scheduling systems as important element to be considered.

X v Commonwealth held that an inherent requirement of employment is also carrying out the employment without endangering the safety of other employees. It is not merely the physical capacity to perform the job, but also the safety factors relevant to the task.

So, there is no single factor that can help determine “inherent requirements”. It is done on a case-by-case basis. Further, your safety, and the safety of others, is a paramount consideration.

It’s also important to consider the OHS aspects of the suggested inherent requirements.  We have had many cases where an employer will assert that lifting or carrying a certain weight, or undertaking a certain physical duty is an inherent requirement whereby the requirement in itself is likely to present a risk to health and safety of any employee undertaking it.  Consequently, it is important to consider this aspect.

What is a reasonable and genuine requirement? 

VCAT has interpreted this as being “broader” than an inherent requirement, referring to what the “job or position description requires to be done, not just what is necessary to do those duties”, so as such may include skills and abilities (Davies v State of Victoria (Victoria Police) [2000] VCAT 819).

The difference between inherent requirements and reasonable and genuine requirements may most easily be seen when the requirements of the EMPLOYMENT and the EMPLOYER differ.  Are the employers’ requirements for the role reasonable in all the circumstances?

The “inherent requirements” of a job are the “essential tasks” required by the job, in the context in which the job is performed.

The ”genuine and reasonable requirements of a role” are not quite the same, reflecting what your job description or contract of employment requires to be done, not just what is necessary to be done in the job. This requirement must be reasonable.

The difference between the two may best be seen when there is a difference between the job and its requirements.

If it cannot be modified, it may be possible to argue an “unusual” requirement is unreasonable.

Factors to consider:

• Your job description/contract/offer of employment
• Essential daily tasks
• The Workplace Context
• Rostering and scheduling systems

Is night duty or working at home an inherent or genuine and reasonable requirement? 

Following Qantas Airlines and Chivers, whether night duty or working on-site rather than from home is an inherent requirement of the role is determined on a case-by-case basis. More detailed reasoning for the rejection than “it is an inherent requirement” should be requested. 

In conjunction with your medical team, think laterally, and “maximise” your capacity.For example: Rather than discount nightshift altogether;

1. Could night shifts be done in blocks?
2. Could they be done on fixed days eg every second Friday?
3. Could they be done with a certain amount of time, say 48 hours off, afterwards?

Proving inherent requirements 

Under s.21 of the Disability Discrimination Act 1992 (Cth), it would be necessary for a complainant to prove that they can fulfil the inherent requirements of the role to claim discrimination on the grounds of disability. In actions taken before the Fair Work Commission under the Fair Work Act 2009 (Cth), an employer would need to prove that they had doubts that employee could fulfil the inherent requirements of the role. (Shizas v Commissioner of Police).

The Equal Opportunity Act 2010 (Vic) requires the employer to prove that the requirements in question are a “genuine and reasonable requirement.”

Confidentiality 

Many people are, understandably, reluctant to provide medical evidence to employers. 

However, a certain amount of evidence may be required to support your application for reasonable adjustments andb defend suggestions of inability to perform the inherent requirements of the job.

S.107 of the Equal Opportunity Act 2010 (Vic) prohibits the request of discriminatory information, while the Health Privacy Principles in schedule 1 of the Health Records Act 2001 (Vic) provides that medical information must be used only for the purpose for which it was collected, and held securely. 

ANMF STRONGLY advises that you contact us before presenting medical evidence to your employer. ANMF can advise on what information is required and in relation to maintaining confidentiality. ANMF can also advise on any concerns about your capacity to fulfil the inherent requirements of your role the medical evidence may raise.

Medical documentation should be limited to matters directly relevant to any request and clearly outline any restrictions or reasonable adjustments, for example, an inability to work shifts longer than 8 hours, so they are easily understood by the employer, and also outline current capacity so that it specifically relates to the role and tasks associated with the role.  

Where possible, it should outline a timeline for a return to work, with reasonable adjustments and/or full capacity, or a timeline for reassessment. 

Any request for medical information from your employer must be request relevant and fit-for-purpose information related to the inherent requirements of your role.

It must also be both reasonable and lawful.

Contact ANMF via the Member Assistance online form for further advice.

Lawful and reasonable directions 

At what point is my ability to perform the inherent requirements of my role assessed? 

Your ability to perform the inherent requirements of the role is assessed via an Independent Medical Examination (IME). 

In certain circumstances, it may be a lawful and reasonable direction for your employer to request an IME.  There may be specific processes also set out in your EBA that govern the circumstances and this process.

The Full Court in Blackadder v Ramsey Butchering Services Pty Ltd found that an employer has a right to request an employee attend an IME if there is genuine indication of a need for it and it is reasonable for your employer to make such a request.

Daniel Cole v PQ Australia Pty Ltd outlined a number of factors to be considered when determining whether an employer’s request for an employee to attend a medical examination was reasonable.  These factors include:

• whether there is a genuine indication of the need for the examination, such as:
  • prolonged absences from work;
  • absences without explanation; or
  • evidence of an illness which relates to the employee’s capacity to perform the inherent requirements of their job;
• whether the employee provided adequate medical information to the employer to explain absences and demonstrated the employee’s fitness to perform their duties;
• whether the industry or workplace is particularly dangerous or risky;
• whether the employer has legitimate concerns that an employee’s injury or illness will impact on others in the workplace;
• whether an employee was advised of the details of any conduct which led to the employer’s concerns that the employee was not fit for duty;
• whether the medical practitioner of the employer’s choice has been advised of the issues of the employer’s concerns and whether these focused on the employee’s inherent requirements to perform the job;
• what information the employer proposed to give the medical practitioner about the employee’s actual job requirements;
• whether the employee was advised of the matters to be put before the medical practitioner for their assessment; and
• whether the medical assessment is truly aimed at determining, independently, whether the employee is fit for work.

I have a LOT of personal leave

As you can see from the cases quoted above, long periods of leave can mean a direction to attend an IME is both lawful and reasonable. Please note, however, that s.352 of the Fair Work Act and associated regulations protect you from termination of your employment for three months if you are on unpaid personal leave, or indefinitely if you are on paid personal leave for the entire time you are away from work, provided you have not received workers compensation payments during that leave.  

The above may change if your employer has a reasonable belief that, with or without adjustments, you will not return to your pre-injury/illness position in the foreseeable future.

Should your employer request an IME while you are on personal leave, or as the end of your paid personal leave period approaches, contact ANMF for advice. 

ANMF has been successful in liaising with employers in placing workers in alternative roles.

EBA obligations may also exist in relation to providing all available positions if as a result of work-related injury, and known to be unable to return to a pre-injury position.

Be prepared to meet with your employer about this, with ANMF support. Be enthusiastic, and ready to focus on the tasks you can do, and how these may benefit the organisation and how you can continue to contribute. Perhaps even have a look at the current vacancies on your organisation’s website, to see what may be a good “fit.” 

Based on the evidence, an action may be considered in discrimination on the basis of disability, if your employer fails to properly consider an application for any other suitable roles.

ANMF can assist by: 

1. Providing advice on legislation, workplace policies and EBA provisions around Flexible Work Arrangements and Reasonable Adjustments;
2. Provide advice relating to completing your request for reasonable adjustments; 
3. Provide advice regarding tendering of medical and other evidence with your application;
4. Provide advice about the reasons for a refusal of your application –Is the adjustment “unreasonable?”
5. Provide advice when the procedures for response and consultation set out under the Fair Work Act and/or your EBA are not followed;
6. Provide representation at meetings regarding your application and communicate with your employer about aspects of your Flexible Work Arrangement or Reasonable Adjustment request;
7. In the event of continued refusal (Remember: the purpose of this guide is to help avoid it getting that far), the ANMF can advise on dispute resolution pathways. 

1. Compile your Position Description, Contract of Employment, or Letter of Offer/Acceptance 
2. Consider the tasks that are involved in your job
3. In conjunction with your medical team, make a list of those tasks for which you have capacity. 
4. Ensure your medical evidence outlines your capacity with specific reference to the tasks you perform at work. 
5. Consider what reasonable adjustment works for you, in conjunction with your medical team, in the context of your individual workplace. 
6. Be sure that your medical evidence is very clear about your limitations and your current level of capacity, so these are easily understood by your employer. 
7. If the medical evidence certifies you unfit to return to work, discuss with the doctor a possible timeline for this, or when the next assessment will take place, to provide clarity for the employer. 
8. If querying an IME request, gather the following documentary evidence:
   • the reasons why your employer is directing you to attend an IME;
   • the questions your employer intends to ask the medical examiner;
   • the documents your employer intends to provide the medical examiner; and
   • the nature of the proposed medical examination, whether it will be a physical or psychological assessment and who the assessor will be.
9. Document everything!

Ensure your medical evidence shows WHY the reasonable adjustment is needed, including how any treatment affects capacity.

Example:

“The patient takes nightly medication for anxiety and depression. This medication has a soporific effect, making it difficult for the patient to work night shifts. Changing medication routine affects the patient for at least 48 hours, and poses a risk of relapse”

Where possible, give a clear timeline for the adjustment.

Be prepared to negotiate, within your medical capacity.

In the event of the refusal of a reasonable adjustments request, ANMF may be able to raise a dispute with the Fair Work Commission.

ANMF can also advise on further actions, such as actions in discrimination on the basis of disability, an alternative may be to take the matter to dispute resolution at the Victorian Human Rights and Equal Opportunity Commission (VHREOC) under the Equal Opportunity Act 2010 (Vic.). Further action can be taken under the s.21 of the Disability Discrimination Act 1992 (Cth.) through the Australian Human Rights Commission. 

Action can also be taken in the Fair Work Commission under s.351 of the Fair Work Act 2009 (Cth) for direct discrimination, or adverse action because of your assertion of a workplace right, in this case your right to seek a reasonable adjustment. 

ANMF can provide advice, or referral if required, on these options.

Reasonable Adjustments application template letter

<Date>

Private and confidential

Name

Position
Health Service
Ward/Unit

Dear <Manager>,

Re: Request for reasonable adjustment

I am writing to formally request a reasonable adjustment to enable me to perform the inherent requirements of my role, subject to the employer obligations to provide reasonable adjustments set out in s.20 of the Equal Opportunity Act 2010 (Vic) .

I seek <summary of what reasonable adjustment is being sought>

As you can see from the medical evidence provided and as outlined in previous discussions <brief summary of medical reasons for the adjustment and why it is required to allow performance of the inherent requirements of your role.>

<outline timeline for the period of adjustment>

<outline suggested roster/duty modifications/role for redeployment etc.>

I look forward to receiving your written response to my request and by no later than close of business <insert date 5 business days from date of the letter.> Alternatively, I am happy to meet with you to discuss this request. Please contact myself or ANMF (Vic Branch) Industrial Relations Organiser <name> by email on records@anmfvic.asn.au

Yours sincerely,                                                              

<Members Name> 

Reasonable Adjustments application example letter 

<Date>

Private and confidential

Name
Position
Health Service
Ward/Unit

Dear <Manager>,

Re: Request for reasonable adjustment

I am writing to formally request a reasonable adjustment to enable me to perform the inherent requirements of my role, subject to the employer obligations to provide reasonable adjustments set out in s.20 of the Equal Opportunity Act 2010 (Vic) .

I seek exemption from night shift.

As you can see from the medical evidence provided and as outlined in previous discussions, I am living with a health condition that makes me susceptible to fatigue, exacerbated by working nightshift. I am undergoing surgery on 1 January 2023, for which leave has already been sought and approved. Following this leave, my medical team and I anticipate I will be able to return to working a 24-hour roster.

I look forward to receiving your written response to my request and by no later than close of business <insert date 5 business days from date of the letter.> Alternatively, I am happy to meet with you to discuss this request. Please contact myself or ANMF (Vic Branch) Industrial Relations Organiser <name> by email on records@anmfvic.asn.au

Yours sincerely,                                                                                   

<Members Name>