Inherent Requirements and Disability Discrimination: Where the Law Draws the Line

What "inherent requirements" actually means — and what it does not

The term sounds self-explanatory. It is not. Courts and tribunals have spent considerable time working out exactly where the boundary sits.

An inherent requirement is a task or outcome that is fundamental to the role — remove it, and the position no longer exists in any meaningful sense. A mine site haul truck driver must be able to operate the vehicle safely; that is inherent. Whether the same driver needs to carry a crib bag to the cab unassisted is a much closer question, and an employer who treats that as inherent without evidence will struggle.

The High Court's 2003 decision in Qantas Airways Ltd v Christie [2003] HCA 9 remains the leading authority. The Court held that "inherent" means belonging to the essential character of the position — but that character must be assessed in the context of the actual workplace, including how the employer has organised the work. An employer cannot artificially construct the role to exclude people with disabilities.

Three questions help clarify whether a task is truly inherent:

1. If this task were removed entirely, would the role still fulfil its core purpose?
2. Has the employer historically allowed other workers to perform the role without performing this task?
3. Could the task be redistributed to another role through reasonable adjustment?

If the answer to any of these is yes, the requirement may not be inherent. Document the analysis before the assessment — not after the fact to defend a decision already made.

The legislative framework: DDA, WHS, and Fair Work

Three Acts intersect in most inherent requirements decisions. Understanding where each sits matters, because they impose different obligations and have different enforcement bodies.

The tension between the DDA and the WHS Act is real. Employers sometimes argue that safety obligations under section 19 of the WHS Act require them to exclude a person with a particular health condition. Tribunals have generally been sceptical of this argument unless the safety risk is specific, substantial, and cannot be controlled through reasonable measures.

The Australian Human Rights Commission Act 1986 governs complaints to the AHRC, which is the first port of call for a DDA complaint before any court proceedings. Most matters resolve at conciliation. The ones that proceed to the Federal Court typically involve employers who had no documented IROJ process at all.

The IROJ profile: the document most employers either skip or get wrong

An Inherent Requirements of the Job profile is not a job description. A job description lists tasks. An IROJ profile quantifies the physical, cognitive, and psychosocial demands of performing those tasks — with enough specificity that a clinician can assess a candidate against them.

A defensible IROJ profile for a warehouse order picker might specify:

• Lifting up to 25 kg from floor to bench height, up to 40 repetitions per shift, 4 days per week
• Standing and walking on concrete for 6 of 8 hours, with a 30-minute seated break period
• Fine motor manipulation of pick lists on a handheld scanner for the duration of the shift
• Working in an environment between 2°C and 8°C (cool store zone) for up to 2 hours per shift

Notice the specificity. "Manual handling" tells a clinician almost nothing. "Lifting up to 25 kg from floor to bench height, 40 repetitions per shift" gives them something to assess against.

The IROJ profile must be prepared before recruitment — not constructed after a concerning health disclosure. If it was written the week after an adverse medical finding, any tribunal will see that.

For high-consequence roles — underground mining, emergency services, commercial vehicle operation — profiles should be validated against actual task data from time-and-motion or functional job analysis studies. This level of rigour is increasingly expected by workers' compensation insurers and regulators, and it significantly strengthens the employer's position if a decision is ever challenged.

Reasonable adjustment: the step employers skip fastest

Here is where most employers fail. The DDA requires an employer to consider whether reasonable adjustment would allow the person to perform the inherent requirements before concluding they cannot. Skipping straight from "medical says unfit" to "offer withdrawn" is legally indefensible.

"Unjustifiable hardship" is the threshold for declining to make an adjustment. Under section 11 of the DDA, the factors are:

1. The nature of the benefit or detriment to the person with the disability
2. The effect on the employer's operations, including financial impact
3. The financial circumstances of the employer
4. The availability of financial or other assistance, including government subsidies through the Employment Assistance Fund

A sole trader with three staff has a lower threshold than a company with 15,000 employees. A $4,000 ergonomic workstation adjustment that causes "hardship" to BHP is not going to be treated sympathetically. Size matters enormously in this analysis.

Practical adjustments that are frequently overlooked include: modified rostering to avoid peak physical demand periods during a treatment phase; temporary redeployment to a less physically demanding role while a condition is managed; phased return to full duties following surgery; and assistive technology or equipment modifications.

Document every adjustment considered. A written record showing you identified six possible adjustments, assessed each against the unjustifiable hardship factors, and concluded that none was practicable will carry significantly more weight than a bare statement that "adjustments were not possible."

The five most common mistakes in pre-employment health assessments

After 26 years reviewing fitness-for-work processes across mining, construction, healthcare, and logistics, these are the errors that appear repeatedly in complaints and litigation.

Building a process that holds up

A defensible inherent requirements process has a clear sequence. Deviating from it — even with good intentions — creates vulnerability.

1. Step 1

   Define the IROJ before you advertise

   The profile must exist before any candidate is assessed. Consult supervisors, conduct site observations, and quantify demands using objective methods — not guesswork.

2. Step 2

   Conditional offer before medical

   The pre-employment medical should be offered after a conditional offer is made. Conducting it earlier means candidates may not have disclosed the role to their treating practitioners, and creates an impression of screening out disability before selection.

3. Step 3

   Medical examiner receives the IROJ profile

   The examining practitioner — whether an occupational physician, GP with OEM training, or occupational health nurse — must assess the candidate against the documented IROJ, not against a generic standard.

4. Step 4

   If flagged, analyse adjustments before any decision

   A clinical finding that raises concern triggers the adjustment analysis. Identify all potential adjustments, assess each against the unjustifiable hardship factors, and document the analysis in writing.

5. Step 5

   Communicate and allow response

   Before withdrawing an offer, give the candidate an opportunity to respond, provide additional medical evidence, or propose adjustments of their own. The failure to do this is itself a procedural breach.

6. Step 6

   Document and retain

   Keep all records for a minimum of 7 years. DDA complaints can be made well after the event. Records that no longer exist are treated as evidence that the process was not followed.

This sequence is not bureaucratic overhead. It is the difference between a defensible decision and an AHRC complaint that costs $50,000 to resolve — even if the original decision was correct on the merits.

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