Positive Duty compliance: 10 key questions to ask when protecting employees from the public

Since the introduction of the Positive Duty in 2022 under the Sex Discrimination Act 1984 (Cth), much of the focus has been on how employers can protect employees from other employees. But what about protection from third parties such as customers, contractors and members of the public?

This is a complex issue. Employers don’t have the same level of control over third parties as they do over their own staff, yet they are still legally required to take reasonable and proportionate measures to eliminate, as far as possible, unlawful conduct in connection with work.

What is the Positive Duty?

The Positive Duty requires employers to take proactive steps to eliminate the following types of unlawful conduct:

• Discrimination on the grounds of sex
• Sexual harassment
• Sex-based harassment
• Conduct that creates a hostile workplace environment on the grounds of sex
• Victimisation related to these behaviours

Importantly, this is a duty to eliminate, not just mitigate. Employers must act before a complaint arises, by identifying risks and implementing controls to prevent unlawful conduct from occurring.

Why third parties matter

In many industries, employees regularly interact with the public, sometimes in high-risk environments, such as late-night shifts or isolated settings. These contexts can give rise to significant risks, and while employers may not be able to control third-party behaviour, they must still take steps to protect their staff.

10 key questions 

To assess whether your organisation is meeting its Positive Duty obligations in relation to third parties, consider the following:

1. Have we identified high-risk roles or environments where employees interact with the public?

Think about late evenings, isolated workspaces or roles involving vulnerable clients.

2. Do we have physical and procedural safeguards in place?

This includes security systems, duress alarms, surveillance and restricted access zones.

3.  Are employees trained to handle inappropriate behaviour from customers or clients?

Training should cover de-escalation, reporting and knowing when to seek help.

4.  Do we clearly communicate behavioural expectations to the public?

Signage, policies and verbal reminders can reinforce a zero-tolerance stance on harassment.

5.  Is there a safe retreat space for employees who feel threatened or uncomfortable?

A designated area can provide immediate relief and protection.

6.  Do we have a clear and supportive reporting process for incidents involving third parties?

Employees should know how to report, what happens next and that they’ll be supported.

7.  Are contractors, volunteers and service providers held to the same behavioural standards?

Extend your policies and expectations to all who interact with your workforce.

8.  Do our leaders understand and champion the Positive Duty?

Leadership buy-in is essential to drive cultural change and accountability.

9.  Are we collecting data on incidents involving third parties?

Tracking complaints and patterns helps identify systemic risks and evaluate controls.

10. Have we consulted employees about their experiences and safety concerns?

A person-centred, trauma-informed approach ensures measures are relevant and effective.

This is certainly not an exhaustive list.  You should carry out a risk assessment that includes talking to your employees about what they feel are high risk areas. Some factors will be unique to industry and even job role. For example, is your digital marketing team using social media? Do they use their personal phones for this? Perhaps consider investing in a work phone to protect the privacy and identity of your employees. 

The hospitality industry in under scrutiny currently, as is any workplace that centres around alcohol being served. Training and education of your employees is key to ensure they know what behaviour is considered unlawful and what steps they can take to mitigate exposure to such behaviour.

As we see more cases on sexual harassment, where large fines and significant damage to brand reputation can be the end of a business, you need to ensure you can prove to the regulators that you have done all that is ‘reasonable and proportionate’ to meet your positive duty obligations. 

If you don’t know where to start, consider our Sexual Harassment Positive Duty toolkit that provides you with six steps to follow. It includes all the tools and templates needed to carry out risk assessments, communicate with staff and customers, educate employees and also how to manage a report of unlawful conduct. 

If any concerns arise from your answers to these questions, or if you would like tailored advice on complying with the Positive Duty, please contact Australian Business Lawyers & Advisors at info@ablawyers.com.au or call 1300 565 846.