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Labour law change a step towards safety

10 October 2018

Workers are becoming more aware of mental health and the need to protect themselves from psychological as well as physical harm.

You may have been harmed by things you have seen or heard. Those in the armed forces, police, and security firms witness the chilling effects of violence in their day-to-day work.

A video producer for NZ Police, George Brickell, succeeded in litigation in the High Court for post-traumatic stress disorder and harm caused to him through his work. Brickell was required to witness crime scenes and forensic work in search of material to use in police training videos.

The court found police should have reduced Brickell's exposure to the content and required him to undertake counselling.

In the age of the internet, even people who do not work for police or similar callings can be exposed to graphic images. Facebook and other online agencies rely on ordinary staff to monitor the information on social media, and also how that information is then used.

Many of you would have watched Mark Zuckerberg testify in front of the US Congress about Facebook earlier this year. The grilling went on for hours and questions ranged from the social network's role in the 2016 Presidential elections, to how the company handles data.

A couple of weeks ago Selena Scolla, a former content moderator at Facebook, sued Facebook in a California Superior Court. Her job was to enforce the social network's extensive rules prohibiting certain types of content from its systems. She claims she witnessed thousands of acts of extreme and graphic violence from her cubicle in Facebook's Silicon Valley offices.

She says that reviewing disturbing material on a daily basis caused her psychological and physical harm.

Facebook has thousands of moderators around the world, in locations such as Dublin, Texas, and the Philippines. Increasing the number of monitors is part of Facebook's response to allegations it has not done enough to combat abuse of its services, including Russian meddling, illegal drug content, and fake news.

People like Scolla are there to protect the public from having to witness disturbing content on Facebook.

Interestingly, although Scolla worked for Facebook in their Silicon Valley offices, she was not employed by Facebook. Technically, her employer was a different company who provided workers to Facebook.

This is similar to a labour hire company in New Zealand or someone working on secondment to a different business. An employee might work for a business for years, in their offices, alongside their employees, but have no way to hold that business accountable if things go wrong because the business is not the employer.

To address this, the Labour Government has introduced the Triangular Employment Amendment Bill which is before Parliament. Its purpose is to ensure employees under the control and direction of a business other than their employer can take a personal grievance against both their legal employer and the business that controls them.

Above all of this, our Health and Safety at Work Act applies to all business with workers; whether directly employed or not. Businesses must ensure workers' health and safety as far as reasonably practicable. In a job such as a Facebook moderator, one would expect Facebook and the actual party employer to provide content moderators with proper on-site and ongoing mental health treatment and support.

One very traumatic experience or a series of traumatic experiences, such as Brickell endured, can lead to post-traumatic stress disorder. Steps need to be put in place to protect those who are engaged in work that exposes them to violence, nudity, hate speech, and the like.

Those engaged to do the difficult work of protecting society need to be treated with special care. A step in the right direction would be monitoring the health of workers regularly exposed to graphic and harmful images, providing counselling and support, and regularly giving them alternative duties as needed.

The Triangular Employment Amendment Bill is another step in the right direction. If passed, it will enable more employees to ensure they are fairly treated in the workplace. Even now, health and safety transcends virtually all barriers. Businesses should be careful not to risk psychological harm or physical harm to any persons working for them.

Cullen - The Employment Law Firm was one of the first eleven law firms in New Zealand approved to provide employment law services to Government and the public sector.

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