‘A second Gilded Age’: Employer power over workers’ speech has gone too far, lawyer says

Liberal democracies like Australia should encourage citizens to freely express views without interference from corporate employers, a principal at a national law firm has argued.

Speaking recently on The Lawyers Weekly Show, Maurice Blackburn principal and head of employment law Josh Bornstein reflected on what he sees as a concerning and increasing level of power and control that corporations now have over the private lives of their employees.

These matters formed the basis of his recently released book, Working for the Brand: how corporations are destroying free speech.

Corporations, he said in that episode, now “assume a much greater role in our workplaces, outside our workplaces, in the halls of power, in our culture and at the coal face, at the workplace level, that power manifested itself in exercising control in a way that I think is fundamentally anti-democratic”.

When asked how difficult it might be for corporations to strike the right balance between legal obligations to employees against community expectations to dismiss those employees for expressing certain views – such as in the case of rugby star Israel Folau – Bornstein said that he starts from the proposition that in a liberal democracy, “we want to maximise the participation of citizens in that democracy and maximise their opportunities to express their views and encourage disagreement and debate”.

If you start from that proposition, he said, “corporations should do the least interference to that”.

As is evident from workplace sackings in recent years, he mused, corporations currently find striking that balance, and resisting pressure, very difficult. However, corporations, as powerful entities, must defend the right of their employees to have different views.

“Corporations survive much bigger scandals every day,” Bornstein said.

“Corporations wield, in my view, an enormous power now in a way we haven’t seen since the first Gilded Age. We’re really living through a second Gilded Age. But it’s clear that they do frequently relent and do follow the mob.

“We have laws that protect employees from these sorts of situations, but I think they clearly need to be strengthened to apply across the board to the situations that employees find themselves in. I think what is now necessary to also confront is the need to address mobbing and to try and strengthen laws that deter online campaigns of mobbing, to incite corporations to act illegally.”

In his book, Bornstein pondered whether corporations – particularly tech monopolies – are not too big to tame.

“You need strong government, you need dynamic government, nimble government, and that can only be delivered by political change. At the moment, the political winds are going the other direction. And, at the same time, you will not tame the power of corporations unless you have strong unions. Unions provide not only terms and conditions of employment, decent terms and conditions of employment to employees, but they also moderate the economic and political power of corporations,” he said.

While he feels the federal government has made “some impressive changes” to industrial relations laws to give employees more bargaining power, we have yet to see transformative effects from that.

As a result, Bornstein concluded that it is “pretty hard to be optimistic [about the restoration of employee freedoms to express themselves] given what we’re witnessing, particularly overseas”.

“But for someone like me, you get despondent, you get through that, and then you dust yourself off, and keep trying to fight for positive change,” he said.

To listen to the full episode with Josh Bornstein, click here.