‘Increasingly oppressive’ control over employees undemocratic, says lawyer

Corporations have, over the years, assumed a much greater role in the workplaces and lives of their staff in ways that are “fundamentally” undemocratic, a principal of 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 being 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.

In recent decades, Bornstein mused, the labour market has become “radically deunionised”, and as a result, terms of contracts that come across his desk have begun to contact “increasingly oppressive” provisions, he said.

Such provisions have purported, he explained, to “exercise an extraordinary control over the lives of employees”.

“These are contracts that were signed without any bargaining, that required employees to sign up to comply with various policies, often policies the employees hadn’t read. And, they effectively required all employees, when you considered the contract and the policies as a whole, not to say or do anything controversial, that brought the organisation into disrepute either at work, or outside of work,” Bornstein said.

This, he submitted, is a powerful form of censorship “that no democratic government would ever seek to impose on its citizens”.

When asked how Australian workplaces got to this point, Bornstein suggested that the process of deunionisation, which has occurred in recent decades, has seen the transfer of wealth and power away from employees and consumers, and into the hands of corporations.

Corporations, he said, “began to 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”.

This, Bornstein continued, often supersedes the capacity of individuals “to participate in democracy outside work, to fully be able to say something controversial, or attend a demonstration”.

An ancillary issue at play is how brand management has increasingly become inextricable from the legitimacy, or perceived legitimacy, of a corporation. This has manifested, he said, in corporate entities relying on their brands to portray the brand as ethical.

Simultaneously, Bornstein outlined, the internet and digital culture have exploded, and “corporations have become very sensitive to what goes on online, and responsive to campaigns, which are easily marshalled against individuals to punish them for their controversial statements, by tagging the corporation and demanding a punishment be meted out for the individual’s expression”.

Taken together, he said, “it’s a rich stew”.

“What we get is ‘corporate cancel culture’, where, increasingly, it’s very easy to persuade a corporation to sack an employee where the employee said something that’s, or, or done something that is controversial or upsets a number of people,” he said.

Nowadays, Bornstein continued, rage content and virality are rewarded in the online sphere – adding to the complexity for employers and employees.

“Content in which someone is calling for the sacking of a dissonant, someone who’s expressed a dissident view, is elevated into people’s feeds, and people are encouraged to participate in joining the pile-on,” he said.

In such situations, he noted, corporations can still say – “and should still say, in my view” – that such matters are not the business of the entity, and that employees have the right to their own views, and that those views do not necessarily reflect those of the corporation.

“They don’t tend to do that. They tend to succumb to the demands to punish the individual,” Bornstein said.

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