On the 23rd of November 2020, Josh Bornstein (Principal Lawyer at Maurice Blackburn Lawyers) gave his presentation during the seminar of the Corporate Social Responsibility and Business Ethics Blog’s End-of-Year Seminar Series 2020 entitled “CSR, Whistleblowing and Human Rights” and organized by Dr. Costantino Grasso, Dr. Dawn Carpenter, and Dr. Luca d’Ambrosio. The series has been organised in partnership with the Centre for Financial and Corporate Integrity (CFCI) of Coventry University and the EU-funded research project VIRTEU (Vat fraud: Interdisciplinary Research on Tax crimes in the European Union – Grant Agreement no: 878619).
In his brilliant talk, Josh Bornstein discusses the burning issues of corporations that are increasingly exerting their influence and abusing of the unbalance of power between employers and employees to silence the latter when they express opinions that are not in line with the corporate interests.
Josh Bornstein is the head of Employment and Industrial Relations at Maurice Blackburn, which is Australia’s leading social justice law firm. Josh has over 20 years’ experience as a lawyer working in the area of employees’ protection. He has represented many trade unions and the Australian Council of Trade Unions (ACTU). He also advises managerial and professional employees throughout Australia. He has represented many women who have endured sexual harassment, including in recent cases involving AMP and former Judge Dyson Heydon. Josh is a board member of the think tank “Australia Institute” and an advisory board member of the Centre for Future Work. An article written by Josh and focuses on the landmark case of Israel Folau and the Australian Rugby League has been recently published by ABC News.
Summary of the Seminar (by Stephen Holden)
Beginning with an understanding of the case of Australian Rugby League player Israel Folau, Josh considers the rights of public freedom of expression contrasted against enforceable codes of conduct enforced by employers.
Through an understanding of the collapse of the Australian unionisation movement over the previous thirty years and changes to the labour market, Josh explains how the power dynamic has skewed in favour of the employer allowing for the use of templated contracts over personalised or negotiated contracts. This power imbalance has allowed for the use of terms such as ‘I agree to abide by your policies and your codes of conduct’ despite being unaware of the policies or codes of conduct at the time of writing and the ability of employers to alter the codes of conduct at any point.
Often these documents stipulate that employees must, at all times, uphold vague and unquantifiable values such as ‘Integrity, transparency, inclusiveness, honesty, and respect’, including in their private lives, or face sanctions.
This creates what may be considered a corporate and employer overreach, blurring the lines between actions as an employee, and those of a private individual. In effect, this makes employees corporate ambassadors whose conduct must always be reflective of corporate ethics and values.
Josh then provides an understanding of Corporate Social Responsibility (CSR) in what he considers ‘a second gilded age’, where corporations are afforded privileged access to decision-makers able to push for increased autonomy, and decreased levels of regulation and accountability in order to pursue the goals of generating profit. Broadly, it is not the position of corporations to empower and give effect to the rights of individuals and employees, but rather to continue to act in their own interest.
Accordingly, it is this imbalance of power and lack of accountability that makes corporations the inappropriate body to attempt to regulate employee conduct and promote CSR, and as such, governments should intervene in order to define the minimum parameters and limitations of corporate actors, ensuring they act responsibly, as opposed to corporations self-imposing and enforcing these parameters.
Problematically, this imposition is becoming increasingly prominent and problematic at universities. Reforms in the higher education sectors in recent years have increased the operation of universities and businesses, and as such measures may be taken to limit aspects of research or publication that may conflict with corporate interests.