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.
Speaker’s Bio
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.
Video Recording
Hello, My Name Manggala from Faculty Of Law, UII, Indonesia.
based on the topic, “How Corporations are Silencing Employees”, that’s really 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, so they can’t spoke up what’s the truth, and show up they thoughts positively. We need to take reall action to make it better not only for company, but also for employee. Human Rights are the first.
Hello, my name is Reza Muhammad Alfath and I am an undergraduate student from regular program of faculty of law at Islamic University of Indonesia.
The topic from the article above is such a dilemmatic issue, in a certain way the employees recognized bringing the name of the company even if they are not in a work time. For example, the case of Australian Rugby League player Israel Folau that Mr. Josh Bornstein considers the rights of public freedom of expression contradicted against enforceable codes of conduct enforced by employers.
In that case, the act that Folau did was his opinion as a private individual not as an employee. However, Folau considered breaking the company policy because he was failed to adhere to its value. Therefore the overreach and imbalance between employers and employees are such complex things due to the law or regulation that does not complement each other.
Hello, my name is Fauzy Akbar from faculty of law UII in Indonesia.
I am really interested in the discussion on this issue “How Corporations are Silencing Employees” and I agree with the author. On the one hand, sometimes companies use powers that are not backed by national regulations so that workers often feel injustice. On the other hand, sometimes workers just accept discriminatory treatments without the courage to speak out what their rights are. We need to take real action to make it better. There is a need for competent legal assistance for workers who have experienced acts of discrimination.
I am Wildan Amrillah Amrani from the international undergraduate program at the law faculty of the Islamic University of Indonesia. Based on the topic “the Working for the Brand: How Corporations are Silencing Employees”, in my opinion it is true what Josh said that the right to freedom of public expression is different from the code of conduct imposed by employers. Obviously this is a violation of rights against employees. Article 22 paragraph (3) of Law No. 39 of 1999 concerning Human Rights, the article explains that everyone has the freedom to express opinions according to “conscience” but by taking into account several aspects. Then is the aspect referred to in that article which states that to pay attention to religious values, morality, order, public interest, and the integrity of the nation also the same as the code of ethics? I don’t think so, it is clear here that it is true what the article says, power has tilted to the employer. My conclusion, I agree with this article which states that the government must intervene in determining the minimum parameters and limits of corporate actors. I think the government can also increase the protection of employees considering that the code of conduct issued by the company violates the right to freedom of expression.
Hi, I am Dimas Aulia Rahma from Faculty of Law Islamic University Indonesia.
The topic about “Working for the Brand: How Corporations are Silencing Employees” in this article is really interesting and it should be of public concern, especially workers in the corporation. In general, In Indonesia, work contract agreement between company and employee are based on several principles including freedom of contract, pacta sunt servanda, good faith etc. Based on the topic in this article, the general terms “I agree to abide by your policies and your codes of conduct” create an imbalance against the employees. Why? Although that term is often listed in contract clauses as a non-disclosure agreement and then an employee must, at a lifetime, uphold vague unquantifiable values based on the terms that included in the contract. However, that term is so powerful and gives the impression that no separation between a life as worker and personal life. Sometimes, prospective workers that want to sign a contract with a certain company that listed the non-disclosure agreement in the contract doesn’t really understand and not prepared for the implication of what they are going to sign. Eventually, they need to choose between to obey that terms that included in the contract or not to sign it. In my opinion, legal assistance is really needed for employees so they can prepare for the implication of what they are going to sign.
First of all, I would like to thank you for your consideration and attention to this matter. It is a very concerning issue that can be interpreted in two different ways, the first one is that “yes, it is wrong to judge the values of society” or “no, everyone has freedom of expression”. I completely agree with Josh’s speech, which focuses on the whole picture of the issue, not just interpreting this case from the perspective of the employee’s conduct. I evaluate most of the employee contracts as a way of avoiding responsibility for the corporations. They are designed to protect the employer in each possible act that attracts public reaction and harms the company’s reputation. In addition to that, most of the terms and conditions are set to limit the employees about how they should act out of the workplace. The interesting point is that all of these obligations apply to employees, not employers. Employees who violate the Code may be subject to sacking, but not the employers. It seems to make no sense but when we think deeply, it is a very clever trick of the top of the corporations. Companies are doing this because they don’t want to be held liable for the breach of their values and their policies. The possible breach of the values from the employer’s side has potential harm to the business as a whole, so they don’t want to take the risk. It shows the presence of an imbalance of power between the employer and the employee. Even in the template of the employee contracts, terms and conditions are not negotiated and set by the lawyers of the corporation. Employees are not included in the preparation of the contracts, they just sign the contract. When employees sign the contract and accept to comply with the company’s policies and values, and its code of conduct, most of them do not know what the policies and the values of the corporation they work for are. It is obvious that the person who does not know in detail what she/he signed, may not care about his/her act and interpret them as “freedom of expression”.
In the case of Australian Rugby League player Israel Folau, the situation is very worrying because his hateful comment is aimed at all people whose religion is different from his. Israel Folau is the representative of Rugby sport for Austria, as the firm is a monopolist in its sector. He must act responsibly from his expressions about certain social topics. It is meaningless to defend himself under the anti-discrimination law which protects the expression of religious opinion because his comment does not seem just as an opinion. Therefore, I think it is very expectable to receive condemnation from society and the sponsors in Austria.
As a result, everyone has the right to freely express and disseminate their thoughts and opinions. In addition to freedom of thought, there is also the right to social and political opinion. According to the decisions of the European Court of Human Rights, it is the most basic human right for people to share their thoughts and explanations. However, this right in no way justifies displaying provocative, hateful, racist attitudes and behaviors that constitute a crime, that justifies insulting other persons and organizations.
As Mr. Bornstein mentioned that corporate values in most companies around the world show similar languages, such as integrity, transparency, inclusiveness, honesty, and respect. Also, all of them are obligations for employees, not employers. Employees can be sued for the breach of the company’s values. It is also valid for the social media policies which require employees to post appropriate content. However, the word “appropriate” is ambiguous. Corporations can use this term on the behalf of their interest and can sue/sack employees.
I would like to share one of the recent news about this topic; Three former Google employees have sued the tech giant for failing to abide by its well-known ‘don’t be evil’ conduct policy. They allege that the company fired them for raising concerns about its dealings with US border agencies. The National Labor Relations Board (NLRB) stated that Google “arguably violated” US labor laws by “unlawfully discharging” the three employees and alleged that they had been punished in retaliation for their activism. The NLRB previously filed a separate complaint against the company.
References:
https://www.theguardian.com/technology/2021/nov/30/google-dont-be-evil-ex-employees-lawsuit
https://www.rt.com/usa/541903-google-violated-code-conduct-lawsuit/