Editor’s Note: The Australian once again gives us an excellent article on Israel Folau’s plight, with lawyer Josh Bornstein pointing out how corporations are overriding basic human rights and civil rights in their hamfisted attempts to placate those who play identity politics. This article is brought to you by experienced crime reporter Deborah Cornwall. Subscribe to The Australian here.
The Folau saga has unleashed “the mother of all culture wars”, triggering a fightback against big business and its increasing push to control how workers behave in their private lives, a leading employment lawyer has warned.
Josh Bornstein, who heads Maurice Blackburn Lawyers, the largest employment law firm in the country, says corporations have become so obsessed with their own “brand management” they were demanding impossibly high “levels of impeccable behaviour … that even Jesus Christ would struggle to comply with”.
Mr Bornstein said he regarded Folau’s anti-gay fundamentalist Christian sentiments as “ridiculous, and I struggle to take them seriously”. But Rugby Australia, he said, still had no business sacking him for “his wacky views”. He said “broad and vague” codes of conduct and contractual obligations were being imposed on employees to make them abide by company policies and values. But they also extended to employees’ behaviour outside the workplace.
That meant workers could be sacked or disciplined for anything from swearing to posting on social media, simply because it was at odds with corporations’ public “brand”. Brand managers, he said, were “professional catastrophists” who went into “damage control” at the first sign of negative media coverage
“We are now in the middle of the mother of all culture wars that has a long, long way to go. This will make the gay marriage debate look like a walk in the park,” Mr Bornstein told The Australian.
“Brand management is being used to subvert our legal rights and other human rights.’’
Mr Bornstein said most workers wrongly sacked tended to settle outside court as taking on “employers with deep pockets” was financially impossible.
Folau’s planned legal challenge in the Federal Court was a long-overdue opportunity “to get some proper judicial considerations on this issue”. “The critical question that court will have to determine is what is the reason for his sacking,” Mr Bornstein said.
“Folau will say he was simply expressing his religious beliefs and the contract can’t be enforced if it undermines his statutory protections. You can’t sack someone … because he expressed an offensive and controversial belief.”
Folau will appear with his legal team at the Fair Work Commission this morning for a conciliation hearing with Rugby Australia.
NSW Rugby chairman Roger Davis issued a plea last night for the saga to be settled outside of court “in the best interests of the game’’, with the added warning that “no one is going to win here”.
But the former Wallaby has already flagged that there is no prospect of a settlement with RA and his next step will be filing his unlawful termination case before the Federal Court.
He is seeking $10 million in damages from RA.
Deborah Cornwall is an award-winning journalist, specialising in crime investigations and court reporting. She has worked as a national broadcast reporter, producer and writer for media organisations across the country, including the Australian Broadcasting Corporation, Channel Nine and the Sydney Morning Herald. She joined the Australian in 2018.