Opinions might offend, but this lawyer argues they shouldn’t cost someone their job
Josh Bornstein likes to argue.
It’s why he found himself in the awkward position of defending the employment of Israel Folau when the rest of Australia wouldn’t. It’s why he became a lawyer, learning from an early age he could get paid for his favourite activity. It is also why he’s sitting across from me at a table at the Royal Oak Hotel demanding I say something critical about his new book.
Workplace lawyer Josh Bornstein at the Royal Oak Hotel in Fitzroy North.Credit: Eddie Jim
I decline the opportunity to pick a fight, trying to steer the conversation towards parts of the book I found interesting.
“Who do you think it will offend the most?” Bornstein asks as he sips a Heaps Normal non-alcoholic beer. I’m having a Carlton Draught and we’ve both chosen tap water that we never end up touching.
The labour, and Labor, lawyer has become a bit of an expert on what offends people. His book, Working for the Brand, is not just a study in corporations, but into whether “cancel culture” lets companies and institutions control our lives. Using our employment to demonstrate what is right and wrong.
No one is surprised Bornstein has a critical view of corporations and that he believes a stronger union movement is the solution to the woes he sees in the world.
Now one of Australia’s leading workplace lawyers, he cut his teeth on waterfront disputes and works for Maurice Blackburn, the long-time Labor- and union-linked law firm. Most recently, he was involved in the major court win for Transport Workers’ Union, where Qantas was found to have illegally sacked 1700 ground staff during the pandemic. Three test cases have set the stage for a potential multimillion-dollar compensation bill.
Perhaps that heritage is why Bornstein chose the Royal Oak Hotel in Fitzroy North for our lunch. The former dive has been renovated to look like it hails from a time when Labor Party meetings were held exclusively at pubs. It’s been a feature of the neighbourhood since 1871.
The scallop pie at the Royal Oak Hotel.Credit: Eddie Jim
Before he settles in to explain his book, he orders a scallop pie. I opt for the eye fillet. After some dithering, we agree to share a broccoli and farro salad.
The pub has a cosy vibe as we gossip about the latest machinations in Labor politics, and some colourful characters who share a mutual dislike of us both.
Bornstein hasn’t been afraid to make enemies from all walks of life. He admits he drives his own friends mad through his contrarian tendencies.
But one thing that separates him from some comrades on the left is his belief that – in most cases – your opinion shouldn’t cost you your job.
“Even if you’re wrong or annoying, you shouldn’t be smashed into oblivion, lose your career and end up being offshore. That’s horrific,” Bornstein says.
The eye fillet.Credit: Eddie Jim
“The corporations that run the online world foster this culture. There is, in both the left and the right, a propensity to try and punish your foes by shaming them and getting them sacked.
“There are examples of people being sacked, shamed and blacklisted for cracking a joke that wasn’t understood as a joke.”
One famous example, Bornstein says, is PR consultant Justine Sacco, who in 2013 stepped off a plane in South Africa to find her life ruined by an online pile-on from a tweet she sent before take-off: “Going to Africa. Hope I don’t get Aids. Just kidding. I’m white!”
Another is sports reporter Scott McIntyre, who walked into a culture war over Anzac Day in 2015 by criticising parts of Australia’s war history and was sacked by SBS. Writer Yassmin Abdel-Magied left the country after her 2017 Twitter post about Anzac Day led to weeks of media and online pile-ons.
The algorithms of the internet reward brutality and “Colosseum-style” justice, Bornstein argues, and this arrangement allows employers to be moral arbiters.
“They were cancelled so badly, they ceased to almost exist in Australia. Yet corporations don’t get in the same sort of trouble,” he says.
“What I discovered, through my work, is that corporations now wield far more power over what we’re allowed to say or do than any democratic government could legitimately dream of.
“That’s evolved over the last 30 or 40 years, as the labour market has been de-unionised and everyone’s been put on identical contracts.
“You’ll have one [contract] and it’ll say you’re required to comply with our policies, which will vary from time to time. Unilaterally we can just change the policy, and you won’t have any say over that.
“The policies will vary a bit, but they’ll all ultimately end up requiring you not to say or do anything controversial.”
It is this thesis which left Bornstein into the not-altogether-comfortable position of publicly defending the employment of former rugby star Israel Folau.
Folau was sacked by Rugby Australia in 2019 after posting on social media that “drunks, homosexuals, adulterers, liars, fornicators, thieves, atheists, idolaters” needed to atone for their sins.
Enter Bornstein, the man who loves to argue. He said the Folau saga demonstrated the overreach of corporate Australia and argued that Jesus Christ himself would be unemployable under our current social contract.
Israel Folau in 2018 when he was playing for Australia.Credit: Getty
“I got a lot of heat about that and, to some extent, my views got embraced by the right, even though I think they misunderstood my position,” he says over lunch.
“It was a very awkward position to be in, but you’ve just got to try and in that situation, argue on principle, see where it takes you and not flinch too much.”
As our meals come out, Bornstein is just warming up and orders a white wine, a Campuget Viognier. I opt for another draught.
The lawyer makes it clear he isn’t defending Folau’s opinions, but says too much of the debate about what is hateful or harmful speech is determined by the companies who hire people rather than the voters and elected politicians.
‘A corporation in the middle of a brand management, online Colosseum crisis, that’s the worst possible environment to try and deal with very complicated issues.’
Josh Bornstein
“If it is hateful, then parliament should address that because at least that is a democratic process,” he says.
“There are plenty of laws that address harmful speech, and I support them generally, so it’s always a debate about what is the line.
“A corporation in the middle of a brand management, online Colosseum crisis, that’s the worst possible environment to try and deal with very complicated issues.”
Speaking of complicated issues, Bornstein finished his book just as the war in Gaza became a focal point in global politics, and he says this has changed the discussion on free speech.
ABC presenter Antoinette Lattouf was taken off air after she posted on social media about the conflict, and a censorship row engulfed the Melbourne Symphony Orchestra when pianist Jayson Graham made remarks about a piece dedicated to Palestinian journalists killed in Gaza.
“A lot of the left who have been leading the charge against free speech and microaggressions … are now embracing the idea that they should be allowed to upset their opponents,” Bornstein says.
“I’m hoping that the left learns from that a bit, that there’ll be some evolution in the thinking about identity politics because of Gaza.”
Our jobs, Bornstein says, are central to how we see ourselves in the world, and he often recommends clients speak to a mental health professional because of the devastating psychological impact of losing a job, no matter the reason.
“There’s dignity, there’s meaning, there’s self-esteem and financial security. That’s a very potent cocktail when that’s suddenly removed. It’s very rare for someone not to be badly impacted,” he says.
Josh Bornstein and Antoinette Lattouf outside the Federal Court in February.Credit: Kate Geraghty
As we share a chocolate mousse, Bornstein explains his own personal experiences with being cancelled.
The lawyer was targeted online after supporting racial discrimination laws and received death threats from a man who was ultimately intercepted by the FBI. Years later, feelings of fear came flooding back when a dossier of his most controversial tweets was used against his bid to be preselected by Labor for a Senate spot.
“When I was silly enough to put my head up for preselection … my phone went nuts,” he says.
“I thought I’d bounced back remarkably well, but that was very frightening how so quickly my resistance was not there.”
Bornstein says this is why we complain politicians are often wooden, synthetic and not genuine. The ideal preselection candidate is someone who has never done anything.
He’s not interested in putting his hand up again and says things won’t change until politicians advocate for people who are infallible.
“Unless they’re willing to have that argument and win the argument, you’re going to continue to get pretty homogenous colourless candidates,” he says.
After Bornstein leaves, a couple sitting at a nearby table waves me over as I pay the bill.
They heard parts of the conversation and just happen to be avid rugby fans, but they’ve got a different view to Bornstein.
“Israel Folau was part of a team and when you’re part of a team you sign up to play by their rules for the good of everyone. If you can’t do that it doesn’t work,” they tell me.
It is a good point and one I’d like to hear rebutted. Turns out Bornstein came to the right place for an argument, he just chose the wrong table.
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