“Fed up with work, just quietly”

David Brodsky started his professional career in Brisbane’s music performance and education spaces where he owned and managed music studios. He explored his interests in psychology through quantitative research into music cognition and behaviour at Griffith University. After studying an MBA at Monash Business School, David worked as a research assistant at the Monash Department of Management for four years, sharpening his skills in HR data analytics through hands-on statistics projects in the field of organisational behaviour. Since 2020 to the current day, he has worked as a sessional academic in the Discipline of Work and Organisational Studies at the University of Sydney Business School, where he resettled to conduct research into workplace creativity. As part of this engagement, David teaches HR data analytics and evidence-based HR practice in the master’s program, as well as organisational leadership and team management within the undergraduate commerce program. He has also assisted the Director of the university’s Culture Strategy Division across various projects. David is soon to establish a new business a new business call HR Science see; hrscience.com.au

David Nikolas Brodsky[1]

Abstract: Quiet Quitting might seem a fleeting social media fad, or even an ephemeral workplace trend. However, there is much that lies beneath the surface, and if not understood and addressed appropriately, dismal outcomes can ensue for organisations and for those who sustain decent work. This article explores what Quiet Quitting entails, what causes it, and what lies at its ethical boundaries. Restoring staff engagement, motivation, and dedication demands bold responses that involve redesigning the employee experience, rebuilding a sense of community at work, and renegotiating the psychological contract.

A brief history

Quiet Quitting’s roots are not entirely clear within the literature. It has been reported that the concept was coined in 2009 by an American economist named Mark Boldger and was largely used to explain the “demonization of profit, entrepreneurship, and productivity” in Venezuela[2]. However, this does not reflect the true intentions of its agents or advocates, at least not recently. Its virulent propagation via social media (which largely explains why younger workers are overrepresented in its practice) was incited by the “Tang Ping” movement in China during April of 2021[3]. Tang Ping, which means “lying flat”, was the refusal of young people (almost exclusively) to exert such tremendous energies simply to participate in a career that was dispassionate toward human wellbeing. Management, politicians, and strategists looked upon this with disdain, often referring to it as “slacker culture”. However, lying flat was a reaction to an unsustainable work culture where employees were required to work between 70 and 100 hours per week. This work culture is known as “9-9-6” and refers to being at work from 9am to 9pm (at least), 6 days per week, although the particular start and end times and days worked are not fixed by definition. Lying flat was therefore an attempt to claim back some time to be “human”.

Like Tang Ping, when Quiet Quitting is practised en masse, it represents a collective effort of workers to communicate to employers that their work has become unhealthy (i.e., overly demanding, or subject to a toxic workplace)[4]. Another aim is to give individuals back some personal resources (to cope) through the abandonment of any tasks not specified in the job description or required of them according to their written employment contract[5]. Tang Ping goes beyond these two objectives by presenting individuals an avenue toward being able to pursue their passions and live beyond oppression[6] (although its effectiveness is thus far unproven and may be in doubt). Since Quiet Quitting does not involve the actual resignation of staff in the form of voluntary termination, this appears to be where the similarities end. However, Tang Ping’s role in influencing younger workers to quit quietly is rather straightforward: The sentiments toward work and workplaces changed during the pandemic and (for various reasons which this article is not purposed toward) resulted in “the great resignation” seen throughout the USA and, to a certain extent, Europe. The idea that work was not actually fulfilling dreams, and employers were not doing enough to meet the aspirations or reflect the moral ideals of their employees, created a condition where a refusal on the part of workers to exert so much effort looked attractive, and this was particularly true for people who could not (or should not) actually resign. Although, working an inordinate number of hours, week upon week, does not define the work experience of the Western world generally. Western workers saw instead an opportunity to reduce personal effort and restore their (emotional, physical, and mental) resources by putting in the minimum effort (and time) to simply retain their means of subsistence, and very little more.

That, of course, means not contravening the employment contract, not intentionally harming a colleague, and not dropping output to a standard low enough to put oneself in the firing line. This would constitute a slenderly adequate level of performance (if subject to a performance review) and, in most developed economies, a dismissal for this reason alone would be illegal. Of course, this does not apply under at-will employment agreements, especially in the USA. Even still, fed up workers will find the “break-even point of effort” (for example, by preserving particular social resources) required to keep their jobs, wherever that point may be.

What is really going on?

Despite Quiet Quitting’s buzzword status and recent popularity (however fleeting), judicious employers and HR practitioners should understand its psychosocial underpinnings—the discoveries of which are certainly not recent, nor are they mere buzzwords—as there are important implications for organisational culture and employee engagement. It seems quite clear from the outset that an employee’s Quiet Quitting is simply a disengagement from the workplace and/or the job, which is not untrue, but there are mechanisms that cause this disengagement and strategies toward reparation or restoration. Before this article embarks on this journey, the reactions in the Western world should be considered.

Proponents of Quiet Quitting espouse the benefits of personal care, restoration of energy (that might be harnessed toward actual career mobility), and the reprioritisation of one’s objectives in life. However, this comes at various costs to others and to organisations from a sociocultural perspective. There may also be unintended consequences for Quiet Quitters, as they often cause harm to their own working relationships. Such an outcome is not likely conducive to their career mobility after all. Although Quiet Quitters do perform as the job requires, they are disengaged from the workplace or their job by having lost all motivation to contribute in other ways. Some of those ways include unstacking the dishwasher in the office kitchenette, contributing to a co-worker’s birthday card and cake, turning up at a meeting (in person or virtually) where they felt they were not actually needed, asking the receptionist about their weekend…; or any such activity that demonstrates they are a human part of a workplace. This loss of motivation stems from the idea—misconception or not—that making these efforts does not profit them personally, but rather costs them the opportunity to concentrate those efforts toward other priorities. Some even believe that efforts beyond the job description are wasted entirely if they cannot see how they affect an organisation’s outcomes.

Opponents to Quiet Quitting not only believe that all workers should be contributing these extra efforts, but also perpetuate what they see as the socialisation of decent working culture. That is to say, “this is simply how we work together”, “this is how we make our workplace pleasant”, or “this is how we present unity”. Some go far enough to suggest that, if Quiet Quitters wish to restore their personal resources by denying their co-workers the niceties they deserve, they should probably resign in reality and take their indifference somewhere it will be tolerated. Opponents often see Quiet Quitters as selfish or lazy, and this reaction reflects that toward Tang Ping, but this reaction can be construed as indifference in itself, tending only to fuel contention.

It is important to consider what underpins behaviour, and that is generally accepted to be explained by motivation theories. The prevailing theory of motivation is Self-determination Theory (SDT) due to its comprehensiveness and clarity. The creators of this widely venerated theory state that “to be motivated means to be moved to do something” (p. 54)[7], and although that sounds elementary, the statement encapsulates the phenomenon so eloquently. Importantly, SDT delineates different types of motivation, which should not be misunderstood as different levels of motivation (even if they differ in their intensity to contribute toward self-determination):

“Autonomous motivation comprises both intrinsic motivation and the types of extrinsic motivation in which people have identified with an activity’s value and ideally will have integrated it into their sense of self. When people are autonomously motivated, they experience volition, or a self-endorsement of their actions. Controlled motivation, in contrast, consists of both external regulation, in which one’s behavior is a function of external contingencies of reward or punishment, and introjected regulation, in which the regulation of action has been partially internalized and is energized by factors such as an approval motive, avoidance of shame, contingent self-esteem, and ego-involvements. When people are controlled, they experience pressure to think, feel, or behave in particular ways. Both autonomous and controlled motivation energize and direct behavior, and they stand in contrast to amotivation, which refers to a lack of intention and motivation” (p. 182)[8].

Motivation does well in describing the impetus and likelihood of human behaviour, and while it does apply to working contexts, it only scratches the surface when exploring Quiet Quitting.

Emotional labour and OCBs

Many of the behaviours mentioned before (i.e., the ones that Quiet Quitters tend not to enact) may be explained by a construct known as emotional labour. This theory is also well established and describes various processes where emotional effort is expended in order to be agreeable, productive, or safe while at work. It is based on the premise that humans are different and so do not automatically match one another on an emotional level in any given context[9]. Examples of emotional labour include integrative emotions (e.g., being friendly, instilling a sense of goodwill), masking emotions (e.g., conveying authority, avoiding familiarity), and differentiating emotions (e.g., instilling unease in someone, such as an interrogation officer). The behaviour is further delineated into performances of surface acting and deep acting. Surface acting is where the expressor simulates emotions that they do not actually feel, whereas deep acting is the effort to actually experience the emotion that is wished to be expressed[10]. These two categories of behaviour are distinct because they have different effects on worker wellbeing, where surface acting drains one’s wellbeing as it usually involves suppressing one’s true emotions in an act of inauthenticity, whereas deep acting is an effort to bring oneself into emotional alignment and therefore improve one’s wellbeing[11].

The abandonment of emotional labour is simply one of the tenets of Quiet Quitting, albeit a prominent one. The main idea is that the positive outcomes of emotional control are linked to what most people regard as the requisites of a happy working environment, and this is often where the point of contention lies between Quiet Quitting’s proponents and opponents. But what of the more physical actions that one displays in the workplace, such as helping a new co-worker learn the ropes (thereby freeing up a superordinate’s time to concentrate on something else), or just rolling with the punches (without complaining about trivial matters)? These behaviours describe more than mere manners and human decency, and the scientific field of organisational behaviour categorises many such actions (including emotional control) into what are known as organisational citizenship behaviours (OCBs). OCBs can enhance (and stabilise) productivity, free up resources, help to coordinate across work groups, help the organisation attract and retain talent, and assist in adapting to changes in the working environment, among other things[12].

Although OCBs can be linked to organisational performance, they can be difficult to attribute and measure, as they often require a team effort, or behaviours may start to go unnoticed or unthanked when they become habitual and commonplace. Of course, being credited with having demonstrated OCBs does not usually provide the impetus to enact them (although, for some it may). Some perhaps even display OCBs to avoid punishment. On the other hand, affective outcomes have been linked to OCBs in the form of job satisfaction, and this relationship has been shown to run in both directions[13]. Some OCB researchers draw parallels between the workplace and ordinary society to say that organisational citizenship can (or should) function much like civil citizenship in that members of society have both rights (protection, agency, and economic benefits) and responsibilities (obedience, loyalty, and participation) when it comes to their status as a citizen[14].

Ethical considerations

Accepting that OCBs bring such important value to an organisation and its people, perhaps it seems so wrong for an employee to refuse to enact them. Remembering that the behaviours in and of themselves may not form any part of the employment contract, it might be difficult to prove that a Quiet Quitter has effectively cost the organisation in a way that warrants their dismissal. This author must leave such judgments to those qualified. There are, however, ethical considerations that both opponents and proponents of Quiet Quitting might heed.

In particular, the elusive “work–life balance” seems to require the weighing up of self-interest and service to others (at work). One may argue that some industries require self-interest in their workers in order to perform (e.g., financial services, sales), however other industries require service to others to be elevated above self-interest (e.g., health care, education, social work). For example, in contexts where growing in individual competence equates to a future improvement of service to others, then Quiet Quitters will fall short when they refuse[15]. Ethical boundaries might often be maintained automatically by virtue of the fact that certain industries tend to attract certain types of people who have particular sources of motivation, and these motivations often dictate a sort of balance workers may pursue, thus the behaviours they choose to enact, which may then link to satisfaction in one’s work (provided the outcomes match the goals). Another ethical shortcoming of Quiet Quitting may lie in the worker–client relationship—where an employee may be expected to do all they can for the client, and thus violate this accord[16].

Quiet Quitting may be deemed to maintain integrity, particularly where self-care is required to perform and/or serve others. Setting boundaries for work is a demonstration of value placed on work–life balance, and a healthy working culture dictates this should be exemplified by organisational leaders. Implied in this concept is the fact that leaders should also be demonstrating how and when those boundaries are to be set. In instances where work requirements demand too much of employees (such as role overload or unreasonable overtime), Quiet Quitting is intended as a form of social justice[17]. Whether it appears this way or whether it is organised appropriately are other matters for consideration. Indeed, when overwork is evidenced appropriately, an organisation’s leaders must take action to trim down processes or requirements, thereby demonstrating care for staff. This action might be enough to cause those who have strayed to return to the flock. However, whether this does or does not result, it is still a good idea for leaders to show good leadership and be the first to act with benevolence.

Unspoken agreements

So, if Quiet Quitters are breaking rules, then what rules are they if not written into the employment contract? This becomes clear when the focus is on the costs of the behaviour. Where Quiet Quitters are producing social and emotional costs for others, this is because they are breaking the “psychological contract”, which entails individually-held beliefs surrounding a mutual accord. In practical terms within the workplace, this usually takes the form of unspoken good faith (not necessarily an expectation) that, at the very least, the terms of employment will be upheld on both sides. Moreover, there exists a mutual understanding about how the parties are (socially) obliged to interact, which is usually based on somewhat established patterns of having seen these responsibilities fulfilled[18]. These are implied, and not written, promises. It stands to reason, then, that when social costs are transferred from one side to the other without prior agreement, a breach can be felt. This is especially true when employers place unreasonable demands on their staff. It is less felt in the case of a few “indolent” workers because there are often self-motived organisational citizens who are ready to pick up any slack and bolster their own social capital.

However feathery or brittle the psychological contract may sound, the fact is that organisations require them to thrive because survival (and success) depends on the agreements of people to work together toward a common mission[19]. Due to the fact the psychological contract is a purely mental model of the employment relationship, it often proves very reliable in cases where efficient action is needed and experience or processes may be lacking. However, this fact also makes it difficult to verbally define and to hold someone to in any official capacity (or to prove that someone ever lost sight of the common mission). A simple example of this is where work carried out through a given period (say, two weeks), is not remunerated until the end of that period. Even though the employer is contractually obliged to uphold their end of the bargain, it is the belief that they will do so that provides motivation for staff to perform in their work during the time lag (the word “motivation” in this instance does not refer as much to extrinsic rewards as it does to “reason”).

COVID and community

There may be reasons the psychological contract has broken which are not the fault of anyone—other things for which blame can largely be attributed to the COVID-19 pandemic. The separation and isolation of employees, including the subsequent (and perhaps protracted) work-from-home experience, did much in hurting )all feelings of social connectedness and hindering opportunities for relationships to form amongst new colleagues. A May 2021 McKinsey report showed that employers understood the disconnect would combine with employees’ re-evaluating of their connection with work to result in staff disengagement and attrition[20]. This was correct—particularly for the USA and parts of Europe. Hybrid working arrangements were already being devised, despite the unclear future (now present), however employers were more ready for it than staff were. Yet this represented just another fracture in the psychological contract—a fracture that could be epitomised by Elon Musk’s famous ultimatum to Twitter employees (to return to the office or seek employment elsewhere[21]). Although COVID in itself did not break the psychological contract, the separation it created certainly did erode it, perhaps to the point where the next straw would be the one to break the camel’s back.

With a zeitgeist defined by uncertainty, volatility, and fear, it seems reasonable that people would place work at a lower priority than at earlier times. If work no longer served motivations, and social connectedness had cracked, then very little faith might be placed in the psychological contract, and any remaining motivations to contribute to a structure that was barely hanging on would simply disappear. Despite the pessimism of this logic, its acknowledgement welcomes a crucial opportunity to re-establish a sense of community at work through coordinated social bonding, thereby rebuilding the psychological contract and, as a consequence, realising the multitudinous benefits of OCBs.

A brave new world

Rebuilding community requires setting good examples of OCBs. A study of 687 frontline nurses showed clear evidence for the positive outcomes that social support from within the workplace has on reducing staff intentions to disengage from their jobs[22]. This workplace example tells a lot because nurses were not only overstretched due to waves of sick patients, but they were also overloaded with extra compliance and safety protocols on top of their own anxieties toward catching the virus due to sheer proximity. In the study, social support was defined as the extension of assistance and comfort toward staff (clear OCBs) and was measured by nurses’ directly-reported perceptions of having received it.

Rebuilding community also requires crafting safe spaces for staff to share their difficulties and needs to reconnect, as well as actively listening (and not merely parroting) employee concerns when asking them to return to the office[23]. Displays of honest vulnerability from leaders can also help build psychological safety in employees. Also important when rebuilding community is that those who had never quietly quit do not deride those who did so in the past, as this would cause further division. Instead, motivators to re-engage (perhaps in the form of psychological rewards, such as praise and appreciation or greater autonomy) should be set to help establish a new standard of workplace contribution. Certainly, rewards for those who never quietly quit may go down well, but this should be done tactfully so as to not create “quiet criticism”.

Rebuilding engagement requires redesigning the employee experience. This process entails listening to what people value (broadly), and this is rarely to do with being paid more. Rather, staff want to see their sense of control restored through a renewed ability to influence outcomes at work [24]. Design-thinking mythology, human-centred design, or high-involvement management strategies can be powerful tools to initiate emergent change processes and, when enacted, demonstrate to employees that their own ideas have indeed shaped the return-to-work journey. This demonstration is important because autonomy is positively associated with engagement, which is in turn positively associated with trust[25]. Other useful strategies to build engagement include providing attractive opportunities for development and career mobility, ensuring that staff are appropriately equipped and trained, having effective (safe and responsive) feedback processes in place, enforcing a reward structure that captures the imagination of the workforce, and promoting strength in a good working culture wherever possible[26].

Renegotiating the psychological contract requires nothing short of good leadership. When upholding past promises is proving arduous, employers and staff must work together to understand the shared terms and meet the obligations of their psychological contract[27]. This is particularly vital while hybrid modes of work locality prevail. Some methods may include the delivery of clear and positive messaging around the organisation’s values and mission (bear in mind that doing so may cause short-term hurt by separating the sheep from the goats); provide accessibility, diversity and adaptability in the working environment; promote wellbeing, innovation, and sustainability[28]; exchange apologies and forgiveness (both ways) for breaches of the psychological contract[29]; and avoiding denial, blame, and apology/excuse combinations when addressing any breaches[30].

All the way along the journey of rebuilding community and redesigning the employee experience, it is critical that organisational leaders consistently demonstrate that these new obligations are being met (this may include psychological rewards for staff who uphold their end) if there exists a best way to strengthen the psychological contract once again. But when it has been restored—and hopefully to a point far stronger than it ever was—the workplace will be teeming with good organisational citizens.

LAST WORD 

mentor;n An experienced and trusted advisor or guide; a teacher or tutor. A word taken from classical Greek character, Mentor  who was the guide and adviser of Odysseus’ son Telemachus.

As a barrister now in continuous practice for over forty years I have had many other mentors and I believe have acted as a helpful mentor to others. Such has been possible by being a member of chambers. One of the many ravages of Covid was for a while the need to work remotely on a computer screen. Writing in the December 2022 edition of Quadrant Lord Sumption saw the lockdowns as an assault on our liberties by authoritarian governments. He wrote the following ;

“ It is not simply the assault on the concept of liberty that matters. It is the particular liberty which has been most obviously discarded, namely the liberty to associate with other human beings. Association with other human beings is not just an optional extra. It is not just a leisure option. It is fundamental to our humanity. Our emotional relationships, our mental wellbeing, our economic fortunes, our entire social existence is built upon the ability of people to come together. That is why I regard lockdowns as a sustained attack on our humanity.”

Once the lockdowns were over it seems that some things will not return to pre-Covid ways for which there are some benefits and some detriments. Working remotely and from home does have some advantages. That benefit however needs to be carefully managed so as not to lose the human contact with one’s professional colleagues. This is particularly so in barristers’ chambers. Over the years I have learnt a lot from my colleagues from casual conversation about cases, precedents and the idiosyncrasies of judges and other lawyers. The opportunity to participate in such random conversations is severely curtailed by working from home.

In a recent book by Edward Slingerland, Professor of Philosophy at the University of British Columbia,  entitled “DRUNK , how we sipped, danced and stumbled our way to civilisation” the following is stated;

“ This book was written in the midst of the of the Covid pandemic. It will take years to understand the various ways in which this crisis may have negatively impacted innovation. More obvious and dramatic factors, like the stress of caring for sick loved ones or homeschooling children, clearly slashed productivity and narrowed one’s focus. Less obvious, perhaps, is the way in which the widespread and abrupt transition from in-person meetings to Zoom and Google Hangouts has changed the way people talk and think. Wide-ranging chats over a few beers, sprawling over an hour or two, have been replaced by shorter video meetings focused on a specific set of agenda points. In this artificial medium, people have trouble naturally interrupting one another or smoothly navigating shifts in topic or speaker. This is one of the ways in which the Covid crisis, like American Prohibition, might provide an excellent natural experiment demonstrating how meeting in person, often over alcohol, enhances both individual and group creativity .”

Over my long career I have gathered knowledge, formed friendships and developed my emotional intelligence at Friday night drinks in chambers, at lunches and particularly at dinners on country court circuits with other lawyers including the judge. Such lessons are not readily available remotely on a computer screen.

The Australian Bureau of Statistics released figures regarding trade union membership in December 2022. It showed that trade union membership has generally declined since 1992. From 1992 to 2022, the proportion of employees who were trade union members has fallen from 41.1% to 12.5% ( 45.5% to 11.4% for men and 35.9% to 13.6% for women). It is difficult to see how this decline can be slowed. If not for the trail commissions from industry superannuation funds many unions would have gone into liquidation. The reason for this decline can be debated. It may a societal issue about people not joining or leaving hitherto strong orgnisations, such as the churches. My hunch is that the process of amalgamations of unions during the 1980s caused a loss of a sense of belonging to one’s craft union or guild. This is particularly so in large unions of disparate and ultimately antagonistic divisions, see the impending split up of the Construction Forestry Maritime Mining and Energy Union.

With raw union membership numbers in  2022 of 1.4 million  there are probably more registered netball and soccer players in the country.

Jeffrey Phillips,SC

State Chambers ,

Sydney

LAST WORD

“Mortal coil” is a poetic term for the troubles of daily life and the strife and suffering of the world. As an expression, it most famously found in Hamlet’s soliloquy,

”To be or not to be,that is the question….

For in that sleep of death what dreams may come,

When we have shuffled off this mortal coil,

Must give us pause-there’s the respect

That makes calamity of so long life…….”

In April this year a giant of the industrial and personal injury world shuffled off this mortal coil, The Hon Dr Frank McGrath AM OBE, Chairman of the NSW Workers Compensation Commission and from 1984 to 1993 Chief Judge of the Compensation Court of New South Wales. The Chairman as he was colloquially known in workers compensation circles was born in Birkenhead, England in 1921. His father, James, a shipwright and mother Mary, a tailoress emigrated to Australia with their only child in 1924. After attending Canterbury Boys’ High School ( John Howard’s alma mater) Frank completed a BA (Hons) in History, with the University Medal in 1942, later his MA and LLB at the University of Sydney. Having originally trained as a teacher, unable to get work on account of wartime restrictions he became a blacksmiths’ striker at Mort’s Dock in Balmain. McGrath became a member of the Federated Ironworkers Association(FIA)  in which a huge struggle for control was in full swing between Communist Party and non-communist factions of which he was a member of the latter. Violence on the waterfront was commonplace.McGrath was assaulted by the communist organiser, Arthur Olive who served twenty days gaol rather than pay ten pounds compensation to McGrath( perhaps when he gained an early appreciation of damages for personal injury).

However, McGrath’s legendary status in the Cold War environment of the trade union world came when he was working as a solicitor for Carroll & O’Dea which was acting for union leader Laurie Short. Short had brought proceedings to quash the election results in the FIA on account of alleged electoral fraud. Though Short had Eric Miller, KC and John Kerr as his barristers the breakthrough in the case was when McGrath noticed something strange about the ballot papers which were votes for the communists as compared to the votes for Short. The ballot papers had not been printed by the Government Printer but by a small firm which employed a number of members of the Communist Party, The communists votes had a preponderance of indentations which compelling suggested that a voter had a plie of ballot papers of the same sort ,which he or she worked through voting one by one indenting the paper underneath. No such indentations were found on the votes for Short. Justice Dunphy overturned the result of the election. In time the Communists who controlled this key blue collar union were routed. Short and his right-wing allies won the union which gave important votes to the right wing of the ALP. In the days of lucrative common law and compensation work for workplace injuries one would have thought that Carroll & O’Dea would have reaped the riches of this success. However,  Short, an ex-Trotskyist was good friends with another former supporter of Leon Trotsky, Jim McClelland.  His law firm got the work and benefited from the ‘rivers of gold’ for decades by doing the workplace damages claims for injured members of the FIA. McGrath went to the Bar and practiced from Fourth Floor Wentworth Chambers.

During his long career on the Bench McGrath was the model of civility to counsel and the injured workers. At his retirement sitting the Hon Michael Kirby described McGrath as ‘a just and accurate judge’ and one of his mentors.

In retirement at the age of 79 McGrath completed his PhD. It was published as a book, The Framers of the Australian Constitution ,1891-1897:Their Intentions, which Professor David Flint described in his foreword as ‘a significant contribution to our understanding of the interpretation of the Australian Constitution.’

To return to and paraphrase Hamlet , McGrath was not taken down by ‘the slings and arrows of outrageous misfortune’ but by taking up arms against a sea of troubles by opposing them he brought them to an end.

McGrath reached 100 years of age.

Two other judges who have recently departed the same coil with whom I had dealings with during my early days at the Bar were Judge Ray Burke of the Compensation Court of New South Wales and Justice Barrie Hungerford, QC of the Industrial  Commission of New South Wales.

Ray Burke spent most of his professional career in matters concerning workers compensation law and became an unrivalled expert in it. He died this year aged 93 years. In a dinner at Tattersall’s Club in 2001 to mark his retirement from the Bench the Honourable Michael Kirby AC CMG spoke. He recounted how his first job as an articled clerk was with the firm M A Simon and Co in Hunter Street, Sydney of which Burke was a partner. Burke’s and his other partner Maurie Simon were on the Labor Council of NSW panel for advice and representation for injured workers. Kirby stated of Burke ‘Amongst his many saintly qualities, one which  I could not honestly attribute to Ray Burke was trappist silence or loveable patience.’ He also informed the dinner that ‘Neither Ray Burke nor M A Simon were quiet retiring types…..Each seemed constantly to be looking for a reason to shout and scream at the other.’

That was refreshing to read that because I thought it was me who caused his Honour to lose his temper in court. I have vivid memories of pejorative comments from the Burke Bench about my ability and competence as counsel.

Once I  announced the resolution of a case on day three of its hearing.

The following is an accurate paraphrase of the transcript.

PHILLIPS: Your Honour, may I mention the fourth matter in your Honour’s list in which I appear for the applicant?

HIS HONOUR: Yes, Mr Phillips.

PHILLIPS: I can happily inform your Honour that that matter has settled.

HIS HONOUR:  Settled?

PHILLIPS: Yes, your Honour.

HIS HONOUR: Settled! After you have wasted three days of court time and three days of my life?

PHILLIPS: Settlement was no doubt brought about by your Honour’s helpful comments throughout the hearing.

HIS HONOUR: If only you had listened more closely to what I had said to you on the morning of day one!

However, with Judge Burke, known endearingly as “Mad Ray”, I soon realised his apparently acerbic comments were not personal but in his own irascible way meant to speed things along and be helpful to those who were listening.  His true ire was reserved for members of the Court of Appeal and the High Court of Australia who dallied on appeal into workers’ compensation law whom he believed mucked up its symmetry and empathy.

Long after his retirement some of Burke’s decisions are still treated reverentially as authority, in particular, his explanation of what is ‘reasonable medical treatment’ for which the insurer is liable, see Rose v Health Commission (NSW) [1986]NSWCC2: (1986) 2 NSWCCR 32 at 42.

—————————-

Barrie Clive Hungerford,QC was born in 1937.He attended Trinity Grammar at Summer Hill.  He graduated from Royal Military College Duntroon in 1958. After a few years service in the Australian Army he worked as an industrial officer of the then Metal Trades Industry Association. He studied law and joined the Bar in 1976 and was appointed one of Her Majesty’s Counsel in 1988 and one year later was appointed a judicial member of the Industrial Commission of New South Wales, later to be the IRC of NSW . Upon retirement from the IRC  Hungerford became an acting judge of the District Court of New South Wales. Although coming from the ranks of the employers on the bench Hungerford often found in favour of the workers. His decision in  Starkey v Mitchforce (2000) 101 IR 177 was probably the high water mark of the jurisdiction of the Industrial Relations Commission in its unfair contracts jurisdiction. That case related to a lease agreement for hotel premises based upon on the provision giving jurisdiction to the IRC to re-write a contract ‘whereby a person performs work in any industry’. The decision to vary the hotel lease was appealed to the Full Bench of the IRC which refused leave, see Mitchforce Pty Ltd v Starkey  (2002) 117 IR 122. The Court of Appeal on further appeal was not so minded, Mitchforce  Pty Ltd v Industrial Relations Commission of NSW  (2003) 57 NSWLR 212. Chief Justice Spigelman at 226 said that ‘The lease in this case stands alone as a lease of property’.Though it may have ‘contemplated’ work that was not its ‘purpose’ so the worker protection provisions of s.106 of the Industrial Relations Act (NSW) were not enlivened.

Thereafter closer attention to the extent of the jurisdiction exercised by the IRC was given by the Court of Appeal and the High Court.

The NSW IRC’s jurisdiction concerning unfair contracts was specifically repealed in 2006  by the WorkChoices legislation using the Corporations power of the Australian Constitution.  

Barrie was a committed smoker and drinker of full strength Coca Cola.

“ To sleep, perchance to dream—ay, there’s the rub :

For in that sleep of death what dreams may come….”

Jeffrey Phillips, SC

State Chambers 

LAST WORD

quarantine ; (noun) a period of time when an animal or person that has or may have a disease is kept away from others to prevent the disease from spreading. Its origin is mid 17^th century: from the Italian quarantina ‘forty days’; from quaranta ‘forty’.

In the past year there has been no more used word, a word in every daily newspaper, every radio and television news bulletin. The concept is not new and has been well understood.

In Sydney Harbour the North Head Quarantine Station was established in the early nineteenth century to protect the inhabitants of the fledgling colony of New South Wales from ship borne disease. Those who might be infected were kept long enough until it was considered safe to release them. Just like today quarantine was said to be bad for trade and we have quarantine hotels sheltering recent arrivals from hot spots of the COVID-19 epidemic.

Strange to relate, the  North Head Quarantine Station closed in the early 1980s  is now used as a hotel and conference centre.

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Workplace Review in previous editions in 2020 has dealt with how the epidemic has changed the nature of work and the courtroom. One of the epidemic’s offshoots, with people working at home, has been the keen acquisition of pets particularly dogs. I took delivery of a new puppy in January this year,  Boris the Bichon Frise. He is a challenge but a complete delight. On walks in the local streets I have met many new neighbours, found dog friendly cafes and restaurants. Boris has been very popular sitting at the bar of the local with a bowl of water while I have a Resch’s draught.

As the effect of the epidemic wanes many dogs will be left at home alone, some will be taken to work.

A big recognition for an honest, brave trade unionist and a visionary who helped save much of the heritage architecture of Sydney.

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Staying on the topic of the recently deceased the London Times recently breached the Latin maxim de mortuis nil nisi bonum in its 13 March 2021 obituary of English High Court judge Sir Jeremiah Harman. It started with his nickname “Harman the Horrible” said to be one of the most unpopular judges of recent times. The obituary said, inter alia,” His unworldly ways, bad manners, and refusal to curb the  worst excesses of his capricious personality had served to reinforce an image that had burdened the High Court’s Chancery Division since the publication of Charles Dicken’s Bleak House.”He once kicked a taxi driver whom he mistook for a photographer. He gained another soubriquet ‘the kicking judge’.

Australia has not been immune from having martinets on the Bench, thankfully there has only been a few in that category.

A former Australian High Court judge, Sir Hayden Starke has not been treated well by history. Not so much for the way he treated counsel but for the way he treated his colleagues. High Court biographer Graham Fricke writing in the Oxford Companion to the High Court of Australia (Oxford University Press 2001 p.638) said “It was only when McTiernan and Evatt joined the  Court in 1930 that Starke’s relations with his colleagues settled into sustained and undisguised hostility.”Starke once described his fellow judges as ‘worms not men’, He described Evatt as ‘Dixon’s parrot’.

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The above piece referred to the Oxford Companion to the High Court of Australia,(the Companion)  a book given to me by a colleague for my fiftieth birthday. It is one of those wonderful books one can have close at hand in chambers to dip into when someone is running late for a conference or a case has been unexpectedly adjourned for the day. An interesting aspect of the book  is its characterisation of the Court as led by a particular Chief Justice, e.g., the Gavan Duffy Court, the Latham Court or the Barwick Court. Leslie Zines writing of the Dixon Court ( p220), “During this period, the Court’s prestige was very high, not only in Australia but in other common law countries.Lord Denning described it as the Court’s ‘Golden Age’ and declared it had established a reputation that ‘overtopped even that of the House of Lords’.It was referred to by the Victorian Bar Association as the ‘finest court in the English-speaking world’.The authority of Dixon over the Court was immense, made more significant by the presence of other Justices, particularly Fullager and Kitto.’  In contrast Gavan Duffy was Chief Justice for just under five years,of him Graham Fricke notes that in ‘only 31 reported cases did Gavan Duffy express his own view. In 21(cases) his judgment was only one or two sentences, in another five it was less than a page. Only in the five remaining cases –an average of one a year –did Gavan Duffy give a full judgment;in three of those it was less than three pages.His longest judgments each in dissent .. about three pages..”

How history, and a future editions of the Companion will judge the Kiefel Court is yet to be determined. Chief Justice Kiefel has led the court since January 2017 and was appointed as a justice of the High Court in September 2007. One problem future biographers and historians will face is scant material in judgments which bear her Honour’s name. Collegiality is a fine thing in all enterprises but in legal analysis not much can be gained as to who is the driving intellectual force (unlike the Dixon or Barwick courts)  by judgments of the whole court or decisions which have other justices names appended to them.

Jeffrey Phillips, SC

State Chambers

LAST WORD

calculus; n [orig. Latin meaning a small stone used in reckoning with an abacus] a particular method or system of calculation or reasoning.

What do a woman hit by a cricket ball in 1947 while standing outside a cricket ground in Manchester[1], damage by fire to two ships in 1951 in Mort Bay Sydney Harbour[2] and a water skiing accident in Tuggerah Lakes[3] in 1967 have to do with the COVID-19 pandemic?

These three cases, two from the Privy Council and one from the High Court of Australia, examine what does a reasonable person do in response to risk.  Each of these cases reveals an attempt to identify a fair response and how the common law has developed.

In Bolton v Stone, Lord Porter said:

“The hitting of a ball out of the grounds is an incident in the game and indeed one which the batsman wished to bring about, but in order that the act may be negligent there must be not only a reasonable possibility of it happening, but also injury being caused.  … It is not enough that the event should be such as can reasonably be foreseen; the further result that injury is likely to follow must also be such as a reasonable man would contemplate, before he can be convicted of actionable negligence.  Nor is the remote possibility of injury occurring enough; there must be a sufficient probability to lead a reasonable man to anticipate it.  The existence of some risk is an ordinary incident of life, even when all due care has been, as it must be, taken.”[4]

The evidence in the trial below was that only six cricket balls had been hit out of the ground onto the adjacent road in twenty eight years. However, the road was not greatly frequented and no previous accident had occurred.[5]  The cricket club was not found to be negligent.

In Overseas Tankship (UK) Ltd v The Miller Steamship Company Pty Ltd & Anor(Wagon Mound No.2)r[6], Lord Reid, delivering the judgment of the Board of the Judicial Committee[7], reached a different result to that found for the unlucky Miss Stone as she walked by the cricket ground in Manchester. The facts in Wagon Mound No 2 concerned a fire on two ships on Mort Bay in Sydney Harbour after the discharge of oil into the harbour by another ship.  His Lordship stated thus:

“If a real risk is one which would occur to the mind of a reasonable man in the position of the defendant’s servant and which he would not brush aside as far-fetched, and if the criterion is to be what that reasonable man would have done in the circumstances, then surely he would not neglect such a risk if action to eliminate it presented no difficulty, involved no disadvantage, and required no expense.”

The severely injured water skier on Tuggerah Lakes who strayed into shallow water despite an ambiguous sign stating  ‘Deep Water’ (but where?), led Justice Mason in Wyong Shire Council v Shirt, with the majority, to formulate what has been referred to since,  as the Shirt calculus:

“In deciding whether there has been a breach of the duty of care the tribunal of fact must first ask itself whether a reasonable man in the defendant’s position would have foreseen that his conduct involved a risk of injury to the plaintiff or to a class of persons including the plaintiff.  If the answer be in the affirmative, it is then for the tribunal of fact to determine what a reasonable man would do by way of response to the risk.  The perception of the reasonable man’s response calls for a consideration of the magnitude of the risk and the degree of the probability of its occurrence, along with the expense, difficulty and inconvenience of taking alleviating action and any other conflicting responsibilities which the defendant may have.”[8]

Justice Mason went on to say importantly:

“It is sufficient for me to say that the jury’s conclusion that there was a foreseeable risk of injury was not unreasonable and that there was a conclusion which was open on the evidence.  In saying this I am mindful that the foreseeability of the risk in the instant case is a question on which minds may well differ, as indeed they have done.  It is not a question which a judge is necessarily better equipped to answer than a layman.”[9]

This now leads to the connection between the development of these legal principles and the response to the current COVID-19 pandemic. Clearly there is a foreseeable risk of infection across the world and various countries and states have taken different measures in response to the risk.  The Economics Editor of The Australian, Adam Creighton, writing on 5 October 2020,  strongly opposes the actions of the ‘lockdown zealots’ . He points to those countries which have taken different measures to those taken across Europe, many US States and of course in the state of Victoria.   Creighton questions the lockdown decision as necessary to divert disaster, the effect of which has been to  “crush commerce by fiat and suspend civil liberties indefinitely”. Without reference to it he in effect relies upon the Shirt calculus in asking whether such actions were necessary in response to a condition which for those who catch has a survival rate for people under seventy years of 99.9% (that is if they get the virus).

Creighton is particularly critical of the actions of the State of Victoria. He questions whether the severe economic lockdown in that State, including curfews, arrests for Facebook posts, not straying more than a 5km radius from one’s residence and mandatory enforcement of face masks, are reasonable responses to such risk. One also wonders whether the draconian measures implemented and enforced by the Victorian government were in response to its failure of the hotel quarantine program which appears to be the fons et origo of that State’s pandemic crisis.

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No doubt the pandemic and responses to it will spurn much litigation probably on a ‘class action’ basis. Claims in negligence will perhaps start with the Ruby Princess fiasco and develop more significantly to target the Victorian hotel quarantine failure. In the latter potential litigation, particulars of negligence could include, failure to use experienced security guards, failure to train security guards and failure to supervise them, et cetera. Economic claims for loss of revenue by businesses because the lockdown measures went too far are far more problematic. More problematic still are claims involving so-called ‘industrial manslaughter’

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A couple of years ago in Workplace Review[10], I reviewed journalist, Alex Mitchell’s, book “Come the Revolution”.  Mitchell had worked as a journalist both in the UK and in Australia at various times working for Rupert Murdoch.  Mitchell must be Australia’s most active and well known Trotskyist

In his website, also called Come the Revolution Mitchell has recently written about the attempted assassination of Labor leader Arthur Calwell during the height of the 1966 Federal election campaign.  A disturbed young teenager, Peter Kocan, shot Calwell as he was sitting in the front seat of a Commonwealth car after a campaign meeting held at, of all places, the Mosman Town Hall. Kocan was chased down the street by some Labor supporters, caught and handed over to the Police. Bob Gould, another famous Australian Trotskyist, was originally attributed to having chased Kocan down the street and wrestling him to the ground. However, Mitchell notes that Gould says the credit for that manoeuvre was former judge of the NSW Industrial Relations Commission and Court, Wayne Haylen, who ran after and actually tackled Kocan. Mitchell writes that Haylen, the son of a left wing Federal MP Les Haylen, had been on the Industrial Relations Commission bench for about 12 years.  He recalls the young Haylen burnt his National Service Registration Card at a rally in Belmore Park in 1966.  My memory of Haylen as a barrister and judge was of a person of great intelligence and mischief.   His sense of mischief was made manifest one day when he was appearing in a case, before Justice Michael Moore in the then Australian Industrial Relations Commission, which involved a demarcation dispute in the telecommunications industry.  During a rather long, meandering cross-examination by opposing counsel after lunch on a Friday, Haylen to show his ennui ostentatiously at the Bar table read a racing guide called ‘Punters Pal’ much to the chagrin of the presiding judge.   Mitchell notes that in retirement  Haylen continues his contribution to the racing industry.

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Still dealing with the New South Wales Industrial Relations Commission and its now abolished Industrial Court, it is with great sadness I note the passing of two great lawyers who adorned that Bench, both of whom died within a few days of each other in July of this year.  First, that of Russell Peterson QC (1944-2020) and secondly, that of Brian Hill QC (1928-2020).

Peterson was called to the Bar in 1974 and was appointed Queen’s Counsel in 1986.  He was a judge of the Industrial Court and Presidential Member of the Commission from May 1992 to August 2004.  Prior to his appointment he had been a Deputy President of the Australian Industrial Relations Commission.  Over the years I had a number of cases against Peterson and also in some in which he led me.

I vividly recall one case before Justice Frank Liddy in Grafton. On the day of hearing I missed the only morning flight to Grafton from Sydney. Being acutely aware of Liddy’s martinet-like reputation I knew somehow I had to get to Grafton that day. Undeterred, I managed to catch a plane to Armidale with the intention of driving across to Grafton by hire car. A half an hour after take-off the captain announced that Armidale was fogged in and the plane had been diverted south-west to Tamworth, much further away from Grafton, not an easy drive by car. Upon landing in Tamworth, operating both with fear and ingenuity I knocked on a hangar door and found a pilot with a light plane whom I hired to fly me to Grafton.  He flew me to Grafton, only to find that Grafton Airport was also now fogged in. As we circled hoping for a break in the low cloud the pilot said “I know there’s a little strip south of Grafton.”  Shortly thereafter we dove towards this strip only to see a cow grazing next to it. , After a few flyovers  a lady coming running out of a nearby house and shooed the cow away. A taxi duly delivered me to court house at 10:15am where I met a hitherto unknown and very nervous instructing solicitor. The case before Liddy against Peterson for the respondent duly started  at 10:30am.  The whole first day was spent with criticism and thunderbolts hurled at me from the Bench. No offers to settle from the respondent   My case finished early the following morning perhaps observing the reaction by Bench to it and me in tatters. The Grafton solicitor thought he had made a huge mistake briefing this unknown, hapless counsel whose every words seem only further to enrage the judge.

Peterson rose to present his case and then his Honour,a World War Two veteran turned with rapid fire his judicial Bren gun at Peterson. Perhaps there was method to Liddy’s behaviour as the case was settled in favour of the applicant for good value and costs before lunch.

Brian Hill came to the Bench after a long distinguished career at the Bar commencing in in 1956 (18 months after I was born).He was appointed Queen’s Counsel in 1974.  Hill was appointed to the Industrial Relations Commission and Industrial Court on 1 August 1988 and served until his retirement in August 1998.  Both Hill and  Peterson, were a joy and delight for counsel to appear in their courts.

Like Haylen, Hill had a mischievous sense of humour. In a case involving the infamous Secretary of the New South Wales Branch of the Federated Storemen and Packers’ Union, Frank Belan his Honour’s wit was on show.

Taken from the transcript.

KENZIE, QC with KIMBER; Your Honour, we require Mr Belan for cross-examination.

HIS HONOUR; OK, where is Mr Belan, Mr Whitlam?

WHITLAM, QC; Mr Belan is not here today.

HIS HONOUR; Why is he not here?

WHITLAM, QC; He is unwell and cannot come to court today.

HIS HONOUR; How is that?

WHITLAM, QC: Unfortunately, your Honour Mr Belan has been bitten by a spider.

HIS HONOUR; How’s the spider?

Jeffrey Phillips, SC

State Chambers.