Mr Colin McKerlie v Private Fleet Pty Ltd
[2025] FWCFB 228
•13 OCTOBER 2025
| [2025] FWCFB 228 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.604 - Appeal of decisions
Mr Colin McKerlie
v
Private Fleet Pty Ltd
(C2025/8082)
| DEPUTY PRESIDENT SLEVIN DEPUTY PRESIDENT GRAYSON COMMISSIONER CRAWFORD | SYDNEY, 13 OCTOBER 2025 |
Appeal against decision [[2025] FWC 2185] of Commissioner Sloan at Sydney on 28 July 2025 in matter number U2025/8790 - permission to appeal only – recusal application – application refused – application for orders for production - appeal proceedings by way of rehearing - application refused.
Mr Colin McKerlie (Appellant) has lodged an appeal under s 604 of the Fair Work Act 2009 (Act) against a decision of Commissioner Sloan to dismiss an application for an unfair dismissal remedy on jurisdictional grounds (Appeal proceedings). Permission to appeal is required. The matter was set down matter for hearing on Tuesday 7 October 2025 before this Full Bench of the Commission to consider whether to grant permission.
At the commencement of the hearing Mr McKerlie made two applications. A recusal application seeking that we disqualify the presiding member from participating in the Full Bench and an application for orders that the Respondent produce documents. This decision concerns the recusal and the application for orders for production.
Recusal Application
Background
On 1 October 2025, the Appellant made an application to the presiding member of this Full Bench asking that he recuse himself from further involvement in the Appeal proceedings or any other matter in which the Appellant is a party. The Appellant provided written submissions in support of his application and relied on various documents.
In those submissions the Appellant asked the presiding member to disqualify himself from sitting in the Appeal proceedings on the basis of a decision in another matter McKerlie v Fat Prophets[2024] FWC 1939 (earlier proceedings). In that matter the Appellant’s application for an unfair dismissal remedy was dismissed on jurisdictional grounds. The earlier proceedings are unrelated to these proceedings.
On 3 October 2025 the presiding member issued a non-published decision declining to recuse himself and advised the Appellant that if he wished to press the recusal application before the Full Bench this could be done at the commencement of the hearing on 7 October 2025.
Following the presiding member issuing the decision the Appellant sent further correspondence indicating the application would be pressed and enclosing:
a.a previous complaint to the President of the Commission regarding the decision of the presiding member in the earlier proceedings;
b.Enclosing various Facebook posts, internet searches, online opinion pieces and newspaper articles regarding appointees to the Commission; and
c.The decision in the earlier proceedings.
In the earlier proceedings the Appellant’s application for an unfair dismissal remedy was dismissed on the basis that he was engaged as an independent contractor and was not an employee. The Appellant contends that in the reasoning for that decision an error of fact was made concerning the treatment of annual leave. The Appellant asserts that the Decision incorrectly found that the contract included a term for 20 days’ unpaid leave[1] when it only provided for 10 days paid leave. The question of the provision of leave in the contract was then considered in the analysis of those matters in the contract that suggested an employment relationship and those that pointed to a relationship of independent contractor. In that consideration a finding was made that the existence of a leave provision indicated an employment relationship[2]. This was a finding in the Appellant’s favour.
The Appellant pressed his application before the Full Bench contending that the presiding member recuse himself on the basis of actual bias and/or apprehended bias. The Appellant argued that recusal was necessary as the presiding member had either deliberately or incompetently made an asserted error of fact in his decision in the earlier proceedings and/or on the basis that the Commission is a corrupt institution given the personal political persuasions of its constituent members. The Appellant made oral submissions in support of the application. The Respondent made no submissions. The Appellant was informed that application for recusal was refused and that we would publish our reasons. These are those reasons.
Recusal Application- Consideration
The Appellant contends that in the decision in the earlier proceedings the presiding member made an error of fact concerning the number of days of unpaid leave that had been agreed in contractual negotiations. The Appellant asserts that the error was either a fabrication of the facts or a failure to be aware of the facts. It is also asserted that the error was fundamental to the decision in the matter. The Appellant made a complaint to the President of the Commission regarding the decision and the presiding member and also lodged an appeal against the earlier decision. The appeal was later withdrawn.
In making the current application, the Appellant relies upon the Fair Work Commission Fair Hearings Practice Direction at [25] which reads:
[25] The general principle is that a Member should not deal with a matter if in all the circumstances a fair minded observer might have a reasonable apprehension that the Member might not bring an impartial and unprejudiced mind to the case.
The Appellant submits that the finding in the earlier proceedings would lead a fair minded observer to have a reasonable apprehension that the presiding member might not bring an impartial and unprejudiced mind to these proceedings.
In Dr Manu Chopra v Al Siraat College Inc T/A Al Siraat College, Fazeel Arain, Vis Naidu, Esra Boz, Fatema Faoual, Naga Thayalakrishna and Dilek Komser[3] the Full Bench summarised the approach to be taken to dealing with a recusal as follows[4]:
The procedure to be followed where a recusal application is made in respect of an individual member of a Full Bench was discussed by the High Court of Australia in QYFM v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (QYFM). In a joint judgment, Kiefel CJ and Gageler J determined that such an objection should be considered by all members of the Bench and not the judge the subject of the application alone. Justice Gordon, with whom Edelman J and Steward J agreed, considered that in most, if not all cases, the judge in question should have the opportunity initially to decide to recuse themselves and thereafter the Full Bench may determine its jurisdiction.
(Citation omitted)
On 3 October 2025, the presiding member advised the Appellant that he declined to recuse himself from the Full Bench. In doing so he stated that the assertion that he had made an error of fact in earlier proceedings did not form a basis for recusal in the appeal proceedings. Applying the decision in Ebner v The Official Trustee in Bankruptcy (Ebner)[5], the presiding member advised that there was no basis to conclude that a fair-minded observer might hold a reasonable apprehension that he might not bring an impartial and unprejudiced mind to the determination of these proceedings.
The test for apprehended bias described in the Practice Direction at [10] is drawn from the decision of the High Court decision in Ebner. In Ebner the High Court identified two steps in applying the apprehension of bias test. First, identification of what is said might lead the decision-maker to decide a case other than on its legal and factual merits. Second, articulation of the logical connection between these matters and the feared deviation from deciding the case on its merits.[6]
We consider the following observations on the test of reasonable apprehension of bias made in the High Court in Re JRL; ex parte CJL (1986) 161 CLR 342 (Re JRL) by Mason J at 352 are also relevant to the Appellant’s application:
It seems that the acceptance by this Court of the test of reasonable apprehension of bias in such cases as Watson and Livesey has led to an increase in the frequency of applications by litigants that judicial officers should disqualify themselves from sitting in particular cases on account of their participation in other proceedings involving one of the litigants or on account of conduct during the litigation. It needs to be said loudly and clearly that the ground of disqualification is a reasonable apprehension that the judicial officer will not decide the case impartially or without prejudice, rather than that he will decide the case adversely to one party. There may be many situations in which previous decisions of a judicial officer on issues of fact and law may generate an expectation that he is likely to decide issues in a particular case adversely to one of the parties. But this does not mean either that he will approach the issues in that case otherwise than with an impartial and unprejudiced mind in the sense in which that expression is used in the authorities or that his previous decisions provide an acceptable basis for inferring that there is a reasonable apprehension that he will approach the issues in this way. In cases of this kind, disqualification is only made out by showing that there is a reasonable apprehension of bias by reason of prejudgment and this must be "firmly established" (Reg. v. Commonwealth Conciliation and Arbitration Commission; Ex parte Angliss Group (1969) 122 CLR 546, at pp 553-554; Watson, at p 262; Re Lusink; Ex parte Shaw (1980) 55 ALJR 12, at p 14; 32 ALR 47, at pp 50-51). Although it is important that justice must be seen to be done, it is equally important that judicial officers discharge their duty to sit and do not, by acceding too readily to suggestions of appearance of bias, encourage parties to believe that by seeking the disqualification of a judge, they will have their case tried by someone thought to be more likely to decide the case in their favour.
Applying the test in Ebner, the Appellant has failed to identify what it is that would lead a fair minded observer to conclude that the presiding member’s finding in the earlier proceedings would lead him to not bring an impartial and unprejudiced mind to the Appeal proceedings. We can see no basis for a fair minded observer to reach such a conclusion. The Appellant’s submission is that a finding in the earlier case was wrong and that it followed that the presiding member is incompetent. Even if the finding was incorrect as asserted, and we note that the impugned finding was held to be in favour of the Appellant’s case in the earlier proceedings, we consider that a fair minded observer would not consider that the error would lead the presiding member to decide the current case other than on its legal and factual merits. Further, the Appellant has not articulated a logical connection between the asserted error in the earlier proceedings and his concern that the presiding member might not apply appropriate merits-based decision-making methods to the determination of the issues in these proceedings. Given the impugned finding was considered to favour the Appellant’s case in the earlier proceedings we do not consider that there is one.
To the extent that the Appellant now asserts that the presiding member should recuse himself as a result of having an actual bias against him as demonstrated by his personal political beliefs or an alleged deliberate decision to make an incorrect finding in the decision in the earlier proceedings we do not consider that this ground is made out. A claim of actual bias requires proof that the decision maker approached the issues with a closed mind or had prejudged the matter and, for reasons of either partiality in favour of a party or some form of prejudice affecting the decision, could not be swayed by the evidence in the case at hand[7]. Actual bias is assessed by reference to conclusions that might reasonably be drawn from evidence about the actual views and behaviour of the decision maker and requires clear and direct evidence that the decision maker was in fact biased. In the absence of an admission of guilt or a clear and public statement of bias from the decision maker, actual bias will be difficult to establish[8]. The Appellant’s claims of actual bias are rejected. They are not supported by any evidence as to the actual views or conduct of the presiding member.
Finally, the Appellant submits that the Commission itself is a corrupt institution as a result of all of its members having personal political commitments and that this would lead to an apprehension of bias. This criticism is directed at all members of the Commission and not just the presiding member. Taken to its logical conclusion, if this submission was accepted, then all members of the Commission would be required to recuse themselves from dealing with all applications. We reject this submission. We do not consider that the Appellant has made out either of the elements required to meet the test in Ebner.
We are also mindful of the observation in Re JRL that it is important that decision makers discharge their duty to sit and an application such as the current application should not be acceded to too readily.
We do not consider a basis for disqualification has been made out. The Appellant has failed to make out a case that a fair minded observer might have a reasonable apprehension that the presiding member might not bring an impartial and unprejudiced mind to these proceedings.
The application that the presiding member be disqualified from involvement in the Appeal proceedings is dismissed.
Orders for Production
Background
The Appellant makes application for an order that the Respondent produce documents in three categories. First, documents that relate to the business relationship between the Respondent and entities that are described as associated entities. Second payroll documents of the Respondent and of the entities described as associated entities. Third, documents relating to a person identified elsewhere as “the Follow Up Caller”.
In the proceedings the subject of Mr McKerlie’s application for permission to appeal, Commissioner Sloan upheld a jurisdictional objection that Mr McKerlie was not protected from unfair dismissal because he had not served the minimum employment period[9]. The minimum employment period for an employee employed by a small business employer is 12 months. An employer is a small business employer if it employs fewer than 15 employees at the time of dismissal. The number of employees employed includes employees in an associated entity. The contest before the Commission was whether the Respondent was a small business employer. The Respondent contended that it had only 14 employees at the time of the dismissal and that it had no associated entities. The Appellant’s case was that the Respondent’s assertion as to the number of employees was wrong.
An order to produce was issued by the Commissioner at the Appellant’s request. The Appellant complained that the Respondent had not properly responded to the order to produce. The Commissioner accepted that the Respondent had not completely complied with the order[10]. The decision of the Commissioner recorded that the fault in the production was that contracts that were provided in response to the order concerning a number of persons working in the business described as independent contractors were not properly executed[11] and that the Appellant asked that the contracts provided not be received. The Commissioner received them and regarded the fact that they were unsigned as a matter of weight. The Commissioner found that he was not satisfied the persons working under the contracts were employees[12].
Consideration – Orders for Production
Sections 589 and 590 empower the Commission to exercise discretionary powers in determining the procedure to be followed in matters before it and how it informs itself in relation to those matters. The power of the Commission under s 590(1) to “inform itself in relation to any matter before it in such a matter which it considers appropriate”, which under s 590(2)(c) includes requiring production of copies of documents and records to the Commission, is expressed in very broad terms. Accordingly, the Full Bench has power to make the orders sought. The power is to be exercised as a broad discretion informed by whether it is appropriate that we be informed by ordering the Respondent to produce the documents.
The Appellant confirmed that the orders sought in these proceedings differ from the orders sought at first instance. The differences included that the orders now sought to correct what were described by the Appellant as errors he made in the orders sought at first instance.
The Appellant’s grounds of appeal include the following:
3. Commissioner Sloan erred as a matter of law and pursuant to the Code of Conduct which governs the conduct of members of the Commission by admitting into evidence and "attaching weight" documents which were completely without substance and in otherwise failing to compel the Respondent to comply with an Order to Produce which he himself had made.
In submissions in support of the production order application, the Appellant characterised the appeal proceedings as a complete rehearing and argued that the Full Bench needs the documents sought in the proposed order to determine whether the Respondent had 15 or more employees at the relevant time.
The current proceedings are to consider the question of whether permission to appeal should be granted to appeal the decision of Commissioner Sloan. The principles that we are required to apply are well known. They were recently stated by the Full Bench in Rhylie De Graff v Uconnex Pty Ltd[2025] FWCFB 216 (Uconnex):
[3] An appeal may only be brought with the permission of the Commission under s 604(1). Section 604(2) provides that the Commission must grant permission to appeal if it is satisfied that it is in the public interest to do so. Consideration of the public interest involves a broad value judgment (Coal & Allied Mining Services Pty Ltd v Lawler and others (2011) 192 FCR 78 at [44]). Matters that may engage the public interest include issues of importance and general application, a diversity of decisions at first instance, or where the decision manifests an injustice (GlaxoSmithKline Australia Pty Ltd v Makin (2010) 197 IR 266 at [27]). Where the public interest is not engaged, the Commission may grant permission to appeal on general discretionary grounds. In deciding whether to grant permission to appeal, it is unnecessary and inappropriate to conduct a detailed examination of the appeal grounds (Trustee for the MTGI Trust v Johnston [2016] FCAFC 140 at [82]). However, it is necessary to engage with the appeal grounds to consider whether they raise an arguable case of appealable error. An appellant must ordinarily demonstrate that there is such a case in order to be granted permission to appeal, as an appeal cannot succeed in the absence of error (Coal & Allied Operations Pty Ltd v AIRC (2000) 203 CLR 194 at 204). However, the fact that a member at first instance may have made an error is not necessarily a sufficient basis to grant permission to appeal.
In these proceedings, the Appellant will need to establish an arguable case of error to advance his case for permission to appeal. The relevant ground in his appeal asserts that the Commissioner erred by admitting into evidence and attaching any weight to documents which did not comply with orders made. To make good that claim, the Appellant simply needs to point to the orders made by the Commissioner, the documents produced, and the reasons given by the Commissioner for their admission. We can see no reason to issue the orders sought for the purposes of the appeal. As the Full Bench said in Uconnex it is unnecessary and inappropriate for us to conduct a detailed examination of the appeal grounds. We are instead required to engage with those grounds to consider whether they raise an arguable case of appealable error. We consider in this case we can determine the question of whether there is a case of arguable error that the Commissioner was wrong to admit and attach weight to documents produced under the notice without issuing a notice that other documents be produced. There appears to be no utility in doing so.
The Appellant contends that the documents are necessary as appeal proceedings in the Commission are by way of rehearing and so it is necessary for the Full Bench to have before it all evidence going to the issue to be determined. The Appellant is correct that appeals under s. 604 of the Act are appeals by rehearing. However, the Appellant’s submission confuses an appeal by rehearing with an appeal de novo. It is well established that a rehearing on appeal is different to an appeal de novo. The Full Bench in James Chol v Vivesco Pty Ltd T/A Vivesco Landscape Services[2024] FWCFB 335 described the nature of an appeal under s. 604 of the Act.
[17] In Robinson Helicopter v McDermott (Robinson Helicopter), the High Court, citing Fox v Percy, said:
“A court of appeal conducting an appeal by way of rehearing is bound to conduct a "real review" of the evidence given at first instance and of the judge's reasons for judgment to determine whether the judge has erred in fact or law. If the court of appeal concludes that the judge has erred in fact, it is required to make its own findings of fact and to formulate its own reasoning based on those findings. But a court of appeal should not interfere with a judge's findings of fact unless they are demonstrated to be wrong by ‘incontrovertible facts or uncontested testimony’, or they are ‘glaringly improbable’ or ‘contrary to compelling inferences’”.
[18] These principles have consistently been applied to appeals in the Commission. On appeal, the factual findings made by a member at first instance should generally stand, unless it can be shown that the member has failed to use the advantage of the hearing of the evidence or has acted on evidence which was inconsistent with facts incontrovertibly established by the evidence or which was “glaringly improbable”. An appeal to a Full Bench exists for the correction of error. It is not a hearing de novo. There are natural limitations that apply to the hearing of an appeal by a Full Bench and the member at first instance is usually in a better position than the appeal bench to make findings of fact.
(References omitted)
For these reasons, we do not consider it necessary or appropriate to issue the order to produce documents sought by the Appellant and the application for orders is dismissed.
On 7 October 2025, the Full Bench adjourned the proceedings to prepare written reasons for refusing the application that the Presiding Member be disqualified and to consider the application for orders for production. The application for permission to appeal will proceed to be heard on 4 November 2025.
DEPUTY PRESIDENT
Appearances:
Mr C McKerlie, the Applicant on his own behalf.
Mr J Varone for the Respondent.
Hearing details:
7 October 2025
Via Microsoft Teams Video
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[1] [2024] FWC 1939 at [16]
[2] Id at [18](e)
[3] [2023] FWCFB 214
[4] Ibid [24]
[5] Ebner v Official Trustee in Bankruptcy [2000] HCA 63; 205 CLR 337
[6] At [8]
[7] Re Medicaments and Related Classes of Goods (No 2) [2000] EWCA Civ 350; [2001] 1 WLR 700 at [37] – [39]
[8] Sun Zhan Qui v Minister for Immigration and Ethnic Affairs [1997] FCA 1488; 81 FCR 71
[9] Colin McKerlie v Private Fleet Group [2025] FWC 2185
[10] Id at [23]
[11] Id at [32]
[12] Id at [35]
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