Industrial Court of New South Wales CITATION: Milomir Lazarevic v NSW Department of Education and Training [2008] NSWIRComm 116 APPELLANT: Milomir Lazarevic PARTIES: RESPONDENT: NSW Department of Education and Training FILE NUMBER(S): IRC 508 of 2008 CORAM: Backman J LEGISLATION CITED: Apprenticeship and Traineeship Act 2001 CASES CITED: Topman v State Rail Authority of New South Wales [2004] NSWIRComm 272 EXTEMPORE JUDGMENT DATE: 11 June 2008 APPELLANT: Mr M Lazarevic (Self-represented) Ms L Jaric (Interpreter) LEGAL REPRESENTATIVES: RESPONDENT: Mr P Quinn NSW Department of Education and Training JUDGMENT: INDUSTRIAL COURT OF NEW SOUTH WALES CORAM: BACKMAN J Wednesday, 11 June 2008 Matter No IRC 508 of 2008 Milomir Lazarevic v NSW Department of Education and Training Application by Milomir Lazarevic pursuant to section 55 of the Apprenticeship and Traineeship Act 2001 to appeal against a decision of the Vocational Education and Training Appeal Panel given on 6.2.2008 EXTEMPORE JUDGMENT [2008] NSWIRComm 116 1 Milomir Lazarevic, the appellant, has lodged an application for leave to appeal and appeal against a decision of the Vocational Education and Training Appeal Panel (the Appeal Panel) given on 6 February 2008. 2 The appeal is brought under s 55 of the Apprenticeship and Traineeship Act 2001 (the Act). Section 55 makes provision for appeals to the Industrial Court (the Commission) against decisions of the Appeal Panel, within six months following an appellant's notification of the Appeal Panel's determination (or within such further period as the Commission allows). An appeal brought under s 55 of the Act is by way of a re-hearing: Topman v State Rail Authority of New South Wales [2004] NSWIRComm 272 at [19]; s 55 (3) of the Act. 3 The appellant represents himself on the appeal with the aid of an accredited interpreter in the Serbian language. The respondent is represented by Mr Quinn. 4 The appellant relied on only one ground of appeal, namely, that while undertaking an electrical mechanics trade test on 3 September 2007, he was not provided the services of an interpreter in the Serbian language, although he had requested one on his application form. 5 By way of brief background, the appellant made application to the NSW Vocational Training Tribunal (the Tribunal) on 7 May 2007 for recognition of trade skills in the trade of Electrical (Mechanics) under Part 3 of the Act. The Tribunal arranged for the appellant to undertake a trade test at an appropriate TAFE college. The appellant did not, however take the test because of an illness in the family. The test was re-scheduled by the Tribunal and the appellant attended Granville TAFE on 3 September 2007 and took the test, apparently without the aid of an interpreter. 6 According to correspondence annexed to the affidavit of Mr Quinn, who is employed by the respondent in the capacity of Manager, Industrial Relations Advocacy, the appellant, prior to sitting the test, was interviewed by an officer of the respondent who made a decision not to arrange an interpreter for the appellant because his spoken English was, "very good and after discussion (the appellant) said that he felt confident that he would not need an interpreter". 7 On 2 October 2007, the Tribunal notified the appellant by letter that his application had been refused on the basis that he had failed the test. 8 The appellant appealed against the Tribunal's decision to the Appeal Panel on 5 October 2007, on the ground that he was not provided with the services of an interpreter when he undertook the trade test. The Appeal Panel heard the appellant's appeal on 6 February 2008. On that occasion the Appeal Panel arranged for an interpreter to be present during the hearing, for the assistance of the appellant. The Appeal Panel dismissed his appeal, on the same day. 9 Following the lodgement of this appeal to the Commission against the Appeal Panel's decision of 6 February 2008, the respondent on 22 April, 2008 telephoned the appellant offering to arrange a further trade test for him, with the assistance of an interpreter. The offer was conditional upon the appellant meeting the costs of undertaking the trade test, although the costs were to be reimbursed to the appellant in the event he passed the test. According to a file note annexed to Mr Quinn's affidavit, the appellant declined the offer. 10 On 5 May 2008, the offer of 22 April 2008 was set out in writing and sent to the appellant. A second letter of the same date set out a revised offer in the following terms: "I advise that the Department has reconsidered its offer of 22 April 2008 and is prepared to arrange for a further test at no cost to you. In other words, the Department will pay for the interpreter and the further test in its entirety". 11 During proceedings today in the Commission, the terms of the revised offer were explained to the appellant with the aid of the interpreter. The appellant was informed that the revised offer met the relief sought by him in his present application. The relief sought by the appellant, which is set out in his application for leave to appeal and appeal, is that he, "be allowed to redo the craft certificate test again this time with interpreter". 12 Mr Quinn also informed the Commission today that the respondent had, in discussions with the appellant following the revised offer, advised him that it would make available to him an interpreter who would be conversant with the terminology used in, and associated with, the subject matter of any further test undertaken by the appellant. 13 The appellant had also apparently informed the respondent that he did not wish to sit a further test at the same TAFE at which he sat his original trade test on 3 September 2007. Mr Quinn advised the Commission that the respondent had advised the appellant that it would arrange for him to undertake the further test at a different TAFE campus. It was proposed that that campus be the Petersham TAFE campus. 14 Based on the foregoing matters, the appellant advised the Commission that he no longer wishes his appeal to be heard. 15 Following discussion with the parties here today it was proposed that an appropriate resolution of the matter, in the best interests of the parties, would be to uphold the appeal and make an order directing the respondent to arrange a further trade test to be undertaken by the appellant with the aid of an accredited interpreter in the Serbian language who is familiar with the relevant terminology, at a mutually convenient time and location; and, that there be no order as to the costs of the appeal. I note that the respondent has agreed to waive the scheduled fee for undertaking any further trade test. 16 Accordingly I make the following orders: (1) Leave to appeal is granted. (2) The appeal is upheld. (3) I direct the respondent to arrange for a further trade test to be undertaken by the appellant with the aid of an accredited interpreter in the Serbian language who is familiar with the terminology associated with the electrical trade. The test is to be undertaken at a mutually convenient time and location. (4) The respondent is to bear the costs of providing an accredited interpreter for the appellant's assistance when he undertakes the further trade test. (5) The scheduled fee for undertaking the trade test is waived by the respondent. (6) No order as to the costs of this appeal. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.