Transport Workers' Union of Australia v Arkwood (Gloucester) Pty Ltd - [2012] FWA 5135

[2012] FWA 5135

FAIR WORK AUSTRALIA

DECISION

Fair Work Act 2009
s.240 - Application to deal with a bargaining dispute

Transport Workers' Union of Australia
v
Arkwood (Gloucester) Pty Ltd
(B2011/257)

COMMISSIONER ASBURY

BRISBANE, 15 JUNE 2012

Alleged dispute concerning the relevant reference instrument.

BACKGROUND

[1] This is an application by the Transport Workers’ Union of Australia (TWU) under s.240 of the Fair Work Act 2009 (the Act) for Fair Work Australia (FWA) to deal with a bargaining dispute. The TWU is negotiating for an enterprise agreement with Arkwood (Gloucester) Pty Ltd (Arkwood). The TWU and Arkwood are in dispute about the relevant modern award for the purposes of applying the better off overall test under Part 2-4 Division 4 Sub-division C of the Act.

[2] The TWU contends that the relevant modern award is the Waste Management Award 2010. Arkwood contends that the relevant modern award is the Road Transport and Distribution Award 2010 (the 2010 Award). Conciliation failed to resolve the dispute and it was listed for arbitration. The question for arbitration is which of these awards covers the relevant employees for the purposes of bargaining for a new agreement. The TWU as notifier of the dispute took carriage of proceedings.

[3] Inspections were conducted at the request of the TWU, during which I observed biosolids being unloaded from trucks and spread onto agricultural land. I was also able to observe biosolids at close range. The matter was heard over two days.

THE TWU CASE

Evidence

[4] Evidence in support of the TWU’s case was given by:

● Mr John McKeown, Truck Driver employed by SITA Australia; 1
● Mr Peter Reynolds, Truck Driver employed by Arkwood; 2
● Mr Peter Burton, Truck Driver employed by Arkwood; 3
● Mr Oshie Fagir, Legal Officer, TWU NSW; 4
● Paul Ernest Smith, Director and Principal Consultant of Waste Solutions Australia Pty Ltd. 5

Mr McKeown

[5] Mr McKeown has been employed as a garbage truck driver by SITA Australia Pty Ltd, since 1973. When Mr McKeown commenced employment, the Brisbane sewerage system was incomplete and some areas relied on the night soil disposal service. During this time Mr McKeown worked at the same depot as night soil carters known as “shit men”. These employees would collect full cans of night soil and take them to the “shit dump”. At the dump an excavator would dig a trench, the night soil was dumped in and covered over. It was not treated in any way.

[6] Mr McKeown said that during that time, he believed that he went from a State award to a Federal refuse award, and that the “shit men” were paid under the same awards as he was. Mr McKeown now works under an enterprise agreement that is underpinned by the Transport Workers (Refuse, Recycling and Waste Management) Award 2001. Mr McKeown was not required for cross-examination

Mr Reynolds

[7] Mr Reynolds drives an 8 wheeler tip truck set up to carry skip bins. He is employed by Arkwood specifically to drive this truck. He generally works Monday to Friday. Three days each week he services the Waste Water Treatment Plant at Loganholme, carting away ‘grits and screenings’, which contain undigested and/or non-biological material that is screened out of raw sewerage. He drives the loaded truck to the Swanbank Waste Facility where the grits and screenings are dumped to landfill. He is required to clean out the skip with a high pressure hose, often having to use his hands (clad for this purpose in long rubber gloves) to remove any additional material.

[8] Mr Reynolds carts biosolids from the Fairfield Waste Water Treatment Plant to the Swanbank Landfill. The biosolids are loaded onto the truck in a sealed container. He also carts biosolids from the Beaudesert Waste Water Treatment Facility to farmland near Toowoomba and at other times carts equipment used to spread biosolids. Mr Reynolds was not required for cross-examination.

Mr Burton

[9] Mr Burton has been employed as a truck driver with Arkwood for 6 years. His job involves carting biosolids from various waste water treatment plants in NSW and Queensland, to farmland. Mr Burton understands that the plants treat the biosolids which removes most of the water and biological contaminants. The biosolids vary in consistency (from dry and cake like to quite sloppy) between the various plants. Some plants load with a conveyor system and others use a front end loader. The driver then winds a cover over the trailer.

[10] Mr Burton generally takes his loads to farmland, but recalls on two occasions he took the biosolids to the Swanbank waste facility to be disposed of to landfill. During wet weather periods, biosolids are carted to bunds. The trailers of trucks have hydraulic rams that allow for the biosolids to be dumped from the trailer. In wet weather, the work can be unpleasant, due to biosolids sticking to employees’ boots and being transferred into the cabins of trucks. After dumping the biosolids, the driver is required to wash out the trailer with a high pressure hose.

[11] Mr Burton also stated that when transporting biosolids from Queensland to NSW, he is required to complete a Queensland Government Environmental Protection Agency Waste Transport Certificate. No certificate is required when transporting biosolids within Queensland. Mr Burton was not required for cross-examination.

Mr Fagir

[12] Mr Fagir has been employed by the TWU NSW in the capacity of Legal Officer since 2007. Between 2008 and 2009, Mr Fagir was involved with the award modernisation process conducted by the Australian Industrial Relations Commission. Mr Fagir gave evidence about the history of award coverage in the waste management and transportation industry, up to and including the modernisation process.

[13] The coverage of the Transport Workers’ (Industrial, Commercial and Domestic Refuse) Award 1978 (the 1978 Award), was expressed in clause 4 - Incidence, as follows:

“The industry and callings covered by this award is in or in connection with the collection, transportation, and/or disposal of solid or fluid industrial, commercial and domestic waste, refuse, garbage, sullage, sewerage and any other like material whether in its raw or natural state, wholly or partly manufactured state or decomposed or partly decomposed state.”

[14] In 1985 the 1978 Award was varied to include a classification and definition for a ‘sanitary driver/offsider” to cover employees engaged in the collection, removal and disposal of night soil. Following the Award Simplification process in 2001, the 1978 Award became the Transport Workers’ (Refuse, Recycling and Waste Management) Award 2001 (the 2001 Award). The industry and callings to which the 2001 Award applied were the same as those in the 1978 Award. The 2001 Award was varied in 2002 so that the incidence clause was in the following terms:

“The industry and callings covered by this award is in or in connection with the collection and/or transportation and/or handling of any waste or any material whatsoever (be it solid or liquid, organic, biological, medical, raw or natural, wholly or partly decomposed or in any other state or form) for the purpose of disposal to transfer stations, landfill, incinerators, recycling depots or yards or terminals, treatment plants, compost facilities, etc. or the purposes of recycling and/or re-use.”

[15] The coverage of the 2001 Award was extended in 2002 and in 2004 it was declared a common rule in the State of Victoria. During the Award simplification proceedings in 2001 - 2002, the Waste Contractors and Recyclers Association of New South Wales made a submission to the Australian Industrial Relations Commission indicating that it represented some 130 members across all facets of the waste and recycling industry, including landfills and land application sites. 6

[16] Mr Fagir also traced the development of the 2010 Award and referred to submissions made by various parties in the award modernisation process, indicating that there was some consensus that there should be a separate award for waste management. The Waste Contractors and Recyclers Association of New South Wales submitted that the waste management industry should have its own dedicated Award, to be known as the Waste Mangement Industry Award 2010. The definition of the waste management industry sought by the Association included specific reference to waste or any material whatsoever for the purposes of disposal and for recycling and/or re-use.

[17] This view was reflected in the Full Bench award modernisation Statement in relation to waste management, where the Full Bench said: “We have decided to proceed on the basis that waste management should be covered by an industry specific award rather than an award applying to the transport industry more generally.” Mr Fagir noted that the outcome of the modernisation process was an industry definition that related to “any waste material whatsoever” and which removed the requirement that the transportation and handling of waste be for the purpose of recycling and/or reuse.

[18] The 2010 Award covers employees in the waste management industry and their employees in the classifications listed in the 2010 Award, to the exclusion of any other award. 7 The waste management industry is defined in clause 3.1 as follows:

“waste management industry means the collection, transportation, handling, recycling and disposal of any waste material whatsoever (be it solid or liquid, organic, biological, medical, raw or natural, wholly or partly manufactured, decomposed or partly decomposed or in any other state or form and including all domestic, trade and industrial waste) and includes the operation of transfer stations, landfill sites, incinerators, recycling depots, yards or terminals, treatment plants, compost facilities, alternative waste treatment facilities and the operation of other facilities of the same kind.”

Mr Smith

[19] Mr Smith’s company is a waste management consultancy. He has qualifications of Bachelor of Applied Science, Master of Science (Hydrology), Master of Science (Environmental) and is a Senior Adjunct Lecturer at Griffith University and a Certified Environmental Practitioner. Upon instructions from the TWU, Mr Smith prepared a Report for these proceedings, with the assistance of two associates from his company. The Report is entitled Biosolids Classification Expert Witness Report December 2011. 8The background states that the TWU requires the preparation of an independent witness Report that reviews current legislation and classification of biosolids in all Australian States and Territories and provides an opinion on whether this material is waste. The objective of the Report is said to be the provision of an expert witness Report regarding biosolids classification and whether the type of work carried out by Arkwood falls within the scope of the “waste management industry”.

[20] The Scope indicates that the Report is published as a desk top exercise using data supplied by the TWU and sources available to the public. The Report details the history of sewage treatment process in Australia. The modern wastewater treatment process is also described in the Report. Wastewater is a mixture of domestic sewage (waste from household toilets, sinks, showers and washing machines), industrial effluent, run off surface water and ground water which has infiltrated into sewers. Most modern sewage treatment plants employ a process of screening to remove large objects (including what is referred to as grits); an anaerobic stage comprising a biological process to remove organics; aeration and oxidation in aerobic tanks; and then various stages of tertiary treatment.

[21] The solids removed as part of grit screening are disposed of directly to landfill. The sewage sludge is used for generation and processing of biosolids. Biosolids are the sewage sludge that is generated through the treatment of sewage waste and generation of effluent. They are a by-product of the wastewater treatment process - ie. a mixture of water and organic matter that may have come down the sewer, that are the residual material left at the end of the process. They are produced either as thickened slurry or dewatered cake.

[22] There was a considerable amount of evidence about the processing of biosolids and the degree to which pathogens are destroyed or reduced by processing. Biosolids are graded in terms of contaminants and stabilisation. These gradings are used to classify biosolids into groups on the basis of the way that biosolids will be used: unrestricted use, restricted use and not suitable for use. There is no accepted Queensland classification system, and according to the Report, the NSW system can be used. The grade of biosolids determines the potential beneficial end use. Waste Solutions Australia understands that biosolids are being disposed of to landfill in Queensland. The Swanbank landfill facility in Queensland currently receives approximately 160,000 tonnes of biosolids each year which are mixed, cured and processed over time, to prepare the final product for beneficial reuse.

[23] Biosolids are usually transported in trucks. In its material, Arkwood describes a system of procedures associated with transport that are designed to comply with EPA and Government legislation. Biosolids are transported to either farm land for incorporation into soil or to a landfill for disposal. Arkwood conducts a sampling regime of biosolids it transports.

[24] In Queensland, the Environmental Protection (Waste Management) Policy 2000, defines waste disposal as:

“Disposing of waste, or treating and disposing of waste, in a way that causes the least amount of harm to the environment.”

[25] The Environmental Protection Agency - Operational Policy Management and Beneficial Reuse of Biosolids from Sewage Treatment Plants (2008) outlines a framework for consistent application and interpretation of legislation and non-legislative matters by the Queensland Environmental Protection Agency. The Policy states that under Part 6A of the Environmental Protection (Waste Management) Regulation 2000, a person may apply for approval to use a waste as a resource for beneficial purposes. Appended to the Report is a Notice of decision to amend an approval of a resource or a stated type of resource under s.66I of the Environmental Protection (Waste Management) Regulation 2000, issued to Arkwood by the Department of Environment and Resource Management.

[26] Essentially that decision authorises Arkwood to use a resource (biosolids) for use as a soil conditioner and fertiliser for agricultural land subject to the conditions of the approval. The approval relates to beneficial use of the resource at certain properties and sets out conditions in relation to a number of matters including:

● Prevention of environmental harm
● Maintenance of measures, plant and equipment
● Storage and transportation including requirements in relation to vehicles, bunded areas for water including stormwater runoff and vehicle wash down water ;
● Quality requirements including testing the composition of the resource by analysing samples; and
● Training of operators in procedures and practices necessary for compliance with the approval.

[27] There are a number of relevant definitions in the Notice including:

Biosolids or resource means treatment tank sludges and residues from a municipal treatment plant including sedimentation tank and clarifier sludges, aerobically and anaerobically digested sludge and filter cake products from those sewage treatment plants.

Resource means biosolids that are sourced from municipal waste water treatment plants as described in Condition (2). The specified biosolids would not be considered a resource if it is not applied to the specific activity sites.

[28] According to the Report, Arkwood, in conjunction with Thiess Services, collects biosolids from a range of sewage treatment plants, both in Queensland and New South Wales. A document titled “Arkwood Organic Recycling PRODUCT REALISATION” Issue 4, dated January 2006, was provided to Mr Smith and reviewed in the Report. That document contains procedures relating to biosolids collection and application, and defines how Arkwood has established and maintained systems for the beneficial reuse of treated sewage sludge (biosolids) including testing, compliance with EPA and Government legislation.

[29] The procedure details that collection trucks are loaded via a hopper or by bucket loads at the sewage treatment plant, and procedures for the trailer to be washed before leaving the site. There are also requirements for the trucks to have seals on their tail gates and for the load to be covered prior to it being moved. There are further requirements for wash down facilities to be set up at the destination site for the biosolids loads and details of the responsibilities for the driver to clean out vehicles and to wear gloves for this purpose. Drivers are required to carry antibacterial soap and water and to have Hepatitis A and B vaccinations prior to commencing employment.

[30] At various parts of the Report, concerns are expressed about whether biosolids have been appropriately treated to remove risk to humans and the environment associated with their use for agriculture. The Report concludes that:

● When biosolids are transported to landfill the material is regarded as waste.
● The activities of Arkwood as set out in Section 10 of the Report support the view that Arkwood is transporting a waste product under the normal and natural meaning of the word.
● Biosolids being transported to sites, other than landfill, are a waste until the material has undergone additional treatment (ie. thermal drying with palletisation/granulation, co-treatment with other waste streams, and composting to Australian best practice standards). The treatment processes must reduce the concentration of contaminants and pathogens to a level that has been proved to demonstrate the risks to humans and the environment are negligible.

[31] Mr Smith also tendered a Supplementary Expert Witness Report 9 responding to the points raised by Mr Darvodelsky. A significant portion of the Supplementary Report was devoted to questions associated with issues such as the effectiveness of the processes employed by various treatment plants with respect to the removal of chemicals and compounds from biosolids; uncertainty about whether exposure to biosolids and sewage sludge can have adverse health effects on humans and animals; factors which impact on the level of contamination of biosolids; and the effectiveness of testing regimes.

[32] Issue was also taken in the Supplementary Report with the proposition expounded by Mr Darvodelsky, to the effect that material which has value is not a waste, and Mr Smith pointed to s.13 of the Environmental Protection Act which states that: “A thing can be waste whether or not it is of value.” Mr Smith also gave evidence that the cost of producing biosolids is higher than the return on their sale, and that they have no or very little commercial value, despite the potential benefits to farmers and other users. Mr Smith also contended that there was no evidence in this case to demonstrate that even the larger, more recent sewage treatment plants can consistently provide a level of biosolids treatment that reduces the concentration of contaminants and pathogens to a level that has been proved to demonstrate the risks to humans and the environment are negligible. Biosolids at the smaller sewage treatment plants scattered throughout Australia are unlikely to meet those treatment criteria at any time.

[33] Under cross-examination, Mr Smith agreed that he had not had extensive experience working in any program associated with the use of biosolids and that his experience was limited to landfill projects. Mr Smith also confirmed that his Report was a “desktop exercise” and agreed that he had not visited any sites relevant to Arkwood’s operations; performed analysis of materials; or spoken to persons who manage or supervise the processes in treatment plants where sewage is converted into biosolids. Mr Smith said that most of the persons involved in management and supervision in treatment plants did not want to speak to him, and that he had spoken to such persons at interstate plants but not at local ones. Mr Smith also agreed that some of the information in his Report had come from the TWU and some had been researched through published information on the internet and other places.

[34] Mr Smith maintained that any product going to landfill is waste and agreed that a product which has been treated so that it is not hazardous to humans or the environment, and which is used for agricultural or other beneficial purposes, is not waste. However, Mr Smith maintained that there has been insufficient testing of biosolids for contaminants, to prove that they are safe for use. In response to the proposition that he personally disagrees with the standard that is currently set by the legislation in terms of testing of biosolids, Mr Smith said that he would like to see more testing undertaken, and a wider variety of testing with the results being open for review by other people.

Submissions

[35] The TWU submitted that in construing an award, FWA must give ordinary or well understood words their ordinary or usual meaning 10, and may have regard to the history of the relevant provision.11 The change in the “Incidence” of the 2002 Award was said to reflect an increased focus on recycling and reusing waste, and to ensure that employees carting any materials that were being recycled or reused in some way, were covered by the Waste Award. That change continues unabated, with an even greater emphasis by State Governments on recycling and reuse, to ensure as little as possible goes to landfill.

[36] It was submitted that Mr Darvodelsky’s evidence makes it clear that in 2007, 50% of biosolids were sent to landfill and now that figure is 10%. According to the TWU, the biosolids that went to landfill in 2007 were waste and continue to be so, even though only a small percentage goes to landfill. The reasons given by Mr Davodelsky for diversion of biosolids from landfill to agricultural use has very little to do with the value of biosolids to agriculture and this was also evidenced by the introduction of the Waste Reduction and Recycling Bill to Parliament, when the Minister for the Environment said that it was part of a strategy to reduce waste and to recover waste that was too readily dumped into landfill.

[37] The TWU pointed to s.13 of the Environmental Protection Act 1994 which provides that a thing can be waste whether or not it is of value and makes it clear that a resource approved under the Waste Reduction and Recycling Act 2011 is waste except when it is in the hands of a person holding approval to use it for a beneficial purpose. Resource approval is governed by waste related legislation. It was submitted that the fact that an Act of a State Parliament may allow certain waste to be classified as a resource provided it is not put into landfill, does not mean that biosolids approved for use as a resource are not waste for the purposes of the Award.

[38] The TWU also submitted that the 2010 Award prevails over State law as provided in s.29(1) of the Act and s.109 of the Constitution. Accordingly, FWA need have no regard to the definition of “waste” in State legislation. If it was determined that biosolids are not waste because of a law of Queensland, it could lead to a situation where employees carting biosolids in New South Wales are covered by the Waste Management Award while those in Queensland performing the same work are covered by the Road Transport and Distribution Award. This could give Arkwood a competitive advantage in relation to work in New South Wales given the disparity in rates between the two Awards.

[39] In relation to the competing expert evidence of Mr Smith and Mr Darvodelsky, the TWU submitted that although Mr Darvodelsky is a passionate advocate for the biosolids industry, he is an advocate for Arkwood and does work for the Company. In contrast, Mr Smith was said to be associated with the broader waste management industry, and consequently able to see the bigger picture. Further, Mr Smith has greater experience in the broader solid waste management industry. Mr Smith’s evidence is that biosolids are waste until they undergo some other treatment process such as granulation, heat transit or composting to Australian Standards. Biosolids carted by TWU members go from the Arkwood hopper at the waste water treatment plant straight to the farm.

[40] It was submitted that the evidence establishes that:

● Biosolids do not have a commercial value and some years ago the Queensland Environmental Protection Agency placed a value of negative $20 per tonne on biosolids;
● Farmers do not pay to have biosolids deposited on to their land and with the introduction of a waste levy may charge for having biosolids dumped on their land;
● Arkwood is paid by the tonne to cart biosolids away.

[41] It was also contended that Arkwood has not placed any evidence before the Tribunal to establish that biosolids have proprietary rights assigned to them, including contracts with its clients.

[42] Biosolids are required to be handled in accordance with strict environmental guidelines, and there are requirements with respect to personal protective equipment for drivers when performing their duties. Reference was also made to the industry allowance in the Waste Management Award 2010 and it was submitted that work with biosolids came within the terms of that allowance. It was also submitted that the allowances for offensive and dirty material under the Road Transport and Distribution Award are not relevant to carting biosolids. Biosolids can contain harmful pathogens and toxic chemicals and the long term effects of biosolids to the environment and public health are not known.

[43] Arkwood’s involvement with biosolids was said to be more than just transportation. The Company is also involved in dewatering work and the supply of centrifuges and hoppers in a way that is analogous to waste contractors supplying their clients with hoppers or bins. Arkwood also has an involvement in spreading operations, and employs workers to operate spreaders. The evidence of Mr Fagir establishes that the Waste Contractors and Recyclers Association of Australia indicated in award modernisation proceedings, that it represented business working with land application sites. In proceedings in relation to award modernisation, the major employer organisation had represented companies involved in land application sites. It was also contended that the concession of Arkwood that the work done by Mr Reynolds is covered by the Waste Management Award 2010, is compelling evidence that Arkwood is in the waste management industry and provides such services to at least one client.

[44] Further, the work performed by drivers who cart biosolids includes operating equipment to load into hoppers and collecting samples of biosolids for testing. These factors were said to strongly indicate that Arkwood is in the waste management industry. It was also submitted that Mr Clarke’s evidence about other work done by the Company was not reliable because Mr Clarke could not provide details about how much of the low loader work related to Arkwood’s own business and how much to other clients.

[45] The Road Transport and Distribution Award 2010 provides that it does not cover employees covered by the Waste Management Award 2010. If the “dominant nature of establishment” test is applied 12 then the dominant nature of Arkwood’s establishment is collecting, transporting, handling and disposing of waste material, as defined in the Waste Management Award 2010. In response to a question from the Tribunal, Mr Carter said that the Road Transport Award 2010 appropriately covers employees carting substances such as chicken manure, but maintained that this was a very small proportion of the work performed by employees of Arkwood, and reiterated that the dominant nature of the Company’s establishment would result in a finding that the Waste Management Award 2010 applies to its employees.

THE CASE FOR ARKWOOD

Evidence

[46] Evidence in support of Arkwood’s case was given by:

● Mr Brendon Clarke, Owner/Director; 13
● Mr Paul Darvodelsky, Process Engineer and Principal of Pollution Solutions and Designs Pty Ltd. 14

Mr Clarke

[47] In addition to being an Owner/Director of Arkwood, Mr Clarke is employed as Operations Manager and holds a Bachelors Degree in Natural Resources from Armidale University. Arkwood performs a number of functions with respect to biosolids, and the transport of treated products from council treatment plants to private properties is a large part of the Company’s business. Arkwood provides scientific testing for property owners using the product, for the purposes of obtaining the necessary accreditation from the Environmental Protection Agency. All of the Company’s operations involving biosolids are regulated by the Department of Environment and Resource Management and the relevant legislation and are conducted in accordance with Guidelines: Use and Disposal of Biosolids Products, issued by the Environmental Protection Agency of New South Wales, which also have some application in Queensland.

[48] A large part of Arkwood’s business involves transportation of biosolids from various water treatment plants. Arkwood employs 36 drivers and each driver typically works 5 to 6 days per week. Each day for a driver will typically involve 1 ½ runs involving the pick up and distribution of biosolids to agricultural sites throughout South-east Queensland. Drivers working at Arkwood are inducted at the commencement of their employment and this includes an explanation of the nature of biosolids and the importance of personal hygiene when working with them. Mr Clarke acknowledged that there are hazards associated with working with biosolids and that there is a (minute) risk of transmission of bacteria if they are not handled correctly. Mr Clarke said that there are no known incidences of such an infection in Arkwood’s workforce. Drivers are not required to handle biosolids and typically come into contact with it inadvertently when cleaning their trucks. They are provided with a range of personal protective equipment to be used when performing this work.

[49] About 20% of Arkwood’s transport business involves transportation of products such as: heavy machinery low loader floatation; grain; sawdust; bark; woodchips; gravel (road base) and aggregate. Subject to specific skills - for example heavy machinery operation accreditation - any of the 36 drivers employed by Arkwood may, on any given day, be required to transport products of these types. Mr Clarke said that the enterprise agreement negotiations giving rise to the present dispute relate only to drivers, and not to employees engaged in dewatering operations or operating centrifuges. Further the enterprise agreement negotiations are not in respect of spreader operators and none of the four staff employed as spreader operators are engaged as drivers. Further, Arkwood has contracted out its functions with respect to spreader operators and will no longer engage persons to perform this work.

[50] Under cross-examination, Mr Clarke was questioned about wet weather bunds, and said that these are a type of storage unit with a trafficable surface, used during wet weather to contain biosolids and water. Alternatively, in periods of wet weather, spreading operations can be diverted to another property. In response to the proposition that in wet weather, biosolids become sticky and adhere to boots, Mr Clarke said that this also occurred on other sites such as building sites in wet weather, and biosolids is a wet product in any event and does not change because of rain.

[51] Mr Clarke agreed that Arkwood’s primary business is in the field of environmental management and reuse of biosolids and that its services include transportation, delivery to properties for reuse, spreading and incorporation of product and environmental reporting to suppliers. In relation to other transport functions performed by Arkwood, Mr Clarke said that half of the equipment moved as part of the Company’s heavy machinery floatage is Arkwood’s equipment. Centrifuges are not transported on a low loader, as they have their own trailers. There are a separate group of employees who are engaged in operating and moving centrifuges. These machines are used to separate liquids and solids, and are hired to a variety of operators of plants including sewage treatment plants. Mr Clarke agreed that the use of a centrifuge is a stage in the production of biosolids. Arkwood has two centrifuge machines and there are two employees for each machine, who are engaged in maintaining, packing, moving and re-establishing those machines.

[52] Mr Clarke said that Arkwood also has 25 hoppers located at sewage treatment plants at various locations from Tweed Heads to Cairns and agreed that these are used to store and help with the loading of biosolids. Some hoppers are sold to the operators of treatment plants and others are owned by Arkwood and form part of its equipment. In relation to the contracting out of spreading operations, Mr Clarke said that the contractor will perform a service for Arkwood, but Arkwood will maintain responsibility for spreading biosolids within the required time frame, in accordance with EPA requirements. Mr Clarke said that the tailgate locks fitted to Arkwood’s trucks are common in the transport industry but agreed that if biosolids were spilled, Arkwood would be required to report this to the Environmental Protection Agency.

[53] In relation to the evidence of Mr Reynolds with respect to carting grits and screenings, Mr Clarke said that Arkwood has only one vehicle that is used for this work and that vehicle also carts biosolids. A single employee performs this work, and is replaced when he is on annual leave. The biosolids carted by this vehicle are from the Fairfield Waste Treatment Plant and are cleared for beneficial use. However, Queensland Urban Utilities has made a decision that they go to landfill, because this option is cheaper. Fairfield is the only plant producing biosolids which go to landfill. Mr Reynolds is paid under the Waste Management Award 2010, and Arkwood concedes that this Award covers the work Mr Reynolds performs.

[54] Mr Clarke was referred to the Arkwood Product Realisation Statement annexed to his witness statement 15 and the requirements in relation to the EPA receiving the results of a site analysis in the form of an REF/EMP, a print out of the EPA approved waste tracking system and updated REF/EMPs as spreading proceeds. Mr Clarke said that EMP stands for “Environmental Management Plan” and REF for “Review of Environmental Factors”. According to Mr Clarke, these systems are used by other industries including the dairy and feed milling industries to look at environmental impact. NLBARs and CLBARs referred to in the Product Realisation Statement are agronomic calculations that are standard across the dairy, feed lot, chicken and biosolids industries, as a way of calculating the amount of nitrogen being applied. Mr Clarke also said that previous systems for tracking waste and other material crossing State borders, were no longer used in circumstances where biosolids were classified before they were moved.

Mr Darvodelsky

[55] Mr Darvodelsky is a Process Engineer and Principal of Pollution Solutions and Designs Pty Ltd. Mr Darvodelsky prepared a Report at the request of Arkwood. 16 The Report states that sewage sludge is a by-product of treating wastewater, coming from humans and industry. When treated to a standard acceptable for beneficial use, sewage sludge is referred to as biosolids. In Australia, biosolids are most commonly used as fertiliser and soil conditioner on agricultural land. Sewage treatment plants use a combination of physical, chemical and biological processes to treat human waste and today, plants are highly advanced, producing a recycled water and biosolids product.

[56] Biosolids contain a mix of macro and micro nutrients and may contain traces of synthetic organic compounds and metals. Human waste may contain pathogenic micro-organisms which can cause illness, and these are present in the sewage as it comes to the treatment plant. Through the treatment plant the pathogens are killed or reduced, depending on the desired end use for the recycled water or biosolids. Biosolids are always treated to reduce the pathogens to levels which are not harmful when used in accordance with various guidelines.

[57] The Report asserts that the body of science agrees that there are no significant pathogen or contaminant risks from properly treated and used biosolids and that in Australia, biosolids use is more strictly regulated than the European Union and the United States. In South-east Queensland, the majority of treatment plants are advanced wastewater treatment processes, and plants receive predominantly domestic sewage and treat it before discharge or reuse.

[58] Australia produces about 300,000 tonnes of biosolids per year, and the vast majority is used beneficially on farmland as fertilizer. The proportion of biosolids going to landfill is reducing because of the recognition of the relative value of them going to agriculture. Biosolids have value for nutrients, energy and trace metal and recently, Sydney Water valued biosolids at $40 - $140 per dry tonne.

[59] In Australia, biosolids are regulated under a specific statutory framework in each State. Generally the key piece of legislation is the State’s environmental protection act. These acts require that discharge to the environment must be managed to avoid adverse impacts, and also generally describe the key principles of environmental management and the waste hierarchy, with waste avoidance and recycling the preferred management option to disposal.

[60] Each State in Australia also has a biosolids guideline which sets out the best practice requirements for use. The guidelines are not legal documents but have legal significance because of reference from the legislation. The guidelines are developed such that compliance with them will normally mean compliance with other relevant regulations and there is normally a statement in the guidelines to this effect. Generally biosolids are classified as a waste under the environmental legislation and exempt from this classification if they are used in accordance with the guidelines. Therefore, use of biosolids in a way that is not consistent with the guidelines would normally constitute an offence under the referring act or licence.

[61] The Report traced the legislation in various states. In relation to Queensland, the relevant legislation is:

● Environmental Protection Act 1994
● Environmental Protection Regulation 1998
● Environmental Protection (Waste Management) Regulation 2000
● Operational Policy Environmental Operations Management for beneficial reuse of biosolids from sewage treatment plants Revision 2008

[62] The Environmental Protection Act 1994 defines waste to include a thing whether or not it is of value, and provides that a resource may be approved for beneficial use. The Report states that biosolids have the potential to be removed from the definition of waste and defined as a resource. It is further stated that this would also exempt biosolids from the regulated waste requirements of the Environmental Protection Regulation 1998. Under the provisions of the Environmental Protection Act 1994 written approval must be obtained for “waste management works” including the removal, collection, transport, treatment or disposal of waste. According to the Report, reclassification of biosolids as a resource rather than waste should remove the need for local government approval.

[63] The Environmental Protection Regulation 1998 defines waste and the conditions which apply to it. Under Schedule 7, biosolids are defined as regulated waste. A review of this definition is pending, which is said to indicate recognition of the value of biosolids. Biosolids are required to be transported by licensed transporters, if the volume of biosolids in the load exceeds 250kg. Waste tracking requirements under the Environmental Protection (Waste Management) Regulation 2000 apply to the transportation of biosolids, except where they are transported to a farm for use as soil conditioner or fertiliser. If biosolids are transported to an alternative site then waste tracking requirements would apply. Storage of biosolids also requires licensing unless they are stored on a farm for use as a soil conditioner or fertiliser in carrying out agricultural activity. The operational policy for use of biosolids states that beneficial use is supported when an environmental management plan is in place. Under the operational policy, the use of Stabilisation Grade A - Contaminant Grade B biosolids is exempt from requiring an environmental management plan. These grades are as defined in the New South Wales biosolids guidelines.

[64] The Report concludes with the following opinion:

“Biosolids is a highly treated by-product of the sewage treatment process. Sewage goes through around 10-15 distinct processing steps before it leaves a sewage treatment plant as recycled water and biosolids. The resulting biosolids bear no resemblance to the sewage which enters a plant and are a highly processed product.

Biosolids, when used in accordance with the relevant guidelines and/or regulations, are not considered as a waste product. Specific exemptions exist for biosolids under the current regulatory regime in NSW and Queensland under which biosolids are not classified as a waste. The biosolids industry in Australia, and internationally, operates under the premise that biosolids is a valuable product.

Biosolids and similar products such as manures have been used throughout history for their beneficial characteristics, primarily as a fertiliser, but also as a source of energy.

Biosolids are increasingly sought as a fertiliser. In NSW Sydney Water’s biosolids programme had a 2-3 year waiting list of farmers who wanted biosolids. Around 90% of the biosolids produced in Queensland are beneficially used as a fertiliser and soil conditioner in agriculture. Over two thirds of biosolids produced in Australia is used beneficially in agriculture.

The amount of biosolids going to landfill in Australia, and particularly in Queensland has decreased significantly over the past 4 years and the majority of the biosolids has been diverted to agriculture. Almost all biosolids currently produced in Australia is suitable for use in agriculture.

Biosolids is recognised in Australia and around the world as a valuable source of nitrogen, phosphorus, organic matter and other trace elements. Around 1 billion tonnes of biosolids has been beneficially used in a wide range of uses across the European Union, United States and Australia over the past 20 years.

Biosolids is sold in many instances around the world as a fertiliser and soil conditioner. In addition biosolids has an energy value of up to $100 per tonne.”

[65] The Report also provided a response to the witness report of Mr Smith. Much of the response deals with contaminant levels in biosolids.

[66] During Mr Darvodelsky’s oral evidence, he said in response to a question from Counsel for Arkwood:

“It’s - to my way of thinking very important to overcome our natural thought that once was shit, if I may, is always shit. Biosolids to faecal matter is essentially like leather is to a hide. When you start with leather you starting with stinking rotten carcass, they are disgusting and the end up a fine pair of shoes, a designer handbag, or a beautiful jacket. Biosolids is equally extensively processed and equally different.”

[67] Under cross-examination, Mr Darvodelsky agreed that there are scientists who support the view that there is a risk to public health from biosolids that is real or at least unknown. Mr Davodelsky agreed that biosolids can be described as wholly or partly manufactured. Mr Darvodelsky was shown an exemption to the classification of waste under the Protection of the Environment Operations (Waste) Regulation 2005 (NSW) for biosolids and maintained that there are products that are classified legally as waste, but are not waste. Mr Darvodelsky was also shown a paper he co-authored in June 2008, which states that the reasons why biosolids are not going to landfill include limitations on sites, community resistance and the fact that biosolids are a high cost problematic source for landfills compared with municipal and solid waste. Mr Darvodelsky said that he stood by those comments.

Submissions

[68] It was submitted for Arkwood that this case turns on a very narrow point - whether or not the biosolids carted by employees fall within the definition of waste contained in the Waste Management Award 2010. That Award defines waste and provides a number of “concepts as examples of the things that might be waste”, but the critical precursor is that they are waste material. It was further submitted that the competing expert evidence about whether or not biosolids are waste, should be of incidental interest to the Tribunal, and at the end of the day, it is a matter of applying the effect of the legal meaning of waste in the Award to biosolids.

[69] The purpose of calling expert evidence is to provide detailed background information about the constitution of biosolids and how they are created and to assist in demonstrating that this substance is something very different to what goes down the sewage pipes and ends up in the water treatment plants. It was submitted that the differences between Mr Smith and Mr Darvodelsky were minor. The only real difference is that Mr Smith regards biosolids as potentially not waste, provided they are treated appropriately and screened to the appropriate standard. The only reason Mr Smith regards biosolids as waste, is because he regards the regulatory regime in Australia as being insufficient to eliminate what he perceives to be the risks. It was also submitted that Mr Smith’s report was a desktop report; he had visited no sites; and was not experienced in terms of dealing with biosolids as Mr Darvodelsky.

[70] Arkwood accepts that biosolids have their origins in sewage and that they have potential hazards if they are mishandled or not treated properly. However, the creation of biosolids involves the extraction of reusable compounds from waste and the addition of some ingredients, for recycling and reuse primarily in the agricultural industry. It was submitted that biosolids bears no resemblance to what originally comes into the water treatment plant, just as leather shoes bear no resemblance to the scraps on the abattoir floor. Things that are obnoxious or unpalatable waste, if taken and treated or converted, can be put to a good purpose and one for which people will pay money. It was also submitted that glass broken during a production process may be recycled, and is not waste.

[71] The definition of waste in s.13 of the Environmental Protection Act 1994 was said to specifically exclude biosolids, and recent amendments to the definition are immaterial in relation to this exclusion. The Environmental Protection Act 1994 has the effect of “waving a wand” so that biosolids are not a waste within the meaning of that Act, and are not subject to the regulatory regime that applies to a waste product. Arkwood has at all times had an approval to use biosolids as a resource, and by virtue of that approval alone, biosolids do not constitute waste within the meaning of the Environmental Protection Act 1994. It was further submitted that even in the absence of departmental approval of biosolids as a resource, biosolids do not constitute “waste” within the meaning of the Environmental Protection Act 1994. Once processed, biosolids could not be described as “left over” or an “unwanted by-product” or “surplus”. Biosolids once created, serve a multitude of purposes and are created to be used and not disposed of.

[72] It was submitted that the biosolids industry is relatively new and has only been operating for approximately 20 years. Accordingly the drafters of earlier versions of the Waste Management Award 2010 could not have contemplated covering biosolids. It is contended that the 1978 Award would not cover cartage of biosolids, on the basis that they are not “waste, refuse, garbage, sullage, sewage and any other like material”. The 2001 Award contains the same incidence clause and in addition defines “waste” as “discarded, rejected, unwanted, surplus or abandoned matter, intended for recycling, reprocessing, recover, reuse or purification by a separate operation”. In relation to this definition, biosolids are not discarded, and having undergone a process, are a completed product. The term “intended” can only refer to products that have yet to undergo any process.

[73] In respect of the 2002 Award it is submitted that the phrase “any material whatsoever” should be restricted within the confines of the terminology that precedes it - ie. the term “waste”. That term would draw its meaning from usage in previous instruments, including discarded, rejected, abandoned, unwanted or surplus. Biosolids were not within the contemplation of the drafters of earlier instruments and the industry is relatively unknown although not entirely new. It is permitted to have regard to earlier industrial instruments to glean some idea of the intended coverage of the Waste Management Award 2010. However, the application clause must be looked at in its own right and given its plain meaning. Biosolids cannot fall within the meaning of the term “waste material”.

[74] Fundamental to the meaning “waste” is that it is abandoned or discarded. Although this may be said of sewage, once local authorities take possession of it, it is no longer abandoned or discarded. Further, the local authority has collected the sewage with the intention to process it and convert it into something different - a resource that is no longer a waste product. It is also submitted that at the point of time that Arkwood’s drivers first come into contact with biosolids, they are collecting a substance which has property rights assigned to it and which is the end result of a deliberate process of conversion undertaken by local authorities.

[75] Drivers are not required to “handle” biosolids. Arkwood concedes that one driver, Mr Reynolds, is covered by the Waste Management Award 2010 on the basis that he is the regular transporter of grits and screenings, which are waste products.

INTERPRETATION OF INDUSTRIAL INSTRUMENTS

[76] The legal principles associated with the interpretation of industrial instruments such as awards or agreements are well established, and can be summarised as follows:

● If the terms of an industrial instrument are clear and unambiguous, then the industrial instrument must be interpreted in accordance with that clear and unambiguous meaning; 17

● The words used in an industrial instrument should not be interpreted in a strict technical fashion, or in a way that is narrow or pedantic, because those who framed the industrial instrument are often non-lawyers drafting words in the context of custom and practice in an industry or particular enterprise; 18

● The words used in an industrial instrument should be interpreted within its context as a whole 19 and in the context of the clause/section in which it falls;20

● The focus should be on giving effect to the intention of the authority which made the instrument provided that the words appearing in the instrument can reasonably be interpreted to mean that which the authority intended them to mean; 21

● An instrument should be read so as to give effect to its evident purposes, notwithstanding inconsistent or infelicitous expression; 22

● The Tribunal’s recourse to extrinsic material in the interpretation of industrial instruments is not dependent on the existence of ambiguity in the industrial instrument; 23

● Meanings which avoid inconsistency or injustice should be preferred although the Tribunal is not free to give effect to its own view of what is fair and just regardless of the terms of the instrument; 24 and
● Expressions in other instruments which have been held to mean particular things may mean something else in the instrument being interpreted. 25

[77] The context of an expression is important. If an expression dealing with a particular subject was created by a respected draftsperson and has been adopted in a number of subsequent awards dealing with the same subject, including the award to be construed, the circumstances of the origin and use of the clause are plainly relevant to what is likely to have been intended by its use. 26 In Short v Hercus27Justice Burchett, sitting as a member of the Full Court of the Federal Court said:

“The context of an expression may thus be much more than the words that are its immediate neighbours. Context may extend to the entire document of which it is a part, or to other documents with which there is an association. Context may also include, in some cases, ideas that gave rise to an expression in a document from which it has been taken. When the expression was transplanted it may have brought with it some of the soil in which it once grew, retaining a special strength and colour in its new environment. There is no inherent necessity to read it as uprooted and stripped of every trace of its former significance, standing bare in alien ground. True, sometimes it does stand as if alone. But that should not be just assumed, in the case of an expression with a known source, without looking at its creation, understanding its original meaning, and then seeing how it is now used.” 28

[78] It is also the case that evidence of negotiations for an instrument may be admissible in proceedings relating to the construction of that instrument for the purpose of establishing objective background facts known to the parties and the subject matter of the instrument. However statements and actions reflective of the intentions of the parties are not admissible to establish those intentions, because they are superseded by, and merged into, the instrument itself. 29

CONCLUSIONS

The Award and its predecessors

[79] It is clear from the terms of the Waste Management Industry Award 2010¸ that it is intended to cover employees engaged in classifications set out in the Award, who are engaged in the “waste management industry” as defined. In my view the definition of “waste management industry” in clause 3.2 includes the transportation of biosolids.

[80] Waste material that is wholly or partly manufactured, clearly comes within the definition of the “waste management industry”. Essentially, if the material is waste from the outset, it is not removed from the coverage of the Award because it is transformed into something else. This is apparent from the use of the term “waste material” which may be solid, liquid, organic, biological, medical, raw or natural, wholly or partly manufactured, decomposed or partly decomposed. In this context, sewage that has been treated and transformed into biosolids is “waste material” regardless of the form it takes or what is done with it after the treatment process.

[81] This interpretation also finds support in the use of the term “recycling” in the definition of the “waste management industry”. Recycling of a product involves transforming it, or using it for a beneficial purpose. The fact that a product which was once untreated sewage is treated and spread on crops, does not alter its nature as waste within the terms of the Waste Management Award 2010.

[82] The evidence established that in 2007, some 50% of biosolids went to landfill and that this figure is now 10%. The evidence also establishes that the proportion of biosolids going to landfill is decreasing. Mr Smith maintained that biosolids going to landfill are waste and this evidence was not contested. It is also implicit in the case conducted for Arkwood, that if the biosolids carted by its employees were put into landfill, they would be waste and that the reason that biosolids are not waste is because they are used as a resource. This is apparent from the fact that Arkwood concedes that an employee who carts biosolids to landfill is covered by the Waste Management Award 2010.

[83] In my view, the end destination of the product is not determinative of whether it is waste within the definition of the waste management industry or whether employees carting it are covered by the Waste Management Award 2010.

[84] Treated sewage sludge that is spread on crops rather than put into landfill does not cease to be waste for the purposes of Award coverage. I am also of the view that there would be a significant inconsistency in determining that transportation of a product to landfill is covered by the Waste Management Industry Award 2010, and transportation of the same product to farms for agricultural use, is not covered by that Award.

[85] I do not accept the analogies in the submissions on behalf of Arkwood to the effect that biosolids are to sewage what leather shoes are to scraps on the abattoir floor. I doubt that leather shoes are made from scraps on the abattoir floor or that the transportation of processed or treated hides that are made into leather shoes, involves transportation of waste within the waste management industry as defined in the 2010 Award. In relation to the broken glass analogy, this is not a case about whether transportation of a product that was not waste but is scrapped or otherwise discarded because it is damaged in the production process, is in the waste management industry for the purposes of Award coverage.

[86] That the transportation of biosolids is part of the waste management industry is consistent with the application clauses of earlier awards and the development of those clauses. The 1978 Award arguably would have covered the transportation of biosolids on the basis that they are “waste or a like material...in its...wholly or partly manufactured state”. Similarly, the 2001 Award would have covered the transportation of biosolids on the basis that they were destined either for landfill or re-use. It is clear from the evidence of Mr Fagir that by 2001, as part of the award simplification process, the focus of those who were part of the making of the 2001 Award was on covering waste that was re-used or recycled. Indeed the Association representing the vast majority of the employer parties, had as members employers engaged in all facets of the waste management industry, including land application sites. There was no evidence that the term “land application sites” covered anything other than a recycled waste product being transported to areas where it could be spread onto agricultural land.

[87] The 2010 Award continues the focus on recycling and re-use. It is also notable that the application of the Award encompasses recycling as well as disposal. Further the 2010 Award encompasses the operation of certain facilities as well as the transportation of waste to those facilities. The application of the 2010 Award is arguably broader than the application of the earlier versions which are limited to the collection and/or handling of waste for the purposes of disposal to facilities to deal with it.

[88] In my view, to interpret the definition of “waste management industry” in clause 3.1 of the Waste Management Award 2010 in the manner contended for by Arkwood, would be to take a strict technical approach that is overly narrow and pedantic. Further, it is probable that the framers of the Waste Management Award 2010 and its predecessors intended that employees who transport a product which is manufactured from waste, to locations where it can be reused, would be covered by that Award.

[89] Further, the definition of the waste management industry must be read in the context of the 2010 Award as a whole. Clause 20.6 of the 2010 Award prescribes an industry allowance for all purposes of the Award set at 11% of the standard rate per week, in total recognition of “unique features” defined inclusively. These features are applicable to biosolids. Although I accept that there are other forms of fertilizer that have a more offensive odour than biosolids, biosolids have an unpleasant odour and it could be said to be offensive and obnoxious.

[90] On unloading vehicles drivers are required to get out of the vehicles and to hose down trucks. On occasion they do so in the rain, and the nature of biosolids is that they adhere to boots. While it is true that workers in other industries such as construction, encounter difficulties associated with the effects of wet weather, including mud adhering to their boots, those employees are also paid allowances for that, and other disabilities. Drivers delivering biosolids adapt to and handle hydraulic lifting apparatus and compaction units associated with waste vehicles. Arkwood’s operational procedures, which were in evidence before the Tribunal, make it clear that biosolids has the potential to be dangerous and the associated requirement for those employees transporting it to abide by correct operating procedures, including the wearing of appropriate protective gear and equipment.

[91] There was evidence from Mr Clarke to suggest that employees were performing some work in connection with the transportation of materials and equipment other than biosolids. That evidence establishes that at most, the proportion of work performed by employees other than that associated with the transportation of biosolids is 20%. Further, 50% of the equipment transported is Arkwood’s equipment. While the “dominant nature of establishment” test may have some relevance, the issue of more than one Award covering an employer is expressly dealt with in clause 4.7 of the Waste Management Award 2010.

[92] There is insufficient evidence before me upon which I could form a view about whether the fact that some employees of Arkwood perform work that could come within the terms of the Road Transport and Distribution Award 2010 is sufficient to remove those employees from the coverage of the Waste Management Award 2010. However, where the majority of the work performed by employees is the transportation of biosolids, it is my view that the Waste Management Award 2010 applied to those employees.

The legislative and regulatory framework

[93] The finding that biosolids is waste for the purposes of Award coverage is also consistent with environmental legislation and regulation. Section 13 of the Environmental Protection Act 1994 provides as follows:

13 Waste

(1) Waste includes any thing, other than a resource approved under the Waste Reduction Act, chapter 8, that is—

(a) left over, or an unwanted by-product, from an industrial, commercial, domestic or other activity; or

(b) surplus to the industrial, commercial, domestic or other activity generating the waste.

Example of paragraph (a)—

Abandoned or discarded material from an activity is left over, or an unwanted by-product, from the activity.

(2) Waste can be a gas, liquid, solid or energy, or a combination of any of them.

(3) A thing can be waste whether or not it is of value.

(4) For subsection (1), if the approval of a resource under the Waste Reduction Act, chapter 8, is a specific approval, the resource stops being waste only in relation to the holder of the approval.

(5) Despite subsection (1), a resource approved under the Waste Reduction Act, chapter 8, becomes waste—

(a) when it is delivered to a levyable waste disposal site; or

(b) if it is deposited at a place in a way that would, apart from its approval under that chapter, constitute a contravention of the general littering provision or the illegal dumping of waste provision under that Act—when the depositing starts.

(6) In this section—

levyable waste disposal site see the Waste Reduction Act, section 27.

Waste Reduction Act means the Waste Reduction and Recycling Act 2011.

[94] Schedule 7 of the Environmental Protection Regulation 1998 defines “sewage sludge and residues, including nightsoil and septic tank sludge” as regulated waste. Regulation 67 of the Environment Protection Regulation 1998 provides thatregulated waste is prescribed waste for schedule 3, item 37 of the Environmental Protection Act 1994. Schedule 3, item 37 provides as follows:

37. Waste storage, treatment or disposal—storing, treating, reprocessing or disposing of waste prescribed under a regulation to be regulated waste for this item (other than at the place it is generated), including operating a nightsoil disposal site or sewage treatment plant where the site or plant has a design capacity that is more than the equivalent of 50000 persons having sludge drying beds or on-site disposal facilities.

[95] The Environmental Protection (Waste Management) Regulation has as its object:

4 Object of this regulation

The object of this regulation is to protect the environment by—

(a) minimising the impact of waste on the environment including, in particular, the impact of waste so far as it directly affects human health; and

(b) establishing an integrated framework for minimising and managing waste under the principles of ecologically sustainable development.

[96] Arkwood holds an approval of a resource for beneficial use, issued on 5 May 2011 pursuant to the Environmental Protection (Waste Management) Regulation 2000. The approval authorises Arkwood to use biosolids from listed wastewater treatment plants, at specified properties. The approval specifies requirements for release, storage, plant and equipment, insurance, assessment of suitability of sites and monitoring quality. The approval makes it clear that biosolids must not be released or removed from a vehicle, other than at a facility where it can be lawfully received. The provisions of the approval relating to spillage of biosolids also make it apparent that they are waste for all purposes of the approval and deemed to be a resource for limited purposes. The approval also makes it clear that biosolids would not be considered a resource if it is not applied to the specific activity sites.

[97] Waste tracking requirements under the Environmental Protection (Waste Management) Regulation 2000 apply to the transportation of biosolids, except where they are transported to a farm to be used as soil conditioner or fertilizer. If they are transported to an alternative site, then the waste tracking requirements apply. For the purposes of that regulation, biosolids are a trackable waste.

[98] I do not accept the submission on behalf of Arkwood that biosolids are excluded from the definition of waste in the Environmental Protection Act 1994 and that the effect of that Act is to “wave a magic wand over biosolids” so that it ceases to be waste and to be subject to the regulatory regime applicable to waste products. That submission is at odds with the legislative and regulatory framework. Biosolids are clearly “waste” as defined in the Environmental Protection Act 1994. If this was not the case, the entire legislative regime with which Arkwood is apparently complying would have no application. The submission that even without an approval to use biosolids as a resource, Arkwood could engage in transporting and otherwise dealing with it as a resource, is also at odds with the stated practices of Arkwood. Quite simply, Arkwood is not at liberty to use or otherwise dispose of biosolids other than in accordance with the strict terms of the approval under the Environmental Protection (Waste Management) Regulation 2000.

[99] There is no evidence that there has been any review of the regulatory framework in terms of the legislative definitions of waste, regulated waste and trackable waste, as foreshadowed by Mr Darvodelsky.

[100] There was no evidence about the commercial arrangements under which Arkwood transports and supplies biosolids and I am unable to accept that this is a matter that is relevant to the determination of whether the work of transporting them is covered by the Waste Management Award 2010. Further, waste can have a value, consistent with s.13(3) of the Environmental Protection Act 1994.

[101] In my view, when the entirety of the legislative and regulatory framework is considered, the effect is that biosolids are waste material that is permitted to be used beneficially as a fertiliser or soil conditioner. Biosolids are “waste” deemed to be a resource, provided that it is used for those purposes and transported and otherwise dealt with in accordance with the terms of the approval. If biosolids are dealt with other than in accordance with the strict terms of the approval, they cease to be deemed as a resource and revert to their primary classification as “waste”. For practical purposes such as award coverage, the use to which biosolids may be put because they are deemed to be a resource, does not alter the fact that they are waste.

Expert witness evidence

[102] There is nothing in the expert witness evidence to persuade me in the face of the clear provisions of the Waste Management Award 2010 and the legislative and regulatory framework, that employees who undertake the transportation of biosolids are not covered by that Award. Much of the expert witness evidence was irrelevant to these proceedings, other than as background in relation to matters such as the history of sewage treatment; the composition and nature of biosolids; and their general uses. While the expert witnesses identified relevant legislative provisions, some of those identified had been amended since the Reports were prepared.

[103] There was some conflict in the evidence about whether biosolids are safe for human health when used as a fertiliser or soil conditioner. While I do not doubt the significance of this issue, the resolution of such a conflict between experts is not a matter for Fair Work Australia. For the purposes of the present proceedings, there is a legislative and regulatory framework underpinning the operations of Arkwood in relation to the transportation of biosolids, and there is no evidence that it is not being complied with.

[104] I am also of the view that the finding that biosolids have a primary classification as “waste” and can be deemed to be a resource for limited purposes without removing that primary classification, is not inconsistent with the evidence of both Mr Smith and Mr Darvodelsky. Mr Smith maintained that biosolids treated in accordance with standard procedures in Australia are waste and could only cease to be so classified if they underwent further processing. Mr Darvodelsky said in his evidence that generally, biosolids are classified as a waste under environmental legislation and exempt from that classification if they are used in accordance with relevant guidelines.

Answer to the question for arbitration

[105] For these reasons, I have concluded that the Award which covers employees of Arkwood transporting biosolids is the Waste Management Award 2010 and answer the question for arbitration accordingly.

COMMISSIONER

Appearances:

Mr A. Carter on behalf of the Applicant.

Mr J. Dwyer of Counsel on behalf of the Respondent.

Hearing details:

2012.
Brisbane:
February 20, 21, 22.

1 Witness Statement Exhibit 1.

2 Witness Statement Exhibit 2.

3 Witness Statement Exhibit 3; Witness Statement in Reply Exhibit 4.

4 Witness Statement Exhibit 5.

5 Witness Statement Exhibit 8; Witness Statement in Reply Exhibit 9.

6 Witness Statement Exhibit 5 Annexure “OF-11”.

7 Waste Management Award 2010 clause 4.1.

8 Exhibit 8 Annexure “PS-2”.

9 Exhibit 9.

10 Kucks v CSR Limited (1996) 66 IR 182.

11 Short v Hercus Pty Ltd [1993] FCA 51; (1993) 40 FCR 511.

12 Meatpak v Moran [2005] [2005] 145 IR 248.

13 Witness Statement Exhibit 10.

14 Witness Statement and Report Exhibit 11.

15 Exhibit 10 - Annexure “BC2”

16 Exhibit 11 Annexure “PD1”

17 The Australian Workers’ Union v Visy Board Pty Ltd t/as Visy Specialities Re Clothing Trades Award (1950) 68 CAR 597; Re Clothing Trades Award (1950) 68 CAR 597.

18 Bond & Co Ltd (in liquidation) v McKenzie (1929) 28 AR 499; Kucks v CSR (1996) 66 IR 182.

19 Australian Workers’ Union v Abbey (1939) 40 CAR 494.

20 Avondale Motors (Parts) Pty Ltd v Federal Commissioner of Taxation (1971) 44 ALJR 280 at 283.

21 Australian Timber Workers’ Union v W Angliss and Co Pty Ltd (1924) 19 CAR 172.

22 Kucks v CSR (1996) (1996) 66 IR 182 at 184.

23 Australian Municipal, Administrative, Clerical & Services Union v Commonwealth of Australia (1998) 82 FCR 175; 80 IR 345.

24 Kucks v CSR (1996) (1996) 66 IR 182 at 184.

25 Ibid at 184

26 Re Andrew John Short v FW Hercus Pty Ltd [1993] FCA 51; (1993) 40 FCR 511 per Burchett J at (6).

27 Ibid

28 Ibid at (7)

29 Codelpha Construction v State Rail Authority (NSW) (1982) 149 CLR 337 at 347 -353 per Mason J, with whom Stephen and Wilson JJ agreed.

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