Removing ambiguous clauses from agreements

Cases

Removing ambiguous clauses from agreements

An application to vary a certified agreement because it contains an ambiguous clause(s) cannot be used to insert new provisions which are additional or contrary to the original agreement.

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An application to vary a certified agreement because it contains an ambiguous clause(s) cannot be used to insert new provisions which are additional or contrary to the original agreement.

The Australian Industrial Relations Commission has rejected an application under s170MDof the federal Workplace Relations Act 1996to vary a certified agreement to remove ambiguity (Application by Construction, Forestry, Mining and Energy Union re Capricorn Coal Management Pty Ltd and CFMEU and CEPU Certified Agreement 1996; Print Q4429, [1998] 980 IRCommA).

The union submitted that the employer was altering custom and practice in relation to internal hiring in contravention of the certified agreement. The employer argued they wanted to promote employees on the basis of merit rather than seniority and that they were acting within the bounds of the agreement.

The union, in order to clarify the terms of the agreement wanted to insert a new clause regarding existing arrangements. The application to vary the agreement to insert the new clause was on the basis that it clarified a range of ambiguous terms existing within the agreement.

The union submitted that while there is no ambiguity on the face of the words of the clauses in question, the ambiguity arises as a result of the interpretation of those clauses.

The Commission followed the principles established in the Full Bench decision in The Public Transport Corporation of Victoria and Australian Rail, Tram and Bus Industry Union and Ors (Print M2454, [1995] 1253 IRCommA). Those principles provide a two step process, 'firstly determining whether or not an ambiguity or uncertainty exists and secondly whether it is desirable to vary the agreement for the purpose of removing the ambiguity or uncertainty'.

The Commission, found there was no ambiguity or uncertainty in the way the certified agreement operated in relation to the selection of employees to fill internal positions. The Commission held that it 'cannot be said on the basis of an objective assessment of the Certified Agreement... there is an ambiguity or uncertainty'.

The Commission also held that the power of the Commission to vary an agreement depends on the existence of an ambiguity or uncertainty but also that the variation sought is used for the purpose of removing the identified ambiguity. The Commission commented that the power to vary an agreement in this regard 'may not appropriately be used to re-write an agreement to install something that was not inherent to the agreement when it was made'.

In conclusion, the Commission stated that

...what is complained about is not included within the terms of the agreement, but rather the Union seeks to rely upon a finding of ambiguity or uncertainty, to include matters which are outside the terms of the agreement. On that basis I cannot reach the conclusion sought by the Union in that I can find no ambiguity or uncertainty within clauses 12.2, 17.2 and 49 of the certified agreement.

 
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