Public Service Association and Professional Officers' Association Amalgamated Union of NSW v Director General, Department of Premier and Cabinet

Public Service Association and Professional Officers' Association Amalgamated Union of NSW v Director General, Department of Premier and Cabinet - [2010] NSWIRComm 59 - NSWIRComm 2010 case summary — Zoe

[5]

Amcor Ltd v Construction, Forestry, Mining and Energy Union [2003] FCAFC 57 Amcor Ltd v Construction, Forestry, Mining and Energy Union [2005] HCA 10; (2005) 222 CLR 241 Australian Workers Union v Pasminco Australia Ltd [2003] NSWIRComm 365; (2003) 131 IR 1 BHP Steel (AIS) Pty Ltd v Australian Workers' Union, New South Wales [2003] NSWIRComm 124; (2003) 125 IR 207 BP Refinery (Westernport) Pty Ltd v Hastings Shire Council (1977) 180 CLR 266 Brambles Holdings Ltd v Bathurst City Council [2001] NSWCA 61; (2001) 53 NSWLR 153 City of Wanneroo v Holmes (1989) 30 IR 362 Codelfa Construction Pty Ltd v State Rail Authority of NSW (1982) 149 CLR 337 Construction, Forestry, Mining and Energy Union (New South Wales Branch) v Delta Electricity [2003] NSWIRComm 135; (2003) 146 IR 360 Crown Employees (Police Officers - 2009) Award [2009] NSWIRComm 190 Director of Public Employment (by her Agent the Commissioner of NSW Fire Brigades) v New South Wales Fire Brigades Employees' Union [2008] NSWIRComm 158; (2008) 180 IR 170 George A Bond & Co Ltd (in liq) v McKenzie [1929] AR (NSW) 498 CASES CITED: Kingmill Australia Pty Ltd t/a Thrifty Car Rental v Federated Clerks' Union of Australia, New South Wales Branch [2001] NSWIRComm 141; (2001) 106 IR 217 Kucks v CSR Ltd (1996) 66 IR 182 Media Entertainment & Arts Alliance, Re; Ex parte Hoyts Corporation Pty Ltd [1993] HCA 40; (1993) 178 CLR 379 Operational Ambulance Officers (State) Award [2008] NSWIRComm 156 Perisher Blue Pty Ltd v Australian Workers Union (1999) 91 IR 274 Printing & Kindred Industries Union v Davies Bros Ltd (1986) 18 IR 444 Public Service Association and Professional Officers' Association Amalgamated Union of New South Wales and Director-General, Department of Premier and Cabinet [2009] NSWIRComm 131 Ryan v Textile Clothing & Footwear Union of Australia [1996] 2 VR 235; (1996) 66 IR 258 Seamen's Union of Australia v Adelaide Steamship Co Ltd (1976) 46 FLR 444 Short v FW Hercus Pty Ltd (1993) 40 FCR 511 Spargo v Repatriation Commission (2001) 116 FCR 304 Toll (FGCT) Pty Ltd v Alphapharm Pty Ltd [2004] HCA 52; (2004) 219 CLR 165 Union of Postal Clerks and Telegraphists, Re; Ex parte ATPOA [1986] HCA 45; (1986) 66 ALR 227 United Firefighters' Union of Australia v Metropolitan Fire and Emergency Services Board (2006) 152 FCR 18

[27]

10 In its Recommendation of 17 September 2008 the Commission observed at [3] that: [O]n 16 September the Commission registered its concern with the government parties that there had been a shift in their position in the conciliation proceedings that widened the differences between the parties. The Commission asked why it should not make a direction pursuant to s 134(4) of the Industrial Relations Act 1996 that the parties are to bargain in good faith and to that end they should return to the position that the Commission had understood it to be on 11 September. 11 The government parties opposed the making of the direction; the PSA supported such a direction. In the result, however, the Commission decided to make a recommendation pursuant to s 134(2) of the Industrial Relations Act 1996 aimed at providing the parties with a possible basis for settlement. That decision was made in the face of imminent arbitration proceedings. 12 At [5] the Commission related some relevant background: [5] ... The Government's wages policy provides that in the absence of cost savings only 2.5 per cent is available for salary increases. Increases in addition to 2.5 per cent, however, remain available through negotiated employee related cost saving and reforms. In relation to the Government's offer of 4.0 per cent in the MOU it was based on the 2.5 per cent unfunded portion plus 1.5 per cent to be negotiated in the central forum of negotiations that had been proceeding in the Commission, with a part of that 1.5 per cent being reserved for negotiations at agency level. The parties had reached agreement as to the scope of matters that would be the subject of agency level bargaining during the life of the MOU, except that there was no agreement on how much of the 1.5 per cent was to be reserved for agency level bargaining. 13 At [6]-[8] the Commission explained the core of what was proposed: [6] If the parties were to accept the Commission's recommendation it will mean the government will have achieved cost savings to fund, in part, the increase above 2.5 per cent. The Commission is not at liberty to disclose the amount of cost savings because of the government's insistence on confidentiality. The government in its offer did not make it a condition for payment of the 4.0 per cent increase that agency level improvement initiatives were first to be negotiated and costed. It seems to me, therefore, that it is open to the parties to negotiate outcomes at the agency level that will produce cost savings to fund the difference between what has been achieved under the Commission's recommendation and what is necessary to fund the remainder of the 4.0 per cent increase.

[44]

9 It was agreed between the parties that the essential task for the Commission in answering the eight questions put to it was the interpretation of the MOU. There was also a large measure of agreement regarding the legal principles to be applied to the interpretation task. The parties cited the following authorities: · the interpretation of an industrial agreement turns on its language, but the language used must be understood in the light of its industrial context and purpose: Amcor Ltd v Construction, Forestry, Mining and Energy Union [2005] HCA 10; (2005) 222 CLR 241 at [2] and [96]; · the context includes the whole of the text of the document: Re Media Entertainment & Arts Alliance; Ex parte Hoyts Corporation Pty Ltd [1993] HCA 40; (1993) 178 CLR 379 at 386-387; · the context in which the words used in any agreement (particularly an industrial agreement) must be understood includes the circumstances in which the agreement was made: see, for example, George A Bond & Co Ltd (in liq) v McKenzie [1929] AR (NSW) 498 at 503-504; Short v FW Hercus Pty Ltd (1993) 40 FCR 511 at 518; Kingmill Australia Pty Ltd t/a Thrifty Car Rental v Federated Clerks' Union of Australia, New South Wales Branch [2001] NSWIRComm 141; (2001) 106 IR 217 at [67]; Perisher Blue Pty Ltd v Australian Workers Union (1999) 91 IR 274 at 283-284; · whilst the circumstances and conduct of the parties at the time of the making of an agreement can assist in the interpretation of the agreement, conduct of the parties subsequent to the making of agreement is irrelevant in its interpretation: see, for example, Ryan v Textile Clothing & Footwear Union of Australia [1996] 2 VR 235; (1996) 66 IR 258 at 285-286; Brambles Holdings Ltd v Bathurst City Council [2001] NSWCA 61; (2001) 53 NSWLR 153 at [26]; Australian Workers Union v Pasminco Australia Ltd [2003] NSWIRComm 365; (2003) 131 IR 1 at [39]; Seamen's Union of Australia v Adelaide Steamship Co Ltd (1976) 46 FLR 444 at 445; City of Wanneroo v Holmes (1989) 30 IR 362 at 378; Amcor Ltd v Construction, Forestry, Mining and Energy Union [2003] FCAFC 57 at [48]; · the task is ultimately one of ascertaining the intention of the parties to the agreement by reference to the words used and the surrounding circumstances. The intention is judged objectively (Re Union of Postal Clerks and Telegraphists; Ex parte ATPOA [1986] HCA 45; (1986) 66 ALR 227 at 235) by reference to what a reasonable person would have assumed that the parties intended, rather than the actual subjective intentions of the parties: Toll (FGCT) Pty Ltd v Alphapharm Pty Ltd [2004] HCA 52; (2004) 219 CLR 165 at [40]; · particularly in the case of industrial agreements, an overly strict or literal approach to construction is rarely appropriate. It is justifiable to read an industrial agreement so as to give effect to its evident purposes, having regard to such context, despite mere inconsistencies or infelicities of expression: Kucks v CSR Ltd (1996) 66 IR 182 at 184; United Firefighters' Union of Australia v Metropolitan Fire and Emergency Services Board (2006) 152 FCR 18 at [51]-[52]; · the Commission should ensure that the sanctity of good faith bargains are adhered to and, therefore, considerable weight should be placed upon the actual terms of the agreements reached where those words are capable of a clear and unambiguous meaning: BHP Steel (AIS) Pty Ltd v Australian Workers' Union, New South Wales [2003] NSWIRComm 124; (2003) 125 IR 207 at [15]; · the use of extrinsic material in interpreting agreements is allowed in very limited circumstances such as where the language is ambiguous or susceptible of more than one meaning but only where such facts are known to both parties or so notorious knowledge of them will be presumed. However, such evidence is not admissible to contradict the language of the contract or agreement when it has a plain meaning. Further, the Commission should not look to the actual intentions, aspirations or expectations of the individual parties before or at the time of the MOU when determining the meaning of the MOU (see Codelfa Construction Pty Ltd v State Rail Authority of NSW (1982) 149 CLR 337 Mason J at 348-352; Australian Workers Union v Pasminco Australia Ltd at [41]; Construction, Forestry, Mining and Energy Union (New South Wales Branch) v Delta Electricity [2003] NSWIRComm 135; (2003) 146 IR 360 at [43]-[44] and Crown Employees (Police Officers - 2009) Award [2009] NSWIRComm 190 at [15]-[16]).

[45]

10 It is accepted that the principles articulated in these cases are generally applicable to a resolution of the issues in these proceedings. I note the respondent also referred to Director of Public Employment (by her Agent the Commissioner of NSW Fire Brigades) v New South Wales Fire Brigades Employees' Union [2008] NSWIRComm 158; (2008) 180 IR 170. Whilst that case was concerned with the interpretation of an industrial award, the principle there enunciated is relevant to the interpretation of the MOU. At [46]-[47] it was stated: [46] Whilst awards are instruments to be construed according to the terms of the Interpretation Act, consideration should be given to the differences between statutes and awards. Some of these differences were referred to by Street J in Bond v McKenzie: But at the same time, it must be remembered that awards are made for the various industries in the light of the customs and working conditions of each industry, and they frequently result, as this award in fact did, from an agreement between parties, couched in terms intelligible to themselves but often framed without that careful attention to form and draughtsmanship which one expects to find in an Act of Parliament. [47] Nevertheless, it would be untenable to attempt to construe the terms of an award according to the subjective intentions of the parties if, in doing so, it resulted in an unreasonable and unnatural construction having to be placed on the words of the award. In interpreting the provisions of an award the intention of the drafters must be ascertained by reference to the actual words used (and those words should be given their plain, ordinary meaning), thereby disclosing the underlying purpose or object of the award and its context, using that term in its broadest sense, including extrinsic material. Thus, attention must at all times be given to the meaning and effect of the award as it appears from the plain and ordinary meaning of the words used: see Zoological Parks at [43]. It is not permitted to attach to a provision of an award a meaning which the words of the award cannot reasonably bear: Cooper Brookes (Wollongong) Pty Ltd v The Commissioner of Taxation of the Commonwealth of Australia (1981) 147 CLR 297 at 321 (per Mason and Wilson JJ). Question 1

[48]

17 Mr Turner said in his evidence: The position that there was a 0.5% cap on agency level initiatives was reinforced by representatives of the NSW Government during the course of negotiations on 15 September 2008 and negotiations that led up to the Recommendation of his Honour Justice Boland on 17 September 2008. This policy was stated to be the firm position of the Government. So far as I or the PSA is aware, the policy was not retracted at any stage prior or subsequent to the Recommendation. 18 Based on this evidence it was submitted for the PSA: [T]he Government's position, decided by way of decision of the Budget Committee of Cabinet, was that agency level savings be limited to 0.5%. That decision was binding upon the Government representatives in their negotiations with the PSA. No evidence was called to suggest that the Cabinet decision was ever changed. Certainly, no change in the Government's position was ever communicated to the PSA or the Commission. The Government cannot rely upon an inference that upon accepting the Recommendation it "returned to the earlier position and no longer sought to impose such a cap…" In circumstances in which the Government has not called any evidence, the only inference to be drawn is that there was no change in the Government's position. 19 The MOU does not provide an obvious answer to the issues raised by Question 1. The MOU simply does not provide any express indication as to the quantum of agency employee cost offsets to be achieved. Nor does it identify the value of cost offsets of the central reforms proposed in the Recommendation other that the statements 'the Commission's recommendation it will mean the government will have achieved cost savings to fund, in part, the increase above 2.5 per cent' and that 'it is open to the parties to negotiate outcomes at the agency level that will produce cost savings to fund the difference between what has been achieved under the Commission's recommendation and what is necessary to fund the remainder of the 4.0 per cent increase.'

[49]

20 There is nothing expressed in the MOU that limits the quantum of agency employee cost offsets to 0.5 per cent or less. Nor, in my view, could such a limitation be implied, based on the tests enunciated in BP Refinery (Westernport) Pty Ltd v Hastings Shire Council (1977) 180 CLR 266 at 283. 21 It is arguable, however, that the MOU is ambiguous given there are rival contentions by the parties as to its proper interpretation: Printing & Kindred Industries Union v Davies Bros Ltd (1986) 18 IR 444 at 449; Spargo v Repatriation Commission (2001) 116 FCR 304 at [13]. To resolve the ambiguity regard may be had to extrinsic material. There is also the issue of whether there was some underlying agreement between the parties of a limit on agency level cost offsets of 0.5 per cent. 22 In considering the question of whether there was an underlying agreement imposing a cap of 0.5 per cent or whether there was ambiguity in the MOU, it is permissible to have regard to surrounding circumstances, one of which is the Commission's Recommendation of 17 September 2008 from which the MOU derived. 23 There is no doubt that on 15 September 2008 representatives of the DPC put on the negotiating table the concept of a cap on agency level savings. That was obviously designed to place pressure on the PSA to deliver more savings through centrally negotiated reforms. It was clearly the case that the Commission's concern expressed at [3] of the Recommendation related to the change in the Department's position represented by the cap of 0.5 per cent at the agency level imposed unilaterally by the respondent. In the Commission's view, given the progress that had been made up to that point, that was a retrograde step and raised the question whether the respondent was bargaining in good faith. 24 By 16 September, after a very long period of difficult negotiations between the parties, with an extended arbitration imminent before the Full Bench, it is evident from the terms of what the Commission said in its Recommendation that the Commission was seeking to break the deadlock, namely, that the PSA would not agree to any further cost saving measures through centrally negotiated reforms and the DPC adopting a position that only 0.5 per cent of savings could be negotiated at the agency level and the remainder had to be achieved through central reforms. The Commission understood that a number of central reforms had been largely agreed and to the extent of that agreement, that it offset part, but not all, of the cost of the difference between the 4.0 per cent offer by the Government and the 2.5 per cent funded element of a wage increase. To the extent there was agreement on central reforms this was reflected in the Recommendation. 25 The mechanism proposed by the Commission to resolve the impasse was that the parties should 'negotiate outcomes at the agency level that will produce cost savings to fund the difference between what has been achieved under the Commission's Recommendation and what is necessary to fund the remainder of the 4.0 per cent increase.' The scope of matters to be negotiated at the agency level had been agreed between the parties and it was unnecessary for the Commission to make any recommendation that differed in that respect. 26 It is inconsistent with the Recommendation that there be a cap of 0.5 per cent on employee cost offsets at the agency level. The Commission was aware of the fact that only a proportion of the 1.5 per cent that needed to be found was fundable by the central reforms that had been agreed and that the parties had exhausted their efforts in being able to agree on any further central reforms. The idea that the Recommendation was envisaging a cap of 0.5 per cent for agency bargaining does not fit at all with the recommendation that the parties 'negotiate outcomes at the agency level that will produce cost savings to fund the difference between what has been achieved under the Commission's Recommendation and what is necessary to fund the remainder of the 4.0 per cent increase.' There was no suggestion or evidence that what could be 'achieved under the Commission's Recommendation' amounted to 1.0 per cent, leaving 0.5 per cent to be negotiated at the agency level. 27 Moreover, it is clearly the case that the Commission was seeking to find a mechanism that would fund the difference between the funded increase of 2.5 per cent and the 4.0 per cent on offer. Part of that difference could be filled by the central reforms proposed in the Recommendation, but on the information available to the Commission that part could not have constituted 1.0 per cent in savings. For the Recommendation to be regarded as imposing a cap of 0.5 per cent on agency level savings would have meant that the Commission was limiting the ability of the parties to negotiate reforms that would enable the potential for cost savings to be achieved to fund the whole of the difference between 2.5 per cent and 4.0 per cent. That is not what the Commission intended nor what the Recommendation states in [6] and [7]. 28 As for the underlying agreement, whilst the DPC did, on Cabinet Committee authority, propose a cap in the negotiations and did not at any stage indicate that position was withdrawn, the concept of a cap was clearly overtaken by the Commission's Recommendation and a reasonable bystander would have understood that to be the case. That the PSA continued to believe the cap remained because the DPC did not expressly indicate otherwise, such a subjective belief is no basis to find that there was an underlying agreement regarding the application of a cap. 29 The remaining issue concerns whether a department or agency is entitled to negotiate employee-related cost savings to the full extent of 1.5 per cent notwithstanding the Commission's Recommendation acknowledged that acceptance of the Recommendation would mean that 'the government will have achieved cost savings to fund, in part, the increase above 2.5 per cent.' 30 The PSA submitted that the Recommendation and the parties contemplated that it was only the residual, that is, what was left (up to a cap of 0.5 per cent) given the cost savings achieved from the central reforms, that would need to be found from 'agency level improvement initiatives'. Further, that it was not and could not have been envisaged that the PSA would come to negotiate 'agency level improvement initiatives' for any particular department and agency and be required to identify 'agency level improvement initiatives' which would satisfy the whole of the cost of the salary increases for employees in that department or agency (above 2.5 per cent per annum). 31 The DPC's position was that a department or agency was entitled under the MOU to negotiate agency level improvement initiatives up to 1.5 per cent if the central reforms were of zero or negligible value for that department or agency. 32 At [7] of its Recommendation the Commission stated: [7] ... In other words, as far as the Commission is concerned agencies will be entitled to negotiate and implement improvement initiatives that, at a minimum, will produce cost savings to fund the difference between what has been achieved under the Commission's recommendation and what is necessary to fund the remainder of the 4.0 per cent increase. 33 That statement has to be seen against the attempt by the Commission in its Recommendation to facilitate, in a fair and reasonable way, the opportunity for the parties to achieve employee-related cost offsets that would fund the difference between 2.5 per cent and 4.0 percent across the whole of the public sector that was the subject of the claim. That objective would be thwarted if a department or agency were prevented from pursuing offsets that would deliver savings of 1.5 per cent. Given the size of the Department of Education and Training, if it were not able to pursue 1.5 per cent of cost offsets (either through agency level bargaining or a combination of agency level bargaining and the central reforms) the potential for the Government to achieve the necessary savings to fund the wage increase across the board would be made impossible. 34 The answer to Question 1 is that the MOU was not agreed on the basis that there was a limitation on the quantum of agency employee cost offsets to 0.5 per cent or less. Further, that a department or agency is entitled to pursue agency level employee-related cost savings that would fund a wage increase of 1.5 per cent, either through agency level bargaining or a combination of agency level bargaining and the central reforms. Question 2

[50]

35 As the applicant submitted, Question 2 raises the issue of whether individual departments and agencies are entitled to seek variations to award conditions, including standard public sector award conditions, as 'agency level improvement initiatives' pursuant to clause 6 of the MOU. 36 The position of the PSA was that there was no such entitlement. It was submitted that any variations to standard public sector award conditions were dealt with by the parties in the negotiation of the 'central reforms' and the phrase 'agency level improvement initiatives' did not contemplate further award changes. This included further variations to the Conditions Award or variations to other agency level awards which were reflective of standard public sector conditions of employment. 37 The position of the DPC was that in order to achieve employee-related cost savings, a department or agency was entitled to pursue any award variation, whether it be in relation to the Conditions Award or other agency level awards. 38 It was earlier said that the Commission's Recommendation was to facilitate the opportunity for the parties to achieve employee-related cost offsets that would fund the difference between 2.5 per cent and 4.0 percent across the whole of the public sector that was the subject of the claim. However, that does not mean there was an absence of any restriction on that opportunity. 39 I do not accept that the MOU leaves it open to a department or agency pursuing agency level improvement initiatives to do so by way of an award variation to the Conditions Award for the following reasons that include those submitted by the PSA: a. the MOU, read as a whole, does not envisage changes to standard public sector award conditions by use of the mechanism in cl 6 of the MOU. Any matter involving the reduction or abolition of those conditions by way of an arbitrated variation to an award of the Commission under the Industrial Relations Act is not an agency level improvement initiative. The changes to the Conditions Award are dealt with in cl 5. There is a clear demarcation between those changes and the changes envisaged under cl 6; b. the 'Objectives' listed in cl 1 of the MOU include that the parties 'agreed that the change of conditions and agency improvement initiatives outlined in this Memorandum underpin the agreement regarding the quantum of wage increases (above 2.5%) for the period covered by this Memorandum.' A distinction is drawn in the language agreed to by the parties between 'change of conditions' and 'agency improvement initiatives'. Where the MOU contemplated award changes occurring, it said so very specifically. For example, cl 9 refers to the particular clauses of the Conditions Award which would be varied; c. clause 6 of the MOU itself does not contemplate a series of major merit arbitrations concerning unrestricted alterations to any award conditions or salaries. It is confined to dealing with 'disputes or difficulties' that arise at the agency level in respect of the implementation of 'agency level improvement initiatives'; d. the matters identified in cll 6.1-6.4 relate to 'agency specific initiatives'. That is a class of matters readily distinguishable from employment conditions that have public sector wide application. Clause 6.5 - Any other initiatives as relevant, refers to agency specific initiatives and does not extend the coverage of cl 6 to allow a department or agency to seek to reduce or abolish award conditions that have general application in the public sector. An application to reduce or abolish such conditions would necessarily involve a consideration of the general industrial merit of the condition beyond any consideration of it being an agency level improvement initiative; e. The reference in cl 6.1 to consideration being given to 'agency specific initiatives to deliver further efficiencies in the Conditions areas identified in this Memorandum' does not suggest the MOU contemplated variations to standard award conditions. The reduction of a standard award condition such as overtime rates, higher duties allowances, workers compensation entitlements and the like are not 'agency specific' conditions; f. the notion that the PSA would be at risk of significant and detrimental changes to standard, public sector-wide award rates of pay and conditions in what would inevitably be a major industrial arbitration would be inconsistent with the stated objective of the MOU that it was 'designed to provide both parties with certainty of outcomes for the period of the Memorandum'; g. the background circumstances, particularly the detailed negotiations of the 'central reforms' in cl 5 of the MOU, support the conclusion that the parties did not intend standard award conditions (including the matters specifically negotiated) to be the subject of agency level initiatives. As the PSA submitted: The parties and the Commission expended very considerable amounts of time, resources and expertise throughout August and September 2008 in negotiating the details of the various "central reforms" proposed by the Government. The Government withdrew various proposals to reduce award conditions which were objected to by the PSA and the substance and wording of the remaining were subject of substantial revision. The parties ultimately accepted the Recommendation of the Commission as to the particular "central reforms" which could not be agreed directly between the parties, particularly with respect to managing displaced employees, transferred officers entitlements and travelling compensation. There would have been absolutely no point in the parties negotiating the details of these "central reforms" or the Commission making its Recommendation if the MOU contemplated that the Government could revisit those subjects and have arbitrated any variations to public sector award conditions it wished to pursue (including the very same conditions which had been determined centrally) on an agency by agency basis. Had this been contemplated, there would have been no purpose in negotiating or agreeing any "central reforms". The only sensible construction of the phrase "agency level improvement initiatives" having regard to the conduct of the parties is that it did not extend to variations to standard award conditions; h. on the approach of the DPC, it would be possible for a department or agency to pursue the cancelling of the accrued leave of employees as a measure to deliver 'further efficiencies' in the area of reducing annual leave liabilities (cl 5.12 of the MOU). On that approach, a department or agency could pursue the reduction or abolition of maternity leave as a 'further efficiency' in the area of maternity leave even though the parties expressly agreed to an enhancement of maternity leave entitlements (cl 5.10 of the MOU). A reasonable person would not impute to the parties unreasonable or absurd intentions in making an agreement; i any attempt (other than by consent) to vary the Conditions Award is precluded by cl 8 of the MOU, No Extra Claims. Clause 8 confirms that a contested variation to that Award is not contemplated by the MOU. Clause 8 specifically refers to the circumstances in which award variations can occur during the term of the MOU. The parties would not have made provision ensuring that consent variations could proceed notwithstanding the no extra claims provision if cl 8 permitted contested award variations to be pursued during the life of the MOU. Clause 8 is made subject to cl 6; this allows variations to agency level awards in the circumstances described below, but not to the Conditions Award.

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