Statistics Act, 1999
R 385
Labour Relations Act, 1995 (Act No. 66 of 1995)NoticesBargaining Council for the Building Industry, Cape of Good HopeExtension to Non-parties of the Main Consolidated Collective AgreementChapter Eleven: Compliance, Monitoring and Exemptions57. Exemptions |
| (1) | All applications for exemption shall be in writing (on an application form as provided by the Council) and shall be addressed to the Secretary of the Council. |
| (2) | The Council hereby establishes an Exemptions Body constituted of the Compliance Committee appointed by the Council to consider all applications for exemptions of the Council's Collective Agreement. |
| (3) | Any person subject to the constitution/agreement may apply for exemption. |
| (4) | The Council shall decide an application for exemption within 30 (thirty) days of receipt. |
| (5) | All applicants for exemption shall be substantiated, and such substantiation shall include the following details: |
| (a) | The period for which the exemption is required; |
| (b) | the Agreement and clauses or sub-clauses of the Agreement from which exemption is required; and |
| (c) | proof that the exemption applied for has been discussed by the employer, his employees and their respective representatives, and the responses resulting from such consultation, either in support of or against the application, are to be included with the application. |
| (6) | Upon receipt of a valid application by the Council it shall immediately refer the application to the Exemptions Body which may, if deemed expedient, request the applicant to attend the meeting at which the application is considered, to facilitate the deliberations. |
| (7) | The authority of the Council is to consider applications for exemptions and grant exemptions. |
| (8) | In considering the application, the Council or the Independent Exemptions Body in the case of an appeal, shall take into consideration all relevant factors, which may include, but shall not be limited to, the following exemption criteria: |
| (a) | The period for which the exemption is sought. |
| (b) | The number of employees affected and how many of such employees are members of a registered trade union. |
| (c) | The written and verbal substantiation provided by the applicant |
| (d) | Be accompanied by relevant supporting data and financial information. |
| (e) | the terms of the exemption; |
| (f) | the effect of the exemption on any employee benefit fund or training provision in relation to the alternative comparable bona fide benefit or provision, including the cost to the employee, transferability, administration management and cost, growth and stability; |
| (g) | The employer must consult with the workforce, through a trade union representative or, where no trade union is involved, with the workforce itself, and must include the views expressed by the workforce in the application. |
| (h) | Where the views of the workforce differ from that of the employer, the reasons for the views expressed must be submitted with the application. |
| (i) | An application for exemption shall not be considered unless the employees or their representatives have been properly consulted and their views fully recorded in an accompanying document. Where an agreement between the employer and the workforce is reached, the singed written agreement must accompany the application. |
| (j) | If the nature of the relief sought dictates, the application shall be accompanied by a plan reflecting the objectives and strategies to be adopted to rectify the situation giving rise to the application and indicating a time frame for the plan. |
| (k) | The applicants past record (if applicable) of compliance with the provisions of this agreement, its amendments and Exemptions Certificate. |
| (I) | any precedent that might be set; |
| (m) | it is fair to both the employer, its employees and other employees in the sector; |
| (n) | it does not undermine this Agreement; |
| (o) | reporting requirements by the applicant and monitoring and re-evaluation processes; and |
| (p) | it will make a material difference to the viability of a business; |
| (q) | it will assist with unexpected economic hardship occurring during the currency of the Agreement and will save unnecessary job losses. |
| (r) | the interest of the industry as regards: |
| (i) | unfair competition; |
| (ii) | collective bargaining; |
| (iii) | potential for labour unrest; |
| (iv) | increased employment; |
| (s) | the interest of employees' as regards: |
| (i) | exploitation; |
| (ii) | job preservation; |
| (iii) | sound conditions of employment; |
| (iv) | possible financial benefits; |
| (v) | health and safety; |
| (vi) | infringement of basic rights |
| (t) | the interest of the employer as regards: |
| (i) | financial stability; |
| (ii) | impact on productivity; |
| (iii) | future relationship with employees' trade union; |
| (iv) | operational requirements |
| (v) | any special circumstance that exist; |
| (9) | In the event of the Council or the Independent Exemptions Body granting, partially granting or refusing to grant an application, the applicant shall be informed of the decision and the reasons for the decision within 14 (fourteen) normal working days and non-parties shall have the right to appeal in writing against the decision to the Independent Body within 14 (fourteen) days from the date of being informed of the outcome. Such an appeal shall be fully reasoned. |
| (10) | In terms of section 32(3)(e) of the Act, the Council hereby establishes an Independent Body to be known as the "Independent Exemption Board" to hear and decide any appeal brought against— |
| (a) | the Council's refusal of a non-party's application for exemption from the provisions of this Agreement; |
| (b) | the withdrawal of such an exemption by the Council. |
| (c) | an appeal shall be decided within 30 (thirty) days. |
| (11) | No representative, office bearer, or official of the Council, trade union or employers' organisation party to the Council may be a member or participate in the deliberations of the Independent Exemptions Board. |
| (12) | The Council may also refer any application for exemption directly to the Independent Exemptions Board. The Independent Exemptions Boards decision regarding the granting or denying of the exemption will be final and both the applicant and the Council will be bound to the decision of the Independent Exemption Board. |
| (13) | The Secretary of the Council shall submit the appeal,together with the Council's decision regarding the application for exemption, to the Independent Exemptions Board which shall as soon as possible and not later than 30 (thirty) days hear and decide the matter with reference to the exemption criteria set out in sub clause (8) hereof and when requested by the applicants or objectors to do so, may interview applicants or any objectors at its following meeting: Provided that the Independent Exemptions Board may defer a decision to a following meeting additional motivation, information or verbal representations are considered necessary to decide on the application for exemption. |
| (14) | When the Independent Exemptions Board decides against granting an exemption or part of an exemption requested it shall advise the applicant(s) within 14 (fourteen) normal working days of the date of such decision and shall provide the reason or reasons for the decision not to grant an exemption. |
| (15) | Once the Council has granted an exemption or the Independent Exemptions Board has decided to uphold the appeal and grant an exemption it shall issue a certificate and advise the applicant(s) within 14 (fourteen) normal working days of the date of the decision, clearly specifying— |
| (a) | the full name of the applicant(s) or enterprise concerned; |
| (b) | the trade name; the provisions of the Agreement from which exemption has been granted; |
| (c) | the period for which the exemption shall operate; |
| (d) | the date of issue and from which the exemption shall operate; |
| (e) | the condition(s) of the exemption granted; the area in which the exemption applies |
| (f) | the reporting requirements by the applicant and the monitoring and re-evaluation processes. |
| (16) | The Council or Independent Exemptions Body shall; |
| (a) | retain a copy of the certificate |
| (b) | forward the original certificate to the Secretary of the Council; and |
| (c) | a copy of the exemption certificate is sent to the applicant |
| (17) | An employer to whom a certificate has been issued shall at all times have the certificate available for inspection at his establishment. |
| (18) | Unless otherwise specified in the certificate of exemption,any exemption from this Agreement shall be valid only in the region of the Council in which the application was made. |
