| (1) |
Any person bound by this Agreement may apply for exemption. |
| (2) |
The authority of the Bargaining Council is to consider applications for exemptions and grant exemptions. |
| (3) |
The Bargaining Council must determine its exemptions policy and process all exemption applications in terms of this policy. |
| (4) |
All applications for exemption must be made in writing on the appropriate application form, obtained from the Bargaining Council, setting out relevant information, including— |
| (a) |
the provisions of the agreement in respect of which exemption is sought; |
| (b) |
the number of persons in respect of whom the exemption is sought; |
| (c) |
the reasons why the exemption is sought; |
| (d) |
the nature and size of the business in respect of which the exemption is sought; |
| (e) |
the duration and timeframe for which the exemption is sought; |
| (f) |
the business strategy and plan of the applicant seeking the exemption; |
| (g) |
the applicants past record (if applicable) of compliance with the provisions of the Collective Agreement, its amendments and exemptions certificate. |
| (h) |
The recorded views expressed by the trade union or workforce itself during the plant level consultation process; and |
| (i) |
Any other relevant supporting data and financial information the Council may prescribe from time to time. |
| (5) |
The Bargaining Council shall decide on an application for exemption within 30 days of receipt. |
| (6) |
Upon receipt of an application by the Bargaining Council, it shall immediately refer the application to the exemptions committee which may, if deemed expedient, request the applicant to attend the meeting at which the application is considered, to facilitate the deliberations. |
| (7) |
An exemption committee appointed by the Council may request additional information from an applicant applying for exemption. |
| (8) |
In scrutinizing the application, the Exemption Committee or the Independent Exemptions Body will consider the details of the application, the views expressed by the trade union or workforce, affected employers, any . other representations received in relation to the application, and the factors and criteria as listed in sub clause (14) below. |
| (9) |
The secretary must advise the applicant in writing of the decision of the exemptions committee within 15 days from the date of the decision,failing which the Bargaining Council shall be deemed to have refused the application for exemption. |
| (10) |
In the event of the exemptions committee granting, partially granting or refusing to grant an application, the applicant shall be informed of the reasons for the decision to the appeal in writing on the appropriate appeal application form against the decision to the Independent Exemptions Body, established by the Bargaining Council within 21 days from the date of being informed of the outcome. |
| (11) |
In the terms of section 32(3)(e) of the Labour Relations Act [as amended], the Bargaining Council must establish an independent Exemption Body to hear and decide as soon as possible any appeal brought against the exemption committee's refusal of a non-party's application for exemption for the provision of a collective agreement by the exemption committee or withdrawal of an exemption by the Bargaining Council. |
| (12) |
The Independent Exemption Body shall hear and decide and inform the applicant and the Bargaining Council as soon as possible and not later than 30 days after the appeal has been lodged against the decision of the exemption committee. |
| (13) |
No representative, office-bearer, or official of a trade union or employer's organizations party to the Bargaining Council, may be a member of, or participate in the deliberations of,the Independent Exemptions Body established by the Bargaining Council. |
| (14) |
When considering an application, the Exemptions Committee or the Independent Exemptions Body whichever the case may be, must consider, in addition to sub clause 8, the following: |
| (a) |
Whether the granting of the exemption or appeal will prejudice the objectives of the Bargaining Council or contravene the provisions of any labour legislation or Collective Agreements; |
| (b) |
The circumstances prevailing in the Private Security Sector as a whole likely to be affected by the application and/or the interest of the industry regarding unfair competition, collective bargaining, potential for labour unrest and increased employment; |
| (c) |
the nature and size of the business in respect of which the application is made; |
| (d) |
whether the duration of the exemption or appeal is for a limited or specified period; |
| (e) |
any representations made by the employees likely to be affected by the application and interest of employees as regards exploitation,job preservation, sound conditions of employment, possible financial benefits, health arid safety of workers and infringement of basic rights; |
| (f) |
whether the business strategy and plan presented by the applicant demonstrates that the granting of the.exemption will make a material difference to the long-term viability of the business in respect of which the exemption or appeal is sought; |
| (g) |
whether a refusal to grant an exemption or appeal will result in undue financial hardship to the applicant; financial instability, impact on productivity, future relationship with the employees' trade union and operational requirements; |
| (h) |
whether the granting of the exemption or appeal will undermine collective bargaining and be likely to cause undue financial hardship to the employees affected; |
| (i) |
whether the granting of the exemption or appeal will impact negatively on parity agreements; and |
(j) whether the granting of the exemption or appeal will impact negatively on local competitors who are complying with a Collective Agreement; and
| (k) |
whether the employees or their representatives have been consulted and their views recorded, and/or any agreement reached between the applicant and the workforce. |
| (I) |
Any other relevant supporting data and financial information as prescribed by the Bargaining Council and supplied by the Applicant. |
| (15) |
In the event of the Independent Exemptions Body granting, partially granting or refusing to grant the appeal, the applicant shall be informed in writing of the reasons for the decision within 21 days from the date of the decision. |
| (16) |
The decision of the Independent Exemptions Committee is final and binding upon the applicant and the Bargaining Council. |
| (17) |
If an exemption or appeal is granted or partially granted, the Exemption Committee or the Independent Exemptions Body, shall issue a certificate, signed by Secretary, containing the following particulars: |
| (a) |
The full name of the applicant(s) or enterprise concern; |
| (c) |
The provisions of the Agreement from which exemption or appeal has been granted; |
| (d) |
The period of which the exemption or appeal shall operate; |
| (e) |
The date of issue and from which day the exemption or appeal shall operate; |
| (f) |
The condition(s) of the exemption or appeal granted; and |
| (g) |
The area in which the exemption or appeal applies. |
| (18) |
An employer to whom a certificate has been issued shall at all times have the certificate available for inspection of the workplace. |
| (19) |
The Secretary must maintain a register of all exemption and appeal certificates granted, partially granted or refused. |
| (20) |
Specific to the Provident fund, the exemption process shall be: |
| (21) |
The following criteria for an exemption from the Private Security Sector Provident Fund will apply, provided that— |
| (i) |
If the employer, prior to the publication of Gazette Notice No. 306 of 30 March 2001, had an existing pension or provident fund registered with the Registrar of Pension Funds covering employees for whom minimum wages are prescribed in the Bargaining Council Main Collective Agreement, as amended or replaced. |
| (ii) |
If the employer, prior to the publication of Gazette Notice No. 306 of 30 March 2001, did not have an existing pension or provident fund registered with the Registrar of Pension Funds covering employees for whom minimum wages are prescribed in Bargaining Council Main Collective Agreement , as amended or replaced, but before 30 March 2001, the employer and its employees have consulted in writing to commence negotiations for the establishment of a pension or provident fund for such employees. |
| (a) |
Applications will be in writing and addressed to the Board of the Private Security Sector Provident Fund. Applications shall comply with the following: |
| (ii) |
Be accompanied by relevant supporting data and financial information; |
| (iii) |
Applications that affect employees' conditions of service will not be considered unless the employees or their representatives have been properly consulted and their views fully recorded in an accompanying document; |
| (iii) |
Indicate the period for which the exemption is required. |
| (b) |
In considering the application the Board shall take into consideration all relevant factors,which may include, but shall not be limited to, the following criteria: |
| (i) |
Any special circumstances that exist; |
| (ii) |
Any precedent that may be set; |
| (iii) |
The interest of the industry as regards— |
| (ab) |
Collective bargaining, |
| (ac) |
Potential for labour unrest, |
| (ad) |
Increased employment. |
| (iv) |
The interest of employees as regards: |
| (ac) |
Sound Conditions of Employment, |
| (ad) |
Possible financial benefits, |
| (ab) |
Infringement of basic rights. |
| (v) |
The interest of the employer as regards: |
(aa) Financial stability,
(ab) Impact on productivity,
(ac) Future relationship with employees' trade union,
(ad) Operational requirements.
| (c) |
If the application is granted, the Board will issue an exemption certificate, signed by the chairperson, containing the following particulars: |
| (i) |
The full name of the applicant; |
| (ii) |
The trade name of the applicant; |
| (iii) |
The period for which the exemption shall operate; |
| (iv) |
The date of issue; and |
| (v) |
The conditions of the exemption granted. |
| (d) |
If the exemption is refused the Board shall specify its reasons for not granting the application, and which will be communicated to the applicant. |
| (e) |
The Board shall retain a copy of the certificate and number each certificate sequentially. |
| (f) |
An employer to whom a certificate of exemption has been issued shall at all times have the certificate available for inspection at his establishment. |
| (g) |
Any application by an employer for exemption shall in no way whatsoever affect the employer's obligations, nor his employees' rights, with regard to the payment of all contributions and benefits in terms of the rules of that employer's retirement fund and/or his employees' conditions of employment during any period that the application is under consideration. |
| (a) |
An employee entering the private security sector for the first time and an employee who has been out of the sector for more than six months shall be required to wait for a period of four months before joining the fund. |
| (b) |
An employee with at least four months uninterrupted service in the private security industry, not necessarily with the same employer, shall join the fund immediately upon joining a new employer. |
| (6) |
Special provision during waiting period |
| (a) |
Every employee shall, during the waiting period set out in sub clause (6), enjoy risk cover in respect of death and disability benefits, as well as the fund funeral scheme, which contribution, totaling 5% (five percent) of the Fund Salary,per month shall be borne equally between the employer and the employee. |
| (b) |
This risk cover shall apply as from the first day of employment and shall be submitted to the fund administrators at the end of every month. |
South African Council for Educators Act, 2000
