| (1) |
The Council hereby established an exemptions body, constituted of persons independent of the Council, to consider all applications for exemption from the provisions of the Council's Collective Agreements. |
| (2) |
In terms of section 32(3)(e) of the Act, the Council establishes an Independent Body to hear and decide, within 30 days of receipt of any appeal, brought against the Exemptions Body's refusal of a non-party's application for exemption from the provisions of a collective agreement or the withdrawal of a non-party exemption by the Exemptions Body of the Council. |
| (a) |
No representative, office-bearer or official of a trade union or employers' organisation party to the Council may be a member of or participate in the deliberations of the Independent Body. |
| (b) |
The Council hereby established an exemptions body, constituted of persons independent of the Council, to consider all applications for exemption from the provisions of the Council's Collective Agreements. |
| (c) |
In terms of section 32(3)(e) of the Act, the Council establishes an Independent Body to hear and decide, within 30 days of receipt of any appeal, brought against the Exemptions Body's refusal of a non-party’s application for exemption from the provisions of a collective agreement or the withdrawal of a non-party exemption by the Exemptions Body of the Council. |
| (d) |
No representative, office-bearer or official of a trade union or employers' organisation party to the Council may be a member of or participate in the deliberations of the Independent Body. |
Applications for exemption shall be in writing on the appropriate application form(s) obtainable from any NBCRFLI office. Application forms must be submitted to the applicable NBCRFLI Regional Office and served on all interested parties.
| (3) |
Applications for exemption shall comply with the following requirements: |
| (b) |
Be accompanied by relevant supporting data and financial information. |
| (c) |
Applications that affect employees' conditions of service shall not be considered unless the employees or their representatives have been properly consulted and their views fully recorded in an accompanying document. |
| (d) |
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. |
| (e) |
Indicate the period for which exemption is required. |
| (5) |
Upon receipt of a valid application Council shall refer it 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. |
| (6) |
In the event of the Exemptions Body refusing to grant an application, the applicant shall have the right to appeal in writing against the decision to the Independent Body. An appeal to the Independent Body must be noted in writing within 1 month of the applicant becoming aware of the Exemptions Body's decision, or such further time as the Independent Body may allow. The notice of appeal must set out the grounds on which the applicant's appeal is based. |
| (7) |
In the event of the Exemptions Body granting an application, the Council or any other interested party shall have the right to appeal against the decision to the Independent Body and the provisions of clause 3 with the necessary changes to its context will apply. |
| (8) |
The Exemptions Committee of Council shall appoint not more than four persons who shall be entitled to attend all meetings of the Exemptions Body at which applications for exemptions, against refusals to grant exemptions, or the withdrawal of such an exemption by the Exemptions Body or the Council, are considered, to make representations to the Body on any of the applications. |
| (9) |
In considering the application, the Exemptions Body and Independent Body shall take into consideration all relevant factors, which may include, but shall not be limited to, the following criteria: |
| (a) |
The applicant's past record (if applicable) of compliance with the provisions of Council's Collective Agreements and Certificates of Exemption or appeal; |
| (b) |
any special circumstances that exist; |
| (c) |
any precedent that might be set; |
| (d) |
the interests of the Industry as regards |
| (ii) |
collective bargaining; |
| (iii) |
potential for labour unrest; |
| (iv) |
increased employment; |
| (e) |
the interests of employees' as regards |
| (iii) |
sound conditions of employment; |
| (iv) |
possible financial benefits; |
| (vi) |
infringement of basic rights; |
| (f) |
the interests of the employer as regards |
| (ii) |
impact on productivity; |
| (iii) |
future relationship with employees' trade union; |
| (iv) |
operational requirements. |
| (a) |
Council's Exemptions Body must consider all exemption applications from non-parties and must comply with the provisions of subsection 32(dA) of the Act when considering such applications. The Exemption Body must decide an application for an exemption within 30 days of receipt. The Exemptions Body must consider and take into account the requirements prescribed in subclauses (3) and (9) above. |
| (b) |
The Independent Body established by Council in terms of section 32 of the Act must consider appeals against the refusal by the Council's Exemption Body to grant exemptions. The Independent Body must comply with the provisions of sub-section 32(3)(e) of the Act in all aspects when dealing with appeals. The Independent Body shall hear, decide and inform the applicant and the Council as soon as possible and not later than 30 days after the appeal has been lodged against the decision of the Exemptions Body. The Independent Body must consider and take into account the requirements prescribed in subclause (9) above. |
| (11) |
If the application is granted, the Exemptions Body or Independent Body shall issue certificate, signed by its Chairman and Secretary, containing the following particulars: |
| (a) |
The full name of the applicant(s); |
| (c) |
the provisions of the Agreement from which exemption or appeal is granted; |
| (d) |
the period for which the exemption or appeal shall operate; |
| (f) |
the condition(s) of the exemption or appeal granted. |
| (12) |
The Exemptions Body or Independent Body shall– |
| (a) |
retain a copy of the certificate and number each certificate consecutively; |
| (b) |
forward a copy of the certificate to the Secretary of the Council; and |
| (c) |
forward to the employer a copy of a certificate issued to an employee. |
| (13) |
An employer to whom a certificate has been issued shall at all times have the certificate available for inspection at his establishment. |
[Clause 74 substituted by clause (6) of Notice No. 426, GG 42312, dated 15 March 2019]
South African Council for Educators Act, 2000
