| (1) |
All applications for exemption shall be in writing, addressed to the Secretary of the Council for consideration, within 30 days, of receipt of such application. |
| (2) |
All applications for exemption shall be substantiated, and such substantiation shall include the following details— |
| (a) |
The period for which the exemption is required; |
| (b) |
the clauses and subclauses of the Agreement from which exemption is required; |
| (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. |
| (3) |
The Secretary of the Council shall in the first instance place the applications for exemption on the agenda of the next executive committee meeting of the Council, for comment and consideration. |
| (4) |
If the application for exemption is refused by the Council, the applicant can lodge an appeal against the Council's decision. |
| (5) |
In terms of section 32 of the Act, the Council hereby establishes an Independent Body, which shall consist of one(1) Commissioner, accredited in accordance with the provisions of Section 128 of the Labour Relations Act, as amended, to hear and decide, as soon as possible, an appeal brought against— |
| (i) |
the Council's refusal of an application for exemption from the provisions of this Agreement; |
| (ii) |
the withdrawal of such an exemption by the Council. |
[Clause 27(5) substituted by section 4 of Notice No. R. 1144, GG42685, dated 6 September 2019]
| (6) |
The Secretary of the Council shall then provide the Independent Body with details of all the appeals brought against the Council's refusal of an exemption. |
[Clause 27(6) substituted by section 4 of Notice No. R. 1144, GG42685, dated 6 September 2019]
| (7) |
The Independent Body shall hear and decide, within 30 days, any appeal brought against the Council's refusal of an exemption. |
[Clause 27(7) substituted by section 4 of Notice No. R. 1144, GG42685, dated 6 September 2019]
| (8) |
Once the Independent Body has decided to grant an exemption, it shall advise the Council within 14 days of the date of its decision and the Secretary shall issue a certificate to the applicant(s) within 14 days of receipt of the Independent Bodies decision. |
| (9) |
When the Independent Body decides against granting an exemption or part of an exemption requested, it shall advise the Council within 14 days of the date of such decision and shall provide the reason or reasons for not granting an exemption and the Secretary shall inform the applicants(s) accordingly within 14 days. |
| (10) |
Exemption Criteria: The Independent Body shall consider all applications for exemption with reference to the following criteria— |
| (a) |
The written and verbal substantiation provided by the applicant; |
| (b) |
the extent of consultation with the petition for or against granting the exemption as provided by employers or employees who are to be affected by the exemption if granted; |
| (c) |
the terms of the exemption; |
| (d) |
the infringement of basic conditions of employment rights; |
| (e) |
the fact that a competitive advantage is not created by the exemption; |
| (f) |
the viewing of the exemption from 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 extent to which the proposed exemption undermines collective bargaining and labour peace in the Trade; |
| (h) |
any existing special economic or other circumstances which warrant the granting or refusal of the exemption; |
| (i) |
reporting requirements by the applicant and monitoring and re-evaluation processes; and |
| (j) |
cognisance of the recommendations contained in the Report of the Presidential Commission to Investigate Labour Market Policy. |
Copyright Act, 1978
