APPLYING FOR EXEMPTION IN TERMS OF CLAUSE 6.1 OF THE AGENCY SHOP AGREEMENT
| 1.1 |
General provisions applicable to Exemptions |
| 1.1.1 |
An application for the exemption of the provisions contained' in this Agreement shall be heard by an Independent Exemption Committee consisting of 2 (two) Commissioners accredited in accordance with the provisions of section 128 of the Labour Relations Act, 1995 ("the Act"). |
| 1.1.2 |
An application for exemption shall be in writing and made to the General Secretary of the National Bargaining Council for the Hairdressing Cosmetology Beauty and Skincare Industry ("the Council") in the form as set forth herein below. |
| 1.1.3 |
All applications for exemption shall be supported by such supporting documentation as may be indicated or required by the Exemption Committee, from time to time, in order to properly assess the application for exemption. |
| 1.1.4 |
The Exemptions Committee shall decide on an application for exemption within 30 (thirty) days of receipt by the General Secretary of the Council. |
| 1.1.5 |
The person or entity moving for the application for exemption ("the Applicant") may request the Exemption Committee that the application for exemption be amplified by means of oral argument on the date upon which the Exemption Committee considers the application, failing which the Exemption Committee will consider the application for exemption on the basis of the written application and supporting documents, submitted. |
| 1.1.6 |
All applications shall comply with the following, being:— |
| 1.1.6.1 |
it shall be fully motivated; |
| 1.1.6.2 |
be accompanied by the required supporting documentation; |
| 1.1.6.3 |
applications that adversely affect any rights and obligations of Employees, will not be considered unless the Employees or their representatives have been properly consulted and their views fully recorded in the application; |
| 1.1.6.4 |
a presentation reflecting the objectives and strategies to be adopted by the Applicant during the exemption period, to rectify the non-compliance with this Agreement and indicating a time frame for such objectives and strategies to be achieved; |
| 1.1.6.5 |
the time period for which exemption is required. |
| 1.1.7 |
In considering an application for exemption, the Exemption Committee shall, amongst others, consider, but shall not be limited to, the following criteria:— |
| 1.1.7.1 |
the Applicant's past record of compliance with the provisions of this Agreement and previous exemption granted; |
| 1.1.7.2 |
any special circumstances that may exist; |
| 1.1.7.3 |
any precedent that might be set as a result of the granting of the exemption; |
| 1.1.7.4 |
the interest of the sector with specific reference to:— |
| 1.1.8.4.1 |
unfair competition; |
| 1.1.8.4.2 |
collective bargaining; |
| 1.1.7.5 |
the interest of Employees with specific reference to:— |
| 18.1.8.5.2 |
job preservation. |
| 1.1.7.6 |
the interest of the Applicant with specific regard to:— |
| 18.1.8.6.1 |
financial stability; |
| 18.1.8.6.2 |
operational requirements. |
| 1.2.1 |
In accordance with the provisions of the Act, the Council hereby establishes an independent body, to be known as the Exemptions Appeal Body to consider appeals against a refusal of an application for exemption and the withdrawal of an exemption, which Exemptions Appeal Body shall consist of at least 1 (one) Commissioner accredited in accordance with the provisions of section 128 of the Act, from the panel approved by the Council from time to time. |
| 1.2.2 |
An Applicant may lodge an appeal within 14 (fourteen) calendar days of the Applicant being notified of the exemption being refused or being withdrawn, as the case may be. |
| 1.2.3 |
The Exemptions Appeal Body shall hear and decide on the appeal within 30 days of being lodged and inform the Applicant and the Council as soon as possible, of the outcome thereof, in writing. |
| 1.2.4 |
Any appeal shall be in writing and shall contain the following:— |
| 1.2.4.1 |
grounds of appeal; |
| 1.2.4.2 |
all supporting documentation which will be used in support of the appeal; |
| 1.2.4.3 |
any other relevant information or documentation that may assist the Exemption Appeal Board to arrive at a conclusion. |
| 1.2.5 |
Any appeal may be amplified by oral argument. |
| 1.2.6 |
The criteria for the consideration of an appeal will be the criteria as set forth in clause 1.1.7 above. |
| 1.3 |
The granting of exemption or withdrawal thereof |
| 1.3.1 |
When exemption is granted by the Exemption Committee or, on appeal by the Exemption Appeal Board, such exemption shall expressly specify:— |
| 1.3.1.1 |
any conditions subject to which the exemption is granted; |
| 1.3.1.2 |
the period during which the exemption is to operate; |
| 1.3.1.3 |
the circumstances, if any, in which the exemption may be withdrawn. |
| 1.3.2 |
The General Secretary shall furnish the Applicant, should exemption be granted in favour of such Applicant, with a letter of exemption recording the:— |
| 1.3.2.1 |
full name of the person/s in whose favour exemption is granted; |
| 1.3.2.2 |
provisions of this Agreement from which exemption are granted; |
| 1.3.2.3 |
conditions subject to which exemption is granted; |
| 1.3.2.4 |
period during which exemption is to operate; |
| 1.3.2.5 |
circumstances in which it may be withdrawn, if any. |
| 1.3.3 |
Should circumstances dictate and permit, the Council may withdraw the exemption granted and the General Secretary of the Council shall notify the Applicant thereof, by furnishing it with at least 7 (seven) days' notice. |
| 1.3.4 |
The Applicant may appeal the resolution by the Council to withdraw the exemption granted in accordance with the provisions of clause 1.2 above. |
South African Council for Educators Act, 2000
