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Labour Relations Act, 1995 (Act No. 66 of 1995)

Notices

National Bargaining Council for the Chemical Industry

Fast Moving Consumer Goods Sector

2023/2025 Substantive Agreement

Annexure B: Exemption Procedure

 

ANNEXURE B

 

EXEMPTION PROCEDURE

 

1. INTRODUCTION:

 

In terms of a Part of the Substantive Agreement, companies seeking exemption from the conditions of this agreement and/or any conditions agreed to previously through centralized bargaining between the parties, should do so according to this procedure.

 

Applications and procedure for exemptions are regulated by clause 16 of the Constitution.

 

Where appropriate, provisions of Section 32(3) of the Labour Relations Act (The Act) as amended shall be considered.

 

The relevant primary objectives of the Act within the context of the advancement of economic development, social justice, labour peace and democratization of the workplace, are found in section 1(d) of the LRA which reads:—

 

(i) orderly collective bargaining;
(ii) collective bargaining at sectoral level;
(iii) employee participation in decision making in the workplace, and
(iv) the effective resolution of labour disputes.

 

2. PRE & POST COUNCIL PROCEDURE:

 

2.1 CONSULTATION:

 

2.1.1 Any application for exemption must be preceded by consultations between the relevant employers and employees potentially affected by the exemption at which:
(a) the merits and any exemption to have been applied for have been considered; and
(b) there has been full disclosure to each other on all information relevant to the consideration of exemption.

 

2.1.2 The following provisions apply regarding consultations: -
i. Each employer must hold such consultations with the trade union representatlve(s) of the affected employees.
ii. If an employer reasonably believes that the affected employees are not trade union members, or where the relevant trade union representatives do not avail themselves for such consultations within a reasonable time, the employer must consult the affected employees themselves.
iii The affected employees, or groups of such employees, may act through a nominated representative that they have elected to represent them. Once they have informed the employer of such representative the employer must, regarding such employees, consult such representative In preference to the trade union to which they belong.

 

2.1.3 The applicant company must. commencing at least Immediately before the application is made to the General Secretary display a copy of the application In a conspicuous place In the workplace(s} where the affected employees normally report for service and ensure that it remains displayed until the exemption license has been granted in terms of these procedures, the application has been withdrawn or the application has been dismissed by the National Exemptions Committee.

 

2.2 CONCILIATION & ARBITRATION PROCEDURES:

 

2.2.1 The employer if it so wishes to pursue Its application for exemption, must within the 30-day period apply to the General Secretary of the council for third party Intervention whereupon the council will provide for a 30-day period for a facilitation/conciliation process to convene.

 

2.2.2 If the parties can still not reach agreement within a further period of 30 days, the panelist will Issue a certificate to the effect that the matter cannot be resolved.

 

2.2.3 The matter shall then be referred to the National Exemption Committee within a period of  60-days for arbitration.

 

2.2.4 The parties to exemption hearing must hold a pre-exemption trial in dealing with the matters referred to in Rule 20(2) of the rules in conducting the proceedings before the National Bargaining Council for the Chemical Industry.

 

2.2.5 The employer will be required to produce evidence of compliance with Clause 1 of this procedure, i.e., “Steps preceding an application for exemption.”

 

2.2.6 The evidence required will also include:—

Clear evidence of the financial difficulties facing the employer Including:—

- The most recent set of annual financial statements and auditor's report signed by the auditors (or accounting officer In the case of CC's).
- Management accounts for the period from the date of the financial statements to two months prior to the date of the application.
- An application may refuse to be accepted by the General Secretary until the requirements of Clause 5 have been complied with.

 

2.2.7 The National Exemptions Committee must consider the application and make the following determination:—
(a) Whether a refusal to grant an exemption will result in undue financial hardship to the company make the application;
(b) The nature and size of the business in respect of which the application is made;
(c) Any representations made by the employees likely to be affected by the application;
(d) The circumstances prevailing in the Chemical Industry as a whole or the sectors likely to be affected by the application, and
(e) Whether the granting of the exemption will prejudice the objectives of the Council.

 

2.2.8 The decision of the National Exemptions Committee will be final and binding.

 

2.2.9 The chairperson or another member of the National Exemptions Committee, acting on the decision of that Committee, shall Inform the General Secretary in writing of any decision made by the Committee and Its brief reasons.

 

2.2.10 Once the General Secretary has received the decision of the National Exemptions Committee in terms of this procedure, he/she shall:—
- Issue an exemption award or vary an award already issued; or
- Transmit any other decision of the National Exemptions Committee to the parties to the exemptions dispute as directed by the National Exemptions Committee.
- The National Exemptions Committee would be expected to make its decision within 14 days of having concluded the matter.

 

3. HOW TO FILE AN APPLICATION FOR EXEMPTION WITH THE COUNCIL:

 

3.1 All applications must, in the first instance, be submitted in writing to the specific sub-sectors co-ordinator or secretariat.
(i) The sector co-ordinator or secretary must, within 10 working days of the date of the last party signing this agreement, forward copies of the applications received from the participating member company to the General Secretary of the National Bargaining Council for the Chemical Industry as well as to the relevant union(s).
(ii) The date of the collective agreement in question is taken from the date on which the last signature of a party to the agreement Is recorded.
(iii) All applications must specify provisions of the agreement in respect of which the exemption Is sought and the reasons why it is sought, and details of the employees in respect of when exemption is sought either by name or by way of a clear description of the category of employees and an introduction of how many employees fall within the category.

 

3.2 All applications for exemption will be dealt with in terms of this procedure.