| (1) | Any party falling within the Council’s registered scope may apply to the Bargaining Council for exemption from any or all the provisions of this agreement. |
| (2) | All applications for exemption from any of the provisions of this Agreement must be in writing on an application form as provided by the Council, and lodged with the local office of the Council for consideration by the District Committee of the area concerned, or the National Exemptions Committee. |
| (3) | The District Committee or National Exemptions Committee will hear and decide applications for exemption in a manner it considers appropriate to determine the application fairly and quickly, which may be limited to a consideration of written motivation, or may include the hearing of evidence and arguments. |
| (4) | Exemption Criteria: The District Committee and National Exemptions Committee, when considering an application, must take into account the following criteria (the order not indicating any form of priority): |
| (a) | any written and/or verbal substantiation provided by the applicant; |
| (b) | fairness to the employer, its employees and other employers and the employees in the industry; |
| (c) | whether an exemption, if granted, would undermine this Agreement or the collective bargaining process; |
| (d) | whether it will make a material difference to the viability of a new business, or a business previously outside the jurisdiction of the Council; |
| (e) | unexpected economic hardship occurring during the currency of the Agreement, and job creation and/or loss thereof. |
| (f) | the infringement of basic conditions of employment rights; |
| (g) | the fact that a competitive advantage might be created by the exemption; |
| (h) | comparable benefits or provisions where applicable; |
| (i) | the applicant’s compliance with other statutory requirements such as the Occupational Injuries and Diseases Act or Unemployment Insurance; or |
| (j) | any other factor which is considered appropriate. |
| (5) | The District Committee or National Exemptions Committee, on approving an application, must within fourteen days advise the applicant of such decision, and issue a Licence of Exemption, setting out the following: |
| (a) | The full name of the person or enterprises concerned; |
| (b) | the provisions of this agreement from which the exemption has been granted; |
| (c) | the conditions subject to which exemption is granted; |
| (d) | the period of exemption; |
| (e) | the date from which the exemption shall operate. |
| (6) | The District Committee or National Exemptions Committee may, on good cause shown, give the holder of a licence of exemption one week’s notice of withdrawal of the exemption granted. |
| (7) | The District Committee or National Exemptions Committee, on not approving an exemption or part of an exemption, must advise the applicant(s) within fourteen (14) days of the date of such decision, providing the reason or reasons for not granting the exemption. |
| (8) | Appeals: An independent body entitled the "Independent Appeal Body", will be appointed in accordance with the provisions of section 32(3)(e) of the Act to hear and decide any appeal brought by a party or non party against: |
| (a) | the District Committee or National Exemption Committee’s refusal of an application for exemption from the provisions contained in this agreement: or |
| (b) | the withdrawal of an exemption by the District Committee or National Exemptions Committee. |
| (9) | The Council or District Secretary will, on receipt of a written application for an appeal, forward the application, together with the original application for exemption and all supporting documents to the Independent Appeal Body for a decision. |
| (10) | The Independent Appeal Body will hear and decide appeals in a manner it considers appropriate to determine the application fairly and quickly, which may be limited to a consideration of written motivation, or may include the hearing of evidence and arguments. |
| (11) | The Independent Appeal Body must consider all applications with reference to the criteria in subclause (4). |
| (12) | The Independent Appeal Body will advise the Council and the applicant(s) of their decision within fourteen (14) day, providing full reasons for the decision. Should the Independent Appeal Body reverse the decision of the District Committee or the National Exemptions Committee, the Council must issue the Applicant with a Licence of Exemption in accordance with subclause (5). |
In the event of a party or non-party appealing against the District Committee or National Exemptions Committee’s decision, such party or non-party may, at the Independent Appeal Body’s discretion, be liable for payment of costs incurred by the Council in the event of the Independent appeal Body upholding the District Committee or National Exemptions Committee’s decision.
