| 7.2.1 | Any natural person, establishment or other legal entity bound by this Collective Agreement may apply for an exemption from any of the provisions of this Collective Agreement or may lodge an appeal against— |
| 7.2.1.1 | the Bargaining Council’s refusal of a party’s or non-party’s application for an exemption from the provisions of this Collective Agreement; or |
| 7.2.1.2 | the withdrawal of an exemption previously granted by the Bargaining Council. |
| 7.2.2 | An application for exemption or the lodging of an appeal shall be in writing. The application for exemption shall be completed on the Bargaining Council’s prescribed application form obtainable from the Council’s offices, fully motivated and served on the Bargaining Council with supporting documentation. An appeal shall be lodged with full motivation, heads of argument and with supporting documentation. The Applicant or the Appellant, depending on the nature of the process, shall satisfy the Body concerned that a proper application for exemption or appeal has been lodged with the appropriate body. |
| 7.2.3 | Whenever an employer, establishment or other legal entity applies for an exemption he, she or it shall consult with the affected workforce through their trade union representatives or, where there are no trade union representatives, with the affected workforce itself as to the need for the exemption and its effect on the affected employees and shall include in the application written proof of matters discussed during such consultation and written proof of the views expressed by the affected workforce during the consultation in this regard as well as the signed confirmation of all individually affected employees. |
| 7.2.4 | The Bargaining Council shall issue a notice of the outcome to the applicant of an exemption or to the appellant who lodged an appeal, setting out the following: |
| 7.2.4.1 | the full name of the applicant or appellant concerned; |
| 7.2.4.2 | the trading name of the applicant or appellant; |
| 7.2.4.3 | the exact provision(s) of this Collective Agreement from which the exemption or appeal has been granted or refused; |
| 7.2.4.3 | the conditions subject to which the exemption or appeal is granted; |
| 7.2.4.4 | the period for which the exemption or appeal is applicable; and/or |
| 7.2.4.5 | the outcome of the exemption or the appeal. |
| 7.2.5 | The Bargaining Council must ensure that:— |
| 7.2.5.1 | all notices relating to an exemption or an appeal must be served on the applicants or appellants personally; and |
| 7.2.5.2 | a copy of each notice relating to an exemption or an appeal must be kept on file by the Bargaining Council. |
| 7.2.6 | The Exemptions Body or the Independent Exemptions Appeal Body shall hear and decide all applications for exemptions or appeals lodged and shall notify the applicant or the appellant of the outcome thereof as soon as possible, but not later than 30 days from the date that the Council received the application for exemption or the appeal documentation. |
| 7.2.7 | The Bargaining Council may, on good cause shown, give the holder of an exemption 30 days’ notice of its intention to apply to the Exemptions Body for the withdrawal of a particular exemption. |
| 7.2.8 | The following processes and criteria shall inter alia be considered when contemplating an application for exemption from the provisions of this Collective Agreement or an appeal lodged against the outcome of an exemption application or an application for the withdrawal of an exemption previously granted or when any appeal against a decision of the Council is considered: |
| 7.2.8.1 | Processes: Any employer, employee, trade union or employer’s association or representative of the latter may at any point in time apply for an exemption from any of the provisions of this Collective Agreement or lodge an appeal against such outcome. The applicant is required to complete and submit in writing with the relevant office of the Council, a fully and properly completed prescribed application for exemption form, accompanied by all relevant supporting documentation. An appellant is required to submit a fully motivated written appeal with the relevant office of the Council, with heads of argument and supporting documentation. |
| 7.2.8.2 | Criteria: The Exemptions Body and/or the Independent Exemptions Appeal Body shall, without limiting its powers and authority, inter alia consider the following criteria to wit: |
| 7.2.8.2.1 | The financial and social implications on the applicants, appellants, competitors, employees and the Industry as a whole; |
| 7.2.8.2.2 | viability of the continued existence of the establishment; |
| 7.2.8.2.3 | the views expressed by the employees and/or the applicants, appellants and competitors; |
| 7.2.8.2.4 | the views and recommendations submitted by the bargaining council or any other person or body with an interest in the matter. |
| 7.2.8.2.5 | the possibility of job losses if the exemption or appeal is granted or refused; |
| 7.2.8.2.6 | the limitation on any employment opportunities if the exemption or appeal is granted or refused; |
| 7.2.8.2.7 | any other relevant information that might have an impact on the outcome of either the exemption or the appeal; |
| 7.2.8.2.8 | the applicant’s or appellant’s past record (if applicable) of compliance with the provisions of this Collective Agreement and/or certificates regarding exemptions or appeals. |
| 7.2.8.2.9 | any special circumstances that may exist or any precedent that might be set; |
| 7.2.8.2.10 | the interests of the Industry in relation to unfair competition, centralised collective bargaining as well as the economic stability of the Industry; |
| 7.2.8.2.11 | the interests of the employees with regards to exploitation, job preservation, sound conditions of employment, potential financial benefits, health and safety and the possible infringement of basic rights; and |
| 7.2.8.2.12 | the interests of the employer with regards to its financial stability, the impact on productivity, its future relationship with employees and recognised trade union operational requirements and the viability of the employer’s business. |
| 7.2.8.3 | the outcome of an exemption application or an appeal should not contain terms and conditions that would have an unreasonably detrimental effect on the fair, equitable and uniform application in the Industry of any collective agreement concluded in the Bargaining Council; |
| 7.2.8.4 | no exemption or appeal outcome shall be granted for an indefinite period or as a total (blanket) exemption or appeal; |
| 7.2.8.5 | no exemption or appeal outcome should be granted retrospectively for any liabilities incurred by an employer in terms of this agreement, such as levies and/or contributions, which became payable by the employer to the Council prior to the date on which the application for such an exemption or an appeal was received by the Council. |
Agreement signed at Johannesburg on this 20th day of March 2018.
L DIRKSEN
Chairman of the Council
K CHAUKE
Vice-Chairman of the Council
WA JANSE VAN RENSBURG
General Secretary
