Labour Relations Act, 1995 (Act No. 66 of 1995)NoticesMotor Industry Bargaining Council (MIBCO)Main Collective AgreementDivision A : Provisions Applicable to all Establishments in the IndustryClause 8 : Enforcement8.2 Exemption Board |
| (1) | In terms of section 32(3)(e) of the Act the Council hereby establishes an independent body, to be known as the Exemptions Board, to consider appeals from non-parties against a refusal of a non-party’s application for exemption from the provisions of a published collective agreement and the withdrawal of such an exemption by the Council. |
| (2) | Any non-party employer may lodge an appeal with the Council against the Council’s refusal of an application for an exemption from the provisions of a published collective agreement and the withdrawal of such an exemption by the Council, in which event the following procedure shall apply: |
| (a) | An appeal shall be in writing and shall be addressed to the Regional Secretary concerned for consideration by the Exemptions Board appointed by the Council. |
| (b) | All appeals shall be considered by the Council or regional councils with due regard to the criteria contained in the collective agreement when considering applications for exemptions by non-parties. |
| (c) | All appeals shall be substantiated or motivated by the applicant and shall include the following details: |
| (i) | the period for which the exemption is required; |
| (ii) | the Agreement and clauses or subclauses of the Agreement from which exemption is required; |
| (iii) | 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 appeal. |
| (3) | The Exemptions Board may, having regard to the individual merits of each appeal, grant or refuse the appeal if— |
| (a) | it does not undermine the agreement; |
| (b) | it is fair to the employer or his employees and other employers and employees in the Industry. |
| (4) | The Exemptions Board shall deal with all appeals within 30 days of the date on which the appeal was submitted: Provided that the Board may defer a decision to a following meeting if additional motivation or substantiation or information is considered necessary to made a decision on the appeal. |
| (5) | Once the Exemptions Board has granted an exemption, it must issue a certificate and advise the applicant(s) accordingly within 14 days of the date of its decision. |
| (6) | When the Exemptions Board dismisses or dismisses part of an appeal for exemption it shall advise the applicant(s) within 14 days of the date of such decision. |
| (7) | Exemption criteria: The Exemptions Board must consider all appeals with reference to the following criteria: |
| (a) | the written substantiation and motivation submitted by the applicant; |
| (b) | the extent of consultation with and 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 scope of exemption required; |
| (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 compatible bona fide benefit or provision, including the cost of 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 Motor Industry; |
| (h) | any existing special economic or other circumstances which warrant the granting of the exemption; |
| (i) | cognisance of the recommendations contained in the Report of the Presidential Commission to Investigate Labour Market Policy; and |
| (j) | any recommendation from the Council. |