Labour Relations Act, 1995 (Act No. 66 of 1995)NoticesNational Textile Bargaining CouncilCollective AgreementPart 1H: General40. Exemptions |
| 40.1 | Any person bound by this Agreement may apply for exemption. |
| 40.2 | The authority of the Bargaining Council is to consider applications for exemptions and grant exemptions. |
| 40.3 | The Bargaining Council must determine its exemptions policy and process all exemption applications in terms of this policy. |
| 40.4 | All applications for exemption must be made in writing on the appropriate application form, obtained from the Secretary of the Bargaining Council or the NTBC website, setting out relevant information, including— |
| 40.4.1 | the provisions of the agreement in respect of which exemption is sought; |
| 40.4.2 | the number of persons in respect of whom the exemption is sought; |
| 40.4.3 | the reasons why the exemption is sought; |
| 40.4.4 | the nature and size of the business in respect of which the exemption is sought; |
| 40.4.5 | the duration and timeframe for which the exemption is sought; |
| 40.4.6 | the business strategy and plan of the applicant seeking the exemption; |
| 40.4.7 | the applicants past record (if applicable) of compliance with the provisions of the Collective Agreement, its amendments and exemptions certificate. |
| 40.4.8 | The recorded views expressed by the trade union or workforce itself during the plant level consultation process; and |
| 40:4.9 | Any other relevant supporting data and Financial information the Council may prescribe from time to time. |
| 40.5 | An exemption application in respect of a term or provision of a Collective Agreement— |
| 40.5.1 | concluded in the council that applies throughout the Textile industry must be considered by an exemptions committee appointed by the Council; |
| 40.5.2 | concluded in a subsector chamber must be considered by an exemptions committee whose members are appointed from the employers organization(s) and trade union(s) who participate in the subsector chamber or section. |
| 40.6 | The Bargaining Council shall decide on an application for exemption within 30 days of receipt. |
| 40.7 | Upon receipt of an application by the Bargaining Council, it shall immediately refer the application to the exemptions committee which may, if deemed expedient, request the applicant to attend the meeting at which the application is considered, to facilitate the deliberations. |
| 40.8 | An exemption committee appointed by the Council may request additional information from an applicant applying for exemption. |
| 40.9 | ln scrutinizing the application, the Exemption Committee or the Independent Exemptions Body will consider the details of the application, the views expressed by the trade union or work-force, affected employers in the relevant subsector or section, any other representations received in relation to the application, and the factors and criteria as listed in clause 40.15 below. |
| 40.10 | The secretary must advise the applicant in writing of the decision of the exemptions committee within 15 days from the date of the decision, failing which the Bargaining Council shall be deemed to have refused the application for exemption. |
| 40.11 | In the event of the exemptions committee granting, partially granting or refusing to grant an application, the applicant shall be informed of the reasons for the decision to the appeal in writing on the appropriate appeal application form against the decision to the Independent Exemptions Body, established by the bargaining Council or Executive Committee within 21 days from the date of being informed of the outcome. |
| 40.12 | In the terms of section 32(3)(e) of the Labour Relations Act [as amended], the Bargaining Council must establish an independent Exemption Body to hear and decide as soon as possible any appeal brought against the exemption committee's refusal of a non-party's application for exemption for the provision of a collective agreement by the exemption committee or withdrawal of an exemption by the Bargaining Council. |
| 40.13 | The Independent Exemption Body shall hear and decide and inform the applicant and the Bargaining Council as soon as possible and not later than 30 days after the appeal has been lodged against the decision of the exemption committee. |
| 40.14 | No representative, office-bearer, or official of a trade union or employer's organizations party to the Bargaining Council, maybe a member of, or participate in the deliberations of, the Independent Exemptions Body established by the Bargaining Council. |
| 40.15 | When considering an application, the Exemptions Committee or the Independent Exemptions Body whichever the case may be must consider, in addition to Clause 40.9, the following: |
| 40.15.1 | Whether the granting of the exemption or appeal will prejudice the objectives of the Bargaining Council or contravene the provisions of any labour legislation or Collective Agreements; |
| 40.15.2 | The circumstances prevailing in the Textile Industry as a whole or the subsectors/sections likely to be affected by the application and /or the interest of the industry regarding unfair competition, collective bargaining, potential for labour unrest and increased employment; |
| 40.15.3 | the nature and size of the business in respect of which the application is made; |
| 40.15.4 | whether the duration of the exemption or appeal is for a limited or specified period; |
| 40.15.5 | any representations made by the employees likely to be affected by the application and interest of employees as regards exploitation, job preservation, sound conditions of employment, possible financial banæ0tm, health and safety of workers and infringement of basic rights; |
| 40.15.6 | whether the business strategy and plan presented by the applicant demonstrates that the granting of the exemption will make a material difference to the long-term viability of the business in respect of which the exemption or appeal is sought; |
| 40.15.7 | whether a refusal to grant an exemption or appeal will result in undue financial hardship to the applicant; financial instability, impact on productivity, future relationship with the employees trade union and operational requirements; |
| 40.15.8 | whether the granting of the exemption or appeal will undermine collective bargaining and be likely to cause undue financial hardship to the employees affected; |
| 40.15.9 | whether the granting of the exemption or appeal will impact negatively on parity agreements; and |
| 40.15.10 | whether the granting of the exemption or appeal will impact negatively on local competitors who are complying with Collective Agreements; and |
| 40.15.11 | Whether the employees or their representatives have been consulted arid their views recorded, and/or any agreement reached between the applicant and the workforce. |
| 40.15.12 | Any other relevant supporting data and financial information as prescribed by the Bargaining Council and supplied by the Applicant. |
| 40.16 | In the event of the Independent Exemptions Body granting, partially granting or refusing to grant the appeal, the applicant shall be informed in writing of the reasons for the decision within 21 days from the date of the decision. |
| 40.17 | The decision of the Independent Exemptions Committee is final and binding upon the applicant and the Bargaining Council. |
| 40.18 | If an exemption or appeal is granted or partially granted, the Exemption Committee or the Independent Exemptions Body, shall issue a certificate, signed by Secretary, containing the following particulars: |
| 48.18.1 | The full name of the applicant(s) or enterprise concern; |
| 40.18.2 | The trade name; |
| 40.18.3 | The provisions of the Agreement from which exemption or appeal has been granted; |
| 40.18.4 | The period of which the exemption or appeal shall operate; |
| 40.18.5 | The date of issue and from which day the exemption or appeal shall operate; |
| 40.18.8 | The condition(s) of the exemption or appeal granted; and |
| 40.18.7 | The area in which the exemption or appeal applies. |
| 40.19 | An employer to whom a certificate has been issued shall at all times have the certificate available for inspection of the workplace. |
| 40.20 | The Secretary must maintain a register of all exemption and appeal certificates granted, partially granted or refused. |
| 40.21 | The Nation& Minimum Wage Act 9 of 2018 together with the National Minimum Wage Regulations of 2018 , became effective on 1 January 2019. All applications for exemptions in respect of the National Minimum Wage Act, 2018 together with the National Minimum Wage Regulations of 2018, as amended from time to time, is to be submitted directly to the Department of Labour via its National Minimum Wage Exemption System, |