Labour Relations Act, 1995 (Act No. 66 of 1995)NoticesBargaining Council for the Contract Cleaning Services IndustryKwa-Zulu NatalExtension to non-parties of the Main Collective Amending Agreement26. Exemptions and Appeals |
| 26.1 | Any person bound by this Agreement may apply for exemption. |
| 26.2 | The authority of the Bargaining Council is to consider applications for exemptions and grant exemptions. |
| 26.3 | The Bargaining Council must determine its exemptions policy and process all exemptions applications in terms of this policy. |
| 26.4 | All applications for exemption shall be made in writing on the appropriate application form, obtained from the Bargaining Council, setting out relevant information, including. |
| (a) | The provisions of the agreement in respect of which exemption is sought |
| (b) | The number of persons in respect of whom the exemption is sought; |
| (c) | The reasons why the exemption is sought |
| (d) | The nature and size of the business in respect of which the exemption is sought; |
| (e) | The duration and time frame for which the exemption sought; |
| (f) | The business strategy and plan of the applicant seeking the exemption; |
| (g) | The applicant's past record (if applicable) of compliance with the provisions of the Collective Agreement, its amendments and exemptions certificate; |
| (h) | The recorded views expressed by the trade union or workforce itself during the plant level consultation process; and |
| (i) | Any other relevant supporting data and financial information the Council may prescribe from time to time. |
| 26.5 | An exemption application in respect of a term or provision in Collective Agreements: |
| (a) | Concluded in the Council that applies throughout the Industry must be considered by an exemptions body appointed by the Council; |
| (b) | Concluded in a sub-sector chamber or section must be considered by an exemptions body whose members are appointed from the party employer organisation(s) and trade union(s) |
| 26.6 | The Bargaining Council shall decide on an application for exemption within 30 days of receipt. |
| 26.7 | Upon receipt of an application by the Bargaining Council, it shall immediately refer the application to the exemptions body which may, if deemed expedient, request the applicant to attend the meeting at which the application is considered, to facilitate the deliberations. |
| 26.8 | An exemption body appointed by the Council may request additional information from an applicant applying for exemption. |
| 26.9 | In scrutinising an application, the Exemption Body or the Independent Exemptions Body will consider the details of the application, the views expressed by the trade union or workforce, affected employers, any other representations received in relation to the application, and the factors and criteria as listed in clause 26.15 below. |
| 26.10 | The Secretary must advise the applicant in writing of the decision of the exemptions body within 15 days from the date of the decision, failing which the Bargaining Council is deemed to have refused the application for exemption. |
| 26.11 | In the event of the exemptions body granting, partially granting or refusing to grant an application, the applicant shall be informed for the reasons for the decision and have the right to appeal in writing on the appropriate appeal application form against the decision to the Independent Body, established by the Bargaining Council within 21 days from the date of being informed of the outcome. |
| 26.12 | In terms of section 32(3)(e) of the Act, the Bargaining Council must establish an Independent Body to hear and decide as soon as possible any appeal brought against the exemptions body's refusal of an application for exemption from the provisions of a collective agreement by the exemptions body or withdrawal of an exemption by the Bargaining Council. |
| 26.13 | The Independent 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 exemptions body. |
| 26.14 | No representative, office- bearer, or official of a trade union or employers' organisations party to the Bargaining Council, may be a member of, or participate in the deliberations of, the Independent Body established by the Bargaining Council. |
| 26.15 | When considering an application, the Exemption Body or, the Independent Body whichever the case may be must consider, in addition to clause 26.9, the following: |
| (a) | 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; |
| (b) | The circumstances prevailing in the Industry as a whole 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; |
| (c) | The nature and size of the business in respect of which the application is made; |
| (d) | Whether the duration of the exemption or appeal is for a limited or specified period; |
| (e) | Any representations made by the employees likely to be affected by the application and interest of employee's as regard exploitation, job preservation, sound conditions of employment, possible financial benefits, health and safety of workers and infringement of basic rights; |
| (f) | Whether the business strategy and plan presented by the applicant demonstrates that the granting of the exemption or appeal will make a material difference to the long term viability of the business in respect of which the exemption or appeal is sought; |
| (g) | 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; |
| (h) | Whether the granting of the exemption or appeal will undermine collective bargaining and be likely to cause undue financial hardship to the employees affected; |
| (i) | Whether the granting of the exemption or appeal will impact negatively on parity agreements; |
| (j) | Whether the granting of the exemption or appeal will impact negatively on local competitors who are complying with Collective Agreements; and |
| (k) | Whether the employees or their representatives have been consulted and their views recorded, and/or any agreement reached between the applicant and the workforce. |
| (l) | Any other relevant supporting data and financial information as prescribed by the Bargaining Council and supplied by the applicant. |
| 26.17 | In the event of the Independent Body granting, partially granting or refusing the 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. |
| 26.18 | The decision of the Independent Body is final and binding upon the applicant and the Bargaining Council, |
| 26.19 | If an exemption or appeal is granted or partially granted, the Exemptions Body or the Independent Body, shall issue a certificate, signed by Secretary, containing the following particulars: |
| (a) | The full name of the applicant(s) or enterprise concern, |
| (b) | The trade name; |
| (c) | The provisions of the Agreement from which exemption or appeal has been granted; |
| (d) | The period for which the exemption or appeal shall operate; |
| (e) | The date of issue and from which day the exemption or appeal shall operate; |
| (f) | The condition(s) of the exemption or appeal granted; and |
| (g) | The area in which the exemption or appeal applies. |
| 26.20 | An employer to whom a certificate has been issued shall at all times have the certificate available for inspection at the workplace. |
| 26.21 | The Secretary must maintain a register of all exemption and appeal certificates granted, partially granted or refused. |