| (1) | In terms of section 32 of the Labour Relations Act, No. 66 of 1995, the Council hereby establishes an independent body to be known as the "Exemptions Board" to hear and decide any appeal brought against— |
| (a) | the Council's refusal of a non-party's application for exemption from the provisions of this Agreement; |
| (b) | the withdrawal of such an exemption by the Council. |
| (2) | Any party to this Agreement or any member of a party to this Agreement may apply to the Council for exemption from any of the terms of this Agreement. |
| (3) | The Council shall consider an application for exemption received from a party or a member of a party to the Agreement, following the receipt of the application, within 30 days in terms of section 32(3)(dA) of the Labour Relations Act, No. 66 of 1995. |
| (4) | Applications for exemption referred to the Council in terms of subclause (2) or (3) shall be considered by the Council in accordance with the exemption criteria set out in subclause (13), and the applicant/s shall be advised, in writing, of the Council's decision within five (5) normal working days following the meeting at which the applications were considered. |
| (5) | The Council shall, subject to the exemption criteria, only grant exemption on good cause shown and may determine such period and conditions of examination as it deems fit, with the proviso that all exemptions granted shall lapse on 31 October of every year and may only be extended for a further period by the Council on application for such extension by the applicant. |
| (6) | Any non-party to which this Agreement has been extended in terms of section 32 of the Act, may apply to the Council for exemption from any of the terms of this Agreement. |
| (7) | Subclauses (3) up to and including (5), shall mutatis mutandis apply to any application for exemption received from a non-party. |
| (8) | Within 14 consecutive days after having been advised of the Council's decision regarding an application for exemption, the non-party who feels aggrieved by the Council's decision may submit a written appeal against the Council's decision to the Secretary of the Council. Such appeal must be fully reasoned. |
| (9) | The Secretary of the Council shall submit the appeal, together with the Council's decision regarding the application for exemption, to the Exemptions Board, who shall as soon as possible, and not later than 30 days in terms of section (32)(3)(e) of the Labour Relations Act, No. 66 of 1995, after the appeal is lodged, hear and decide the matter with reference to the exemption criteria set out in subclause (13). |
| (10) | Once the Exemptions Board has decided to uphold the appeal and grant an exemption, it shall issue a certificate and advise the applicant(s) within ten (10) normal working days of the date of the decision, clearly specifying— |
| (a) | the terms of the exemption; and |
| (b) | the reporting requirements by the applicant and monitoring re-evaluation processes, |
| (11) | When the Exemptions Board decides against granting an exemption of part of an exemption requested, it shall advise the applicant (s) within ten (10) normal working days of the date of such decision and shall provide the reason or reasons for the decision not to grant and exemption. |
| (12) | All applications for exemptions referred to in this clause shall be addressed to the Secretary of the Council and shall— |
| (a) | be in writing on an application form provided by the Council; |
| (b) | indicate the period of time for which the exemption is required; |
| (c) | indicate clearly the clauses or subclauses of this Agreement from which exemption is applied for; |
| (d) | be fully reasoned and motivated and include proof that the exemption applied for has been discussed between the employer, his employees and their respective representatives ad also include the responses resulting from such consultations, whether in support of or against the applications indicate possible substitutive provisions; |
| (e) | indicate the specific workplaces and employees in respect of which the exemption is applied for; |
| (f) | include details of the total work force of the employer concerned. |
The Exemptions Board and the Council shall consider all applications of exemptions referred to in terms of this clause with reference to the following criteria:
| (a) | The extend of consultation with and the petition for or against granting the exemptions as provided by employers or employees who are to be affected by the exemption if granted. |
| (b) | infringement of basic conditions of employment rights; |
| (c) | that a competitive advantage is not created by the exemption; |
| (d) | that exemption from any employee benefit fund or training provision be viewed in relation to the alternative comparable bona fide benefit or provision including the cost to the employee, transferability, administration management and cost, growth and stability; |
| (e) | the extent to which the proposed exemption undermines collective bargaining and labour peace in the Building Industry; |
| (f) | the exemption policy of the Council in respect of Government subsidised, low-cost labour intensive and community participation building construction projects adopted by the Council on 4 February 1997; |
| (g) | the Site Specific Agreement of Understanding between the Council and Saldanha Steel Projects signed on 28 January 1997; |
| (h) | the reality that the majority of employers at any time engaged in the Building Industry within the Council's area of jurisdiction as well as the majority of members or the employers party to the Council, represent the category micro to medium enterprises and employ between one and 20 employees; |
| (i) | any special economic or other circumstances that exist that warrant the granting or the exemption; |
| (j) | cognisance of the recommendations contained in the Report of the Presidential Commission to Investigate Labour Market Policy. |
