These fundamental principles are supplemented by the requirements set out below for specific types of applications.
The BCCEI hereby establishes a Committee, constituted of persons independent of the BCCEI, to consider all applications for exemption from the provisions of the BCCEI Collective Agreements.
The BCCEI further establishes an IAB in terms of section 32(3)(e) of the Act to consider and decide any appeal from a decision of the Committee.
The following fundamental principles are to be observed in considering and deciding upon, an application for exemption:
| (a) | Retrospective applications - Applications for exemption must, in principle, not be granted retrospectively prior to the date of the application. |
| (b) | An urgent application may be faxed, e-mailed or hand delivered to the Office. Such an application must contain an explanation as to why the application is made as a matter of urgency. If the Committee or IAB is satisfied that the application is urgent, the Committee or IAB must (i) consider the application; (ii) make a decision; (iii) communicate the decision to the affected parties. |
| (c) | Prescribed forms: All applications must be on affidavit, and on the prescribed application forms (obtainable from the Office or the BCCEI website) which, together with supporting documentation, must be sent to the BCCEI for consideration. |
| (d) | The Committee and IAB shall take into consideration all relevant factors, which may include, but shall not be limited to the following criteria: |
| i. | The applicant’s past record (if applicable) of compliance with the provisions of the BCCEI Collective Agreements; |
| ii. | Previous exemptions granted; |
| iii. | Any special circumstances that exist; |
| iv. | The interest of the industry as regards: |
| (b) | Collective bargaining; |
| (c) | Potential for labour unrest; |
| (d) | Increased employment, |
| v. | The interest of employees as regards: |
| (c) | Sound conditions of employment; |
| (d) | Possible financial benefits; |
| (f) | Infringement of basic rights. |
| vi. | The interest of the employer as regards to: |
| (b) | Impact on productivity; |
| (c) | Future relationship with employees and trade unions; |
| (d) | Operational requirements. |
| (e) | The employer must consult with the workforce - In respect of unionised employees, their trade union representative/s must be consulted and in the case of non-unionised employees, their elected representative/s must be consulted. In the event that employees do not have an elected representative, the employees themselves must be consulted. |
| i. | Any objections to the application raised by any of the employees or their representative/s must be accurately and fully recorded in a document which must accompany the application. |
| ii. | The employer’s position in response to the above objections (if any) must also accompany the application. |
| iii. | The applicant must provide proof of service of the application on the employees’ trade union representative, and in the absence of a recognised trade union, on the employees’ elected representative, and in the absence of an elected representative, on the employees themselves. (Where an application contains copies of financials, the applicant would be required to provide proof that the employees or their representatives as stipulated in this sub-clause, were provided with an opportunity to view the financials as part of the consultation process). |
| (f) | The Committee and IAB, in considering the application, must take into consideration the views expressed by the parties and other representations received in relation to that application by any other interested parties. The exemption must not contain terms that have an unreasonably detrimental effect on the fair, equitable and uniform application of the BCCEI Collective Agreements. An exemption may not be granted in respect of any issue which is covered by an arbitration award. |
| (g) | An affected party or parties shall have the right to appeal, in writing, against a decision of the Committee, within 30 (thirty) calendar days of having been notified or becoming aware of the Committee’s decision and reasons therefore. The notice of appeal must set out the grounds on which the appeal is based. |
