Labour Relations Act, 1995 (Act No. 66 of 1995)NoticesBargaining Council for the Food Retail, Restaurant, Catering and Allied TradesExtension to Non-parties of the Main Collective Agreement23. Exemptions |
| A | EXEMPTION |
| (1) | Any person subject to the constitution/agreement may apply for exemption. |
| (2) | The authority of the Council is to consider applications for exemptions and grant exemptions. |
| (3) | The Council hereby establishes an exemptions body constituted of panelist appointed by the Council to consider all applications for exemptions of the Council's Collective Agreement. |
| (4) | The exemption body shall decide on an application for exemption within 30 days of receipt. |
| (5) | Applications for Exemptions shall be in writing on the appropriate application form obtained from the Council. |
| (6) | In scrutinizing an application for exemption, the Exemption Body will consider the views expressed by the workforce, together with any other representations received in relation to that application. |
| (7) | In considering the application, the Exemptions Body shall take into consideration all relevant factors, which may include, but shall not be limited to, the following exemption criteria: |
| (a) | The period for which the exemption is sought. |
| (b) | The number of employees affected and how many of such employees are members of a registered trade union. |
| (c) | Be accompanied by relevant supporting data and financial information. |
| (d) | The employer must consult with the workforce, through a trade union representative or, where no trade union is involved, with the workforce itself and must include the views expressed by the workforce in the application. |
| (e) | Where the views of the workforce differ from that of the employer, the reasons for the views expressed must be submitted with the application. |
| (f) | An application for exemption shall not be considered unless the employees' or their representatives have been properly consulted and their view fully recorded in an accompanying document. Where and agreement between the employer and the workforce is reached, the signed written agreement must accompany the application. |
| (g) | If the nature of the relief sought dictates, the application shall be accompanied by a plan reflecting the objectives and strategies to be adopted to rectify the situation giving rise to the application and indicating a time frame for the plan. |
| (h) | The applicant's past record (if applicable) of compliance with the provisions of this agreement, its amendments and Exemptions Certificate. |
| (i) | Any precedent that might be set; |
| (j) | It is fair to both the employer, its employees and other employees in the sector; |
| (k) | It does not undermine this Agreement; |
| (I) | It will make a material difference to the viability of a business; |
| (m) | It will assist with unexpected economic hardship occurring during the currency of the Agreement and will see unnecessary job losses; |
| (n) | The interest of the industry as regards: |
| (i) | unfair competition; |
| (ii) | collective bargaining; |
| (iii) | potential for labour unrest; |
| (iv) | increased employment; |
| (o) | The interest of employees as regards: |
| (i) | exploitation; |
| (ii) | job preservation; |
| (iii) | sound conditions of employment; |
| (iv) | possible financial benefits; |
| (v) | health and safety; |
| (vi) | infringement of basic rights; |
| (p) | The interest of the employer as regards; |
| (i) | financial stability; |
| (ii) | impact on productivity; |
| (iii) | future relationship with employees' trade union; |
| (iv) | operational requirements; |
| (q) | Any special circumstance that exist; |
| (8) | Upon receipt of a valid application by the 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. |
| (9) | In the event of the Exemptions Body granting, partially granting or refusing to grant an application, the applicant shall be informed of the reasons for the decision and shall have the right to appeal in writing against the decision to the Independent Body within 14 or 21 days from the date of being informed of the outcome. |
| B | INDEPENDENT BODY |
| (10) | In terms of section 32(3)(e) of the Act, the Council establishes an Independent Body to hear and decide as soon as possible any appeal brought against the exemptions Body's refusal of a non-part's application for exemption from the provisions of a collective agreement by the exemption body or withdrawal of an exemption by the Council. |
| (11) | The Independent Body shall hear and decide and inform the applicant and the council as soon as possible and not later than 30 days after the appeal has been lodged against the decision of the exemption's body. |
| (12) | No representative, office bearer, or official of the Council, trade union or employer's organisation party to the Council may be a member or participate in the deliberations of the Independent Body. |
| (13) | In considering the application, the Independent Body shall take into consideration all relevant factors as stipulated in clause 7 above. |
| (14) | In the event of the Independent Body granting, partially granting or refusing to grant the appeal, the applicant shall be informed of the reasons for the decision within 14 or 21 days from the date of the decision. |
| (15) | If an exemption is granted or partially granted the exemptions Body or Independent Body whichever the case might be, shall issue an exemption certificate, signed by its Chairman and Secretary, containing the following particulars: |
| (a) | the name of the applicant(s) or enterprise concerned; |
| (b) | the trade name; |
| (c) | the provisions of the Agreement from which exemption has been granted; |
| (d) | the period for which then exemption shall operate; |
| (e) | the date of issue and from which the exemption shall operate; |
| (f) | the condition(s) of the exemption granted |
| (g) | the area in which the exemption applies |
| (16) | The Exemptions Body or Independent Body shall; |
| (a) | retain a copy of the certificate |
| (b) | forward the original certificate to the Secretary of the Council; and |
| (c) | a copy of the exemption certificate is sent to the applicant |
| (17) | An employer to whom a certificate has been issued shall at all times have the certificate available for inspection at this establishment. |
| (18) | Unless otherwise specified in the certificate of exemption, any exemption from this Agreement shall be valid only in the region of the Council in which the application was made. |
| (19) | The Council may withdraw the exemption at its discretion and inform the applicant of the reasons of such withdrawal. |