| 11.1 | Exemptions Body and Independent Exemptions Appeal Body |
An exemptions body and an Independent Exemptions Appeal Body is hereby established to consider all applications for exemptions from the provisions of this Agreement and to hear and decide, as soon as possible and according to the prescribed criteria, any appeal against—
| 11.1.1 | the Bargaining Council's refusal of a party's or non-party's application for an exemption from the provisions of this Collective Agreement; and |
| 11.1.2 | the withdrawal of an exemption by the Bargaining Council. |
| 11.2.1 | Any person, establishment or body bound by this Collective Agreement may apply for an exemption from any of the provisions of this Agreement. |
| 11.2.2 | An application for exemption shall be in writing on the Bargaining Council's prescribed application form obtainable from the Council's offices, fully motivated and served on the Bargaining Council. The Applicant or the Appellant, depending on the nature of the process, shall satisfy the Body concerned that a proper application or appeal has been served on the appropriate body. |
| 11.2.3 | In the event that the establishment elects to lodge an appeal against the outcome of an application for exemption, such an establishment shall be obliged to lodge its appeal within 30 days after the date of notification from the Council to the Applicant regarding the outcome of such exemption application. |
| 11.2.4 | The Exemption Body or the Independent Exemptions Appeal Body shall decide on an application for exemption or appeal and inform the applicant as soon as possible but not later than 30 days of receipt |
| 11.2.5 | Whenever an employer applies for an exemption he or she shall consult with the affected workforce through their trade union representatives or, where there are no trade union representatives, with the affected workforce itself as to the need for the exemption and its effect on the affected employees and shall include in the application written proof of matters discussed during such consultation and written proof of the views expressed by the affected workforce during the consultation in this regard as well as the signed confirmation of all individually affected employees. |
| 11.2.6 | The Bargaining Council shall issue to every person, establishment or body to whom an exemption has been granted or for whom an appeal has been considered by either the Exemptions Body or the Independent Exemptions Appeal Body, a notice of exemption or outcome of the appeal, setting out the following: |
| 11.2.6.1 | the full name of the person(s), body or bodies or establishment concerned; |
| 11.2.6.2 | the trading name of the employer; |
| 11.2.6.3 | the exact provision(s) of this Collective Agreement from which the exemption has been granted or refused; |
| 11.2.6.4 | the conditions subject to which the exemption is granted; |
| 11.2.6.5 | the period for which the exemption is applicable; and/or |
| 11.2.6.6 | the outcome of an appeal. |
| 11.2.7 | The Bargaining Council must ensure that:— |
| 11.2.7.1 | all notices of exemptions granted or refused and notices of appeal outcomes are issued to the applicants or appellants; and |
| 11.2.7.2 | a copy of each exemption granted or refused and a notice of an appeal outcome is retained by the Bargaining Council. |
| 11.2.8 | The Bargaining Council may, on good cause shown, give the holder of an exemption 30 days' notice of its intention to apply to the Independent Exemptions Appeal Body for the withdrawal of a particular exemption. |
| 11.2.9 | The following processes and criteria shall be considered with regard to an application for exemption from the provisions of any collective agreement concluded in the Bargaining Council or the application for the withdrawal of an exemption previously granted or when any appeal against a decision of the Council is considered: |
| 11.2.9.1 | Processes: Any employer, employee, trade union or employer's association may at any point in time apply for an exemption from any of the provisions of this Collective Agreement. The applicant is required to complete and submit in writing with the relevant office of the Council, a fully and properly completed prescribed application for exemption form, accompanied by all relevant supporting documentation. |
| 11.2.9.2 | Criteria: The Council and/or the Independent Exemptions Appeal Body shall, without limiting its own considerations, inter alia consider the following criteria to wit: |
| 11.2.9.2.1 | The financial and social implications on the applicants, competitors, employees and the Industry as a whole; |
| 11.2.9.2.2 | viability of the continued existence of the establishment; |
| 11.2.9.2.3 | the views expressed by the employees and/or the applicants' competitors; |
| 11.2.9.2.4 | the views and recommendations submitted by the bargaining council or any other person or body with an interest in the matter; |
| 11.2.9.2.5 | the possibility of job losses if the exemption is granted or refused; . |
| 11.2.9.2.6 | the limitation on any employment opportunities if the exemption is granted or refused; |
| 11.2.9.2.7 | any other relevant information that might have an impact on the outcome of either an application or an appeal; |
| 11.2.9.2.8 | the applicant's past record (if applicable) of compliance with the provisions of the main agreement and/or exemption certificates; |
| 11.2.9.2.9 | any special circumstances that exist or any precedent that might be set; |
| 11.2.9.2.10 | the interests of the Industry in relation to unfair competition, centralised collective bargaining as well as the economic stability of the Industry; |
| 11.2.9.2.11 | the interests of the employees with regards to exploitation, job preservation, sound conditions of employment, potential financial benefits, health and safety and the possible infringement of basic rights; and |
| 11.2.9.2.12 | the interests of the employer with regards to its financial stability, the impact on productivity, its future relationship with employees and recognised trade union operational requirements and the viability of the employers business. |
| 11.2.10 | an exemption should not contain terms and conditions that would have an unreasonably detrimental effect on the fair, equitable and uniform application in the Industry of any collective agreement concluded in the Bargaining Council; |
| 11.2.11 | no exemption shall be granted for an indefinite period or as a total (blanket) exemption; |
| 11.2.12 | no exemption should be granted retrospectively for any liabilities incurred by an employer in terms of this agreement, such as levies and/or contributions, which became payable by the employer to the Council prior to the date on which the application for such an exemption was received by the Council. |
| 11.2.13 | No exemption shall be granted for payment of wages less than the national minimum hourly rate of pay. |
| 11.2.14 | No Exemption shall be granted in respect of any liability to pay fees, levies and/or contributions in terms of a Collective Agreement, where an Arbitration Award was previously handed down requiring payment of that liability. |
| 11.2.15 | An Exemption Fee, per employee payable by the employer only, as prescribed in ADDENDUM 1, shall be charged to establishments to whom exemptions have been granted in respect of Leave Pay Fund and Holiday Bonus Fund contributions payable to the Council. |
