| (a) | Any non-party bound by this Agreement may apply for monetary exemption. Parties to this agreement may only in exceptional circumstances apply for a monetary exemption, these applications must include a full disclosure of reason for the application and supporting documentation in respect of the reason should be attached. Exemptions will be considered on merit and does not necessarily require audited financial statements. |
(b) The authority of the Council is to consider applications for exemptions and grant exemptions.
| (c) | All exemptions will be considered by the National Exemptions Committee and representatives will be appointed and confirmed annually. All applications for exemption must be considered within 30 days from date of receipt. |
| (d) | In the event of outstanding information, the application for exemption will be deemed to be incompetent and additional and/or outstanding information may be requested within 14 days from date of receipt of an exemption application. If such information is not received within a period of 30 days from such a request the applicant will be informed that the application will lapse. |
| (e) | The Council hereby establishes an exemptions body, constituted of person's independent from the Council, to consider all application for exemption from the provisions of the Council's Collective Agreements5. In terms of s32(3)(e) of the Act, the Council also establishes an Independent Appeals Body to hear and decide within 30 days of date of any appeal brought against the National Exemptions Committee's decision. |
| 2. | Fundamental principles for consideration |
| (a) | All applications must be in writing and fully motivated and sent to the National Office of the Council and submit a copy of the application to the Regional Office for the area in which the applicant is located. The application should be made in terms of the prescribed procedure and the criteria outlined in 3 will apply when such application is considered. |
| (b) | In scrutinising an application for exemption the Council will consider the views expressed by the employer and the workforce, together with any other representations received in relation to that application. |
| (c) | 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. Where the views of the workforce differ from that of the employer, the reasons for the views expressed must be submitted with the application. Where an agreement between the employer and the workforce is reached, the signed written agreement must accompany the application. |
| (d) | The exemption shall not contain terms that would have an unreasonably detrimental effect on the fair, equitable and uniform application of this Agreement in the Industry. |
| (e) | Wage and wage related exemptions shall not generally be granted beyond the expiration of the Agreement provided that the Council may at its discretion and on good cause shown agree to a longer period (but not an indefinite period). |
| (f) | Applications for exemptions involving monetary issues may not be granted retrospectively. |
| (g) | An application for exemption shall not be considered if the contents of the application are covered by an arbitration award binding the applicant. |
| (1) | Applications shall comply with the following requirements: |
| (b) | Be accompanied by relevant supporting data, business plan and financial information if applicable; |
| i. | In cases where the application is based on financial reasons the following will apply: |
| (aa) | Financial information to be considered is limited to Income Statements only; |
| (ab) | There must be an 8% return on turnover before adding back director emoluments; |
| (c) | Applications that affect employees' conditions of employment shall not be considered unless the employees or their representative have been properly consulted and their views fully recorded in an accompanying document. the employees or their representative will be responsible to file their views with the Council; |
| (d) | 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. |
| (e) | Indicate the period for which the exemption is sought. |
| (f) | The applicant's past record (if applicable) of compliance with the provisions of the Collective Agreement and licences of exemption; |
| (g) | Any special circumstances that exist; |
| (h) | any precedent that might be set; |
| (i) | The interest of the Industry in respect of; (if applicable) |
| ii. | Collective Bargaining; |
| iii. | Potential labour unrest; |
| (j) | The interest of the employees in respect of; (if applicable) |
| iii. | Sound conditions of employment; |
| iv. | Possible financial benefits; |
| vi. | Infringements of basic rights. |
| (k) | The interest of the employer in respect of; (if applicable) |
| ii. | Impact on productivity; |
| iii. | Future relationship with employees' and trade union; |
| iv. | Operational requirements. |
| (a) | In cases of urgent applications, details may be faxed or delivered to the Council in the region where the applicant is located. |
| (b) | The Council or Chairperson and Vice Chairperson of the PNF will consider the application, make a decision and communicate that decision to the applicant without delay. |
| (c) | The applicant is expected to put forward a substantive explanation as to the urgency of the application. |
5. Process
| (a) | The Council shall issue to every person to whom exemption has been granted an exemption licence, setting out the following: |
| (i) | the full name of the person or enterprise concerned; |
| (ii) | the provisions of this Agreement from which the exemption has been granted; |
| (iii) | the conditions subject to which exemption is granted; |
| (iv) | the period of the exemption; |
| (v) | the date from which the exemption shall operate; and |
| (vi) | the area in which the exemption applies. |
| (b) | The Council shall ensure that— |
| (i) | all exemption licences issued are numbered consecutively; |
| (ii) | an original copy of each licence is retained by the Council; |
| (iii) | a copy of the exemption licence is sent to the applicant. |
| (c) | Unless otherwise specified in the licence of exemption, any exemption from this Agreement shall be valid only in the region of the Council in which the application was made. |
| (d) | The Council may withdraw the exemption at its discretion. |
| (a) | An independent body, referred to as the Independent Exemptions Appeal Board (the Board), shall be appointed and shall consider any appeal against an exemption granted or refused by the Council, or a withdrawal of an exemption in respect of parties and non-parties, within 30 days from the date the appeal was filed. |
| (b) | The Council Secretary will, on receipt of an appeal against a decision of the Council, submit it to the Independent Exemptions Appeal Board for consideration and finalisation. |
| (c) | In considering an appeal the Board shall consider the recommendations of the Council, and any further submissions by the employers or employees and shall take into account the criteria set out above and also any other representations received in relation to the application. |
| (d) | Should the appeal be successful an exemption licence shall be issued in terms of sub-clause (4)(a) and (b) above and shall be subject to sub-clause (4)(c) and (d). |
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| 5 | Constitution of the National Exemption Committee from page 71 |
a) EXEMPTIONS QUESTIONNAIRE
| i. | The attached questionnaire is the only document that will be considered for any applications for exemptions from this Agreement and must be completed as required by this clause. Any incomplete application form will be deemed to be an incompetent application and will not be considered until and unless a complete application is submitted. Only complete applications will be deemed to be a competent application for consideration as set out in this clause. |
| ii. | Where an agreement with the trade union representatives or workforce is reached in respect of the exemption applied for and attached, such application may be dealt with administratively by the MEIBC Office. |
