Labour Relations Act, 1995 (Act No. 66 of 1995)NoticesMotor Industry Bargaining Council (MIBCO)Extension to Non-Parties of the Main Collective AgreementDivision AClause 8: Enforcement8.1. Exemptions |
| (1) | General Exemption from all Clauses |
| (a) | Notwithstanding sub clause 8.1(3), exemptions from any of the provisions of any of the Council's Agreements may be granted by the Councilor Regional Councils, to any party on application. |
| (b) | Application for exemption shall be made to the secretary of the Regional Council within whose area the applicant operates or is employed. |
| (c) | The Regional Council or the Council, as the case may be, shall fix the conditions subject to which such exemptions shall be valid, and may, if it deems fit, after one week's notice has been given, in writing,to the person(s) concerned, withdraw any licence of exemption. |
| (d) | The secretary of the Regional Council or the General Secretary of the Council,as the case may be,shall issue to every person granted exemption, a licence signed by him setting out— |
| (i) | the name of the person concerned; |
| (ii) | the provisions of this Agreement from which exemption is granted; |
| (iii) | the conditions subject to which such exemption is granted; and |
| (iv) | the period during which the exemption shall be valid. |
| (e) | In respect of establishments registered under Chapters II or lll of this Agreement, the following exemptions procedure applies: |
| (i) | An employer that applies for an exemption in order to pay a lesser wage increase or to be exempted from paying on actuals shall complete the wage exemption application form available on request from the local Regional Councils. |
| (ii) | The employer shall consult its employees on the employer's intention. to apply for an exemption and the application for exemption must contain details and proof of the consultation process. |
| (iii) | The employer, in the application shall furnish all relevant financial information supporting the motivation for the exemption applied for. |
| (iv) | The employer shall lodge the application for exemption with the local Regional Council and the employer shall specify that it is a Chapter II or Ill application for an exemption and the employer shall specify the exact nature of the exemption applied for as prescribed in paragraph (e)(i) of this clause. |
| (v) | The Regional Council shall make a decision on the application for an exemption within 30 days from the date upon which the application was lodged with the Regional Council. |
| (vi) | If the application of a non-party establishment for the exemption is rejected, the employer may lodge an appeal with the Independent Board and if the application of a Party establishment is rejected the employer may appeal to the National Council. |
| (f) | The Secretary of the Regional Council or the General Secretary of the Council,as the case may be, shall— |
| (i) | number consecutively all licences issued; |
| (ii) | retain a copy of each licence issued; and |
| (iii) | where exemption is granted to an employee, forward a copy of the licence to the employer concerned. |
| (g) | The Secretary of the Regional Council or the General Secretary, as the case may be, shall issue to every person granted a licence, a letter of authority signed by him setting out, read with the changes required by the context, the information referred to in sub-clauses (e) and (f) above. |
| (2) | Exemption from the Motor Industry's Retirement Funds |
| (a) | When applications for exemption are received from employers or a group of employees, requesting exemption from the Motor Industry's retirement funds in order to join an alternative approved fund, the following shall be observed: |
| (i) | The alternative fund must be a properly structured pension/provident/ retirement fund registered in terms of the Pension Funds Act. |
| (ii) | Applications for exemption submitted by an employer on behalf of its employees to be exempted from the industry's retirement funds shall be made on an official company letterhead and shall be signed by the employer or its duly authorized representative. |
| (iii) | Applications for exemption submitted by a group of employees to be exempted from the industry's retirement funds, shall be made on an official company letterhead from the company that they are employed at, and shall be signed by each employee or his/her duly authorized representative. |
| (iv) | The contributions to the alternative fund by both employer and employee shall be at least the equivalent to that required by the industry's funds respectively. |
| (v) | The waiting period for membership to the alternative fund(s) may not be longer than 6 months. |
| (vi) | All new alternative funds' benefits shall be collectively better than those of the industry's funds and the benefits of all existing funds which at present enjoy exemption shall be equal to or better than those of the industry's funds. |
| (vii) | Membership of an alternative fund that complies with these criteria shall be compulsory when an exemption is granted from membership of the Industry funds. |
| (viii) | In the event that a dispute arises as a result of the rejection of such application, the dispute shall be referred to an agreed neutral third party or parties, qualified in the matters of retirement funds, who shall observe the provisions of this clause and who shall make a final and binding ruling. |
| (b) | The Secretary of the Regional Council or the General Secretary, as the case may be, shall issue to every person granted a licence, a letter of authority signed by him setting out, read with the changes required by the context, the information referred to in sub-clause (1) of this clause. |
| (3) | Exemptions relating to actual/guaranteed increases |
| (a) | Individual employers seeking exemption to pay a lesser actual wage increase and/or a guaranteed increase or to be exempted from paying such, must obtain the wage exemption application form available on request from their local Regional Council. |
| (b) | Applications for exemption not to pay the agreed prescribed minimum wage increases will not be accepted or considered in terms of these exemption procedures. |
| (c) | The application must be lodged with the Regional Council and must include the following supporting documents— |
| (i) | Format financial information |
| (ii) | A written motivation |
| (iii) | Details and proof of the consultation process between the employer, employees and relevant MIBCO Trade Unions. |
| (d) | Applications must be lodged with the Regional Council and scrutinized within 21 days from the date the Council has circularized all employers with the amending Agreements and wage schedules, either hand-delivered or by registered mail or by fax or E-mail, in the prescribed format. |
| (e) | The Wage Exemptions Board will make a decision on the application within 14 days of the conclusion of the first period, i.e. 21 days as referred to in sub-clause (d) hereof. |
| (f) | Applicant employers will be advised of the outcome within seven days by fax where applicable and by registered mail. |
| (g) | Establishments may appeal to the Independent Board within 14 calendar days from the date of receipt of the registered post or fax advising of the rejection of the application. |
| (g) | Appeal hearings will be attended by the Council's Auditors to assist with the interpretation of the financial information. |