Labour Relations Act, 1995 (Act No. 66 of 1995)NoticesMotor Industry Bargaining Council (MIBCO)The Autoworkers Provident Fund AgreementExtension to Non-Parties of the Autoworkers Provident Fund Collective AgreementClause 12 - Independent Board |
| (1) | In terms of section 32(3)(e) of the Act, the Council hereby establishes an independent body, to be known as the Independent Board to consider appeals from non-parties against a refusal of a non-party's application for exemption from the provisions of a published collective agreement and the withdrawal of such an exemption by the Council. The following provisions shall apply to the Independent Board: |
| (a) | The Council shall appoint 6 (six) independent persons (Members) to constitute the Independent Board, for the avoidance of doubt, such persons shall not be representative, office bearer or official of the council or party to the Council or any of its collective bargaining agreements. The independent persons shall be appointed for a period of 12 (twelve) months and shall possess inter alia the following qualities: |
| (i) | the ability to be objective, independent and impartial; |
| (ii) | sound decision-making skills; |
| (iii) | leadership qualities, particularly in respect of exercising sound judgment; |
| (iv) | be a person in whose impartially and integrity the public can have confidence; |
| (v) | understand and comply with confidentiality requirements; |
| (vi) | working knowledge and experience of labour and collective bargaining matters; and |
| (vii) | knowledge and understanding of judicial / quasi-judicial processes. |
| (b) | The Council shall determine such other terms of appointment of Members of the Independent Board subject to the provisions of the Labour Relations Act. |
| (2) | Any non-party employer may lodge an appeal with the Independent Board against the Council's or Regional Council's decision, as the case may be, to refuse to grant an application for an exemption from the provisions of a published collective agreement and the withdrawal of such an exemption by the Council, in which event the following procedure shall apply: |
| (a) | An appeal shall be In writing and shall be addressed to the General Secretary of the Council or the Secretary of the Regional Council, as the case may be, for consideration by the Independent Board. |
| (b) | All appeals lodged by non-parties shall be considered by the Independent Board with due regard to the Exemption criteria set out in sub clause (7) below. |
| (c) | All appeals shall substantiated or motivated by the applicant and shall include the following details: |
| (i) | the period for which the appeal is required; |
| (ii) | the Agreement and clauses or sub clauses of the Agreement from which appeal is required; |
| (Iii) | proof that the exemption applied for has been discussed by the employer, his employees and their respective representatives; and the responses resulting from such consultation, either in support of or against the application, are to be included with the appeal. |
| (3) | The Independent Board may, having regard to the Individual merits of each appeal, grant or refuse the appeal if— |
| (a) | it does not undermine the agreement; |
| (b) | it is fair to the employer or his employees and other employers and employees in the Industry. |
| (4) | The Independent Board shall deal with all appeals within 30 days of the date on which the appeal was submitted. |
| (5) | Once the Independent Board has granted an appeal, it must Issue a certificate and advise the applicant(s) accordingly within 4 days of the date of its decision. |
| (6) | When the Independent Board dismisses or dismisses part of an appeal It shall advise the applicant(s) within 14 days of the date of such decision. |
| (7) | Exemption criteria: The Independent Board must consider all appeals with reference to the following criteria: |
| (a) | the written substantiation and motivation submitted by the applicant; |
| (b) | the extent of consultation with and the petition for or against granting the appeal as provided by employers or employees who are to be affected by the appeal if granted; |
| (c) | the scope of appeal required; |
| (d) | the infringement of basic conditions of employment rights; |
| (e) | the fact that a competitive advantage is not created by the appeal; |
| (f) | the viewing of the appeal from any employee benefit fund or training provision in relation to the alternative compatible bona fide benefit or provision, including the cost of the employee, transferability, administration management and cost, growth and stability; |
| (g) | the extent to which the proposed appeal undermines collective bargaining and labour peace in the Motor Industry; |
| (h) | any existing special economic or other circumstances which warrant the granting of the appeal; |
| (I) | cognisance of the recommendations contained in the Report of the Presidential Commission to Investigate Labour Market Policy; and |
| (j) | any recommendation from the Council. |