Labour Relations Act, 1995 (Act No. 66 of 1995)NoticesBargaining Council for the Hairdressing Trade (Cape Penninsula)Main Collective Agreement22. Exemption and Appeal Criteria |
| 1. | In terms of Section 32 of the Act, No 127 of 1998, the Council hereby establishes an Independent Appeal Board consisting of one independent person appointed by the Council to hear and decide any appeals brought against the Council"s:- |
| (a) | refusal of a non-parties application for exemption; and |
| (b) | withdrawal of an exemption granted by the Council. |
| 2. | Any establishment falling within the Council"s registered scope may apply to the Council for exemption from any or all of the provisions of this Agreement, in the specified form. |
| 3. | All applications for exemption must be in writing, addressed to the Secretary of the Council and be supported by any relevant documentation. The application must contain the following information:— |
| (a) | the period for which the exemption is sought; |
| (b) | the number of employees affected and their names; |
| (c) | the clauses of this Agreement from which the exemption is requested; |
| (d) | satisfactory proof that the exemption applied for has been discussed between the employer, the employees affected and/or their respective representatives, including the response resulting from such discussions either in support of or in opposition to the application. |
| 4. | The Secretary must place the application for exemption on the agenda of the next Council meeting for consideration. |
| 5. | The Council must consider the application and may grant an exemption to an employer or an employee if:— |
| (a) | it is fair to both the employer, its employees and other employees in the Hairdressing Trade; |
| (b) | it does not undermine this Agreement; |
| (c) | it will make a material difference to the viability of the establishment; |
| (d) | it will assist with unexpected economic hardships occurring during the currency of the Agreement and will save unnecessary job losses; and |
| (e) | it has a limited lifespan. |
| 6. | Once the Council has decided to grant an exemption it must issue a certificate and advise the applicant(s) within seven days of the date of its decision. |
| 7. | If the Council decides to refuse" an exemption it must:— |
| (a) | advise the applicant within seven days of the date of its decision; |
| (b) | provide the applicant with the reason(s) for not granting an exemption; |
| (c) | advise the applicant of the right to appeal against the decision of the Council. |
| 8. | The Council may, if it deems fit, withdraw any exemption granted to an applicant on one week"s notice, whether or not the time period of the exemption has expired. The Council must advise the applicant of the right to appeal against the decision of the Council to withdraw the exemption. |
| 9. | Appeals must be addressed to the Secretary of the Council in writing within five working days from the date of notification of the Council"s decision on the application for exemption. |
| 10. | The Secretary must within seven days from the date of the appeal application convene a meeting of the Independant Appeal Board to consider the appeal. The board must apply the same criteria specified in clause 22 (5) when considering an appeal. |
| 11. | The Independant Appeal Board must conduct its proceedings in a manner that it considers appropriate in order to determine the application fairly and quickly, but must deal with the substantial merits of the application with the minimum of legal formalities. |
| 12. | Subject to the discretion of the Independant Appeal Board as to the appropriate form of the proceedings, the applicant, the Council and any representative of the parties may give evidence, call witnesses, question witnesses of any other party and address arguments to the Board. |
| 13. | Within 14 days of the conclusion of the proceedings, the Independant Appeal Board must issue a decision, with reasons, which will have the same effect as an arbitration award. |