Labour Relations Act, 1995 (Act No. 66 of 1995)NoticesNational Bargaining Council for the Hairdressing, Cosmetology, Beauty and Skincare IndustryExtension to Non-parties of the Consolidated Collective Agreement in terms of Sec 32(2) of the LRATerms and Conditions that will apply Nationally18. Exemptions |
| 18.1 | General exemption from any provisions of this Agreement |
| 18.1.1 | An application for the exemption of the provisions contained in this Agreement by a party shall be heard by the Council's Exemption Committee. An application for the exemption of the provisions contained in this Agreement by a non-party shall be heard by an Independent Exemption Committee consisting of 2 (two) Commissioners accredited in accordance with the provisions of section 128 of the Labour Relations Act, 1995. |
| 18.1.2 | The Exemption Committee shall consist of 3 (three) persons, 1 (one) each appointed from each of the parties to this Agreement and a Council Employee. |
| 18.1.3 | An application for exemption shall be in writing and made to the CEO of the Council in the form as set forth in annexure "D" hereto. |
| 18.1.4 | All applications for exemption shall be supported by such supporting documentation as may be indicated or required by the Exemption Committee, from time to time, in order to properly assess the application for exemption. |
| 18.1.5 | The Exemptions Committee shall decide on an application for exemption within 30 (thirty) days of receipt by the CEO of the Council. |
| 18.1.6 | The person or entity moving for the application for exemption ("the Applicant") may request the Exemption Committee that the application for exemption be amplified by means of oral argument on the date upon which the Exemption Committee considers the application, failing which the Exemption Committee will consider the application for exemption on the basis of the written application and supporting documents, submitted. |
| 18.1.7 | All applications shall comply with the following, being:— |
| 18.1.7.1 | it shall be fully motivated; |
| 18.1.7.2 | be accompanied by the required supporting documentation; |
| 18.1.7.3 | applications that adversely affect any rights and obligations of Employees, will not be considered unless the Employees or their representatives have been properly consulted and their views fully recorded in the application; |
| 18.1.7.4 | a presentation reflecting the objectives and strategies to be adopted by the Applicant during the exemption period, to rectify the non-compliance with this Agreement and indicating a time frame for such objectives and strategies to be achieved; |
| 18.1.7.5 | the time period for which exemption is required. |
| 18.1.8 | In considering an application for exemption, the Exemption Committee shall, amongst others, consider, but shall not be limited to, the following criteria:— |
| 18.1.8.1 | the Applicant's past record of compliance with the provisions of this Agreement and previous exemption granted; |
| 18.1.8.2 | any special circumstances that may exist; |
| 18.1.8.3 | any precedent that might be set as a result of the granting of the exemption; |
| 18.1.8.4 | the interest of the sector with specific reference to:— |
| 18.1.8.4.1 | unfair competition; |
| 18.1.8.4.2 | collective bargaining; |
| 18.1.8.4.3 | the dilution of the scope and jurisdiction of the Council. |
| 18.1.8.5 | the interest of Employees with specific reference to:— |
| 18.1.8.5.1 | exploitation; |
| 18.1.8.5.2 | job preservation. |
| 18.1.8.6 | the interest of the Applicant with specific regard to:— |
| 18.1.8.6.1 | financial stability; |
| 18.1.8.6.2 | operational requirements. |
| 18.2 | Exemption from Pension Fund |
| 18.2.1 | Should an application for exemption be moved for, for exemption from the HSBI Pension Fund, the following information and/or documentation, in addition to those set forth in clause 18.1 above shall be provided by the Applicant, being:— |
| 18.2.1.1 | written confirmation that Employees are members of the alternative pension fund; |
| 18.2.1.2 | written confirmation that the alternative fund is a registered pension fund in terms of the Pension Fund Act ("PFA"); |
| 18.2.1.3 | a pension exemption application form duly completed by the broker of the alternative pension fund; |
| 18.2.1.4 | the extent of monthly contribution of each member towards the alternative pension fund and proof that the contribution of both the Employer and Employee are made. |
| 18.3 | Appeals |
| 18.3.1 | In accordance with the provisions of the Labour Relations Act, 1995 the Council hereby establishes an independent body, to be known as the Exemptions Appeal Body to consider appeals from both a party or non-party against a refusal of a party or non- party's application for exemption from the provisions of this Agreement and the withdrawal of such exemption by the Council. |
| 18.3.2 | An Applicant may lodge an appeal with the Council against the Exemption Committee's refusal for exemption or the withdrawal of exemption, which appeal shall be lodged within 14 (fourteen) calendar days of the Applicant being notified in writing of the exemption being refused or being withdrawn, as the case may be. |
| 18.3.3 | The Exemptions Committee shall hear, decide and inform the applicant and the Council as soon as possible and not later than 30 days after the appeal has been lodged against the decision of the exemptions body. |
| 18.3.4 | Any appeal shall be in writing and shall contain the following:— |
| 18.3.4.1 | grounds of appeal; |
| 18.3.4.2 | all supporting documentation which will be used in support of the appeal; |
| 18.3.4.3 | any other relevant information or documentation that may assist the Exemption Appeal Board to arrive at a conclusion. |
| 18.3.5 | Any appeal may be amplified by oral argument. |
| 18.3.6 | The criteria for the consideration of an appeal will be the criteria as set forth in clause 18.1.8 above. |
| 18.3.7 | The Exemption Appeal Body's finding on appeal shall be in writing and shall be made available to the Applicant. |
| 18.3.8 | The Exemption Appeal Body shall consist of at least 1 (one) Commissioner accredited in accordance with the provisions of section 128 of the Labour Relations Act, 1995 from the panel approved by the Council from time to time. |
| 18.4 | The granting of exemption or withdrawal thereof |
| 18.4.1 | When exemption is granted by the Exemption Committee or, on appeal by the Exemption Appeal Board, such exemption shall expressly specify:— |
| 18.4.1.1 | any conditions subject to which the exemption is granted; |
| 18.4.1.2 | the period during which the exemption is to operate; |
| 18.4.1.3 | the circumstances, if any, in which the exemption may be withdrawn. |
| 18.4.2 | The CEO shall furnish the Applicant, should exemption be granted in favour of such Applicant, with a letter of exemption recording the:— |
| 18.4.2.1 | full name of the person/s in whose favour exemption is granted; |
| 18.4.2.2 | provisions of this Agreement from which exemption are granted; |
| 18.4.2.3 | conditions subject to which exemption is granted; |
| 18.4.2.4 | period during which exemption is to operate; |
| 18.4.2.5 | circumstances in which it may be withdrawn, if any. |
| 18.4.3 | Should circumstances dictate and permit, the Council may withdraw the exemption granted, the CEO of the Council shall notify the Applicant thereof, by furnishing it with at least 7 (seven) days' notice. |
| 18.4.4 | The Applicant may appeal the resolution by the Council to withdraw the exemption granted in accordance with the provisions of clause 18.4.3 above. |