Labour Relations Act, 1995 (Act No. 66 of 1995)

Notices

National Bargaining Council for the Chemical Industry

Glass Sector

Substantive Agreement for 2025-2027

Annexures

Annexure B: NBCCI'S Exemption Policy and Procedure
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ANNEXURE B

 

NBCCl'S EXEMPTION POLICY AND PROCEDURE

 

EXEMPTIONS POLICY AND PROCEDURE

 

INTRODUCTION:

 

1.The issue of exemptions is dealt with in Clause 16 of the Council's Constitution. It requires the establishment of a National Exemptions Committee and an Independent Appeals Committee.

 

The Constitution requires that the National Exemptions Committee and Independent Appeals Committee must determine its composition and powers and establish its own procedures and criteria to be considered in dealing with applications for exemption and for conducting its business.

 

Applications for exemption by both parties and non-parties must be made to the Council. Employers seeking exemption from the conditions of any collective agreement and/or any conditions agreed to previously through centralised bargaining between the parties should do so according to this

procedure.

 

2.The procedures and criteria set out hereinafter shall apply to any party to a collective agreement as well as non-parties to whom any collective agreement concluded in the Council has been extended in terms of Section 32 of the LRA.

 

It is the stated view of the Council that all applications for exemption must be completed within 30 days from the date of the application for exemption and all appeals to the Independent Appeals Committee within 30 days from the date of the appeal.

 

The Exemptions Committee or the Independent Appeals Committee may, in its sole discretion, extend the completion date of an application for an exemption or an appeal for an additional 30 days where circumstances require such extension.

 

PRE & POST COUNCIL PROCEDURE

 

CONSULTATION

 

1Any application for exemption from any provision/s of a collective agreement concluded under the auspices of the Council must be preceded by consultations between the relevant employers and employees potentially affected by the exemption at which:
1.1The merits of the application and any impact that it will have on affected employees have been discussed and considered, and
1.2There has been full disclosure to each other of all information relevant to the consideration of the exemption application.

 

2The following provisions will apply to consultations:
2.1Each employer must hold such consultations with the trade union representative(s) of the affected employees.
2.2If an employer reasonably believes that the affected employees are not trade union members, or where the relevant trade union representatives do not avail themselves for such consultations after a reasonable number of proven and recorded attempts by the employer, the employer must consult the affected employees themselves.

 

2.3The affected employees, or groups of such employees, may act through a nominated representative that they have elected, amongst themselves, to represent them.

 

Once they have informed the employer of such a representative, the employer must, regarding such employees, consult such representative in preference to the trade union to which they belong.

 

2.4The above consultations may be facilitated by a member of the National Exemptions Committee with the proviso that all the parties involved in the consultation process consent to such facilitation. The member of the National Exemptions Committee who conducted the facilitation may not chair or be part of any panel appointed to arbitrate an application for exemption or an appeal that follows from his/her facilitation.

 

2.5A request for facilitation must be made in writing on the Application for Exemption Form in the relevant section provided. (See Annexure A)

 

3The party seeking an exemption from the Council must, commencing at least immediately before the application is made to the Council, display a copy of the application in a conspicuous place in the workplace(s) where the affected employees normally report for service and ensure that it remains displayed until the exemption license has either been granted in terms of these procedures, the application has been withdrawn, or the application has been dismissed by the National Exemptions Committee.

 

4Any application for exemption must be in writing and on the appropriate application form, which can be obtained from the Council.

 

TIMELINES AND CONDONATION

 

5Any party who wishes to apply for an exemption in terms of this policy must do so within a reasonable time, not exceeding 60 days from the date that the original agreement was signed.

 

6Where addendums to any collective agreements were signed, the application for an exemption must also be made within a reasonable time not exceeding 60 days from the date of signature of any addendum.

 

7In the case of a non-party, the party who seeks to apply for an exemption must apply no later than 10 days from the date of the Government Gazette wherein the collective agreement was made applicable to non-parties.

 

10.Any party who does not comply with the above timelines must submit an application for condonation with its exemption application.

 

INFORMATION TO BE DISCLOSED

 

11.The evidence required will include:
11.1All information as required in the attached questionnaire (Annexure A)
11.2The relevant steps taken by the employer to comply with the agreement(s) that it now seeks to be exempted from before making a decision to apply for an exemption.

 

12.In considering an application for exemption, the National Exemptions Committee shall take into account all relevant factors, including those detailed herein.

 

13.Other criteria that the National Exemptions Committee will consider may include:
13.1The past records (if applicable) of compliance by the applying party with the provisions of the Council's Collective Agreements and Exemptions Certificates;
13.2Any special circumstances which might exist;
13.3Any precedent that might be set by granting/not granting the application;
13.4The interest of the industry as regards:
(i)Unfair competition;
(ii)Collective Bargaining;
(iii)Potential labour unrest;
(iii)Increased employment/unemployment;
(v) Any other aspect that the National Exemptions Committee deems relevant and after having invited the parties' representations thereon.
13.5The interest of employees as regards;
(i)Exploitation;
(ii)Job Preservation;
(iii)Conditions of employment;
(iv)Possible financial benefits;
(v)Health and safety;
(vi)Infringements of basic rights;
(vii)Any other aspect that the National Exemptions Committee deems relevant after having invited the parties' representations.
13.6The interest of the employer as regards;
•Financial stability;
•Impact on productivity;
•Future relationship with employees' trade unions;
•Operational Requirements;
•The SMME Status will be considered in line with Annexure C
•Any other aspect that the National Exemptions Committee deems relevant after inviting the comments of all interested parties.

 

14.All applications considered by the National Exemptions Committee will only be based on the written submissions, accompanying supporting documents and arguments presented by the party seeking the exemption and the written submissions, supporting documents and arguments of the parties opposing the exemption application.

 

The application will be considered and determined in a manner that is fair and transparent. The following times will apply in respect of an application for an exemption:

 

14.1Any party seeking to oppose the application for exemption must, within 10 days from the date of the exemption application, file their respective responses to the General Secretary of the Council;
14.2The party that has applied for the exemption may reply to the opposing representations within 5 days from receipt of the opposing statements;
14.3The parties may thereafter submit their written arguments to the General Secretary, who will determine a date for the arbitration.

 

15.Any exemption granted to a party by the National Exemptions Committee (with the exception of the application made by the Company for the SMME status) shall only be in force for a period of one year or for a shorter period as determined by the National Exemptions Committee.

 

Upon the expiry of the exemption certificate, the employer must implement and uphold the collective agreement from which it received an exemption on the terms and conditions in force at the time of the expiry of the exemption certificate.

 

16.The National Exemptions Committee may, in its sole discretion and in exceptional circumstances, call for the hearing of oral and additional evidence where such evidence is deemed essential to assist it in determining the application.

 

17.The National Exemptions Committee shall submit its written findings, with brief reasons, to the General Secretary for transmission to the parties involved.

 

18.Once the General Secretary has received the decision of the National Exemptions Committee in terms of this procedure, s/he shall:
18.1Issue an exemption certificate or vary a certificate already issued or
18.2Transmit any other decision of the National Exemptions Committee to the parties to the exemptions dispute as directed by the National Exemptions Committee.
18.3The National Exemptions Committee must make its decision within 14 days of having concluded the matter unless permission is granted by the General Secretary for a longer period. In such a case, the affected parties must be notified.

 

HOW TO FILE AN APPLICATION FOR EXEMPTION WITH THE COUNCIL

 

19.All applications must be submitted in writing to the General Secretary.

 

20.Any employer seeking an exemption must apply to the Council. Copies of the application must be served on all trade unions in the industry whose members may potentially be affected by the application. All applications must be signed by an authorized company representative.

 

21.The application must specify the provisions of the collective agreement in respect of which the exemption is sought and the reasons why it is sought. Details of the employees in respect of whom the exemption is sought, either by name or by way of a clear description of the category of employees and an introduction of how many employees fall within that category.

 

INDEPENDENT APPEALS COMMITTEE

 

22.In terms of Section 32(3)(e) of the LRA, the Council hereby establishes an independent body, to be known as the Independent Appeals Committee, to consider appeals from parties and non-parties against a decision by the National Exemptions Committee of a party's or non- party's application for exemption from the provisions of a published collective agreement.

 

23.The Independent Appeals Committee shall consist of such members as the Council determines, with the understanding that the Council may, at its discretion, appoint a single member to chair specific appeals. The Independent Appeals Committee may also co-opt an auditor, who shall only serve in an advisory capacity, where necessary, to assist with financial matters.

 

24.The following provisions shall apply to the Independent Appeals Committee:
24.1Any party or non-party may lodge an appeal with the Independent Appeals Committee against the decision of the Exemptions Committee to refuse to grant an application for an exemption from the provisions of a published collective agreement in which event the following procedure shall apply:
24.2An appeal shall be in writing and shall be addressed to the General Secretary of the Council for consideration by the Independent Appeals Committee. All appeals will be considered on the written application, the written submissions, and arguments of those who seek the exemption as well as those who oppose it. The independent Appeals Committee may deal with an appeal in any manner that it deems prudent, provided that it acts in a manner that is fair and transparent.
24.3All appeals lodged by parties or non-parties shall be considered by the Independent Appeals Committee with due regard to the Appeal criteria set out in Clause 16 of the Council's constitution as well as the factors detailed below.
24.4All appeals to the Independent Committee shall be fully substantiated or motivated in writing by the applicant and shall include the following details:
(i)The period for which the exemption is required;
(ii)The Agreement and clauses or sub-clauses of the Agreement from which exemption 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.

 

25.The Independent Appeals Committee may, having regard to the individual merits of each appeal, grant or refuse the appeal if—
25.1It does not undermine the Agreement;
25.2It is fair to the employer or his employees and other employers and employees in the Industry.

 

26.The Independent Appeals Committee shall deal with all appeals within 30 days of the date on which the appeal was submitted. The Independent Appeals Committee may, however, defer a decision to a following meeting if additional motivation, substantiation, or information is considered necessary to make a decision on the appeal.

 

27.Once the Independent Appeals Committee has granted an exemption, the Council must issue a certificate and advise the applicant(s) accordingly within 14 days of the date of its decision .

 

28.When the Independent Appeals Committee dismisses an appeal or a part of an appeal for exemption, it shall advise the applicant(s) within 14 days of the date of such decision.

 

EXEMPTION CRITERIA

 

29.The Independent Appeals Committee must consider, apart from the factors referred to in Clause 16 of the Council's Constitution, all appeals with reference, amongst others, to the following criteria:
29.1The written substantiation and motivation submitted by the applicant;
29.2The extent of consultation with and the petition for or against granting the exemption as provided by employers or employees who are to be affected by the exemption if granted;
29.3The scope of exemption required;
29.4The infringement of basic conditions of employment rights;
29.5Consider whether a competitive advantage is not created by the exemption;
29.6the viewing of the exemption 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;
29.7The extent to which the proposed exemption undermines collective bargaining and labour peace in the Industry;
29.8Any existing special economic or other circumstances which warrant the granting of the exemption;
29.9The recommendations contained in the Report of the Presidential Commission to Investigate Labour Market Policy;
29.10Any recommendation from the Council; and
29.11Any other matter that the Independent Appeals Committee deems prudent after having invited the comments of the parties involved in the dispute.

 

QUESTIONNAIRE: ANNEXURE A

 

PART 1 - COMPANY DETAILS

 

1.The following is required:
(i)The name of the company applying for exemption;
(ii)The Industry Sector;
(iii)The address of the Company. Provide all details if more than one establishment/workplace is affected by the exemption application;
(iv)Contact Person (Provide Contact Details);
(v)Name of Employer Organisation (Provide Contact Details).

 

PART 2 - LABOUR DETAILS

 

(i)The company's total headcount;

 

(ii)The total number of employees affected by the exemption application. Provide details of employment categories, union affiliation and numbers;

 

(iii)Names of Trade Unions with affected employees as members. Provide contact names and contact details specifying designation, i.e., trade union official or trade union representative;

 

(iv)Nominated representatives in respect of non-unionised affected employees. Provide contact names and contact details and the job categories the nominated representatives are representing.

 

PART 3 - EXEMPTION DETAILS

 

(i)What is the exemption being applied for? Provide details of all clauses of the collective agreement in question from which exemption is sought.
(ii)Has the Company, in the past 12 months, applied for exemption? If yes, provide details and the outcome.

 

(iii)Has the Company, in the past 12 months, instituted short time, lay off and/or retrenchment? If yes, provide details, including dates and numbers of employees affected.

 

(iv)What is the estimated savings to the Company if this application for exemption was granted? Quantify the savings anticipated by the Company.

 

(v)What is the proposed duration of the exemption if granted?  Specify whether the application is for a permanent exemption from a particular requirement of the collective agreement in question or is an application to defer implementation to a later date and, if so, specify the date.

 

PART 4 - FINANCIAL INFORMATION

 

2.A party seeking an exemption must attach the most recent audited financial statements for the financial year prior to the date of the application, together with management accounts (income statements) for at least six months immediately prior to the date of the application.

 

In respect of exemption applications in respect of parts of a Group where audited financial statements do not reflect the financial circumstances of the establishment/workplace in question and/or where inter-company trading takes place at a substantial level, additional relevant information should be included.

 

3.The Council may, at its discretion, call on the party seeking the exemption to provide such other information to the Council where the Council deems such information relevant for purposes of determining the merits of the application.

 

PART 5 - MOTIVATION

 

4.The party seeking an exemption must attach a detailed explanation of the difficulties being faced, including additional financial information where necessary to provide proof of the circumstances that motivated the exemption. Included therein must be an explanation of all alternatives the employer has pursued in making savings prior to this application and documentary evidence, where necessary, of the employer's policy in respect of dividends to shareholders and remuneration in respect of employees not subject to the collective agreement in question.

 

PART 6 - CONSULTATION

 

5.Attach documentary evidence that will prove that all interested parties have been served with a copy of the exemption application together with relevant attachments and that all interested parties have been invited to consult in accordance with the Council's Exemption Procedure.

 

A record of such consultation plus its outcomes must be annexed to the application for exemption and must be countersigned by the parties to the consultation for purposes of authenticity.

 

The refusal of any party to a consultation to countersign such record will not render any application flowing from such consultation improper, nor will it prevent the Council's structures to determine the matter.

 

6.Specify whether or not the company requests the Council to appoint a Facilitator to assist the parties with the required consultative process.

 

ANNEXURE B: COMPOSITION AND ACTIVITIES: NATIONAL EXEMPTIONS COMMITTEE / INDEPENDENT APPEALS COMMITTEE

 

PURPOSE

 

1.The purpose of this document is to detail the procedures governing the National Exemptions Committee/Independent Appeals Committee, as established, and governed by Clause 16 of the Council's Constitution, and to ensure that they operate in an orderly and transparent manner.

 

COMPOSITION OF THE EXEMPTIONS COMMITTEE/APPEALS COMMITTEE

 

2.The Council must appoint the members of the National Exemptions Committee/Independent Appeals Committee on such terms and conditions as it deems fit. It will be within the sole discretion of the Council to appoint any number of members to chair applications for each exemption application/appeal. The appointment of a single member is sufficient to constitute a National Exemptions Committee/Independent Appeals Committee.

 

3.The National Exemptions Committee/Independent Appeals Committee must co-opt any suitably qualified auditor/accountant to advise it on financial matters. The person so co-opted will not have any decision-making power.

 

4.The National Exemptions Committee/Independent Appeal Committee members hold office until either:
4.1They resign on three months' notice to the Council, or
4.2The Council resolves to terminate their membership of the entity that they serve on.

 

5.Members appointed to the Exemptions Committee/Appeals Committee must:
5.1Be independent, impartial and perform the functions of the office in good faith, and
5.2Recuse themselves from any matter if they have any conflict of interest in either the subject matter of the exemption application or in respect of the parties involved in the dispute.

 

6.Should any member of a National Exemptions Committee/Independent Appeals Committee become unable to continue with any process, for whatever reason, any proceedings held up to that stage shall be suspended until it is determined whether or not that member is able to continue with the proceedings or not. If that member is unable to continue, whatever the reason, the proceedings will be adjourned, and a new panel will be constituted. In such a case, the matter will commence afresh in front of the newly constituted panel. With the consent of the newly constituted panel, the parties may agree on how to present the evidence that was presented in the suspended proceedings.

 

DECISIONS OF THE EXEMPTIONS COMMITTEE/APPEALS COMMITTEE

 

7.A decision agreed upon and confirmed in writing by the majority of the National Exemptions Committee/Independent Appeals Committee, where applicable, is a decision of the Committee.

 

8.Proceedings of the meetings of the National Exemptions Committee/Independent Appeals Committee shall be recorded and, where necessary, minuted by the Council secretariat. Parties may keep their own recordings.

 

9.The Independent Appeals Committee shall have the powers to:
9.1Grant a full or partial exemption or reject an application for exemption; and
9.2Approve interim orders in circumstances where this will not affect the final outcome.

 

MEETINGS OF THE NATIONAL EXEMPTIONS COMMITTEE / INDEPENDENT APPEALS COMMITTEE

 

10.The Independent Exemptions Committee/Independent Appeals Committee must meet when requested to do so by the Council.

 

11.If a meeting of the National Exemptions Committee/Independent Appeals Committee does not finalise an application for exemption or an appeal, as the case may be, the meeting may be rescheduled for continuance at a date and time to be agreed upon by the National Exemptions Committee/Independent Appeals Committee.

 

FINDING AND REASONS FOR DECISION

 

12.Within two weeks of a meeting of the National Exemptions Committee/Independent Appeals Committee where an exemption application/appeal has been considered, the National Exemptions Committee/Independent Appeals Committee must provide the Council with a written decision and brief reasons for the decision.

 

13.The Council must circulate the National Exemptions Committee's/Independent Appeals Committee's decision and reasons to all interested parties.

 

ANNEXURE C: CRITERIA FOR SMALL BUSINESS EXEMPTIONS POLICY

 

14.Exemptions in this category will be granted for a period not exceeding 3 years.

 

Exemptions shall be in respect of the wage increase or in respect of specified clauses of the agreement.

 

15.The Council will consider applications on merit, guided by current South African legal guidelines on the definition of SMME'S's and the application of these definitions amongst different sectors, taking into account one or more of the following factors:—
15.1That the business is not the subsidiary of another company;
15.2Its employment numbers keep it within the definition of an SMME'S, within the bargaining unit, in terms of the legal framework of the definition of an SMME'S;
15.3It is able to show that such an exemption will enable it to retain existing jobs or create additional jobs in the firm. This particular factor must be covered in the motivation;
15.4The financial situation of the company.

 

PROCEDURE TO BE FOLLOWED TO CONSIDER THE APPLICATION

 

16.Application for Exemptions by SMME'S will be filed by the Company within 10 days of the Company having been declared an SMME.

 

17.The application will be considered by the SMME Advisory Panel within 10 days from the date on which the application was filed with the Council.

 

18.The SMME Advisory Panel shall issue the outcome within 7 days from the date of the sitting.

 

FACTS TO BE CONSIDERED IN DETERMINING THE APPLICATION

 

19.The Company making the Application must comply with Annexure A.

 

COMPOSITION OF THE EXEMPTIONS COMMITTEE FOR SMALL BUSINESS APPLICATIONS

 

20.Application for Exemptions by SMME shall be considered by the SMME Advisory Panel comprising an equal number of representatives (two per side) from the Employers and Trade Unions and an Accountant/External Auditor.

 

21.The General Secretary shall chair the Advisory Panel. In the event the chairperson is not available, then the Committee will elect someone amongst themselves to chair that specific sitting.

 

PHASE IN EXEMPTIONS

 

22.The Council shall, in recognizing the financial constraints faced by SMMEs, grant the SMME a phased-in period of up to 3 years for compliance with the minimum Bargaining Council regulations.

 

23.SMMEs shall use this time to adjust their operations and finances gradually, minimizing disruptions and mitigating financial risks.

 

24.Application for phase-in exemptions must be accompanied by completion of the standard application for exemption questionnaire and shall be dealt with after giving consideration to the following:-

24.1        clear evidence of financial difficulties, including

24.1.1The latest Audited Financial statements and/or management accounts;
24.1.2Explanation of the difficulties faced;
24.1.3Company motivation, business plan and phase-in plan indicating how parity will be achieved.

 

25.No Company that has agreed to adopt the phase-in program on a voluntary basis may retrench any worker as a direct result of a phasing-in period of the new wage structure unless such retrenchment is on a voluntary basis or unless there are exceptional circumstances beyond the Employer's control.

 

AMENDMENT OF THIS POLICY

 

The amendment of this policy shall be made as and when the need arises, taking into consideration the developments in the law. The amendments will not be binding until such time that they are approved by the Executive Committee and ratified by the Full Council, having gone through the relevant institutional structures.