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
| 1 | Any 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: |
| 1.1 | The merits of the application and any impact that it will have on affected employees have been discussed and considered, and |
| 1.2 | There has been full disclosure to each other of all information relevant to the consideration of the exemption application. |
| 2 | The following provisions will apply to consultations: |
| 2.1 | Each employer must hold such consultations with the trade union representative(s) of the affected employees. |
| 2.2 | If 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. |
| 2.3 | The 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.
| 2.4 | The 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. |
| 2.5 | A request for facilitation must be made in writing on the Application for Exemption Form in the relevant section provided. (See Annexure A) |
| 3 | The 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. |
| 4 | Any application for exemption must be in writing and on the appropriate application form, which can be obtained from the Council. |
TIMELINES AND CONDONATION
| 5 | Any 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. |
| 6 | Where 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. |
| 7 | In the case of a non-party, the party who seeks to apply for an exemption must apply no later than 1O 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: |
| 11.1 | All information as required in the attached questionnaire {Annexure A) |
| 11.2 | The 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: |
| 13.1 | The past records (if applicable) of compliance by the applying party with the provisions of the Council's Collective Agreements and Exemptions Certificates; |
| 13.2 | Any special circumstances which might exist; |
| 13.3 | Any precedent that might be set by granting/not granting the application; |
| 13.4 | The interest of the industry as regards: |
| (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. |
| 13.5 | The interest of employees as regards; |
| (iii) | Conditions of employment; |
| (iv) | Possible financial benefits; |
| (vi) | Infringements of basic rights; |
| (vii) | Any other aspect that the National Exemptions Committee deems relevant after having invited the parties' representations. |
| 13.6 | The interest of the employer as regards; |
| (ii) | Impact on productivity; |
| (iii) | Future relationship with employees' trade unions; |
| (iv) | Operational Requirements; |
| (v) | The SMME Status will be considered in line with Annexure C |
| (vi) | 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:
| 14.1 | Any 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; |
| 14.2 | The party that has applied for the exemption may reply to the opposing representations within 5 days from receipt of the opposing statements; |
| 14.3 | The 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: |
| 18.1 | Issue an exemption certificate or vary a certificate already issued or |
| 18.2 | Transmit any other decision of the National Exemptions Committee to the parties to the exemptions dispute as directed by the National Exemptions Committee. |
| 18.3 | The 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: |
| 24.1 | Any 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: |
| 24.2 | An 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. |
| 24.3 | All 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. |
| 24.4 | All 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— |
| 25.1 | It does not undermine the Agreement; |
| 25.2 | It 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: |
| 29.1 | The written substantiation and motivation submitted by the applicant; |
| 29.2 | The 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; |
| 29.3 | The scope of exemption required; |
| 29.4 | The infringement of basic conditions of employment rights; |
| 29.5 | Consider whether a competitive advantage is not created by the exemption; |
| 29.6 | the 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; |
| 29.7 | The extent to which the proposed exemption undermines collective bargaining and labour peace in the Industry; |
| 29.8 | Any existing special economic or other circumstances which warrant the granting of the exemption; |
| 29.9 | The recommendations contained in the Report of the Presidential Commission to Investigate Labour Market Policy; |
| 29.10 | Any recommendation from the Council; and |
| 29.11 | Any other matter that the Independent Appeals Committee deems prudent after having invited the comments of the parties involved in the dispute. |
