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

Notices

National Bargaining Council for the Chemical Industry

Fast Moving Consumer Goods Sector

NBCCI's Exemptions Policy and Procedure

Annexures

Annexure B - Composition and Activities: National Exemptions Committee / Independent Appeals Committee
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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.

 

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.