(a) Any person bound by this Agreement may apply for exemption.
(b) The authority of the Council is to consider applications for exemptions and grant exemptions.
| (c) |
Applications for wage increase exemptions must be submitted to the Bargaining Council: |
| (i) |
In the year of signing this Agreement, party employers may submit an application for exemption from the wage increases within thirty (30) days of signature of this Agreement (i.e. 22 October 2021). |
| (ii) |
If the Consolidated Main Collective Agreement is extended to non-parties and published in an Government Gazette, non-party employers may apply for exemption. Non-party employers will be required to submit their applications for exemption to their respective Regional Bargaining Council Offices, in accordance with the relevant provision of the Bargaining Council's Exemptions Policy attached as Annexure J. |
| (iii) |
In the second and third year of the Agreement (i.e. 1 July 2022 to 30 June 2023 and 1 July 2023 to 30 June 2024), party employers will be required to submit their applications for exemption to their respective Regional Bargaining Council Offices, in accordance with the relevant provision of the Bargaining Council's Exemptions Policy attached as Annexure J, by no later that 31 July 2022 and 31 July 2023 respectively. |
| (d) |
In the event that the Exemptions Policy during the period of this Agreement, is amended in any way, the amended Policy will replace the existing policy on a date to be agreed upon between the Parties. |
| (e) |
An application for exemption from the provisions of the collective agreement shall be decided within 30 days. |
| 2. |
Fundamental principles for consideration |
| (a) |
All applications must be in writing and fully motivated and sent to the Regional Office of the Council for the area in which the applicant is located. |
| (b) |
In scrutinising an application for exemption the Council will consider the views expressed by the employer and the workforce, together with any other representations received in relation to that application, including: |
| - |
audited financial statements for the financial year under review; auditors report together with balance sheets and income statements for the last three (3) months immediately prior to the application; |
| (c) |
The employer must consult with the workforce, through a trade union representative or, where no trade union is involved, with the workforce itself, and must include the views expressed by the workforce in the application. |
Where the views of the workforce differ from that of the employer, the reasons for the views expressed must be submitted with the application.
Where an agreement between the employer and the workforce is reached, the signed written agreement must accompany the application.
| (d) |
The exemption shall not contain terms that would have an unreasonably detrimental effect on the fair, equitable and uniform application of this Agreement in the Industry. |
| (e) |
Wage and wage related exemptions shall not generally be granted beyond the expiration of the Agreement provided that the Council may at its discretion and on good cause shown agree to a longer period (but not an indefinite period). |
| (f) |
Applications for exemptions involving monetary issues may not be granted retrospectively. |
| (g) |
An application for exemption shall not be considered if the contents of the application are covered by an arbitration award binding the applicant. |
| (a) |
In cases of urgent applications, details may be faxed or delivered to the Council in the region where the applicant is located. |
| (b) |
The Council or Chairperson and Vice Chairperson will consider the application, make a decision and communicate that decision to the applicant without delay. |
| (c) |
The applicant is expected to put forward a substantive explanation as to the urgency of the application. |
4. Process
| (a) |
The Council shall issue to every person to whom exemption has been granted an exemption licence, setting out the following: |
| (i) |
the full name of the person or enterprise concerned; |
| (ii) |
the provisions of this Agreement from which the exemption has been granted; |
| (iii) |
the conditions subject to which exemption is granted; |
| (iv) |
the period of the exemption; |
| (v) |
the date from which the exemption shall operate; and |
| (vi) |
the area in which the exemption applies. |
| (b) |
The Council shall ensure that— |
| (i) |
all exemption licences issued are numbered consecutively; |
| (ii) |
an original copy of each licence is retained by the Council; |
| (iii) |
a copy of the exemption licence is sent to the applicant. |
Unless otherwise specified in the licence of exemption, any exemption from this Agreement shall be valid only in the region of the Council in which the application was made.
| (c) |
The Council may withdraw the exemption at its discretion. |
| (a) |
An independent body, referred to as the Independent Exemptions Appeal Board (the Board), shall be appointed and shall consider any appeal against an exemption granted or refused by the Council, or a withdrawal of an exemption in respect of parties and non-parties. |
| (b) |
The Council Secretary shall, on receipt of an appeal against a decision of the Council, submit it to the Independent Exemptions Appeal Board for consideration and finalisation. |
| (c) |
In considering an appeal the Board shall consider the recommendations of the Council, any further submissions by the employers or employees and shall take into account the criteria set out in sub-clause 23(2) and 23(5)(e) and also any other representations received in relation to the application. |
| (d) |
Should the appeal be successful an exemption licence shall be issued in terms of sub-clause (4)(a) and (b) above and shall be subject to sub-clauses (4)(c). |
| (e) |
The exemptions board must consider: |
| (i) |
The financial hardship of the applicant for exemption; |
| (ii) |
The potential impact of exemption on the collective bargaining process; |
| (iii) |
Whether alternatives to exemption where considered or implemented; |
| (iv) |
The need to avoid retrenchments; |
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