| (1) |
In terms of section 32 of the Act the Council shall consider all applications for exemption from any of the provisions of this Agreement for any good and sufficient reason. |
| (2) |
All applications for exemption shall be in writing (on an application form provided by the Council) and shall be addressed to the Secretary of the Council for consideration by the Council. |
| (3) |
All applications for exemptions shall be substantiated, and such substantiation shall include the following details: |
| (a) |
The period for which the exemption is required, |
| (b) |
the Agreement and clauses or subclauses of the Agreement from which the exemption is required, |
| (c) |
proof that the exemption applied for has been discussed by the employer, his employees and their respective representatives. The responses resulting from such consultation, either in support of or against the application, shall be included with the application. |
| (4) |
The Secretary of the Council shall place the applications for exemption on the agenda of the next Council meeting for consideration. |
| (5) |
The Secretary of the Council shall provide the Council with details of all the applications for exemption. |
| (6) |
The Council shall consider and decide on all written applications and, when requested by the applicants or objectors to do so, may interview applicants or objectors at its following meeting: Provided that the Council may defer a decision to a following meeting if additional substantiation, information or verbal representations are considered necessary to decide on the application for exemption. |
| (7) |
Once the Council has decided to grant an exemption, it shall issue a certificate and advise the applicant(s) within 14 days of the date of its decision. |
| (8) |
When the Council decides against granting an exemption or part of an exemption requested, it shall advise the applicant(s) within 14 days of the date of such decision and shall provide the reason or reasons for not granting an exemption. |
The Council shall consider all applications for exemption with reference to the following criteria:
| (a) |
The written and verbal substantiation provided by the applicant, |
| (b) |
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, |
| (c) |
the terms of the exemption, |
| (d) |
the infringement of basic conditions of employment rights, |
| (e) |
the fact that a competitive advantage may not be created by the exemption, |
| (f) |
the effect of the exemption on any employee benefit fund or training provision in relation to the alternative comparative bona fide benefit or provision, including the cost to the employee, transferability, administration management and cost, growth and stability, |
| (g) |
the extent to which the proposed exemption undermines collective bargaining and labour peace in the Electrical industry, |
| (h) |
any existing special economic or other circumstances which warrant the granting of the exemption, |
| (i) |
reporting requirements by the applicant and monitoring and re-evaluation processes, and |
| (j) |
cognisance of the recommendations contained in the Report of the Presidential Commission to Investigate Labour Market Policy. |
| (k) |
Once a notice to attend arbitration proceedings has been issued, no employer or employee may make application for exemption from any provision of the collective agreement to which the arbitration notice relates. |
| (I) |
Any exemption applied for after the notice to attend arbitration has been issued will not stay the arbitration proceedings. The arbitrator will be requested to make an appropriate arbitration award. |
| (10) |
In terms of section 32 of the Act, the Council hereby establishes an Independent Appeal body to hear and decide as soon as possible, any appeal brought against— |
| (a) |
the Council"s refusal of an application for exemption from the provisions contained in this Agreement, |
| (b) |
the withdrawal of such exemption by the Council. |
Provided that such appeals are lodged with Council within 14 days from the date of receipt of the outcome of the exemption application.
| (11) |
The Secretary shall, upon receipt of a written application for an appeal, forward the application together with the original application for exemption and all supporting documents to the Independent Appeal body for a decision. |
| (12) |
The Independent Appeal body shall consider all applications with reference to the criteria set out in subclause (9) above and shall ensure that the applications are not in conflict with the primary objects of the Act. |
| (13) |
The Independent Appeals Body may defer a decision to a subsequent meeting if additional motivation, information or verbal representations are considered necessary to decide the application for exemption. |
| (14) |
The Independent Appeals Body shall issue a certificate within 14 days of the date of its decision to uphold the appeal and grant exemption. The certificate should specify the terms of the exemption and the reporting requirements by the applicant and the monitoring and re-valuation processes. |
| (15) |
The Independent Appeals Body shall advise the applicant(s) within 10 working days of the date of its decision not to grant exemption or part of an exemption requested and shall provide a written reason or reasons for the decision not to grant exemption. |
Housing Development Agency Act, 2008
