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


Building Industry Bargaining Council (Cape of Good Hope)

Re-enactment and Amendment of Main Collective Agreement

23. Exemptions



(1) All applications for exemption shall be in writing (on an application form as provided by the Council) and shall be addressed to the secretary of the Council.


(2) All applicants for exemption 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 subclasses of the Agreement from which exemption is required; and
(c) 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 application.


(3) The Secretary of the Council shall place the applications for exemption on the agenda of the next Council meeting, for decision.


(4) Applications for exemption referred to the Council shall be considered by the Council in accordance with the exemption criteria set out in sub clause (11) hereof, and the applicant(s) shall be advised, in writing, of the Council's decision within 14 normal working days following the meeting at which the applications were considered.


(5) Any non-party to which this Agreement has been extended in terms of section 32 of the Act, may apply to the Council for exemption from any of the terms of this Agreement.


(6) In terms of section 32 of the Act, the Council hereby establishes an independent body to be known as the "Exemption Board" to hear and decide any appeal brought against—
(a) the Council's refusal of a non-party's application for exemption from the provisions of this Agreement;
(b) the withdrawal of such an exemption by the Council.


(7) The Council may also refer any application for exemption directly to the Exemptions Board. The Exemptions Boards decision regarding the granting or denying of the exemption will be final and both the applicant and the Council will be bound to the decision of the Exemption Board.


(8) Within 14 consecutive days after having been advised of the Council's decision regarding an application for exemption, the non-party who feels aggrieved by the Council's decision may submit a written appeal against the Council's decision to the Secretary of the Council. Such an appeal shall be fully  reasoned.


(9) The Secretary of the Council shall submit the appeal, together with the Council's decision regarding the application for exemption, to the Exemptions Board which shall as soon as possible hear and decide the matter with reference to the exemption criteria set out in sub clause (11) hereof and when requested by the applicants or objectors to do so, may interview applicants or any objectors at its following meeting: Provided that the Exemptions Board may defer a decision to a following meeting if additional motivation, information or verbal representations are considered necessary to decide on the application for exemption.


(10) Once the Exemptions Board has decided to uphold the appeal and grant an exemption it shall issue a certificate and advise the applicant(s) within 10 normal working days of the date of the decision, clearly specifying—
(a) the terms of the exemption; and
(b) the reporting requirements by the applicant and the monitoring and re-evaluation processes.


(11) When the Exemptions Board decides against granting an exemption or part of an exemption requested it shall advise the applicant(s) within 10 normal working days of the date of such decision and shall provide the reason or reasons for the decision not to grant an exemption.


(12) Exemption criteria: The Exemptions Board 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 and the petitions for or against granting the exemption as provided by employers or employees who will 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 is not created by the exemption;
(f) the effect of the exemption on any employee benefit fund or training provision in relation to the alternative comparable 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 Industry;
(h) Financial Stability;
(i) any existing special economic or other circumstances which warrant the granting of the exemption;
(j) reporting requirements  by the applicant and monitoring and re-evaluation  processes; and
(k) cognisance of the recommendations contained in the Report of the Presidential Commission to Investigate Labour Market Policy.