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

Notices

Bargaining Council for the Motor Ferry Industry

Main Collective Agreement

26. Exemptions by the Council

 

 

26.1 Applications by both parties and non-parties for exemption from any of the provisions of this Agreement shall comply with the following requirements—
26.1.1 The applicant must negotiate with the respective unions (or employees in the absence of a recognised union) in an attempt to reach consensus regarding the application.
26.1.2 If consensus is reached, an agreement signed by the Employer and Union or affected Employee/s (in the absence of a recognised Union) must be attached in support of the application.
26.1.3 If no agreement is reached, the Union or affected Employee/s (in the absence of a recognised union) must be given the opportunity to sign the application indicating its/their lack of agreement whereafter the applicant shall be entitled to forward the application to the Council's exemption committee at the following address for consideration:

Motor Ferry Bargaining Council, Postal Address;

Postnet Suite 553, Private Bag x113 Melville 1209,

Johannesburg or Physical Address: Tokiso Dispute Settlement

(Pty) Ltd, The Atrium 10th Floor, 41 Stanley Avenue, Milpark, Tel

(011) 853 6327, Fax 086 638 4179, Email Sumayyatkokiso.com.

 

26.2 The application will be considered by the relevant body at its regular meeting and will make a decision in writing, giving written reasons therefore.

 

26.3 If any party, including the applicant, the union or an Employers Association which is party to the Council is dissatisfied with the decision, then that party may appeal to the Independent Appeal Board.

 

26.4 The Applicant must notify the Council in writing of its intention to appeal within 14 days. He/She must then submit an appeal in writing enclosing whatsoever documentation and any other information in support of the appeal as soon as possible by post or telefax to the Independent Appeal Board but by no later than 90 days of written receipt of refusal by the Council, failing which the right of appeal will fall away. A copy of the exemption appeal letter, documentation and any other information submitted must be supplied to the other party.

 

26.5 All the appeal documentation must then be sent to the Independent Appeal Board by no later than 60 days after the relative agreement has been signed by the two parties or the union (or employee/s in the absence of a recognised union) have been given an opportunity to sign the application indicating disagreement, whichever the case may be.

 

26.6 In the event of an appeal, any party may submit further written representations to the Independent Appeal Board. Any such written representations must be sent to the other parties who will be given an opportunity to submit their own further written representations. In this latter event, the appellant must also receive a written copy of the counter-representations.

 

26.7 in considering the application, the Independent Appeal Body shall take into consideration all relevant factors, which may include, but shall not be limited to, the following criteria:
26.7.1 The applicants past record (if applicable) of compliance with the provisions of Council's Collective Agreements and Exemption Certificates;
26.7.2 any special circumstances that exist;
26.7.3 any precedent that might be set;
26.7.4 the interests of the Industry as regards—
26.7.4.1 unfair competition;
26.7.4.2 collective bargaining;
26.7.4.3 potential for labour unrest;
26.7.4.4 increased employment;
26.7.5 the interests of employees' as regards—
26.7.5.1 exploitation;
26.7.5.2 job preservation;
26.7.5.3 sound conditions of employments;
26.7.5.4 possible financial benefits;
26.7.5.5 health and safety;
26.7.5.6 infringement of basic rights;
26.7.6 the interests of the employer as regards—
26.7.6.1 financial stability;
26.7.6.2 impact of productivity;
26.7.6.3        future relationship with employees' trade union;
26.7.6.4        operational requirements.

 

26.8 The Independent Appeal Board will meet and consider the matter using whatever procedures it deems fit and will deliver a final decision within 10 days of receiving all the documentation.

 

26.9 The Independent Body established by Council in terms of section 32 of the Labour Relations Act of 1995 shall consist of a panel of 2 independent experts appointed by the Council to consider appeals against the refusal by Council's Exemption Body to grant exemptions or the withdrawal of an exemption by the Council. The Independent experts shall be South African citizens with no less than 5 years experience in dispute resolution. The independent experts must also be knowledgeable about the labour market, conditions of employment and exemption processes.