| (1) |
In terms of section 32 of the Labour Relations Act, No. 66 of 1995, as amended, the Council hereby establishes an independent body called an "Exemptions Board" to hear and decide any appeal brought against— |
| (a) |
the Council's refusal of a non-party's application for exemption from the provision of this Agreement; |
| (b) |
the withdrawal of such an exemption by the Council. |
| (2) |
Any party to this Agreement or any member of a party to this Agreement may apply to the Council for exemption from any of the terms of the Agreement. |
| (3) |
The Council shall consider an application for exemption received from a party or a member of a Party to the Agreement, at the first meeting of the council following the receipt of the application, with the proviso that applications received within less than five (5) normal working days prior to a Council meeting, shall only be tabled at the next Council meeting. |
| (4) |
Applications for exemption referred to the Council in terms of subclause 18(2) or 18(3) shall be considered by the Council in accordance with the exemption criteria set out in subclause 18(13) hereof, and the applicant/s shall be advised, in writing, of the Council's decision within five (5) normal working days following the meeting at which the applications were considered. |
| (5) |
The Council shall, subject to the exemption criteria, only grant exemption on good cause and may determine such period and conditions of exemption as it deems fit, with the proviso that all exemptions shall lapse on 31 October of every year and may only be extended for a further period by the Council on the application for such extension by the applicant. |
| (6) |
Any non-party to which this Agreement has been extended to in terms of section 32 of the Act, may apply to the Council for exemption from any of the terms of this Agreement. |
| (7) |
Subclause 18(3) to and including (5) shall mutatis mutandis apply to any application for exemption received from a non-party. |
| (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 must 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 who shall as soon as possible, hear and decide the matter with reference to the exemption criteria set out in subclause 18(13) 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 ten (10) normal working days of the date of the decision, clearly specifying— |
| (a) |
the terms of exemption; and |
| (b) |
the reporting requirements by the applicant and conitering re-evaluation processes. |
| (11) |
When the Exemptions Board decides against granting an exemption it shall issue a certificate and advise the applicant/s within ten (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) |
All applications for exemptions referred to in this clause shall be addressed to the Secretary of the Council and shall— |
| (a) |
be in writing on an application form provided by the Council; |
| (b) |
indicate the period of time for which the exemption is required; |
| (c) |
indicate clearly the clauses or subclauses of this Agreement from which exemption is applied; |
| (d) |
be fully reasonable and motivated and include proof that the exemption applied for has been discussed between the employer, his employee and their representatives and also include the responses resulting from such consultations whether in support or against the application; |
| (e) |
indicate possible substitutive provisions; |
| (f) |
indicate the specific workplaces and employees in respect of which the exemption is applied for; |
| (g) |
include details of the total work force of the employer concerned. |
The Exemptions Board and the Council shall consider all applications of exemptions referred to in terms of this clause with reference to the following criteria:
| (a) |
The extent of consultation with and the petition for or against granting the exemptions as provided by employers or employees who are to be affected by the exemption if granted; |
| (b) |
infringement of basic conditions of employment rights; |
| (c) |
that a competitive advantage is not created by the exemption; |
| (d) |
that exemption from any employee benefit fund or training provision be viewed in relation to the alternative comparable bona fide or provision including the cost to the employee, transferability, administration management and cost, growth and stability; |
| (e) |
the extent to which the proposed exemption undermines collective bargaining and labour peace in the Building Industry; |
| (f) |
the reality that the majority of employers at any time engaged in the Building Industry within the Council's area of jurisdiction as well as the majority of members of the employer parties to the Council, represent the category micro to medium enterprises and employ between one and twenty employees; |
| (g) |
any special economic or other circumstances that exist warrant the granting of exemption; |
| (h) |
take cognizance of the recommendations contained in the Report of the Presidential Commission to Investigate Labour Market Policy. |
Implementation of Geneva Conventions Act, 2012
