Exemptions. A. For any business entity registered with and falling within the Council's registered scope inasmuch as it relates to the scope of this part of the Agreement (1) Any business entity, whether a party or a non-party to the Council, which is registered with and falls within the Council's registered scope for the purposes of this part of the Agreement may apply to the Council for exemption from any or all of the provisions of this part of the Agreement. (2) All applications for exemption shall be made in writing on a prescribed form provided by the Council. (3) All applications for exemption shall be motivated in accordance with the exemption criteria set out in subclause (7) below; shall be supported by relevant documentation and, in addition, shall contain the following information: (a) The period for which the exemption is sought; (b) the number of employees affected and how many of such employees are members of a registered trade union; (c) the clauses and subclauses of this part of the Agreement from which the exemption is sought; (d) satisfactory proof that the applicant has consulted, or will consult, its employees at plant level in respect of the exemption sought, which consultations shall include a registered party trade union, where such union has members employed at the workplace, and shall include the response resulting from such consultations; and (e) the demonstrable commercial need of the applicant for the exemption sought. (a) The General Secretary of the Council or the Regional Secretary of the Regional Chamber concerned, or in their absence any other officer designated by the Executive Committee, shall forthwith refer the full exemption application to the Exemptions Committee, which shall have delegated power to deal with such application on behalf of the Council. (b) The Exemptions Committee shall consider and determine the application in accordance with the criteria set out in subclause (7) below, within 30 days from the date of lodgement of the application with the General Secretary, failing which the application shall be deemed to have been rejected. (c) The Exemptions Committee may call for any further information or submissions it deems appropriate from the applicant, prior to making a decision. The time period stipulated in subclause (b) above may be extended by agreement between the applicant and the Committee by the period the applicant takes to furnish the additional information or submissions. (d) The Exemptions Committee may, after considering the application in terms of the provisions and the criteria contained in this clause, grant, partially grant, or reject such application for exemption, and may impose any conditions on the granting or partial granting of any application it deems fit under the circumstances. If the applicant is not prepared to accept a partial granting of the application or any conditions imposed by the Exemptions Committee, the application shall be deemed to have been rejected. (e) Subject to the time period for considering the application, referred to in subclause (b) above, should the Exemptions Committee be unable to agree, the application shall be deemed to have been rejected and the reasoning of the members of the Exemptions Committee who wish to reject the application shall constitute the reasons of the Committee for the purposes of subclause 4 (i) below. (f) The Exemptions Committee shall notify the applicant of its decision within seven days of such decision having been reached. (g) If the application has been granted or partially granted, the Exemptions Committee shall specify the following in its notification to the applicant: (i) The conditions, if any, of its approval of the application; (ii) the period for which the exemption(s) will be valid; (iii) the clauses or subclauses of this part of the Agreement in respect of which exemption was granted or partially granted; and (iv) the full name of the exempt employer or employee(s). (h) Upon receipt of a written request, the Exemptions Committee shall provide brief written reasons for its decision to grant the exemption to any party which has an interest in the matter. (i) If the application for exemption is rejected or partially approved, the Exemptions Committee shall provide concise written reasons for such rejection or partial approval to the applicant within seven days of its decision: Provided that such reasons given by the Exemptions Committee shall not bind the Independent Exemptions Body (Exemptions Board) in considering any appeal provided for in subclause (5) below since the latter may make a decision on appeal in accordance with such reasons as he or she deems appropriate, subject to the provisions of this clause insofar as it applies to the Independent Exemptions Body. (a) Any decision of the Exemptions Committee to reject, partially approve or withdraw the application may be referred on appeal to the Independent Exemptions Body (Exemptions Board) hereby established in terms of the Act and the constitution of the Council. Such application shall be lodged within not more than 30 days of the applicant's being notified of the decision of the Exemptions Committee. The Exemptions Board may condone a late appeal on good cause shown. (b) The Exemptions Board shall have the power to levy a fee payable by the appellant and to determine the quantum thereof: Provided that such fee shall be consistent with- (i) the cost incurred for the hearing of the appeal; (ii) the cost incurred by the Council for the hearing of the appeal where the Exemptions Board is satisfied that such an appeal is without merit. (c) The Exemptions Board shall in addition, have the power to raise a cost order on the applicant in respect of costs incurred by the parties to the appeal where it is satisfied that it will be proper to do so on the basis that the appeal is so completely without merit that it would be justified in doing so. (a) The Exemptions Board shall consist of a single independent umpire appointed by the parties from a panel selected for this purpose. (b) The Exemptions Board shall determine the procedure to be adopted in determining the appeal. (c) The provisions of subclause (4) above shall, read with the changes required by the context, apply equally to the appeal process. (d) The decision of the Exemptions Board shall be final and binding. (7) The applicant shall satisfy the Executive Committee of the Council or the Exemptions Committee and, where applicable, the Exemptions Board of the following: (a) There is a demonstrable commercial need for the exemption. (b) Competitors covered by the Council who are in compliance with the applicable Council agreements will not be materially prejudiced by the exemption. (c) No infringement of the Basic Conditions of Employment Act or the Labour Relations Act will result if the exemption is granted, nor will the application, if granted, result in a conflict with the primary objectives of the Act. (d) The exemption will not undermine collective bargaining and labour peace in the Industry. (e) There has been compliance with subclause (3) above. (f) The majority of affected employees at the plant are in favour of the proposed exemption if it affects wages, benefit fund contributions, or levies. In such instance, either the employer, or the trade union may request that a ballot be conducted. (8) In addition, the following criteria shall be taken into account by the Exemptions Committee and the Exemptions Board when determining applications for exemptions: (a) The merits of the written and oral (if any) motivation provided by the applicant, the documentation supporting the application and, in particular, whether the applicant has made a compelling case for the exemption. (b) Whether the applicant firm will constitute a viable concern after the expiry of the exemption. (c) If the exemption sought is from any employee benefit fund, the sufficiency of the alternative benefit proposed by the applicant, including such factors as the cost to the employee, transferability, administration, management, costs, growth and stability. (d) The terms of the exemption sought, including the period thereof. (e) Any existing or projected special financial, economic or other circumstances put forward by the applicant as reasons warranting the granting of an exemption, including what economic hardship the applicant will suffer if the applicant is refused: Provided that the Executive committee of the Council or the Exemptions Committee or the Exemptions Board may require the disclosure of such relevant, verifiable information as it deems fit in this regard. (f) The history of the business entity and/or its shareholders, directors and owners within the Industry, including the period of its operation and in particular whether or not the entity is a new emerging enterprise or a small or medium enterprise (SME); and its history of compliance with Council agreements. (g) Any representations made by the employees and/or their representatives, including a registered trade union, the Council or Executive Committee or Exemptions Committee and/or the parties to the Council and/or the relevant Regional Chamber of the Council. (h) Any possible alternatives which may be acceptable to the applicant and/or any other interested party in the circumstances. (i) The cost, efficiency and administration of any conditions which the Executive Committee of the Council or the Exemptions Committee or the Exemptions Board may feel it necessary to impose. (j) What cost-saving measures may have been implemented by the applicant other than those in respect of its cost of labour. (k) What hardship may eventuate to employees in the event of the exemption being granted. (l) Any relevant time limits contained in the Council's constitution and the Act, and in particular that any exemption or partial granting of an exemption shall be for a fixed, stipulated period. (m) Any other relevant factors, including any decisions of the Council relevant to exemption applications. (a) An applicant shall be entitled to apply on the prescribed form to the General Secretary of the Council for the extension of any exemption granted by either the Regional Exemptions Committee or the Exemptions Board. An application for extension shall contain such additional information as may be necessary and required to substantiate the request with reference to the criteria set out in subclause (7) above. (b) The procedure and requirements for considering and determining an application for extension shall be in accordance with the provisions of subclause (4) above, read with the changes required by the context. (10) Employers employing five or fewer employees shall, upon application to the Council through the General Secretary, be exempted from the provisions of this part of the Agreement.
Appears in 6 contracts
Sources: National Main Collective Agreement, National Main Collective Agreement, National Main Collective Agreement
Exemptions. A. (A) For any business entity registered with and falling within the Council's registered scope inasmuch Inasmuch as it relates to the scope of this part of the Agreement
(1) Any business entity, whether a party or a non-party to the Council, which is registered with and falls within the Council's registered scope for the purposes of this part of the Agreement may apply to the Council for exemption from any or all of the provisions of this part of the Agreement.
(2) All applications for exemption shall be made in writing on a prescribed form provided by the Council.
(3) All applications for exemption shall be motivated in accordance with the exemption criteria set out in subclause (7) below; shall be supported by relevant documentation and, in addition, shall contain the following information:
(a) The period for which the exemption is sought;
(b) the number of employees affected and how many of such employees are members of a registered trade union;
(c) the clauses and subclauses of this part of the Agreement from which the exemption is sought;
(d) satisfactory proof that the applicant has consulted, or will consult, its employees at plant level in respect of the exemption sought, which consultations shall include a registered party trade union, where such union has members employed at the workplace, and shall include the response resulting from such consultations; and
(e) the demonstrable commercial need of the applicant for the exemption sought.
(a) The General Secretary of the Council or the Regional Secretary of the Regional Chamber concerned, or in their absence any other officer designated by the Executive Committee, shall forthwith refer the full exemption application to the Exemptions Committee, which shall have delegated power to deal with such application on behalf of the Council.
(b) The Exemptions Committee shall consider and determine the application in accordance with the criteria set out in subclause (7) below, within 30 days from the date of lodgement of the application with the General Secretary, failing which the application shall be deemed to have been rejected.
(c) The Exemptions Committee may call for any further information or submissions it deems appropriate from the applicant, prior to making a decision. The time period stipulated in subclause (b) above may be extended by agreement between the applicant and the Committee by the period the applicant takes to furnish the additional information or submissions.
(d) The Exemptions Committee may, after considering the application in terms of the provisions and the criteria contained in this clause, grant, partially grant, or reject such application for exemption, and may impose any conditions on the granting or partial granting of any application it deems fit under the circumstances. If the applicant is not prepared to accept a partial granting of the application or any conditions imposed by the Exemptions Committee, the application shall be deemed to have been rejected.
(e) Subject to the time period for considering the application, application referred to in subclause (b) above, should the Exemptions Committee be unable to agree, the application shall be deemed to have been rejected and the reasoning of the members of the Exemptions Committee who wish to reject the application shall constitute the reasons of the Committee for the purposes of subclause 4 (i) below.
(f) The Exemptions Committee shall notify the applicant of its decision within seven days of such decision having been reached.
(g) If the application has been granted or partially granted, the Exemptions Committee shall specify the following in its notification to the applicant:
(i) The conditions, if any, of its approval of the application;
(ii) the period for which the exemption(s) will be valid;
(iii) the clauses or subclauses of this part of the Agreement in respect of which exemption was granted or partially granted; and
(iv) the full name of the exempt employer or employee(s).
(h) Upon receipt of a written request, the Exemptions Committee shall provide brief written reasons for its decision to grant the exemption to any party which has an interest in the matter.
(i) If the application for exemption is rejected or partially approved, the Exemptions Committee shall provide concise written reasons for such rejection or partial approval to the applicant within seven days of its decision: Provided that such reasons given by the Exemptions Committee shall not bind the Independent Exemptions Body (Exemptions Board) in considering any appeal provided for in subclause (5) below since the latter may make a decision on appeal in accordance with such reasons as he or she deems appropriate, subject to the provisions of this clause insofar as it applies to the Independent Exemptions Body.
(a) Any decision of the Exemptions Committee to reject, partially approve or withdraw the application may be referred on appeal to the Independent Exemptions Body (Exemptions Board) hereby established in terms of the Act and the constitution of the Council. Such application shall be lodged within not more than 30 days of the applicant's being notified of the decision of the Exemptions Committee. The Exemptions Board may condone a late appeal on good cause shown.
(b) The Exemptions Board shall have the power to levy a fee payable by the appellant and to determine the quantum thereof: Provided that such fee shall be consistent with-
(i) the cost incurred for the hearing of the appeal;
(ii) the cost incurred by the Council for the hearing of the appeal where the Exemptions Board is satisfied that such an appeal is without merit.
(c) The Exemptions Board shall in addition, have the power to raise a cost order on the applicant in respect of costs incurred by the parties to the appeal where it is satisfied that it will be proper to do so on the basis that the appeal is so completely without merit that it would be justified in doing so.
(a) The Exemptions Board shall consist of a single independent umpire appointed by the parties from a panel selected for this purpose.
(b) The Exemptions Board shall determine the procedure to be adopted in determining the appeal.
(c) The provisions of subclause (4) above shall, read with the changes required by the context, apply equally to the appeal process.
(d) The decision of the Exemptions Board shall be final and binding.
(7) The applicant shall satisfy the Executive Committee of the Council or the Exemptions Committee and, where applicable, the Exemptions Board of the following:
(a) There is a demonstrable commercial need for the exemption.
(b) Competitors covered by the Council who are in compliance with the applicable Council agreements will not be materially prejudiced by the exemption.
(c) No infringement of the Basic Conditions of Employment Act or the Labour Relations Act will result if the exemption is granted, nor will the application, if granted, result in a conflict with the primary objectives of the Act.
(d) The exemption will not undermine collective bargaining and labour peace in the Industry.
(e) There has been compliance with subclause (3) above.
(f) The majority of affected employees at the plant are in favour of the proposed exemption if it affects wages, benefit fund contributions, or levies. In such instance, either the employer, or the trade union may request that a ballot be conducted.
(8) In addition, the following criteria shall be taken into account by the Exemptions Committee and the Exemptions Board when determining applications for exemptions:
(a) The merits of the written and oral (if any) motivation provided by the applicant, the documentation supporting the application and, in particular, whether the applicant has made a compelling case for the exemption.
(b) Whether the applicant firm will constitute a viable concern after the expiry of the exemption.
(c) If the exemption sought is from any employee benefit fund, the sufficiency of the alternative benefit proposed by the applicant, including such factors as the cost to the employee, transferability, administration, management, costs, growth and stability.
(d) The terms of the exemption sought, including the period thereof.
(e) Any existing or projected special financial, economic or other circumstances put forward by the applicant as reasons warranting the granting of an exemption, including what economic hardship the applicant will suffer if the applicant is refused: Provided that the Executive committee of the Council or the Exemptions Committee or the Exemptions Board may require the disclosure of such relevant, verifiable information as it deems fit in this regard.
(f) The history of the business entity and/or its shareholders, directors and owners within the Industry, including the period of its operation and in particular whether or not the entity is a new emerging enterprise or a small or medium enterprise (SME); and its history of compliance with Council agreements.
(g) Any representations made by the employees and/or their representatives, including a registered trade union, the Council or Executive Committee or Exemptions Committee and/or the parties to the Council and/or the relevant Regional Chamber of the Council.
(h) Any possible alternatives which may be acceptable to the applicant and/or any other interested party in the circumstances.
(i) The cost, efficiency and administration of any conditions which the Executive Committee of the Council or the Exemptions Committee or the Exemptions Board may feel it necessary to impose.
(j) What cost-saving measures may have been implemented by the applicant other than those in respect of its cost of labour.
(k) What hardship may eventuate to employees in the event of the exemption being granted.
(l) Any relevant time limits contained in the Council's constitution and the Act, and in particular that any exemption or partial granting of an exemption shall be for a fixed, stipulated period.
(m) Any other relevant factors, including any decisions of the Council relevant to exemption applications.
(a) An applicant shall be entitled to apply on the prescribed form to the General Secretary of the Council for the extension of any exemption granted by either the Regional Exemptions Committee or the Exemptions Board. An application for extension shall contain such additional information as may be necessary and required to substantiate the request with reference to the criteria set out in subclause (7) above.
(b) The procedure and requirements for considering and determining an application for extension shall be in accordance with the provisions of subclause (4) above, read with the changes required by the context.
(10) Employers employing five or fewer employees shall, upon application to the Council through the General Secretary, be exempted from the provisions of this part of the Agreement.subclause
Appears in 6 contracts
Sources: National Main Collective Agreement, National Main Collective Agreement, National Main Collective Agreement
Exemptions. A. For any business entity registered with and falling within the Council's registered scope inasmuch as it relates to the scope of this part of the Agreement
(1) Any business entity, whether a party or a non-party to the Council, which is registered with and falls within the Council's registered scope for the purposes of this part of the Agreement may apply to the Council for exemption from any or all of the provisions of this part of the Agreement.
(2) All applications for exemption shall be made in writing on a prescribed form provided by the Council.
(3) All applications for exemption shall be motivated in accordance with the exemption criteria set out in subclause (7) below; shall be supported by relevant documentation anddocumentation, and in addition, shall contain set out the following information:
(a) The period for which the exemption is sought;
(b) the number of employees affected and how many of such employees are members of a registered trade union;
(c) the clauses and subclauses of this part of the Agreement from which the exemption is sought;requested.
(d) satisfactory Satisfactory proof that the applicant has consulted, or will consult, its employees at plant level in respect of the exemption sought, which sought and the response resulting from such consultations. Such consultations shall include a registered party trade union, union where such union has members employed at the workplace, and shall include the response resulting from such consultations; and.
(e) the The demonstrable commercial need of the applicant for the exemption sought.
(a) The General Secretary of the Council or the Regional Secretary of the Regional Chamber concerned, or in their absence any other officer designated by the Executive Committee, shall forthwith refer the full exemption application to the Exemptions Committee, which shall have delegated power to deal with such application on behalf of the Council.
(b) The Exemptions Committee shall consider and determine the application in accordance with the criteria set out in subclause (7) below, and in form the applicant of its decision within 30 days from the date of lodgement of the application with the General Secretary. If notification of the decision is not received within this period, failing which the application shall be deemed to have been rejectedrefused.
(c) The Exemptions Committee may call for any further information or submissions it deems appropriate relevant from the applicant, prior to making a decision. The time period stipulated in subclause (b) above may be extended by agreement between the applicant and the Committee by the period the applicant takes to furnish the additional information or submissions.
(d) The Exemptions Committee may, after considering the application in terms of the provisions and the criteria contained in of this clause, grant, partially grant, or reject such application for exemption, and may impose any conditions on the granting or partial granting of any application it deems fit under the circumstances. If the applicant is not prepared to accept a partial granting of the application or any conditions imposed by the Exemptions Committee, the application shall be deemed to have been rejectedrefused.
(e) Subject to the time period for considering the application, referred to application as provided in subclause (b) above, should the Exemptions Committee be unable to agree, the application shall be deemed to have been rejected refused and the reasoning of the members of the Exemptions Committee who wish to reject the application shall constitute the reasons of the Committee for the purposes of subclause 4 (i) below.
(f) The Exemptions Committee shall notify the applicant of its decision within seven days of such decision having been reached.
(g) If the application has been granted or partially granted, the Exemptions Committee shall specify the following in its notification to the applicant:
(i) The conditions, if any, of its approval of the application;
(ii) the period for which the exemption(s) will be valid;
(iii) the clauses or subclauses of this part of the Agreement in respect of which exemption was granted or partially granted; and
(iv) the full name of the exempt employer or employee(s).
(h) Upon receipt of a written request, the Exemptions Committee shall provide brief written reasons for its decision to grant the exemption to any party which has an interest in the matter.
(i) If the application for exemption is rejected or partially approved, the Exemptions Committee shall provide concise written reasons for such rejection or partial approval to the applicant within seven days of its decision: Provided that such reasons given by the Exemptions Committee shall not bind the Independent Exemptions Body (Exemptions Board) in considering any appeal provided for in subclause (5) below since the latter may make a decision on appeal in accordance with such reasons as he or she deems appropriate, subject to the provisions of this clause insofar as it applies to the Independent Exemptions Body.
(a) Any decision of the Exemptions Committee to reject, partially approve or withdraw the application may be referred on to appeal to the Independent Exemptions Body (Exemptions Board) hereby established in terms of the Act and the constitution of the Council. Such application shall be lodged within not more than 30 days of the applicant's being notified of the decision of the Exemptions Committee. The Exemptions Board may condone a late appeal on good cause shown.
(b) The Exemptions Board shall have the power to levy a fee payable by the appellant and to determine the quantum amount thereof: Provided that such a fee shall be consistent with-
(i) the cost incurred for the hearing of the appeal;; and
(ii) the cost incurred by the Council for the hearing of the appeal where the Exemptions Board is satisfied that such an appeal is without merit.
(c) The Exemptions Board shall in addition, also have the power to raise a cost order on the applicant in respect of costs incurred by the parties to the appeal where it is satisfied that it will be proper to do so on the basis that the appeal is so completely without merit that it would be justified in doing so.
(a) The Exemptions Board shall consist of a single independent umpire appointed by the parties from a panel selected for this purpose.
(b) The Exemptions Board shall determine the procedure to be adopted in determining the appeal.
(c) The provisions of subclause (4) above shall, read with the changes required by the context, apply equally to the appeal process.
(d) The decision of the Exemptions Board shall be final and binding.
(7) The applicant shall satisfy the Executive Committee of the Council or the Exemptions Committee andCommittee, and where applicable, the Exemptions Board of the following:
(a) There is a demonstrable commercial need for the exemption.
(b) Competitors covered by the Council who that are in compliance with the applicable Council agreements Agreements will not be materially prejudiced by the exemption.
(c) No infringement of the Basic Conditions of Employment Act or the Labour Relations Act will result if the exemption is granted, nor will does the application, application if granted, result in a conflict with the primary objectives of the Act.
(d) The exemption will not undermine collective bargaining and labour peace in the Industry.
(e) There has been compliance with subclause (3) above.
(f) The majority of employees affected employees at the plant are in favour of the proposed exemption if it affects wages, benefit fund contributions, or levies. In such instance, either the employer, or the trade union may request that a ballot be conducted.
(8) In addition, the following criteria shall be taken into account by the Exemptions Committee and the Exemptions Board when determining applications for exemptions:
(a) The merits of the written and oral (if any) motivation provided by the applicant, the documentation supporting the application and, in particular, whether the applicant has made put up a compelling case for the exemption.
(b) Whether the applicant firm will constitute a viable concern after the expiry of the exemption.
(c) If the exemption sought is from any employee benefit fund, the sufficiency of the alternative benefit proposed by the applicant, including such factors as the cost to the employee, transferability, administration, management, costs, growth and stability.
(d) The terms of the exemption sought, including the period thereof.for which exemption is sought
(e) Any existing or projected special financial, economic or other circumstances put forward by the applicant as reasons warranting the granting of an exemption, including what economic hardship the applicant will suffer surfer if the applicant is refused: Provided that the Executive committee of the Council or the Exemptions Committee or the Exemptions Board may require the disclosure of such relevant, verifiable information as it deems fit in this regard.
(f) The history of the business entity and/or its shareholders, directors and owners within the Industry, including the period of its operation and in particular whether or not the entity is a new emerging enterprise or a small or medium enterprise (SME); and its history of compliance with Council agreements.
(g) Any representations made by the employees and/or their representatives, including a registered trade union, the Council or Executive Committee or Exemptions Committee and/or the parties to the Council and/or the relevant Regional Chamber of the Council.
(h) Any possible alternatives which may be acceptable to the applicant and/or any other interested party in the circumstances.
(i) The cost, efficiency and administration of any conditions which the Executive Committee of the Council or the Exemptions Committee or the Exemptions Board may feel it necessary to impose.
(j) What cost-saving measures may have been implemented by the applicant other than those in respect of its cost of labour.
(k) What hardship may eventuate to employees in the event of the exemption being granted.
(l) Any relevant time limits contained in the Council's constitution and the Act, and in particular that any . Any exemption or partial granting of an exemption shall be for a fixed, stipulated period.
(m) Any other relevant factors, including any decisions of the Council relevant to exemption applications.
(a) An applicant shall be entitled to apply on the prescribed form to the General Secretary of the Council for the extension of any exemption granted by either the Regional Exemptions Committee or the Exemptions Board. An application for extension shall contain such additional information as may be necessary and required to substantiate the request with reference to the criteria set out in subclause (7) above.
(b) The procedure and requirements for considering and determining an application for extension shall be in accordance with the provisions of subclause (4) above, above read with the changes required by the context.
(10) Employers employing five or fewer employees shall, upon application to the Council through the General Secretary, be exempted from the provisions of this part of the Agreement.
Appears in 6 contracts
Sources: National Main Collective Agreement, National Main Collective Agreement, National Main Collective Agreement
Exemptions. A. For any business entity registered with and falling within the Council's registered scope inasmuch as it relates to the scope of this part of the Agreement
(1) Any business entity, whether a party or a non-party to the Council, which is registered with and falls within the Council's registered scope for the purposes of this part of the Agreement may apply to the Council for exemption from any or all of the provisions of this part of the Agreement.
(2) All applications for exemption shall be made in writing on a prescribed form provided by the Council.
(3) All applications for exemption shall be motivated in accordance with the exemption criteria set out in subclause (7) below; shall be supported by relevant documentation and, in addition, shall contain the following information:
(a) The period for which the exemption is sought;
(b) the number of employees affected and how many of such employees are members of a registered trade union;
(c) the clauses and subclauses of this part of the Agreement from which the exemption is sought;
(d) satisfactory proof that the applicant has consulted, or will consult, its employees at plant level in respect of the exemption sought, which consultations shall include a registered party trade union, where such union has members employed at the workplace, and shall include the response resulting from such consultations; and
(e) the demonstrable commercial need of the applicant for the exemption sought.
(a) The General Secretary of the Council or the Regional Secretary of the Regional Chamber concerned, or in their absence any other officer designated by the Executive Committee, shall forthwith refer the full exemption application to the Exemptions Committee, which shall have delegated power to deal with such application on behalf of the Council.
(b) The Exemptions Committee shall consider and determine the application in accordance with the criteria set out in subclause (7) 7 below, within 30 days from the date of lodgement lodgment of the application with the General Secretary, failing which the application shall be deemed to have been rejectedrefused.
(c) The Exemptions Committee may call for any further information or submissions it deems appropriate from the applicant, prior to making a decision. The time period stipulated in subclause (b) above may be extended by agreement between the applicant and the Committee by the period the applicant takes to furnish the additional information or submissions.
(d) The Exemptions Committee may, after considering the application in terms of the provisions and the criteria contained in this clause, grant, partially grant, or reject such application for exemption, and may impose any conditions on the granting or partial granting of any application it deems fit under the circumstances. If the applicant is not prepared to accept a partial granting of the application or any conditions imposed by the Exemptions Committee, the application shall be deemed to have been rejected.
(e) Subject to the time period for considering the application, application referred to in subclause (b) above, should the Exemptions Committee be unable to agree, the application shall be deemed to have been rejected and the reasoning of the members of the Exemptions Committee who wish to reject the application shall constitute the reasons of the Committee for the purposes of subclause 4 (i) below.
(f) The Exemptions Committee shall notify the applicant of its decision within seven days of such decision having been reached.
(g) If the application has been granted or partially granted, the Exemptions Committee shall specify the following in its notification to the applicant:
(i) The conditions, if any, of its approval of the application;
(ii) the period for which the exemption(s) will be valid;'
(iii) the clauses or subclauses of this part of the Agreement in respect of which exemption was granted or partially granted; and
(iv) the full name of the exempt employer or employee(s).
(h) Upon receipt of a written request, the Exemptions Committee shall provide brief written reasons for its decision to grant the exemption to any party which has an interest in the matter.
(i) If the application for exemption is rejected or partially approved, the Exemptions Committee shall provide concise written reasons for such rejection or partial approval to the applicant within seven days of its decision: Provided that such reasons given by the Exemptions Committee shall not bind the Independent Exemptions Body (Exemptions Board) in considering any appeal provided for in subclause (5) below since the latter may make a decision on appeal in accordance with such reasons as he or she deems appropriate, subject to the provisions of this clause insofar as it applies to the Independent Exemptions Body.
(a) Any decision of the Exemptions Committee to reject, partially approve or withdraw the application may be referred on appeal to the Independent Exemptions Body (Exemptions Board) hereby established in terms of the Act and the constitution of the Council. Such application shall be lodged within not more than 30 days of the applicant's being notified of the decision of the Exemptions Committee. The Exemptions Board may condone a late appeal on good cause shown.
(b) The Exemptions Board shall have the power to levy a fee payable by the appellant and to determine the quantum thereof: Provided that such a fee shall be consistent with-
(i) the cost incurred for the hearing of the appeal;
(ii) the cost incurred by the Council for the hearing of the appeal where the Exemptions Board is satisfied that such an appeal is without merit.
(c) The Exemptions Board shall shall, in addition, have the power to raise a cost order on the applicant in respect of costs incurred by the parties to the appeal where it is satisfied that it will be proper to do so on the basis that the appeal is so completely without merit that it would be justified in doing so.
(a) The Exemptions Board shall consist of a single independent umpire appointed by the parties from a panel selected for this purpose.
(b) The Exemptions Board shall determine the procedure to be adopted in determining the appeal.
(c) The provisions of subclause (4) above shall, read with the changes required by the context, apply equally to the appeal process.
(d) The decision of the Exemptions Board shall be final and binding.
(7) The applicant shall satisfy the Executive Committee of the Council or the Exemptions Committee and, where applicable, the Exemptions Board of the following:
(a) There is a demonstrable commercial need for the exemption.
(b) Competitors covered by the Council who are in compliance with the applicable Council agreements will not be materially prejudiced by the exemption.
(c) No infringement of the Basic Conditions of Employment Act or the Labour Relations Act will result if the exemption is granted, nor will the application, if granted, result in a conflict with the primary objectives of the Act.
(d) The exemption will not undermine collective bargaining and labour peace in the Industryindustry.
(e) There has been compliance with subclause (3) above.
(f) The majority of affected employees at the plant are in favour of the proposed exemption if it affects wages, benefit fund contributions, or levies. In such instance, either the employer, or the trade union may request that a ballot be conducted.
(8) In addition, the following criteria shall be taken into account by the Exemptions Committee and the Exemptions Board when determining applications for exemptions:
(a) The merits of the written and oral (if any) motivation provided by the applicant, the documentation supporting the application and, in particular, whether the applicant has made a compelling case for the exemption.
(b) Whether the applicant firm will constitute a viable concern after the expiry of the exemption.
(c) If the exemption sought is from any employee benefit fund, the sufficiency of the alternative benefit proposed by the applicant, including such factors as the cost to the employee, transferability, administration, management, costs, growth and stability.
(d) The terms of the exemption sought, including the period thereof.
(e) Any existing or projected special financial, economic or other circumstances put forward by the applicant as reasons warranting the granting of an exemption, including what economic hardship the applicant will suffer if the applicant is refused: Provided that the Executive committee Committee of the Council or the Exemptions Committee or the Exemptions Board may require the disclosure of such relevant, verifiable information as it deems fit in this regard.
(f) The history of the business entity and/or its shareholders, directors and owners within the Industry, including the period of its operation and in particular whether or not the entity is a new emerging enterprise or a small or medium enterprise (SME); and its history of compliance with Council agreements.
(g) Any representations made by the employees and/or their representatives, including a registered trade union, the Council or Executive Committee or Exemptions Committee and/or the parties to the Council and/or the relevant Regional Chamber of the Council.
(h) Any possible alternatives which may be acceptable to the applicant and/or any other interested party in the circumstances.
(i) The cost, efficiency and administration of any conditions which the Executive Committee of the Council or the Exemptions Committee or the Exemptions Board may feel it necessary to impose.
(j) What cost-saving measures may have been implemented by the applicant other than those in respect of its cost of labour.
(k) What hardship may eventuate to employees in the event of the exemption being granted.
(l) Any relevant time limits contained in the Council's constitution and the Act, and in particular that any exemption or partial granting of an exemption shall be for a a. fixed, stipulated period.
(m) Any other relevant factors, including any decisions of the Council relevant to exemption applications.
(a) An applicant shall be entitled to apply on the prescribed form to the General Secretary of the Council for the extension of any exemption granted by either the Regional Exemptions Committee or the Exemptions Board. An application for extension shall contain such additional information as may be necessary and required to substantiate the request with reference to the criteria set out in subclause (7) above.
(b) The procedure and requirements for considering and determining an application for extension shall be in accordance with the provisions of subclause (4) above, read with the changes required by the context.
(10) Employers employing five or fewer employees shall, upon application to the Council through the General Secretary, be exempted from the provisions of this part of the Agreement, except in the case of Embroidery Employers.
Appears in 4 contracts
Sources: National Main Collective Agreement, National Main Collective Agreement, National Main Collective Agreement
Exemptions. A. For any business entity registered with and falling within the Council's registered scope inasmuch as it relates to the scope of this part of the Agreement
(1) Any business entity, whether a party or a non-party to the Council, which is registered with and falls within the Council's registered scope for the purposes of this part of the Agreement may apply to the Council for exemption from any or all of the provisions of this part of the Agreement.
(2) All applications for exemption shall be made in writing on a prescribed form provided by the Council.
(3) All applications for exemption shall be motivated in accordance with the exemption criteria set out in subclause (7) below; shall be supported by relevant documentation and, in addition, shall contain the following information:
(a) The period for which the exemption is sought;
(b) the number of employees affected and how many of such employees are members of a registered trade union;
(c) the clauses and subclauses of this part of the Agreement from which the exemption is sought;
(d) satisfactory proof that the applicant has consulted, or will consult, its employees at plant level in respect of the exemption sought, which consultations shall include a registered party trade union, where such union has members employed at the workplace, and shall include the response resulting from such consultations; and
(e) the demonstrable commercial need of the applicant for the exemption sought.
(a) The General Secretary of the Council or the Regional Secretary of the Regional Chamber concerned, or in their absence any other officer designated by the Executive Committee, shall forthwith refer the full exemption application to the Exemptions Committee, which shall have delegated power to deal with such application on behalf of the Council.
(b) The Exemptions Committee shall consider and determine the application in accordance with the criteria set out in subclause (7) below, within 30 days from the date of lodgement lodgment of the application with the General Secretary, failing which the application shall be deemed to have been rejectedrefused.
(c) The Exemptions Committee may call for any further information or submissions it deems appropriate from the applicant, prior to making a decision. The time period stipulated in subclause (b) above may be extended by agreement between the applicant and the Committee by the period the applicant takes to furnish the additional information or submissions.
(d) The Exemptions Committee may, after considering the application in terms of the provisions and the criteria contained in this clause, grant, partially grant, or reject such application for exemption, and may impose any conditions on the granting or partial granting of any application it deems fit under the circumstances. If the applicant is not prepared to accept a partial granting of the application or any conditions imposed by the Exemptions Committee, the application shall be deemed to have been rejected.
(e) Subject to the time period for considering the application, application referred to in subclause (b) above, should the Exemptions Committee be unable to agree, the application shall be deemed to have been rejected and the reasoning of the members of the Exemptions Committee who wish to reject the application shall constitute the reasons of the Committee for the purposes of subclause 4 (i) below.
(f) The Exemptions Committee shall notify the applicant of its decision within seven days of such decision having been reached.
(g) If the application has been granted or partially granted, the Exemptions Committee shall specify the following in its notification to the applicant:
(i) The conditions, if any, of its approval of the application;
(ii) the period for which the exemption(s) will be valid;'
(iii) the clauses or subclauses of this part of the Agreement in respect of which exemption was granted or partially granted; and
(iv) the full name of the exempt employer or employee(s).
(h) Upon receipt of a written request, the Exemptions Committee shall provide brief written reasons for its decision to grant the exemption to any party which has an interest in the matter.
(i) If the application for exemption is rejected or partially approved, the Exemptions Committee shall provide concise written reasons for such rejection or partial approval to the applicant within seven days of its decision: Provided that such reasons given by the Exemptions Committee shall not bind the Independent Exemptions Body (Exemptions Board) in considering any appeal provided for in subclause (5) below since the latter may make a decision on appeal in accordance with such reasons as he or she deems appropriate, subject to the provisions of this clause insofar as it applies to the Independent Exemptions Body.
(a) Any decision of the Exemptions Committee to reject, partially approve or withdraw the application may be referred on appeal to the Independent Exemptions Body (Exemptions Board) hereby established in terms of the Act and the constitution of the Council. Such application shall be lodged within not more than 30 days of the applicant's being notified of the decision of the Exemptions Committee. The Exemptions Board may condone a late appeal on good cause shown.
(b) The Exemptions Board shall have the power to levy a fee payable by the appellant and to determine the quantum thereof: Provided that such a fee shall be consistent with-
(i) the cost incurred for the hearing of the appeal;
(ii) the cost incurred by the Council for the hearing of the appeal where the Exemptions Board is satisfied that such an appeal is without merit.
(c) The Exemptions Board shall shall, in addition, have the power to raise a cost order on the applicant in respect of costs incurred by the parties to the appeal where it is satisfied that it will be proper to do so on the basis that the appeal is so completely without merit that it would be justified in doing so.
(a) The Exemptions Board shall consist of a single independent umpire appointed by the parties from a panel selected for this purpose.
(b) The Exemptions Board shall determine the procedure to be adopted in determining the appeal.
(c) The provisions of subclause (4) above shallabove, shall read with the changes required by the context, apply equally to the appeal process.
(d) The decision of the Exemptions Board shall be final and binding.
(7) The applicant shall satisfy the Executive Committee of the Council or the Exemptions Committee and, where applicable, the Exemptions Board of the following:
(a) There is a demonstrable commercial need for the exemption.
(b) Competitors covered by the Council who are in compliance with the applicable Council agreements will not be materially prejudiced by the exemption.
(c) No infringement of the Basic Conditions of Employment Act or the Labour Relations Act will result if the exemption is granted, nor will the application, if granted, result in a conflict with the primary objectives of the Act.
(d) The exemption will not undermine collective bargaining and labour peace in the Industryindustry.
(e) There has been compliance with subclause (3) above.
(f) The majority of affected employees at the plant are in favour of the proposed exemption if it affects wages, benefit fund contributions, or levies. In such instance, either the employer, or the trade union may request that a ballot be conducted.
(8) In addition, the following criteria shall be taken into account by the Exemptions Committee and the Exemptions Board when determining applications for exemptions:
(a) The merits of the written and oral (if any) motivation provided by the applicant, the documentation supporting the application and, in particular, whether the applicant has made a compelling case for the exemption.
(b) Whether the applicant firm will constitute a viable concern after the expiry of the exemption.
(c) If the exemption sought is from any employee benefit fund, the sufficiency of the alternative benefit proposed by the applicant, including such factors as the cost to the employee., transferability, administration, management, costs, growth and stability.
(d) The terms of the exemption sought, including the period thereof.
(e) Any existing or projected special financial, economic or other circumstances put forward by the applicant as reasons warranting the granting of an exemption, including what economic hardship the applicant will suffer if the applicant is refused: Provided that the Executive committee Committee of the Council or the Exemptions Committee or the Exemptions Board may require the disclosure of such relevant, verifiable information as it deems fit in this regard.
(f) The history of the business entity and/or its shareholders, directors and owners within the Industry, including the period of its operation and in particular whether or not the entity is a new emerging enterprise or a small or medium enterprise (SME); and its history of compliance with Council agreements.
(g) Any representations made by the employees and/or their representatives, including a registered trade union, the Council or Executive Committee or Exemptions Committee and/or the parties to the Council and/or the relevant Regional Chamber of the Council.
(h) Any possible alternatives which may be acceptable to the applicant and/or any other interested party in the circumstances.
(i) The cost, efficiency and administration of any conditions which the Executive Committee of the Council or the Exemptions Committee or the Exemptions Board may feel it necessary to impose.
(j) What cost-saving measures may have been implemented by the applicant other than those in respect of its cost of labour.
(k) What hardship may eventuate to employees in the event of the exemption being granted.
(l) Any relevant time limits contained in the Council's constitution and the Act, and in particular that any exemption or partial granting of an exemption shall be for a a. fixed, stipulated period.
(m) Any other relevant factors, including any decisions of the Council relevant to exemption applications.
(a) An applicant shall be entitled to apply on the prescribed form to the General Secretary of the Council for the extension of any exemption granted by either the Regional Exemptions Committee or the Exemptions Board. An application for extension shall contain such additional information as may be necessary and required to substantiate the request with reference to the criteria set out in subclause (7) above.
(b) The procedure and requirements for considering and determining an application for extension shall be in accordance with the provisions of subclause (4) above, read with the changes required by the context.
(10) Employers employing five or fewer employees shall, upon application to the Council through the General Secretary, be exempted from the provisions of this part of the Agreement, in the case of Embroidery Employers.
Appears in 3 contracts
Sources: National Main Collective Agreement, National Main Collective Agreement, National Main Collective Agreement
Exemptions. A. For any business entity registered with and falling within the Council's registered scope inasmuch as it relates to the scope of this part of the Agreement
(1) Any business entity, whether a party or a non-party to the Council, which is registered with with, and falls within within, the Council's registered scope for the purposes of this part of the Agreement Agreement, may apply to the Council for exemption from any or all of the provisions of this part of the Agreement.
(2) All applications for exemption shall must be made in writing on a prescribed form provided by the Council.
(3) All applications for exemption shall must be motivated in accordance with the exemption criteria set out in subclause sub-clause (7) below; shall must be supported by relevant documentation and, and in addition, shall addition must contain the following information:
(a) The period for which the exemption is sought;
(b) the The number of employees affected and how many of such employees are members of a registered trade union;
(c) the The clauses and subclauses of this part sub-clauses of the Agreement agreement from which the exemption is soughtrequested;
(d) satisfactory Satisfactory proof that the applicant has consulted, or will consult, its employees at plant level in respect of the exemption sought, which such consultations shall to include a registered party trade union, where such union has members employed at the workplace, and shall include including the response resulting from such consultations; and.
(e) the The demonstrable commercial need of the applicant for the exemption sought.
(a) The General Secretary of the Council or the Regional Secretary of the Regional Chamber concerned, or in their absence any other officer person designated by the Executive Committee, shall forthwith refer the full exemption application to the Exemptions Committee, which shall have delegated power to deal with such application on behalf of the Council.
(b) The Exemptions Committee shall consider and determine the application in accordance with the criteria set out in subclause sub-clause (7) below, within 30 days from the date of lodgement of the application with the General Secretary, failing which the application shall will be deemed to have been rejectedrefused.
(c) The Exemptions Committee may call for any further information or submissions as it deems appropriate from the applicant, prior to making a decision. The time period stipulated in subclause sub-clause (b) above above, may be extended by agreement between the applicant and the Committee committee by the period the applicant takes to furnish the additional information or submissions.
(d) The Exemptions Committee may, after considering the application in terms of the provisions and the criteria contained in this clause, grant, partially grant, or reject such application for exemption, and may impose any conditions on the granting or partial granting of any application as it deems fit under the circumstances. If the applicant Applicant is not prepared to accept a partial granting of the application or any conditions imposed by the Exemptions Committee, the application shall will be deemed to have been rejectedrefused.
(e) Subject to the time period for considering the application, referred to application as provided in subclause sub- clause (b) above, should the Exemptions Committee be unable to agree, the application shall be deemed to have been rejected refused and the reasoning of the members of the Exemptions Committee committee who wish to reject the application application, shall constitute the reasons of the Exemptions Committee for the purposes of subclause 4 sub-clause (ij) below.
(f) The Exemptions Committee shall notify the applicant of its decision within seven 7 days of such decision having been reached.
(g) If the application has been granted or partially granted, the Exemptions Committee shall specify the following in its notification to the applicant:
(i) The conditions, if any, of its approval of the application;
(ii) the The period for which the exemption(s) will be valid;
(iii) the The clauses or subclauses of this part sub-clauses of the Agreement agreement in respect of which exemption was granted or partially granted; and;
(iv) the The full name of the exempt employer or employee(s).
(h) Upon receipt of a written request, the Exemptions Committee shall provide brief written reasons for its decision to grant the exemption to any party which has an a interest in the matter.;
(i) If the application for exemption is rejected or partially approved, the Exemptions Committee shall provide concise written reasons for such rejection or partial approval to the applicant within seven days of its decision: Provided that such reasons given by the Exemptions Committee shall not bind the Independent Exemptions Body (Exemptions Board) in considering any appeal provided for in subclause (5) below below, since the latter may make a decision on appeal in accordance with such reasons as he or she deems appropriate, subject to the provisions of this clause insofar as it applies to the Independent Exemptions Body.
(a) Any decision of the Exemptions Committee to reject, partially approve or withdraw the application application, may be referred on appeal to the Independent Exemptions Body (Exemptions Board) hereby established in terms of the Act and the constitution Constitution of the Council. Such application shall be lodged within not more than 30 days of the applicant's being notified of the decision of the Exemptions Committee. The Exemptions Board may condone a late appeal on good cause shown.
(b) The Exemptions Board shall have the power to levy a fee payable by the appellant appalent and to determine the quantum thereof: Provided that such a fee shall be consistent with-
(i) the cost incurred for the hearing of the appeal;; and/or
(ii) the cost incurred by the Council for the hearing of the appeal where the Exemptions Board is satisfied that such an appeal is without merit.
(c) The Exemptions Board shall in addition, also have the power to raise a cost order on the applicant in respect of costs incurred by the parties to the appeal where it is satisfied that it will be proper to do so on the basis that the appeal is so completely without merit that it would be justified in doing so.
(a) The Exemptions Board shall consist of a single independent umpire appointed by the parties from a panel selected for this purpose.;
(b) The Exemptions Board shall determine the procedure to be adopted in determining the appeal.;
(c) The provisions of subclause sub-clause (4) above shall, read with the changes required by the context, apply equally to the appeal process.;
(d) The Exemption Board's decision of the Exemptions Board shall be final and binding.
(7) The applicant shall satisfy the Executive Committee of the Council or the Exemptions Committee andCommittee, and where applicable, the Exemptions Board of the following:that-
(a) There there is a demonstrable commercial need for the exemption.;
(b) Competitors competitors covered by the Council who are in compliance with the applicable Council agreements Agreements will not be materially prejudiced by the exemption.;
(c) No no infringement of the Basic Conditions of Employment Act or the Labour Relations Act will result if the exemption is granted, granted nor will the application, if granted, result in a conflict with the primary objectives of the Act.;
(d) The the exemption will not undermine collective bargaining and labour peace in the Industry.;
(e) There there has been compliance with subclause (3) above.;
(f) The the majority of affected employees at the plant are in favour of the proposed exemption if it affects wages, benefit fund contributions, or levies. In levies and, in such instance, either the employer, or the trade union may request that a ballot be conducted.
(8) In addition, the following criteria shall be taken into account by the Exemptions Committee and the Exemptions Board Board, when determining applications for exemptions:, shall take into account-
(a) The the merits of the written and oral (if any) motivation provided by the applicant, the documentation supporting the application and, in particular, whether the applicant has made put up a compelling case for the exemption.;
(b) Whether whether the applicant firm will constitute a viable concern after the expiry of the exemption.;
(c) If if the exemption sought is from any employee benefit fund, the sufficiency of the alternative benefit proposed by the applicant, including such factors as the cost to the employee, transferability, administration, management, costs, growth and stability.;
(d) The the terms of the exemption sought, including the period thereof.;
(e) Any any existing or projected special financial, economic or other circumstances put forward by the applicant as reasons warranting the granting of an exemption, including what economic hardship the applicant will suffer if the applicant is refused: Provided that the Executive committee Committee of the Council or the Exemptions Committee or the Exemptions Board may require the disclosure of such relevant, verifiable information as it deems fit in this regard.;
(f) The the history of the business entity and/or its shareholders, directors and owners within the Industry, including the period of its operation and in particular whether or not the entity is a new emerging enterprise or a small or medium enterprise (SME); and its history of compliance with Council agreements.;
(g) Any any representations made by the employees and/or their representatives, including a registered trade union, the Council or Executive Committee or Exemptions Committee and/or the parties to the Council and/or the relevant Regional Chamber of the Council.;
(h) Any any possible alternatives which may be acceptable to the applicant and/or any other interested party in the circumstances.;
(i) The the cost, efficiency and administration of any conditions which the Executive Committee of the Council or the Exemptions Committee or the Exemptions Board may feel it necessary to impose.;
(j) What what cost-saving measures may have been implemented by the applicant other than those in respect of its cost of labour.;
(k) What what hardship may eventuate to employees in the event of the exemption being granted.;
(l) Any any relevant time limits contained in the Council's constitution and the Act, and and, in particular particular, that any exemption or partial granting of an exemption shall be for a fixed, stipulated period.;
(m) Any any other relevant factors, including any decisions of the Council relevant to exemption applications.
(a) An applicant shall be is entitled to apply on the prescribed form to the General Secretary of the Council for the extension of any exemption granted by either the Regional Exemptions Committee or the Exemptions Board. An application for extension shall contain such additional information as may be necessary and required to substantiate the request with reference to the criteria set out in subclause sub-clause (7) above.;
(b) The procedure and requirements for considering and determining an application for extension shall be in accordance with the provisions of subclause sub-clause (4) above, above read with the changes required by the context.
(10) Employers employing five or fewer employees shall, upon application to the Council through the General Secretary, be exempted from the provisions of this part of the Agreement.
Appears in 3 contracts
Sources: National Main Collective Agreement, National Main Collective Agreement, National Main Collective Agreement
Exemptions. A. For any business entity registered with and falling within the Council's registered scope inasmuch as it relates to the scope of this part of the Agreement
(1) Any business entity, whether a party or a non-party to the Council, which is registered with and falls within the Council's registered scope for the purposes of this part of the Agreement may apply to the Council for exemption from any or all of the provisions of this part of the Agreement.
(2) All applications for exemption shall be made in writing on a prescribed form provided by the Council.
(3) All applications for exemption shall be motivated in accordance with the exemption criteria set out in subclause (7) below; shall be supported by relevant documentation and, in addition, shall contain the following information:
(a) The period for which the exemption is sought;
(b) the number of employees affected and how many of such employees are members of a registered trade union;
(c) the clauses and subclauses of this part of the Agreement from which the exemption is sought;
(d) satisfactory proof that the applicant has consulted, or will consult, its employees at plant level in respect of the exemption sought, which consultations shall include a registered party trade union, where such union has members employed at the workplace, and shall include the response resulting from such consultations; and
(e) the demonstrable commercial need of the applicant for the exemption sought.
(a) The General Secretary of the Council or the Regional Secretary of the Regional Chamber concerned, or in their absence any other officer designated by the Executive Committee, shall forthwith refer the full exemption application to the Exemptions Committee, which shall have delegated power to deal with such application on behalf of the Council.
(b) The Exemptions Committee shall consider and determine the application in accordance with the criteria set out in subclause (7) below, within 30 45 days from the date of lodgement of the application with the General Secretary, failing which the application shall be deemed to have been rejectedrefused.
(c) The Exemptions Committee may call for any further information or submissions it deems appropriate from the applicant, prior to making a decision. The time period stipulated in subclause (b) above may be extended by agreement between the applicant and the Committee by the period the applicant takes to furnish the additional information or submissions.
(d) The Exemptions Committee may, after considering the application in terms of the provisions and the criteria contained in this clause, grant, partially grant, or reject such application for exemption, and may impose any conditions on the granting or partial granting of any application it deems fit under the circumstances. If the applicant is not prepared to accept a partial granting of the application or any conditions imposed by the Exemptions Committee, the application shall be deemed to have been rejected.
(e) Subject to the time period for considering the application, application referred to in subclause (b) above, should the Exemptions Committee be unable to agree, the application shall be deemed to have been rejected and the reasoning of the members of the Exemptions Committee who wish to reject the application shall constitute the reasons of the Committee for the purposes of subclause 4 (i) below.
(f) The Exemptions Committee shall notify the applicant of its decision within seven days of such decision having been reached.
(g) If the application has been granted or partially granted, the Exemptions Committee shall specify the following in its notification to the applicant:
(i) The conditions, if any, of its approval of the application;
(ii) the period for which the exemption(s) will be valid;'
(iii) the clauses or subclauses of this part of the Agreement in respect of which exemption was granted or partially granted; and
(iv) the full name of the exempt employer or employee(s).
(h) Upon receipt of a written request, the Exemptions Committee shall provide brief written reasons for its decision to grant the exemption to any party which has an interest in the matter.
(i) If the application for exemption is rejected or partially approved, the Exemptions Committee shall provide concise written reasons for such rejection or partial approval to the applicant within seven days of its decision: Provided that such reasons given by the Exemptions Committee shall not bind the Independent Exemptions Body (Exemptions Board) in considering any appeal provided for in subclause (5) below since the latter may make a decision on appeal in accordance with such reasons as he or she deems appropriate, subject to the provisions of this clause insofar as it applies to the Independent Exemptions Body.
(a) Any decision of the Exemptions Committee to reject, partially approve or withdraw the application may be referred on appeal to the Independent Exemptions Body (Exemptions Board) hereby established in terms of the Act and the constitution of the Council. Such application shall be lodged within not more than 30 days of the applicant's being notified of the decision of the Exemptions Committee. The Exemptions Board may condone a late appeal on good cause shown.
(b) The Exemptions Board shall have the power to levy a fee payable by the appellant and to determine the quantum thereof: Provided that such a fee shall be consistent with-
(i) the cost incurred for the hearing of the appeal;
(ii) the cost incurred by the Council for the hearing of the appeal where the Exemptions Board is satisfied that such an appeal is without merit.
(c) The Exemptions Board shall shall, in addition, have the power to raise a cost order on the applicant in respect of costs incurred by the parties to the appeal where it is satisfied that it will be proper to do so on the basis that the appeal is so completely without merit that it would be justified in doing so.
(a) The Exemptions Board shall consist of a single independent umpire appointed by the parties from a panel selected for this purpose.
(b) The Exemptions Board shall determine the procedure to be adopted in determining the appeal.
(c) The provisions of subclause (4) above shall, read with the changes required by the context, apply equally to the appeal process.
(d) The decision of the Exemptions Board shall be final and binding.
(7) The applicant shall satisfy the Executive Committee of the Council or the Exemptions Committee and, where applicable, the Exemptions Board of the following:
(a) There is a demonstrable commercial need for the exemption.
(b) Competitors covered by the Council who are in compliance with the applicable Council agreements will not be materially prejudiced by the exemption.
(c) The applicant is not in arrears with respect to payment of Bargaining Council levies or employer or employee contributions and/or trade union/employer subscriptions and/or levies, or, if so, an agreed payment plan exists in respect of any such outstanding moneys. "Arrears", for this purpose, means any payment of Bargaining Council levies or employer or employee or trade union subscriptions which remain unpaid as at the last day of the month following the month in respect of which the payment is due.
(d) No infringement of the Basic Conditions of Employment Act or the Labour Relations Act will result if the exemption is granted, nor will the application, if granted, result in a conflict with the primary objectives of the Act.
(de) The exemption will not undermine collective bargaining and labour peace in the Industryindustry.
(ef) There has been compliance with subclause (3) above.
(fg) The majority of affected employees at the plant are in favour of the proposed exemption if it affects wages, benefit fund contributions, or levies. In such instance, either the employer, or the trade union may request that a ballot be conducted.
(8) In addition, the following criteria shall be taken into account by the Exemptions Committee and the Exemptions Board when determining applications for exemptions:
(a) The merits of the written and oral (if any) motivation provided by the applicant, the documentation supporting the application and, in particular, whether the applicant has made a compelling case for the exemption.
(b) Whether the applicant firm will constitute a viable concern after the expiry of the exemption.
(c) If the exemption sought is from any employee benefit fund, the sufficiency of the alternative benefit proposed by the applicant, including such factors as the cost to the employee, transferability, administration, management, costs, growth and stability.
(d) The terms . "Sufficiency" for the purposes of this subclause, means that in all material respects the exemption soughtalternative proposed is at least equal to, including the period thereof.
(e) Any existing or projected special financial, economic or other circumstances put forward by the applicant as reasons warranting the granting of an exemption, including what economic hardship the applicant will suffer if the applicant is refused: Provided that the Executive committee of the Council or the Exemptions Committee or the Exemptions Board may require the disclosure of such relevant, verifiable information as it deems fit in this regard.
(f) The history of the business entity and/or its shareholders, directors and owners within the Industry, including the period of its operation and in particular whether or not the entity is a new emerging enterprise or a small or medium enterprise (SME); and its history of compliance with Council agreements.
(g) Any representations made by the employees and/or their representatives, including a registered trade unionbetter than, the relevant Council or Executive Committee or Exemptions Committee and/or the parties to the Council and/or the relevant Regional Chamber of the Councilbenefit fund.
(h) Any possible alternatives which may be acceptable to the applicant and/or any other interested party in the circumstances.
(i) The cost, efficiency and administration of any conditions which the Executive Committee of the Council or the Exemptions Committee or the Exemptions Board may feel it necessary to impose.
(j) What cost-saving measures may have been implemented by the applicant other than those in respect of its cost of labour.
(k) What hardship may eventuate to employees in the event of the exemption being granted.
(l) Any relevant time limits contained in the Council's constitution and the Act, and in particular that any exemption or partial granting of an exemption shall be for a fixed, stipulated period.
(m) Any other relevant factors, including any decisions of the Council relevant to exemption applications.
(a) An applicant shall be entitled to apply on the prescribed form to the General Secretary of the Council for the extension of any exemption granted by either the Regional Exemptions Committee or the Exemptions Board. An application for extension shall contain such additional information as may be necessary and required to substantiate the request with reference to the criteria set out in subclause (7) above.
(b) The procedure and requirements for considering and determining an application for extension shall be in accordance with the provisions of subclause (4) above, read with the changes required by the context.
(10) Employers employing five or fewer employees shall, upon application to the Council through the General Secretary, be exempted from the provisions of this part of the Agreement.
Appears in 2 contracts
Sources: National Main Collective Agreement, National Main Collective Agreement
Exemptions. A. For any business entity registered with and falling within the Council's registered scope inasmuch as it relates to the scope of this part of the Agreement
(1) Any business entity, whether a party or a non-party to the Council, which is registered with with, and falls within within, the Council's registered scope for the purposes of this part of the Agreement Agreement, may apply to the Council for exemption from any or all of the provisions of this part of the Agreement.
(2) All applications for exemption shall must be made in writing on a prescribed form provided by the Council.
(3) All applications for exemption shall must be motivated in accordance with the exemption criteria set out in subclause sub-clause (7) below; shall must be supported by relevant documentation and, and in addition, shall addition must contain the following information:
(a) The period for which the exemption is sought;
(b) the The number of employees affected and how many of such employees are members of a registered trade union;
(c) the The clauses and subclauses of this part sub-clauses of the Agreement agreement from which the exemption is soughtrequested;
(d) satisfactory Satisfactory proof that the applicant has consulted, or will consult, its employees at plant level in respect of the exemption sought, which such consultations shall to include a registered party trade union, where such union has members employed at the workplace, and shall include including the response resulting from such consultations; and.
(e) the The demonstrable commercial need of the applicant for the exemption sought.
(a) The General Secretary of the Council or the Regional Secretary of the Regional Chamber concerned, or in their absence any other officer person designated by the Executive Committee, shall forthwith refer the full exemption application to the Exemptions Committee, which shall have delegated power to deal with such application on behalf of the Council.
(b) The Exemptions Committee shall consider and determine the application in accordance with the criteria set out in subclause sub-clause (7) below, within 30 45 days from the date of lodgement of the application with the General Secretary, failing which the application shall will be deemed to have been rejectedrefused.
(c) The Exemptions Committee may call for any further information or submissions as it deems appropriate from the applicant, prior to making a decision. The time period stipulated in subclause sub-clause (b) above above, may be extended by agreement between the applicant and the Committee committee by the period the applicant takes to furnish the additional information or submissions.
(d) The Exemptions Committee may, after considering the application in terms of the provisions and the criteria contained in this clause, grant, partially grant, or reject such application for exemption, and may impose any conditions on the granting or partial granting of any application as it deems fit under the circumstances. If the applicant Applicant is not prepared to accept a partial granting of the application or any conditions imposed by the Exemptions Committee, the application shall will be deemed to have been rejectedrefused.
(e) Subject to the time period for considering the application, referred to application as provided in subclause sub- clause (b) above, should the Exemptions Committee be unable to agree, the application shall be deemed to have been rejected refused and the reasoning of the members of the Exemptions Committee committee who wish to reject the application application, shall constitute the reasons of the Exemptions Committee for the purposes of subclause 4 sub-clause (ij) below.
(f) The Exemptions Committee shall notify the applicant of its decision within seven 7 days of such decision having been reached.
(g) If the application has been granted or partially granted, the Exemptions Committee shall specify the following in its notification to the applicant:
(i) The conditions, if any, of its approval of the application;
(ii) the The period for which the exemption(s) will be valid;
(iii) the The clauses or subclauses of this part sub-clauses of the Agreement agreement in respect of which exemption was granted or partially granted; and;
(iv) the The full name of the exempt employer or employee(s).
(h) Upon receipt of a written request, the Exemptions Committee shall provide brief written reasons for its decision to grant the exemption to any party which has an a interest in the matter.;
(i) If the application for exemption is rejected or partially approved, the Exemptions Committee shall provide concise written reasons for such rejection or partial approval to the applicant within seven days of its decision: Provided that such reasons given by the Exemptions Committee shall not bind the Independent Exemptions Body (Exemptions Board) in considering any appeal provided for in subclause (5) below below, since the latter may make a decision on appeal in accordance with such reasons as he or she deems appropriate, subject to the provisions of this clause insofar as it applies to the Independent Exemptions Body.
(a) Any decision of the Exemptions Committee to reject, partially approve or withdraw the application application, may be referred on appeal to the Independent Exemptions Body (Exemptions Board) hereby established in terms of the Act and the constitution Constitution of the Council. Such application shall be lodged within not more than 30 days of the applicant's being notified of the decision of the Exemptions Committee. The Exemptions Board may condone a late appeal on good cause shown.
(b) The Exemptions Board shall have the power to levy a fee payable by the appellant appalent and to determine the quantum thereof: Provided that such a fee shall be consistent with-
(i) the cost incurred for the hearing of the appeal;; and/or
(ii) the cost incurred by the Council for the hearing of the appeal where the Exemptions Board is satisfied that such an appeal is without merit.
(c) The Exemptions Board shall in addition, also have the power to raise a cost order on the applicant in respect of costs incurred by the parties to the appeal where it is satisfied that it will be proper to do so on the basis that the appeal is so completely without merit that it would be justified in doing so.
(a) The Exemptions Board shall consist of a single independent umpire appointed by the parties from a panel selected for this purpose.;
(b) The Exemptions Board shall determine the procedure to be adopted in determining the appeal.;
(c) The provisions of subclause sub-clause (4) above shall, read with the changes required by the context, apply equally to the appeal process.;
(d) The Exemption Board's decision of the Exemptions Board shall be final and binding.
(7) The applicant shall satisfy the Executive Committee of the Council or the Exemptions Committee andCommittee, and where applicable, the Exemptions Board of the following:that-
(a) There there is a demonstrable commercial need for the exemption.;
(b) Competitors competitors covered by the Council who are in compliance with the applicable Council agreements Agreements will not be materially prejudiced by the exemption.;
(c) No the applicant is not in arrears with respect to payment of Bargaining Council levies or employer or employee contributions and/or trade union/employer subscriptions and/or levies, or, if so, an agreed payment plan exists in respect of any such outstanding moneys; and arrears, for this purpose, means any payment of Bargaining Council levies or employer or employee or trade union subscriptions which remain unpaid as at the last day of the month following the month in respect of which the payment is due;
(d) no infringement of the Basic Conditions of Employment Act or the Labour Relations Act will result if the exemption is granted, granted nor will the application, if granted, result in a conflict with the primary objectives of the Act.;
(de) The the exemption will not undermine collective bargaining and labour peace in the Industry.;
(ef) There there has been compliance with subclause (3) above.;
(fg) The the majority of affected employees at the plant are in favour of the proposed exemption if it affects wages, benefit fund contributions, or levies. In levies and, in such instance, either the employer, or the trade union may request that a ballot be conducted.
(8) In addition, the following criteria shall be taken into account by the Exemptions Committee and the Exemptions Board Board, when determining applications for exemptions:, shall take into account-
(a) The the merits of the written and oral (if any) motivation provided by the applicant, the documentation supporting the application and, in particular, whether the applicant has made put up a compelling case for the exemption.;
(b) Whether whether the applicant firm will constitute a viable concern after the expiry of the exemption.;
(c) If if the exemption sought is from any employee benefit fund, the sufficiency of the alternative benefit proposed by the applicant, including such factors as the cost to the employee, transferability, administration, management, costs, growth and stability.; and sufficiency, for the purposes of this sub-clause, means that in all material respects the alternative proposed is at least equal to, or better than, the relevant Council benefit fund;
(d) The the terms of the exemption sought, including the period thereof.;
(e) Any any existing or projected special financial, economic or other circumstances put forward by the applicant as reasons warranting the granting of an exemption, including what economic hardship the applicant will suffer if the applicant is refused: Provided that the Executive committee Committee of the Council or the Exemptions Committee or the Exemptions Board may require the disclosure of such relevant, verifiable information as it deems fit in this regard.;
(f) The the history of the business entity and/or its shareholders, directors and owners within the Industry, including the period of its operation and in particular whether or not the entity is a new emerging enterprise or a small or medium enterprise (SME); and its history of compliance with Council agreements.;
(g) Any any representations made by the employees and/or their representatives, including a registered trade union, the Council or Executive Committee or Exemptions Committee and/or the parties to the Council and/or the relevant Regional Chamber of the Council.;
(h) Any any possible alternatives which may be acceptable to the applicant and/or any other interested party in the circumstances.;
(i) The the cost, efficiency and administration of any conditions which the Executive Committee of the Council or the Exemptions Committee or the Exemptions Board may feel it necessary to impose.;
(j) What what cost-saving measures may have been implemented by the applicant other than those in respect of its cost of labour.;
(k) What what hardship may eventuate to employees in the event of the exemption being granted.;
(l) Any any relevant time limits contained in the Council's constitution and the Act, and and, in particular particular, that any exemption or partial granting of an exemption shall be for a fixed, stipulated period.;
(m) Any any other relevant factors, including any decisions of the Council relevant to exemption applications.
(a) An applicant shall be is entitled to apply on the prescribed form to the General Secretary of the Council for the extension of any exemption granted by either the Regional Exemptions Committee or the Exemptions Board. An application for extension shall contain such additional information as may be necessary and required to substantiate the request with reference to the criteria set out in subclause sub-clause (7) above.;
(b) The procedure and requirements for considering and determining an application for extension shall be in accordance with the provisions of subclause sub-clause (4) above, above read with the changes required by the context.
(10) Employers employing five or fewer employees shall, upon application to the Council through the General Secretary, be exempted from the provisions of this part of the Agreement.
Appears in 2 contracts
Sources: National Main Collective Agreement, National Main Collective Agreement
Exemptions. A. (A) For any business entity registered with and falling within the Council's registered scope inasmuch Inasmuch as it relates to the scope of this part of the Agreement
(1) Any business entity, whether a party or a non-party to the Council, which is registered with and falls within the Council's registered scope for the purposes of this part of the Agreement may apply to the Council for exemption from any or all of the provisions of this part of the Agreement.
(2) All applications for exemption shall be made in writing on a prescribed form provided by the Council.
(3) All applications for exemption shall be motivated in accordance with the exemption criteria set out in subclause (7) below; shall be supported by relevant documentation and, in addition, shall contain the following information:
(a) The period for which the exemption is sought;
(b) the number of employees affected and how many of such employees are members of a registered trade union;
(c) the clauses and subclauses of this part of the Agreement from which the exemption is sought;
(d) satisfactory proof that the applicant has consulted, or will consult, its employees at plant level in respect of the exemption sought, which consultations shall include a registered party trade union, where such union has members employed at the workplace, and shall include the response resulting from such consultations; and
(e) the demonstrable commercial need of the applicant for the exemption sought.
(a) The General Secretary of the Council or the Regional Secretary of the Regional Chamber concerned, or in their absence any other officer designated by the Executive Committee, shall forthwith refer the full exemption application to the Exemptions Committee, which shall have delegated power to deal with such application on behalf of the Council.
(b) The Exemptions Committee shall consider and determine the application in accordance with the criteria set out in subclause (7) below, within 30 45 days from the date of lodgement of the application with the General Secretary, failing which the application shall be deemed to have been rejected.
(c) The Exemptions Committee may call for any further information or submissions it deems appropriate from the applicant, prior to making a decision. The time period stipulated in subclause (b) above may be extended by agreement between the applicant and the Committee by the period the applicant takes to furnish the additional information or submissions.
(d) The Exemptions Committee may, after considering the application in terms of the provisions and the criteria contained in this clause, grant, partially grant, or reject such application for exemption, and may impose any conditions on the granting or partial granting of any application it deems fit under the circumstances. If the applicant is not prepared to accept a partial granting of the application or any conditions imposed by the Exemptions Committee, the application shall be deemed to have been rejected.
(e) Subject to the time period for considering the application, application referred to in subclause (b) above, should the Exemptions Committee be unable to agree, the application shall be deemed to have been rejected and the reasoning of the members of the Exemptions Committee who wish to reject the application shall constitute the reasons of the Committee for the purposes of subclause 4 (i) below.
(f) The Exemptions Committee shall notify the applicant of its decision within seven days of such decision having been reached.
(g) If the application has been granted or partially granted, the Exemptions Committee shall specify the following in its notification to the applicant:
(i) The conditions, if any, of its approval of the application;
(ii) the period for which the exemption(s) will be valid;
(iii) the clauses or subclauses of this part of the Agreement in respect of which exemption was granted or partially granted; and
(iv) the full name of the exempt employer or employee(s).
(h) Upon receipt of a written request, the Exemptions Committee shall provide brief written reasons for its decision to grant the exemption to any party which has an interest in the matter.
(i) If the application for exemption is rejected or partially approved, the Exemptions Committee shall provide concise written reasons for such rejection or partial approval to the applicant within seven days of its decision: Provided that such reasons given by the Exemptions Committee shall not bind the Independent Exemptions Body (Exemptions Board) in considering any appeal provided for in subclause (5) below since the latter may make a decision on appeal in accordance with such reasons as he or she deems appropriate, subject to the provisions of this clause insofar as it applies to the Independent Exemptions Body.
(a) Any decision of the Exemptions Committee to reject, partially approve or withdraw the application may be referred on appeal to the Independent Exemptions Body (Exemptions Board) hereby established in terms of the Act and the constitution of the Council. Such application shall be lodged within not more than 30 days of the applicant's being notified of the decision of the Exemptions Committee. The Exemptions Board may condone a late appeal on good cause shown.
(b) The Exemptions Board shall have the power to levy a fee payable by the appellant and to determine the quantum thereof: Provided that such fee shall be consistent with-
(i) the cost incurred for the hearing of the appeal;
(ii) the cost incurred by the Council for the hearing of the appeal where the Exemptions Board is satisfied that such an appeal is without merit.
(c) The Exemptions Board shall in addition, have the power to raise a cost order on the applicant in respect of costs incurred by the parties to the appeal where it is satisfied that it will be proper to do so on the basis that the appeal is so completely without merit that it would be justified in doing so.
(a) The Exemptions Board shall consist of a single independent umpire appointed by the parties from a panel selected for this purpose.
(b) The Exemptions Board shall determine the procedure to be adopted in determining the appeal.
(c) The provisions of subclause (4) above shall, read with the changes required by the context, apply equally to the appeal process.
(d) The decision of the Exemptions Board shall be final and binding.
(7) The applicant shall satisfy the Executive Committee of the Council or the Exemptions Committee and, where applicable, the Exemptions Board of the following:
(a) There is a demonstrable commercial need for the exemption.
(b) Competitors covered by the Council who are in compliance with the applicable Council agreements will not be materially prejudiced by the exemption.
(c) No infringement of the Basic Conditions of Employment Act or the Labour Relations Act will result if the exemption is granted, nor will the application, if granted, result in a conflict with the primary objectives of the Act.
(d) The exemption will not undermine collective bargaining and labour peace in the Industry.
(e) There has been compliance with subclause (3) above.
(f) The majority of affected employees at the plant are in favour of the proposed exemption if it affects wages, benefit fund contributions, or levies. In such instance, either the employer, or the trade union may request that a ballot be conducted.
(8) In addition, the following criteria shall be taken into account by the Exemptions Committee and the Exemptions Board when determining applications for exemptions:
(a) The merits of the written and oral (if any) motivation provided by the applicant, the documentation supporting the application and, in particular, whether the applicant has made a compelling case for the exemption.
(b) Whether the applicant firm will constitute a viable concern after the expiry of the exemption.
(c) If the exemption sought is from any employee benefit fund, the sufficiency of the alternative benefit proposed by the applicant, including such factors as the cost to the employee, transferability, administration, management, costs, growth and stability.
(d) The terms of the exemption sought, including the period thereof.
(e) Any existing or projected special financial, economic or other circumstances put forward by the applicant as reasons warranting the granting of an exemption, including what economic hardship the applicant will suffer if the applicant is refused: Provided that the Executive committee of the Council or the Exemptions Committee or the Exemptions Board may require the disclosure of such relevant, verifiable information as it deems fit in this regard.
(f) The history of the business entity and/or its shareholders, directors and owners within the Industry, including the period of its operation and in particular whether or not the entity is a new emerging enterprise or a small or medium enterprise (SME); and its history of compliance with Council agreements.
(g) Any representations made by the employees and/or their representatives, including a registered trade union, the Council or Executive Committee or Exemptions Committee and/or the parties to the Council and/or the relevant Regional Chamber of the Council.
(h) Any possible alternatives which may be acceptable to the applicant and/or any other interested party in the circumstances.
(i) The cost, efficiency and administration of any conditions which the Executive Committee of the Council or the Exemptions Committee or the Exemptions Board may feel it necessary to impose.
(j) What cost-saving measures may have been implemented by the applicant other than those in respect of its cost of labour.
(k) What hardship may eventuate to employees in the event of the exemption being granted.
(l) Any relevant time limits contained in the Council's constitution and the Act, and in particular that any exemption or partial granting of an exemption shall be for a fixed, stipulated period.
(m) Any other relevant factors, including any decisions of the Council relevant to exemption applications.
(a) An applicant shall be entitled to apply on the prescribed form to the General Secretary of the Council for the extension of any exemption granted by either the Regional Exemptions Committee or the Exemptions Board. An application for extension shall contain such additional information as may be necessary and required to substantiate the request with reference to the criteria set out in subclause (7) above.
(b) The procedure and requirements for considering and determining an application for extension shall be in accordance with the provisions of subclause (4) above, read with the changes required by the context.
(10) Employers employing five or fewer employees shall, upon application to the Council through the General Secretary, be exempted from the provisions of this part of the Agreement.subclause
Appears in 2 contracts
Sources: National Main Collective Agreement, National Main Collective Agreement
Exemptions. A. (a) For any business entity registered with and falling within the Council's registered scope inasmuch as it relates to the scope of this part of the Agreement
(1) Any business entity, whether a party or a non-party to the Council, which is registered with and falls within the Council's registered scope for the purposes of this part Section 16.2, the term “Lender” includes any Issuing Bank. Any Lender that is entitled to an exemption from or reduction of the withholding Tax under applicable law with respect to payments under this Agreement may apply shall deliver to the Council for exemption from any Borrowers (with a copy to the Administrative Agent), at the time or all of times prescribed by applicable law, such properly completed and executed documentation prescribed by applicable law or reasonably requested by the provisions of this part of Borrowers or the Agreement.
(2) All applications for exemption shall Administrative Agent as will permit such payments to be made in writing on without withholding or at a prescribed form provided reduced rate of withholding and will also, if reasonably requested by the Council.
Borrowers or the Administrative Agent, provide any documentation prescribed by applicable law or reasonably requested by the Borrowers or the Administrative Agent as will enable the Borrowers or the Administrative Agent to determine whether or not such Lender is subject to backup withholding or information reporting requirements. Notwithstanding anything to the contrary in this Section 16.2(a), the completion, execution and submission of such documentation (3) All applications for exemption shall be motivated other than such documentation set forth in accordance with the exemption criteria set out in subclause Section 16.2(b)(i), (7ii), and (iv) below; ) shall not be supported by relevant documentation andrequired if in the Lender’s reasonable judgment such completion, in addition, shall contain execution or submission would subject such Lender to any material unreimbursed cost or expense or would materially prejudice the following information:
(a) The period for which the exemption is sought;
(b) the number of employees affected and how many legal or commercial position of such employees are members of a registered trade union;
(c) the clauses and subclauses of this part of the Agreement from which the exemption is sought;
(d) satisfactory proof that the applicant has consulted, or will consult, its employees at plant level in respect of the exemption sought, which consultations shall include a registered party trade union, where such union has members employed at the workplace, and shall include the response resulting from such consultations; and
(e) the demonstrable commercial need of the applicant for the exemption sought.
(a) The General Secretary of the Council or the Regional Secretary of the Regional Chamber concerned, or in their absence any other officer designated by the Executive Committee, shall forthwith refer the full exemption application to the Exemptions Committee, which shall have delegated power to deal with such application on behalf of the CouncilLender.
(b) The Exemptions Committee shall consider and determine Without limiting the application in accordance with the criteria set out in subclause (7) below, within 30 days from the date of lodgement generality of the application with the General Secretary, failing which the application shall be deemed to have been rejected.
(c) The Exemptions Committee may call for any further information or submissions it deems appropriate from the applicant, prior to making a decision. The time period stipulated in subclause (b) above may be extended by agreement between the applicant and the Committee by the period the applicant takes to furnish the additional information or submissions.
(d) The Exemptions Committee may, after considering the application in terms of the provisions and the criteria contained in this clause, grant, partially grant, or reject such application for exemption, and may impose any conditions on the granting or partial granting of any application it deems fit under the circumstances. If the applicant is not prepared to accept a partial granting of the application or any conditions imposed by the Exemptions Committee, the application shall be deemed to have been rejected.
(e) Subject to the time period for considering the application, referred to in subclause (b) above, should the Exemptions Committee be unable to agree, the application shall be deemed to have been rejected and the reasoning of the members of the Exemptions Committee who wish to reject the application shall constitute the reasons of the Committee for the purposes of subclause 4 (i) below.
(f) The Exemptions Committee shall notify the applicant of its decision within seven days of such decision having been reached.
(g) If the application has been granted or partially granted, the Exemptions Committee shall specify the following in its notification to the applicantforegoing:
(i) The conditions, if any, of its approval any Lender that is a “United states person” within the meaning IRC Section 7701(a)(30) shall deliver to the Borrowers and the Administrative Agent on or prior to the date on which such Lender becomes a Lender under this Agreement (and from time to time thereafter upon the reasonable request of the applicationBorrower or the Administrative Agent), executed originals of IRS Form W-9 certifying that such Lender is exempt from U.S. Federal backup withholding tax;
(ii) any Foreign Lender shall, to the period for extent it is legally entitled to do so, deliver to the Borrowers and the Administrative Agent (in such number of copies as shall be requested by the recipient) on or prior to the date on which such Foreign Lender becomes a Lender under this Agreement (and from time to time thereafter upon the reasonable request of the Borrowers or the Administrative Agent), whichever of the following is applicable:
(A) if such Foreign Lender is claiming the benefits of an exemption from United States withholding tax pursuant to the portfolio interest exception under Section 881(c) of the IRC, (x) a certificate of the Lender or Participant that it is not a (I) a “bank” as described in Section 881(c)(3)(A) of the IRC, (II) a “10 percent shareholder” (within the meaning of Section 871(h)(3)(B) of the IRC) of Parent, or (III) a controlled foreign corporation that is a “related person” (within the meaning of Section 864(d)(4) of the IRC) with respect to Borrowers (a “U.S. Tax Compliance Certificate”), and (y) a properly completed and executed IRS Form W-8BEN or Form W-8BEN-E;
(B) in the case of a Foreign Lender claiming the benefits of an income tax treaty to which the exemption(sUnited States is a party (x) will be validwith respect to payments of interest under any Loan Document, executed originals of IRS Form W-8BEN or IRS Form W-8BEN-E establishing an exemption from, or reduction of, U.S. federal withholding Tax pursuant to the “interest” article of such tax treaty and (y) with respect to any other applicable payments under any Loan Document, IRS Form W-8BEN or IRS Form W-8BEN-E establishing an exemption from, or reduction of, U.S. federal withholding Tax pursuant to the “business profits” or “other income” article of such tax treaty;
(C) if such Foreign Lender is entitled to claim that interest paid under this Agreement is exempt from United States withholding tax because it is effectively connected with a United States trade or business of such Lender, a properly completed and executed copy of IRS Form W-8ECI; or
(D) to the extent a Foreign Lender is not the beneficial owner, executed originals of IRS Form W -8IMY, accompanied by IRS Form W-8ECI, IRS Form W-8BEN, IRS Form W-8BEN-E, a U.S. Tax Compliance Certificate, IRS Form W-9, and/or other certification documents from each beneficial owner, as applicable; provided that if the Foreign Lender is a partnership and one or more direct or indirect partners of such Foreign Lender are claiming the portfolio interest exemption, such Foreign Lender may provide a U.S. Tax Compliance Certificate on behalf of each such direct and indirect partner;
(iii) any Foreign Lender shall, to the clauses extent it is legally entitled to do so, deliver to the Borrowers and the Administrative Agent (in such number of copies as shall be requested by the recipient) on or subclauses of prior to the date on which such Foreign Lender becomes a Lender under this part Agreement (and from time to time thereafter upon the reasonable request of the Agreement Borrower or the Administrative Agent), executed originals of any other form prescribed by applicable law as a basis for claiming exemption from or a reduction in respect of which exemption was granted U.S. federal withholding Tax, duly completed, together with such supplementary documentation as may be prescribed by applicable law to permit the Borrower or partially grantedthe Administrative Agent to determine the withholding or deduction required to be made; and
(iv) if a payment made to a Lender under any Loan Document would be subject to U.S. federal withholding Tax imposed by FATCA if such Lender were to fail to comply with the full name applicable reporting requirements of FATCA (including those contained in Section 1471(b) or 1472(b) of the exempt employer or employee(sIRC, as applicable).
(h) Upon receipt of a written request, the Exemptions Committee such Lender shall provide brief written reasons for its decision to grant the exemption to any party which has an interest in the matter.
(i) If the application for exemption is rejected or partially approved, the Exemptions Committee shall provide concise written reasons for such rejection or partial approval deliver to the applicant within seven days Borrowers and the Administrative Agent at the time or times prescribed by law and at such time or times reasonably requested by the Borrowers or the Administrative Agent such documentation prescribed by applicable law (including as prescribed by Section 1471(b)(3)(C)(i) of its decision: Provided the IRC) and such additional documentation reasonably requested by the Borrowers or the Administrative Agent as may be necessary for the Borrowers and the Administrative Agent to comply with their obligations under FATCA and to determine that such reasons given by the Exemptions Committee shall not bind the Independent Exemptions Body (Exemptions Board) in considering any appeal provided for in subclause (5) below since the latter may make a decision on appeal in accordance Lender has complied with such reasons as he Lender’s obligations under FATCA or she deems appropriate, subject to determine the provisions amount to deduct and withhold from such payment. Solely for purposes of this clause insofar as it applies (D), “FATCA” shall include any amendments made to FATCA after the Independent Exemptions Body.
(a) Any decision date of the Exemptions Committee to reject, partially approve or withdraw the application may be referred on appeal to the Independent Exemptions Body (Exemptions Board) hereby established in terms of the Act and the constitution of the Council. Such application shall be lodged within not more than 30 days of the applicant's being notified of the decision of the Exemptions Committee. The Exemptions Board may condone a late appeal on good cause shown.
(b) The Exemptions Board shall have the power to levy a fee payable by the appellant and to determine the quantum thereof: Provided that such fee shall be consistent with-
(i) the cost incurred for the hearing of the appeal;
(ii) the cost incurred by the Council for the hearing of the appeal where the Exemptions Board is satisfied that such an appeal is without meritthis Agreement.
(c) The Exemptions Board Each Lender agrees that if any form or certification it previously delivered expires or becomes obsolete or inaccurate in any respect, it shall update such form or certification or promptly notify Borrowers and Administrative Agent in addition, have the power to raise a cost order on the applicant in respect writing of costs incurred by the parties to the appeal where it is satisfied that it will be proper its legal inability to do so on the basis that the appeal is so completely without merit that it would be justified in doing so.
(a) The Exemptions Board shall consist of a single independent umpire appointed by the parties from a panel selected for this purpose.
(b) The Exemptions Board shall determine the procedure to be adopted in determining the appeal.
(c) The provisions of subclause (4) above shall, read with the changes required by the context, apply equally to the appeal process.
(d) The decision If a Lender or Participant claims exemption from, or reduction of, withholding tax and such Lender or Participant sells, assigns, grants a participation in, or otherwise transfers all or part of the Exemptions Board Obligations of Borrowers to such Lender or Participant, such Lender or Participant agrees to notify Administrative Agent (or, in the case of a sale of a participation interest, to the Lender granting the participation only) of the percentage amount in which it is no longer the beneficial owner of Obligations of Borrowers to such Lender or Participant. To the extent of such percentage amount, Administrative Agent will treat such Lender’s or such Participant’s documentation provided pursuant to this Section 16.2 as no longer valid. With respect to such percentage amount, such Participant or Assignee may provide new documentation, pursuant to this Section 16.2, if applicable. Borrowers agree that each Participant shall be final and binding.
(7) The applicant shall satisfy entitled to the Executive Committee benefits of this Section 16 with respect to its participation in any portion of the Council or Commitments and the Exemptions Committee and, where applicable, Obligations to the Exemptions Board of the following:
(a) There is same extent as if it were a demonstrable commercial need for the exemption.
(b) Competitors covered Lender and had acquired its interest by the Council who are in compliance assignment so long as such Participant complies with the applicable Council agreements will not obligations set forth in this Section 16 with respect thereto (it being understood that the documentation required under this Section 16.2 shall be materially prejudiced by delivered to the exemption.
(c) No infringement of the Basic Conditions of Employment Act or the Labour Relations Act will result if the exemption is granted, nor will the application, if granted, result in a conflict with the primary objectives of the Act.
(d) The exemption will not undermine collective bargaining and labour peace in the Industryparticipating Lender).
(e) There has been compliance with subclause (3) above.
(f) The majority On or before the date that and any successor Administrative Agent becomes the Administrative Agent pursuant to Section 15.9, it shall deliver to Borrowers two duly executed originals of affected employees at the plant are in favour of the proposed exemption if it affects wages, benefit fund contributions, or levies. In such instance, either the employer, or the trade union may request that a ballot be conducted.
(8) In addition, the following criteria shall be taken into account by the Exemptions Committee and the Exemptions Board when determining applications for exemptions:
(a) The merits of the written and oral (if any) motivation provided by the applicant, the documentation supporting the application and, in particular, whether the applicant has made a compelling case for the exemption.
(b) Whether the applicant firm will constitute a viable concern after the expiry of the exemption.
(c) If the exemption sought is from any employee benefit fund, the sufficiency of the alternative benefit proposed by the applicant, including such factors as the cost to the employee, transferability, administration, management, costs, growth and stability.
(d) The terms of the exemption sought, including the period thereof.
(e) Any existing or projected special financial, economic or other circumstances put forward by the applicant as reasons warranting the granting of an exemption, including what economic hardship the applicant will suffer if the applicant is refused: Provided that the Executive committee of the Council or the Exemptions Committee or the Exemptions Board may require the disclosure of such relevant, verifiable information as it deems fit in this regard.
(f) The history of the business entity and/or its shareholders, directors and owners within the Industry, including the period of its operation and in particular whether or not the entity is a new emerging enterprise or a small or medium enterprise (SME); and its history of compliance with Council agreements.
(g) Any representations made by the employees and/or their representatives, including a registered trade union, the Council or Executive Committee or Exemptions Committee and/or the parties to the Council and/or the relevant Regional Chamber of the Council.
(h) Any possible alternatives which may be acceptable to the applicant and/or any other interested party in the circumstances.
(i) The cost, efficiency and administration IRS Form W-9 or (ii) a U.S. branch withholding certificate on IRS Form W-8IMY evidencing its agreement with the Borrowers to be treated as a U.S. Person (with respect to amounts received on account of any conditions which Lender) and IRS Form W-8ECI (or any successor form) (with respect to amounts received on its own account), with the Executive Committee of effect that, in any case, the Council or the Exemptions Committee or the Exemptions Board may feel it necessary to impose.
(j) What cost-saving measures may have been implemented by the applicant other than those in respect of its cost of labour.
(k) What hardship may eventuate to employees in the event of the exemption being granted.
(l) Any relevant time limits contained in the Council's constitution and the Act, and in particular that any exemption or partial granting of an exemption shall be for a fixed, stipulated period.
(m) Any other relevant factors, including any decisions of the Council relevant to exemption applications.
(a) An applicant shall Borrowers will be entitled to apply on the prescribed form make payments hereunder to the General Secretary Administrative Agent without withholding or deduction on account of the Council for the extension of any exemption granted by either the Regional Exemptions Committee or the Exemptions Board. An application for extension shall contain such additional information as may be necessary and required to substantiate the request with reference to the criteria set out in subclause (7) aboveU.S. federal withholding Tax.
(b) The procedure and requirements for considering and determining an application for extension shall be in accordance with the provisions of subclause (4) above, read with the changes required by the context.
(10) Employers employing five or fewer employees shall, upon application to the Council through the General Secretary, be exempted from the provisions of this part of the Agreement.
Appears in 2 contracts
Sources: Credit Agreement (Thryv Holdings, Inc.), Credit Agreement (Thryv Holdings, Inc.)
Exemptions. A. For any business entity registered with and falling within the Council's registered scope inasmuch as it relates to the scope of this part of the Agreement
(1) Any business entity, whether a party or a non-party to the Council, which is registered with and falls within the Council's registered scope for the purposes of this part of the Agreement may apply to the Council for exemption from any or all of the provisions of this part of the Agreement.
(2) All applications for exemption shall be made in writing on a prescribed form provided by the Council.
(3) All applications for exemption shall be motivated in accordance with the exemption criteria set out in subclause (7) below; shall be supported by relevant documentation and, in addition, shall contain the following information:
(a) The period for which the exemption is sought;
(b) the number of employees affected and how many of such employees are members of a registered trade union;
(c) the clauses and subclauses of this part of the Agreement from which the exemption is sought;
(d) satisfactory proof that the applicant has consulted, or will consult, its employees at plant level in respect of the exemption sought, which consultations consultation shall include a registered party trade union, where such union has members employed at the workplace, and shall include the response resulting from such consultations; and
(e) the demonstrable commercial need of the applicant for the exemption sought.
(a) The General Secretary of the Council or the Regional Secretary of the Regional Chamber concerned, or in their absence any other officer designated by the Executive Committee, shall forthwith refer the full exemption application to the Exemptions Committee, which shall have delegated power to deal with such application on behalf of the Council.
(b) The Exemptions Committee shall consider and determine the application in accordance with the criteria set out in subclause (7) below, within 30 45 days from the date of lodgement of the application with the General Secretary, failing which the application shall be deemed to have been rejected.
(c) The Exemptions Committee may call for any further information or submissions it deems appropriate from the applicant, prior to making a decision. The time period stipulated in subclause (b) above may be extended by agreement between the applicant and the Committee by the period the applicant takes to furnish the additional information or submissionssubmission.
(d) The Exemptions Committee may, after considering the application in terms of the provisions and the criteria contained in this clause, grant, partially grant, or reject such application for exemption, and may impose any conditions on the granting or partial granting of any application it deems fit under the circumstances. If the applicant is not prepared to accept a partial granting of the application or any conditions imposed by the Exemptions Committee, the application shall be deemed to have been rejected.
(e) Subject to the time period for considering the application, referred to in subclause (b) above, should the Exemptions Committee be unable to agree, the application shall be deemed to have been rejected and the reasoning of the members of the Exemptions Committee who wish to reject the application shall constitute the reasons of the Committee for the purposes of subclause 4 (i) below.
(f) The Exemptions Committee shall notify the applicant of its decision within seven days of such decision having been reached.
(g) If the application has been granted or partially granted, the Exemptions Committee shall specify the following in its notification to the applicant:
(i) The the conditions, if any, of its approval of the application;
(ii) the period for which the exemption(s) will be valid;
(iii) the clauses or subclauses of this part of the Agreement in respect of which exemption was granted or partially granted; and
(iv) the full name of the exempt employer or employee(s).
(h) Upon receipt of a written request, the Exemptions Committee shall provide brief written reasons for its decision to grant the exemption to any party which has an interest in the matter.
(i) If the application for exemption is rejected or partially approved, the Exemptions Committee shall provide concise written reasons for such rejection or partial approval to the applicant within seven days of its decision: Provided that such reasons given by the Exemptions Committee shall not bind the Independent Exemptions Body (Exemptions Board) in considering any appeal provided for in subclause (5) below since the latter may make a decision on appeal in accordance with such reasons as he or she deems appropriate, subject to the provisions of this clause insofar as it applies to the Independent Exemptions Body.
(a) Any decision of the Exemptions Committee to reject, partially approve or withdraw the application application, may be referred on appeal to the Independent Exemptions Body (Exemptions Board) hereby established in terms of the Act and the constitution of the Council. Such application shall be lodged within not more than 30 days of the applicant's being notified of the decision of the Exemptions Committee. The Exemptions Board may condone a late appeal on good cause shown.
(b) The Exemptions Board shall have the power to levy a fee payable by the appellant and to determine the quantum thereof: Provided that such fee shall be consistent with-
(i) the cost incurred for the hearing of the appeal;
(ii) the cost incurred by the Council for the hearing of the appeal where the Exemptions Board is satisfied that such an appeal is without merit.
(c) The Exemptions Board shall shall, in addition, have the power to raise a cost order on the applicant in respect of costs cost incurred by the parties to the appeal where it is satisfied that it will be proper to do so on the basis that the appeal is so completely without merit that it would be justified in doing so.
(a) The Exemptions Board shall consist of a single independent umpire appointed by the parties from a panel selected for this purpose.
(b) The Exemptions Board shall determine the procedure to be adopted in determining the appeal.
(c) The provisions of subclause (4) above shall, read with the changes required by the context, apply equally to the appeal process.
(d) The decision of the Exemptions Board shall be final and binding.
(7) The applicant shall satisfy the Executive Committee of the Council or the Exemptions Committee and, where applicable, the Exemptions Board of the following:
(a) There is a demonstrable commercial need for the exemption.
(b) Competitors covered by the Council who are in compliance with the applicable Council agreements will not be materially prejudiced by the exemption.
(c) The applicant is not in arrears with respect to payment of Bargaining Council levies or employer or employee contributions and/or trade union/employer subscriptions and/or levies, or, if so, an agreed payment plan exists in respect of any such outstanding moneys. "Arrears", for this purpose, means any payment of Bargaining Council levies or employer or employee or trade union subscriptions which remain unpaid as at the last day of the month following the month in respect of which the payment is due.
(d) No infringement of the Basic Conditions of Employment Act or the Labour Relations Act will result if the exemption is granted, nor will the application, if granted, result in a conflict with the primary objectives of the Act.
(de) The exemption will not undermine collective bargaining and labour peace in the Industry.
(ef) There has been compliance with subclause (3) above.
(fg) The majority of affected employees at the plant are in favour of the proposed exemption if it affects wages, benefit fund contributions, or levies. In such instance, either the employer, or the trade union may request that a ballot be conducted.
(8) In addition, the following criteria shall be taken into account by the Exemptions Committee and the Exemptions Board when determining applications for exemptions:
(a) The merits of the written and oral (if any) motivation provided by the applicant, the documentation supporting the application and, in particular, whether the applicant has made a compelling case for the exemption.
(b) Whether the applicant firm will constitute a viable concern after the expiry of the exemption.
(c) If the exemption sought is from any employee benefit fund, the sufficiency of the alternative benefit proposed by the applicant, including such factors as the cost to the employee, transferability, administration, management, costs, growth and stability.
(d) The terms . "Sufficiency", for the purposes of this subclause, means that in all material respects the exemption soughtalternative proposed is at least equal to, including the period thereof.
(e) Any existing or projected special financial, economic or other circumstances put forward by the applicant as reasons warranting the granting of an exemption, including what economic hardship the applicant will suffer if the applicant is refused: Provided that the Executive committee of the Council or the Exemptions Committee or the Exemptions Board may require the disclosure of such relevant, verifiable information as it deems fit in this regard.
(f) The history of the business entity and/or its shareholders, directors and owners within the Industry, including the period of its operation and in particular whether or not the entity is a new emerging enterprise or a small or medium enterprise (SME); and its history of compliance with Council agreements.
(g) Any representations made by the employees and/or their representatives, including a registered trade unionbetter than, the relevant Council or Executive Committee or Exemptions Committee and/or the parties to the Council and/or the relevant Regional Chamber of the Councilbenefit fund.
(h) Any possible alternatives which may be acceptable to the applicant and/or any other interested party in the circumstances.
(i) The cost, efficiency and administration of any conditions which the Executive Committee of the Council or the Exemptions Committee or the Exemptions Board may feel it necessary to impose.
(j) What cost-saving measures may have been implemented by the applicant other than those in respect of its cost of labour.
(k) What hardship may eventuate to employees in the event of the exemption being granted.
(l) Any relevant time limits contained in the Council's constitution and the Act, and in particular that any exemption or partial granting of an exemption shall be for a fixed, stipulated period.
(m) Any other relevant factors, including any decisions of the Council relevant to exemption applications.
(a) An applicant shall be entitled to apply on the prescribed form to the General Secretary of the Council for the extension of any exemption granted by either the Regional Exemptions Committee or the Exemptions Board. An application for extension shall contain such additional information as may be necessary and required to substantiate the request with reference to the criteria set out in subclause (7) above.
(b) The procedure and requirements for considering and determining an application for extension shall be in accordance with the provisions of subclause (4) above, read with the changes required by the context.
(10) Employers employing five or fewer employees shall, upon application to the Council through the General Secretary, be exempted from the provisions of this part of the Agreement.
Appears in 2 contracts
Sources: Consolidated Provident Fund Collective Agreement, Consolidated Provident Fund Collective Agreement
Exemptions. A. For any business entity registered with and falling within the Council's registered scope inasmuch as it relates to the scope of this part of the Agreement
(1) Any business entity, whether a party or a non-party to the Council, which is registered with and falls within the Council's registered scope for the purposes of this part of the Agreement may apply to the Council for exemption from any or all of the provisions of this part of the Agreement.
(2) All applications for exemption shall be made in writing on a prescribed form provided by the Council.
(3) All applications for exemption shall be motivated in accordance with the exemption criteria set out in subclause (7) below; shall be supported by relevant documentation anddocumentation, and in addition, shall contain set out the following information:
(a) The period for which the exemption is sought;
(b) the number of employees affected and how many of such employees are members of a registered trade union;
(c) the clauses and subclauses of this part of the Agreement from which the exemption is sought;requested.
(d) satisfactory Satisfactory proof that the applicant has consulted, or will consult, its employees at plant level in respect of the exemption sought, which sought and the response resulting from such consultations. Such consultations shall include a registered party trade union, union where such union has members employed at the workplace, and shall include the response resulting from such consultations; and.
(e) the The demonstrable commercial need of the applicant for the exemption sought.
(a) The General Secretary of the Council or the Regional Secretary of the Regional Chamber concerned, or in their absence any other officer designated by the Executive Committee, shall forthwith refer the full exemption application to the Exemptions Committee, which shall have delegated power to deal with such application on behalf of the Council.
(b) The Exemptions Committee shall consider and determine the application in accordance with the criteria set out in subclause (7) below, and in form the applicant of its decision within 30 45 days from the date of lodgement of the application with the General Secretary. If notification of the decision is not received within this period, failing which the application shall be deemed to have been rejectedrefused.
(c) The Exemptions Committee may call for any further information or submissions it deems appropriate relevant from the applicant, prior to making a decision. The time period stipulated in subclause (b) above may be extended by agreement between the applicant and the Committee by the period the applicant takes to furnish the additional information or submissions.
(d) The Exemptions Committee may, after considering the application in terms of the provisions and the criteria contained in of this clause, grant, partially grant, or reject such application for exemption, and may impose any conditions on the granting or partial granting of any application it deems fit under the circumstances. If the applicant is not prepared to accept a partial granting of the application or any conditions imposed by the Exemptions Committee, the application shall be deemed to have been rejectedrefused.
(e) Subject to the time period for considering the application, referred to application as provided in subclause (b) above, should the Exemptions Committee be unable to agree, the application shall be deemed to have been rejected refused and the reasoning of the members of the Exemptions Committee who wish to reject the application shall constitute the reasons of the Committee for the purposes of subclause 4 (i) below.
(f) The Exemptions Committee shall notify the applicant of its decision within seven days of such decision having been reached.
(g) If the application has been granted or partially granted, the Exemptions Committee shall specify the following in its notification to the applicant:
(i) The conditions, if any, of its approval of the application;
(ii) the period for which the exemption(s) will be valid;
(iii) the clauses or subclauses of this part of the Agreement in respect of which exemption was granted or partially granted; and
(iv) the full name of the exempt employer or employee(s).
(h) Upon receipt of a written request, the Exemptions Committee shall provide brief written reasons for its decision to grant the exemption to any party which has an interest in the matter.
(i) If the application for exemption is rejected or partially approved, the Exemptions Committee shall provide concise written reasons for such rejection or partial approval to the applicant within seven days of its decision: Provided that such reasons given by the Exemptions Committee shall not bind the Independent Exemptions Body (Exemptions Board) in considering any appeal provided for in subclause (5) below since the latter may make a decision on appeal in accordance with such reasons as he or she deems appropriate, subject to the provisions of this clause insofar as it applies to the Independent Exemptions Body.
(a) Any decision of the Exemptions Committee to reject, partially approve or withdraw the application may be referred on to appeal to the Independent Exemptions Body (Exemptions Board) hereby established in terms of the Act and the constitution of the Council. Such application shall be lodged within not more than 30 days of the applicant's being notified of the decision of the Exemptions Committee. The Exemptions Board may condone a late appeal on good cause shown.
(b) The Exemptions Board shall have the power to levy a fee payable by the appellant and to determine the quantum amount thereof: Provided that such a fee shall be consistent with-
(i) the cost incurred for the hearing of the appeal;; and
(ii) the cost incurred by the Council for the hearing of the appeal where the Exemptions Board is satisfied that such an appeal is without merit.
(c) The Exemptions Board shall in addition, also have the power to raise a cost order on the applicant in respect of costs incurred by the parties to the appeal where it is satisfied that it will be proper to do so on the basis that the appeal is so completely without merit that it would be justified in doing so.
(a) The Exemptions Board shall consist of a single independent umpire appointed by the parties from a panel selected for this purpose.
(b) The Exemptions Board shall determine the procedure to be adopted in determining the appeal.
(c) The provisions of subclause (4) above shall, read with the changes required by the context, apply equally to the appeal process.
(d) The decision of the Exemptions Board shall be final and binding.
(7) The applicant shall satisfy the Executive Committee of the Council or the Exemptions Committee andCommittee, and where applicable, the Exemptions Board of the following:
(a) There is a demonstrable commercial need for the exemption.
(b) Competitors covered by the Council who that are in compliance with the applicable Council agreements Agreements will not be materially prejudiced by the exemption.
(c) The applicant is not in arrears with respect to payment of Bargaining Council levies or employer or employee contributions and/or trade union/employer subscriptions and/or levy, or, if so, an agreed payment plan exists in respect of any such outstanding monies. Arrears, for this purpose, shall means any payment of Bargaining Council levies or employer or employee or trade union subscriptions that remain unpaid as at the last day of the month following the month in respect of which the payment is due.
(d) No infringement of the Basic Conditions of Employment Act or the Labour Relations Act will result if the exemption is granted, nor will does the application, application if granted, result in a conflict with the primary objectives of the Act.
(de) The exemption will not undermine collective bargaining and labour peace in the Industry.
(ef) There has been compliance with subclause (3) above.
(fg) The majority of employees affected employees at the plant are in favour of the proposed exemption if it affects wages, benefit fund contributions, or levies. In such instance, either the employer, or the trade union may request that a ballot be conducted.
(8) In addition, the following criteria shall be taken into account by the Exemptions Committee and the Exemptions Board when determining applications for exemptions:
(a) The merits of the written and oral (if any) motivation provided by the applicant, the documentation supporting the application and, in particular, whether the applicant has made put up a compelling case for the exemption.
(b) Whether the applicant firm will constitute a viable concern after the expiry of the exemption.
(c) If the exemption sought is from any employee benefit fund, the sufficiency of the alternative benefit proposed by the applicant, including such factors as the cost to the employee, transferabilitytransfer- ability, administration, management, costs, growth and stability. The alternative proposed shall, in all material respects, offer benefits at least equal to, the relevant Council benefit fund.
(d) The terms of the exemption sought, including the period thereof.for which exemption is sought
(e) Any existing or projected special financial, economic or other circumstances put forward by the applicant as reasons warranting the granting of an exemption, including what economic hardship the applicant will suffer surfer if the applicant is refused: Provided that the Executive committee of the Council or the Exemptions Committee or the Exemptions Board may require the disclosure of such relevant, verifiable information as it deems fit in this regard.
(f) The history of the business entity and/or its shareholders, directors and owners within the Industry, including the period of its operation and in particular whether or not the entity is a new emerging enterprise or a small or medium enterprise (SME); and its history of compliance with Council agreements.
(g) Any representations made by the employees and/or their representatives, including a registered trade union, the Council or Executive Committee or Exemptions Committee and/or the parties to the Council and/or the relevant Regional Chamber of the Council.
(h) Any possible alternatives which may be acceptable to the applicant and/or any other interested party in the circumstances.
(i) The cost, efficiency and administration of any conditions which the Executive Committee of the Council or the Exemptions Committee or the Exemptions Board may feel it necessary to impose.
(j) What cost-saving measures may have been implemented by the applicant other than those in respect of its cost of labour.
(k) What hardship may eventuate to employees in the event of the exemption being granted.
(l) Any relevant time limits contained in the Council's constitution and the Act, and in particular that any . Any exemption or partial granting of an exemption shall be for a fixed, stipulated period.
(m) Any other relevant factors, including any decisions of the Council relevant to exemption applications.
(a) An applicant shall be entitled to apply on the prescribed form to the General Secretary of the Council for the extension of any exemption granted by either the Regional Exemptions Committee or the Exemptions Board. An application for extension shall contain such additional information as may be necessary and required to substantiate the request with reference to the criteria set out in subclause (7) above.
(b) The procedure and requirements for considering and determining an application for extension shall be in accordance with the provisions of subclause (4) above, above read with the changes required by the context.
(10) Employers employing five or fewer employees shall, upon application to the Council through the General Secretary, be exempted from the provisions of this part of the Agreement.
B. For any employer that is a party or a member of a party to the Council and its employees represented by a trade union representative
(1) Exemption from the provisions of this part of the Agreement will be granted in the following circumstances:
(a) Where an employer that is a party or a member of a party to the Council and its employees, represented by a trade union representative, as defined in the Act, have concluded a collective agreement in accordance with the procedure set out in subclause (2) below to vary such provisions: Provided that-
(i) the collective agreement does not contravene the minimum employment standards in this part of the Agreement and in any law or the provisions of the Agreement dated 25 May 1993 between the Cape Clothing Manufacturers' Association, the Cape Knitting Industry Association, the Garment Manufacturers' Association of the Western Cape, the Eastern Province Clothing Manufacturers' Association, the Natal Clothing Manufacturers' Association, the Orange Free State and Northern Cape Clothing Manufacturers' Association, the Transvaal Clothing Manufacturers' Association (incorporating the Transvaal Knitters' Association) and the Southern African Clothing and Textile Workers' Union; and
(ii) wage rates and contributions to social funds, including the Council's fund, may not be amended without the Council's approval.
(2) An employer that is a party or a member of a party to the Council shall implement the following procedure in order to conclude a collective agreement as set out in subclause (1)
(a) (i) above:
(a) The employer shall place on the notice board of the establishment a notice to employees specifying the proposed variation to this part of the Agreement. At the same time a copy of the notice shall be sent to the trade union.
(b) A meeting shall take place at the establishment in order to reach agreement on the proposed variation, which agreement shall then be reduced to writing. In the absence of agreement the employer shall undertake not to refer an application for exemption to the Exemptions Board established by the Council.
(c) The agreement shall be referred to the Council or Regional Chamber for registration and any agreement concluded in terms of subclause (1) (a) (i) that is in contravention of any law or the minimum employment standards set out in this part of the Agreement shall be null and void ab initio.
Appears in 2 contracts
Sources: National Main Collective Agreement, National Main Collective Agreement
Exemptions. A. For any business entity registered with and falling within the Council's registered scope inasmuch as it relates to the scope of this part of the Agreement
(1) Any business entity, whether a party or a non-party to the Council, which is registered with and falls within the Council's registered scope for the purposes of this part of the Agreement may apply to the Council for exemption from any or all of the provisions of this part of the Agreement.
(2) All applications for exemption shall be made in writing on a prescribed form provided by the Council.
(3) All applications for exemption shall be motivated in accordance with the exemption criteria set out in subclause (7) below; shall be supported by relevant documentation and, in addition, shall contain the following information:
(a) The period for which the exemption is sought;
(b) the number of employees affected and how many of such employees are members of a registered trade union;
(c) the clauses and subclauses of this part of the Agreement from which the exemption is sought;
(d) satisfactory proof that the applicant has consulted, or will consult, its employees at plant level in respect of the exemption sought, which consultations shall include a registered party trade union, where such union has members employed at the workplace, and shall include the response resulting from such consultations; and
(e) the demonstrable commercial need of the applicant for the exemption sought.
(a) The General Secretary of the Council or the Regional Secretary of the Regional Chamber concerned, or in their absence any other officer designated by the Executive Committee, shall forthwith refer the full exemption application to the Exemptions Committee, which shall have delegated power to deal with such application on behalf of the Council.
(b) The Exemptions Committee shall consider and determine the application in accordance with the criteria set out in subclause (7) below, within 30 days from the date of lodgement of the application with the General Secretary, failing which the application shall be deemed to have been rejectedrefused.
(c) The Exemptions Committee may call for any further information or submissions it deems appropriate from the applicant, prior to making a decision. The time period stipulated in subclause (b) above may be extended by agreement between the applicant and the Committee by the period the applicant takes to furnish the additional information or submissions.
(d) The Exemptions Committee may, after considering the application in terms of the provisions and the criteria contained in this clause, grant, partially grant, or reject such application for exemption, and may impose any conditions on the granting or partial granting of any application it deems fit under the circumstances. If the applicant is not prepared to accept a partial granting of the application or any conditions imposed by the Exemptions Committee, the application shall be deemed to have been rejected.
(e) Subject to the time period for considering the application, application referred to in subclause (b) above, should the Exemptions Committee be unable to agree, the application shall be deemed to have been rejected and the reasoning of the members of the Exemptions Committee who wish to reject the application shall constitute the reasons of the Committee for the purposes of subclause 4 (i) below.
(f) The Exemptions Committee shall notify the applicant of its decision within seven days of such decision having been reached.
(g) If the application has been granted or partially granted, the Exemptions Committee shall specify the following in its notification to the applicant:
(i) The conditions, if any, of its approval of the application;
(ii) the period for which the exemption(s) will be valid;
(iii) the clauses or subclauses of this part of the Agreement in respect of which exemption was granted or partially granted; and
(iv) the full name of the exempt employer or employee(s).
(h) Upon receipt of a written request, the Exemptions Committee shall provide brief written reasons for its decision to grant the exemption to any party which has an interest in the matter.
(i) If the application for exemption is rejected or partially approved, the Exemptions Committee shall provide concise written reasons for such rejection or partial approval to the applicant within seven days of its decision: Provided that such reasons given by the Exemptions Committee shall not bind the Independent Exemptions Body (Exemptions Board) in considering any appeal provided for in subclause (5) below since the latter may make a decision on appeal in accordance with such reasons as he or she deems appropriate, subject to the provisions of this clause insofar as it applies to the Independent Exemptions Body.
(a) Any decision of the Exemptions Committee to reject, partially approve or withdraw the application may be referred on appeal to the Independent Exemptions Body (Exemptions Board) hereby established in terms of the Act and the constitution of the Council. Such application shall be lodged within not more than 30 days of the applicant's being notified of the decision of the Exemptions Committee. The Exemptions Board may condone a late appeal on good cause shown.
(b) The Exemptions Board shall have the power to levy a fee payable by the appellant and to determine the quantum thereof: Provided that such fee shall be consistent with-
(i) the cost incurred for the hearing of the appeal;
(ii) the cost incurred by the Council for the hearing of the appeal where the Exemptions Board is satisfied that such an appeal is without merit.
(c) The Exemptions Board shall in addition, have the power to raise a cost order on the applicant in respect of costs incurred by the parties to the appeal where it is satisfied that it will be proper to do so on the basis that the appeal is so completely without merit that it would be justified in doing so.
(a) The Exemptions Board shall consist of a single independent umpire appointed by the parties from a panel selected for this purpose.
(b) The Exemptions Board shall determine the procedure to be adopted in determining the appeal.
(c) The provisions of subclause (4) above shall, read with the changes required by the context, apply equally to the appeal process.
(d) The decision of the Exemptions Board shall be final and binding.
(7) The applicant shall satisfy the Executive Committee of the Council or the Exemptions Committee and, where applicable, the Exemptions Board of the following:
(a) There is a demonstrable commercial need for the exemption.
(b) Competitors covered by the Council who are in compliance with the applicable Council agreements will not be materially prejudiced by the exemption.
(c) No infringement of the Basic Conditions of Employment Act or the Labour Relations Act will result if the exemption is granted, nor will the application, if granted, result in a conflict with the primary objectives of the Act.
(d) The exemption will not undermine collective bargaining and labour peace in the Industry.
(e) There has been compliance with subclause (3) above.
(f) The majority of affected employees at the plant are in favour of the proposed exemption if it affects wages, benefit fund contributions, or levies. In such instance, either the employer, or the trade union may request that a ballot be conducted.
(8) In addition, the following criteria shall be taken into account by the Exemptions Committee and the Exemptions Board when determining applications for exemptions:
(a) The merits of the written and oral (if any) motivation provided by the applicant, the documentation supporting the application and, in particular, whether the applicant has made a compelling case for the exemption.
(b) Whether the applicant firm will constitute a viable concern after the expiry of the exemption.
(c) If the exemption sought is from any employee benefit fund, the sufficiency of the alternative benefit proposed by the applicant, including such factors as the cost to the employee, transferability, administration, management, costs, growth and stability.
(d) The terms of the exemption sought, including the period thereof.
(e) Any existing or projected special financial, economic or other circumstances put forward by the applicant as reasons warranting the granting of an exemption, including what economic hardship the applicant will suffer if the applicant is refused: Provided that the Executive committee of the Council or the Exemptions Committee or the Exemptions Board may require the disclosure of such relevant, verifiable information as it deems fit in this regard.
(f) The history of the business entity and/or its shareholders, directors and owners within the Industry, including the period of its operation and in particular whether or not the entity is a new emerging enterprise or a small or medium enterprise (SME); and its history of compliance with Council agreements.
(g) Any representations made by the employees and/or their representatives, including a registered trade union, the Council or Executive Committee or Exemptions Committee and/or the parties to the Council and/or the relevant Regional Chamber of the Council.
(h) Any possible alternatives which may be acceptable to the applicant and/or any other interested party in the circumstances.
(i) The cost, efficiency and administration of any conditions which the Executive Committee of the Council or the Exemptions Committee or the Exemptions Board may feel it necessary to impose.
(j) What cost-saving measures may have been implemented by the applicant other than those in respect of its cost of labour.
(k) What hardship may eventuate to employees in the event of the exemption being granted.
(l) Any relevant time limits contained in the Council's constitution and the Act, and in particular that any exemption or partial granting of an exemption shall be for a fixed, stipulated period.
(m) Any other relevant factors, including any decisions of the Council relevant to exemption applications.
(a) An applicant shall be entitled to apply on the prescribed form to the General Secretary of the Council for the extension of any exemption granted by either the Regional Exemptions Committee or the Exemptions Board. An application for extension shall contain such additional information as may be necessary and required to substantiate the request with reference to the criteria set out in subclause (7) above.
(b) The procedure and requirements for considering and determining an application for extension shall be in accordance with the provisions of subclause (4) above, read with the changes required by the context.
(10) Employers employing five or fewer employees shall, upon application to the Council through the General Secretary, be exempted from the provisions of this part of the Agreement.subclause
Appears in 2 contracts
Sources: National Main Collective Agreement, National Main Collective Agreement
Exemptions. A. For any business entity registered with and falling within the Council's registered scope inasmuch as it relates to the scope of this part of the Agreement
(1) Any business entity, whether a party or a non-party to the Council, which is registered with and falls within the Council's registered scope for the purposes of this part of the Agreement may apply to the Council for exemption from any or all of the provisions of this part of the Agreement.
(2) All applications for exemption shall be made in writing on a prescribed form provided by the Council.
(3) All applications for exemption shall be motivated in accordance with the exemption criteria set out in subclause (7) below; shall be supported by relevant documentation and, in addition, shall contain the following information:
(a) The period for which the exemption is sought;
(b) the number of employees affected and how many of such employees are members of a registered trade union;
(c) the clauses and subclauses of this part of the Agreement from which the exemption is sought;
(d) satisfactory proof that the applicant has consulted, or will consult, its employees at plant level in respect of the exemption sought, which consultations shall include a registered party trade union, where such union has members employed at the workplace, and shall include the response resulting from such consultations; and
(e) the demonstrable commercial need of the applicant for the exemption sought.
(a) The General Secretary of the Council or the Regional Secretary of the Regional Chamber concerned, or in their absence any other officer designated by the Executive Committee, shall forthwith refer the full exemption application to the Exemptions Committee, which shall have delegated power to deal with such application on behalf of the Council.
(b) The Exemptions Committee shall consider and determine the application in accordance with the criteria set out in subclause (7) 7 below, within 30 days from the date of lodgement lodgment of the application with the General Secretary, failing which the application shall be deemed to have been rejectedrefused.
(c) The Exemptions Committee may call for any further information or submissions it deems appropriate from the applicant, prior to making a decision. The time period stipulated in subclause (b) above may be extended by agreement between the applicant and the Committee by the period the applicant takes to furnish the additional information or submissions.
(d) The Exemptions Committee may, after considering the application in terms of the provisions and the criteria contained in this clause, grant, partially grant, or reject such application for exemption, and may impose any conditions on the granting or partial granting of any application it deems fit under the circumstances. If the applicant is not prepared to accept a partial granting of the application or any conditions imposed by the Exemptions Committee, the application shall be deemed to have been rejected.
(e) Subject to the time period for considering the application, application referred to in subclause (b) above, should the Exemptions Committee be unable to agree, the application shall be deemed to have been rejected and the reasoning of the members of the Exemptions Committee who wish to reject the application shall constitute the reasons of the Committee for the purposes of subclause 4 (i) below.
(f) The Exemptions Committee shall notify the applicant of its decision within seven days of such decision having been reached.
(g) If the application has been granted or partially granted, the Exemptions Committee shall specify the following in its notification to the applicant:
(i) The conditions, if any, of its approval of the application;
(ii) the period for which the exemption(s) will be valid;
(iii) the clauses or subclauses of this part of the Agreement in respect of which exemption was granted or partially granted; and
(iv) the full name of the exempt employer or employee(s).
(h) Upon receipt of a written request, the Exemptions Committee shall provide brief written reasons for its decision to grant the exemption to any party which has an interest in the matter.
(i) If the application for exemption is rejected or partially approved, the Exemptions Committee shall provide concise written reasons for such rejection or partial approval to the applicant within seven days of its decision: Provided that such reasons given by the Exemptions Committee shall not bind the Independent Exemptions Body (Exemptions Board) in considering any appeal provided for in subclause (5) below since the latter may make a decision on appeal in accordance with such reasons as he or she deems appropriate, subject to the provisions of this clause insofar as it applies to the Independent Exemptions Body.
(a) Any decision of the Exemptions Committee to reject, partially approve or withdraw the application may be referred on appeal to the Independent Exemptions Body (Exemptions Board) hereby established in terms of the Act and the constitution of the Council. Such application shall be lodged within not more than 30 days of the applicant's being notified of the decision of the Exemptions Committee. The Exemptions Board may condone a late appeal on good cause shown.
(b) The Exemptions Board shall have the power to levy a fee payable by the appellant and to determine the quantum thereof: Provided that such fee shall be consistent with-
(i) the cost incurred for the hearing of the appeal;
(ii) the cost incurred by the Council for the hearing of the appeal where the Exemptions Board is satisfied that such an appeal is without merit.
(c) The Exemptions Board shall in addition, have the power to raise a cost order on the applicant in respect of costs incurred by the parties to the appeal where it is satisfied that it will be proper to do so on the basis that the appeal is so completely without merit that it would be justified in doing so.
(a) The Exemptions Board shall consist of a single independent umpire appointed by the parties from a panel selected for this purpose.
(b) The Exemptions Board shall determine the procedure to be adopted in determining the appeal.
(c) The provisions of subclause (4) above shall, read with the changes required by the context, apply equally to the appeal process.
(d) The decision of the Exemptions Board shall be final and binding.
(7) The applicant shall satisfy the Executive Committee of the Council or the Exemptions Committee and, where applicable, the Exemptions Board of the following:
(a) There is a demonstrable commercial need for the exemption.
(b) Competitors covered by the Council who are in compliance with the applicable Council agreements will not be materially prejudiced by the exemption.
(c) No infringement of the Basic Conditions of Employment Act or the Labour Relations Act will result if the exemption is granted, nor will the application, if granted, result in a conflict with the primary objectives of the Act.
(d) The exemption will not undermine collective bargaining and labour peace in the Industry.
(e) There has been compliance with subclause (3) above.
(f) The majority of affected employees at the plant are in favour of the proposed exemption if it affects wages, benefit fund contributions, or levies. In such instance, either the employer, or the trade union may request that a ballot be conducted.
(8) In addition, the following criteria shall be taken into account by the Exemptions Committee and the Exemptions Board when determining applications for exemptions:
(a) The merits of the written and oral (if any) motivation provided by the applicant, the documentation supporting the application and, in particular, whether the applicant has made a compelling case for the exemption.
(b) Whether the applicant firm will constitute a viable concern after the expiry of the exemption.
(c) If the exemption sought is from any employee benefit fund, the sufficiency of the alternative benefit proposed by the applicant, including such factors as the cost to the employee, transferability, administration, management, costs, growth and stability.
(d) The terms of the exemption sought, including the period thereof.
(e) Any existing or projected special financial, economic or other circumstances put forward by the applicant as reasons warranting the granting of an exemption, including what economic hardship the applicant will suffer if the applicant is refused: Provided that the Executive committee of the Council or the Exemptions Committee or the Exemptions Board may require the disclosure of such relevant, verifiable information as it deems fit in this regard.
(f) The history of the business entity and/or its shareholders, directors and owners within the Industry, including the period of its operation and in particular whether or not the entity is a new emerging enterprise or a small or medium enterprise (SME); and its history of compliance with Council agreements.
(g) Any representations made by the employees and/or their representatives, including a registered trade union, the Council or Executive Committee or Exemptions Committee and/or the parties to the Council and/or the relevant Regional Chamber of the Council.
(h) Any possible alternatives which may be acceptable to the applicant and/or any other interested party in the circumstances.
(i) The cost, efficiency and administration of any conditions which the Executive Committee of the Council or the Exemptions Committee or the Exemptions Board may feel it necessary to impose.
(j) What cost-saving measures may have been implemented by the applicant other than those in respect of its cost of labour.
(k) What hardship may eventuate to employees in the event of the exemption being granted.
(l) Any relevant time limits contained in the Council's constitution and the Act, and in particular that any exemption or partial granting of an exemption shall be for a fixed, stipulated period.
(m) Any other relevant factors, including any decisions of the Council relevant to exemption applications.
(a) An applicant shall be entitled to apply on the prescribed form to the General Secretary of the Council for the extension of any exemption granted by either the Regional Exemptions Committee or the Exemptions Board. An application for extension shall contain such additional information as may be necessary and required to substantiate the request with reference to the criteria set out in subclause (7) above.
(b) The procedure and requirements for considering and determining an application for extension shall be in accordance with the provisions of subclause (4) above, read with the changes required by the context.
(10) Employers employing five or fewer employees shall, upon application to the Council through the General Secretary, be exempted from the provisions of this part of the Agreement.subclause
Appears in 2 contracts
Sources: National Main Collective Agreement, National Main Collective Agreement
Exemptions. A. For any business entity registered with and falling within the Council's registered scope inasmuch as it relates to the scope of this part of the Agreement
(1) Any business entity, whether a party or a non-party to the Council, which is registered with and falls within the Council's registered scope for the purposes of this part of the Agreement may apply to the Council for exemption from any or all of the provisions of this part of the Agreement.
(2) All applications for exemption shall be made in writing on a prescribed form provided by the Council.
(3) All applications for exemption shall be motivated in accordance with the exemption criteria set out in subclause (7) below; shall be supported by relevant documentation and, in addition, shall contain the following information:
(a) The period for which the exemption is sought;
(b) the number of employees affected and how many of such employees are members of a registered trade union;
(c) the clauses and subclauses of this part of the Agreement from which the exemption is sought;
(d) satisfactory proof that the applicant has consulted, or will consult, its employees at plant level in respect of the exemption sought, which consultations shall include a registered party trade union, where such union has members employed at the workplace, and shall include the response resulting from such consultations; and
(e) the demonstrable commercial need of the applicant for the exemption sought.
(a) The General Secretary of the Council or the Regional Secretary of the Regional Chamber concerned, or in their absence any other officer designated by the Executive Committee, shall forthwith refer the full exemption application to the Exemptions Committee, which shall have delegated power to deal with such application on behalf of the Council.
(b) The Exemptions Committee shall consider and determine the application in accordance with the criteria set out in subclause (7) below, within 30 days from the date of lodgement of the application with the General Secretary, failing which the application shall be deemed to have been rejectedrefused.
(c) The Exemptions Committee may call for any further information or submissions it deems appropriate from the applicant, prior to making a decision. The time period stipulated in subclause (b) above may be extended by agreement between the applicant and the Committee by the period the applicant takes to furnish the additional information or submissions.
(d) The Exemptions Committee may, after considering the application in terms of the provisions and the criteria contained in this clause, grant, partially grant, or reject such application for exemption, and may impose any conditions on the granting or partial granting of any application it deems fit under the circumstances. If the applicant is not prepared to accept a partial granting of the application or any conditions imposed by the Exemptions Committee, the application shall be deemed to have been rejected.
(e) Subject to the time period for considering the application, application referred to in subclause (b) above, should the Exemptions Committee be unable to agree, the application shall be deemed to have been rejected and the reasoning of the members of the Exemptions Committee who wish to reject the application shall constitute the reasons of the Committee for the purposes of subclause 4 (i) below.
(f) The Exemptions Committee shall notify the applicant of its decision within seven days of such decision having been reached.
(g) If the application has been granted or partially granted, the Exemptions Committee shall specify the following in its notification to the applicant:
(i) The conditions, if any, of its approval of the application;
(ii) the period for which the exemption(s) will be valid;
(iii) the clauses or subclauses of this part of the Agreement in respect of which exemption was granted or partially granted; and
(iv) the full name of the exempt employer or employee(s).
(h) Upon receipt of a written request, the Exemptions Committee shall provide brief written reasons for its decision to grant the exemption to any party which has an interest in the matter.
(i) If the application for exemption is rejected or partially approved, the Exemptions Committee shall provide concise written reasons for such rejection or partial approval to the applicant within seven days of its decision: Provided that such reasons given by the Exemptions Committee shall not bind the Independent Exemptions Body (Exemptions Board) in considering any appeal provided for in subclause (5) below since the latter may make a decision on appeal in accordance with such reasons as he or she deems appropriate, subject to the provisions of this clause insofar as it applies to the Independent Exemptions Body.
(a) Any decision of the Exemptions Committee to reject, partially approve or withdraw the application may be referred on appeal to the Independent Exemptions Body (Exemptions Board) hereby established in terms of the Act and the constitution of the Council. Such application shall be lodged within not more than 30 days of the applicant's being notified of the decision of the Exemptions Committee. The Exemptions Board may condone a late appeal on good cause shown.
(b) The Exemptions Board shall have the power to levy a fee payable by the appellant and to determine the quantum thereof: Provided that such fee shall be consistent with-
(i) the cost incurred for the hearing of the appeal;
(ii) the cost incurred by the Council for the hearing of the appeal where the Exemptions Board is satisfied that such an appeal is without merit.
(c) The Exemptions Board shall in addition, have the power to raise a cost order on the applicant in respect of costs incurred by the parties to the appeal where it is satisfied that it will be proper to do so on the basis that the appeal is so completely without merit that it would be justified in doing so.
(a) The Exemptions Board shall consist of a single independent umpire appointed by the parties from a panel selected for this purpose.
(b) The Exemptions Board shall determine the procedure to be adopted in determining the appeal.
(c) The provisions of subclause (4) above shall, read with the changes required by the context, apply equally to the appeal process.
(d) The decision of the Exemptions Board shall be final and binding.
(7) The applicant shall satisfy the Executive Committee of the Council or the Exemptions Committee and, where applicable, the Exemptions Board of the following:
(a) There is a demonstrable commercial need for the exemption.
(b) Competitors covered by the Council who are in compliance with the applicable Council agreements will not be materially prejudiced by the exemption.
(c) No infringement of the Basic Conditions of Employment Act or the Labour Relations Act will result if the exemption is granted, nor will the application, if granted, result in a conflict with the primary objectives of the Act.
(d) The exemption will not undermine collective bargaining and labour peace in the Industry.
(e) There has been compliance with subclause (3) above.
(f) The majority of affected employees at the plant are in favour of the proposed exemption if it affects wages, benefit fund contributions, or levies. In such instance, either the employer, or the trade union may request that a ballot be conducted.
(8) In addition, the following criteria shall be taken into account by the Exemptions Committee and the Exemptions Board when determining applications for exemptions:
(a) The merits of the written and oral (if any) motivation provided by the applicant, the documentation supporting the application and, in particular, whether the applicant has made a compelling case for the exemption.
(b) Whether the applicant firm will constitute a viable concern after the expiry of the exemption.
(c) If the exemption sought is from any employee benefit fund, the sufficiency of the alternative benefit proposed by the applicant, including such factors as the cost to the employee, transferability, administration, management, costs, growth and stability.
(d) The terms of the exemption sought, including the period thereof.
(e) Any existing or projected special financial, economic or other circumstances put forward by the applicant as reasons warranting the granting of an exemption, including what economic hardship the applicant will suffer if the applicant is refused: Provided that the Executive committee of the Council or the Exemptions Committee or the Exemptions Board may require the disclosure of such relevant, verifiable information as it deems fit in this regard.
(f) The history of the business entity and/or its shareholders, directors and owners within the Industry, including the period of its operation and in particular whether or not the entity is a new emerging enterprise or a small or medium enterprise (SME); and its history of compliance with Council agreements.
(g) Any representations made by the employees and/or their representatives, including a registered trade union, the Council or Executive Committee or Exemptions Committee and/or the parties to the Council and/or the relevant Regional Chamber of the Council.
(h) Any possible alternatives which may be acceptable to the applicant and/or any other interested party in the circumstances.
(i) The cost, efficiency and administration of any conditions which the Executive Committee of the Council or the Exemptions Committee or the Exemptions Board may feel it necessary to impose.
(j) What cost-saving measures may have been implemented by the applicant other than those in respect of its cost of labour.
(k) What hardship may eventuate to employees in the event of the exemption being granted.
(l) Any relevant time limits contained in the Council's constitution and the Act, and in particular that any exemption or partial granting of an exemption shall be for a fixed, stipulated period.
(m) Any other relevant factors, including any decisions of the Council relevant to exemption applications.
(a) An applicant shall be entitled to apply on the prescribed form to the General Secretary of the Council for the extension of any exemption granted by either the Regional Exemptions Committee or the Exemptions Board. An application for extension shall contain such additional information as may be necessary and required to substantiate the request with reference to the criteria set out in subclause (7) above.
(b) The procedure and requirements for considering and determining an application for extension shall be in accordance with the provisions of subclause (4) above, read with the changes required by the context.
(10) Employers employing five or fewer employees shall, upon application to the Council through the General Secretary, be exempted from the provisions of this part of the Agreement.
Appears in 2 contracts
Sources: National Main Collective Agreement, National Main Collective Agreement
Exemptions. A. For any business entity registered with and falling within the Council's registered scope inasmuch as it relates to the scope of this part of the Agreement
(1) Any business entity, whether a party or a non-party to the Council, which is registered with and falls within the Council's registered scope for the purposes of this part of the Agreement may apply to the Council for exemption from any or all of the provisions of this part of the Agreement.
(2) All applications for exemption shall be made in writing on a prescribed form provided by the Council.
(3) All applications for exemption shall be motivated in accordance with the exemption criteria set out in subclause (7) below; shall be supported by relevant documentation and, in addition, shall contain the following information:
(a) The the period for which the exemption is sought;
(b) the number of employees affected and how many of such employees are members of a registered trade union;
(c) the clauses and subclauses of this part of the Agreement from which the exemption is sought;
(d) satisfactory proof that the applicant has consulted, or will consult, its employees at plant level in respect of the exemption sought, which consultations shall include a registered party trade union, where such union has members employed at the workplace, and shall include the response resulting from such consultations; and
(e) the demonstrable commercial need of the applicant for the exemption sought.
(a) The General Secretary of the Council or the Regional Secretary of the Regional Chamber concerned, or in their absence any other officer designated by the Executive Committee, shall forthwith refer the full exemption application to the Exemptions Committee, which shall have delegated power to deal with such application on behalf of the Council.
(b) The Exemptions Committee shall consider and determine the application in accordance with the criteria set out in subclause (7) below, within 30 days from the date of lodgement of the application with the General Secretary, failing which the application shall be deemed to have been rejectedrefused.
(c) The Exemptions Committee may call for any further information or submissions it deems appropriate from the applicant, prior to making a decision. The time period stipulated in subclause (b) above may be extended by agreement between the applicant and the Committee by the period the applicant takes to furnish the additional information or submissions.
(d) The Exemptions Committee may, after considering the application in terms of the provisions and the criteria contained in this clause, grant, partially grant, or reject such application for exemption, and may impose any conditions on the granting or partial granting of any application it deems fit under the circumstances. If the applicant is not prepared to accept a partial granting of the application or any conditions imposed by the Exemptions Committee, the application shall be deemed to have been rejected.
(e) Subject to the time period for considering the application, referred to in subclause (b) above, should the Exemptions Committee be unable to agree, the application shall be deemed to have been rejected and the reasoning of the members of the Exemptions Committee who wish to reject the application shall constitute the reasons of the Committee for the purposes of subclause 4 4
(i) below.
(f) The Exemptions Committee shall notify the applicant of its decision within seven days of such decision having been reached.
(g) If the application has been granted or partially granted, the Exemptions Committee shall specify the following in its notification to the applicant:
(i) The the conditions, if any, of its approval of the application;
(ii) the period for which the exemption(s) will be valid;
(iii) the clauses or subclauses of this part of the Agreement in respect of which exemption was granted or partially granted; and
(iv) the full name of the exempt employer or employee(s).
(h) Upon receipt of a written request, the Exemptions Committee shall provide brief written reasons for its decision to grant the exemption to any party which has an interest in the matter.
(i) If the application for exemption is rejected or partially approved, the Exemptions Committee shall provide concise written reasons for such rejection or partial approval to the applicant within seven days of its decision: Provided that such reasons given by the Exemptions Committee shall not bind the Independent Exemptions Body (Exemptions Board) in considering any appeal provided for in subclause (5) below since the latter may make a decision on appeal in accordance with such reasons as he or she deems appropriate, subject to the provisions of this clause insofar as it applies to the Independent Exemptions Body.
(a) Any decision of the Exemptions Committee to reject, partially approve or withdraw the application application, may be referred on appeal to the Independent Exemptions Body (Exemptions Body(Exemptions Board) hereby established in terms of the Act and the constitution of the Council. Such application shall be lodged within not more than 30 days of the applicant's being notified of the decision of the Exemptions Committee. The Exemptions Board may condone a late appeal on good cause shown.
(b) The Exemptions Board shall have the power to levy a fee payable by the appellant and to determine the quantum thereof: Provided that such fee shall be consistent with-
(i) the cost incurred for the hearing of the appeal;
(ii) the cost incurred by the Council for the hearing of the appeal where the Exemptions Board is satisfied that such an appeal is without merit.
(c) The Exemptions Board shall shall, in addition, have the power to raise a cost order on the applicant in respect of costs cost incurred by the parties to the appeal where it is satisfied that it will be proper to do so on the basis that the appeal is so completely without merit that it would be justified in doing so.
(a) The Exemptions Board shall consist of a single independent umpire appointed by the parties from a panel selected for this purpose.
(b) The Exemptions Board shall determine the procedure to be adopted in determining the appeal.
(c) The provisions of subclause (4) above shall, read with the changes required by the context, apply equally to the appeal process.
(d) The decision of the Exemptions Board shall be final and binding.
(7) The applicant shall satisfy the Executive Committee of the Council or the Exemptions Committee and, where applicable, the Exemptions Board of the following:
(a) There is a demonstrable commercial need for the exemption.
(b) Competitors covered by the Council who are in compliance with the applicable Council agreements will not be materially prejudiced by the exemption.
(c) No infringement of the Basic Conditions of Employment Act or the Labour Relations Act will result if the exemption is granted, nor will the application, if granted, result in a conflict with the primary objectives of the Act.
(d) The exemption will not undermine collective bargaining and labour peace in the Industryindustry.
(e) There has been compliance with subclause (3) above.
(f) The majority of affected employees at the plant are in favour of the proposed exemption if it affects wages, benefit fund contributions, or levies. In such instance, either the employer, or the trade union may request that a ballot be conducted.
(8) In addition, the following criteria shall be taken into account by the Exemptions Committee and the Exemptions Board when determining applications for exemptions:
(a) The merits of the written and oral (if any) motivation provided by the applicant, the documentation supporting the application and, in particular, whether the applicant has made a compelling case for the exemption.
(b) Whether the applicant firm will constitute a viable concern after the expiry of the exemption.
(c) If the exemption sought is from any employee benefit fund, the sufficiency of the alternative benefit proposed by the applicant, including such factors as the cost to the employee, transferability, administration, management, costs, growth and stability.
(d) The terms of the exemption sought, including the period thereof.
(e) Any existing or projected special financial, economic or other circumstances put forward by the applicant as reasons warranting the granting of an exemption, including what economic hardship the applicant will suffer if the applicant is refused: Provided that the Executive committee Committee of the Council or the Exemptions Committee or the Exemptions Board may require the disclosure of such relevant, verifiable information as it deems fit in this regard.
(f) The history of the business entity and/or its shareholders, directors and owners within the Industry, including the period of its operation and in particular whether or not the entity is a new emerging enterprise or a small or medium enterprise (SME); and its history of compliance with Council agreements.
(g) Any representations made by the employees and/or their representatives, including a registered trade union, the Council or Executive Committee or Exemptions Committee and/or the parties to the Council and/or the relevant Regional Chamber of the Council.
(h) Any possible alternatives which may be acceptable to the applicant and/or any other interested party in the circumstances.
(i) The cost, efficiency and administration of any conditions which the Executive Committee of the Council or the Exemptions Committee or the Exemptions Board may feel it necessary to impose.
(j) What cost-saving measures may have been implemented by the applicant other than those in respect of its cost of labour.
(k) What hardship may eventuate to employees in the event of the exemption being granted.
(l) Any relevant time limits contained in the Council's constitution and the Act, and in particular that any exemption or partial granting of an exemption shall be for a fixed, stipulated period.
(m) Any other relevant factors, including any decisions of the Council relevant to exemption applications.
(a) An applicant shall be entitled to apply on the prescribed form to the General Secretary of the Council for the extension of any exemption granted by either the Regional Exemptions Committee or the Exemptions Board. An application for extension shall contain such additional information as may be necessary and required to substantiate the request with reference to the criteria set out in subclause (7) above.
(b) The procedure and requirements for considering and determining an application for extension shall be in accordance with the provisions of subclause (4) above, read with the changes required by the context.
(10) Employers employing five or fewer employees shall, upon application to the Council through the General Secretary, be exempted from the provisions of this part of the Agreement.
Appears in 2 contracts
Sources: National Main Collective Agreement, National Main Collective Agreement
Exemptions. A. For any business entity registered with and falling within the Council's registered scope inasmuch as it relates to the scope of this part of the Agreement
(1) Any business entity, whether a party or a non-party to the Council, which is registered with and falls within the Council's registered scope for the purposes of this part of the Agreement may apply to the Council for exemption from any or all of the provisions of this part of the Agreement.
(2) All applications for exemption shall be made in writing on a prescribed form provided by the Council.
(3) All applications for exemption shall be motivated in accordance with the exemption criteria set out in subclause (7) below; shall be supported by relevant documentation and, in addition, shall contain the following information:
(a) The period for which the exemption is sought;
(b) the number of employees affected and how many of such employees are members of a registered trade union;
(c) the clauses and subclauses of this part of the Agreement from which the exemption is sought;
(d) satisfactory proof that the applicant has consulted, or will consult, its employees at plant level in respect of the exemption sought, which consultations shall include a registered party trade union, where such union has members employed at the workplace, and shall include the response resulting from such consultations; and
(e) the demonstrable commercial need of the applicant for the exemption sought.
(a) The General Secretary of the Council or the Regional Secretary of the Regional Chamber concerned, or in their absence any other officer designated by the Executive Committee, shall forthwith refer the full exemption application to the Exemptions Committee, which shall have delegated power to deal with such application on behalf of the Council.
(b) The Exemptions Committee shall consider and determine the application in accordance with the criteria set out in subclause (7) 7 below, within 30 45 days from the date of lodgement lodgment of the application with the General Secretary, failing which the application shall be deemed to have been rejectedrefused.
(c) The Exemptions Committee may call for any further information or submissions it deems appropriate from the applicant, prior to making a decision. The time period stipulated in subclause (b) above may be extended by agreement between the applicant and the Committee by the period the applicant takes to furnish the additional information or submissions.
(d) The Exemptions Committee may, after considering the application in terms of the provisions and the criteria contained in this clause, grant, partially grant, or reject such application for exemption, and may impose any conditions on the granting or partial granting of any application it deems fit under the circumstances. If the applicant is not prepared to accept a partial granting of the application or any conditions imposed by the Exemptions Committee, the application shall be deemed to have been rejected.
(e) Subject to the time period for considering the application, application referred to in subclause (b) above, should the Exemptions Committee be unable to agree, the application shall be deemed to have been rejected and the reasoning of the members of the Exemptions Committee who wish to reject the application shall constitute the reasons of the Committee for the purposes of subclause 4 (i) below.
(f) The Exemptions Committee shall notify the applicant of its decision within seven days of such decision having been reached.
(g) If the application has been granted or partially granted, the Exemptions Committee shall specify the following in its notification to the applicant:
(i) The conditions, if any, of its approval of the application;
(ii) the period for which the exemption(s) will be valid;'
(iii) the clauses or subclauses of this part of the Agreement in respect of which exemption was granted or partially granted; and
(iv) the full name of the exempt employer or employee(s).
(h) Upon receipt of a written request, the Exemptions Committee shall provide brief written reasons for its decision to grant the exemption to any party which has an interest in the matter.
(i) If the application for exemption is rejected or partially approved, the Exemptions Committee shall provide concise written reasons for such rejection or partial approval to the applicant within seven days of its decision: Provided that such reasons given by the Exemptions Committee shall not bind the Independent Exemptions Body (Exemptions Board) in considering any appeal provided for in subclause (5) below since the latter may make a decision on appeal in accordance with such reasons as he or she deems appropriate, subject to the provisions of this clause insofar as it applies to the Independent Exemptions Body.
(a) Any decision of the Exemptions Committee to reject, partially approve or withdraw the application may be referred on appeal to the Independent Exemptions Body (Exemptions Board) hereby established in terms of the Act and the constitution of the Council. Such application shall be lodged within not more than 30 days of the applicant's being notified of the decision of the Exemptions Committee. The Exemptions Board may condone a late appeal on good cause shown.
(b) The Exemptions Board shall have the power to levy a fee payable by the appellant and to determine the quantum thereof: Provided that such a fee shall be consistent with-
(i) the cost incurred for the hearing of the appeal;
(ii) the cost incurred by the Council for the hearing of the appeal where the Exemptions Board is satisfied that such an appeal is without merit.
(c) The Exemptions Board shall shall, in addition, have the power to raise a cost order on the applicant in respect of costs incurred by the parties to the appeal where it is satisfied that it will be proper to do so on the basis that the appeal is so completely without merit that it would be justified in doing so.
(a) The Exemptions Board shall consist of a single independent umpire appointed by the parties from a panel selected for this purpose.
(b) The Exemptions Board shall determine the procedure to be adopted in determining the appeal.
(c) The provisions of subclause (4) above shall, read with the changes required by the context, apply equally to the appeal process.
(d) The decision of the Exemptions Board shall be final and binding.
(7) The applicant shall satisfy the Executive Committee of the Council or the Exemptions Committee and, where applicable, the Exemptions Board of the following:
(a) There is a demonstrable commercial need for the exemption.
(b) Competitors covered by the Council who are in compliance with the applicable Council agreements will not be materially prejudiced by the exemption.
(c) The applicant is not in arrears with respect to payment of Bargaining Council levies or employer or employee contributions and/or trade union/employer subscriptions and/or levies, or, if so, an agreed payment plan exists in respect of any such outstanding moneys. "Arrears", for this purpose, means any payment of Bargaining Council levies or employer or employee or trade union subscriptions which remain unpaid as at the last day of the month following the month in respect of which the payment is due.
(d) No infringement of the Basic Conditions of Employment Act or the Labour Relations Act will result if the exemption is granted, nor will the application, if granted, result in a conflict with the primary objectives of the Act.
(de) The exemption will not undermine collective bargaining and labour peace in the Industryindustry.
(ef) There has been compliance with subclause (3) above.
(fg) The majority of affected employees at the plant are in favour of the proposed exemption if it affects wages, benefit fund contributions, or levies. In such instance, either the employer, or the trade union may request that a ballot be conducted.
(8) In addition, the following criteria shall be taken into account by the Exemptions Committee and the Exemptions Board when determining applications for exemptions:
(a) The merits of the written and oral (if any) motivation provided by the applicant, the documentation supporting the application and, in particular, whether the applicant has made a compelling case for the exemption.
(b) Whether the applicant firm will constitute a viable concern after the expiry of the exemption.
(c) If the exemption sought is from any employee benefit fund, the sufficiency of the alternative benefit proposed by the applicant, including such factors as the cost to the employee, transferability, administration, management, costs, growth and stability.
(d) The terms . "Sufficiency" for the purposes of this subclause, means that in all material respects the exemption soughtalternative proposed is at least equal to, including the period thereof.
(e) Any existing or projected special financial, economic or other circumstances put forward by the applicant as reasons warranting the granting of an exemption, including what economic hardship the applicant will suffer if the applicant is refused: Provided that the Executive committee of the Council or the Exemptions Committee or the Exemptions Board may require the disclosure of such relevant, verifiable information as it deems fit in this regard.
(f) The history of the business entity and/or its shareholders, directors and owners within the Industry, including the period of its operation and in particular whether or not the entity is a new emerging enterprise or a small or medium enterprise (SME); and its history of compliance with Council agreements.
(g) Any representations made by the employees and/or their representatives, including a registered trade unionbetter than, the relevant Council or Executive Committee or Exemptions Committee and/or the parties to the Council and/or the relevant Regional Chamber of the Councilbenefit fund.
(h) Any possible alternatives which may be acceptable to the applicant and/or any other interested party in the circumstances.
(i) The cost, efficiency and administration of any conditions which the Executive Committee of the Council or the Exemptions Committee or the Exemptions Board may feel it necessary to impose.
(j) What cost-saving measures may have been implemented by the applicant other than those in respect of its cost of labour.
(k) What hardship may eventuate to employees in the event of the exemption being granted.
(l) Any relevant time limits contained in the Council's constitution and the Act, and in particular that any exemption or partial granting of an exemption shall be for a fixed, stipulated period.
(m) Any other relevant factors, including any decisions of the Council relevant to exemption applications.
(a) An applicant shall be entitled to apply on the prescribed form to the General Secretary of the Council for the extension of any exemption granted by either the Regional Exemptions Committee or the Exemptions Board. An application for extension shall contain such additional information as may be necessary and required to substantiate the request with reference to the criteria set out in subclause (7) above.
(b) The procedure and requirements for considering and determining an application for extension shall be in accordance with the provisions of subclause (4) above, read with the changes required by the context.
(10) Employers employing five or fewer employees shall, upon application to the Council through the General Secretary, be exempted from the provisions of this part of the Agreement.
Appears in 2 contracts
Sources: National Main Collective Agreement, National Main Collective Agreement
Exemptions. A. For any business entity registered with and falling within the Council's registered scope inasmuch as it relates to the scope of this part of the Agreement
(1) Any business entity, whether a party or a non-party to the Council, which is registered with and falls within the Council's registered scope for the purposes of this part of the Agreement may apply to the Council for exemption from any or all of the provisions of this part of the Agreement.
(2) All applications for exemption shall be made in writing on a prescribed form provided by the Council.
(3) All applications for exemption shall be motivated in accordance with the exemption criteria set out in subclause (7) below; shall be supported by relevant documentation and, in addition, shall contain the following information:
(a) The period for which the exemption is sought;
(b) the number of employees affected and how many of such employees are members of a registered trade union;
(c) the clauses and subclauses of this part of the Agreement from which the exemption is sought;
(d) satisfactory proof that the applicant has consulted, or will consult, its employees at plant level in respect of the exemption sought, which consultations shall include a registered party trade union, where such union has members employed at the workplace, and shall include the response resulting from such consultations; and
(e) the demonstrable commercial need of the applicant for the exemption sought.
(a) The General Secretary of the Council or the Regional Secretary of the Regional Chamber concerned, or in their absence any other officer designated by the Executive Committee, shall forthwith refer the full exemption application to the Exemptions Committee, which shall have delegated power to deal with such application on behalf of the Council.
(b) The Exemptions Committee shall consider and determine the application in accordance with the criteria set out in subclause (7) below, within 30 45 days from the date of lodgement of the application with the General Secretary, failing which the application shall be deemed to have been rejected.
(c) The Exemptions Committee may call for any further information or submissions it deems appropriate from the applicant, prior to making a decision. The time period stipulated in subclause (b) above may be extended by agreement between the applicant and the Committee by the period the applicant takes to furnish the additional information or submissions.
(d) The Exemptions Committee may, after considering the application in terms of the provisions and the criteria contained in this clause, grant, partially grant, or reject such application for exemption, and may impose any conditions on the granting or partial granting of any application it deems fit under the circumstances. If the applicant is not prepared to accept a partial granting of the application or any conditions imposed by the Exemptions Committee, the application shall be deemed to have been rejected.
(e) Subject to the time period for considering the application, referred to in subclause (b) above, should the Exemptions Committee be unable to agree, the application shall be deemed to have been rejected and the reasoning of the members of the Exemptions Committee who wish to reject the application shall constitute the reasons of the Committee for the purposes of subclause 4 (i) below.
(f) The Exemptions Committee shall notify the applicant of its decision within seven days of such decision having been reached.
(g) If the application has been granted or partially granted, the Exemptions Committee shall specify the following in its notification to the applicant:
(i) The conditions, if any, of its approval of the application;
(ii) the period for which the exemption(s) will be valid;
(iii) the clauses or subclauses of this part of the Agreement in respect of which exemption was granted or partially granted; and
(iv) the full name of the exempt employer or employee(s).
(h) Upon receipt of a written request, the Exemptions Committee shall provide brief written reasons for its decision to grant the exemption to any party which has an interest in the matter.
(i) If the application for exemption is rejected or partially approved, the Exemptions Committee shall provide concise written reasons for such rejection or partial approval to the applicant within seven days of its decision: Provided that such reasons given by the Exemptions Committee shall not bind the Independent Exemptions Body (Exemptions Board) in considering any appeal provided for in subclause (5) below since the latter may make a decision on appeal in accordance with such reasons as he or she deems appropriate, subject to the provisions of this clause insofar as it applies to the Independent Exemptions Body.
(a) Any decision of the Exemptions Committee to reject, partially approve or withdraw the application may be referred on appeal to the Independent Exemptions Body (Exemptions Board) hereby established in terms of the Act and the constitution of the Council. Such application shall be lodged within not more than 30 days of the applicant's being notified of the decision of the Exemptions Committee. The Exemptions Board may condone a late appeal on good cause shown.
(b) The Exemptions Board shall have the power to levy a fee payable by the appellant and to determine the quantum thereof: Provided that such fee shall be consistent with-
(i) the cost incurred for the hearing of the appeal;
(ii) the cost incurred by the Council for the hearing of the appeal where the Exemptions Board is satisfied that such an appeal is without merit.
(c) The Exemptions Board shall in addition, have the power to raise a cost order on the applicant in respect of costs incurred by the parties to the appeal where it is satisfied that it will be proper to do so on the basis that the appeal is so completely without merit that it would be justified in doing so.
(a) The Exemptions Board shall consist of a single independent umpire appointed by the parties from a panel selected for this purpose.
(b) The Exemptions Board shall determine the procedure to be adopted in determining the appeal.
(c) The provisions of subclause (4) above shall, read with the changes required by the context, apply equally to the appeal process.
(d) The decision of the Exemptions Board shall be final and binding.
(7) The applicant shall satisfy the Executive Committee of the Council or the Exemptions Committee and, where applicable, the Exemptions Board of the following:
(a) There is a demonstrable commercial need for the exemption.
(b) Competitors covered by the Council who are in compliance with the applicable Council agreements will not be materially prejudiced by the exemption.
(c) The applicant is not in arrears with respect to payment of Bargaining Council levies or employer or employee contributions and/or trade union/employer subscriptions and/or levies, or, if so, an agreed payment plan exists in respect of any such outstanding monies. "Arrears", for this purpose, means any payment of Bargaining Council levies or employer or employee or trade union subscriptions that remain unpaid as at the last day of the month following the month in respect of which the payment is due.
(d) No infringement of the Basic Conditions of Employment Act or the Labour Relations Act will result if the exemption is granted, nor will the application, if granted, result in a conflict with the primary objectives of the Act.
(de) The exemption will not undermine collective bargaining and labour peace in the Industry.
(ef) There has been compliance with subclause (3) above.
(fg) The majority of affected employees at the plant are in favour of the proposed exemption if it affects wages, benefit fund contributions, or levies. In such instance, either the employer, or the trade union may request that a ballot be conducted.
(8) In addition, the following criteria shall be taken into account by the Exemptions Committee and the Exemptions Board when determining applications for exemptions:
(a) The merits of the written and oral (if any) motivation provided by the applicant, the documentation supporting the application and, in particular, whether the applicant has made a compelling case for the exemption.
(b) Whether the applicant firm will constitute a viable concern after the expiry of the exemption.
(c) If the exemption sought is from any employee benefit fund, the sufficiency of the alternative benefit proposed by the applicant, including such factors as the cost to the employee, transferability, administration, management, costs, growth and stability.
(d) The terms . "Sufficiency", for the purposes of this subclause, means that in all material respects the exemption soughtalternative proposed is at least equal to, including the period thereof.
(e) Any existing or projected special financial, economic or other circumstances put forward by the applicant as reasons warranting the granting of an exemption, including what economic hardship the applicant will suffer if the applicant is refused: Provided that the Executive committee of the Council or the Exemptions Committee or the Exemptions Board may require the disclosure of such relevant, verifiable information as it deems fit in this regard.
(f) The history of the business entity and/or its shareholders, directors and owners within the Industry, including the period of its operation and in particular whether or not the entity is a new emerging enterprise or a small or medium enterprise (SME); and its history of compliance with Council agreements.
(g) Any representations made by the employees and/or their representatives, including a registered trade unionbetter than, the relevant Council or Executive Committee or Exemptions Committee and/or the parties to the Council and/or the relevant Regional Chamber of the Councilbenefit fund.
(h) Any possible alternatives which may be acceptable to the applicant and/or any other interested party in the circumstances.
(i) The cost, efficiency and administration of any conditions which the Executive Committee of the Council or the Exemptions Committee or the Exemptions Board may feel it necessary to impose.
(j) What cost-saving measures may have been implemented by the applicant other than those in respect of its cost of labour.
(k) What hardship may eventuate to employees in the event of the exemption being granted.
(l) Any relevant time limits contained in the Council's constitution and the Act, and in particular that any exemption or partial granting of an exemption shall be for a fixed, stipulated period.
(m) Any other relevant factors, including any decisions of the Council relevant to exemption applications.
(a) An applicant shall be entitled to apply on the prescribed form to the General Secretary of the Council for the extension of any exemption granted by either the Regional Exemptions Committee or the Exemptions Board. An application for extension shall contain such additional information as may be necessary and required to substantiate the request with reference to the criteria set out in subclause (7) above.
(b) The procedure and requirements for considering and determining an application for extension shall be in accordance with the provisions of subclause (4) above, read with the changes required by the context.
(10) Employers employing five or fewer employees shall, upon application to the Council through the General Secretary, be exempted from the provisions of this part of the Agreement.
Appears in 2 contracts
Sources: National Main Collective Agreement, National Main Collective Agreement
Exemptions. A. For any business entity registered with and falling within the Council's registered scope inasmuch as it relates to the scope of this part of the Agreement
(1) Any business entity, whether a party or a non-party to the Council, which is registered with and falls within the Council's registered scope for the purposes of this part of the Agreement may apply to the Council for exemption from any or all of the provisions of this part of the Agreement.
(2) All applications for exemption shall be made in writing on a prescribed form provided by the Council.
(3) All applications for exemption shall be motivated in accordance with the exemption criteria set out in subclause (7) below; shall be supported by relevant documentation and, in addition, shall contain the following information:
(a) The period for which the exemption is sought;
(b) the number of employees affected and how many of such employees are members of a registered trade union;
(c) the clauses and subclauses of this part of the Agreement from which the exemption is sought;
(d) satisfactory proof that the applicant has consulted, or will consult, its employees at plant level in respect of the exemption sought, which consultations shall include a registered party trade union, where such union has members employed at the workplace, and shall include the response resulting from such consultations; and
(e) the demonstrable commercial need of the applicant for the exemption sought.
(a) The General Secretary of the Council or the Regional Secretary of the Regional Chamber concerned, or in their absence any other officer designated by the Executive Committee, shall forthwith refer the full exemption application to the Exemptions Committee, which shall have delegated power to deal with such application on behalf of the Council.
(b) The Exemptions Committee shall consider and determine the application in accordance with the criteria set out in subclause (7) below, within 30 45 days from the date of lodgement of the application with the General Secretary, failing which the application shall be deemed to have been rejectedrefused.
(c) The Exemptions Committee may call for any further information or submissions it deems appropriate from the applicant, prior to making a decision. The time period stipulated in subclause (b) above may be extended by agreement between the applicant and the Committee by the period the applicant takes to furnish the additional information or submissions.
(d) The Exemptions Committee may, after considering the application in terms of the provisions and the criteria contained in this clause, grant, partially grant, or reject such application for exemption, and may impose any conditions on the granting or partial granting of any application it deems fit under the circumstances. If the applicant is not prepared to accept a partial granting of the application or any conditions imposed by the Exemptions Committee, the application shall be deemed to have been rejected.
(e) Subject to the time period for considering the application, referred to in subclause (b) above, should the Exemptions Committee be unable to agree, the application shall be deemed to have been rejected and the reasoning of the members of the Exemptions Committee who wish to reject the application shall constitute the reasons of the Committee for the purposes of subclause 4 (i) below.
(f) The Exemptions Committee shall notify the applicant of its decision within seven days of such decision having been reached.
(g) If the application has been granted or partially granted, the Exemptions Committee shall specify the following in its notification to the applicant:
(i) The conditions, if any, of its approval of the application;
(ii) the period for which the exemption(s) will be valid;
(iii) the clauses or subclauses of this part of the Agreement in respect of which exemption was granted or partially granted; and
(iv) the full name of the exempt employer or employee(s).
(h) Upon receipt of a written request, the Exemptions Committee shall provide brief written reasons for its decision to grant the exemption to any party which has an interest in the matter.
(i) If the application for exemption is rejected or partially approved, the Exemptions Committee shall provide concise written reasons for such rejection or partial approval to the applicant within seven days of its decision: Provided that such reasons given by the Exemptions Committee shall not bind the Independent Exemptions Body (Exemptions Board) in considering any appeal provided for in subclause (5) below since the latter may make a decision on appeal in accordance with such reasons as he or she deems appropriate, subject to the provisions of this clause insofar as it applies to the Independent Exemptions Body.
(a) Any decision of the Exemptions Committee to reject, partially approve or withdraw the application may be referred on appeal to the Independent Exemptions Body (Exemptions Board) hereby established in terms of the Act and the constitution of the Council. Such application shall be lodged within not more than 30 days of the applicant's being notified of the decision of the Exemptions Committee. The Exemptions Board may condone a late appeal on good cause shown.
(b) The Exemptions Board shall have the power to levy a fee payable by the appellant and to determine the quantum thereof: Provided that such fee shall be consistent with-
(i) the cost incurred for the hearing of the appeal;
(ii) the cost incurred by the Council for the hearing of the appeal where the Exemptions Board is satisfied that such an appeal is without merit.
(c) The Exemptions Board shall in addition, have the power to raise a cost order on the applicant in respect of costs incurred by the parties to the appeal where it is satisfied that it will be proper to do so on the basis that the appeal is so completely without merit that it would be justified in doing so.
(a) The Exemptions Board shall consist of a single independent umpire appointed by the parties from a panel selected for this purpose.
(b) The Exemptions Board shall determine the procedure to be adopted in determining the appeal.
(c) The provisions of subclause (4) above shall, read with the changes required by the context, apply equally to the appeal process.
(d) The decision of the Exemptions Board shall be final and binding.
(7) The applicant shall satisfy the Executive Committee of the Council or the Exemptions Committee and, where applicable, the Exemptions Board of the following:
(a) There is a demonstrable commercial need for the exemption.
(b) Competitors covered by the Council who are in compliance with the applicable Council agreements will not be materially prejudiced by the exemption.
(c) No infringement of the Basic Conditions of Employment Act or the Labour Relations Act will result if the exemption is granted, nor will the application, if granted, result in a conflict with the primary objectives of the Act.
(d) The exemption will not undermine collective bargaining and labour peace in the Industry.
(e) There has been compliance with subclause (3) above.
(f) The majority of affected employees at the plant are in favour of the proposed exemption if it affects wages, benefit fund contributions, or levies. In such instance, either the employer, or the trade union may request that a ballot be conducted.
(8) In addition, the following criteria shall be taken into account by the Exemptions Committee and the Exemptions Board when determining applications for exemptions:
(a) The merits of the written and oral (if any) motivation provided by the applicant, the documentation supporting the application and, in particular, whether the applicant has made a compelling case for the exemption.
(b) Whether the applicant firm will constitute a viable concern after the expiry of the exemption.
(c) If the exemption sought is from any employee benefit fund, the sufficiency of the alternative benefit proposed by the applicant, including such factors as the cost to the employee, transferability, administration, management, costs, growth and stability.
(d) The terms of the exemption sought, including the period thereof.
(e) Any existing or projected special financial, economic or other circumstances put forward by the applicant as reasons warranting the granting of an exemption, including what economic hardship the applicant will suffer if the applicant is refused: Provided that the Executive committee of the Council or the Exemptions Committee or the Exemptions Board may require the disclosure of such relevant, verifiable information as it deems fit in this regard.
(f) The history of the business entity and/or its shareholders, directors and owners within the Industry, including the period of its operation and in particular whether or not the entity is a new emerging enterprise or a small or medium enterprise (SME); and its history of compliance with Council agreements.
(g) Any representations made by the employees and/or their representatives, including a registered trade union, the Council or Executive Committee or Exemptions Committee and/or the parties to the Council and/or the relevant Regional Chamber of the Council.
(h) Any possible alternatives which may be acceptable to the applicant and/or any other interested party in the circumstances.
(i) The cost, efficiency and administration of any conditions which the Executive Committee of the Council or the Exemptions Committee or the Exemptions Board may feel it necessary to impose.
(j) What cost-saving measures may have been implemented by the applicant other than those in respect of its cost of labour.
(k) What hardship may eventuate to employees in the event of the exemption being granted.
(l) Any relevant time limits contained in the Council's constitution and the Act, and in particular that any exemption or partial granting of an exemption shall be for a fixed, stipulated period.
(m) Any other relevant factors, including any decisions of the Council relevant to exemption applications.
(a) An applicant shall be entitled to apply on the prescribed form to the General Secretary of the Council for the extension of any exemption granted by either the Regional Exemptions Committee or the Exemptions Board. An application for extension shall contain such additional information as may be necessary and required to substantiate the request with reference to the criteria set out in subclause (7) above.
(b) The procedure and requirements for considering and determining an application for extension shall be in accordance with the provisions of subclause (4) above, read with the changes required by the context.
(10) Employers employing five or fewer employees shall, upon application to the Council through the General Secretary, be exempted from the provisions of this part of the Agreement.
Appears in 2 contracts
Sources: Consolidated Provident Fund Collective Agreement, Consolidated Provident Fund Collective Agreement
Exemptions. A. For any business entity registered with and falling within the Council's registered scope inasmuch as it relates to the scope of this part of the Agreement
(1) Any business entity, whether a party or a non-party to the Council, which is registered with and falls within the Council's registered scope for the purposes of this part of the Agreement may apply to the Council for exemption from any or all of the provisions of this part of the Agreement.
(2) All applications for exemption shall be made in writing on a prescribed form provided by the Council.
(3) All applications for exemption shall be motivated in accordance with the exemption criteria set out in subclause (7) below; shall be supported by relevant documentation and, in addition, shall contain the following information:
(a) The the period for which the exemption is sought;
(b) the number of employees affected and how many of such employees are members of a registered trade union;
(c) the clauses and subclauses of this part of the Agreement from which the exemption is sought;
(d) satisfactory proof that the applicant has consulted, or will consult, its employees at plant level in respect of the exemption sought, which consultations shall include a registered party trade union, where such union has members employed at the workplace, and shall include the response resulting from such consultations; and
(e) the demonstrable commercial need of the applicant for the exemption sought.
(a) The General Secretary of the Council or the Regional Secretary of the Regional Chamber concerned, or in their absence any other officer designated by the Executive Committee, shall forthwith refer the full exemption application to the Exemptions Committee, which shall have delegated power to deal with such application on behalf of the Council.
(b) The Exemptions Committee shall consider and determine the application in accordance with the criteria set out in subclause (7) below, within 30 45 days from the date of lodgement of the application with the General Secretary, failing which the application shall be deemed to have been rejectedrefused.
(c) The Exemptions Committee may call for any further information or submissions it deems appropriate from the applicant, prior to making a decision. The time period stipulated in subclause (b) above may be extended by agreement between the applicant and the Committee by the period the applicant takes to furnish the additional information or submissions.
(d) The Exemptions Committee may, after considering the application in terms of the provisions and the criteria contained in this clause, grant, partially grant, or reject such application for exemption, and may impose any conditions on the granting or partial granting of any application it deems fit under the circumstances. If the applicant is not prepared to accept a partial granting of the application or any conditions imposed by the Exemptions Committee, the application shall be deemed to have been rejected.
(e) Subject to the time period for considering the application, referred to in subclause (b) above, should the Exemptions Committee be unable to agree, the application shall be deemed to have been rejected and the reasoning of the members of the Exemptions Committee who wish to reject the application shall constitute the reasons of the Committee for the purposes of subclause 4 4
(i) below.
(f) The Exemptions Committee shall notify the applicant of its decision within seven days of such decision having been reached.
(g) If the application has been granted or partially granted, the Exemptions Committee shall specify the following in its notification to the applicant:
(i) The the conditions, if any, of its approval of the application;
; (ii) the period for which the exemption(s) will be valid;
(iii) the clauses or subclauses of this part of the Agreement in respect of which exemption was granted or partially granted; and
(iv) the full name of the exempt employer or employee(s).
(h) Upon receipt of a written request, the Exemptions Committee shall provide brief written reasons for its decision to grant the exemption to any party which has an interest in the matter.
(i) If the application for exemption is rejected or partially approved, the Exemptions Committee shall provide concise written reasons for such rejection or partial approval to the applicant within seven days of its decision: Provided that such reasons given by the Exemptions Committee shall not bind the Independent Exemptions Body (Exemptions Board) in considering any appeal provided for in subclause (5) below since the latter may make a decision on appeal in accordance with such reasons as he or she deems appropriate, subject to the provisions of this clause insofar as it applies to the Independent Exemptions Body.
(a) Any decision of the Exemptions Committee to reject, partially approve or withdraw the application may be referred on appeal to the Independent Exemptions Body (Exemptions Board) hereby established in terms of the Act and the constitution of the Council. Such application shall be lodged within not more than 30 days of the applicant's being notified of the decision of the Exemptions Committee. The Exemptions Board may condone a late appeal on good cause shown.
(b) The Exemptions Board shall have the power to levy a fee payable by the appellant and to determine the quantum thereof: Provided that such fee shall be consistent with-
(i) the cost incurred for the hearing of the appeal;
(ii) the cost incurred by the Council for the hearing of the appeal where the Exemptions Board is satisfied that such an appeal is without merit.
(c) The Exemptions Board shall in addition, have the power to raise a cost order on the applicant in respect of costs incurred by the parties to the appeal where it is satisfied that it will be proper to do so on the basis that the appeal is so completely without merit that it would be justified in doing so.
(a) The Exemptions Board shall consist of a single independent umpire appointed by the parties from a panel selected for this purpose.
(b) The Exemptions Board shall determine the procedure to be adopted in determining the appeal.
(c) The provisions of subclause (4) above shall, read with the changes required by the context, apply equally to the appeal process.
(d) The decision of the Exemptions Board shall be final and binding.
(7) The applicant shall satisfy the Executive Committee of the Council or the Exemptions Committee and, where applicable, the Exemptions Board of the following:
(a) There is a demonstrable commercial need for the exemption.
(b) Competitors covered by the Council who are in compliance with the applicable Council agreements will not be materially prejudiced by the exemption.
(c) No infringement of the Basic Conditions of Employment Act or the Labour Relations Act will result if the exemption is granted, nor will the application, if granted, result in a conflict with the primary objectives of the Act.
(d) The exemption will not undermine collective bargaining and labour peace in the Industry.
(e) There has been compliance with subclause (3) above.
(f) The majority of affected employees at the plant are in favour of the proposed exemption if it affects wages, benefit fund contributions, or levies. In such instance, either the employer, or the trade union may request that a ballot be conducted.
(8) In addition, the following criteria shall be taken into account by the Exemptions Committee and the Exemptions Board when determining applications for exemptions:
(a) The merits of the written and oral (if any) motivation provided by the applicant, the documentation supporting the application and, in particular, whether the applicant has made a compelling case for the exemption.
(b) Whether the applicant firm will constitute a viable concern after the expiry of the exemption.
(c) If the exemption sought is from any employee benefit fund, the sufficiency of the alternative benefit proposed by the applicant, including such factors as the cost to the employee, transferability, administration, management, costs, growth and stability.
(d) The terms of the exemption sought, including the period thereof.
(e) Any existing or projected special financial, economic or other circumstances put forward by the applicant as reasons warranting the granting of an exemption, including what economic hardship the applicant will suffer if the applicant is refused: Provided that the Executive committee of the Council or the Exemptions Committee or the Exemptions Board may require the disclosure of such relevant, verifiable information as it deems fit in this regard.
(f) The history of the business entity and/or its shareholders, directors and owners within the Industry, including the period of its operation and in particular whether or not the entity is a new emerging enterprise or a small or medium enterprise (SME); and its history of compliance with Council agreements.
(g) Any representations made by the employees and/or their representatives, including a registered trade union, the Council or Executive Committee or Exemptions Committee and/or the parties to the Council and/or the relevant Regional Chamber of the Council.
(h) Any possible alternatives which may be acceptable to the applicant and/or any other interested party in the circumstances.
(i) The cost, efficiency and administration of any conditions which the Executive Committee of the Council or the Exemptions Committee or the Exemptions Board may feel it necessary to impose.
(j) What cost-saving measures may have been implemented by the applicant other than those in respect of its cost of labour.
(k) What hardship may eventuate to employees in the event of the exemption being granted.
(l) Any relevant time limits contained in the Council's constitution and the Act, and in particular that any exemption or partial granting of an exemption shall be for a fixed, stipulated period.
(m) Any other relevant factors, including any decisions of the Council relevant to exemption applications.
(a) An applicant shall be entitled to apply on the prescribed form to the General Secretary of the Council for the extension of any exemption granted by either the Regional Exemptions Committee or the Exemptions Board. An application for extension shall contain such additional information as may be necessary and required to substantiate the request with reference to the criteria set out in subclause (7) above.
(b) The procedure and requirements for considering and determining an application for extension shall be in accordance with the provisions of subclause (4) above, read with the changes required by the context.
(10) Employers employing five or fewer employees shall, upon application to the Council through the General Secretary, be exempted from the provisions of this part of the Agreement.
Appears in 1 contract
Sources: National Main Collective Agreement
Exemptions. A. (A) For any business entity registered with and falling within the Council's registered scope inasmuch Inasmuch as it relates to the scope of this part of the Agreement
(1) Any business entity, whether a party or a non-party to the Council, which is registered with and falls within the Council's registered scope for the purposes of this part of the Agreement may apply to the Council for exemption from any or all of the provisions of this part of the Agreement.
(2) All applications for exemption shall be made in writing on a prescribed form provided by the Council.
(3) All applications for exemption shall be motivated in accordance with the exemption criteria set out in subclause (7) below; shall be supported by relevant documentation and, in addition, shall contain the following information:
(a) The period for which the exemption is sought;
(b) the number of employees affected and how many of such employees are members of a registered trade union;
(c) the clauses and subclauses of this part of the Agreement from which the exemption is sought;
(d) satisfactory proof that the applicant has consulted, or will consult, its employees at plant level in respect of the exemption sought, which consultations shall include a registered party trade union, where such union has members employed at the workplace, and shall include the response resulting from such consultations; and
(e) the demonstrable commercial need of the applicant for the exemption sought.
(a) The General Secretary of the Council or the Regional Secretary of the Regional Chamber concerned, or in their absence any other officer designated by the Executive Committee, shall forthwith refer the full exemption application to the Exemptions Committee, which shall have delegated power to deal with such application on behalf of the Council.
(b) The Exemptions Committee shall consider and determine the application in accordance with the criteria set out in subclause (7) below, within 30 45 days from the date of lodgement of the application with the General Secretary, failing which the application shall be deemed to have been rejected.
(c) The Exemptions Committee may call for any further information or submissions it deems appropriate from the applicant, prior to making a decision. The time period stipulated in subclause (b) above may be extended by agreement between the applicant and the Committee by the period the applicant takes to furnish the additional information or submissions.
(d) The Exemptions Committee may, after considering the application in terms of the provisions and the criteria contained in this clause, grant, partially grant, or reject such application for exemption, and may impose any conditions on the granting or partial granting of any application it deems fit under the circumstances. If the applicant is not prepared to accept a partial granting of the application or any conditions imposed by the Exemptions Committee, the application shall be deemed to have been rejected.
(e) Subject to the time period for considering the application, application referred to in subclause (b) above, should the Exemptions Committee be unable to agree, the application shall be deemed to have been rejected and the reasoning of the members of the Exemptions Committee who wish to reject the application shall constitute the reasons of the Committee for the purposes of subclause 4 (i) below.
(f) The Exemptions Committee shall notify the applicant of its decision within seven days of such decision having been reached.
(g) If the application has been granted or partially granted, the Exemptions Committee shall specify the following in its notification to the applicant:
(i) The conditions, if any, of its approval of the application;
(ii) the period for which the exemption(s) will be valid;
(iii) the clauses or subclauses of this part of the Agreement in respect of which exemption was granted or partially granted; and
(iv) the full name of the exempt employer or employee(s).
(h) Upon receipt of a written request, the Exemptions Committee shall provide brief written reasons for its decision to grant the exemption to any party which has an interest in the matter.
(i) If the application for exemption is rejected or partially approved, the Exemptions Committee shall provide concise written reasons for such rejection or partial approval to the applicant within seven days of its decision: Provided that such reasons given by the Exemptions Committee shall not bind the Independent Exemptions Body (Exemptions Board) in considering any appeal provided for in subclause (5) below since the latter may make a decision on appeal in accordance with such reasons as he or she deems appropriate, subject to the provisions of this clause insofar as it applies to the Independent Exemptions Body.
(a) Any decision of the Exemptions Committee to reject, partially approve or withdraw the application may be referred on appeal to the Independent Exemptions Body (Exemptions Board) hereby established in terms of the Act and the constitution of the Council. Such application shall be lodged within not more than 30 days of the applicant's being notified of the decision of the Exemptions Committee. The Exemptions Board may condone a late appeal on good cause shown.
(b) The Exemptions Board shall have the power to levy a fee payable by the appellant and to determine the quantum thereof: Provided that such fee shall be consistent with-
(i) the cost incurred for the hearing of the appeal;
(ii) the cost incurred by the Council for the hearing of the appeal where the Exemptions Board is satisfied that such an appeal is without merit.
(c) The Exemptions Board shall shall, in addition, have the power to raise a cost order on the applicant in respect of costs incurred by the parties to the appeal where it is satisfied that it will be proper to do so on the basis that the appeal is so completely without merit that it would be justified in doing so.
(a) The Exemptions Board shall consist of a single independent umpire appointed by the parties from a panel selected for this purpose.
(b) The Exemptions Board shall determine the procedure to be adopted in determining the appeal.
(c) The provisions of subclause (4) above shall, read with the changes required by the context, apply equally to the appeal process.
(d) The decision of the Exemptions Board shall be final and binding.
(7) The applicant shall satisfy the Executive Committee of the Council or the Exemptions Committee and, where applicable, the Exemptions Board of the following:
(a) There is a demonstrable commercial need for the exemption.
(b) Competitors covered by the Council who are in compliance with the applicable Council agreements will not be materially prejudiced by the exemption.
(c) The applicant is not in arrears with respect to payment of Bargaining Council levies or employer or employee contributions and/or trade union/employer subscriptions and/or levies, or, if so, an agreed payment plan exists in respect of any such outstanding monies. "Arrears", for this purpose, means any payment of Bargaining Council levies or employer or employee or trade union subscriptions which remain unpaid as at the last day of the month following the month in respect of which the payment is due.
(d) No infringement of the Basic Conditions of Employment Act or the Labour Relations Act will result if the exemption is granted, nor will the application, if granted, granted result in a conflict with the primary objectives of the Act.
(de) The exemption will not undermine collective bargaining and labour peace in the Industryindustry.
(ef) There has been compliance with subclause (3) above.
(fg) The majority of affected employees at the plant are in favour of the proposed exemption if it affects wages, benefit fund contributions, or levies. In such instance, either the employer, or the trade union may request that a ballot be conducted.
(8) In addition, the following criteria shall be taken into account by the Exemptions Committee and the Exemptions Board when determining applications for exemptions:
(a) The merits of the written and oral (if any) motivation provided by the applicant, the documentation supporting the application and, in particular, whether the applicant has made a compelling case for the exemption.
(b) Whether the applicant firm will constitute a viable concern after the expiry of the exemption.
(c) If the exemption sought is from any employee benefit fund, the sufficiency of the alternative benefit proposed by the applicant, including such factors as the cost to the employee, transferability, administration, management, costs, growth and stability.
(d) The terms . "Sufficiency", for the purposes of this subclause, means that in all material respects the exemption soughtalternative proposed is at least equal to, including the period thereof.
(e) Any existing or projected special financial, economic or other circumstances put forward by the applicant as reasons warranting the granting of an exemption, including what economic hardship the applicant will suffer if the applicant is refused: Provided that the Executive committee of the Council or the Exemptions Committee or the Exemptions Board may require the disclosure of such relevant, verifiable information as it deems fit in this regard.
(f) The history of the business entity and/or its shareholders, directors and owners within the Industry, including the period of its operation and in particular whether or not the entity is a new emerging enterprise or a small or medium enterprise (SME); and its history of compliance with Council agreements.
(g) Any representations made by the employees and/or their representatives, including a registered trade unionbetter than, the relevant Council or Executive Committee or Exemptions Committee and/or the parties to the Council and/or the relevant Regional Chamber of the Councilbenefit fund.
(h) Any possible alternatives which may be acceptable to the applicant and/or any other interested party in the circumstances.
(i) The cost, efficiency and administration of any conditions which the Executive Committee of the Council or the Exemptions Committee or the Exemptions Board may feel it necessary to impose.
(j) What cost-saving measures may have been implemented by the applicant other than those in respect of its cost of labour.
(k) What hardship may eventuate to employees in the event of the exemption being granted.
(l) Any relevant time limits contained in the Council's constitution and the Act, and in particular that any exemption or partial granting of an exemption shall be for a fixed, stipulated period.
(m) Any other relevant factors, including any decisions of the Council relevant to exemption applications.
(a) An applicant shall be entitled to apply on the prescribed form to the General Secretary of the Council for the extension of any exemption granted by either the Regional Exemptions Committee or the Exemptions Board. An application for extension shall contain such additional information as may be necessary and required to substantiate the request with reference to the criteria set out in subclause (7) above.
(b) The procedure and requirements for considering and determining an application for extension shall be in accordance with the provisions of subclause (4) above, read with the changes required by the context.
(10) Employers employing five or fewer employees shall, upon application to the Council through the General Secretary, be exempted from the provisions of this part of the Agreement.
Appears in 1 contract
Sources: National Main Collective Agreement
Exemptions. A. For any business entity registered with and falling within the Council's registered scope inasmuch as it relates to the scope of this part of the Agreement
(1) Any business entity, whether a party or a non-party to the Council, which is registered with and falls within the Council's registered scope for the purposes of this part of the Agreement may apply to the Council for exemption from any or all of the provisions of this part of the Agreement.
(2) All applications for exemption shall be made in writing on a prescribed form provided by the Council.
(3) All applications for exemption shall be motivated in accordance with the exemption criteria set out in subclause (7) below; shall be supported by relevant documentation and, in addition, shall contain the following information:
(a) The period for which the exemption is sought;
(b) the number of employees affected and how many of such employees are members of a registered trade union;
(c) the clauses and subclauses of this part of the Agreement from which the exemption is sought;
(d) satisfactory proof that the applicant has consulted, or will consult, its employees at plant level in respect of the exemption sought, which consultations shall include a registered party trade union, where such union has members employed at the workplace, and shall include the response resulting from such consultations; and
(e) the demonstrable commercial need of the applicant for the exemption sought.
(a) The General Secretary of the Council or the Regional Secretary of the Regional Chamber concerned, or in their absence any other officer designated by the Executive Committee, shall forthwith refer the full exemption application to the Exemptions Committee, which shall have delegated power to deal with such application on behalf of the Council.
(b) The Exemptions Committee shall consider and determine the application in accordance with the criteria set out in subclause (7) 7 below, within 30 45 days from the date of lodgement lodgment of the application with the General Secretary, failing which the application shall be deemed to have been rejectedrefused.
(c) The Exemptions Committee may call for any further information or submissions it deems appropriate from the applicant, prior to making a decision. The time period stipulated in subclause (b) above may be extended by agreement between the applicant and the Committee by the period the applicant takes to furnish the additional information or submissions.
(d) The Exemptions Committee may, after considering the application in terms of the provisions and the criteria contained in this clause, grant, partially grant, or reject such application for exemption, and may impose any conditions on the granting or partial granting of any application it deems fit under the circumstances. If the applicant is not prepared to accept a partial granting of the application or any conditions imposed by the Exemptions Committee, the application shall be deemed to have been rejected.
(e) Subject to the time period for considering the application, application referred to in subclause (b) above, should the Exemptions Committee be unable to agree, the application shall be deemed to have been rejected and the reasoning of the members of the Exemptions Committee who wish to reject the application shall constitute the reasons of the Committee for the purposes of subclause 4 (i) below.
(f) The Exemptions Committee shall notify the applicant of its decision within seven days of such decision having been reached.
(g) If the application has been granted or partially granted, the Exemptions Committee shall specify the following in its notification to the applicant:
(i) The conditions, if any, of its approval of the application;
(ii) the period for which the exemption(s) will be valid;'
(iii) the clauses or subclauses of this part of the Agreement in respect of which exemption was granted or partially granted; and
(iv) the full name of the exempt employer or employee(s).
(h) Upon receipt of a written request, the Exemptions Committee shall provide brief written reasons for its decision to grant the exemption to any party which has an interest in the matter.
(i) If the application for exemption is rejected or partially approved, the Exemptions Committee shall provide concise written reasons for such rejection or partial approval to the applicant within seven days of its decision: Provided that such reasons given by the Exemptions Committee shall not bind the Independent Exemptions Body (Exemptions Board) in considering any appeal provided for in subclause (5) below since the latter may make a decision on appeal in accordance with such reasons as he or she deems appropriate, subject to the provisions of this clause insofar as it applies to the Independent Exemptions Body.
(a) Any decision of the Exemptions Committee to reject, partially approve or withdraw the application may be referred on appeal to the Independent Exemptions Body (Exemptions Board) hereby established in terms of the Act and the constitution of the Council. Such application shall be lodged within not more than 30 days of the applicant's being notified of the decision of the Exemptions Committee. The Exemptions Board may condone a late appeal on good cause shown.
(b) The Exemptions Board shall have the power to levy a fee payable by the appellant and to determine the quantum thereof: Provided that such a fee shall be consistent with-
(i) the cost incurred for the hearing of the appeal;
(ii) the cost incurred by the Council for the hearing of the appeal where the Exemptions Board is satisfied that such an appeal is without merit.
(c) The Exemptions Board shall shall, in addition, have the power to raise a cost order on the applicant in respect of costs incurred by the parties to the appeal where it is satisfied that it will be proper to do so on the basis that the appeal is so completely without merit that it would be justified in doing so.
(a) The Exemptions Board shall consist of a single independent umpire appointed by the parties from a panel selected for this purpose.
(b) The Exemptions Board shall determine the procedure to be adopted in determining the appeal.
(c) The provisions of subclause (4) above shall, read with the changes required by the context, apply equally to the appeal process.
(d) The decision of the Exemptions Board shall be final and binding.
(7) The applicant shall satisfy the Executive Committee of the Council or the Exemptions Committee and, where applicable, the Exemptions Board of the following:
(a) There is a demonstrable commercial need for the exemption.
(b) Competitors covered by the Council who are in compliance with the applicable Council agreements will not be materially prejudiced by the exemption.
(c) No infringement of the Basic Conditions of Employment Act or the Labour Relations Act will result if the exemption is granted, nor will the application, if granted, result in a conflict with the primary objectives of the Act.
(d) The exemption will not undermine collective bargaining and labour peace in the Industry.
(e) There has been compliance with subclause (3) above.
(f) The majority of affected employees at the plant are in favour of the proposed exemption if it affects wages, benefit fund contributions, or levies. In such instance, either the employer, or the trade union may request that a ballot be conducted.
(8) In addition, the following criteria shall be taken into account by the Exemptions Committee and the Exemptions Board when determining applications for exemptions:
(a) The merits of the written and oral (if any) motivation provided by the applicant, the documentation supporting the application and, in particular, whether the applicant has made a compelling case for the exemption.
(b) Whether the applicant firm will constitute a viable concern after the expiry of the exemption.
(c) If the exemption sought is from any employee benefit fund, the sufficiency of the alternative benefit proposed by the applicant, including such factors as the cost to the employee, transferability, administration, management, costs, growth and stability.
(d) The terms of the exemption sought, including the period thereof.
(e) Any existing or projected special financial, economic or other circumstances put forward by the applicant as reasons warranting the granting of an exemption, including what economic hardship the applicant will suffer if the applicant is refused: Provided that the Executive committee of the Council or the Exemptions Committee or the Exemptions Board may require the disclosure of such relevant, verifiable information as it deems fit in this regard.
(f) The history of the business entity and/or its shareholders, directors and owners within the Industry, including the period of its operation and in particular whether or not the entity is a new emerging enterprise or a small or medium enterprise (SME); and its history of compliance with Council agreements.
(g) Any representations made by the employees and/or their representatives, including a registered trade union, the Council or Executive Committee or Exemptions Committee and/or the parties to the Council and/or the relevant Regional Chamber of the Council.
(h) Any possible alternatives which may be acceptable to the applicant and/or any other interested party in the circumstances.
(i) The cost, efficiency and administration of any conditions which the Executive Committee of the Council or the Exemptions Committee or the Exemptions Board may feel it necessary to impose.
(j) What cost-saving measures may have been implemented by the applicant other than those in respect of its cost of labour.
(k) What hardship may eventuate to employees in the event of the exemption being granted.
(l) Any relevant time limits contained in the Council's constitution and the Act, and in particular that any exemption or partial granting of an exemption shall be for a fixed, stipulated period.
(m) Any other relevant factors, including any decisions of the Council relevant to exemption applications.
(a) An applicant shall be entitled to apply on the prescribed form to the General Secretary of the Council for the extension of any exemption granted by either the Regional Exemptions Committee or the Exemptions Board. An application for extension shall contain such additional information as may be necessary and required to substantiate the request with reference to the criteria set out in subclause (7) above.
(b) The procedure and requirements for considering and determining an application for extension shall be in accordance with the provisions of subclause (4) above, read with the changes required by the context.
(10) Employers employing five or fewer employees shall, upon application to the Council through the General Secretary, be exempted from the provisions of this part of the Agreement.
Appears in 1 contract
Sources: National Main Collective Agreement
Exemptions. A. For any business entity registered with and falling within the Council's registered scope inasmuch as it relates to the scope of this part of the Agreement
(1) Any business entity, whether a party or a non-party to the Council, which is registered with with, and falls within within, the Council's registered scope for the purposes of this part of the Agreement Agreement, may apply to the Council for exemption from any or all of the provisions of this part of the Agreement.
(2) All applications for exemption shall must be made in writing on a prescribed form provided by the Council.
(3) All applications for exemption shall must be motivated in accordance with the exemption criteria set out in subclause sub-clause (7) below; shall must be supported by relevant documentation and, and in addition, shall addition must contain the following information:
(a) The period for which the exemption is sought;
(b) the The number of employees affected and how many of such employees are members of a registered trade union;
(c) the The clauses and subclauses of this part sub-clauses of the Agreement agreement from which the exemption is soughtrequested;
(d) satisfactory Satisfactory proof that the applicant has consulted, or will consult, its employees at plant level in respect of the exemption sought, which such consultations shall to include a registered party trade union, where such union has members employed at the workplace, and shall include including the response resulting from such consultations; and.
(e) the The demonstrable commercial need of the applicant for the exemption sought.
(a) The General Secretary of the Council or the Regional Secretary of the Regional Chamber concerned, or in their absence any other officer person designated by the Executive Committee, shall forthwith refer the full exemption application to the Exemptions Committee, which shall have delegated power to deal with such application on behalf of the Council.
(b) The Exemptions Committee shall consider and determine the application in accordance with the criteria set out in subclause sub-clause (7) below, within 30 45 days from the date of lodgement of the application with the General Secretary, failing which the application shall will be deemed to have been rejectedrefused.
(c) The Exemptions Committee may call for any further information or submissions as it deems appropriate from the applicant, prior to making a decision. The time period stipulated in subclause sub-clause (b) above above, may be extended by agreement between the applicant and the Committee committee by the period the applicant takes to furnish the additional information or submissions.
(d) The Exemptions Committee may, after considering the application in terms of the provisions and the criteria contained in this clause, grant, partially grant, or reject such application for exemption, and may impose any conditions on the granting or partial granting of any application as it deems fit under the circumstances. If the applicant Applicant is not prepared to accept a partial granting of the application or any conditions imposed by the Exemptions Committee, the application shall will be deemed to have been rejectedrefused.
(e) Subject to the time period for considering the application, referred to application as provided in subclause sub- clause (b) above, should the Exemptions Committee be unable to agree, the application shall be deemed to have been rejected refused and the reasoning of the members of the Exemptions Committee committee who wish to reject the application application, shall constitute the reasons of the Exemptions Committee for the purposes of subclause 4 sub-clause (ij) below.
(f) The Exemptions Committee shall notify the applicant of its decision within seven 7 days of such decision having been reached.
(g) If the application has been granted or partially granted, the Exemptions Committee shall specify the following in its notification to the applicant:
(i) The conditions, if any, of its approval of the application;
(ii) the The period for which the exemption(s) will be valid;
(iii) the The clauses or subclauses of this part sub-clauses of the Agreement agreement in respect of which exemption was granted or partially granted; and;
(iv) the The full name of the exempt employer or employee(s).
(h) Upon receipt of a written request, the Exemptions Committee shall provide brief written reasons for its decision to grant the exemption to any party which has an a interest in the matter.;
(i) If the application for exemption is rejected or partially approved, the Exemptions Committee shall provide concise written reasons for such rejection or partial approval to the applicant within seven days of its decision: Provided that such reasons given by the Exemptions Committee shall not bind the Independent Exemptions Body (Exemptions Board) in considering any appeal provided for in subclause (5) below below, since the latter may make a decision on appeal in accordance with such reasons as he or she deems appropriate, subject to the provisions of this clause insofar as it applies to the Independent Exemptions Body.
(a) Any decision of the Exemptions Committee to reject, partially approve or withdraw the application application, may be referred on appeal to the Independent Exemptions Body (Exemptions Board) hereby established in terms of the Act and the constitution Constitution of the Council. Such application shall be lodged within not more than 30 days of the applicant's being notified of the decision of the Exemptions Committee. The Exemptions Board may condone a late appeal on good cause shown.
(b) The Exemptions Board shall have the power to levy a fee payable by the appellant appalent and to determine the quantum thereof: Provided that such a fee shall be consistent with-
(i) the cost incurred for the hearing of the appeal;; and/or
(ii) the cost incurred by the Council for the hearing of the appeal where the Exemptions Board is satisfied that such an appeal is without merit.
(c) The Exemptions Board shall in addition, also have the power to raise a cost order on the applicant in respect of costs incurred by the parties to the appeal where it is satisfied that it will be proper to do so on the basis that the appeal is so completely without merit that it would be justified in doing so.
(a) The Exemptions Board shall consist of a single independent umpire appointed by the parties from a panel selected for this purpose.;
(b) The Exemptions Board shall determine the procedure to be adopted in determining the appeal.;
(c) The provisions of subclause sub-clause (4) above shall, read with the changes required by the context, apply equally to the appeal process.;
(d) The Exemption Board's decision of the Exemptions Board shall be final and binding.
(7) The applicant shall satisfy the Executive Committee of the Council or the Exemptions Committee andCommittee, and where applicable, the Exemptions Board of the following:that-
(a) There there is a demonstrable commercial need for the exemption.;
(b) Competitors competitors covered by the Council who are in compliance with the applicable Council agreements Agreements will not be materially prejudiced by the exemption.;
(c) No no infringement of the Basic Conditions of Employment Act or the Labour Relations Act will result if the exemption is granted, granted nor will the application, if granted, result in a conflict with the primary objectives of the Act.;
(d) The the exemption will not undermine collective bargaining and labour peace in the Industry.;
(e) There there has been compliance with subclause (3) above.;
(f) The the majority of affected employees at the plant are in favour of the proposed exemption if it affects wages, benefit fund contributions, or levies. In levies and, in such instance, either the employer, or the trade union may request that a ballot be conducted.
(8) In addition, the following criteria shall be taken into account by the Exemptions Committee and the Exemptions Board Board, when determining applications for exemptions:, shall take into account-
(a) The the merits of the written and oral (if any) motivation provided by the applicant, the documentation supporting the application and, in particular, whether the applicant has made put up a compelling case for the exemption.;
(b) Whether whether the applicant firm will constitute a viable concern after the expiry of the exemption.;
(c) If if the exemption sought is from any employee benefit fund, the sufficiency of the alternative benefit proposed by the applicant, including such factors as the cost to the employee, transferability, administration, management, costs, growth and stability.;
(d) The the terms of the exemption sought, including the period thereof.;
(e) Any any existing or projected special financial, economic or other circumstances put forward by the applicant as reasons warranting the granting of an exemption, including what economic hardship the applicant will suffer if the applicant is refused: Provided that the Executive committee Committee of the Council or the Exemptions Committee or the Exemptions Board may require the disclosure of such relevant, verifiable information as it deems fit in this regard.;
(f) The the history of the business entity and/or its shareholders, directors and owners within the Industry, including the period of its operation and in particular whether or not the entity is a new emerging enterprise or a small or medium enterprise (SME); and its history of compliance with Council agreements.;
(g) Any any representations made by the employees and/or their representatives, including a registered trade union, the Council or Executive Committee or Exemptions Committee and/or the parties to the Council and/or the relevant Regional Chamber of the Council.;
(h) Any any possible alternatives which may be acceptable to the applicant and/or any other interested party in the circumstances.;
(i) The the cost, efficiency and administration of any conditions which the Executive Committee of the Council or the Exemptions Committee or the Exemptions Board may feel it necessary to impose.;
(j) What what cost-saving measures may have been implemented by the applicant other than those in respect of its cost of labour.;
(k) What what hardship may eventuate to employees in the event of the exemption being granted.;
(l) Any any relevant time limits contained in the Council's constitution and the Act, and and, in particular particular, that any exemption or partial granting of an exemption shall be for a fixed, stipulated period.;
(m) Any any other relevant factors, including any decisions of the Council relevant to exemption applications.
(a) An applicant shall be is entitled to apply on the prescribed form to the General Secretary of the Council for the extension of any exemption granted by either the Regional Exemptions Committee or the Exemptions Board. An application for extension shall contain such additional information as may be necessary and required to substantiate the request with reference to the criteria set out in subclause sub-clause (7) above.;
(b) The procedure and requirements for considering and determining an application for extension shall be in accordance with the provisions of subclause sub-clause (4) above, above read with the changes required by the context.
(10) Employers employing five or fewer employees shall, upon application to the Council through the General Secretary, be exempted from the provisions of this part of the Agreement.
Appears in 1 contract
Sources: National Main Collective Agreement
Exemptions. A. For any business entity registered with and falling within the Council's registered scope inasmuch as it relates to the scope of this part of the Agreement
(1) Any business entity, whether a party or a non-party to the Council, which is registered with and falls within the Council's registered scope for the purposes of this part of the Agreement may apply to the Council for exemption from any or all of the provisions of this part of the Agreement.
(2) All applications for exemption shall be made in writing (on a prescribed an application form as provided by the Council) and shall be addressed to the Secretary of the Council.
(2) The Council hereby establishes an Exemptions Body constituted of the Compliance Committee appointed by the Council to consider all applications for exemptions of the Council’s Collective Agreement.
3) Any person subject to the constitution/agreement may apply for exemption.
4) The Council shall decide an application for exemption within 30 (thirty) days of receipt.
5) All applications applicants for exemption shall be motivated substantiated, and such substantiation shall include the following details:
a) The period for which the exemption is required;
b) the Agreement and clauses or sub-clauses 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 accordance support of or against the application, are to be included with the exemption criteria set out in subclause (application.
6) Upon receipt of a valid application by the Council it shall immediately refer the application to the Exemptions Body which may, if deemed expedient, request the applicant to attend the meeting at which the application is considered, to facilitate the deliberations.
7) below; shall be supported by relevant documentation andThe authority of the Council is to consider applications for exemptions and grant exemptions.
8) In considering the application, the Council or the Independent Exemptions Body in additionthe case of an appeal, shall contain take into consideration all relevant factors, which may include, but shall not be limited to, the following informationexemption criteria:
(a) The period for which the exemption is sought;.
(b) the The number of employees affected and how many of such employees are members of a registered trade union;
(c) the clauses and subclauses of this part of the Agreement from which the exemption is sought;
(d) satisfactory proof that the applicant has consulted, or will consult, its employees at plant level in respect of the exemption sought, which consultations shall include a registered party trade union, where such union has members employed at the workplace, and shall include the response resulting from such consultations; and
(e) the demonstrable commercial need of the applicant for the exemption sought.
(a) The General Secretary of the Council or the Regional Secretary of the Regional Chamber concerned, or in their absence any other officer designated by the Executive Committee, shall forthwith refer the full exemption application to the Exemptions Committee, which shall have delegated power to deal with such application on behalf of the Council.
(b) The Exemptions Committee shall consider and determine the application in accordance with the criteria set out in subclause (7) below, within 30 days from the date of lodgement of the application with the General Secretary, failing which the application shall be deemed to have been rejected.
(c) The Exemptions Committee may call for any further information or submissions it deems appropriate from the applicant, prior to making a decision. The time period stipulated in subclause (b) above may be extended by agreement between the applicant and the Committee by the period the applicant takes to furnish the additional information or submissions.
(d) The Exemptions Committee may, after considering the application in terms of the provisions and the criteria contained in this clause, grant, partially grant, or reject such application for exemption, and may impose any conditions on the granting or partial granting of any application it deems fit under the circumstances. If the applicant is not prepared to accept a partial granting of the application or any conditions imposed by the Exemptions Committee, the application shall be deemed to have been rejected.
(e) Subject to the time period for considering the application, referred to in subclause (b) above, should the Exemptions Committee be unable to agree, the application shall be deemed to have been rejected and the reasoning of the members of the Exemptions Committee who wish to reject the application shall constitute the reasons of the Committee for the purposes of subclause 4 (i) below.
(f) The Exemptions Committee shall notify the applicant of its decision within seven days of such decision having been reached.
(g) If the application has been granted or partially granted, the Exemptions Committee shall specify the following in its notification to the applicant:
(i) The conditions, if any, of its approval of the application;
(ii) the period for which the exemption(s) will be valid;
(iii) the clauses or subclauses of this part of the Agreement in respect of which exemption was granted or partially granted; and
(iv) the full name of the exempt employer or employee(s).
(h) Upon receipt of a written request, the Exemptions Committee shall provide brief written reasons for its decision to grant the exemption to any party which has an interest in the matter.
(i) If the application for exemption is rejected or partially approved, the Exemptions Committee shall provide concise written reasons for such rejection or partial approval to the applicant within seven days of its decision: Provided that such reasons given by the Exemptions Committee shall not bind the Independent Exemptions Body (Exemptions Board) in considering any appeal provided for in subclause (5) below since the latter may make a decision on appeal in accordance with such reasons as he or she deems appropriate, subject to the provisions of this clause insofar as it applies to the Independent Exemptions Body.
(a) Any decision of the Exemptions Committee to reject, partially approve or withdraw the application may be referred on appeal to the Independent Exemptions Body (Exemptions Board) hereby established in terms of the Act and the constitution of the Council. Such application shall be lodged within not more than 30 days of the applicant's being notified of the decision of the Exemptions Committee. The Exemptions Board may condone a late appeal on good cause shown.
(b) The Exemptions Board shall have the power to levy a fee payable by the appellant and to determine the quantum thereof: Provided that such fee shall be consistent with-
(i) the cost incurred for the hearing of the appeal;
(ii) the cost incurred by the Council for the hearing of the appeal where the Exemptions Board is satisfied that such an appeal is without merit.
(c) The Exemptions Board shall in addition, have the power to raise a cost order on the applicant in respect of costs incurred by the parties to the appeal where it is satisfied that it will be proper to do so on the basis that the appeal is so completely without merit that it would be justified in doing so.
(a) The Exemptions Board shall consist of a single independent umpire appointed by the parties from a panel selected for this purpose.
(b) The Exemptions Board shall determine the procedure to be adopted in determining the appeal.
(c) The provisions of subclause (4) above shall, read with the changes required by the context, apply equally to the appeal process.
(d) The decision of the Exemptions Board shall be final and binding.
(7) The applicant shall satisfy the Executive Committee of the Council or the Exemptions Committee and, where applicable, the Exemptions Board of the following:
(a) There is a demonstrable commercial need for the exemption.
(b) Competitors covered by the Council who are in compliance with the applicable Council agreements will not be materially prejudiced by the exemption.
(c) No infringement of the Basic Conditions of Employment Act or the Labour Relations Act will result if the exemption is granted, nor will the application, if granted, result in a conflict with the primary objectives of the Act.
(d) The exemption will not undermine collective bargaining and labour peace in the Industry.
(e) There has been compliance with subclause (3) above.
(f) The majority of affected employees at the plant are in favour of the proposed exemption if it affects wages, benefit fund contributions, or levies. In such instance, either the employer, or the trade union may request that a ballot be conducted.
(8) In addition, the following criteria shall be taken into account by the Exemptions Committee and the Exemptions Board when determining applications for exemptions:
(a) The merits of the written and oral (if any) motivation verbal substantiation provided by the applicant, the documentation
d) Be accompanied by relevant supporting the application and, in particular, whether the applicant has made a compelling case for the exemptiondata and financial information.
(be) Whether the applicant firm will constitute a viable concern after the expiry terms of the exemption.;
(cf) If the effect of the exemption sought is from on any employee benefit fund, the sufficiency of fund or training provision in relation to the alternative comparable bona fide benefit proposed by the applicantor provision, including such factors as the cost to the employee, transferability, administration, management, costsadministration management and cost, growth and stability;
g) 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.
(dh) The terms Where the views of the exemption soughtworkforce differ from that of the employer, including the period thereofreasons for the views expressed must be submitted with the application.
(e) Any existing or projected special financial, economic or other circumstances put forward by the applicant as reasons warranting the granting of an exemption, including what economic hardship the applicant will suffer if the applicant is refused: Provided that the Executive committee of the Council or the Exemptions Committee or the Exemptions Board may require the disclosure of such relevant, verifiable information as it deems fit in this regard.
(f) The history of the business entity and/or its shareholders, directors and owners within the Industry, including the period of its operation and in particular whether or not the entity is a new emerging enterprise or a small or medium enterprise (SME); and its history of compliance with Council agreements.
(g) Any representations made by the employees and/or their representatives, including a registered trade union, the Council or Executive Committee or Exemptions Committee and/or the parties to the Council and/or the relevant Regional Chamber of the Council.
(h) Any possible alternatives which may be acceptable to the applicant and/or any other interested party in the circumstances.
(i) The cost, efficiency and administration of any conditions which the Executive Committee of the Council or the Exemptions Committee or the Exemptions Board may feel it necessary to impose.
(j) What cost-saving measures may have been implemented by the applicant other than those in respect of its cost of labour.
(k) What hardship may eventuate to employees in the event of the exemption being granted.
(l) Any relevant time limits contained in the Council's constitution and the Act, and in particular that any exemption or partial granting of an exemption shall be for a fixed, stipulated period.
(m) Any other relevant factors, including any decisions of the Council relevant to exemption applications.
(a) An applicant shall be entitled to apply on the prescribed form to the General Secretary of the Council for the extension of any exemption granted by either the Regional Exemptions Committee or the Exemptions Board. An application for extension exemption shall contain such additional information as may not be necessary considered unless the employees or their representatives have been properly consulted and required their views fully recorded in an accompanying document. Where an agreement between the employer and the workforce is reached, the singed written agreement must accompany the application.
j) If the nature of the relief sought dictates, the application shall be accompanied by a plan reflecting the objectives and strategies to substantiate be adopted to rectify the request with reference situation giving rise to the criteria set out in subclause (7) aboveapplication and indicating a time frame for the plan.
(bk) The procedure and requirements for considering and determining an application for extension shall be in accordance applicant’s past record (if applicable) of compliance with the provisions of subclause (4this agreement, its amendments and Exemptions Certificate.
l) aboveany precedent that might be set;
m) it is fair to both the employer, read with its employees and other employees in the changes required sector;
n) it does not undermine this Agreement;
o) reporting requirements by the contextapplicant and monitoring and re-evaluation processes; and
p) it will make a material difference to the viability of a business;
q) it will assist with unexpected economic hardship occurring during the currency of the Agreement and will save unnecessary job losses.
(10r) Employers employing five or fewer employees shall, upon application to the Council through the General Secretary, be exempted from the provisions of this part interest of the Agreement.industry as regards:
i) unfair competition;
ii) collective bargaining;
iii) potential for labour unrest;
iv) increased employment;
s) the interest of employees’ as regards:
i) exploitation;
ii) job preservation;
iii) sound conditions of employment;
iv) possible financial benefits;
v) health and safety;
vi) infringement of basic rights i) financial stability;
Appears in 1 contract
Sources: Collective Agreement
Exemptions. A. For any business entity registered with and falling within the Council's registered scope inasmuch as it relates to the scope of this part of the Agreement
(1) Any business entity, whether a party or a non-party to the Council, which is registered with and falls within the Council's registered scope for the purposes of this part of the Agreement may apply to the Council for exemption from any or all of the provisions of this part of the Agreement.
(2) All applications for exemption shall be made in writing on a prescribed form provided by the Council.
(3) All applications for exemption shall be motivated in accordance with the exemption criteria set out in subclause (7) below; shall be supported by relevant documentation and, in addition, shall contain the following information:
(a) The period for which the exemption is sought;
(b) the number of employees affected and how many of such employees are members of a registered trade union;
(c) the clauses and subclauses of this part of the Agreement from which the exemption is sought;
(d) satisfactory proof that the applicant has consulted, or will consult, its employees at plant level in respect of the exemption sought, which consultations shall include a registered party trade union, where such union has members employed at the workplace, and shall include the response resulting from such consultations; and
(e) the demonstrable commercial need of the applicant for the exemption sought.
(a) The General Secretary of the Council or the Regional Secretary of the Regional Chamber concerned, or in their absence any other officer designated by the Executive Committee, shall forthwith refer the full exemption application to the Exemptions Committee, which shall have delegated power to deal with such application on behalf of the Council.
(b) The Exemptions Committee shall consider and determine the application in accordance with the criteria set out in subclause (7) below, within 30 45 days from the date of lodgement of the application with the General Secretary, failing which the application shall be deemed to have been rejectedrefused.
(c) The Exemptions Committee may call for any further information or submissions it deems appropriate from the applicant, prior to making a decision. The time period stipulated in subclause (b) above may be extended by agreement between the applicant and the Committee by the period the applicant takes to furnish the additional information or submissions.
(d) The Exemptions Committee may, after considering the application in terms of the provisions and the criteria contained in this clause, grant, partially grant, or reject such application for exemption, and may impose any conditions on the granting or partial granting of any application it deems fit under the circumstances. If the applicant is not prepared to accept a partial granting of the application or any conditions imposed by the Exemptions Committee, the application shall be deemed to have been rejected.
(e) Subject to the time period for considering the application, application referred to in subclause (b) above, should the Exemptions Committee be unable to agree, the application shall be deemed to have been rejected and the reasoning of the members of the Exemptions Committee who wish to reject the application shall constitute the reasons of the Committee for the purposes of subclause 4 (i) below.
(f) The Exemptions Committee shall notify the applicant of its decision within seven days of such decision having been reached.
(g) If the application has been granted or partially granted, the Exemptions Committee shall specify the following in its notification to the applicant:
(i) The conditions, if any, of its approval of the application;
(ii) the period for which the exemption(s) will be valid;'
(iii) the clauses or subclauses of this part of the Agreement in respect of which exemption was granted or partially granted; and
(iv) the full name of the exempt employer or employee(s).
(h) Upon receipt of a written request, the Exemptions Committee shall provide brief written reasons for its decision to grant the exemption to any party which has an interest in the matter.
(i) If the application for exemption is rejected or partially approved, the Exemptions Committee shall provide concise written reasons for such rejection or partial approval to the applicant within seven days of its decision: Provided that such reasons given by the Exemptions Committee shall not bind the Independent Exemptions Body (Exemptions Board) in considering any appeal provided for in subclause (5) below since the latter may make a decision on appeal in accordance with such reasons as he or she deems appropriate, subject to the provisions of this clause insofar as it applies to the Independent Exemptions Body.
(a) Any decision of the Exemptions Committee to reject, partially approve or withdraw the application may be referred on appeal to the Independent Exemptions Body (Exemptions Board) hereby established in terms of the Act and the constitution of the Council. Such application shall be lodged within not more than 30 days of the applicant's being notified of the decision of the Exemptions Committee. The Exemptions Board may condone a late appeal on good cause shown.
(b) The Exemptions Board shall have the power to levy a fee payable by the appellant and to determine the quantum thereof: Provided that such a fee shall be consistent with-
(i) the cost incurred for the hearing of the appeal;
(ii) the cost incurred by the Council for the hearing of the appeal where the Exemptions Board is satisfied that such an appeal is without merit.
(c) The Exemptions Board shall shall, in addition, have the power to raise a cost order on the applicant in respect of costs incurred by the parties to the appeal where it is satisfied that it will be proper to do so on the basis that the appeal is so completely without merit that it would be justified in doing so.
(a) The Exemptions Board shall consist of a single independent umpire appointed by the parties from a panel selected for this purpose.
(b) The Exemptions Board shall determine the procedure to be adopted in determining the appeal.
(c) The provisions of subclause (4) above shall, read with the changes required by the context, apply equally to the appeal process.
(d) The decision of the Exemptions Board shall be final and binding.
(7) The applicant shall satisfy the Executive Committee of the Council or the Exemptions Committee and, where applicable, the Exemptions Board of the following:
(a) There is a demonstrable commercial need for the exemption.
(b) Competitors covered by the Council who are in compliance with the applicable Council agreements will not be materially prejudiced by the exemption.
(c) No infringement of the Basic Conditions of Employment Act or the Labour Relations Act will result if the exemption is granted, nor will the application, if granted, result in a conflict with the primary objectives of the Act.
(d) The exemption will not undermine collective bargaining and labour peace in the Industryindustry.
(e) There has been compliance with subclause (3) above.
(f) The majority of affected employees at the plant are in favour of the proposed exemption if it affects wages, benefit fund contributions, or levies. In such instance, either the employer, or the trade union may request that a ballot be conducted.
(8) In addition, the following criteria shall be taken into account by the Exemptions Committee and the Exemptions Board when determining applications for exemptions:
(a) The merits of the written and oral (if any) motivation provided by the applicant, the documentation supporting the application and, in particular, whether the applicant has made a compelling case for the exemption.
(b) Whether the applicant firm will constitute a viable concern after the expiry of the exemption.
(c) If the exemption sought is from any employee benefit fund, the sufficiency of the alternative benefit proposed by the applicant, including such factors as the cost to the employee, transferability, administration, management, costs, growth and stability.
(d) The terms of the exemption sought, including the period thereof.
(e) Any existing or projected special financial, economic or other circumstances put forward by the applicant as reasons warranting the granting of an exemption, including what economic hardship the applicant will suffer if the applicant is refused: Provided that the Executive committee Committee of the Council or the Exemptions Committee or the Exemptions Board may require the disclosure of such relevant, verifiable information as it deems fit in this regard.
(f) The history of the business entity and/or its shareholders, directors and owners within the Industry, including the period of its operation and in particular whether or not the entity is a new emerging enterprise or a small or medium enterprise (SME); and its history of compliance with Council agreements.
(g) Any representations made by the employees and/or their representatives, including a registered trade union, the Council or Executive Committee or Exemptions Committee and/or the parties to the Council and/or the relevant Regional Chamber of the Council.
(h) Any possible alternatives which may be acceptable to the applicant and/or any other interested party in the circumstances.
(i) The cost, efficiency and administration of any conditions which the Executive Committee of the Council or the Exemptions Committee or the Exemptions Board may feel it necessary to impose.
(j) What cost-saving measures may have been implemented by the applicant other than those in respect of its cost of labour.
(k) What hardship may eventuate to employees in the event of the exemption being granted.
(l) Any relevant time limits contained in the Council's constitution and the Act, and in particular that any exemption or partial granting of an exemption shall be for a a. fixed, stipulated period.
(m) Any other relevant factors, including any decisions of the Council relevant to exemption applications.
(a) An applicant shall be entitled to apply on the prescribed form to the General Secretary of the Council for the extension of any exemption granted by either the Regional Exemptions Committee or the Exemptions Board. An application for extension shall contain such additional information as may be necessary and required to substantiate the request with reference to the criteria set out in subclause (7) above.
(b) The procedure and requirements for considering and determining an application for extension shall be in accordance with the provisions of subclause (4) above, read with the changes required by the context.
(10) Employers employing five or fewer employees shall, upon application to the Council through the General Secretary, be exempted from the provisions of this part of the Agreement, except in the case of Embroidery Employers.
Appears in 1 contract
Sources: National Main Collective Agreement
Exemptions. A. For any business entity registered with and falling within the Council's registered scope inasmuch as it relates to the scope of this part of the Agreement
(1) Any business entity, whether a party or a non-party to the Council, which is registered with and falls within the Council's registered scope for the purposes of this part of the Agreement may apply to the Council for exemption from any or all of the provisions of this part of the Agreement.
(2) All applications for exemption shall be made in writing on a prescribed form provided by the Council.
(3) All applications for exemption shall be motivated in accordance with the exemption criteria set out in subclause (7) below; shall be supported by relevant documentation and, in addition, shall contain the following information:
(a) The period for which the exemption is sought;
(b) the number of employees affected and how many of such employees are members of a registered trade union;
(c) the clauses and subclauses of this part of the Agreement from which the exemption is sought;
(d) satisfactory proof that the applicant has consulted, or will consult, its employees at plant level in respect of the exemption sought, which consultations shall include a registered party trade union, where such union has members employed at the workplace, and shall include the response resulting from such consultations; and
(e) the demonstrable commercial need of the applicant for the exemption sought.
(a) The General Secretary of the Council or the Regional Secretary of the Regional Chamber concerned, or in their absence any other officer designated by the Executive Committee, shall forthwith refer the full exemption application to the Exemptions Committee, which shall have delegated power to deal with such application on behalf of the Council.
(b) The Exemptions Committee shall consider and determine the application in accordance with the criteria set out in subclause (7) 7 below, within 30 45 days from the date of lodgement lodgment of the application with the General Secretary, failing which the application shall be deemed to have been rejectedrefused.
(c) The Exemptions Committee may call for any further information or submissions it deems appropriate from the applicant, prior to making a decision. The time period stipulated in subclause (b) above may be extended by agreement between the applicant and the Committee by the period the applicant takes to furnish the additional information or submissions.
(d) The Exemptions Committee may, after considering the application in terms of the provisions and the criteria contained in this clause, grant, partially grant, or reject such application for exemption, and may impose any conditions on the granting or partial granting of any application it deems fit under the circumstances. If the applicant is not prepared to accept a partial granting of the application or any conditions imposed by the Exemptions Committee, the application shall be deemed to have been rejected.
(e) Subject to the time period for considering the application, application referred to in subclause (b) above, should the Exemptions Committee be unable to agree, the application shall be deemed to have been rejected and the reasoning of the members of the Exemptions Committee who wish to reject the application shall constitute the reasons of the Committee for the purposes of subclause 4 (i) below.
(f) The Exemptions Committee shall notify the applicant of its decision within seven days of such decision having been reached.
(g) If the application has been granted or partially granted, the Exemptions Committee shall specify the following in its notification to the applicant:
(i) The conditions, if any, of its approval of the application;
(ii) the period for which the exemption(s) will be valid;
(iii) the clauses or subclauses of this part of the Agreement in respect of which exemption was granted or partially granted; and
(iv) the full name of the exempt employer or employee(s).
(h) Upon receipt of a written request, the Exemptions Committee shall provide brief written reasons for its decision to grant the exemption to any party which has an interest in the matter.
(i) If the application for exemption is rejected or partially approved, the Exemptions Committee shall provide concise written reasons for such rejection or partial approval to the applicant within seven days of its decision: Provided that such reasons given by the Exemptions Committee shall not bind the Independent Exemptions Body (Exemptions Board) in considering any appeal provided for in subclause (5) below since the latter may make a decision on appeal in accordance with such reasons as he or she deems appropriate, subject to the provisions of this clause insofar as it applies to the Independent Exemptions Body.
(a) Any decision of the Exemptions Committee to reject, partially approve or withdraw the application may be referred on appeal to the Independent Exemptions Body (Exemptions Board) hereby established in terms of the Act and the constitution of the Council. Such application shall be lodged within not more than 30 days of the applicant's being notified of the decision of the Exemptions Committee. The Exemptions Board may condone a late appeal on good cause shown.
(b) The Exemptions Board shall have the power to levy a fee payable by the appellant and to determine the quantum thereof: Provided that such fee shall be consistent with-
(i) the cost incurred for the hearing of the appeal;
(ii) the cost incurred by the Council for the hearing of the appeal where the Exemptions Board is satisfied that such an appeal is without merit.
(c) The Exemptions Board shall in addition, have the power to raise a cost order on the applicant in respect of costs incurred by the parties to the appeal where it is satisfied that it will be proper to do so on the basis that the appeal is so completely without merit that it would be justified in doing so.
(a) The Exemptions Board shall consist of a single independent umpire appointed by the parties from a panel selected for this purpose.
(b) The Exemptions Board shall determine the procedure to be adopted in determining the appeal.
(c) The provisions of subclause (4) above shall, read with the changes required by the context, apply equally to the appeal process.
(d) The decision of the Exemptions Board shall be final and binding.
(7) The applicant shall satisfy the Executive Committee of the Council or the Exemptions Committee and, where applicable, the Exemptions Board of the following:
(a) There is a demonstrable commercial need for the exemption.
(b) Competitors covered by the Council who are in compliance with the applicable Council agreements will not be materially prejudiced by the exemption.
(c) No infringement of the Basic Conditions of Employment Act or the Labour Relations Act will result if the exemption is granted, nor will the application, if granted, result in a conflict with the primary objectives of the Act.
(d) The exemption will not undermine collective bargaining and labour peace in the Industry.
(e) There has been compliance with subclause (3) above.
(f) The majority of affected employees at the plant are in favour of the proposed exemption if it affects wages, benefit fund contributions, or levies. In such instance, either the employer, or the trade union may request that a ballot be conducted.
(8) In addition, the following criteria shall be taken into account by the Exemptions Committee and the Exemptions Board when determining applications for exemptions:
(a) The merits of the written and oral (if any) motivation provided by the applicant, the documentation supporting the application and, in particular, whether the applicant has made a compelling case for the exemption.
(b) Whether the applicant firm will constitute a viable concern after the expiry of the exemption.
(c) If the exemption sought is from any employee benefit fund, the sufficiency of the alternative benefit proposed by the applicant, including such factors as the cost to the employee, transferability, administration, management, costs, growth and stability.
(d) The terms of the exemption sought, including the period thereof.
(e) Any existing or projected special financial, economic or other circumstances put forward by the applicant as reasons warranting the granting of an exemption, including what economic hardship the applicant will suffer if the applicant is refused: Provided that the Executive committee of the Council or the Exemptions Committee or the Exemptions Board may require the disclosure of such relevant, verifiable information as it deems fit in this regard.
(f) The history of the business entity and/or its shareholders, directors and owners within the Industry, including the period of its operation and in particular whether or not the entity is a new emerging enterprise or a small or medium enterprise (SME); and its history of compliance with Council agreements.
(g) Any representations made by the employees and/or their representatives, including a registered trade union, the Council or Executive Committee or Exemptions Committee and/or the parties to the Council and/or the relevant Regional Chamber of the Council.
(h) Any possible alternatives which may be acceptable to the applicant and/or any other interested party in the circumstances.
(i) The cost, efficiency and administration of any conditions which the Executive Committee of the Council or the Exemptions Committee or the Exemptions Board may feel it necessary to impose.
(j) What cost-saving measures may have been implemented by the applicant other than those in respect of its cost of labour.
(k) What hardship may eventuate to employees in the event of the exemption being granted.
(l) Any relevant time limits contained in the Council's constitution and the Act, and in particular that any exemption or partial granting of an exemption shall be for a fixed, stipulated period.
(m) Any other relevant factors, including any decisions of the Council relevant to exemption applications.
(a) An applicant shall be entitled to apply on the prescribed form to the General Secretary of the Council for the extension of any exemption granted by either the Regional Exemptions Committee or the Exemptions Board. An application for extension shall contain such additional information as may be necessary and required to substantiate the request with reference to the criteria set out in subclause (7) above.
(b) The procedure and requirements for considering and determining an application for extension shall be in accordance with the provisions of subclause (4) above, read with the changes required by the context.
(10) Employers employing five or fewer employees shall, upon application to the Council through the General Secretary, be exempted from the provisions of this part of the Agreement.subclause
Appears in 1 contract
Sources: National Main Collective Agreement
Exemptions. A. For any business entity registered with and falling within the Council's registered scope inasmuch as it relates to the scope of this part of the Agreement
(1) Any business entity, whether a party or a non-party to the Council, which is registered with and falls within the Council's registered scope for the purposes of this part of the Agreement may apply to the Council for exemption from any or all of the provisions of this part of the Agreement.
(2) All applications for exemption shall be made in writing on a prescribed form provided by the Council.
(3) All applications for exemption shall be motivated in accordance with the exemption criteria set out in subclause (7) below; shall be supported by relevant documentation and, in addition, shall contain the following information:
(a) The period for which the exemption is sought;
(b) the number of employees affected and how many of such employees are members of a registered trade union;
(c) the clauses and subclauses of this part of the Agreement from which the exemption is sought;.
(d) satisfactory proof that the applicant has consulted, or will consult, its employees at plant level in respect of the exemption sought, which consultations shall include a registered party trade union, where such union has members employed at the workplace, and shall include the response resulting from such consultations; and
(e) the demonstrable commercial need of the applicant for the exemption sought.
(a) The General Secretary of the Council or the Regional Secretary of the Regional Chamber concerned, or in their absence any other officer designated by the Executive Committee, shall forthwith refer the full exemption application to the Exemptions Committee, which shall have delegated power to deal with such application on behalf of the Council.
(b) The Exemptions Committee shall consider and determine the application in accordance with the criteria set out in subclause (7) below, within 30 45 days from the date of lodgement of the application with the General Secretary, failing which the application shall will be deemed to have been rejected.
(c) The Exemptions Committee may call for any further information or submissions it deems appropriate from the applicant, prior to making a decision. The time period stipulated in subclause (b) above may be extended by agreement between the applicant and the Committee by the period the applicant takes to furnish the additional information or submissions.
(d) The Exemptions Committee may, after considering the application in terms of the provisions and the criteria contained in this clause, grant, partially grant, or reject such application for exemption, and may impose any conditions on the granting or partial granting of any application it deems fit under the circumstances. If the applicant is not prepared to accept a partial granting of the application or any conditions imposed by the Exemptions Committee, the application shall be deemed to have been rejected.
(e) Subject to the time period for considering the application, referred to in subclause (b) above, should the Exemptions Committee be unable to agree, the application shall be deemed to have been rejected and the reasoning of the members of the Exemptions Committee who wish to reject the application shall constitute the reasons of the Committee for the purposes of subclause 4 (i) below.
(f) The Exemptions Committee shall notify the applicant of its decision within seven days of such decision having been reached.
(g) If the application has been granted or partially granted, the Exemptions Committee shall specify the following in its notification to the applicant:
(i) The conditions, if any, of its approval of the application;
(ii) the period for which the exemption(s) will be valid;
(iii) the clauses or subclauses of this part of the Agreement in respect of which exemption was granted or partially granted; and
(iv) the full name of the exempt employer or employee(s).
(h) Upon receipt of a written request, the Exemptions Committee shall provide brief written reasons for its decision to grant the exemption to any party which has an interest in the matter.
(i) If the application for exemption is rejected or partially approved, the Exemptions Committee shall provide concise written reasons for such rejection or partial approval to the applicant within seven days of its decision: Provided that such reasons given by the Exemptions Committee shall not bind the Independent Exemptions Body (Exemptions Board) in considering any appeal provided for in subclause sub-clause (5) below since the latter may make a decision on appeal in accordance with such reasons as he or she deems appropriate, subject to the provisions of this clause insofar as it applies to the Independent Exemptions Body.
(a) Any decision of the Exemptions Committee to reject, partially approve or withdraw the application may be referred on appeal to the Independent Exemptions Body (Exemptions Board) hereby established in terms of the Act and the constitution of the Council. Such application shall be lodged within not more than 30 days of the applicant's being notified of the decision of the Exemptions Committee. The Exemptions Board may condone a late appeal on good cause shown.
(b) The Exemptions Board shall have the power to levy a fee payable by the appellant and to determine the quantum thereof: Provided that such fee shall be consistent with-
(i) the cost incurred for the hearing of the appeal;
(ii) the cost incurred by the Council for the hearing of the appeal where the Exemptions Board is satisfied that such an appeal is without merit.
(c) The Exemptions Board shall shall, in addition, have the power to raise a cost order on the applicant in respect of costs incurred by the parties to the appeal where it is satisfied that it will be proper to do so on the basis that the appeal is so completely without merit that it would be justified in doing so.
(a) The Exemptions Board shall consist of a single independent umpire appointed by the parties from a panel selected for this purpose.
(b) The Exemptions Board shall determine the procedure to be adopted in determining the appeal.
(c) The provisions of subclause (4) above shall, read with the changes required by the context, apply equally to the appeal process.
(d) The decision of the Exemptions Board shall be final and binding.
(7) The applicant shall satisfy the Executive Committee of the Council or the Exemptions Committee and, and where applicable, the Exemptions Board of the following:
(a) There is a demonstrable commercial need for the exemption.
(b) Competitors covered by the Council who are in compliance with the applicable Council agreements will not be materially prejudiced by the exemption.
(c) The applicant is not in arrears with respect to payment of Bargaining Council levies or employer or employee contributions and/or trade union/employer subscriptions and/or levies, or, if so, an agreed payment plan exists in respect of any such outstanding monies. "Arrears", for this purpose, means any payment of Bargaining Council levies or employer or employee or trade union subscriptions which remain unpaid as at the last day of the month following the month in respect of which the payment is due.
(d) No infringement of the Basic Conditions of Employment Act or the Labour Relations Act will result if the exemption is granted, nor will the application, if granted, result in a conflict with the primary objectives of the Act.
(de) The exemption will not undermine collective bargaining and labour peace in the Industry.
(ef) There has been compliance with subclause (3) above.
(fg) The majority of affected employees at the plant are in favour of the proposed exemption exemption, if it affects wages, benefit fund contributions, or levies. In such instance, either the employer, or the trade union may request that a ballot be conducted.
(8) In addition, the following criteria shall be taken into account by the Exemptions Committee and the Exemptions Board when determining applications for exemptions:
(a) The merits of the written and oral (if any) motivation provided by the applicant, the documentation supporting the application and, in particular, whether the applicant has made a compelling case for the exemption.
(b) Whether the applicant firm will constitute a viable concern after the expiry of the exemption.
(c) If the exemption sought is from any employee benefit fund, the sufficiency of the alternative benefit proposed by the applicant, including such factors as the cost to the employee, transferability, administration, management, costs, growth and stability, "Sufficiency", for the purposes of this subclause, means that in all material respects the alternative proposed is at least equal to, or better than, the relevant Council benefit fund.
(d) The terms of the exemption sought, including the period thereof.
(e) Any existing or projected special financial, economic or other circumstances put forward by the applicant as reasons warranting the granting of an exemption, including what economic hardship the applicant will suffer if the applicant is refused: Provided that the Executive committee Committee of the Council or the Exemptions Committee or the Exemptions Board may require the disclosure of such relevant, verifiable information as it deems fit in this regard.
(f) The history of the business entity and/or its shareholders, directors and owners within the Industry, including the period of its operation and in particular whether or not the entity is a new emerging enterprise or a small or medium enterprise (SME); and its history of compliance with Council agreements.
(g) Any representations made by the employees and/or their representatives, including a registered trade union, the Council or Executive Committee or Exemptions Committee and/or the parties to the Council and/or the relevant Regional Chamber of the Council.
(h) Any possible alternatives which may be acceptable to the applicant and/or any other interested party in the circumstances.
(i) The cost, efficiency and administration of any conditions which the Executive Committee of the Council or the Exemptions Committee or the Exemptions Board may feel it necessary to impose.
(j) What cost-saving measures may have been implemented by the applicant other than those in respect of its cost of labour.
(k) What hardship may eventuate to employees in the event of the exemption being granted.
(l) Any relevant time limits contained in the Council's constitution and the Act, and in particular that any exemption or partial granting of an exemption shall be for a fixed, stipulated period.
(m) Any other relevant factors, including any decisions of the Council relevant to exemption applications.
(a) An applicant shall be entitled to apply on the prescribed form to the General Secretary of the Council for the extension of any exemption granted by either the Regional Exemptions Committee or the Exemptions Board. An application for extension shall contain such additional information as may be necessary and required to substantiate the request with reference to the criteria set out in subclause (7) above.
(b) The procedure and requirements for considering and determining an application for extension shall be in accordance with the provisions of subclause (4) above, read with the changes required by the context.
(10) Employers employing five or fewer employees shall, upon application to the Council through the General Secretary, be exempted from the provisions of this part Agreement.
B. For any employer who is a party or a member of a party to the Council and its employees represented by a trade union representative
(1) Exemption from the provisions of this Agreement shall be granted in the following circumstances:
(a) Where an employer that is a party or a member of a party to the Council and its employees, represented by a trade union representative, as defined in the Act, have concluded a collective agreement in accordance with the procedure set out in subclause (2) below to vary such provisions: Provided that-
(i) the collective agreement does not contravene the minimum employment standards set out in this Agreement or in any law or the provisions of the Agreement dated 25 May 1993 between the Cape Clothing Manufacturers' Association, the Cape Knitting Industry Association, the Garment Manufacturers' Association of the Western Cape, the Eastern Province Clothing Manufacturers' Association, the Natal Clothing Manufacturers' Association, the Orange Free State and Northern Cape Clothing Manufacturers' Association, the Transvaal Clothing Manufacturers' Association (incorporating the Transvaal Knitters' Association) and the Southern African Clothing and Textile Workers' Union; and
(ii) wage rates and contributions to social funds, including the Council's fund, may not be amended without the Council's approval.
(2) An employer who is a party or a member of a party to the Council shall implement the following procedure in order to conclude a collective agreement as set out in subclause (1) (a) (i) above:
(a) The employer shall place on the notice board of the establishment a notice to employees specifying the proposed variation to this Agreement. At the same time a copy of the notice shall be sent to the trade union.
(b) A meeting shall take place at the establishment in order to reach agreement on the proposed variation, which agreement shall then be reduced to writing. In the absence of agreement the employer shall undertake not to refer an application for exemption to the Exemptions Board established by the Council.
(c) The agreement shall be referred to the Council or Regional Chamber for registration and any agreement concluded in terms of subclause (1) (a) (i) above that is in contravention of any law or the minimum employment standards set out in this Agreement shall be null and void ab initio.
Appears in 1 contract
Exemptions. A. For any business entity registered with and falling within the Council's registered scope inasmuch as it relates to the scope of this part of the Agreement
(1) Any business entity, whether a party or a non-party to the Council, which is registered with and falls within the Council's registered scope for the purposes of this part of the Agreement may apply to the Council for exemption from any or all of the provisions of this part of the Agreement.
(2) All applications for exemption shall be made in writing on a prescribed form provided by the Council.
(3) All applications for exemption shall be motivated in accordance with the exemption criteria set out in subclause (7) below; shall be supported by relevant documentation and, in addition, shall contain the following information:
(a) The period for which the exemption is sought;
(b) the number of employees affected and how many of such employees are members of a registered trade union;
(c) the clauses and subclauses of this part of the Agreement from which the exemption is sought;
(d) satisfactory proof that the applicant has consulted, or will consult, its employees at plant level in respect of the exemption sought, which consultations shall include a registered party trade union, where such union has members employed at the workplace, and shall include the response resulting from such consultations; and
(e) the demonstrable commercial need of the applicant for the exemption sought.
(a) The General Secretary of the Council or the Regional Secretary of the Regional Chamber concerned, or in their absence any other officer designated by the Executive Committee, shall forthwith refer the full exemption application to the Exemptions Committee, which shall have delegated power to deal with such application on behalf of the Council.
(b) The Exemptions Committee shall consider and determine the application in accordance with the criteria set out in subclause (7) 7 below, within 30 45 days from the date of lodgement lodgment of the application with the General Secretary, failing which the application shall be deemed to have been rejectedrefused.
(c) The Exemptions Committee may call for any further information or submissions it deems appropriate from the applicant, prior to making a decision. The time period stipulated in subclause (b) above may be extended by agreement between the applicant and the Committee by the period the applicant takes to furnish the additional information or submissions.
(d) The Exemptions Committee may, after considering the application in terms of the provisions and the criteria contained in this clause, grant, partially grant, or reject such application for exemption, and may impose any conditions on the granting or partial granting of any application it deems fit under the circumstances. If the applicant is not prepared to accept a partial granting of the application or any conditions imposed by the Exemptions Committee, the application shall be deemed to have been rejected.
(e) Subject to the time period for considering the application, application referred to in subclause (b) above, should the Exemptions Committee be unable to agree, the application shall be deemed to have been rejected and the reasoning of the members of the Exemptions Committee who wish to reject the application shall constitute the reasons of the Committee for the purposes of subclause 4 (i) below.
(f) The Exemptions Committee shall notify the applicant of its decision within seven days of such decision having been reached.
(g) If the application has been granted or partially granted, the Exemptions Committee shall specify the following in its notification to the applicant:
(i) The conditions, if any, of its approval of the application;
(ii) the period for which the exemption(s) will be valid;'
(iii) the clauses or subclauses of this part of the Agreement in respect of which exemption was granted or partially granted; and
(iv) the full name of the exempt employer or employee(s).
(h) Upon receipt of a written request, the Exemptions Committee shall provide brief written reasons for its decision to grant the exemption to any party which has an interest in the matter.
(i) If the application for exemption is rejected or partially approved, the Exemptions Committee shall provide concise written reasons for such rejection or partial approval to the applicant within seven days of its decision: Provided that such reasons given by the Exemptions Committee shall not bind the Independent Exemptions Body (Exemptions Board) in considering any appeal provided for in subclause (5) below since the latter may make a decision on appeal in accordance with such reasons as he or she deems appropriate, subject to the provisions of this clause insofar as it applies to the Independent Exemptions Body.
(a) Any decision of the Exemptions Committee to reject, partially approve or withdraw the application may be referred on appeal to the Independent Exemptions Body (Exemptions Board) hereby established in terms of the Act and the constitution of the Council. Such application shall be lodged within not more than 30 days of the applicant's being notified of the decision of the Exemptions Committee. The Exemptions Board may condone a late appeal on good cause shown.
(b) The Exemptions Board shall have the power to levy a fee payable by the appellant and to determine the quantum thereof: Provided that such a fee shall be consistent with-
(i) the cost incurred for the hearing of the appeal;
(ii) the cost incurred by the Council for the hearing of the appeal where the Exemptions Board is satisfied that such an appeal is without merit.
(c) The Exemptions Board shall shall, in addition, have the power to raise a cost order on the applicant in respect of costs incurred by the parties to the appeal where it is satisfied that it will be proper to do so on the basis that the appeal is so completely without merit that it would be justified in doing so.
(a) The Exemptions Board shall consist of a single independent umpire appointed by the parties from a panel selected for this purpose.
(b) The Exemptions Board shall determine the procedure to be adopted in determining the appeal.
(c) The provisions of subclause (4) above shallabove, shall read with the changes required by the context, apply equally to the appeal process.
(d) The decision of the Exemptions Board shall be final and binding.
(7) The applicant shall satisfy the Executive Committee of the Council or the Exemptions Committee and, where applicable, the Exemptions Board of the following:
(a) There is a demonstrable commercial need for the exemption.
(b) Competitors covered by the Council who are in compliance with the applicable Council agreements will not be materially prejudiced by the exemption.
(c) The applicant is not in arrears with respect to payment of Bargaining Council levies or employer or employee contributions and/or trade union/employer subscriptions and/or levies, or, if so, an agreed payment plan exists in respect of any such outstanding moneys. "Arrears", for this purpose, means any payment of Bargaining Council levies or employer or employee or trade union subscriptions which remain unpaid as at the last day of the month following the month in respect of which the payment is due.
(d) No infringement of the Basic Conditions of Employment Act or the Labour Relations Act will result if the exemption is granted, nor will the application, if granted, result in a conflict with the primary objectives of the Act.
(de) The exemption will not undermine collective bargaining and labour peace in the Industryindustry.
(ef) There has been compliance with subclause (3) above.
(fg) The majority of affected employees at the plant are in favour of the proposed exemption if it affects wages, benefit fund contributions, or levies. In such instance, either the employer, or the trade union may request that a ballot be conducted.
(8) In addition, the following criteria shall be taken into account by the Exemptions Committee and the Exemptions Board when determining applications for exemptions:
(a) The merits of the written and oral (if any) motivation provided by the applicant, the documentation supporting the application and, in particular, whether the applicant has made a compelling case for the exemption.
(b) Whether the applicant firm will constitute a viable concern after the expiry of the exemption.
(c) If the exemption sought is from any employee benefit fund, the sufficiency of the alternative benefit proposed by the applicant, including such factors as the cost to the employee., transferability, administration, management, costs, growth and stability.
(d) The terms . "Sufficiency" for the purposes of this subclause, means that in all material respects the exemption soughtalternative proposed is at least equal to, including the period thereof.
(e) Any existing or projected special financial, economic or other circumstances put forward by the applicant as reasons warranting the granting of an exemption, including what economic hardship the applicant will suffer if the applicant is refused: Provided that the Executive committee of the Council or the Exemptions Committee or the Exemptions Board may require the disclosure of such relevant, verifiable information as it deems fit in this regard.
(f) The history of the business entity and/or its shareholders, directors and owners within the Industry, including the period of its operation and in particular whether or not the entity is a new emerging enterprise or a small or medium enterprise (SME); and its history of compliance with Council agreements.
(g) Any representations made by the employees and/or their representatives, including a registered trade unionbetter than, the relevant Council or Executive Committee or Exemptions Committee and/or the parties to the Council and/or the relevant Regional Chamber of the Councilbenefit fund.
(h) Any possible alternatives which may be acceptable to the applicant and/or any other interested party in the circumstances.
(i) The cost, efficiency and administration of any conditions which the Executive Committee of the Council or the Exemptions Committee or the Exemptions Board may feel it necessary to impose.
(j) What cost-saving measures may have been implemented by the applicant other than those in respect of its cost of labour.
(k) What hardship may eventuate to employees in the event of the exemption being granted.
(l) Any relevant time limits contained in the Council's constitution and the Act, and in particular that any exemption or partial granting of an exemption shall be for a fixed, stipulated period.
(m) Any other relevant factors, including any decisions of the Council relevant to exemption applications.
(a) An applicant shall be entitled to apply on the prescribed form to the General Secretary of the Council for the extension of any exemption granted by either the Regional Exemptions Committee or the Exemptions Board. An application for extension shall contain such additional information as may be necessary and required to substantiate the request with reference to the criteria set out in subclause (7) above.
(b) The procedure and requirements for considering and determining an application for extension shall be in accordance with the provisions of subclause (4) above, read with the changes required by the context.
(10) Employers employing five or fewer employees shall, upon application to the Council through the General Secretary, be exempted from the provisions of this part of the Agreement.
Appears in 1 contract
Sources: National Main Collective Agreement
Exemptions. A. For any business entity registered with and falling within the Council's registered scope inasmuch as it relates to the scope of this part of the Agreement
(1) Any business entity, whether a party or a non-party to the Council, which is registered with and falls within the Council's registered scope for the purposes of this part of the Agreement may apply to the Council for exemption from any or all of the provisions of this part of the Agreement.
(2) All applications for exemption shall be made in writing on a prescribed form provided by the Council.
(3) All applications for exemption shall be motivated in accordance with the exemption criteria set out in subclause (7) below; shall be supported by relevant documentation and, in addition, shall contain the following information:
(a) The period for which the exemption is sought;
(b) the number of employees affected and how many of such employees are members of a registered trade union;
(c) the clauses and subclauses of this part of the Agreement from which the exemption is sought;
(d) satisfactory proof that the applicant has consulted, or will consult, its employees at plant level in respect of the exemption sought, which consultations shall include a registered party trade union, where such union has members employed at the workplace, and shall include the response resulting from such consultations; and
(e) the demonstrable commercial need of the applicant for the exemption sought.
(a) The General Secretary of the Council or the Regional Secretary of the Regional Chamber concerned, or in their absence any other officer designated by the Executive Committee, shall forthwith refer the full exemption application to the Exemptions Committee, which shall have delegated power to deal with such application on behalf of the Council.
(b) The Exemptions Committee shall consider and determine the application in accordance with the criteria set out in subclause (7) 7 below, within 30 45 days from the date of lodgement lodgment of the application with the General Secretary, failing which the application shall be deemed to have been rejectedrefused.
(c) The Exemptions Committee may call for any further information or submissions it deems appropriate from the applicant, prior to making a decision. The time period stipulated in subclause (b) above may be extended by agreement between the applicant and the Committee by the period the applicant takes to furnish the additional information or submissions.
(d) The Exemptions Committee may, after considering the application in terms of the provisions and the criteria contained in this clause, grant, partially grant, or reject such application for exemption, and may impose any conditions on the granting or partial granting of any application it deems fit under the circumstances. If the applicant is not prepared to accept a partial granting of the application or any conditions imposed by the Exemptions Committee, the application shall be deemed to have been rejected.
(e) Subject to the time period for considering the application, application referred to in subclause (b) above, should the Exemptions Committee be unable to agree, the application shall be deemed to have been rejected and the reasoning of the members of the Exemptions Committee who wish to reject the application shall constitute the reasons of the Committee for the purposes of subclause 4 (i) below.
(f) The Exemptions Committee shall notify the applicant of its decision within seven days of such decision having been reached.
(g) If the application has been granted or partially granted, the Exemptions Committee shall specify the following in its notification to the applicant:
(i) The conditions, if any, of its approval of the application;
(ii) the period for which the exemption(s) will be valid;'
(iii) the clauses or subclauses of this part of the Agreement in respect of which exemption was granted or partially granted; and
(iv) the full name of the exempt employer or employee(s).
(h) Upon receipt of a written request, the Exemptions Committee shall provide brief written reasons for its decision to grant the exemption to any party which has an interest in the matter.
(i) If the application for exemption is rejected or partially approved, the Exemptions Committee shall provide concise written reasons for such rejection or partial approval to the applicant within seven days of its decision: Provided that such reasons given by the Exemptions Committee shall not bind the Independent Exemptions Body (Exemptions Board) in considering any appeal provided for in subclause (5) below since the latter may make a decision on appeal in accordance with such reasons as he or she deems appropriate, subject to the provisions of this clause insofar as it applies to the Independent Exemptions Body.
(a) Any decision of the Exemptions Committee to reject, partially approve or withdraw the application may be referred on appeal to the Independent Exemptions Body (Exemptions Board) hereby established in terms of the Act and the constitution of the Council. Such application shall be lodged within not more than 30 days of the applicant's being notified of the decision of the Exemptions Committee. The Exemptions Board may condone a late appeal on good cause shown.
(b) The Exemptions Board shall have the power to levy a fee payable by the appellant and to determine the quantum thereof: Provided that such a fee shall be consistent with-
(i) the cost incurred for the hearing of the appeal;
(ii) the cost incurred by the Council for the hearing of the appeal where the Exemptions Board is satisfied that such an appeal is without merit.
(c) The Exemptions Board shall shall, in addition, have the power to raise a cost order on the applicant in respect of costs incurred by the parties to the appeal where it is satisfied that it will be proper to do so on the basis that the appeal is so completely without merit that it would be justified in doing so.
(a) The Exemptions Board shall consist of a single independent umpire appointed by the parties from a panel selected for this purpose.
(b) The Exemptions Board shall determine the procedure to be adopted in determining the appeal.
(c) The provisions of subclause (4) above shall, read with the changes required by the context, apply equally to the appeal process.
(d) The decision of the Exemptions Board shall be final and binding.
(7) The applicant shall satisfy the Executive Committee of the Council or the Exemptions Committee and, where applicable, the Exemptions Board of the following:
(a) There is a demonstrable commercial need for the exemption.
(b) Competitors covered by the Council who are in compliance with the applicable Council agreements will not be materially prejudiced by the exemption.
(c) The applicant is not in arrears with respect to payment of Bargaining Council levies or employer or employee contributions and/or trade union/employer subscriptions and/or levies, or, if so, an agreed payment plan exists in respect of any such outstanding moneys. "Arrears", for this purpose, means any payment of Bargaining Council levies or employer or employee or trade union subscriptions which remain unpaid as at the last day of the month following the month in respect of which the payment is due.
(d) No infringement of the Basic Conditions of Employment Act or the Labour Relations Act will result if the exemption is granted, nor will the application, if granted, result in a conflict with the primary objectives of the Act.
(de) The exemption will not undermine collective bargaining and labour peace in the Industryindustry.
(ef) There has been compliance with subclause (3) above.
(fg) The majority of affected employees at the plant are in favour of the proposed exemption if it affects wages, benefit fund contributions, or levies. In such instance, either the employer, or the trade union may request that a ballot be conducted.
(8) In addition, the following criteria shall be taken into account by the Exemptions Committee and the Exemptions Board when determining applications for exemptions:
(a) The merits of the written and oral (if any) motivation provided by the applicant, the documentation supporting the application and, in particular, whether the applicant has made a compelling case for the exemption.
(b) Whether the applicant firm will constitute a viable concern after the expiry of the exemption.
(c) If the exemption sought is from any employee benefit fund, the sufficiency of the alternative benefit proposed by the applicant, including such factors as the cost to the employee., transferability, administration, management, costs, growth and stability.
(d) The terms . "Sufficiency" for the purposes of this subclause, means that in all material respects the exemption soughtalternative proposed is at least equal to, including the period thereof.
(e) Any existing or projected special financial, economic or other circumstances put forward by the applicant as reasons warranting the granting of an exemption, including what economic hardship the applicant will suffer if the applicant is refused: Provided that the Executive committee of the Council or the Exemptions Committee or the Exemptions Board may require the disclosure of such relevant, verifiable information as it deems fit in this regard.
(f) The history of the business entity and/or its shareholders, directors and owners within the Industry, including the period of its operation and in particular whether or not the entity is a new emerging enterprise or a small or medium enterprise (SME); and its history of compliance with Council agreements.
(g) Any representations made by the employees and/or their representatives, including a registered trade unionbetter than, the relevant Council or Executive Committee or Exemptions Committee and/or the parties to the Council and/or the relevant Regional Chamber of the Councilbenefit fund.
(h) Any possible alternatives which may be acceptable to the applicant and/or any other interested party in the circumstances.
(i) The cost, efficiency and administration of any conditions which the Executive Committee of the Council or the Exemptions Committee or the Exemptions Board may feel it necessary to impose.
(j) What cost-saving measures may have been implemented by the applicant other than those in respect of its cost of labour.
(k) What hardship may eventuate to employees in the event of the exemption being granted.
(l) Any relevant time limits contained in the Council's constitution and the Act, and in particular that any exemption or partial granting of an exemption shall be for a fixed, stipulated period.
(m) Any other relevant factors, including any decisions of the Council relevant to exemption applications.
(a) An applicant shall be entitled to apply on the prescribed form to the General Secretary of the Council for the extension of any exemption granted by either the Regional Exemptions Committee or the Exemptions Board. An application for extension shall contain such additional information as may be necessary and required to substantiate the request with reference to the criteria set out in subclause (7) above.
(b) The procedure and requirements for considering and determining an application for extension shall be in accordance with the provisions of subclause (4) above, read with the changes required by the context.
(10) Employers employing five or fewer employees shall, upon application to the Council through the General Secretary, be exempted from the provisions of this part of the Agreement.
Appears in 1 contract
Sources: Collective Agreement
Exemptions. A. For any business entity registered with and falling within the Council's registered scope inasmuch as it relates to the scope of this part of the Agreement
(1) Any business entity, whether a party or a non-party to the Council, which is registered with and falls within the Council's registered scope for the purposes of this part of the Agreement may apply to the Council for exemption from any or all of the provisions of this part of the Agreement.
(2) All applications for exemption shall be made in writing on a prescribed form provided by the Council.
(3) All applications for exemption shall be motivated in accordance with the exemption criteria set out in subclause subclause
(7) below; shall be supported by relevant documentation and, in addition, shall contain the following information:
(a) The period for which the exemption is sought;
(b) the number of employees affected and how many of such employees are members of a registered trade union;
(c) the clauses and subclauses of this part of the Agreement from which the exemption is sought;
(d) satisfactory proof that the applicant has consulted, or will consult, its employees at plant level in respect of the exemption sought, which consultations shall include a registered party trade union, where such union has members employed at the workplace, and shall include the response resulting from such consultations; and
(e) the demonstrable commercial need of the applicant for the exemption sought.
(a) The General Secretary of the Council or the Regional Secretary of the Regional Chamber concerned, or in their absence any other officer designated by the Executive Committee, shall forthwith refer the full exemption application to –
(i) the Exemptions Committee, established in terms of clause 12.3 (read with clause 3.9) of the Constitution of the Council, which shall have delegated power to deal with such application on behalf of the Council;
(ii) the Management Committee which may make representations to the Exemptions Committee concerning an application for exemption from any of its clauses in terms of this clause.
(iii) the Management Committee must lodge any representations it makes with the Exemptions Committee within 30 days of receiving the application and, in addition, must serve a copy on the applicant who shall have 15 days to respond in writing.
(b) The Exemptions Committee shall consider and determine the application in accordance with the criteria set out in subclause sub-clauses (7) and (8) below, within 30 45 days from the date of lodgement of the application with the General or Regional Secretary, or if the Management Committee has made representations in terms of paragraph (a) within 30 days of those representations being lodged with the Council, failing which the application shall be deemed to have been rejectedrefused.
(c) The Exemptions Committee may call for any further information or submissions it deems appropriate from the applicant, prior to making a decision. The time period stipulated in subclause (b) above may be extended by agreement between the applicant and the Committee by the period the applicant takes to furnish the additional information or submissions.
(d) The Exemptions Committee may, after considering the application in terms of the provisions and the criteria contained in this clause, grant, partially grant, or reject such application for exemption, and may impose any conditions on the granting or partial granting of any application it deems fit under the circumstances. If the applicant is not prepared to accept a partial granting of the application or any conditions imposed by the Exemptions Committee, the application shall be deemed to have been rejected.
(e) Subject to the time period for considering the application, application referred to in subclause (b) above, should the Exemptions Committee be unable to agree, the application shall be deemed to have been rejected and the reasoning of the members of the Exemptions Committee who wish to reject the application shall constitute the reasons of the Committee for the purposes of subclause 4 (i) below.
(f) The Exemptions Committee shall notify the applicant of its decision within seven days of such decision having been reached.
(g) If the application has been granted or partially granted, the Exemptions Committee shall specify the following in its notification to the applicant:
(i) The conditions, if any, of its approval of the application;
(ii) the period for which the exemption(s) will be valid;'
(iii) the clauses or subclauses of this part of the Agreement in respect of which exemption was granted or partially granted; and
(iv) the full name of the exempt employer or employee(s).
(h) Upon receipt of a written request, the Exemptions Committee shall provide brief written reasons for its decision to grant the exemption to any party which has an interest in the matter.
(i) If the application for exemption is rejected or partially approved, the Exemptions Committee shall provide concise written reasons for such rejection or partial approval to the applicant within seven days of its decision: Provided that such reasons given by the Exemptions Committee shall not bind the Independent Exemptions Body (Exemptions Board) in considering any appeal provided for in subclause (5) below since the latter may make a decision on appeal in accordance with such reasons as he or she deems appropriate, subject to the provisions of this clause insofar as it applies to the Independent Exemptions Body.
(a) Any decision of the Exemptions Committee to reject, partially approve or withdraw the application may be referred on appeal to the Independent Exemptions Body (Exemptions Board) hereby established in terms of the Act and the constitution of the Council. Such application shall be lodged within not more than 30 days of the applicant's being notified of the decision of the Exemptions Committee. The Exemptions Board may condone a late appeal on good cause shown.
(b) The Exemptions Board shall have the power to levy a fee payable by the appellant and to determine the quantum thereof: Provided that such fee shall be consistent with-
(i) the cost incurred for the hearing of the appeal;
(ii) the cost incurred by the Council for the hearing of the appeal where the Exemptions Board is satisfied that such an appeal is without merit.
(c) The Exemptions Board shall in addition, have the power to raise a cost order on the applicant in respect of costs incurred by the parties to the appeal where it is satisfied that it will be proper to do so on the basis that the appeal is so completely without merit that it would be justified in doing so.
(a) The Exemptions Board shall consist of a single independent umpire appointed by the parties from a panel selected for this purpose.
(b) The Exemptions Board shall determine the procedure to be adopted in determining the appeal.
(c) The provisions of subclause (4) above shall, read with the changes required by the context, apply equally to the appeal process.
(d) The decision of the Exemptions Board shall be final and binding.
(7) The applicant shall satisfy the Executive Committee of the Council or the Exemptions Committee and, where applicable, the Exemptions Board of the following:
(a) There is a demonstrable commercial need for the exemption.
(b) Competitors covered by the Council who are in compliance with the applicable Council agreements will not be materially prejudiced by the exemption.
(c) No infringement of the Basic Conditions of Employment Act or the Labour Relations Act will result if the exemption is granted, nor will the application, if granted, result in a conflict with the primary objectives of the Act.
(d) The exemption will not undermine collective bargaining and labour peace in the Industry.
(e) There has been compliance with subclause (3) above.
(f) The majority of affected employees at the plant are in favour of the proposed exemption if it affects wages, benefit fund contributions, or levies. In such instance, either the employer, or the trade union may request that a ballot be conducted.
(8) In addition, the following criteria shall be taken into account by the Exemptions Committee and the Exemptions Board when determining applications for exemptions:
(a) The merits of the written and oral (if any) motivation provided by the applicant, the documentation supporting the application and, in particular, whether the applicant has made a compelling case for the exemption.
(b) Whether the applicant firm will constitute a viable concern after the expiry of the exemption.
(c) If the exemption sought is from any employee benefit fund, the sufficiency of the alternative benefit proposed by the applicant, including such factors as the cost to the employee, transferability, administration, management, costs, growth and stability.
(d) The terms of the exemption sought, including the period thereof.
(e) Any existing or projected special financial, economic or other circumstances put forward by the applicant as reasons warranting the granting of an exemption, including what economic hardship the applicant will suffer if the applicant is refused: Provided that the Executive committee of the Council or the Exemptions Committee or the Exemptions Board may require the disclosure of such relevant, verifiable information as it deems fit in this regard.
(f) The history of the business entity and/or its shareholders, directors and owners within the Industry, including the period of its operation and in particular whether or not the entity is a new emerging enterprise or a small or medium enterprise (SME); and its history of compliance with Council agreements.
(g) Any representations made by the employees and/or their representatives, including a registered trade union, the Council or Executive Committee or Exemptions Committee and/or the parties to the Council and/or the relevant Regional Chamber of the Council.
(h) Any possible alternatives which may be acceptable to the applicant and/or any other interested party in the circumstances.
(i) The cost, efficiency and administration of any conditions which the Executive Committee of the Council or the Exemptions Committee or the Exemptions Board may feel it necessary to impose.
(j) What cost-saving measures may have been implemented by the applicant other than those in respect of its cost of labour.
(k) What hardship may eventuate to employees in the event of the exemption being granted.
(l) Any relevant time limits contained in the Council's constitution and the Act, and in particular that any exemption or partial granting of an exemption shall be for a fixed, stipulated period.
(m) Any other relevant factors, including any decisions of the Council relevant to exemption applications.
(a) An applicant shall be entitled to apply on the prescribed form to the General Secretary of the Council for the extension of any exemption granted by either the Regional Exemptions Committee or the Exemptions Board. An application for extension shall contain such additional information as may be necessary and required to substantiate the request with reference to the criteria set out in subclause (7) above.
(b) The procedure and requirements for considering and determining an application for extension shall be in accordance with the provisions of subclause (4) above, read with the changes required by the context.
(10) Employers employing five or fewer employees shall, upon application to the Council through the General Secretary, be exempted from the provisions of this part of the Agreement.subclause
Appears in 1 contract
Exemptions. A. For any business entity registered with and falling within the Council's registered scope inasmuch as it relates to the scope of this part of the Agreement
(1) Any business entity, whether a party or a non-party to the Council, which is registered with and falls within the Council's registered scope for the purposes of this part of the Agreement may apply to the Council for exemption from any or all of the provisions of this part of the Agreement.
(2) All applications for exemption shall be made in writing (on a prescribed an application form as provided by the Council) and shall be addressed to the Secretary of the Council.
(2) The Council hereby establishes an Exemptions Body constituted of the Compliance Committee appointed by the Council to consider all applications for exemptions of the Council’s Collective Agreement.
(3) Any person subject to the constitution/agreement may apply for exemption.
(4) The Council shall decide an application for exemption within 30 days of receipt.
(5) All applications applicants for exemption shall be motivated substantiated, and such substantiation shall include the following details:
(a) The period for which the exemption is required;
(b) the Agreement and clauses or sub-clauses 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 accordance support of or against the application, are to be included with the exemption criteria set out in subclause application.
(6) Upon receipt of a valid application by the Council it shall immediately refer the application to the Exemptions Body which may, if deemed expedient, request the applicant to attend the meeting at which the application is considered, to facilitate the deliberations.
(7) below; shall be supported by relevant documentation andThe authority of the Council is to consider applications for exemptions and grant exemptions. .
(8) In considering the application, the Council or the Independent Exemptions Body in additionthe case of an appeal, shall contain take into consideration all relevant factors, which may include, but shall not be limited to, the following informationexemption criteria:
(a) The period for which the exemption is sought;.
(b) the The number of employees affected and how many of such employees are members of a registered trade union;
(c) the clauses and subclauses of this part of the Agreement from which the exemption is sought;
(d) satisfactory proof that the applicant has consulted, or will consult, its employees at plant level in respect of the exemption sought, which consultations shall include a registered party trade union, where such union has members employed at the workplace, and shall include the response resulting from such consultations; and
(e) the demonstrable commercial need of the applicant for the exemption sought.
(a) The General Secretary of the Council or the Regional Secretary of the Regional Chamber concerned, or in their absence any other officer designated by the Executive Committee, shall forthwith refer the full exemption application to the Exemptions Committee, which shall have delegated power to deal with such application on behalf of the Council.
(b) The Exemptions Committee shall consider and determine the application in accordance with the criteria set out in subclause (7) below, within 30 days from the date of lodgement of the application with the General Secretary, failing which the application shall be deemed to have been rejected.
(c) The Exemptions Committee may call for any further information or submissions it deems appropriate from written and verbal substantiation provided by the applicant, prior to making a decision. The time period stipulated in subclause (b) above may be extended by agreement between the applicant and the Committee by the period the applicant takes to furnish the additional information or submissions.
(d) The Exemptions Committee may, after considering the application in terms of the provisions Be accompanied by relevant supporting data and the criteria contained in this clause, grant, partially grant, or reject such application for exemption, and may impose any conditions on the granting or partial granting of any application it deems fit under the circumstances. If the applicant is not prepared to accept a partial granting of the application or any conditions imposed by the Exemptions Committee, the application shall be deemed to have been rejectedfinancial information.
(e) Subject to the time period for considering the application, referred to in subclause (b) above, should the Exemptions Committee be unable to agree, the application shall be deemed to have been rejected and the reasoning terms of the members of the Exemptions Committee who wish to reject the application shall constitute the reasons of the Committee for the purposes of subclause 4 (i) below.exemption;
(f) The Exemptions Committee shall notify the applicant of its decision within seven days of such decision having been reached.
(g) If the application has been granted or partially granted, the Exemptions Committee shall specify the following in its notification to the applicant:
(i) The conditions, if any, of its approval effect of the application;
(ii) the period for which the exemption(s) will be valid;
(iii) the clauses or subclauses of this part of the Agreement in respect of which exemption was granted or partially granted; and
(iv) the full name of the exempt employer or employee(s).
(h) Upon receipt of a written request, the Exemptions Committee shall provide brief written reasons for its decision to grant the exemption to any party which has an interest in the matter.
(i) If the application for exemption is rejected or partially approved, the Exemptions Committee shall provide concise written reasons for such rejection or partial approval to the applicant within seven days of its decision: Provided that such reasons given by the Exemptions Committee shall not bind the Independent Exemptions Body (Exemptions Board) in considering any appeal provided for in subclause (5) below since the latter may make a decision on appeal in accordance with such reasons as he or she deems appropriate, subject to the provisions of this clause insofar as it applies to the Independent Exemptions Body.
(a) Any decision of the Exemptions Committee to reject, partially approve or withdraw the application may be referred on appeal to the Independent Exemptions Body (Exemptions Board) hereby established in terms of the Act and the constitution of the Council. Such application shall be lodged within not more than 30 days of the applicant's being notified of the decision of the Exemptions Committee. The Exemptions Board may condone a late appeal on good cause shown.
(b) The Exemptions Board shall have the power to levy a fee payable by the appellant and to determine the quantum thereof: Provided that such fee shall be consistent with-
(i) the cost incurred for the hearing of the appeal;
(ii) the cost incurred by the Council for the hearing of the appeal where the Exemptions Board is satisfied that such an appeal is without merit.
(c) The Exemptions Board shall in addition, have the power to raise a cost order on the applicant in respect of costs incurred by the parties to the appeal where it is satisfied that it will be proper to do so on the basis that the appeal is so completely without merit that it would be justified in doing so.
(a) The Exemptions Board shall consist of a single independent umpire appointed by the parties from a panel selected for this purpose.
(b) The Exemptions Board shall determine the procedure to be adopted in determining the appeal.
(c) The provisions of subclause (4) above shall, read with the changes required by the context, apply equally to the appeal process.
(d) The decision of the Exemptions Board shall be final and binding.
(7) The applicant shall satisfy the Executive Committee of the Council or the Exemptions Committee and, where applicable, the Exemptions Board of the following:
(a) There is a demonstrable commercial need for the exemption.
(b) Competitors covered by the Council who are in compliance with the applicable Council agreements will not be materially prejudiced by the exemption.
(c) No infringement of the Basic Conditions of Employment Act or the Labour Relations Act will result if the exemption is granted, nor will the application, if granted, result in a conflict with the primary objectives of the Act.
(d) The exemption will not undermine collective bargaining and labour peace in the Industry.
(e) There has been compliance with subclause (3) above.
(f) The majority of affected employees at the plant are in favour of the proposed exemption if it affects wages, benefit fund contributions, or levies. In such instance, either the employer, or the trade union may request that a ballot be conducted.
(8) In addition, the following criteria shall be taken into account by the Exemptions Committee and the Exemptions Board when determining applications for exemptions:
(a) The merits of the written and oral (if any) motivation provided by the applicant, the documentation supporting the application and, in particular, whether the applicant has made a compelling case for the exemption.
(b) Whether the applicant firm will constitute a viable concern after the expiry of the exemption.
(c) If the exemption sought is from any employee benefit fund, the sufficiency of fund or training provision in relation to the alternative comparable bona fide benefit proposed by the applicantor provision, including such factors as the cost to the employee, transferability, administration, management, costsadministration management and cost, growth and stability.
(d) The terms of the exemption sought, including the period thereof.
(e) Any existing or projected special financial, economic or other circumstances put forward by the applicant as reasons warranting the granting of an exemption, including what economic hardship the applicant will suffer if the applicant is refused: Provided that the Executive committee of the Council or the Exemptions Committee or the Exemptions Board may require the disclosure of such relevant, verifiable information as it deems fit in this regard.
(f) The history of the business entity and/or its shareholders, directors and owners within the Industry, including the period of its operation and in particular whether or not the entity is a new emerging enterprise or a small or medium enterprise (SME); and its history of compliance with Council agreements.;
(g) Any representations made 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 employees and/or their representatives, including a registered trade union, workforce in the Council or Executive Committee or Exemptions Committee and/or the parties to the Council and/or the relevant Regional Chamber of the Councilapplication.
(h) Any possible alternatives which may Where the views of the workforce differ from that of the employer, the reasons for the views expressed must be acceptable to submitted with the applicant and/or any other interested party in the circumstancesapplication.
(i) The costAn application for exemption shall not be considered unless the employees or their representatives have been properly consulted and their views fully recorded in an accompanying document. Where an agreement between the employer and the workforce is reached, efficiency and administration of any conditions which the Executive Committee of singed written agreement must accompany the Council or the Exemptions Committee or the Exemptions Board may feel it necessary to imposeapplication.
(j) What cost-saving measures may have been implemented If the nature of the relief sought dictates, the application shall be accompanied by a plan reflecting the applicant other than those in respect of its cost of labourobjectives and strategies to be adopted to rectify the situation giving rise to the application and indicating a time frame for the plan.
(k) What hardship may eventuate to employees in The applicant’s past record (if applicable) of compliance with the event provisions of the exemption being grantedthis agreement, its amendments and Exemptions Certificate.
(l) Any relevant time limits contained in the Council's constitution and the Act, and in particular any precedent that any exemption or partial granting of an exemption shall might be for a fixed, stipulated period.set;
(m) Any it is fair to both the employer, its employees and other relevant factors, including any decisions employees in the sector;
(n) it does not undermine this Agreement;
(o) reporting requirements by the applicant and monitoring and re-evaluation processes; and
(p) it will make a material difference to the viability of a business;
(q) it will assist with unexpected economic hardship occurring during the currency of the Council relevant to exemption applicationsAgreement and will save unnecessary job losses.
(ar) An applicant shall be entitled to apply on the prescribed form to the General Secretary interest of the Council for the extension of any exemption granted by either the Regional Exemptions Committee or the Exemptions Board. An application for extension shall contain such additional information industry as may be necessary and required to substantiate the request with reference to the criteria set out in subclause (7) above.regards:
(bi) The procedure and requirements for considering and determining an application for extension shall be in accordance with the provisions of subclause (4) above, read with the changes required by the context.unfair competition;
(10ii) Employers employing five or fewer employees shall, upon application to collective bargaining;
(iii) potential for labour unrest;
(iv) increased employment;
(s) the Council through interest of employees’ as regards:
(i) exploitation;
(ii) job preservation;
(iii) sound conditions of employment;
(iv) possible financial benefits;
(v) health and safety;
(vi) infringement of basic rights
(t) the General Secretary, be exempted from the provisions of this part interest of the Agreement.employer as regards:
(i) financial stability;
(ii) impact on productivity;
(iii) future relationship with employees’ trade union;
(iv) operational requirements
(v) any special circumstance that exist;
Appears in 1 contract
Sources: Collective Agreement
Exemptions. A. For any business entity registered with and falling within the Council's registered scope inasmuch as it relates to the scope of this part of the Agreement
(1) Any business entity, whether a party or a non-party to the Council, which is registered with and falls within the Council's registered scope for the purposes of this part of the Agreement may apply to the Council for exemption from any or all of the provisions of this part of the Agreement.
(2) All applications for exemption shall be made in writing on a prescribed form provided by the Council.
(3) All applications for exemption shall be motivated in accordance with the exemption criteria set out in subclause (7) below; shall be supported by relevant documentation and, in addition, shall contain the following information:
(a) The the period for which the exemption is sought;
(b) the number of employees affected and how many of such employees are members of a registered trade union;
(c) the clauses and subclauses of this part of the Agreement from which the exemption is sought;
(d) satisfactory proof that the applicant has consulted, or will consult, its employees at plant level in respect of the exemption sought, which consultations shall include a registered party trade union, where such union has members employed at the workplace, and shall include the response resulting from such consultations; and
(e) the demonstrable commercial need of the applicant for the exemption sought.
(a) The General Secretary of the Council or the Regional Secretary of the Regional Chamber concerned, or in their absence any other officer designated by the Executive Committee, shall forthwith refer the full exemption application to the Exemptions Committee, which shall have delegated power to deal with such application on behalf of the Council.
(b) The Exemptions Committee shall consider and determine the application in accordance with the criteria set out in subclause (7) below, within 30 days from the date of lodgement of the application with the General Secretary, failing which the application shall be deemed to have been rejectedrefused.
(c) The Exemptions Committee may call for any further information or submissions it deems appropriate from the applicant, prior to making a decision. The time period stipulated in subclause (b) above may be extended by agreement between the applicant and the Committee by the period the applicant takes to furnish the additional information or submissions.
(d) The Exemptions Committee may, after considering the application in terms of the provisions and the criteria contained in this clause, grant, partially grant, or reject such application for exemption, and may impose any conditions on the granting or partial granting of any application it deems fit under the circumstances. If the applicant is not prepared to accept a partial granting of the application or any conditions imposed by the Exemptions Committee, the application shall be deemed to have been rejected.
(e) Subject to the time period for considering the application, referred to in subclause (b) above, should the Exemptions Committee be unable to agree, the application shall be deemed to have been rejected and the reasoning of the members of the Exemptions Committee who wish to reject the application shall constitute the reasons of the Committee for the purposes of subclause 4 4
(i) below.
(f) The Exemptions Committee shall notify the applicant of its decision within seven days of such decision having been reached.
(g) If the application has been granted or partially granted, the Exemptions Committee shall specify the following in its notification to the applicant:
(i) The the conditions, if any, of its approval of the application;
; (ii) the period for which the exemption(s) will be valid;
(iii) the clauses or subclauses of this part of the Agreement in respect of which exemption was granted or partially granted; and
(iv) the full name of the exempt employer or employee(s).
(h) Upon receipt of a written request, the Exemptions Committee shall provide brief written reasons for its decision to grant the exemption to any party which has an interest in the matter.
(i) If the application for exemption is rejected or partially approved, the Exemptions Committee shall provide concise written reasons for such rejection or partial approval to the applicant within seven days of its decision: Provided that such reasons given by the Exemptions Committee shall not bind the Independent Exemptions Body (Exemptions Board) in considering any appeal provided for in subclause (5) below since the latter may make a decision on appeal in accordance with such reasons as he or she deems appropriate, subject to the provisions of this clause insofar as it applies to the Independent Exemptions Body.
(a) Any decision of the Exemptions Committee to reject, partially approve or withdraw the application may be referred on appeal to the Independent Exemptions Body (Exemptions Board) hereby established in terms of the Act and the constitution of the Council. Such application shall be lodged within not more than 30 days of the applicant's being notified of the decision of the Exemptions Committee. The Exemptions Board may condone a late appeal on good cause shown.
(b) The Exemptions Board shall have the power to levy a fee payable by the appellant and to determine the quantum thereof: Provided that such fee shall be consistent with-
(i) the cost incurred for the hearing of the appeal;
(ii) the cost incurred by the Council for the hearing of the appeal where the Exemptions Board is satisfied that such an appeal is without merit.
(c) The Exemptions Board shall in addition, have the power to raise a cost order on the applicant in respect of costs incurred by the parties to the appeal where it is satisfied that it will be proper to do so on the basis that the appeal is so completely without merit that it would be justified in doing so.
(a) The Exemptions Board shall consist of a single independent umpire appointed by the parties from a panel selected for this purpose.
(b) The Exemptions Board shall determine the procedure to be adopted in determining the appeal.
(c) The provisions of subclause (4) above shall, read with the changes required by the context, apply equally to the appeal process.
(d) The decision of the Exemptions Board shall be final and binding.
(7) The applicant shall satisfy the Executive Committee of the Council or the Exemptions Committee and, where applicable, the Exemptions Board of the following:
(a) There is a demonstrable commercial need for the exemption.
(b) Competitors covered by the Council who are in compliance with the applicable Council agreements will not be materially prejudiced by the exemption.
(c) No infringement of the Basic Conditions of Employment Act or the Labour Relations Act will result if the exemption is granted, nor will the application, if granted, result in a conflict with the primary objectives of the Act.
(d) The exemption will not undermine collective bargaining and labour peace in the Industry.
(e) There has been compliance with subclause (3) above.
(f) The majority of affected employees at the plant are in favour of the proposed exemption if it affects wages, benefit fund contributions, or levies. In such instance, either the employer, or the trade union may request that a ballot be conducted.
(8) In addition, the following criteria shall be taken into account by the Exemptions Committee and the Exemptions Board when determining applications for exemptions:
(a) The merits of the written and oral (if any) motivation provided by the applicant, the documentation supporting the application and, in particular, whether the applicant has made a compelling case for the exemption.
(b) Whether the applicant firm will constitute a viable concern after the expiry of the exemption.
(c) If the exemption sought is from any employee benefit fund, the sufficiency of the alternative benefit proposed by the applicant, including such factors as the cost to the employee, transferability, administration, management, costs, growth and stability.
(d) The terms of the exemption sought, including the period thereof.
(e) Any existing or projected special financial, economic or other circumstances put forward by the applicant as reasons warranting the granting of an exemption, including what economic hardship the applicant will suffer if the applicant is refused: Provided that the Executive committee of the Council or the Exemptions Committee or the Exemptions Board may require the disclosure of such relevant, verifiable information as it deems fit in this regard.
(f) The history of the business entity and/or its shareholders, directors and owners within the Industry, including the period of its operation and in particular whether or not the entity is a new emerging enterprise or a small or medium enterprise (SME); and its history of compliance with Council agreements.
(g) Any representations made by the employees and/or their representatives, including a registered trade union, the Council or Executive Committee or Exemptions Committee and/or the parties to the Council and/or the relevant Regional Chamber of the Council.
(h) Any possible alternatives which may be acceptable to the applicant and/or any other interested party in the circumstances.
(i) The cost, efficiency and administration of any conditions which the Executive Committee of the Council or the Exemptions Committee or the Exemptions Board may feel it necessary to impose.
(j) What cost-saving measures may have been implemented by the applicant other than those in respect of its cost of labour.
(k) What hardship may eventuate to employees in the event of the exemption being granted.
(l) Any relevant time limits contained in the Council's constitution and the Act, and in particular that any exemption or partial granting of an exemption shall be for a fixed, stipulated period.
(m) Any other relevant factors, including any decisions of the Council relevant to exemption applications.
(a) An applicant shall be entitled to apply on the prescribed form to the General Secretary of the Council for the extension of any exemption granted by either the Regional Exemptions Committee or the Exemptions Board. An application for extension shall contain such additional information as may be necessary and required to substantiate the request with reference to the criteria set out in subclause (7) above.
(b) The procedure and requirements for considering and determining an application for extension shall be in accordance with the provisions of subclause (4) above, read with the changes required by the context.
(10) Employers employing five or fewer employees shall, upon application to the Council through the General Secretary, be exempted from the provisions of this part of the Agreement.
Appears in 1 contract
Sources: National Main Collective Agreement
Exemptions. A. For any business entity registered with and falling within the Council's registered scope inasmuch as it relates to the scope 11.1 In terms of this part Section 32 of the Agreement
Labour Relations Act, 1995 the Council hereby establishes an Independent Exemptions Body (1hereinafter referred to as “the Board”) Any business entity, which will consider any appeal brought against the Council in respect of the refusal by Council to grant an exemption whether it be a party or a non-party non- party, or to consider any appeal against the withdrawal of an exemption by the Council, which is registered with . The Board shall be made up of a member from the Arbitration and falls within the Council's registered scope for the purposes Independent Mediation Services of this part of the Agreement may apply to the Council for exemption from any or all of the provisions of this part of the AgreementSouth Africa (AMSSA) panel.
(2) 11.2 All applications for exemption shall be made in writing on a prescribed the specified form provided by and shall initially be addressed to the to the Secretary of the Council.
(3) 11.3 All applications for exemption shall be motivated in accordance with the exemption criteria set out in subclause (7) below; fully reasoned and substantiated, and such reasons and substantiation shall be supported by relevant documentation and, in addition, shall contain include the following informationdetails:
(a) 11.3.1 The period for which the exemption is sought;required.
(b) 11.3.2 The Agreement and the number of employees affected and how many of such employees are members of a registered trade union;
(c) the sub clauses and subclauses of this part of the Agreement from which exemption is required.
11.3.3 Proof that the exemption is sought;
(d) satisfactory proof that applied for has been discussed by the applicant has consultedemployer, or will consult, its his employees at plant level in respect of the exemption sought, which consultations shall include a registered party trade union, where such union has members employed at the workplace, and shall include the response their respective representatives. The responses resulting from such consultations; and, either in support of or against the application, are to be included with the application.
(e) 11.3.4 The specific alternate conditions that will apply should the demonstrable commercial need exemption be granted.
11.3.5 Financial documents in support of the applicant for application to the exemption sought.
(a) The General Secretary satisfaction of the Council or the Regional Board, as the case may be.
11.4 Upon receipt of a valid application for exemption the Secretary of the Regional Chamber concerned, or in their absence Council shall place the application for exemption on the agenda of the next Council Executive Committee meeting.
11.5 Council shall consider and decide on any other officer designated application within 30 days of it being received by the Executive CommitteeCouncil: Provided that Council may defer a decision to a following meeting if additional motivation, substantiation or information is considered necessary to decide on the application for exemption. The Council may determine the appropriate form of the hearing, but could provide for any party that has a material interest in the application to make submissions and address arguments to the Council.
11.6 In the event that Council does not consider an application for exemption within 30 days of receipt of the application, the Secretary of the Council shall forthwith refer the full exemption application to the Exemptions Committee, which Board for determination.
11.7 The Council and/or the Board shall have delegated power reference to deal with such application the following criteria in considering and deciding on behalf of the Council.
(b) The Exemptions Committee shall consider and determine the application in accordance with the criteria set out in subclause (7) below, within 30 days from the date of lodgement of the application with the General Secretary, failing which the application shall be deemed to have been rejected.
(c) The Exemptions Committee may call for any further information or submissions it deems appropriate from the applicant, prior to making a decision. The time period stipulated in subclause (b) above may be extended by agreement between the applicant and the Committee by the period the applicant takes to furnish the additional information or submissions.
(d) The Exemptions Committee may, after considering the application in terms of the provisions and the criteria contained in this clause, grant, partially grant, or reject such application for exemption, and may impose any conditions on the granting or partial granting of any application it deems fit under the circumstances. If the applicant is not prepared to accept a partial granting of the application or any conditions imposed by the Exemptions Committee, the application shall be deemed to have been rejected.
(e) Subject to the time period for considering the application, referred to in subclause (b) above, should the Exemptions Committee be unable to agree, the application shall be deemed to have been rejected and the reasoning of the members of the Exemptions Committee who wish to reject the application shall constitute the reasons of the Committee for the purposes of subclause 4 (i) below.
(f) The Exemptions Committee shall notify the applicant of its decision within seven days of such decision having been reached.
(g) If the application has been granted or partially granted, the Exemptions Committee shall specify the following in its notification to the applicant:
(i) 11.7.1 The conditions, if any, of its approval of the application;
(ii) the period exemption applied for which the exemption(s) will be valid;
(iii) the clauses or subclauses of this part of the Agreement in respect of which exemption was granted or partially granted; and
(iv) the full name of the exempt employer or employee(s).
(h) Upon receipt of a written request, the Exemptions Committee shall provide brief written reasons for its decision to grant the exemption to any party which has an interest in the matter.
(i) If the application for exemption is rejected or partially approved, the Exemptions Committee shall provide concise written reasons for such rejection or partial approval to the applicant within seven days of its decision: Provided that such reasons given by the Exemptions Committee shall not bind the Independent Exemptions Body (Exemptions Board) in considering any appeal provided for in subclause (5) below since the latter may make a decision on appeal in accordance with such reasons as he or she deems appropriate, subject to the provisions of this clause insofar as it applies to the Independent Exemptions Body.
(a) Any decision of the Exemptions Committee to reject, partially approve or withdraw the application may be referred on appeal to the Independent Exemptions Body (Exemptions Board) hereby established in terms of the Act and the constitution of the Council. Such application shall be lodged within not more than 30 days of the applicant's being notified of the decision of the Exemptions Committee. The Exemptions Board may condone a late appeal on good cause shown.
(b) The Exemptions Board shall have the power to levy a fee payable by the appellant and to determine the quantum thereof: Provided that such fee shall be consistent with-
(i) the cost incurred for the hearing of the appeal;
(ii) the cost incurred by the Council for the hearing of the appeal where the Exemptions Board is satisfied that such an appeal is without merit.
(c) The Exemptions Board shall in addition, have the power to raise a cost order on the applicant in respect of costs incurred by the parties to the appeal where it is satisfied that it will be proper to do so on the basis that the appeal is so completely without merit that it would be justified in doing so.
(a) The Exemptions Board shall consist of a single independent umpire appointed by the parties from a panel selected for this purpose.
(b) The Exemptions Board shall determine the procedure to be adopted in determining the appeal.
(c) The provisions of subclause (4) above shall, read with the changes required by the context, apply equally to the appeal process.
(d) The decision of the Exemptions Board shall be final and binding.
(7) The applicant shall satisfy the Executive Committee of the Council or the Exemptions Committee and, where applicable, the Exemptions Board of the following:
(a) There is a demonstrable commercial need for the exemption.
(b) Competitors covered by the Council who are in compliance with the applicable Council agreements will not be materially prejudiced by the exemption.
(c) No infringement of the Basic Conditions of Employment Act or the Labour Relations Act will result if the exemption is granted, nor will the application, if granted, result in a conflict with the primary objectives objects of the Act.;
(d) The 11.7.2 It shall not grant exemption will not unless it has formed the opinion that failure to grant exemption would seriously prejudice the applicant;
11.7.3 It shall consider the interests of the Industry, taking into account whether the granting of the exemption would:
11.7.3.1 unfairly undermine the collective bargaining and labour peace process;
11.7.3.2 in general adversely affect job security;
11.7.3.3 interfere with fair competition between the manufacturers in the Industry;
11.7.3.4 interfere with fair competition for jobs between workers in the Industry;
11.7.3.5 encourage unfair exploitation of workers;
11.7.3.6 cause health and safety to be adversely affected;
11.7.3.7 undermine training in the industry.
(e) There has been compliance with subclause (3) above.
(f) The majority of affected employees at 11.7.4 In the plant are in favour of event that the proposed exemption if it affects wages, benefit fund contributions, or levies. In such instance, either the employer, or the trade union may request that applicant is a ballot be conducted.
(8) In additionmanufacturer, the following criteria Board shall be taken take into account by the Exemptions Committee and the Exemptions Board when determining applications for exemptions:
(a) The merits of the written and oral (if any) motivation provided by the applicant, the documentation supporting the application and, in particular, whether the applicant has made a compelling case for the exemption.
(b) Whether the applicant firm will constitute a viable concern after the expiry of the exemption.
(c) If the exemption sought is from any employee benefit fund, the sufficiency of the alternative benefit proposed by the applicant, including such factors as the cost to the employee, transferability, administration, management, costs, growth and stability.
(d) The terms of the exemption sought, including the period thereof.
(e) Any existing or projected special financial, economic or other circumstances put forward by the applicant as reasons warranting how the granting of an exemption, including what economic hardship the applicant will suffer if the applicant is refused: Provided that the Executive committee of the Council or the Exemptions Committee or the Exemptions Board may require the disclosure of such relevant, verifiable information as it deems fit in this regard.exemptions would affect its:
(f) The history of the business entity and/or its shareholders, directors and owners within the Industry, including the period of its operation and in particular whether or not the entity is a new emerging enterprise or a small or medium enterprise (SME); and its history of compliance with Council agreements.11.7.4.1 financial position;
(g) Any representations made by the employees and/or their representatives, including a registered trade union, the Council or Executive Committee or Exemptions Committee and/or the parties to the Council and/or the relevant Regional Chamber of the Council.11.7.4.2 competitive position;
(h) Any possible alternatives which may be acceptable to the applicant and/or any other interested party in the circumstances.
(i) The cost, efficiency and administration of any conditions which the Executive Committee of the Council or the Exemptions Committee or the Exemptions Board may feel it necessary to impose.
(j) What cost-saving measures may have been implemented by the applicant other than those in respect of its cost of labour.
(k) What hardship may eventuate to employees in the event of the exemption being granted.
(l) Any relevant time limits contained in the Council's constitution and the Act, and in particular that any exemption or partial granting of an exemption shall be for a fixed, stipulated period.
(m) Any other relevant factors, including any decisions of the Council relevant to exemption applications.
(a) An applicant shall be entitled to apply on the prescribed form to the General Secretary of the Council for the extension of any exemption granted by either the Regional Exemptions Committee or the Exemptions Board. An application for extension shall contain such additional information as may be necessary and required to substantiate the request with reference to the criteria set out in subclause (7) above.
(b) The procedure and requirements for considering and determining an application for extension shall be in accordance with the provisions of subclause (4) above, read with the changes required by the context.
(10) Employers employing five or fewer employees shall, upon application to the Council through the General Secretary, be exempted from the provisions of this part of the Agreement.11.7.4.3 productivity;
Appears in 1 contract
Sources: Main Collective Agreement
Exemptions. A. For any business entity registered with and falling within the Council's registered scope inasmuch as it relates to the scope of this part of the Agreement
(1) Any business entityThe Administrator may, whether upon application, exempt any person from any requirement of sub- section (a) or (b) to permit such person to manu- facture or process a party or chemical substance for test marketing purposes—
(A) upon a non-party showing by such person satisfac- tory to the CouncilAdministrator that the manufac- ture, processing, distribution in commerce, use, and disposal of such substance, and that any combination of such activities, for such purposes will not present any unreasonable risk of injury to health or the environment, including an unreasonable risk to a poten- tially exposed or susceptible subpopulation identified by the Administrator for the spe- cific conditions of use identified in the appli- cation, and
(B) under such restrictions as the Adminis- trator considers appropriate.
(A) The Administrator may, upon applica- tion, exempt any person from the requirement of subsection (b)(2) to submit information for a chemical substance. If, upon receipt of an appli- cation under the preceding sentence, the Admin- istrator determines that—
(i) the chemical substance with respect to which such application was submitted is equivalent to a chemical substance for which information has been submitted to the Admin- istrator as required by subsection (b)(2), and
(ii) submission of information by the appli- cant on such substance would be duplicative of information which has been submitted to the Administrator in accordance with such sub- section, the Administrator shall exempt the applicant from the requirement to submit such informa- tion on such substance. No exemption which is registered granted under this subparagraph with respect to the submission of information for a chemical substance may take effect before the beginning of the reimbursement period applicable to such information.
(B) If the Administrator exempts any person, under subparagraph (A), from submitting infor- mation required under subsection (b)(2) for a chemical substance because of the existence of previously submitted information and falls within if such exemption is granted during the Council's registered scope reimbursement period for such information, then (unless such person and the persons referred to in clauses (i) and (ii) agree on the amount and method of re- imbursement) the Administrator shall order the person granted the exemption to provide fair and equitable reimbursement (in an amount de- termined under rules of the Administrator)—
(i) to the person who previously submitted the information on which the exemption was based, for a portion of the costs incurred by such person in complying with the require- ment under subsection (b)(2) to submit such information, and
(ii) to any other person who has been re- quired under this subparagraph to contribute with respect to such costs, for a portion of the amount such person was required to contrib- ute. In promulgating rules for the determination of fair and equitable reimbursement to the persons described in clauses (i) and (ii) for costs incurred with respect to a chemical substance, the Ad- ministrator shall, after consultation with the Attorney General and the Federal Trade Com- mission, consider all relevant factors, including the effect on the competitive position of the per- son required to provide reimbursement in rela- tion to the persons to be reimbursed and the share of the market for such substance of the person required to provide reimbursement in re- lation to the share of such market of the persons to be reimbursed. For purposes of judicial re- view, an order under this subparagraph shall be considered final agency action.
(C) For purposes of this part paragraph, the ▇▇▇▇- bursement period for any previously submitted information for a chemical substance is a pe- riod—
(i) beginning on the date of the Agreement may apply termination of the prohibition, imposed under this section, on the manufacture or processing of such sub- stance by the person who submitted such in- formation to the Council for exemption from any or all of the provisions of this part of the Agreement.Administrator, and
(2ii) All applications for exemption shall be made ending—
(I) five years after the date referred to in writing clause (i), or
(II) at the expiration of a period which be- gins on a prescribed form provided by the Councildate referred to in clause (i) and is equal to the period which the Adminis- trator determines was necessary to develop such information, whichever is later.
(3) All applications for exemption shall be motivated in accordance with the exemption criteria set out in subclause (7) below; shall be supported by relevant documentation and, in addition, shall contain the following information:
The requirements of subsections (a) The period for which the exemption is sought;
and (b) do not apply with respect to the number manufacturing or processing of employees affected and how many any chemical substance which is manufactured or processed, or proposed to be manufactured or processed, only in small quan- tities (as defined by the Administrator by rule) solely for purposes of—
(A) scientific experimentation or analysis, or
(B) chemical research on, or analysis of such employees are members substance or another substance, including such research or analysis for the development of a registered trade union;product, if all persons engaged in such experimentation, research, or analysis for a manufacturer or proc- essor are notified (in such form and manner as Page 1701 TITLE 15—COMMERCE AND TRADE § 2604 the Administrator may prescribe) of any risk to health which the manufacturer, processor, or the Administrator has reason to believe may be associated with such chemical substance.
(c4) The Administrator may, upon application and by rule, exempt the clauses and subclauses manufacturer of this any new chemical substance from all or part of the Agreement from which requirements of this section if the exemption is sought;
(d) satisfactory proof Adminis- trator determines that the applicant has consultedmanufacture, proc- essing, distribution in commerce, use, or dis- posal of such chemical substance, or that any combination of such activities, will consultnot present an unreasonable risk of injury to health or the environment, its employees at plant level in respect including an unreasonable risk to a potentially exposed or susceptible subpop- ulation identified by the Administrator under the conditions of the exemption sought, which consultations shall include a registered party trade union, where such union has members employed at the workplace, and shall include the response resulting from such consultations; and
(e) the demonstrable commercial need of the applicant for the exemption soughtuse.
(5) The Administrator may, upon application, make the requirements of subsections (a) The General Secretary of the Council or the Regional Secretary of the Regional Chamber concerned, or in their absence any other officer designated by the Executive Committee, shall forthwith refer the full exemption application to the Exemptions Committee, which shall have delegated power to deal with such application on behalf of the Council.
and (b) The Exemptions Committee shall consider and determine inapplicable with respect to the application in accordance with the criteria set out in subclause (7) below, within 30 days from the date of lodgement of the application with the General Secretary, failing which the application shall be deemed to have been rejected.
(c) The Exemptions Committee may call for any further information manufacturing or submissions it deems appropriate from the applicant, prior to making a decision. The time period stipulated in subclause (b) above may be extended by agreement between the applicant and the Committee by the period the applicant takes to furnish the additional information or submissions.
(d) The Exemptions Committee may, after considering the application in terms of the provisions and the criteria contained in this clause, grant, partially grant, or reject such application for exemption, and may impose any conditions on the granting or partial granting processing of any application it deems fit under the circumstances. If the applicant is not prepared to accept chemical substance (A) which exists temporarily as a partial granting of the application or any conditions imposed by the Exemptions Committee, the application shall be deemed to have been rejected.
(e) Subject to the time period for considering the application, referred to in subclause (b) above, should the Exemptions Committee be unable to agree, the application shall be deemed to have been rejected and the reasoning of the members of the Exemptions Committee who wish to reject the application shall constitute the reasons of the Committee for the purposes of subclause 4 (i) below.
(f) The Exemptions Committee shall notify the applicant of its decision within seven days of such decision having been reached.
(g) If the application has been granted or partially granted, the Exemptions Committee shall specify the following in its notification to the applicant:
(i) The conditions, if any, of its approval of the application;
(ii) the period for which the exemption(s) will be valid;
(iii) the clauses or subclauses of this part of the Agreement in respect of which exemption was granted or partially granted; and
(iv) the full name of the exempt employer or employee(s).
(h) Upon receipt result of a written request, the Exemptions Committee shall provide brief written reasons for its decision to grant the exemption to any party which has an interest chemi- cal reaction in the matter.
(i) If the application for exemption is rejected manufacturing or partially approved, the Exemptions Committee shall provide concise written reasons for such rejection or partial approval to the applicant within seven days of its decision: Provided that such reasons given by the Exemptions Committee shall not bind the Independent Exemptions Body (Exemptions Board) in considering any appeal provided for in subclause (5) below since the latter may make a decision on appeal in accordance with such reasons as he or she deems appropriate, subject to the provisions of this clause insofar as it applies to the Independent Exemptions Body.
(a) Any decision of the Exemptions Committee to reject, partially approve or withdraw the application may be referred on appeal to the Independent Exemptions Body (Exemptions Board) hereby established in terms of the Act and the constitution of the Council. Such application shall be lodged within not more than 30 days of the applicant's being notified of the decision of the Exemptions Committee. The Exemptions Board may condone a late appeal on good cause shown.
(b) The Exemptions Board shall have the power to levy a fee payable by the appellant and to determine the quantum thereof: Provided that such fee shall be consistent with-
(i) the cost incurred for the hearing of the appeal;
(ii) the cost incurred by the Council for the hearing of the appeal where the Exemptions Board is satisfied that such an appeal is without merit.
(c) The Exemptions Board shall in addition, have the power to raise a cost order on the applicant in respect of costs incurred by the parties to the appeal where it is satisfied that it will be proper to do so on the basis that the appeal is so completely without merit that it would be justified in doing so.
(a) The Exemptions Board shall consist processing of a single independent umpire appointed by the parties from a panel selected for this purpose.
(b) The Exemptions Board shall determine the procedure to be adopted in determining the appeal.
(c) The provisions of subclause (4) above shallmixture or another chemical substance, read with the changes required by the context, apply equally to the appeal process.
(d) The decision of the Exemptions Board shall be final and binding.
(7) The applicant shall satisfy the Executive Committee of the Council or the Exemptions Committee and, where applicable, the Exemptions Board of the following:
(a) There is a demonstrable commercial need for the exemption.
(b) Competitors covered by the Council who are in compliance with the applicable Council agreements will not be materially prejudiced by the exemption.
(c) No infringement of the Basic Conditions of Employment Act or the Labour Relations Act will result if the exemption is granted, nor will the application, if granted, result in a conflict with the primary objectives of the Act.
(d) The exemption will not undermine collective bargaining and labour peace in the Industry.
(e) There has been compliance with subclause (3) above.
(f) The majority of affected employees at the plant are in favour of the proposed exemption if it affects wages, benefit fund contributions, or levies. In such instance, either the employer, or the trade union may request that a ballot be conducted.
(8) In addition, the following criteria shall be taken into account by the Exemptions Committee and the Exemptions Board when determining applications for exemptions:
(a) The merits of the written and oral (if any) motivation provided by the applicant, the documentation supporting the application and, in particular, whether the applicant has made a compelling case for the exemption.
(b) Whether the applicant firm will constitute a viable concern after the expiry of the exemption.
(c) If the exemption sought is from any employee benefit fund, the sufficiency of the alternative benefit proposed by the applicant, including such factors as the cost to the employee, transferability, administration, management, costs, growth and stability.
(d) The terms of the exemption sought, including the period thereof.
(e) Any existing or projected special financial, economic or other circumstances put forward by the applicant as reasons warranting the granting of an exemption, including what economic hardship the applicant will suffer if the applicant is refused: Provided that the Executive committee of the Council or the Exemptions Committee or the Exemptions Board may require the disclosure of such relevant, verifiable information as it deems fit in this regard.
(f) The history of the business entity and/or its shareholders, directors and owners within the Industry, including the period of its operation and in particular whether or not the entity is a new emerging enterprise or a small or medium enterprise (SME); and its history of compliance with Council agreements.
(g) Any representations made by the employees and/or their representatives, including a registered trade union, the Council or Executive Committee or Exemptions Committee and/or the parties to the Council and/or the relevant Regional Chamber of the Council.
(h) Any possible alternatives which may be acceptable to the applicant and/or any other interested party in the circumstances.
(i) The cost, efficiency and administration of any conditions which the Executive Committee of the Council or the Exemptions Committee or the Exemptions Board may feel it necessary to impose.
(j) What cost-saving measures may have been implemented by the applicant other than those in respect of its cost of labour.
(k) What hardship may eventuate to employees in the event of the exemption being granted.
(l) Any relevant time limits contained in the Council's constitution and the Act, and in particular that any exemption or partial granting of an exemption shall be for a fixed, stipulated period.
(m) Any other relevant factors, including any decisions of the Council relevant to exemption applications.
(a) An applicant shall be entitled to apply on the prescribed form to the General Secretary of the Council for the extension of any exemption granted by either the Regional Exemptions Committee or the Exemptions Board. An application for extension shall contain such additional information as may be necessary and required to substantiate the request with reference to the criteria set out in subclause (7) above.
(b) The procedure and requirements for considering and determining an application for extension shall be in accordance with the provisions of subclause (4) above, read with the changes required by the context.
(10) Employers employing five or fewer employees shall, upon application to the Council through the General Secretary, be exempted from the provisions of this part of the Agreement.
Appears in 1 contract
Sources: Commerce and Trade Regulation
Exemptions. A. For any business entity registered with and falling within the Council's registered scope inasmuch as it relates to the scope of this part of the Agreement
(1) Any business entity, whether a party or a non-party to the Council, which is registered with and falls within the Council's registered scope for the purposes of this part of the Agreement may apply to the Council for exemption from any or all of the provisions of this part of the Agreement.
(2) All applications for exemption shall be made in writing on a prescribed form provided by the Council.
(3) All applications for exemption shall be motivated in accordance with the exemption criteria set out in subclause (7) below; shall be supported by relevant documentation and, in addition, shall contain the following information:
(a) The period for which the exemption is sought;
(b) the number of employees affected and how many of such employees are members of a registered trade union;
(c) the clauses and subclauses of this part of the Agreement from which the exemption is sought;.
(d) satisfactory proof that the applicant has consulted, or will consult, its employees at plant level in respect of the exemption sought, which consultations shall include a registered party trade union, where such union has members employed at the workplace, and shall include the response resulting from such consultations; and
(e) the demonstrable commercial need of the applicant for the exemption sought.
(a) The General Secretary of the Council or the Regional Secretary of the Regional Chamber concerned, or in their absence any other officer designated by the Executive Committee, shall forthwith refer the full exemption application to the Exemptions Committee, which shall have delegated power to deal with such application on behalf of the Council.
(b) The Exemptions Committee shall consider and determine the application in accordance with the criteria set out in subclause (7) below, within 30 45 days from the date of lodgement of the application with the General Secretary, failing which the application shall will be deemed to have been rejected.
(c) The Exemptions Committee may call for any further information or submissions it deems appropriate from the applicant, prior to making a decision. The time period stipulated in subclause (b) above may be extended by agreement between the applicant and the Committee by the period the applicant takes to furnish the additional information or submissions.
(d) The Exemptions Committee may, after considering the application in terms of the provisions and the criteria contained in this clause, grant, partially grant, or reject such application for exemption, and may impose any conditions on the granting or partial granting of any application it deems fit under the circumstances. If the applicant is not prepared to accept a partial granting of the application or any conditions imposed by the Exemptions Committee, the application shall be deemed to have been rejected.
(e) Subject to the time period for considering the application, referred to in subclause (b) above, should the Exemptions Committee be unable to agree, the application shall be deemed to have been rejected and the reasoning of the members of the Exemptions Committee who wish to reject the application shall constitute the reasons of the Committee for the purposes of subclause 4 (i) below.
(f) The Exemptions Committee shall notify the applicant of its decision within seven days of such decision having been reached.
(g) If the application has been granted or partially granted, the Exemptions Committee shall specify the following in its notification to the applicant:
(i) The conditions, if any, of its approval of the application;
(ii) the period for which the exemption(s) will be valid;
(iii) the clauses or subclauses of this part of the Agreement in respect of which exemption was granted or partially granted; and
(iv) the full name of the exempt employer or employee(s).
(h) Upon receipt of a written request, the Exemptions Committee shall provide brief written reasons for its decision to grant the exemption to any party which has an interest in the matter.
(i) If the application for exemption is rejected or partially approved, the Exemptions Committee shall provide concise written reasons for such rejection or partial approval to the applicant within seven days of its decision: Provided that such reasons given by the Exemptions Committee shall not bind the Independent Exemptions Body (Exemptions Board) in considering any appeal provided for in subclause (5) below since the latter may make a decision on appeal in accordance with such reasons as he or she deems appropriate, subject to the provisions of this clause insofar as it applies to the Independent Exemptions Body.
(a) Any decision of the Exemptions Committee to reject, partially approve or withdraw the application may be referred on appeal to the Independent Exemptions Body (Exemptions Board) hereby established in terms of the Act and the constitution of the Council. Such application shall be lodged within not more than 30 days of the applicant's being notified of the decision of the Exemptions Committee. The Exemptions Board may condone a late appeal on good cause shown.
(b) The Exemptions Board shall have the power to levy a fee payable by the appellant and to determine the quantum thereof: Provided that such fee shall be consistent with-
(i) the cost incurred for the hearing of the appeal;
(ii) the cost incurred by the Council for the hearing of the appeal where the Exemptions Board is satisfied that such an appeal is without merit.
(c) The Exemptions Board shall in addition, have the power to raise a cost order on the applicant in respect of costs incurred by the parties to the appeal where it is satisfied that it will be proper to do so on the basis that the appeal is so completely without merit that it would be justified in doing so.
(a) The Exemptions Board shall consist of a single independent umpire appointed by the parties from a panel selected for this purpose.
(b) The Exemptions Board shall determine the procedure to be adopted in determining the appeal.
(c) The provisions of subclause (4) above shall, read with the changes required by the context, apply equally to the appeal process.
(d) The decision of the Exemptions Board shall be final and binding.
(7) The applicant shall satisfy the Executive Committee of the Council or the Exemptions Committee and, where applicable, the Exemptions Board of the following:
(a) There is a demonstrable commercial need for the exemption.
(b) Competitors covered by the Council who are in compliance with the applicable Council agreements will not be materially prejudiced by the exemption.
(c) No infringement of the Basic Conditions of Employment Act or the Labour Relations Act will result if the exemption is granted, nor will the application, if granted, result in a conflict with the primary objectives of the Act.
(d) The exemption will not undermine collective bargaining and labour peace in the Industry.
(e) There has been compliance with subclause (3) above.
(f) The majority of affected employees at the plant are in favour of the proposed exemption if it affects wages, benefit fund contributions, or levies. In such instance, either the employer, or the trade union may request that a ballot be conducted.
(8) In addition, the following criteria shall be taken into account by the Exemptions Committee and the Exemptions Board when determining applications for exemptions:
(a) The merits of the written and oral (if any) motivation provided by the applicant, the documentation supporting the application and, in particular, whether the applicant has made a compelling case for the exemption.
(b) Whether the applicant firm will constitute a viable concern after the expiry of the exemption.
(c) If the exemption sought is from any employee benefit fund, the sufficiency of the alternative benefit proposed by the applicant, including such factors as the cost to the employee, transferability, administration, management, costs, growth and stability.
(d) The terms of the exemption sought, including the period thereof.
(e) Any existing or projected special financial, economic or other circumstances put forward by the applicant as reasons warranting the granting of an exemption, including what economic hardship the applicant will suffer if the applicant is refused: Provided that the Executive committee of the Council or the Exemptions Committee or the Exemptions Board may require the disclosure of such relevant, verifiable information as it deems fit in this regard.
(f) The history of the business entity and/or its shareholders, directors and owners within the Industry, including the period of its operation and in particular whether or not the entity is a new emerging enterprise or a small or medium enterprise (SME); and its history of compliance with Council agreements.
(g) Any representations made by the employees and/or their representatives, including a registered trade union, the Council or Executive Committee or Exemptions Committee and/or the parties to the Council and/or the relevant Regional Chamber of the Council.
(h) Any possible alternatives which may be acceptable to the applicant and/or any other interested party in the circumstances.
(i) The cost, efficiency and administration of any conditions which the Executive Committee of the Council or the Exemptions Committee or the Exemptions Board may feel it necessary to impose.
(j) What cost-saving measures may have been implemented by the applicant other than those in respect of its cost of labour.
(k) What hardship may eventuate to employees in the event of the exemption being granted.
(l) Any relevant time limits contained in the Council's constitution and the Act, and in particular that any exemption or partial granting of an exemption shall be for a fixed, stipulated period.
(m) Any other relevant factors, including any decisions of the Council relevant to exemption applications.
(a) An applicant shall be entitled to apply on the prescribed form to the General Secretary of the Council for the extension of any exemption granted by either the Regional Exemptions Committee or the Exemptions Board. An application for extension shall contain such additional information as may be necessary and required to substantiate the request with reference to the criteria set out in subclause (7) above.
(b) The procedure and requirements for considering and determining an application for extension shall be in accordance with the provisions of subclause (4) above, read with the changes required by the context.
(10) Employers employing five or fewer employees shall, upon application to the Council through the General Secretary, be exempted from the provisions of this part of the Agreement.subclause
Appears in 1 contract
Exemptions. A. For any business entity registered with and falling within the Council's registered scope inasmuch as it relates to the scope of this part of the Agreement
(1) Any business entity, whether a party or a non-party to the Council, which is registered with and falls within the Council's registered scope for the purposes of this part of the Agreement may apply to the Council for exemption from any or all of the provisions of this part of the Agreement.
(2) All applications for exemption shall be made in writing on a prescribed form provided by the Council.
(3) All applications for exemption shall be motivated in accordance with the exemption criteria set out in subclause (7) below; shall be supported by relevant documentation and, in addition, shall contain the following information:
(a) The the period for which the exemption is sought;
(b) the number of employees affected and how many of such employees are members of a registered trade union;
(c) the clauses and subclauses of this part of the Agreement from which the exemption is sought;
(d) satisfactory proof that the applicant has consulted, or will consult, its employees at plant level in respect of the exemption sought, which consultations shall include a registered party trade union, where such union has members employed at the workplace, and shall include the response resulting from such consultations; and
(e) the demonstrable commercial need of the applicant for the exemption sought.
(a) The General Secretary of the Council or the Regional Secretary of the Regional Chamber concerned, or in their absence any other officer designated by the Executive Committee, shall forthwith refer the full exemption application to the Exemptions Committee, which shall have delegated power to deal with such application on behalf of the Council.
(b) The Exemptions Committee shall consider and determine the application in accordance with the criteria set out in subclause (7) below, within 30 45 days from the date of lodgement of the application with the General Secretary, failing which the application shall be deemed to have been rejectedrefused.
(c) The Exemptions Committee may call for any further information or submissions it deems appropriate from the applicant, prior to making a decision. The time period stipulated in subclause (b) above may be extended by agreement between the applicant and the Committee by the period the applicant takes to furnish the additional information or submissions.
(d) The Exemptions Committee may, after considering the application in terms of the provisions and the criteria contained in this clause, grant, partially grant, or reject such application for exemption, and may impose any conditions on the granting or partial granting of any application it deems fit under the circumstances. If the applicant is not prepared to accept a partial granting of the application or any conditions imposed by the Exemptions Committee, the application shall be deemed to have been rejected.
(e) Subject to the time period for considering the application, referred to in subclause (b) above, should the Exemptions Committee be unable to agree, the application shall be deemed to have been rejected and the reasoning of the members of the Exemptions Committee who wish to reject the application shall constitute the reasons of the Committee for the purposes of subclause 4 4
(i) below.
(f) The Exemptions Committee shall notify the applicant of its decision within seven days of such decision having been reached.
(g) If the application has been granted or partially granted, the Exemptions Committee shall specify the following in its notification to the applicant:
(i) The the conditions, if any, of its approval of the application;
(ii) the period for which the exemption(s) will be valid;
(iii) the clauses or subclauses of this part of the Agreement in respect of which exemption was granted or partially granted; and
(iv) the full name of the exempt employer or employee(s).
(h) Upon receipt of a written request, the Exemptions Committee shall provide brief written reasons for its decision to grant the exemption to any party which has an interest in the matter.
(i) If the application for exemption is rejected or partially approved, the Exemptions Committee shall provide concise written reasons for such rejection or partial approval to the applicant within seven days of its decision: Provided that such reasons given by the Exemptions Committee shall not bind the Independent Exemptions Body (Exemptions Board) in considering any appeal provided for in subclause (5) below since the latter may make a decision on appeal in accordance with such reasons as he or she deems appropriate, subject to the provisions of this clause insofar as it applies to the Independent Exemptions Body.
(a) Any decision of the Exemptions Committee to reject, partially approve or withdraw the application application, may be referred on appeal to the Independent Exemptions Body (Exemptions Body(Exemptions Board) hereby established in terms of the Act and the constitution of the Council. Such application shall be lodged within not more than 30 days of the applicant's being notified of the decision of the Exemptions Committee. The Exemptions Board may condone a late appeal on good cause shown.
(b) The Exemptions Board shall have the power to levy a fee payable by the appellant and to determine the quantum thereof: Provided that such fee shall be consistent with-
(i) the cost incurred for the hearing of the appeal;
(ii) the cost incurred by the Council for the hearing of the appeal where the Exemptions Board is satisfied that such an appeal is without merit.
(c) The Exemptions Board shall shall, in addition, have the power to raise a cost order on the applicant in respect of costs cost incurred by the parties to the appeal where it is satisfied that it will be proper to do so on the basis that the appeal is so completely without merit that it would be justified in doing so.
(a) The Exemptions Board shall consist of a single independent umpire appointed by the parties from a panel selected for this purpose.
(b) The Exemptions Board shall determine the procedure to be adopted in determining the appeal.
(c) The provisions of subclause (4) above shall, read with the changes required by the context, apply equally to the appeal process.
(d) The decision of the Exemptions Board shall be final and binding.
(7) The applicant shall satisfy the Executive Committee of the Council or the Exemptions Committee and, where applicable, the Exemptions Board of the following:
(a) There is a demonstrable commercial need for the exemption.
(b) Competitors covered by the Council who are in compliance with the applicable Council agreements will not be materially prejudiced by the exemption.
(c) No infringement of the Basic Conditions of Employment Act or the Labour Relations Act will result if the exemption is granted, nor will the application, if granted, result in a conflict with the primary objectives of the Act.
(d) The exemption will not undermine collective bargaining and labour peace in the Industryindustry.
(e) There has been compliance with subclause (3) above.
(f) The majority of affected employees at the plant are in favour of the proposed exemption if it affects wages, benefit fund contributions, or levies. In such instance, either the employer, or the trade union may request that a ballot be conducted.
(8) In addition, the following criteria shall be taken into account by the Exemptions Committee and the Exemptions Board when determining applications for exemptions:
(a) The merits of the written and oral (if any) motivation provided by the applicant, the documentation supporting the application and, in particular, whether the applicant has made a compelling case for the exemption.
(b) Whether the applicant firm will constitute a viable concern after the expiry of the exemption.
(c) If the exemption sought is from any employee benefit fund, the sufficiency of the alternative benefit proposed by the applicant, including such factors as the cost to the employee, transferability, administration, management, costs, growth and stability.
(d) The terms of the exemption sought, including the period thereof.
(e) Any existing or projected special financial, economic or other circumstances put forward by the applicant as reasons warranting the granting of an exemption, including what economic hardship the applicant will suffer if the applicant is refused: Provided that the Executive committee Committee of the Council or the Exemptions Committee or the Exemptions Board may require the disclosure of such relevant, verifiable information as it deems fit in this regard.
(f) The history of the business entity and/or its shareholders, directors and owners within the Industry, including the period of its operation and in particular whether or not the entity is a new emerging enterprise or a small or medium enterprise (SME); and its history of compliance with Council agreements.
(g) Any representations made by the employees and/or their representatives, including a registered trade union, the Council or Executive Committee or Exemptions Committee and/or the parties to the Council and/or the relevant Regional Chamber of the Council.
(h) Any possible alternatives which may be acceptable to the applicant and/or any other interested party in the circumstances.
(i) The cost, efficiency and administration of any conditions which the Executive Committee of the Council or the Exemptions Committee or the Exemptions Board may feel it necessary to impose.
(j) What cost-saving measures may have been implemented by the applicant other than those in respect of its cost of labour.
(k) What hardship may eventuate to employees in the event of the exemption being granted.
(l) Any relevant time limits contained in the Council's constitution and the Act, and in particular that any exemption or partial granting of an exemption shall be for a fixed, stipulated period.
(m) Any other relevant factors, including any decisions of the Council relevant to exemption applications.
(a) An applicant shall be entitled to apply on the prescribed form to the General Secretary of the Council for the extension of any exemption granted by either the Regional Exemptions Committee or the Exemptions Board. An application for extension shall contain such additional information as may be necessary and required to substantiate the request with reference to the criteria set out in subclause (7) above.
(b) The procedure and requirements for considering and determining an application for extension shall be in accordance with the provisions of subclause (4) above, read with the changes required by the context.
(10) Employers employing five or fewer employees shall, upon application to the Council through the General Secretary, be exempted from the provisions of this part of the Agreement.
Appears in 1 contract
Sources: National Main Collective Agreement
Exemptions. A. For any business entity registered with and falling within the Council's registered scope inasmuch as it relates to the scope of this part of the Agreement
(1) Any business entity, whether a party or a non-party to the Council, which is registered with and falls within the Council's registered scope for the purposes of this part of the Agreement may apply to the Council for exemption from any or all of the provisions of this part of the Agreement.
(2) All applications for exemption shall be made in writing on a prescribed form provided by the Council.
(3) All applications for exemption shall be motivated in accordance with the exemption criteria set out in subclause (7) below; shall be supported by relevant documentation and, in addition, shall contain the following information:
(a) The period for which the exemption is sought;
(b) the number of employees affected and how many of such employees are members of a registered trade union;
(c) the clauses and subclauses of this part of the Agreement from which the exemption is sought;.
(d) satisfactory proof that the applicant has consulted, or will consult, its employees at plant level in respect of the exemption sought, which consultations shall include a registered party trade union, where such union has members employed at the workplace, and shall include the response resulting from such consultations; and
(e) the demonstrable commercial need of the applicant for the exemption sought.
(a) The General Secretary of the Council or the Regional Secretary of the Regional Chamber concerned, or in their absence any other officer designated by the Executive Committee, shall forthwith refer the full exemption application to the Exemptions Committee, which shall have delegated power to deal with such application on behalf of the Council.
(b) The Exemptions Committee shall consider and determine the application in accordance with the criteria set out in subclause (7) below, within 30 45 days from the date of lodgement of the application with the General Secretary, failing which the application shall will be deemed to have been rejected.
(c) The Exemptions Committee may call for any further information or submissions it deems appropriate from the applicant, prior to making a decision. The time period stipulated in subclause (b) above may be extended by agreement between the applicant and the Committee by the period the applicant takes to furnish the additional information or submissions.
(d) The Exemptions Committee may, after considering the application in terms of the provisions and the criteria contained in this clause, grant, partially grant, or reject such application for exemption, and may impose any conditions on the granting or partial granting of any application it deems fit under the circumstances. If the applicant is not prepared to accept a partial granting of the application or any conditions imposed by the Exemptions Committee, the application shall be deemed to have been rejected.
(e) Subject to the time period for considering the application, referred to in subclause (b) above, should the Exemptions Committee be unable to agree, the application shall be deemed to have been rejected and the reasoning of the members of the Exemptions Committee who wish to reject the application shall constitute the reasons of the Committee for the purposes of subclause 4 (i) below.
(f) The Exemptions Committee shall notify the applicant of its decision within seven days of such decision having been reached.
(g) If the application has been granted or partially granted, the Exemptions Committee shall specify the following in its notification to the applicant:
(i) The conditions, if any, of its approval of the application;
(ii) the period for which the exemption(s) will be valid;
(iii) the clauses or subclauses of this part of the Agreement in respect of which exemption was granted or partially granted; and
(iv) the full name of the exempt employer or employee(s).
(h) Upon receipt of a written request, the Exemptions Committee shall provide brief written reasons for its decision to grant the exemption to any party which has an interest in the matter.
(i) If the application for exemption is rejected or partially approved, the Exemptions Committee shall provide concise written reasons for such rejection or partial approval to the applicant within seven days of its decision: Provided that such reasons given by the Exemptions Committee shall not bind the Independent Exemptions Body (Exemptions Board) in considering any appeal provided for in subclause sub-clause (5) below since the latter may make a decision on appeal in accordance with such reasons as he or she deems appropriate, subject to the provisions of this clause insofar as it applies to the Independent Exemptions Body.
(a) Any decision of the Exemptions Committee to reject, partially approve or withdraw the application may be referred on appeal to the Independent Exemptions Body (Exemptions Board) hereby established in terms of the Act and the constitution of the Council. Such application shall be lodged within not more than 30 days of the applicant's being notified of the decision of the Exemptions Committee. The Exemptions Board may condone a late appeal on good cause shown.
(b) The Exemptions Board shall have the power to levy a fee payable by the appellant and to determine the quantum thereof: Provided that such fee shall be consistent with-
(i) the cost incurred for the hearing of the appeal;
(ii) the cost incurred by the Council for the hearing of the appeal where the Exemptions Board is satisfied that such an appeal is without merit.
(c) The Exemptions Board shall shall, in addition, have the power to raise a cost order on the applicant in respect of costs incurred by the parties to the appeal where it is satisfied that it will be proper to do so on the basis that the appeal is so completely without merit that it would be justified in doing so.
(a) The Exemptions Board shall consist of a single independent umpire appointed by the parties from a panel selected for this purpose.
(b) The Exemptions Board shall determine the procedure to be adopted in determining the appeal.
(c) The provisions of subclause (4) above shall, read with the changes required by the context, apply equally to the appeal process.
(d) The decision of the Exemptions Board shall be final and binding.
(7) The applicant shall satisfy the Executive Committee of the Council or the Exemptions Committee and, and where applicable, the Exemptions Board of the following:
(a) There is a demonstrable commercial need for the exemption.
(b) Competitors covered by the Council who are in compliance with the applicable Council agreements will not be materially prejudiced by the exemption.
(c) The applicant is not in arrears with respect to payment of Bargaining Council levies or employer or employee contributions and/or trade union/employer subscriptions and/or levies, or, if so, an agreed payment plan exists in respect of any such outstanding monies. "Arrears", for this purpose, means any payment of Bargaining Council levies or employer or employee or trade union subscriptions which remain unpaid as at the last day of the month following the month in respect of which the payment is due.
(d) No infringement of the Basic Conditions of Employment Act or the Labour Relations Act will result if the exemption is granted, nor will the application, if granted, result in a conflict with the primary objectives of the Act.
(de) The exemption will not undermine collective bargaining and labour peace in the Industry.
(ef) There has been compliance with subclause (3) above.
(fg) The majority of affected employees at the plant are in favour of the proposed exemption exemption, if it affects wages, benefit fund contributions, or levies. In such instance, either the employer, or the trade union may request that a ballot be conducted.
(8) In addition, the following criteria shall be taken into account by the Exemptions Committee and the Exemptions Board when determining applications for exemptions:
(a) The merits of the written and oral (if any) motivation provided by the applicant, the documentation supporting the application and, in particular, whether the applicant has made a compelling case for the exemption.
(b) Whether the applicant firm will constitute a viable concern after the expiry of the exemption.
(c) If the exemption sought is from any employee benefit fund, the sufficiency of the alternative benefit proposed by the applicant, including such factors as the cost to the employee, transferability, administration, management, costs, growth and stability, "Sufficiency", for the purposes of this subclause, means that in all material respects the alternative proposed is at least equal to, or better than, the relevant Council benefit fund.
(d) The terms of the exemption sought, including the period thereof.
(e) Any existing or projected special financial, economic or other circumstances put forward by the applicant as reasons warranting the granting of an exemption, including what economic hardship the applicant will suffer if the applicant is refused: Provided that the Executive committee Committee of the Council or the Exemptions Committee or the Exemptions Board may require the disclosure of such relevant, verifiable information as it deems fit in this regard.
(f) The history of the business entity and/or its shareholders, directors and owners within the Industry, including the period of its operation and in particular whether or not the entity is a new emerging enterprise or a small or medium enterprise (SME); and its history of compliance with Council agreements.
(g) Any representations made by the employees and/or their representatives, including a registered trade union, the Council or Executive Committee or Exemptions Committee and/or the parties to the Council and/or the relevant Regional Chamber of the Council.
(h) Any possible alternatives which may be acceptable to the applicant and/or any other interested party in the circumstances.
(i) The cost, efficiency and administration of any conditions which the Executive Committee of the Council or the Exemptions Committee or the Exemptions Board may feel it necessary to impose.
(j) What cost-saving measures may have been implemented by the applicant other than those in respect of its cost of labour.
(k) What hardship may eventuate to employees in the event of the exemption being granted.
(l) Any relevant time limits contained in the Council's constitution and the Act, and in particular that any exemption or partial granting of an exemption shall be for a fixed, stipulated period.
(m) Any other relevant factors, including any decisions of the Council relevant to exemption applications.
(a) An applicant shall be entitled to apply on the prescribed form to the General Secretary of the Council for the extension of any exemption granted by either the Regional Exemptions Committee or the Exemptions Board. An application for extension shall contain such additional information as may be necessary and required to substantiate the request with reference to the criteria set out in subclause (7) above.
(b) The procedure and requirements for considering and determining an application for extension shall be in accordance with the provisions of subclause (4) above, read with the changes required by the context.
(10) Employers employing five or fewer employees shall, upon application to the Council through the General Secretary, be exempted from the provisions of this part Agreement.
B. For any employer who is a party or a member of a party to the Council and its employees represented by a trade union representative
(1) Exemption from the provisions of this Agreement shall be granted in the following circumstances:
(a) Where an employer that is a party or a member of a party to the Council and its employees, represented by a trade union representative, as defined in the Act, have concluded a collective agreement in accordance with the procedure set out in subclause (2) below to vary such provisions: Provided that-
(i) the collective agreement does not contravene the minimum employment standards set out in this Agreement or in any law or the provisions of the Agreement dated 25 May 1993 between the Cape Clothing Manufacturers' Association, the Cape Knitting Industry Association, the Garment Manufacturers' Association of the Western Cape, the Eastern Province Clothing Manufacturers' Association, the Natal Clothing Manufacturers' Association, the Orange Free State and Northern Cape Clothing Manufacturers' Association, the Transvaal Clothing Manufacturers' Association (incorporating the Transvaal Knitters' Association) and the Southern African Clothing and Textile Workers' Union; and
(ii) wage rates and contributions to social funds, including the Council's fund, may not be amended without the Council's approval.
(2) An employer who is a party or a member of a party to the Council shall implement the following procedure in order to conclude a collective agreement as set out in subclause
(a) (i) above:
(a) The employer shall place on the notice board of the establishment a notice to employees specifying the proposed variation to this Agreement. At the same time a copy of the notice shall be sent to the trade union.
(b) A meeting shall take place at the establishment in order to reach agreement on the proposed variation, which agreement shall then be reduced to writing. In the absence of agreement the employer shall undertake not to refer an application for exemption to the Exemptions Board established by the Council.
(c) The agreement shall be referred to the Council or Regional Chamber for registration and any agreement concluded in terms of subclause (1) (a) (i) above that is in contravention of any law or the minimum employment standards set out in this Agreement shall be null and void ab initio.
Appears in 1 contract
Exemptions. A. For 17.1 Any person or Party bound by this Agreement shall be entitled to apply for exemption from this Agreement.
17.2 All applications for exemption from any business entity registered with and falling within the Council's registered scope inasmuch as it relates to the scope provisions of this part agreement shall be in writing and lodged with the General Secretary. Such applications shall contain:
17.2.1 all material details of the AgreementApplicant;
(1) Any business entity, whether 17.2.2 the exact collective agreement or provisions of a party or collective agreement from which the Applicant seeks exemption;
17.2.3 detailed grounds on which such exemption is sought taking into consideration the criteria specified in clause 17.7 hereunder.
17.3 The Executive Committee shall consider all applications from a party/non-party to this Agreement (which shall include the Councilmembers of such party), which is registered with and falls within the Council's registered scope may, subject to clause 17.7, and on giving its reasons therefore, grant exemption on any conditions and for the purposes of this part any period it considers appropriate.
17.4 A party aggrieved by a decision of the Agreement Executive Committee may apply appeal to the Council who shall consider the Application subject to clause 17.7 and on giving its reasons therefore, may grant an exemption on any conditions and for exemption from any or all period it considers appropriate. The decision of the provisions of this part of the Agreementcouncil shall be final.
(2) 17.5 All applications for exemption of Appeal from non-parties shall be made referred to the Independent Exemptions Body established by the Council in writing on terms of clause 17.11 hereunder.
17.6 The Independent Exemptions Body shall consider all such applications in a prescribed manner it considers appropriate to determine the applications fairly and quickly, which may include the hearing of evidence and arguments.
17.7 When considering an application for exemption, an appeal against an Executive Committee decision or an application for the withdrawal of a certificate of exemption, the Council or the independent Exemptions Body, as the case may be, shall take into account the following (the order not indicating any form of priority):
(a) any written and/or verbal substantiation provided by the Councilapplicant;
(b) fairness to the employer, its employees and other employers and the employees in the industry;
(c) whether an exemption, if granted would undermine this agreement or the collective bargaining process;
(d) unexpected economic hardship occurring during the currency of this agreement and job creation and/or loss thereof;
(e) the infringement of basic conditions of employment rights;
(f) the fact that a competitive advantage might be created by the exemption;
(g) comparable benefits or provisions where applicable;
(h) the applicant’s compliance with other statutory requirements such as the Compensation for Occupational Injuries and Diseases Act 130 of 1993, Basic Conditions of Employment Act 75 of 1997. Employment Equity Act 55 of 1998, Skills Development Act 97 of 1998, Skills Development Levies Act 9 of 1999, or Unemployment Insurance Act 63 of 2001; or
(i) any other factor which is considered appropriate.
17.8 Having made a decision to grant or refuse an exemption application, the Independent Exemptions Body shall advise the applicants and the Council within ten (310) All applications for exemption days of its decision, giving full reasons. The decision of the Independent Exemptions body shall be motivated final.
17.9 The Council shall issue to every person granted an exemption in accordance with the terms of this clause a certificate of exemption criteria set out in subclause (7) below; shall be supported by relevant documentation and, in addition, shall contain the following informationsetting out:
(a) The period for which the exemption is soughtapplicant’s name;
(b) the number provisions of employees affected and how many of such employees are members of a registered trade unionthe agreement from which exemption has been granted;
(c) the clauses and subclauses of this part of conditions relating to the Agreement from which the exemption is sought;
(d) satisfactory proof that the applicant has consulted, or will consult, its employees at plant level in respect of the exemption sought, which consultations shall include a registered party trade union, where such union has members employed at the workplace, and shall include the response resulting from such consultationsexemption; and
(e) the demonstrable commercial need of the applicant for the exemption sought.
(a) The General Secretary of the Council or the Regional Secretary of the Regional Chamber concerned, or in their absence any other officer designated by the Executive Committee, shall forthwith refer the full exemption application to the Exemptions Committee, which shall have delegated power to deal with such application on behalf of the Council.
(b) The Exemptions Committee shall consider and determine the application in accordance with the criteria set out in subclause (7) below, within 30 days from the date of lodgement of the application with the General Secretary, failing which the application shall be deemed to have been rejected.
(c) The Exemptions Committee may call for any further information or submissions it deems appropriate from the applicant, prior to making a decision. The time period stipulated in subclause (b) above may be extended by agreement between the applicant and the Committee by the period the applicant takes to furnish the additional information or submissions.
(d) The Exemptions Committee may, after considering the application in terms of the provisions and the criteria contained in this clause, grant, partially grant, or reject such application for exemption, and may impose any conditions on the granting or partial granting of any application it deems fit under the circumstances. If the applicant is not prepared to accept a partial granting of the application or any conditions imposed by the Exemptions Committee, the application shall be deemed to have been rejected.
(e) Subject to the time period for considering the application, referred to in subclause (b) above, should the Exemptions Committee be unable to agree, the application shall be deemed to have been rejected and the reasoning of the members of the Exemptions Committee who wish to reject the application shall constitute the reasons of the Committee for the purposes of subclause 4 (i) below.
(f) The Exemptions Committee shall notify the applicant of its decision within seven days of such decision having been reached.
(g) If the application has been granted or partially granted, the Exemptions Committee shall specify the following in its notification to the applicant:
(i) The conditions, if any, of its approval of the application;
(ii) the period for which the exemption(s) will be valid;
(iii) the clauses or subclauses of this part of the Agreement in respect of which exemption was granted or partially granted; and
(iv) the full name of the exempt employer or employee(s)shall operate.
(h) Upon receipt 17.10 The Council may withdraw a certificate of exemption granted to a party to this agreement by giving one month’s notice to the party concerned, or may, in the case of a written requestnon-party, the Exemptions Committee shall provide brief written reasons for its decision to grant the exemption to any party which has an interest in the matter.
(i) If the application for exemption is rejected or partially approved, the Exemptions Committee shall provide concise written reasons for such rejection or partial approval to the applicant within seven days of its decision: Provided that such reasons given by the Exemptions Committee shall not bind the Independent Exemptions Body (Exemptions Board) in considering any appeal provided for in subclause (5) below since the latter may make a decision on appeal in accordance with such reasons as he or she deems appropriate, subject to the provisions of this clause insofar as it applies to the Independent Exemptions Body.
(a) Any decision of the Exemptions Committee to reject, partially approve or withdraw the application may be referred on appeal apply to the Independent Exemptions Body (for the withdrawal of a certificate granted.
17.11 The Independent Exemptions Board) hereby established Body shall be constituted on an ad hoc basis and shall be appointed by the SALGBC from its panel of arbitrators set up in terms of the Act and the constitution of the Council. Such application shall be lodged within not more than 30 days of the applicant's being notified of the decision of the Exemptions Committee. The Exemptions Board may condone a late appeal on good cause shownits constitutions.
(b) The Exemptions Board shall have the power to levy a fee payable by the appellant and to determine the quantum thereof: Provided that such fee shall be consistent with-
(i) the cost incurred for the hearing of the appeal;
(ii) the cost incurred by the Council for the hearing of the appeal where the Exemptions Board is satisfied that such an appeal is without merit.
(c) The Exemptions Board shall in addition, have the power to raise a cost order on the applicant in respect of costs incurred by the parties to the appeal where it is satisfied that it will be proper to do so on the basis that the appeal is so completely without merit that it would be justified in doing so.
(a) The Exemptions Board shall consist of a single independent umpire appointed by the parties from a panel selected for this purpose.
(b) The Exemptions Board shall determine the procedure to be adopted in determining the appeal.
(c) The provisions of subclause (4) above shall, read with the changes required by the context, apply equally to the appeal process.
(d) The decision of the Exemptions Board shall be final and binding.
(7) The applicant shall satisfy the Executive Committee of the Council or the Exemptions Committee and, where applicable, the Exemptions Board of the following:
(a) There is a demonstrable commercial need for the exemption.
(b) Competitors covered by the Council who are in compliance with the applicable Council agreements will not be materially prejudiced by the exemption.
(c) No infringement of the Basic Conditions of Employment Act or the Labour Relations Act will result if the exemption is granted, nor will the application, if granted, result in a conflict with the primary objectives of the Act.
(d) The exemption will not undermine collective bargaining and labour peace in the Industry.
(e) There has been compliance with subclause (3) above.
(f) The majority of affected employees at the plant are in favour of the proposed exemption if it affects wages, benefit fund contributions, or levies. In such instance, either the employer, or the trade union may request that a ballot be conducted.
(8) In addition, the following criteria shall be taken into account by the Exemptions Committee and the Exemptions Board when determining applications for exemptions:
(a) The merits of the written and oral (if any) motivation provided by the applicant, the documentation supporting the application and, in particular, whether the applicant has made a compelling case for the exemption.
(b) Whether the applicant firm will constitute a viable concern after the expiry of the exemption.
(c) If the exemption sought is from any employee benefit fund, the sufficiency of the alternative benefit proposed by the applicant, including such factors as the cost to the employee, transferability, administration, management, costs, growth and stability.
(d) The terms of the exemption sought, including the period thereof.
(e) Any existing or projected special financial, economic or other circumstances put forward by the applicant as reasons warranting the granting of an exemption, including what economic hardship the applicant will suffer if the applicant is refused: Provided that the Executive committee of the Council or the Exemptions Committee or the Exemptions Board may require the disclosure of such relevant, verifiable information as it deems fit in this regard.
(f) The history of the business entity and/or its shareholders, directors and owners within the Industry, including the period of its operation and in particular whether or not the entity is a new emerging enterprise or a small or medium enterprise (SME); and its history of compliance with Council agreements.
(g) Any representations made by the employees and/or their representatives, including a registered trade union, the Council or Executive Committee or Exemptions Committee and/or the parties to the Council and/or the relevant Regional Chamber of the Council.
(h) Any possible alternatives which may be acceptable to the applicant and/or any other interested party in the circumstances.
(i) The cost, efficiency and administration of any conditions which the Executive Committee of the Council or the Exemptions Committee or the Exemptions Board may feel it necessary to impose.
(j) What cost-saving measures may have been implemented by the applicant other than those in respect of its cost of labour.
(k) What hardship may eventuate to employees in the event of the exemption being granted.
(l) Any relevant time limits contained in the Council's constitution and the Act, and in particular that any exemption or partial granting of an exemption shall be for a fixed, stipulated period.
(m) Any other relevant factors, including any decisions of the Council relevant to exemption applications.
(a) An applicant shall be entitled to apply on the prescribed form to the General Secretary of the Council for the extension of any exemption granted by either the Regional Exemptions Committee or the Exemptions Board. An application for extension shall contain such additional information as may be necessary and required to substantiate the request with reference to the criteria set out in subclause (7) above.
(b) The procedure and requirements for considering and determining an application for extension shall be in accordance with the provisions of subclause (4) above, read with the changes required by the context.
(10) Employers employing five or fewer employees shall, upon application to the Council through the General Secretary, be exempted from the provisions of this part of the Agreement.
Appears in 1 contract
Sources: Disciplinary Procedure
Exemptions. A. For any business entity registered with and falling within the Council's registered scope inasmuch as it relates to the scope of this part of the Agreement
(1) Any business entity, whether a party or a non-party to the Council, which is registered with and falls within the Council's registered scope for the purposes of this part of the Agreement may apply to the Council for exemption from any or all of the provisions of this part of the Agreement.
(2) All applications for exemption shall be made in writing on a prescribed form provided by the Council.
(3) All applications for exemption shall be motivated in accordance with the exemption criteria set out in subclause (7) below; shall be supported by relevant documentation and, in addition, shall contain the following information:
(a) The period for which the exemption is sought;
(b) the number of employees affected and how many of such employees are members of a registered trade union;
(c) the clauses and subclauses of this part of the Agreement from which the exemption is sought;
(d) satisfactory proof that the applicant has consulted, or will consult, its employees at plant level in respect of the exemption sought, which consultations shall include a registered party trade union, where such union has members employed at the workplace, and shall include the response resulting from such consultations; and
(e) the demonstrable commercial need of the applicant for the exemption sought.
(a) The General Secretary of the Council or the Regional Secretary of the Regional Chamber concerned, or in their absence any other officer designated by the Executive Committee, shall forthwith refer the full exemption application to the Exemptions Committee, which shall have delegated power to deal with such application on behalf of the Council.
(b) The Exemptions Committee shall consider and determine the application in accordance with the criteria set out in subclause (7) below, within 30 45 days from the date of lodgement of the application with the General Secretary, failing which the application shall be deemed to have been rejected.
(c) The Exemptions Committee may call for any further information or submissions it deems appropriate from the applicant, prior to making a decision. The time period stipulated in subclause (b) above may be extended by agreement between the applicant and the Committee by the period the applicant takes to furnish the additional information or submissions.
(d) The Exemptions Committee may, after considering the application in terms of the provisions and the criteria contained in this clause, grant, partially grant, or reject such application for exemption, and may impose any conditions on the granting or partial granting of any application it deems fit under the circumstances. If the applicant is not prepared to accept a partial granting of the application or any conditions imposed by the Exemptions Committee, the application shall be deemed to have been rejected.
(e) Subject to the time period for considering the application, referred to in subclause (b) above, should the Exemptions Committee be unable to agree, the application shall be deemed to have been rejected and the reasoning of the members of the Exemptions Committee who wish to reject the application shall constitute the reasons of the Committee for the purposes of subclause 4 (i) below.
(f) The Exemptions Committee shall notify the applicant of its decision within seven days of such decision having been reached.
(g) If the application has been granted or partially granted, the Exemptions Committee shall specify the following in its notification to the applicant:
(i) The conditions, if any, of its approval of the application;
(ii) the period for which the exemption(s) will be valid;
(iii) the clauses or subclauses of this part of the Agreement in respect of which exemption was granted or partially granted; and
(iv) the full name of the exempt employer or employee(s).
(h) Upon receipt of a written request, the Exemptions Committee shall provide brief written reasons for its decision to grant the exemption to any party which has an interest in the matter.
(i) If the application for exemption is rejected or partially approved, the Exemptions Committee shall provide concise written reasons for such rejection or partial approval to the applicant within seven days of its decision: Provided that such reasons given by the Exemptions Committee shall not bind the Independent Exemptions Body (Exemptions Board) in considering any appeal provided for in subclause (5) below since the latter may make a decision on appeal in accordance with such reasons as he or she deems appropriate, subject to the provisions of this clause insofar as it applies to the Independent Exemptions Body.
(a) Any decision of the Exemptions Committee to reject, partially approve or withdraw the application may be referred on appeal to the Independent Exemptions Body (Exemptions Board) hereby established in terms of the Act and the constitution of the Council. Such application shall be lodged within not more than 30 days of the applicant's being notified of the decision of the Exemptions Committee. The Exemptions Board may condone a late appeal on good cause shown.
(b) The Exemptions Board shall have the power to levy a fee payable by the appellant and to determine the quantum thereof: Provided that such fee shall be consistent with-
(i) the cost incurred for the hearing of the appeal;
(ii) the cost incurred by the Council for the hearing of the appeal where the Exemptions Board is satisfied that such an appeal is without merit.
(c) The Exemptions Board shall in addition, have the power to raise a cost order on the applicant in respect of costs incurred by the parties to the appeal where it is satisfied that it will be proper to do so on the basis that the appeal is so completely without merit that it would be justified in doing so.
(a) The Exemptions Board shall consist of a single independent umpire appointed by the parties from a panel selected for this purpose.
(b) The Exemptions Board shall determine the procedure to be adopted in determining the appeal.
(c) The provisions of subclause (4) above shall, read with the changes required by the context, apply equally to the appeal process.
(d) The decision of the Exemptions Board shall be final and binding.
(7) The applicant shall satisfy the Executive Committee of the Council or the Exemptions Committee and, where applicable, the Exemptions Board of the following:
(a) There is a demonstrable commercial need for the exemption.
(b) Competitors covered by the Council who are in compliance with the applicable Council agreements will not be materially prejudiced by the exemption.
(c) No infringement of the Basic Conditions of Employment Act or the Labour Relations Act will result if the exemption is granted, nor will the application, if granted, result in a conflict with the primary objectives of the Act.
(d) The exemption will not undermine collective bargaining and labour peace in the Industry.
(e) There has been compliance with subclause (3) above.
(f) The majority of affected employees at the plant are in favour of the proposed exemption if it affects wages, benefit fund contributions, or levies. In such instance, either the employer, or the trade union may request that a ballot be conducted.
(8) In addition, the following criteria shall be taken into account by the Exemptions Committee and the Exemptions Board when determining applications for exemptions:
(a) The merits of the written and oral (if any) motivation provided by the applicant, the documentation supporting the application and, in particular, whether the applicant has made a compelling case for the exemption.
(b) Whether the applicant firm will constitute a viable concern after the expiry of the exemption.
(c) If the exemption sought is from any employee benefit fund, the sufficiency of the alternative benefit proposed by the applicant, including such factors as the cost to the employee, transferability, administration, management, costs, growth and stability.
(d) The terms of the exemption sought, including the period thereof.
(e) Any existing or projected special financial, economic or other circumstances put forward by the applicant as reasons warranting the granting of an exemption, including what economic hardship the applicant will suffer if the applicant is refused: Provided that the Executive committee of the Council or the Exemptions Committee or the Exemptions Board may require the disclosure of such relevant, verifiable information as it deems fit in this regard.
(f) The history of the business entity and/or its shareholders, directors and owners within the Industry, including the period of its operation and in particular whether or not the entity is a new emerging enterprise or a small or medium enterprise (SME); and its history of compliance with Council agreements.
(g) Any representations made by the employees and/or their representatives, including a registered trade union, the Council or Executive Committee or Exemptions Committee and/or the parties to the Council and/or the relevant Regional Chamber of the Council.
(h) Any possible alternatives which may be acceptable to the applicant and/or any other interested party in the circumstances.
(i) The cost, efficiency and administration of any conditions which the Executive Committee of the Council or the Exemptions Committee or the Exemptions Board may feel it necessary to impose.
(j) What cost-saving measures may have been implemented by the applicant other than those in respect of its cost of labour.
(k) What hardship may eventuate to employees in the event of the exemption being granted.
(l) Any relevant time limits contained in the Council's constitution and the Act, and in particular that any exemption or partial granting of an exemption shall be for a fixed, stipulated period.
(m) Any other relevant factors, including any decisions of the Council relevant to exemption applications.
(a) An applicant shall be entitled to apply on the prescribed form to the General Secretary of the Council for the extension of any exemption granted by either the Regional Exemptions Committee or the Exemptions Board. An application for extension shall contain such additional information as may be necessary and required to substantiate the request with reference to the criteria set out in subclause (7) above.
(b) The procedure and requirements for considering and determining an application for extension shall be in accordance with the provisions of subclause (4) above, read with the changes required by the context.
(10) Employers employing five or fewer employees shall, upon application to the Council through the General Secretary, be exempted from the provisions of this part of the Agreement.
Appears in 1 contract
Sources: National Main Collective Agreement
Exemptions. A. For any business entity registered with and falling within the Council's registered scope inasmuch as it relates to the scope of this part of the Agreement
(1) Any business entityThe Administrator may, whether upon application, exempt any person from any requirement of sub- section (a) or (b) to permit such person to manu- facture or process a party or chemical substance for test marketing purposes—
(A) upon a non-party showing by such person satisfac- tory to the CouncilAdministrator that the manufac- ture, processing, distribution in commerce, use, and disposal of such substance, and that any combination of such activities, for such purposes will not present any unreasonable risk of injury to health or the environment, including an unreasonable risk to a poten- tially exposed or susceptible subpopulation identified by the Administrator for the spe- cific conditions of use identified in the appli- cation, and
(B) under such restrictions as the Adminis- trator considers appropriate.
(A) The Administrator may, upon applica- tion, exempt any person from the requirement of subsection (b)(2) to submit information for a chemical substance. If, upon receipt of an appli- cation under the preceding sentence, the Admin- istrator determines that—
(i) the chemical substance with respect to which such application was submitted is equivalent to a chemical substance for which information has been submitted to the Admin- istrator as required by subsection (b)(2), and
(ii) submission of information by the appli- cant on such substance would be duplicative of information which has been submitted to the Administrator in accordance with such sub- section, the Administrator shall exempt the applicant from the requirement to submit such informa- tion on such substance. No exemption which is registered granted under this subparagraph with respect to the submission of information for a chemical substance may take effect before the beginning of the reimbursement period applicable to such information.
(B) If the Administrator exempts any person, under subparagraph (A), from submitting infor- mation required under subsection (b)(2) for a chemical substance because of the existence of previously submitted information and falls within if such exemption is granted during the Council's registered scope reimbursement period for such information, then (unless such person and the persons referred to in clauses (i) and (ii) agree on the amount and method of re- imbursement) the Administrator shall order the person granted the exemption to provide fair and equitable reimbursement (in an amount de- termined under rules of the Administrator)—
(i) to the person who previously submitted the information on which the exemption was based, for a portion of the costs incurred by such person in complying with the require- ment under subsection (b)(2) to submit such information, and
(ii) to any other person who has been re- quired under this subparagraph to contribute with respect to such costs, for a portion of the amount such person was required to con- tribute. In promulgating rules for the determination of fair and equitable reimbursement to the persons described in clauses (i) and (ii) for costs incurred with respect to a chemical substance, the Ad- ministrator shall, after consultation with the Attorney General and the Federal Trade Com- mission, consider all relevant factors, including the effect on the competitive position of the per- son required to provide reimbursement in rela- tion to the persons to be reimbursed and the share of the market for such substance of the person required to provide reimbursement in re- lation to the share of such market of the persons to be reimbursed. For purposes of judicial re- view, an order under this subparagraph shall be considered final agency action.
(C) For purposes of this part paragraph, the ▇▇▇▇- bursement period for any previously submitted information for a chemical substance is a pe- riod—
(i) beginning on the date of the Agreement may apply termination of the prohibition, imposed under this section, on the manufacture or processing of such sub- stance by the person who submitted such in- formation to the Council for exemption from any or all of the provisions of this part of the Agreement.Administrator, and
(2ii) All applications for exemption shall be made ending—
(I) five years after the date referred to in writing clause (i), or
(II) at the expiration of a period which be- gins on a prescribed form provided by the Councildate referred to in clause (i) and is equal to the period which the Adminis- trator determines was necessary to develop such information, whichever is later.
(3) All applications for exemption shall be motivated in accordance with the exemption criteria set out in subclause (7) below; shall be supported by relevant documentation and, in addition, shall contain the following information:
The requirements of subsections (a) The period for which the exemption is sought;
and (b) do not apply with respect to the number manufacturing or processing of employees affected and how many any chemical substance which is manufactured or processed, or proposed to be manufactured or processed, only in small quan- tities (as defined by the Administrator by rule) solely for purposes of—
(A) scientific experimentation or analysis, or
(B) chemical research on, or analysis of such employees are members substance or another substance, including such research or analysis for the development of a registered trade union;product, if all persons engaged in such experimentation, research, or analysis for a manufacturer or proc- essor are notified (in such form and manner as the Administrator may prescribe) of any risk to health which the manufacturer, processor, or the Administrator has reason to believe may be associated with such chemical substance.
(c4) The Administrator may, upon application and by rule, exempt the clauses and subclauses manufacturer of this any new chemical substance from all or part of the Agreement from which requirements of this section if the exemption is sought;
(d) satisfactory proof Adminis- trator determines that the applicant has consultedmanufacture, proc- essing, distribution in commerce, use, or dis- posal of such chemical substance, or that any combination of such activities, will consultnot present an unreasonable risk of injury to health or the environment, its employees at plant level in respect including an unreasonable risk to a potentially exposed or susceptible subpopula- tion identified by the Administrator under the conditions of the exemption sought, which consultations shall include a registered party trade union, where such union has members employed at the workplace, and shall include the response resulting from such consultations; and
(e) the demonstrable commercial need of the applicant for the exemption soughtuse.
(5) The Administrator may, upon application, make the requirements of subsections (a) The General Secretary of the Council or the Regional Secretary of the Regional Chamber concerned, or in their absence any other officer designated by the Executive Committee, shall forthwith refer the full exemption application to the Exemptions Committee, which shall have delegated power to deal with such application on behalf of the Council.
and (b) The Exemptions Committee shall consider and determine inapplicable with respect to the application in accordance with the criteria set out in subclause (7) below, within 30 days from the date of lodgement of the application with the General Secretary, failing which the application shall be deemed to have been rejected.
(c) The Exemptions Committee may call for any further information manufacturing or submissions it deems appropriate from the applicant, prior to making a decision. The time period stipulated in subclause (b) above may be extended by agreement between the applicant and the Committee by the period the applicant takes to furnish the additional information or submissions.
(d) The Exemptions Committee may, after considering the application in terms of the provisions and the criteria contained in this clause, grant, partially grant, or reject such application for exemption, and may impose any conditions on the granting or partial granting processing of any application it deems fit under the circumstances. If the applicant is not prepared to accept chemical substance (A) which exists temporarily as a partial granting of the application or any conditions imposed by the Exemptions Committee, the application shall be deemed to have been rejected.
(e) Subject to the time period for considering the application, referred to in subclause (b) above, should the Exemptions Committee be unable to agree, the application shall be deemed to have been rejected and the reasoning of the members of the Exemptions Committee who wish to reject the application shall constitute the reasons of the Committee for the purposes of subclause 4 (i) below.
(f) The Exemptions Committee shall notify the applicant of its decision within seven days of such decision having been reached.
(g) If the application has been granted or partially granted, the Exemptions Committee shall specify the following in its notification to the applicant:
(i) The conditions, if any, of its approval of the application;
(ii) the period for which the exemption(s) will be valid;
(iii) the clauses or subclauses of this part of the Agreement in respect of which exemption was granted or partially granted; and
(iv) the full name of the exempt employer or employee(s).
(h) Upon receipt result of a written request, the Exemptions Committee shall provide brief written reasons for its decision to grant the exemption to any party which has an interest chem- ical reaction in the matter.
(i) If the application for exemption is rejected manufacturing or partially approved, the Exemptions Committee shall provide concise written reasons for such rejection or partial approval to the applicant within seven days of its decision: Provided that such reasons given by the Exemptions Committee shall not bind the Independent Exemptions Body (Exemptions Board) in considering any appeal provided for in subclause (5) below since the latter may make a decision on appeal in accordance with such reasons as he or she deems appropriate, subject to the provisions of this clause insofar as it applies to the Independent Exemptions Body.
(a) Any decision of the Exemptions Committee to reject, partially approve or withdraw the application may be referred on appeal to the Independent Exemptions Body (Exemptions Board) hereby established in terms of the Act and the constitution of the Council. Such application shall be lodged within not more than 30 days of the applicant's being notified of the decision of the Exemptions Committee. The Exemptions Board may condone a late appeal on good cause shown.
(b) The Exemptions Board shall have the power to levy a fee payable by the appellant and to determine the quantum thereof: Provided that such fee shall be consistent with-
(i) the cost incurred for the hearing of the appeal;
(ii) the cost incurred by the Council for the hearing of the appeal where the Exemptions Board is satisfied that such an appeal is without merit.
(c) The Exemptions Board shall in addition, have the power to raise a cost order on the applicant in respect of costs incurred by the parties to the appeal where it is satisfied that it will be proper to do so on the basis that the appeal is so completely without merit that it would be justified in doing so.
(a) The Exemptions Board shall consist processing of a single independent umpire appointed by the parties from a panel selected for this purpose.
(b) The Exemptions Board shall determine the procedure to be adopted in determining the appeal.
(c) The provisions of subclause (4) above shallmixture or another chemical substance, read with the changes required by the context, apply equally to the appeal process.
(d) The decision of the Exemptions Board shall be final and binding.
(7) The applicant shall satisfy the Executive Committee of the Council or the Exemptions Committee and, where applicable, the Exemptions Board of the following:
(a) There is a demonstrable commercial need for the exemption.
(b) Competitors covered by the Council who are in compliance with the applicable Council agreements will not be materially prejudiced by the exemption.
(c) No infringement of the Basic Conditions of Employment Act or the Labour Relations Act will result if the exemption is granted, nor will the application, if granted, result in a conflict with the primary objectives of the Act.
(d) The exemption will not undermine collective bargaining and labour peace in the Industry.
(e) There has been compliance with subclause (3) above.
(f) The majority of affected employees at the plant are in favour of the proposed exemption if it affects wages, benefit fund contributions, or levies. In such instance, either the employer, or the trade union may request that a ballot be conducted.
(8) In addition, the following criteria shall be taken into account by the Exemptions Committee and the Exemptions Board when determining applications for exemptions:
(a) The merits of the written and oral (if any) motivation provided by the applicant, the documentation supporting the application and, in particular, whether the applicant has made a compelling case for the exemption.
(b) Whether the applicant firm will constitute a viable concern after the expiry of the exemption.
(c) If the exemption sought is from any employee benefit fund, the sufficiency of the alternative benefit proposed by the applicant, including such factors as the cost to the employee, transferability, administration, management, costs, growth and stability.
(d) The terms of the exemption sought, including the period thereof.
(e) Any existing or projected special financial, economic or other circumstances put forward by the applicant as reasons warranting the granting of an exemption, including what economic hardship the applicant will suffer if the applicant is refused: Provided that the Executive committee of the Council or the Exemptions Committee or the Exemptions Board may require the disclosure of such relevant, verifiable information as it deems fit in this regard.
(f) The history of the business entity and/or its shareholders, directors and owners within the Industry, including the period of its operation and in particular whether or not the entity is a new emerging enterprise or a small or medium enterprise (SME); and its history of compliance with Council agreements.
(g) Any representations made by the employees and/or their representatives, including a registered trade union, the Council or Executive Committee or Exemptions Committee and/or the parties to the Council and/or the relevant Regional Chamber of the Council.
(h) Any possible alternatives which may be acceptable to the applicant and/or any other interested party in the circumstances.
(i) The cost, efficiency and administration of any conditions which the Executive Committee of the Council or the Exemptions Committee or the Exemptions Board may feel it necessary to impose.
(j) What cost-saving measures may have been implemented by the applicant other than those in respect of its cost of labour.
(k) What hardship may eventuate to employees in the event of the exemption being granted.
(l) Any relevant time limits contained in the Council's constitution and the Act, and in particular that any exemption or partial granting of an exemption shall be for a fixed, stipulated period.
(m) Any other relevant factors, including any decisions of the Council relevant to exemption applications.
(a) An applicant shall be entitled to apply on the prescribed form to the General Secretary of the Council for the extension of any exemption granted by either the Regional Exemptions Committee or the Exemptions Board. An application for extension shall contain such additional information as may be necessary and required to substantiate the request with reference to the criteria set out in subclause (7) above.
(b) The procedure and requirements for considering and determining an application for extension shall be in accordance with the provisions of subclause (4) above, read with the changes required by the context.
(10) Employers employing five or fewer employees shall, upon application to the Council through the General Secretary, be exempted from the provisions of this part of the Agreement.
Appears in 1 contract
Exemptions. A. For any business entity registered with and falling within the Council's registered scope inasmuch as it relates to the scope of this part of the Agreement
(1) Any business entity, whether a party or a non-party to the Council, which is registered with and falls within the Council's registered scope for the purposes of this part of the Agreement The Council may apply to the Council for grant exemption from any or all of the provisions of this part Agreement to or in respect of the Agreementany person for any good and sufficient reason.
(2) All applications for The Council shall fix, in respect of any person granted exemptions under the provisions of subclause (1) of this clause, the conditions subject to which such exemption shall be made operate: Provided that the Council may, if it deems fit, after 30 days notice in writing on has been given to the person concerned, withdraw an exemption, whether or not the period for which the exemption was granted has expired.
(a) The Council shall appoint an Appeal Board to consider and dispose of appeals by non-parties for exemptions not approved by the Council or a prescribed form provided withdrawal of an exemption by the Council. The Appeal Board may, having regard to the individual merits of each application, the recommendation of the Council, the views expressed by the employer(s) and the workforce, grant, withdraw or reject an application for an exemption to an employer or an employee from this Agreement if:-
(i) it is fair to both the employer, its employees and other employers and employees in the sector;
(ii) it does not undermine the agreement;
(iii) it will make a material difference to the viability of an applicant's business; and
(iv) it will assist to overcome economic hardship occurring during the currency of the agreement and will save unnecessary job losses.
(3b) All applications wage and wage-related exemptions only apply for the duration of the agreement.
(4) The Secretary of the Council shall issue to every person granted exemption shall be motivated in accordance with the provisions of this clause a consecutively numbered licence of exemption criteria set out in subclause (7) below; shall be supported signed by relevant documentation andhim, in addition, shall contain the following informationsetting out:
(a) The period for which full name(s) of the exemption is soughtperson(s) concerned;
(b) the number provisions of employees affected and how many of such employees are members of a registered trade unionthe agreement from which exemption has been granted;
(c) the clauses and subclauses of this part of the Agreement from which the exemption is sought;
(d) satisfactory proof that the applicant has consulted, or will consult, its employees at plant level in respect of the exemption sought, which consultations shall include a registered party trade union, where such union has members employed at the workplace, and shall include the response resulting from such consultations; and
(e) the demonstrable commercial need of the applicant for the exemption sought.
(a) The General Secretary of the Council or the Regional Secretary of the Regional Chamber concerned, or in their absence any other officer designated by the Executive Committee, shall forthwith refer the full exemption application to the Exemptions Committee, which shall have delegated power to deal with such application on behalf of the Council.
(b) The Exemptions Committee shall consider and determine the application in accordance with the criteria set out in subclause (7) below, within 30 days from the date of lodgement of the application with the General Secretary, failing which the application shall be deemed to have been rejected.
(c) The Exemptions Committee may call for any further information or submissions it deems appropriate from the applicant, prior to making a decision. The time period stipulated in subclause (b) above may be extended by agreement between the applicant and the Committee by the period the applicant takes to furnish the additional information or submissions.
(d) The Exemptions Committee may, after considering the application in terms of the provisions and the criteria contained in this clause, grant, partially grant, or reject such application for exemption, and may impose any conditions on the granting or partial granting of any application it deems fit under the circumstances. If the applicant is not prepared to accept a partial granting of the application or any conditions imposed by the Exemptions Committee, the application shall be deemed to have been rejected.
(e) Subject to the time period for considering the application, referred to in subclause (b) above, should the Exemptions Committee be unable to agree, the application shall be deemed to have been rejected and the reasoning of the members of the Exemptions Committee who wish to reject the application shall constitute the reasons of the Committee for the purposes of subclause 4 (i) below.
(f) The Exemptions Committee shall notify the applicant of its decision within seven days of such decision having been reached.
(g) If the application has been granted or partially granted, the Exemptions Committee shall specify the following in its notification to the applicant:
(i) The conditions, if any, of its approval of the application;
(ii) the period for which the exemption(s) will be valid;
(iii) the clauses or subclauses of this part of the Agreement in respect of which exemption was granted or partially granted; and
(iv) the full name of the exempt employer or employee(s).
(h) Upon receipt of a written request, the Exemptions Committee shall provide brief written reasons for its decision to grant the exemption to any party which has an interest in the matter.
(i) If the application for exemption is rejected or partially approved, the Exemptions Committee shall provide concise written reasons for such rejection or partial approval to the applicant within seven days of its decision: Provided that such reasons given by the Exemptions Committee shall not bind the Independent Exemptions Body (Exemptions Board) in considering any appeal provided for in subclause (5) below since the latter may make a decision on appeal in accordance with such reasons as he or she deems appropriate, subject to the provisions of this clause insofar as it applies to the Independent Exemptions Body.
(a) Any decision of the Exemptions Committee to reject, partially approve or withdraw the application may be referred on appeal to the Independent Exemptions Body (Exemptions Board) hereby established in terms of the Act and the constitution of the Council. Such application shall be lodged within not more than 30 days of the applicant's being notified of the decision of the Exemptions Committee. The Exemptions Board may condone a late appeal on good cause shown.
(b) The Exemptions Board shall have the power to levy a fee payable by the appellant and to determine the quantum thereof: Provided that such fee shall be consistent with-
(i) the cost incurred for the hearing of the appeal;
(ii) the cost incurred by the Council for the hearing of the appeal where the Exemptions Board is satisfied that such an appeal is without merit.
(c) The Exemptions Board shall in addition, have the power to raise a cost order on the applicant in respect of costs incurred by the parties to the appeal where it is satisfied that it will be proper to do so on the basis that the appeal is so completely without merit that it would be justified in doing so.
(a) The Exemptions Board shall consist of a single independent umpire appointed by the parties from a panel selected for this purpose.
(b) The Exemptions Board shall determine the procedure to be adopted in determining the appeal.
(c) The provisions of subclause (4) above shall, read with the changes required by the context, apply equally to the appeal process.
(d) The decision of the Exemptions Board shall be final and binding.
(7) The applicant shall satisfy the Executive Committee of the Council or the Exemptions Committee and, where applicable, the Exemptions Board of the following:
(a) There is a demonstrable commercial need for the exemption.
(b) Competitors covered by the Council who are in compliance with the applicable Council agreements will not be materially prejudiced by the exemption.
(c) No infringement of the Basic Conditions of Employment Act or the Labour Relations Act will result if the exemption is granted, nor will the application, if granted, result in a conflict with the primary objectives of the Act.
(d) The exemption will not undermine collective bargaining and labour peace in the Industry.
(e) There has been compliance with subclause (3) above.
(f) The majority of affected employees at the plant are in favour of the proposed exemption if it affects wages, benefit fund contributions, or levies. In such instance, either the employer, or the trade union may request that a ballot be conducted.
(8) In addition, the following criteria shall be taken into account by the Exemptions Committee and the Exemptions Board when determining applications for exemptions:
(a) The merits of the written and oral (if any) motivation provided by the applicant, the documentation supporting the application and, in particular, whether the applicant has made a compelling case for the exemption.
(b) Whether the applicant firm will constitute a viable concern after the expiry of the exemption.
(c) If the exemption sought is from any employee benefit fund, the sufficiency of the alternative benefit proposed by the applicant, including such factors as the cost to the employee, transferability, administration, management, costs, growth and stability.
(d) The terms of the exemption sought, including the period thereof.
(e) Any existing or projected special financial, economic or other circumstances put forward by the applicant as reasons warranting the granting of an exemption, including what economic hardship the applicant will suffer if the applicant is refused: Provided that the Executive committee of the Council or the Exemptions Committee or the Exemptions Board may require the disclosure of such relevant, verifiable information as it deems fit in this regard.
(f) The history of the business entity and/or its shareholders, directors and owners within the Industry, including the period of its operation and in particular whether or not the entity is a new emerging enterprise or a small or medium enterprise (SME); and its history of compliance with Council agreements.
(g) Any representations made by the employees and/or their representatives, including a registered trade union, the Council or Executive Committee or Exemptions Committee and/or the parties to the Council and/or the relevant Regional Chamber of the Council.
(h) Any possible alternatives which may be acceptable to the applicant and/or any other interested party in the circumstances.
(i) The cost, efficiency and administration of any conditions which the Executive Committee of the Council or the Exemptions Committee or the Exemptions Board may feel it necessary to impose.
(j) What cost-saving measures may have been implemented by the applicant other than those in respect of its cost of labour.
(k) What hardship may eventuate to employees in the event of the exemption being granted.
(l) Any relevant time limits contained in the Council's constitution and the Act, and in particular that any exemption or partial granting of an exemption shall be for a fixed, stipulated period.
(m) Any other relevant factors, including any decisions of the Council relevant to exemption applications.
(a) An applicant shall be entitled to apply on the prescribed form to the General Secretary of the Council for the extension of any exemption granted by either the Regional Exemptions Committee or the Exemptions Board. An application for extension shall contain such additional information as may be necessary and required to substantiate the request with reference to the criteria set out in subclause (7) above.
(b) The procedure and requirements for considering and determining an application for extension shall be fixed in accordance with the provisions of subclause (42) above, read with of this clause subject to which such exemption is granted; and
(d) the changes required by period during which the contextexemption shall operate.
(105) Employers employing five or fewer employees shall, upon application to the Council through the General Secretary, be exempted from Every employer and employee shall observe the provisions of any licence of exemption in terms of this part clause.
(6) Exemptions shall be dealt with by the Council in accordance with the provisions of the Agreementits Constitution.
Appears in 1 contract
Sources: Main Agreement
Exemptions. A. For any business entity registered with and falling within the Council's registered scope inasmuch as it relates to the scope of this part of the Agreement
(1) Any business entity, whether a party or a non-party to the Council, which is registered with and falls within the Council's registered scope for the purposes of this part of the Agreement may apply to the The Council shall consider all applications for exemption from any or all of the provisions of this part of the AgreementAgreement for any good and sufficient reason.
(2) All applications for exemption shall be made in writing (on a prescribed an application form as provided by the Council) and shall be addressed to the Secretary of the Council for consideration by the Council.
(3) All applications for exemption shall be motivated in accordance with the exemption criteria set out in subclause (7) below; substantiated, and such substantiation shall be supported by relevant documentation and, in addition, shall contain include the following information:details ;
(a) The the period for which the exemption is sought;required
(b) the number of employees affected Agreement and how many of such employees are members of a registered trade union;
(c) the clauses and or subclauses of this part of the Agreement from which the exemption is soughtrequired ;
(dc) satisfactory proof that the applicant exemption applied for has consultedbeen discussed by the employer, or will consult, its his employees at plant level in respect of the exemption sought, which consultations shall include a registered party trade union, where such union has members employed at the workplace, and shall include the response their respective representatives. The responses resulting from such consultations; and
(e) consultation, either in support of or against the demonstrable commercial need of application, shall be included with the applicant for the exemption soughtapplication.
(a4) The General Secretary of the Council or shall place the Regional applications for exemption on the agenda of the next Council meeting, for consideration.
(5) The Secretary of the Regional Chamber concerned, or in their absence any other officer designated by Council shall provide the Executive Committee, shall forthwith refer the full exemption application to the Exemptions Committee, which shall have delegated power to deal Council with such application on behalf details of the Councilapplications for exemption.
(b6) The Exemptions Committee Council shall consider and determine decide on all written applications and, when requested by the application in accordance with applicants or objectors to do so, may interview applicants or objectors at its following meeting: Provided that the criteria set out in subclause (7) belowCouncil may defer a decision to a following meeting if additional substantiation, within 30 days from the date of lodgement of the application with the General Secretary, failing which the application shall be deemed to have been rejected.
(c) The Exemptions Committee may call for any further information or submissions it deems appropriate from verbal representations are considered necessary to decide on the applicant, prior to making a decision. The time period stipulated in subclause (b) above may be extended by agreement between the applicant and the Committee by the period the applicant takes to furnish the additional information or submissions.
(d) The Exemptions Committee may, after considering the application in terms of the provisions and the criteria contained in this clause, grant, partially grant, or reject such application for exemption, and may impose any conditions on the granting or partial granting of any application it deems fit under the circumstances. If the applicant is not prepared to accept a partial granting of the application or any conditions imposed by the Exemptions Committee, the application shall be deemed to have been rejected.
(e) Subject to the time period for considering the application, referred to in subclause (b) above, should the Exemptions Committee be unable to agree, the application shall be deemed to have been rejected and the reasoning of the members of the Exemptions Committee who wish to reject the application shall constitute the reasons of the Committee for the purposes of subclause 4 (i) below.
(f) The Exemptions Committee shall notify the applicant of its decision within seven days of such decision having been reached.
(g) If the application has been granted or partially granted, the Exemptions Committee shall specify the following in its notification to the applicant:
(i) The conditions, if any, of its approval of the application;
(ii) the period for which the exemption(s) will be valid;
(iii) the clauses or subclauses of this part of the Agreement in respect of which exemption was granted or partially granted; and
(iv) the full name of the exempt employer or employee(s).
(h) Upon receipt of a written request, the Exemptions Committee shall provide brief written reasons for its decision to grant the exemption to any party which has an interest in the matter.
(i) If the application for exemption is rejected or partially approved, the Exemptions Committee shall provide concise written reasons for such rejection or partial approval to the applicant within seven days of its decision: Provided that such reasons given by the Exemptions Committee shall not bind the Independent Exemptions Body (Exemptions Board) in considering any appeal provided for in subclause (5) below since the latter may make a decision on appeal in accordance with such reasons as he or she deems appropriate, subject to the provisions of this clause insofar as it applies to the Independent Exemptions Body.
(a) Any decision of the Exemptions Committee to reject, partially approve or withdraw the application may be referred on appeal to the Independent Exemptions Body (Exemptions Board) hereby established in terms of the Act and the constitution of the Council. Such application shall be lodged within not more than 30 days of the applicant's being notified of the decision of the Exemptions Committee. The Exemptions Board may condone a late appeal on good cause shown.
(b) The Exemptions Board shall have the power to levy a fee payable by the appellant and to determine the quantum thereof: Provided that such fee shall be consistent with-
(i) the cost incurred for the hearing of the appeal;
(ii) the cost incurred by the Council for the hearing of the appeal where the Exemptions Board is satisfied that such an appeal is without merit.
(c) The Exemptions Board shall in addition, have the power to raise a cost order on the applicant in respect of costs incurred by the parties to the appeal where it is satisfied that it will be proper to do so on the basis that the appeal is so completely without merit that it would be justified in doing so.
(a) The Exemptions Board shall consist of a single independent umpire appointed by the parties from a panel selected for this purpose.
(b) The Exemptions Board shall determine the procedure to be adopted in determining the appeal.
(c) The provisions of subclause (4) above shall, read with the changes required by the context, apply equally to the appeal process.
(d) The decision of the Exemptions Board shall be final and binding.
(7) The applicant Once the Council has decided to grant an exemption, it shall satisfy issue a certificate and advise the Executive Committee 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 Exemptions Committee and, where applicable, the Exemptions Board applicant(s) within 14 days of the following:
(a) There is a demonstrable commercial need date of such decision and shall provide the reason or reasons for the not granting an exemption.
(b9) Competitors covered by the Exemption criteria - The Council who are in compliance shall consider all applications for exemption with the applicable Council agreements will not be materially prejudiced by the exemption.
(c) No infringement of the Basic Conditions of Employment Act or the Labour Relations Act will result if the exemption is granted, nor will the application, if granted, result in a conflict with the primary objectives of the Act.
(d) The exemption will not undermine collective bargaining and labour peace in the Industry.
(e) There has been compliance with subclause (3) above.
(f) The majority of affected employees at the plant are in favour of the proposed exemption if it affects wages, benefit fund contributions, or levies. In such instance, either the employer, or the trade union may request that a ballot be conducted.
(8) In addition, reference to the following criteria shall be taken into account by the Exemptions Committee and the Exemptions Board when determining applications for exemptions:
(a) The merits of the written and oral (if any) motivation verbal substantiation provided by the applicant, the documentation supporting the application and, in particular, whether the applicant has made a compelling case for the exemption.;
(b) Whether the applicant firm will constitute a viable concern after extent of consultation with and the expiry 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.;
(cd) If 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 sought is from on any employee benefit fund, the sufficiency of fund or training provision in relation to the alternative comparative bona fide benefit proposed by the applicantor provision, including such factors as the cost to the employee, transferability, administration, management, costsadministration management and cost, growth and stability.;
(dg) The terms of the extent to which the proposed exemption sought, including undermines collective bargaining and labour peace in the period thereof.Electrical Industry;
(eh) Any any existing or projected special financial, economic or other circumstances put forward which warrant the granting of the exemption;
i) reporting requirements by the applicant as reasons warranting the granting of an exemption, including what economic hardship the applicant will suffer if the applicant is refused: Provided that the Executive committee and monitoring and re- evaluation processes; and
j) cognisance of the Council or recommendations contained in the Exemptions Committee or Report of the Exemptions Board may require the disclosure of such relevant, verifiable information as it deems fit in this regardPresidential Commission to Investigate Labour Market Policy.
(f10) The history In terms of section 32 of the business entity and/or its shareholders, directors and owners within the Industry, including the period of its operation and in particular whether or not the entity is a new emerging enterprise or a small or medium enterprise (SME); and its history of compliance with Council agreements.
(g) Any representations made by the employees and/or their representatives, including a registered trade unionAct, the Council or Executive Committee or Exemptions Committee and/or hereby establishes an Independent Appeal body to hear and decide as soon as possible, any appeal brought against-
(a) the parties to Council’s refusal of an application for exemption from the Council and/or provisions contained in this Agreement;
(b) the relevant Regional Chamber withdrawal of such exemption by the Council.
(h11) Any possible alternatives which may be acceptable 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 applicant and/or any other interested party in the circumstancesIndependent Appeal body for a decision.
(i12) The cost, efficiency and administration of any conditions which the Executive Committee of the Council or the Exemptions Committee or the Exemptions Board may feel it necessary to impose.
(j) What cost-saving measures may have been implemented by the applicant other than those in respect of its cost of labour.
(k) What hardship may eventuate to employees in the event of the exemption being granted.
(l) Any relevant time limits contained in the Council's constitution and the Act, and in particular that any exemption or partial granting of an exemption Independent Appeal body shall be for a fixed, stipulated period.
(m) Any other relevant factors, including any decisions of the Council relevant to exemption applications.
(a) An applicant shall be entitled to apply on the prescribed form to the General Secretary of the Council for the extension of any exemption granted by either the Regional Exemptions Committee or the Exemptions Board. An application for extension shall contain such additional information as may be necessary and required to substantiate the request consider all applications with reference to the criteria set out in subclause (79) above.
(b) The procedure above and requirements for considering and determining an application for extension shall be ensure that the applications are not in accordance conflict with the provisions of subclause (4) above, read with the changes required by the context.
(10) Employers employing five or fewer employees shall, upon application to the Council through the General Secretary, be exempted from the provisions of this part primary objects of the AgreementAct.
Appears in 1 contract
Sources: National Pension and Provident Funds Collective Agreement
Exemptions. A. For any business entity registered with and falling within the Council's registered scope inasmuch as it relates to the scope of this part of the Agreement
(1) Any business entity, whether a party or a non-party to the Council, which is registered with and falls within the Council's registered scope for the purposes of this part of the Agreement may apply to the Council for exemption from any or all of the provisions of this part of the Agreement.
(2) All applications for exemption shall be made in writing on a prescribed form provided by the Council.
(3) All applications for exemption shall be motivated in accordance with the exemption criteria set out in subclause (7) below; shall be supported by relevant documentation anddocumentation, and in addition, shall contain set out the following information:
(a) The period for which the exemption is sought;
(b) the number of employees affected and how many of such employees are members of a registered trade union;
(c) the clauses and subclauses of this part of the Agreement from which the exemption is sought;requested.
(d) satisfactory Satisfactory proof that the applicant has consulted, or will consult, its employees at plant level in respect of the exemption sought, which sought and the response resulting from such consultations. Such consultations shall include a registered party trade union, union where such union has members employed at the workplace, and shall include the response resulting from such consultations; and.
(e) the The demonstrable commercial need of the applicant for the exemption sought.
(a) The General Secretary of the Council or the Regional Secretary of the Regional Chamber concerned, or in their absence any other officer designated by the Executive Committee, shall forthwith refer the full exemption application to the Exemptions Committee, which shall have delegated power to deal with such application on behalf of the Council.
(b) The Exemptions Committee shall consider and determine the application in accordance with the criteria set out in subclause (7) below, and in form the applicant of its decision within 30 45 days from the date of lodgement of the application with the General Secretary. If notification of the decision is not received within this period, failing which the application shall be deemed to have been rejectedrefused.
(c) The Exemptions Committee may call for any further information or submissions it deems appropriate relevant from the applicant, prior to making a decision. The time period stipulated in subclause (b) above may be extended by agreement between the applicant and the Committee by the period the applicant takes to furnish the additional information or submissions.
(d) The Exemptions Committee may, after considering the application in terms of the provisions and the criteria contained in of this clause, grant, partially grant, or reject such application for exemption, and may impose any conditions on the granting or partial granting of any application it deems fit under the circumstances. If the applicant is not prepared to accept a partial granting of the application or any conditions imposed by the Exemptions Committee, the application shall be deemed to have been rejectedrefused.
(e) Subject to the time period for considering the application, referred to application as provided in subclause (b) above, should the Exemptions Committee be unable to agree, the application shall be deemed to have been rejected refused and the reasoning of the members of the Exemptions Committee who wish to reject the application shall constitute the reasons of the Committee for the purposes of subclause 4 (i) below.
(f) The Exemptions Committee shall notify the applicant of its decision within seven days of such decision having been reached.
(g) If the application has been granted or partially granted, the Exemptions Committee shall specify the following in its notification to the applicant:
(i) The conditions, if any, of its approval of the application;
(ii) the period for which the exemption(s) will be valid;
(iii) the clauses or subclauses of this part of the Agreement in respect of which exemption was granted or partially granted; and
(iv) the full name of the exempt employer or employee(s).
(h) Upon receipt of a written request, the Exemptions Committee shall provide brief written reasons for its decision to grant the exemption to any party which has an interest in the matter.
(i) If the application for exemption is rejected or partially approved, the Exemptions Committee shall provide concise written reasons for such rejection or partial approval to the applicant within seven days of its decision: Provided that such reasons given by the Exemptions Committee shall not bind the Independent Exemptions Body (Exemptions Board) in considering any appeal provided for in subclause (5) below since the latter may make a decision on appeal in accordance with such reasons as he or she deems appropriate, subject to the provisions of this clause insofar as it applies to the Independent Exemptions Body.
(a) Any decision of the Exemptions Committee to reject, partially approve or withdraw the application may be referred on to appeal to the Independent Exemptions Body (Exemptions Board) hereby established in terms of the Act and the constitution of the Council. Such application shall be lodged within not more than 30 days of the applicant's being notified of the decision of the Exemptions Committee. The Exemptions Board may condone a late appeal on good cause shown.
(b) The Exemptions Board shall have the power to levy a fee payable by the appellant and to determine the quantum amount thereof: Provided that such a fee shall be consistent with-
(i) the cost incurred for the hearing of the appeal;; and
(ii) the cost incurred by the Council for the hearing of the appeal where the Exemptions Board is satisfied that such an appeal is without merit.
(c) The Exemptions Board shall in addition, also have the power to raise a cost order on the applicant in respect of costs incurred by the parties to the appeal where it is satisfied that it will be proper to do so on the basis that the appeal is so completely without merit that it would be justified in doing so.
(a) The Exemptions Board shall consist of a single independent umpire appointed by the parties from a panel selected for this purpose.
(b) The Exemptions Board shall determine the procedure to be adopted in determining the appeal.
(c) The provisions of subclause (4) above shall, read with the changes required by the context, apply equally to the appeal process.
(d) The decision of the Exemptions Board shall be final and binding.
(7) The applicant shall satisfy the Executive Committee of the Council or the Exemptions Committee andCommittee, and where applicable, the Exemptions Board of the following:
(a) There is a demonstrable commercial need for the exemption.
(b) Competitors covered by the Council who that are in compliance with the applicable Council agreements Agreements will not be materially prejudiced by the exemption.
(c) No infringement of the Basic Conditions of Employment Act or the Labour Relations Act will result if the exemption is granted, nor will does the application, application if granted, result in a conflict with the primary objectives of the Act.
(d) The exemption will not undermine collective bargaining and labour peace in the Industry.
(e) There has been compliance with subclause (3) above.
(f) The majority of employees affected employees at the plant are in favour of the proposed exemption if it affects wages, benefit fund contributions, or levies. In such instance, either the employer, or the trade union may request that a ballot be conducted.
(8) In addition, the following criteria shall be taken into account by the Exemptions Committee and the Exemptions Board when determining applications for exemptions:
(a) The merits of the written and oral (if any) motivation provided by the applicant, the documentation supporting the application and, in particular, whether the applicant has made put up a compelling case for the exemption.
(b) Whether the applicant firm will constitute a viable concern after the expiry of the exemption.
(c) If the exemption sought is from any employee benefit fund, the sufficiency of the alternative benefit proposed by the applicant, including such factors as the cost to the employee, transferability, administration, management, costs, growth and stability.
(d) The terms of the exemption sought, including the period thereof.for which exemption is sought
(e) Any existing or projected special financial, economic or other circumstances put forward by the applicant as reasons warranting the granting of an exemption, including what economic hardship the applicant will suffer surfer if the applicant is refused: Provided that the Executive committee of the Council or the Exemptions Committee or the Exemptions Board may require the disclosure of such relevant, verifiable information as it deems fit in this regard.
(f) The history of the business entity and/or its shareholders, directors and owners within the Industry, including the period of its operation and in particular whether or not the entity is a new emerging enterprise or a small or medium enterprise (SME); and its history of compliance with Council agreements.
(g) Any representations made by the employees and/or their representatives, including a registered trade union, the Council or Executive Committee or Exemptions Committee and/or the parties to the Council and/or the relevant Regional Chamber of the Council.
(h) Any possible alternatives which may be acceptable to the applicant and/or any other interested party in the circumstances.
(i) The cost, efficiency and administration of any conditions which the Executive Committee of the Council or the Exemptions Committee or the Exemptions Board may feel it necessary to impose.
(j) What cost-saving measures may have been implemented by the applicant other than those in respect of its cost of labour.
(k) What hardship may eventuate to employees in the event of the exemption being granted.
(l) Any relevant time limits contained in the Council's constitution and the Act, and in particular that any . Any exemption or partial granting of an exemption shall be for a fixed, stipulated period.
(m) Any other relevant factors, including any decisions of the Council relevant to exemption applications.
(a) An applicant shall be entitled to apply on the prescribed form to the General Secretary of the Council for the extension of any exemption granted by either the Regional Exemptions Committee or the Exemptions Board. An application for extension shall contain such additional information as may be necessary and required to substantiate the request with reference to the criteria set out in subclause (7) above.
(b) The procedure and requirements for considering and determining an application for extension shall be in accordance with the provisions of subclause (4) above, above read with the changes required by the context.
(10) Employers employing five or fewer employees shall, upon application to the Council through the General Secretary, be exempted from the provisions of this part of the Agreement.
Appears in 1 contract
Sources: National Main Collective Agreement
Exemptions. A. For any business entity registered with and falling within the Council's registered scope inasmuch as it relates to the scope of this part of the Agreement
(1) Any business entity, whether a party or a non-party to the Council, which is registered with and falls within the Council's registered scope for the purposes of this part of the Agreement may apply to the Council for exemption from any or all of the provisions of this part of the Agreement.
(2) All applications for exemption shall be made in writing on a prescribed form provided by the Council.
(3) All applications for exemption shall be motivated in accordance with the exemption criteria set out in subclause (7) below; shall be supported by relevant documentation and, in addition, shall contain the following information:
(a) The the period for which the exemption is sought;
(b) the number of employees affected and how many of such employees are members of a registered trade union;
(c) the clauses and subclauses of this part of the Agreement from which the exemption is sought;
(d) satisfactory proof that the applicant has consulted, or will consult, its employees at plant level in respect of the exemption sought, which consultations shall include a registered party trade union, where such union has members employed at the workplace, and shall include the response resulting from such consultations; and
(e) the demonstrable commercial need of the applicant for the exemption sought.
(a) The General Secretary of the Council or the Regional Secretary of the Regional Chamber concerned, or in their absence any other officer designated by the Executive Committee, shall forthwith refer the full exemption application to the Exemptions Committee, which shall have delegated power to deal with such application on behalf of the Council.
(b) The Exemptions Committee shall consider and determine the application in accordance with the criteria set out in subclause (7) below, within 30 45 days from the date of lodgement of the application with the General Secretary, failing which the application shall be deemed to have been rejectedrefused.
(c) The Exemptions Committee may call for any further information or submissions it deems appropriate from the applicant, prior to making a decision. The time period stipulated in subclause (b) above may be extended by agreement between the applicant and the Committee by the period the applicant takes to furnish the additional information or submissions.
(d) The Exemptions Committee may, after considering the application in terms of the provisions and the criteria contained in this clause, grant, partially grant, or reject such application for exemption, and may impose any conditions on the granting or partial granting of any application it deems fit under the circumstances. If the applicant is not prepared to accept a partial granting of the application or any conditions imposed by the Exemptions Committee, the application shall be deemed to have been rejected.
(e) Subject to the time period for considering the application, referred to in subclause (b) above, should the Exemptions Committee be unable to agree, the application shall be deemed to have been rejected and the reasoning of the members of the Exemptions Committee who wish to reject the application shall constitute the reasons of the Committee for the purposes of subclause 4 4
(i) below.
(f) The Exemptions Committee shall notify the applicant of its decision within seven days of such decision having been reached.
(g) If the application has been granted or partially granted, the Exemptions Committee shall specify the following in its notification to the applicant:
(i) The the conditions, if any, of its approval of the application;
(ii) the period for which the exemption(s) will be valid;
(iii) the clauses or subclauses of this part of the Agreement in respect of which exemption was granted or partially granted; and
(iv) the full name of the exempt employer or employee(s).
(h) Upon receipt of a written request, the Exemptions Committee shall provide brief written reasons for its decision to grant the exemption to any party which has an interest in the matter.
(i) If the application for exemption is rejected or partially approved, the Exemptions Committee shall provide concise written reasons for such rejection or partial approval to the applicant within seven days of its decision: Provided that such reasons given by the Exemptions Committee shall not bind the Independent Exemptions Body (Exemptions Board) in considering any appeal provided for in subclause (5) below since the latter may make a decision on appeal in accordance with such reasons as he or she deems appropriate, subject to the provisions of this clause insofar as it applies to the Independent Exemptions Body.
(a) Any decision of the Exemptions Committee to reject, partially approve or withdraw the application application, may be referred on appeal to the Independent Exemptions Body (Exemptions Body(Exemptions Board) hereby established in terms of the Act and the constitution of the Council. Such application shall be lodged within not more than 30 days of the applicant's being notified of the decision of the Exemptions Committee. The Exemptions Board may condone a late appeal on good cause shown.
(b) The Exemptions Board shall have the power to levy a fee payable by the appellant and to determine the quantum thereof: Provided that such fee shall be consistent with-
(i) the cost incurred for the hearing of the appeal;
(ii) the cost incurred by the Council for the hearing of the appeal where the Exemptions Board is satisfied that such an appeal is without merit.
(c) The Exemptions Board shall shall, in addition, have the power to raise a cost order on the applicant in respect of costs cost incurred by the parties to the appeal where it is satisfied that it will be proper to do so on the basis that the appeal is so completely without merit that it would be justified in doing so.
(a) The Exemptions Board shall consist of a single independent umpire appointed by the parties from a panel selected for this purpose.umpire
(b) The Exemptions Board shall determine the procedure to be adopted in determining the appeal.
(c) The provisions of subclause (4) above shall, read with the changes required by the context, apply equally to the appeal process.
(d) The decision of the Exemptions Board shall be final and binding.
(7) The applicant shall satisfy the Executive Committee of the Council or the Exemptions Committee and, where applicable, the Exemptions Board of the following:
(a) There is a demonstrable commercial need for the exemption.
(b) Competitors covered by the Council who are in compliance with the applicable Council agreements will not be materially prejudiced by the exemption.
(c) The applicant is not in arrears with respect to payment of Bargaining Council levies or employer or employee contributions and/or trade union/employer subscriptions and/or levies, or, if so, an agreed payment plan exists in respect of any such outstanding moneys. "Arrears", for this purpose, means any payment of Bargaining Council levies or employer or employee or trade union subscriptions which remain unpaid as at the last day of the month following the month in respect of which the payment is due.
(d) No infringement of the Basic Conditions of Employment Act or the Labour Relations Act will result if the exemption is granted, nor will the application, if granted, result in a conflict with the primary objectives of the Act.
(de) The exemption will not undermine collective bargaining and labour peace in the Industryindustry.
(ef) There has been compliance with subclause (3) above.
(fg) The majority of affected employees at the plant are in favour of the proposed exemption if it affects wages, benefit fund contributions, or levies. In such instance, either the employer, or the trade union may request that a ballot be conducted.
(8) In addition, the following criteria shall be taken into account by the Exemptions Committee and the Exemptions Board when determining applications for exemptions:
(a) The merits of the written and oral (if any) motivation provided by the applicant, the documentation supporting the application and, in particular, whether the applicant has made a compelling case for the exemption.
(b) Whether the applicant firm will constitute a viable concern after the expiry of the exemption.
(c) If the exemption sought is from any employee benefit fund, the sufficiency of the alternative benefit proposed by the applicant, including such factors as the cost to the employee, transferability, administration, management, costs, growth and stability.
(d) The terms . "Sufficiency", for the purposes of this subclause, means that in all material respects the exemption soughtalternative proposed is at least equal to, including the period thereof.
(e) Any existing or projected special financial, economic or other circumstances put forward by the applicant as reasons warranting the granting of an exemption, including what economic hardship the applicant will suffer if the applicant is refused: Provided that the Executive committee of the Council or the Exemptions Committee or the Exemptions Board may require the disclosure of such relevant, verifiable information as it deems fit in this regard.
(f) The history of the business entity and/or its shareholders, directors and owners within the Industry, including the period of its operation and in particular whether or not the entity is a new emerging enterprise or a small or medium enterprise (SME); and its history of compliance with Council agreements.
(g) Any representations made by the employees and/or their representatives, including a registered trade unionbetter than, the relevant Council or Executive Committee or Exemptions Committee and/or the parties to the Council and/or the relevant Regional Chamber of the Councilbenefit fund.
(h) Any possible alternatives which may be acceptable to the applicant and/or any other interested party in the circumstances.
(i) The cost, efficiency and administration of any conditions which the Executive Committee of the Council or the Exemptions Committee or the Exemptions Board may feel it necessary to impose.
(j) What cost-saving measures may have been implemented by the applicant other than those in respect of its cost of labour.
(k) What hardship may eventuate to employees in the event of the exemption being granted.
(l) Any relevant time limits contained in the Council's constitution and the Act, and in particular that any exemption or partial granting of an exemption shall be for a fixed, stipulated period.
(m) Any other relevant factors, including any decisions of the Council relevant to exemption applications.
(a) An applicant shall be entitled to apply on the prescribed form to the General Secretary of the Council for the extension of any exemption granted by either the Regional Exemptions Committee or the Exemptions Board. An application for extension shall contain such additional information as may be necessary and required to substantiate the request with reference to the criteria set out in subclause (7) above.
(b) The procedure and requirements for considering and determining an application for extension shall be in accordance with the provisions of subclause (4) above, read with the changes required by the context.
(10) Employers employing five or fewer employees shall, upon application to the Council through the General Secretary, be exempted from the provisions of this part of the Agreement.
Appears in 1 contract
Sources: National Main Collective Agreement
Exemptions. A. For any business entity registered with and falling within the Council's registered scope inasmuch as it relates to the scope of this part of the Agreement
(1) Any business entity, whether a party or a non-party to the Council, which is registered with and falls within the Council's registered scope for the purposes of this part of the Agreement may apply to the Council for exemption from any or all of the provisions of this part of the Agreement.
(2) All applications for exemption shall be made in writing on a prescribed form provided by the Council.
(3) All applications for exemption shall be motivated in accordance with the exemption criteria set out in subclause (7) below; shall be supported by relevant documentation and, in addition, shall contain the following information:
(a) The period for which the exemption is sought;
(b) the number of employees affected and how many of such employees are members of a registered trade union;
(c) the clauses and subclauses of this part of the Agreement from which the exemption is sought;
(d) satisfactory proof that the applicant has consulted, or will consult, its employees at plant level in respect of the exemption sought, which consultations shall include a registered party trade union, where such union has members employed at the workplace, and shall include the response resulting from such consultations; and
(e) the demonstrable commercial need of the applicant for the exemption sought.
(a) The General Secretary of the Council or the Regional Secretary of the Regional Chamber concerned, or in their absence any other officer designated by the Executive Committee, shall forthwith refer the full exemption application to the Exemptions Committee, which shall have delegated power to deal with such application on behalf of the Council.
(b) The Exemptions Committee shall consider and determine the application in accordance with the criteria set out in subclause (7) below, within 30 days from the date of lodgement of the application with the General Secretary, failing which the application shall be deemed to have been rejectedrefused.
(c) The Exemptions Committee may call for any further information or submissions it deems appropriate from the applicant, prior to making a decision. The time period stipulated in subclause (b) above may be extended by agreement between the applicant and the Committee by the period the applicant takes to furnish the additional information or submissions.
(d) The Exemptions Committee may, after considering the application in terms of the provisions and the criteria contained in this clause, grant, partially grant, or reject such application for exemption, and may impose any conditions on the granting or partial granting of any application it deems fit under the circumstances. If the applicant is not prepared to accept a partial granting of the application or any conditions imposed by the Exemptions Committee, the application shall be deemed to have been rejected.
(e) Subject to the time period for considering the application, application referred to in subclause (b) above, should the Exemptions Committee be unable to agree, the application shall be deemed to have been rejected and the reasoning of the members of the Exemptions Committee who wish to reject the application shall constitute the reasons of the Committee for the purposes of subclause 4 (i) below.
(f) The Exemptions Committee shall notify the applicant of its decision within seven days of such decision having been reached.
(g) If the application has been granted or partially granted, the Exemptions Committee shall specify the following in its notification to the applicant:
(i) The conditions, if any, of its approval of the application;
(ii) the period for which the exemption(s) will be valid;'
(iii) the clauses or subclauses of this part of the Agreement in respect of which exemption was granted or partially granted; and
(iv) the full name of the exempt employer or employee(s).
(h) Upon receipt of a written request, the Exemptions Committee shall provide brief written reasons for its decision to grant the exemption to any party which has an interest in the matter.
(i) If the application for exemption is rejected or partially approved, the Exemptions Committee shall provide concise written reasons for such rejection or partial approval to the applicant within seven days of its decision: Provided that such reasons given by the Exemptions Committee shall not bind the Independent Exemptions Body (Exemptions Board) in considering any appeal provided for in subclause (5) below since the latter may make a decision on appeal in accordance with such reasons as he or she deems appropriate, subject to the provisions of this clause insofar as it applies to the Independent Exemptions Body.
(a) Any decision of the Exemptions Committee to reject, partially approve or withdraw the application may be referred on appeal to the Independent Exemptions Body (Exemptions Board) hereby established in terms of the Act and the constitution of the Council. Such application shall be lodged within not more than 30 days of the applicant's being notified of the decision of the Exemptions Committee. The Exemptions Board may condone a late appeal on good cause shown.
(b) The Exemptions Board shall have the power to levy a fee payable by the appellant and to determine the quantum thereof: Provided that such fee shall be consistent with-
(i) the cost incurred for the hearing of the appeal;
(ii) the cost incurred by the Council for the hearing of the appeal where the Exemptions Board is satisfied that such an appeal is without merit.
(c) The Exemptions Board shall in addition, have the power to raise a cost order on the applicant in respect of costs incurred by the parties to the appeal where it is satisfied that it will be proper to do so on the basis that the appeal is so completely without merit that it would be justified in doing so.
(a) The Exemptions Board shall consist of a single independent umpire appointed by the parties from a panel selected for this purpose.
(b) The Exemptions Board shall determine the procedure to be adopted in determining the appeal.
(c) The provisions of subclause (4) above shall, read with the changes required by the context, apply equally to the appeal process.
(d) The decision of the Exemptions Board shall be final and binding.
(7) The applicant shall satisfy the Executive Committee of the Council or the Exemptions Committee and, where applicable, the Exemptions Board of the following:
(a) There is a demonstrable commercial need for the exemption.
(b) Competitors covered by the Council who are in compliance with the applicable Council agreements will not be materially prejudiced by the exemption.
(c) No infringement of the Basic Conditions of Employment Act or the Labour Relations Act will result if the exemption is granted, nor will the application, if granted, result in a conflict with the primary objectives of the Act.
(d) The exemption will not undermine collective bargaining and labour peace in the Industry.
(e) There has been compliance with subclause (3) above.
(f) The majority of affected employees at the plant are in favour of the proposed exemption if it affects wages, benefit fund contributions, or levies. In such instance, either the employer, or the trade union may request that a ballot be conducted.
(8) In addition, the following criteria shall be taken into account by the Exemptions Committee and the Exemptions Board when determining applications for exemptions:
(a) The merits of the written and oral (if any) motivation provided by the applicant, the documentation supporting the application and, in particular, whether the applicant has made a compelling case for the exemption.
(b) Whether the applicant firm will constitute a viable concern after the expiry of the exemption.
(c) If the exemption sought is from any employee benefit fund, the sufficiency of the alternative benefit proposed by the applicant, including such factors as the cost to the employee, transferability, administration, management, costs, growth and stability.
(d) The terms of the exemption sought, including the period thereof.
(e) Any existing or projected special financial, economic or other circumstances put forward by the applicant as reasons warranting the granting of an exemption, including what economic hardship the applicant will suffer if the applicant is refused: Provided that the Executive committee of the Council or the Exemptions Committee or the Exemptions Board may require the disclosure of such relevant, verifiable information as it deems fit in this regard.
(f) The history of the business entity and/or its shareholders, directors and owners within the Industry, including the period of its operation and in particular whether or not the entity is a new emerging enterprise or a small or medium enterprise (SME); and its history of compliance with Council agreements.
(g) Any representations made by the employees and/or their representatives, including a registered trade union, the Council or Executive Committee or Exemptions Committee and/or the parties to the Council and/or the relevant Regional Chamber of the Council.
(h) Any possible alternatives which may be acceptable to the applicant and/or any other interested party in the circumstances.
(i) The cost, efficiency and administration of any conditions which the Executive Committee of the Council or the Exemptions Committee or the Exemptions Board may feel it necessary to impose.
(j) What cost-saving measures may have been implemented by the applicant other than those in respect of its cost of labour.
(k) What hardship may eventuate to employees in the event of the exemption being granted.
(l) Any relevant time limits contained in the Council's constitution and the Act, and in particular that any exemption or partial granting of an exemption shall be for a fixed, stipulated period.
(m) Any other relevant factors, including any decisions of the Council relevant to exemption applications.
(a) An applicant shall be entitled to apply on the prescribed form to the General Secretary of the Council for the extension of any exemption granted by either the Regional Exemptions Committee or the Exemptions Board. An application for extension shall contain such additional information as may be necessary and required to substantiate the request with reference to the criteria set out in subclause (7) above.
(b) The procedure and requirements for considering and determining an application for extension shall be in accordance with the provisions of subclause (4) above, read with the changes required by the context.
(10) Employers employing five or fewer employees shall, upon application to the Council through the General Secretary, be exempted from the provisions of this part of the Agreement.Exemptions
Appears in 1 contract
Sources: National Main Collective Agreement
Exemptions. A. For any business entity registered with Investor represents and falling within the Council's registered scope inasmuch as it relates warrants to the scope of this part of the Agreement
(1) Any business entity, whether a party or a non-party to the Council, which is registered with and falls within the Council's registered scope for the purposes of this part of the Agreement may apply to the Council for exemption from any or all of the provisions of this part of the Agreement.
(2) All applications for exemption shall be made in writing on a prescribed form provided by the Council.
(3) All applications for exemption shall be motivated in accordance with the exemption criteria set out in subclause (7) below; shall be supported by relevant documentation and, in addition, shall contain the following information:
(a) The period for which the exemption is sought;
(b) the number of employees affected and how many of such employees are members of a registered trade union;
(c) the clauses and subclauses of this part of the Agreement from which the exemption is sought;
(d) satisfactory proof that the applicant has consulted, or will consult, its employees at plant level in respect of the exemption sought, which consultations shall include a registered party trade union, where such union has members employed at the workplace, and shall include the response resulting from such consultations; and
(e) the demonstrable commercial need of the applicant for the exemption sought.
(a) The General Secretary of the Council or the Regional Secretary of the Regional Chamber concerned, or in their absence any other officer designated by the Executive Committee, shall forthwith refer the full exemption application to the Exemptions Committee, which shall have delegated power to deal with such application on behalf of the Council.
(b) The Exemptions Committee shall consider and determine the application in accordance with the criteria set out in subclause (7) below, within 30 days from the date of lodgement of the application with the General Secretary, failing which the application shall be deemed to have been rejected.
(c) The Exemptions Committee may call for any further information or submissions it deems appropriate from the applicant, prior to making a decision. The time period stipulated in subclause (b) above may be extended by agreement between the applicant and the Committee by the period the applicant takes to furnish the additional information or submissions.
(d) The Exemptions Committee may, after considering the application in terms of the provisions and the criteria contained in this clause, grant, partially grant, or reject such application for exemption, and may impose any conditions on the granting or partial granting of any application it deems fit under the circumstances. If the applicant is not prepared to accept a partial granting of the application or any conditions imposed by the Exemptions Committee, the application shall be deemed to have been rejected.
(e) Subject to the time period for considering the application, referred to in subclause (b) above, should the Exemptions Committee be unable to agree, the application shall be deemed to have been rejected and the reasoning of the members of the Exemptions Committee who wish to reject the application shall constitute the reasons of the Committee for the purposes of subclause 4 (i) below.
(f) The Exemptions Committee shall notify the applicant of its decision within seven days of such decision having been reached.
(g) If the application has been granted or partially granted, the Exemptions Committee shall specify the following in its notification to the applicantCompany that:
(i) The conditionsInvestor is not a "U.S. person" as that term is defined in Rule 902 of Regulation S, if any, and is not acquiring the Securities for the account or benefit of its approval of the applicationany U.S. person;
(ii) Investor is not, and at Closing will not be, an affiliate of the period for which the exemption(s) will be validCompany;
(iii) At the clauses time the buy order is/was originated, on the date this Agreement was executed and delivered, and on the Closing, Investor was outside the United States; no offer to purchase the Units was made in the United States; and the transactions contemplated hereby have not been and will not be pre-arranged by the Investor with a purchaser located in the United States or subclauses of this part of the Agreement in respect of which exemption was granted or partially granted; andwho is a U.S. person;
(iv) the full name All offers or sales of the exempt employer Securities made before the expiration of the one-year “distribution compliance period” (which begins on the date of the final closing of the offering of the Units and ending 365 days thereafter) shall not be made to a U.S. person or employee(s).
(h) Upon receipt for the account or benefit of a written request, U.S. person (other than a distributor) unless such securities are registered under the Exemptions Committee shall provide brief written reasons for its decision to grant Securities Act or a valid exemption can be relied upon under both the exemption to any party which has an interest in the matter.
(i) If the application for exemption is rejected appropriate U.S. state or partially approved, the Exemptions Committee shall provide concise written reasons for such rejection or partial approval to the applicant within seven days of its decision: Provided that such reasons given by the Exemptions Committee shall not bind the Independent Exemptions Body (Exemptions Board) in considering any appeal provided for in subclause (5) below since the latter may make a decision on appeal in accordance with such reasons as he or she deems appropriate, subject to the provisions of this clause insofar as it applies to the Independent Exemptions Body.
(a) Any decision of the Exemptions Committee to reject, partially approve or withdraw the application may be referred on appeal to the Independent Exemptions Body (Exemptions Board) hereby established in terms of the Act and the constitution of the Council. Such application shall be lodged within not more than 30 days of the applicant's being notified of the decision of the Exemptions Committee. The Exemptions Board may condone a late appeal on good cause shown.
(b) The Exemptions Board shall have the power to levy a fee payable by the appellant and to determine the quantum thereof: Provided that such fee shall be consistent with-
(i) the cost incurred for the hearing of the appealfederal securities laws;
(iiv) Investor represents and warrants and hereby agrees that Investor will resell the cost incurred by the Council for the hearing of the appeal where the Exemptions Board is satisfied that such an appeal is without merit.
(c) The Exemptions Board shall in addition, have the power to raise a cost order on the applicant in respect of costs incurred by the parties to the appeal where it is satisfied that it will be proper to do so on the basis that the appeal is so completely without merit that it would be justified in doing so.
(a) The Exemptions Board shall consist of a single independent umpire appointed by the parties from a panel selected for this purpose.
(b) The Exemptions Board shall determine the procedure to be adopted in determining the appeal.
(c) The provisions of subclause (4) above shall, read with the changes required by the context, apply equally to the appeal process.
(d) The decision of the Exemptions Board shall be final and binding.
(7) The applicant shall satisfy the Executive Committee of the Council or the Exemptions Committee and, where applicable, the Exemptions Board of the following:
(a) There is a demonstrable commercial need for the exemption.
(b) Competitors covered by the Council who are in compliance with the applicable Council agreements will not be materially prejudiced by the exemption.
(c) No infringement of the Basic Conditions of Employment Act or the Labour Relations Act will result if the exemption is granted, nor will the application, if granted, result in a conflict with the primary objectives of the Act.
(d) The exemption will not undermine collective bargaining and labour peace in the Industry.
(e) There has been compliance with subclause (3) above.
(f) The majority of affected employees at the plant are in favour of the proposed exemption if it affects wages, benefit fund contributions, or levies. In such instance, either the employer, or the trade union may request that a ballot be conducted.
(8) In addition, the following criteria shall be taken into account by the Exemptions Committee and the Exemptions Board when determining applications for exemptions:
(a) The merits of the written and oral (if any) motivation provided by the applicant, the documentation supporting the application and, in particular, whether the applicant has made a compelling case for the exemption.
(b) Whether the applicant firm will constitute a viable concern after the expiry of the exemption.
(c) If the exemption sought is from any employee benefit fund, the sufficiency of the alternative benefit proposed by the applicant, including such factors as the cost to the employee, transferability, administration, management, costs, growth and stability.
(d) The terms of the exemption sought, including the period thereof.
(e) Any existing or projected special financial, economic or other circumstances put forward by the applicant as reasons warranting the granting of an exemption, including what economic hardship the applicant will suffer if the applicant is refused: Provided that the Executive committee of the Council or the Exemptions Committee or the Exemptions Board may require the disclosure of such relevant, verifiable information as it deems fit in this regard.
(f) The history of the business entity and/or its shareholders, directors and owners within the Industry, including the period of its operation and in particular whether or not the entity is a new emerging enterprise or a small or medium enterprise (SME); and its history of compliance with Council agreements.
(g) Any representations made by the employees and/or their representatives, including a registered trade union, the Council or Executive Committee or Exemptions Committee and/or the parties to the Council and/or the relevant Regional Chamber of the Council.
(h) Any possible alternatives which may be acceptable to the applicant and/or any other interested party in the circumstances.
(i) The cost, efficiency and administration of any conditions which the Executive Committee of the Council or the Exemptions Committee or the Exemptions Board may feel it necessary to impose.
(j) What cost-saving measures may have been implemented by the applicant other than those in respect of its cost of labour.
(k) What hardship may eventuate to employees in the event of the exemption being granted.
(l) Any relevant time limits contained in the Council's constitution and the Act, and in particular that any exemption or partial granting of an exemption shall be for a fixed, stipulated period.
(m) Any other relevant factors, including any decisions of the Council relevant to exemption applications.
(a) An applicant shall be entitled to apply on the prescribed form to the General Secretary of the Council for the extension of any exemption granted by either the Regional Exemptions Committee or the Exemptions Board. An application for extension shall contain such additional information as may be necessary and required to substantiate the request with reference to the criteria set out in subclause (7) above.
(b) The procedure and requirements for considering and determining an application for extension shall be Securities only in accordance with the provisions of subclause (4) aboveRegulation S, read pursuant to registration under the Securities Act, or pursuant to an available exemption from registration, and Investor shall not engage in hedging transactions with regard to such Securities unless in compliance with the changes required by the context.Securities Act;
(10vi) Employers employing five Investor is not an underwriter or fewer employees shalldealer in the Securities; and is not a distributor or participating, upon application pursuant to contractual agreement, in the distribution of such Securities;
(vii) Each distributor participating in offering the Units, if any, has agreed in writing that all offers and sales of the Securities prior to the Council through expiration of the General Secretary“distribution compliance period" shall only be made in compliance with the safe harbor contained in rules 903 or 904 of Regulation S, pursuant to registration of such Units under the Securities Act, or pursuant to an exemption from registration; and each distributor has further agreed in writing not to engage in hedging transactions regarding the Securities unless in compliance with the Securities Act;
(viii) All offering documents received by Investor include statements to the effect that the Units have not been registered under the Securities Act and may not be exempted offered or sold in the United States or to U.S. persons (other than distributors as defined in Regulation S) during the “distribution compliance period” unless such Units are registered under the Securities Act or an exemption from the registration requirements is available;
(ix) Investor acknowledges that receipt of the Units as a purchase involves a high degree of risk and further acknowledges that it can bear the economic risk of the purchase of such Units, including the total loss of its investment;
(x) Investor understands that the Units are being offered and issued in reliance on specific exemptions from the registration requirements of federal and state securities laws and that the Company is relying on the truth and accuracy of the representations, warranties, and agreements of Investor set forth herein in order to determine the applicability of such exemptions and the suitability of Investor to acquire such Units;
(xi) Investor is sufficiently experienced in financial and business matters to be capable of evaluating the merits and risks of receiving the Units and to make an informed decision relating thereto;
(xii) In evaluating its investment, Investor has consulted its own investment and/or legal and/or tax advisors; and
(xiii) Investor understands that in the Commission’s view, the statutory basis for the exemption claimed for this transaction would not be available if the offering, though in technical compliance with Regulation S, is part of a plan or scheme to evade the registration provisions of this the Securities Act; and Investor confirms that its purchase is not part of any such plan or scheme. Investor is acquiring the AgreementUnits for investment purposes and has no present intention to sell such Units in the United States or to a U.S. person or for the account or benefit of a U.S. person either now or promptly after the expiration of the “distribution compliance period.”
Appears in 1 contract