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 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 requested. (d) Satisfactory proof that the applicant has consulted, or will consult, its employees at plant level in respect of the exemption sought and the response resulting from such consultations. Such consultations shall include a registered trade union where such union has members employed at the workplace. (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, 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, the application shall be deemed to have been refused. (c) The Exemptions Committee may call for any further information or submissions it deems relevant from the applicant, prior to making a decision. The 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 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 refused. (e) Subject to the time period for considering the application as provided in subclause (b) above, should the Exemptions Committee be unable to agree, the application shall be deemed to have been 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 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 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 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, 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 that 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 does 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 employees affected 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 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 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 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. 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 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

Samples: 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~~documentation and, ~~and~~ in addition, shall ~~set out~~ 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 ~~requested.~~sought; (d) ~~Satisfactory~~ satisfactory proof that the applicant has consulted, or will consult, its employees at plant level in respect of the exemption ~~sought and the response resulting from such consultations. Such~~ sought, which 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 ~~refused~~rejected. (c) The Exemptions Committee may call for any further information or submissions it deems ~~relevant~~ 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 of 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 ~~refused~~rejected. (e) Subject to the time period for considering the ~~application as provided~~ application, referred to in subclause (b) above, should the Exemptions Committee be unable to agree, the application shall be deemed to have been ~~refused~~ 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 to 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 ~~amount~~ quantum 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 ~~also~~ 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~~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 ~~that~~ who 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 ~~does~~ will 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 affected employees ~~affected~~ 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 ~~put up~~ 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 ~~for which exemption is sought~~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 ~~surfer~~ 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~~. Any~~ , 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~~ 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

Samples: 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~~documentation and, ~~and~~ in addition, shall ~~set out~~ 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 ~~requested.~~sought; (d) ~~Satisfactory~~ satisfactory proof that the applicant has consulted, or will consult, its employees at plant level in respect of the exemption ~~sought and the response resulting from such consultations. Such~~ sought, which 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 ~~refused~~rejected. (c) The Exemptions Committee may call for any further information or submissions it deems ~~relevant~~ 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 of 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 ~~refused~~rejected. (e) Subject to the time period for considering the application as provided in subclause (b) above, should the Exemptions Committee be unable to agree, the application shall be deemed to have been 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 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 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 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, 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 that 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 does 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 employees affected 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 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 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 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. 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 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

Samples: 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~~documentation and, ~~and~~ in addition, shall ~~set out~~ 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 ~~requested.~~sought; (d) ~~Satisfactory~~ satisfactory proof that the applicant has consulted, or will consult, its employees at plant level in respect of the exemption ~~sought and the response resulting from such consultations. Such~~ sought, which 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) 7 below, ~~and in form the applicant of its decision~~ within 30 days from the date of ~~lodgement~~ lodgment 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 refused. (c) The Exemptions Committee may call for any further information or submissions it deems ~~relevant~~ 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 of 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 ~~refused~~rejected. (e) Subject to the time period for considering the application ~~as provided~~ referred to in subclause (b) above, should the Exemptions Committee be unable to agree, the application shall be deemed to have been ~~refused~~ 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 to 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 ~~amount~~ quantum 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 also~~ 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~~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 ~~that~~ who 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 ~~does~~ will 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~~industry. (e) There has been compliance with subclause (3) above. (f) The majority of affected employees ~~affected~~ 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 ~~put up~~ 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 ~~for which exemption is sought~~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 ~~surfer~~ 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~~. Any~~ , 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~~ 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

Samples: 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,~~ documentation and in ~~addition, shall set out~~ 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 requested.; (d) Satisfactory proof that the applicant has consulted, or will consult, its employees at plant level in respect of the exemption ~~sought and the response resulting from~~ sought, such ~~consultations. Such~~ consultations ~~shall~~ to include a registered party trade ~~union~~ union, where such union has members employed at the workplace, including the response resulting from such consultations. (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~~ 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, ~~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~~ will be deemed to have been refused. (c) The Exemptions Committee may call for any further information or submissions as it deems ~~relevant~~ 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 of 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 refused. (e) Subject to the time period for considering the 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 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 to 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 ~~amount~~ quantum thereof: Provided that such a fee shall be consistent with- (i) the cost incurred for the hearing of the appeal; ~~and~~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 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, 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 ~~that~~ who are in compliance with the applicable Council 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, ~~nor does 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 ~~affected~~ 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 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 ~~for which exemption is sought~~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 ~~surfer~~ 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~~. Any~~ , and, in 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 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

Samples: 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~~documentation and, ~~and~~ in addition, shall ~~set out~~ 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 ~~requested.~~sought; (d) ~~Satisfactory~~ satisfactory proof that the applicant has consulted, or will consult, its employees at plant level in respect of the exemption ~~sought and the response resulting from such consultations. Such~~ sought, which 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~~ lodgment 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 refused. (c) The Exemptions Committee may call for any further information or submissions it deems ~~relevant~~ 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 of 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 ~~refused~~rejected. (e) Subject to the time period for considering the application ~~as provided~~ referred to in subclause (b) above, should the Exemptions Committee be unable to agree, the application shall be deemed to have been ~~refused~~ 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 to 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 ~~amount~~ quantum 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 also~~ 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~~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~~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 ~~that~~ who 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 ~~does~~ will 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~~industry. (e) There has been compliance with subclause (3) above. (f) The majority of affected employees ~~affected~~ 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 ~~put up~~ 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 ~~for which exemption is sought~~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 ~~surfer~~ 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~~. Any~~ , 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~~ 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

Samples: 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~~documentation and, ~~and~~ in addition, shall ~~set out~~ 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 ~~requested.~~sought; (d) ~~Satisfactory~~ satisfactory proof that the applicant has consulted, or will consult, its employees at plant level in respect of the exemption ~~sought and the response resulting from such consultations. Such~~ sought, which 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 refused. (c) The Exemptions Committee may call for any further information or submissions it deems ~~relevant~~ 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 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 refused. (e) Subject to the time period for considering the application as provided in subclause (b) above, should the Exemptions Committee be unable to agree, the application shall be deemed to have been 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 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 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 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, 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 that 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 does 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 employees affected 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 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 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 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. 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 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

Samples: 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 set out the following information: (a) ~~The period for which the exemption is sought; (b) the number~~ Employers of eligible employees ~~affected and how many of such employees~~ who are ~~members of~~ covered by a ~~registered trade union; (c) the clauses and subclauses of this part of the Agreement from which the exemption is requested. (d) Satisfactory proof that the applicant has consulted,~~ superannuation order or will consult, its employees at plant level in respect of the exemption sought and the response resulting from such consultations. Such consultations shall include a registered trade union where such union has members employed at the workplace. (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 award made pursuant to the ~~Exemptions Committee, which~~ Industrial Relations Xxx 0000 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, the application shall be deemed to have been refused. (c) The Exemptions Committee may call for any further information or submissions it deems relevant from the applicant, prior to making a decision. The 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 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 refused. (e) Subject to the time period for considering the application as provided in subclause (b) above, should the Exemptions Committee be unable to agree, the application shall be deemed to have been 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 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 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 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, 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 that 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 does 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 employees affected 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 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 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 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. 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 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~~ Clause in respect of those employees to whose employment the said order or award applies. (b) Employers of eligible employees who are contributing to a superannuation fund, in accordance with an order or award made pursuant to the Industrial Relations Xxx 0000, the Conciliation and Arbitration Xxx 0000 or the Industrial Relations Xxx 0000 for a majority of employees and, at the date of issue of this Order, makes payment for eligible employees covered by this Award in accordance with that order or award shall be exempt from the provisions of this Clause. (c) An employer may make application to the Western Australian Industrial Relations Commission for exemption from the provisions of this Clause and until the proceedings before the Western Australian Industrial Relations Commission are finalised the provisions of this Clause shall be deemed to have been complied with. Compliance, Nomination and Transition Notwithstanding anything contained elsewhere herein which requires that contribution be made to a superannuation fund or scheme in respect of an employee, on and from 30 June 1998 - (a) Any such fund or scheme shall no longer be a complying superannuation fund or scheme for the purposes of this clause unless - (i) the fund or scheme is a complying fund or scheme within the meaning of the ~~Agreement~~Superannuation Guarantee (Administration) Xxx 0000 of the Commonwealth; and (ii) under the governing rules of the fund or scheme, contributions may be made by or in respect of the employee permitted to nominate a fund or scheme; (b) The employee shall be entitled to nominate the complying superannuation fund or scheme to which contributions are to be made by or in respect of the employee; (c) The employer shall notify the employee of the entitlement to nominate a complying superannuation fund or scheme as soon as practicable; (d) A nomination or notification of the type referred to in paragraphs (b) and (c) of this subclause shall, subject to the requirements of regulations made pursuant to the Industrial Relations Legislation Amendment and Repeal Xxx 0000, be given in writing to the employer or the employee to whom such is directed; (e) The employee and employer shall be bound by the nomination of the employee unless the employee and employer agree to change the complying superannuation fund or scheme to which contributions are to be made; (f) The employer shall not unreasonably refuse to agree to a change of complying superannuation fund or scheme requested by a employee; Provided that on and from 30 June 1998, and until an employee thereafter nominates a complying superannuation fund or scheme - (g) if one or more complying superannuation funds or schemes to which contributions may be made be specified herein, the employer is required to make contributions to that fund or scheme, or one of those funds or schemes nominated by the employer; or (h) if no complying superannuation fund or scheme to which contributions may be made be specified herein, the employer is required to make contributions to a complying fund or scheme nominated by the employer.

Appears in 2 contracts

Samples: Engine Drivers (Quarries, Sand Pits and Limestone Quarries) Agreement 1991, Engine Drivers (Quarries, Sand Pits and Limestone Quarries) Agreement 1991

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 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 requested. (d) Satisfactory proof that the applicant has consulted, or will consult, its employees at plant level in respect of the exemption sought and the response resulting from such consultations. Such consultations shall include a registered trade union where such union has members employed at the workplace. (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, 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, the application shall be deemed to have been refused. (c) The Exemptions Committee may call for any further information or submissions it deems relevant from the applicant, prior to making a decision. The 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 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 refused. (e) Subject to the time period for considering the application as provided in subclause (b) above, should the Exemptions Committee be unable to agree, the application shall be deemed to have been 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 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 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 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, 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 that 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 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 does 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 employees affected 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 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~~transfer- 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 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 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. 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 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. 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

Samples: 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~~documentation and, ~~and~~ in addition, shall ~~set out~~ 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 ~~requested.~~sought; (d) ~~Satisfactory~~ satisfactory proof that the applicant has consulted, or will consult, its employees at plant level in respect of the exemption ~~sought and the response resulting from such consultations. Such~~ sought, which 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) 7 below, ~~and in form the applicant of its decision~~ within 30 days from the date of ~~lodgement~~ lodgment 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 refused. (c) The Exemptions Committee may call for any further information or submissions it deems ~~relevant~~ 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 of 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 ~~refused~~rejected. (e) Subject to the time period for considering the application as provided in subclause (b) above, should the Exemptions Committee be unable to agree, the application shall be deemed to have been 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 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 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 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, 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 that 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 does 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 employees affected 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 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 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 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. 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 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

Samples: 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~~documentation and, ~~and~~ in addition, shall ~~set out~~ 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 ~~requested.~~sought; (d) ~~Satisfactory~~ satisfactory proof that the applicant has consulted, or will consult, its employees at plant level in respect of the exemption ~~sought and the response resulting from such consultations. Such~~ sought, which 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 refused. (c) The Exemptions Committee may call for any further information or submissions it deems ~~relevant~~ 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 of 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 ~~refused~~rejected. (e) Subject to the time period for considering the application ~~as provided~~ referred to in subclause (b) above, should the Exemptions Committee be unable to agree, the application shall be deemed to have been ~~refused~~ 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 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 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 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, 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 that 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 does 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 employees affected 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 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 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 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. 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 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

Samples: 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~~documentation and, ~~and~~ in addition, shall ~~set out~~ 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 ~~requested.~~sought; (d) ~~Satisfactory~~ satisfactory proof that the applicant has consulted, or will consult, its employees at plant level in respect of the exemption ~~sought and the response resulting from such consultations. Such~~ sought, which 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 ~~refused~~rejected. (c) The Exemptions Committee may call for any further information or submissions it deems ~~relevant~~ 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 of 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 ~~refused~~rejected. (e) Subject to the time period for considering the application as provided in subclause (b) above, should the Exemptions Committee be unable to agree, the application shall be deemed to have been 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 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 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 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, 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 that 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 does 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 employees affected 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 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 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 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. 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 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

Samples: 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~~documentation and, ~~and~~ in addition, shall ~~set out~~ 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 ~~requested.~~sought; (d) ~~Satisfactory~~ satisfactory proof that the applicant has consulted, or will consult, its employees at plant level in respect of the exemption ~~sought and the response resulting from such consultations. Such~~ sought, which 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) 7 below, ~~and in form the applicant of its decision~~ within 30 45 days from the date of ~~lodgement~~ lodgment 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 refused. (c) The Exemptions Committee may call for any further information or submissions it deems ~~relevant~~ 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 of 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 ~~refused~~rejected. (e) Subject to the time period for considering the application ~~as provided~~ referred to in subclause (b) above, should the Exemptions Committee be unable to agree, the application shall be deemed to have been ~~refused~~ 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 to 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 ~~amount~~ quantum 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 also~~ 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~~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 ~~that~~ who 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 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 ~~does~~ will 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~~industry. (ef) There has been compliance with subclause (3) above. (fg) The majority of affected employees ~~affected~~ 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 ~~put up~~ 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 sought~~alternative proposed is at least equal to, ~~including the period 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 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 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 Council~~benefit 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. 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 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

Samples: 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,~~ documentation and in ~~addition, shall set out~~ 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 requested.; (d) Satisfactory proof that the applicant has consulted, or will consult, its employees at plant level in respect of the exemption ~~sought and the response resulting from~~ sought, such ~~consultations. Such~~ consultations ~~shall~~ to include a registered party trade ~~union~~ union, where such union has members employed at the workplace, including the response resulting from such consultations. (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~~ 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, ~~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~~ will be deemed to have been refused. (c) The Exemptions Committee may call for any further information or submissions as it deems ~~relevant~~ 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 of 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 refused. (e) Subject to the time period for considering the 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 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 to 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 ~~amount~~ quantum thereof: Provided that such a fee shall be consistent with- (i) the cost incurred for the hearing of the appeal; ~~and~~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 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, 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 ~~that~~ who are in compliance with the applicable Council 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, ~~nor does 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 ~~affected~~ 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 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 ~~for which exemption is sought~~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 ~~surfer~~ 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~~. Any~~ , and, in 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 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

Samples: 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~~documentation and, ~~and~~ in addition, shall ~~set out~~ 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 ~~requested.~~sought; (d) ~~Satisfactory~~ satisfactory proof that the applicant has consulted, or will consult, its employees at plant level in respect of the exemption ~~sought and the response resulting from such consultations. Such~~ sought, which 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 ~~refused~~rejected. (c) The Exemptions Committee may call for any further information or submissions it deems ~~relevant~~ 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 of 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 ~~refused~~rejected. (e) Subject to the time period for considering the ~~application as provided~~ application, referred to in subclause (b) above, should the Exemptions Committee be unable to agree, the application shall be deemed to have been ~~refused~~ 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 to 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 ~~amount~~ quantum 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 ~~also~~ 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~~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 ~~that~~ who 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 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 ~~does~~ will 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 affected employees ~~affected~~ 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 ~~put up~~ 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 sought~~alternative proposed is at least equal to, ~~including the period 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 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 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 Council~~benefit 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. 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 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

Samples: 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~~documentation and, ~~and~~ in addition, shall ~~set out~~ 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 ~~requested.~~sought; (d) ~~Satisfactory~~ satisfactory proof that the applicant has consulted, or will consult, its employees at plant level in respect of the exemption ~~sought and the response resulting from such consultations. Such~~ sought, which 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 refused. (c) The Exemptions Committee may call for any further information or submissions it deems ~~relevant~~ 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 of 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 ~~refused~~rejected. (e) Subject to the time period for considering the application as provided in subclause (b) above, should the Exemptions Committee be unable to agree, the application shall be deemed to have been 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 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 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 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, 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 that 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 does 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 employees affected 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 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 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 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. 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 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

Samples: 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~~documentation and, ~~and~~ in addition, shall ~~set out~~ 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 ~~requested.~~sought; (d) ~~Satisfactory~~ satisfactory proof that the applicant has consulted, or will consult, its employees at plant level in respect of the exemption ~~sought and the response resulting from such consultations. Such~~ sought, which 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 refused. (c) The Exemptions Committee may call for any further information or submissions it deems ~~relevant~~ 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 of 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 ~~refused~~rejected. (e) Subject to the time period for considering the application ~~as provided~~ referred to in subclause (b) above, should the Exemptions Committee be unable to agree, the application shall be deemed to have been ~~refused~~ 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 to 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 ~~amount~~ quantum 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 also~~ 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~~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 ~~that~~ who 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 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 ~~does~~ will 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~~industry. (ef) There has been compliance with subclause (3) above. (fg) The majority of affected employees ~~affected~~ 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 ~~put up~~ 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 sought~~alternative proposed is at least equal to, ~~including the period 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 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 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 Council~~benefit 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. 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 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

Samples: 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~~documentation and, ~~and~~ in addition, shall ~~set out~~ 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 ~~requested.~~sought; (d) ~~Satisfactory~~ satisfactory proof that the applicant has consulted, or will consult, its employees at plant level in respect of the exemption ~~sought and the response resulting from such consultations. Such~~ sought, which 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 refused. (c) The Exemptions Committee may call for any further information or submissions it deems ~~relevant~~ 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 of 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 ~~refused~~rejected. (e) Subject to the time period for considering the ~~application as provided~~ application, referred to in subclause (b) above, should the Exemptions Committee be unable to agree, the application shall be deemed to have been ~~refused~~ 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 to 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 ~~amount~~ quantum 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 also~~ 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~~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 ~~that~~ who 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 ~~does~~ will 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~~industry. (e) There has been compliance with subclause (3) above. (f) The majority of affected employees ~~affected~~ 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 ~~put up~~ 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 ~~for which exemption is sought~~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 ~~surfer~~ 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~~. Any~~ , 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~~ 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

Samples: 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~~documentation and, ~~and~~ in addition, shall ~~set out~~ 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 ~~requested.~~sought; (d) ~~Satisfactory~~ satisfactory proof that the applicant has consulted, or will consult, its employees at plant level in respect of the exemption ~~sought and the response resulting from such consultations. Such consultations~~ sought, which consultation 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 ~~refused~~rejected. (c) The Exemptions Committee may call for any further information or submissions it deems ~~relevant~~ 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~~submission. (d) The Exemptions Committee may, after considering the application in terms of the provisions of 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 ~~refused~~rejected. (e) Subject to the time period for considering the ~~application as provided~~ application, referred to in subclause (b) above, should the Exemptions Committee be unable to agree, the application shall be deemed to have been ~~refused~~ 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 to 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 ~~amount~~ quantum 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 also~~ 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~~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 ~~that~~ who 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 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 ~~does~~ will 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 affected employees ~~affected~~ 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 ~~put up~~ 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 sought~~alternative proposed is at least equal to, ~~including the period 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 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 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 Council~~benefit 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. 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 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

Samples: Consolidated Provident Fund Collective Agreement, Consolidated Provident Fund 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~~documentation and, ~~and~~ in addition, shall ~~set out~~ 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 ~~requested.~~sought; (d) ~~Satisfactory~~ satisfactory proof that the applicant has consulted, or will consult, its employees at plant level in respect of the exemption ~~sought and the response resulting from such consultations. Such~~ sought, which 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 ~~refused~~rejected. (c) The Exemptions Committee may call for any further information or submissions it deems ~~relevant~~ 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 of 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 ~~refused~~rejected. (e) Subject to the time period for considering the application ~~as provided~~ referred to in subclause (b) above, should the Exemptions Committee be unable to agree, the application shall be deemed to have been ~~refused~~ 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 to 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 ~~amount~~ quantum 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 also~~ 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~~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 ~~that~~ who 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 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 ~~does~~ will the ~~application~~ 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 ~~Industry~~industry. (ef) There has been compliance with subclause (3) above. (fg) The majority of affected employees ~~affected~~ 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 ~~put up~~ 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 sought~~alternative proposed is at least equal to, ~~including the period 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 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 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 Council~~benefit 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. 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 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

Samples: 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~~documentation and, ~~and~~ in addition, shall ~~set out~~ 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 ~~requested~~sought. (d) ~~Satisfactory~~ satisfactory proof that the applicant has consulted, or will consult, its employees at plant level in respect of the exemption ~~sought and the response resulting from such consultations. Such~~ sought, which 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~~ will be deemed to have been ~~refused~~rejected. (c) The Exemptions Committee may call for any further information or submissions it deems ~~relevant~~ 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 of 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 ~~refused~~rejected. (e) Subject to the time period for considering the ~~application as provided in subclause (b) above~~application, should the Exemptions Committee be unable to agree, the application shall be deemed to have been 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 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 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 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, 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 that 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 does 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 employees affected 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 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 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 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. 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 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

Samples: Consolidated Collective Fund 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~~documentation and, ~~and~~ in addition, shall ~~set out~~ 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 ~~requested.~~sought; (d) ~~Satisfactory~~ satisfactory proof that the applicant has consulted, or will consult, its employees at plant level in respect of the exemption ~~sought and the response resulting from such consultations. Such~~ sought, which 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 – (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, ~~and in form the applicant of its decision~~ within 30 45 days from the date of lodgement of the application with the General or Regional Secretary~~. If notification~~ , or if the Management Committee has made representations in terms of paragraph (a) within 30 days of those representations being lodged with the ~~decision is not received within this period~~Council, failing which the application shall be deemed to have been refused. (c) The Exemptions Committee may call for any further information or submissions it deems ~~relevant~~ 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 of 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 ~~refused~~rejected. (e) Subject to the time period for considering the application ~~as provided~~ referred to in subclause (b) above, should the Exemptions Committee be unable to agree, the application shall be deemed to have been ~~refused~~ 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 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 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 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, 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 that 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 does 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 employees affected 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 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 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 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. 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 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

Samples: 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~~documentation and, ~~and~~ in addition, shall ~~set out~~ 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 ~~requested.~~sought; (d) ~~Satisfactory~~ satisfactory proof that the applicant has consulted, or will consult, its employees at plant level in respect of the exemption ~~sought and the response resulting from such consultations. Such~~ sought, which 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 refused. (c) The Exemptions Committee may call for any further information or submissions it deems ~~relevant~~ 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 of 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 ~~refused~~rejected. (e) Subject to the time period for considering the ~~application as provided~~ application, referred to in subclause (b) above, should the Exemptions Committee be unable to agree, the application shall be deemed to have been ~~refused~~ 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 to 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 ~~amount~~ quantum 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 also~~ 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~~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 ~~that~~ who 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 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 ~~does~~ will 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~~industry. (ef) There has been compliance with subclause (3) above. (fg) The majority of affected employees ~~affected~~ 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 ~~put up~~ 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 sought~~alternative proposed is at least equal to, ~~including the period 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 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 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 Council~~benefit 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. 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 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

Samples: 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~~documentation and, ~~and~~ in addition, shall ~~set out~~ 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 ~~requested.~~sought; (d) ~~Satisfactory~~ satisfactory proof that the applicant has consulted, or will consult, its employees at plant level in respect of the exemption ~~sought and the response resulting from such consultations. Such~~ sought, which 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) 7 below, ~~and in form the applicant of its decision~~ within 30 45 days from the date of ~~lodgement~~ lodgment 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 refused. (c) The Exemptions Committee may call for any further information or submissions it deems ~~relevant~~ 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 of 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 ~~refused~~rejected. (e) Subject to the time period for considering the application ~~as provided~~ referred to in subclause (b) above, should the Exemptions Committee be unable to agree, the application shall be deemed to have been ~~refused~~ 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 to 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 ~~amount~~ quantum 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 also~~ 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~~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~~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 ~~that~~ who 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 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 ~~does~~ will 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~~industry. (ef) There has been compliance with subclause (3) above. (fg) The majority of affected employees ~~affected~~ 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 ~~put up~~ 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 sought~~alternative proposed is at least equal to, ~~including the period 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 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 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 Council~~benefit 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. 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 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

Samples: 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~~documentation and, ~~and~~ in addition, shall ~~set out~~ 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 ~~requested~~sought. (d) ~~Satisfactory~~ satisfactory proof that the applicant has consulted, or will consult, its employees at plant level in respect of the exemption ~~sought and the response resulting from such consultations. Such~~ sought, which 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~~ will be deemed to have been ~~refused~~rejected. (c) The Exemptions Committee may call for any further information or submissions it deems ~~relevant~~ 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 of 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 ~~refused~~rejected. (e) Subject to the time period for considering the ~~application as provided~~ application, referred to in subclause (b) above, should the Exemptions Committee be unable to agree, the application shall be deemed to have been ~~refused~~ 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 to 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 ~~amount~~ quantum 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 also~~ 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,~~ 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 ~~that~~ who 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 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 ~~does~~ will 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 affected employees ~~affected~~ 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 ~~put up~~ 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 ~~for which exemption is sought~~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 ~~surfer~~ 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~~. Any~~ , 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~~ 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

Samples: Consolidated Collective Fund 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 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~~The authority of the Council is to consider applications for exemptions and grant exemptions. . (8) In considering the application, ~~and~~ the Council or the Independent Exemptions Body in ~~addition~~the case of an appeal, shall ~~set out~~ take into consideration all relevant factors, which may include, but shall not be limited to, the following ~~information~~exemption 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 requested. (d) Satisfactory proof that the applicant has consulted, or will consult, its employees at plant level in respect of the exemption sought and the response resulting from such consultations. Such consultations shall include a registered trade union where such union has members employed at the workplace. (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, 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, the application shall be deemed to have been refused. (c) The ~~Exemptions Committee may call for any further information or submissions it deems relevant from~~ written and verbal substantiation provided by the applicant, prior to making a decision. The 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 of this clause, grant, partially grant, or reject such application for exemption,~~ Be accompanied by relevant supporting data 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 refusedfinancial information. (e) ~~Subject to~~ the time period for considering the application as provided in subclause (b) above, should the Exemptions Committee be unable to agree, the application shall be deemed to have been refused 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 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 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 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, 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 that 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 does 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 employees affected 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 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~~ fund or training provision in relation to the alternative comparable bona fide benefit ~~proposed by the applicant~~or provision, including ~~such factors as~~ the cost to the employee, transferability, ~~administration, management, costs~~administration management and cost, growth and stability. (d) The terms of the exemption sought, including the period 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 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~~ 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 Council~~application. (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 circumstances~~application. (i) ~~The cost~~An 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 impose~~application. (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 labour~~objectives 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 granted~~this agreement, its amendments and Exemptions Certificate. (l) ~~Any relevant time limits contained in the Council's constitution and the Act. Any exemption or partial granting of an exemption shall~~ any precedent that 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 applications~~Agreement 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 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

Samples: 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~~documentation and, ~~and~~ in addition, shall ~~set out~~ 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 ~~requested.~~sought; (d) ~~Satisfactory~~ satisfactory proof that the applicant has consulted, or will consult, its employees at plant level in respect of the exemption ~~sought and the response resulting from such consultations. Such~~ sought, which 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) 7 below, ~~and in form the applicant of its decision~~ within 30 45 days from the date of ~~lodgement~~ lodgment 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 refused. (c) The Exemptions Committee may call for any further information or submissions it deems ~~relevant~~ 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 of 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 ~~refused~~rejected. (e) Subject to the time period for considering the application as provided in subclause (b) above, should the Exemptions Committee be unable to agree, the application shall be deemed to have been 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 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 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 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, 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 that 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 does 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 employees affected 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 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 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 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. 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 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

Samples: 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~~ 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 Agreement~~any 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~~him, ~~and in addition, shall set out the following information~~setting out: (a) The ~~period for which~~ full name(s) of the ~~exemption is sought~~person(s) concerned; (b) the ~~number~~ provisions of ~~employees affected and how many of such employees are members of a registered trade union~~the agreement from which exemption has been granted; (c) the clauses and subclauses of this part of the Agreement from which the exemption is requested. (d) Satisfactory proof that the applicant has consulted, or will consult, its employees at plant level in respect of the exemption sought and the response resulting from such consultations. Such consultations shall include a registered trade union where such union has members employed at the workplace. (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, 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, the application shall be deemed to have been refused. (c) The Exemptions Committee may call for any further information or submissions it deems relevant from the applicant, prior to making a decision. The 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 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 refused. (e) Subject to the time period for considering the application as provided in subclause (b) above, should the Exemptions Committee be unable to agree, the application shall be deemed to have been 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 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 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 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, 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 that 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 does 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 employees affected 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 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 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 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. 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 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 ~~context~~exemption 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 Agreement~~its Constitution.

Appears in 1 contract

Samples: 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 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~~documentation and, ~~and~~ in addition, shall ~~set out~~ 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 ~~requested.~~sought; (d) ~~Satisfactory~~ satisfactory proof that the applicant has consulted, or will consult, its employees at plant level in respect of the exemption ~~sought and the response resulting from such consultations. Such~~ sought, which 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 ~~refused~~rejected. (c) The Exemptions Committee may call for any further information or submissions it deems ~~relevant~~ 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 of 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 ~~refused~~rejected. (e) Subject to the time period for considering the ~~application as provided~~ application, referred to in subclause (b) above, should the Exemptions Committee be unable to agree, the application shall be deemed to have been ~~refused~~ 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 to 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 ~~amount~~ quantum 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 ~~also~~ 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~~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 ~~that~~ who 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 ~~does~~ will 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 affected employees ~~affected~~ 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 ~~put up~~ 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 ~~for which exemption is sought~~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 ~~surfer~~ 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~~. Any~~ , 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~~ 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

Samples: 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,~~ documentation and in ~~addition, shall set out~~ 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 requested.; (d) Satisfactory proof that the applicant has consulted, or will consult, its employees at plant level in respect of the exemption ~~sought and the response resulting from~~ sought, such ~~consultations. Such~~ consultations ~~shall~~ to include a registered party trade ~~union~~ union, where such union has members employed at the workplace, including the response resulting from such consultations. (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~~ 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, ~~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~~ will be deemed to have been refused. (c) The Exemptions Committee may call for any further information or submissions as it deems ~~relevant~~ 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 of 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 refused. (e) Subject to the time period for considering the 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 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 to 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 ~~amount~~ quantum thereof: Provided that such a fee shall be consistent with- (i) the cost incurred for the hearing of the appeal; ~~and~~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 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, 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 ~~that~~ who are in compliance with the applicable Council 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, ~~nor does 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 ~~affected~~ 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 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 ~~for which exemption is sought~~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 ~~surfer~~ 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~~. Any~~ , and, in 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 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

Samples: 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~~documentation and, ~~and~~ in addition, shall ~~set out~~ 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 ~~requested.~~sought; (d) ~~Satisfactory~~ satisfactory proof that the applicant has consulted, or will consult, its employees at plant level in respect of the exemption ~~sought and the response resulting from such consultations. Such~~ sought, which 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 refused. (c) The Exemptions Committee may call for any further information or submissions it deems ~~relevant~~ 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 of 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 ~~refused~~rejected. (e) Subject to the time period for considering the application ~~as provided~~ referred to in subclause (b) above, should the Exemptions Committee be unable to agree, the application shall be deemed to have been ~~refused~~ 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 to 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 ~~amount~~ quantum 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 also~~ 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~~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 ~~that~~ who 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 ~~does~~ will 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~~industry. (e) There has been compliance with subclause (3) above. (f) The majority of affected employees ~~affected~~ 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 ~~put up~~ 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 ~~for which exemption is sought~~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 ~~surfer~~ 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~~. Any~~ , 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~~ 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

Samples: 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~~documentation and, ~~and~~ in addition, shall ~~set out~~ 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 ~~requested.~~sought; (d) ~~Satisfactory~~ satisfactory proof that the applicant has consulted, or will consult, its employees at plant level in respect of the exemption ~~sought and the response resulting from such consultations. Such~~ sought, which 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 refused. (c) The Exemptions Committee may call for any further information or submissions it deems ~~relevant~~ 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 of 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 ~~refused~~rejected. (e) Subject to the time period for considering the application ~~as provided~~ referred to in subclause (b) above, should the Exemptions Committee be unable to agree, the application shall be deemed to have been ~~refused~~ 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 to 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 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 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, 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 that 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 does 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 employees affected 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 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 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 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. 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 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

Samples: 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~~The 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 ~~Council~~Administrator 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 xxxx- 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 ~~Council~~date 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 set out 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 requested~~Adminis- trator determines that the manufacture, proc- essing, distribution in commerce, use, or dis- posal of such chemical substance, or that any combination of such activities, will not present an unreasonable risk of injury to health or the environment, including an unreasonable risk to a potentially exposed or susceptible subpop- ulation identified by the Administrator under the conditions of use. (d) Satisfactory proof that the applicant has consulted, or will consult, its employees at plant level in respect of the exemption sought and the response resulting from such consultations. Such consultations shall include a registered trade union where such union has members employed at the workplace. (e5) The ~~demonstrable commercial need~~ Administrator may, upon application, make the requirements of ~~the applicant for the exemption sought.~~ 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, 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, the application shall be deemed to have been refused. (c) The Exemptions Committee may call for any further information manufacturing or submissions it deems relevant from the applicant, prior to making a decision. The 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 of 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 refused. (e) Subject to the time period for considering the application as provided in subclause (b) above, should the Exemptions Committee be unable to agree, the application shall be deemed to have been 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 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 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 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 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 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 that 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 does 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 employees affected 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 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 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 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. 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 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

Samples: 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~~documentation and, ~~and~~ in addition, shall ~~set out~~ 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 ~~requested~~sought. (d) ~~Satisfactory~~ satisfactory proof that the applicant has consulted, or will consult, its employees at plant level in respect of the exemption ~~sought and the response resulting from such consultations. Such~~ sought, which 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~~ will be deemed to have been ~~refused~~rejected. (c) The Exemptions Committee may call for any further information or submissions it deems ~~relevant~~ 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 of 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 ~~refused~~rejected. (e) Subject to the time period for considering the ~~application as provided~~ application, referred to in subclause (b) above, should the Exemptions Committee be unable to agree, the application shall be deemed to have been ~~refused~~ 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 to 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 ~~amount~~ quantum 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 also~~ 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,~~ 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 ~~that~~ who 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 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 ~~does~~ will 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 affected employees ~~affected~~ 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 ~~put up~~ 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 ~~for which exemption is sought~~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 ~~surfer~~ 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~~. Any~~ , 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~~ 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

Samples: Consolidated Collective Fund 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 set out the following information: (a) ~~The period for which~~ Prior to the ~~exemption is sought;~~ Redemption Deadline, any Person (bother than an Acquiring Person) who or that desires to effect any transaction that would, if consummated, result in such Person becoming an Acquiring Person (a “Requesting Person”) may submit to the ~~number of employees affected and how many of such employees are members of~~ Company a ~~registered trade union; (c) the clauses and subclauses of this part of the Agreement from which the exemption is requested. (d) Satisfactory proof~~ written request that the ~~applicant has consulted,~~ Board grant an exemption under this Agreement with respect to such Requesting Person or ~~will consult, its employees at plant level in respect of the exemption sought and the response resulting from~~ such ~~consultations. Such consultations shall include a registered trade union where such union has members employed at the workplace.~~ transaction (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 Councilan “Exemption Request”). (b) ~~The Exemptions Committee~~ An Exemption Request shall ~~consider~~ be in proper form and ~~determine~~ shall be delivered by registered mail, return receipt requested, to the ~~application~~ Secretary of the Company at the principal executive office of the Company. To be in ~~accordance with~~ proper form, an Exemption Request shall set forth (i) the ~~criteria set out in subclause~~ name and address of the Requesting Person, (7ii) ~~below,~~ the number of shares of Common Stock (and ~~in form~~ the ~~applicant~~ percentage of the shares of Common Stock then outstanding) that are then beneficially owned by the Requesting Person and all of its ~~decision within 30 days~~ Affiliates and Associates, (iii) a reasonably detailed description of the transaction or transactions by which the Requesting Person proposes to acquire Beneficial Ownership of additional shares of Common Stock and (iv) the maximum number of shares of Common Stock (and the percentage of the shares of Common Stock then outstanding) that the Requesting Person proposes to acquire. An Exemption Request may be submitted on a confidential basis and, except to the extent required by applicable law, the Company shall maintain the confidentiality of each Exemption Request and the Board’s determination with respect thereto. The Requesting Person shall promptly respond to any requests for additional information from the ~~date of lodgement of~~ Company or its advisors to assist the ~~application~~ Board in making a determination with respect to the ~~General Secretary. If notification of the decision is not received within this period, the application shall be deemed to have been refused~~Exemption Request. (c) The ~~Exemptions Committee~~ Board shall have sole discretion with respect to (i) the grant or denial of an Exemption Request, (ii) if an exemption is granted, whether to grant the exemption with respect to the Requesting Person or the proposed transaction and (iii) if an exemption is granted, whether the exemption will be granted in whole or in part and whether the exemption will be subject to any conditions or limitations (including a requirement that the Requesting Person not acquire Beneficial Ownership of shares of Common Stock in excess of a maximum number of shares or percentage of outstanding shares specified by the Board); provided, however, that the Board may ~~call for any further information~~ not grant an exemption in response to an Exemption Request unless the Board reasonably determines that the acquisition of Beneficial Ownership of Common Stock by the Requesting Person within the terms of the exemption will not jeopardize or ~~submissions it deems relevant from~~ endanger the ~~applicant, prior~~ availability to ~~making a decision~~the Company of the Tax Benefits. The ~~period stipulated~~ grant of an exemption (and any conditions or limitations thereof) shall be set forth in ~~subclause (b) above may be extended by agreement between the applicant and the Committee~~ a written notice delivered by the ~~period~~ Company to the ~~applicant takes~~ Requesting Person and shall set forth the effective time of the exemption (which may not precede such delivery). The Board shall make a determination whether to ~~furnish~~ grant an exemption in response to an Exemption Request as promptly as practicable after receipt of the Exemption Request and all additional information reasonably requested by the Company or ~~submissions~~its advisors, provided that the failure of the Board to make a determination within ten (10) Business Days after receipt of the Exemption Request shall be deemed to constitute the denial by the Board of the Exemption Request. (d) ~~The Exemptions Committee may~~At any time after the grant of an exemption with respect to a Requesting Person, ~~after considering~~ the ~~application in terms of the provisions of this clause, grant, partially grant~~Board may revoke such exemption, or ~~reject such application for exemption, and~~ may ~~impose any~~ modify the 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~~ limitations thereof (or any conditions imposed by the Exemptions Committee, the application shall be deemed to have been refused. (e) Subject to the time period for considering the application as provided in subclause (b) above, should the Exemptions Committee be unable to agree, the application shall be deemed to have been 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 subject the exemption to ~~any party which has an interest in~~ new conditions or limitations) on a prospective basis, by causing the ~~matter. (i) If the application for exemption is rejected or partially approved, the Exemptions Committee shall provide concise~~ Company to deliver written ~~reasons for such rejection or partial approval~~ notice thereof to the ~~applicant within seven days of its decision: Provided that~~ Requesting Person, which notice shall set forth the effective time thereof (which may not precede the calendar day immediately following 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 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 Committeedelivery). 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 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 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, 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 that 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 does 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 employees affected 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 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 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 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. Any exemption or partial granting grant of an exemption with respect to a transaction shall be ~~for a fixed, stipulated period~~irrevocable. (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 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

Samples: Rights Agreement (Harvest Natural Resources, 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~~documentation and, ~~and~~ in addition, shall ~~set out~~ 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 ~~requested.~~sought; (d) ~~Satisfactory~~ satisfactory proof that the applicant has consulted, or will consult, its employees at plant level in respect of the exemption ~~sought and the response resulting from such consultations. Such~~ sought, which 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 refused. (c) The Exemptions Committee may call for any further information or submissions it deems ~~relevant~~ 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 of 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 ~~refused~~rejected. (e) Subject to the time period for considering the ~~application as provided~~ application, referred to in subclause (b) above, should the Exemptions Committee be unable to agree, the application shall be deemed to have been ~~refused~~ 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 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 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 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, 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 that 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 does 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 employees affected 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 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 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 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. 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 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

Samples: 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 Agreement~~South 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; shall be supported by relevant documentation~~fully reasoned and substantiated, and ~~in addition,~~ such reasons and substantiation shall ~~set out~~ include the following ~~information~~details: ~~(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 requested. (d) Satisfactory proof that~~ applied for has been discussed by the ~~applicant has consulted~~employer, ~~or will consult, its~~ his employees ~~at plant level in respect of the exemption sought~~ and ~~the response~~ their respective representatives. The responses resulting from such consultations~~. Such consultations shall include a registered trade union where such union has members employed at~~ , either in support of or against the ~~workplace~~application, are to be included with the application. ~~(e)~~ 11.3.4 The ~~demonstrable commercial need~~ specific alternate conditions that will apply should the 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 Committee~~Council: 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, 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, the application shall be deemed to have been refused. (c) The Exemptions Committee may call for any further information or submissions it deems relevant from the applicant, prior to making a decision. The 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 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 refused. (e) Subject to the time period for considering the application as provided in subclause (b) above, should the Exemptions Committee be unable to agree, the application shall be deemed to have been 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)~~ 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 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 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 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, 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 that 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 does 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 employees affected 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 addition~~manufacturer, 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 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 for which exemption is sought (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 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.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. 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 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

Samples: 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~~documentation and, ~~and~~ in addition, shall ~~set out~~ 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 ~~requested.~~sought; (d) ~~Satisfactory~~ satisfactory proof that the applicant has consulted, or will consult, its employees at plant level in respect of the exemption ~~sought and the response resulting from such consultations. Such~~ sought, which 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 refused. (c) The Exemptions Committee may call for any further information or submissions it deems ~~relevant~~ 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 of 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 ~~refused~~rejected. (e) Subject to the time period for considering the ~~application as provided~~ application, referred to in subclause (b) above, should the Exemptions Committee be unable to agree, the application shall be deemed to have been ~~refused~~ 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 to 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 ~~amount~~ quantum 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 also~~ 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~~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 ~~that~~ who 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 ~~does~~ will 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~~industry. (e) There has been compliance with subclause (3) above. (f) The majority of affected employees ~~affected~~ 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 ~~put up~~ 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 ~~for which exemption is sought~~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 ~~surfer~~ 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~~. Any~~ , 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~~ 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

Samples: 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~~The authority of the Council is to consider applications for exemptions and grant exemptions. 8) In considering the application, ~~and~~ the Council or the Independent Exemptions Body in ~~addition~~the case of an appeal, shall ~~set out~~ take into consideration all relevant factors, which may include, but shall not be limited to, the following ~~information~~exemption 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 requested~~. (d) Satisfactory proof that the applicant has consulted, or will consult, its employees at plant level in respect of the exemption sought and the response resulting from such consultations. Such consultations shall include a registered trade union where such union has members employed at the workplace. (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, 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, the application shall be deemed to have been refused. (c) The Exemptions Committee may call for any further information or submissions it deems relevant from the applicant, prior to making a decision. The 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 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 refused. (e) Subject to the time period for considering the application as provided in subclause (b) above, should the Exemptions Committee be unable to agree, the application shall be deemed to have been 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 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 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 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, 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 that 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 does 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 employees affected 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 put up a compelling case for the exemption~~data 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 applicant~~or provision, including ~~such factors as~~ the cost to the employee, transferability, ~~administration, management, costs~~administration 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 sought, including the period 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 surfer if the applicant is refused: Provided workforce differ from that ~~the Executive committee~~ of the ~~Council or~~ employer, the ~~Exemptions Committee or~~ reasons for the ~~Exemptions Board may require~~ views expressed must be submitted with the ~~disclosure of such relevant, verifiable information as it deems fit in this regard~~application. (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. 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 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) above~~application 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 (4~~this agreement, its amendments and Exemptions Certificate. l) ~~above read with~~ any precedent that might be set; m) it is fair to both the ~~changes required~~ employer, its employees and other employees in the sector; n) it does not undermine this Agreement; o) reporting requirements by the ~~context~~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 Agreement and will save unnecessary job losses. ~~(10~~r) ~~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

Samples: 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 The Council shall consider all applications for exemption from any ~~or all~~ of the provisions of this ~~part of the Agreement~~Agreement 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; shall be supported by relevant documentation~~substantiated, and ~~in addition,~~ such substantiation shall ~~set out~~ 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 ~~requested~~required ; c) proof that the exemption applied for has been discussed by the employer, his employees and their respective representatives. The responses resulting from such consultation, either in support of or against the application, shall be included with the application. (d) Satisfactory proof that the applicant has consulted, or will consult, its employees at plant level in respect of the exemption sought and the response resulting from such consultations. Such consultations shall include a registered trade union where such union has members employed at the workplace. (e4) The ~~demonstrable commercial need of the applicant for the exemption sought. (a) 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 ~~Council~~applications 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) below~~Council may defer a decision to a following meeting if additional substantiation, 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, the application shall be deemed to have been refused. (c) The Exemptions Committee may call for any further information or ~~submissions it deems relevant from~~ verbal representations are considered necessary to decide on the applicant, prior to making a decision. The 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 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 refused. (e) Subject to the time period for considering the application as provided in subclause (b) above, should the Exemptions Committee be unable to agree, the application shall be deemed to have been 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 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 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 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~~ 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 ~~that 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 does 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 employees affected 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 put up 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 applicant~~or provision, including ~~such factors as~~ the cost to the employee, transferability, ~~administration, management, costs~~administration 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 for which exemption is sought~~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 surfer 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 regard~~Presidential 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 circumstances~~Independent 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. 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 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 ~~Agreement~~Act.

Appears in 1 contract

Samples: 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~~documentation and, ~~and~~ in addition, shall ~~set out~~ 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 ~~requested.~~sought; (d) ~~Satisfactory~~ satisfactory proof that the applicant has consulted, or will consult, its employees at plant level in respect of the exemption ~~sought and the response resulting from such consultations. Such~~ sought, which 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 refused. (c) The Exemptions Committee may call for any further information or submissions it deems ~~relevant~~ 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 of 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 ~~refused~~rejected. (e) Subject to the time period for considering the ~~application as provided~~ application, referred to in subclause (b) above, should the Exemptions Committee be unable to agree, the application shall be deemed to have been ~~refused~~ 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 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 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 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, 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 that 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 does 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 employees affected 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 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 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 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. 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 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

Samples: National Main Collective Agreement

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 ~~Agreement~~Applicant; ~~(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 ~~Council~~members 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 Agreement~~council 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 ~~Council~~applicant; (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 set out the following information~~setting out: (a) ~~The period for which~~ the ~~exemption is sought~~applicant’s name; (b) the ~~number~~ provisions of ~~employees affected and how many of such employees are members of a registered trade union~~the 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 requested.~~exemption; and (d) Satisfactory proof that the applicant has consulted, or will consult, its employees at plant level in respect of the exemption sought and the response resulting from such consultations. Such consultations shall include a registered trade union where such union has members employed at the workplace. (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, 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, the application shall be deemed to have been refused. (c) The Exemptions Committee may call for any further information or submissions it deems relevant from the applicant, prior to making a decision. The 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 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 refused. (e) Subject to the time period for considering the application as provided in subclause (b) above, should the Exemptions Committee be unable to agree, the application shall be deemed to have been 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)~~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 request~~non-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 to 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 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 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, 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 that 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 does 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 employees affected 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 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 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 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. 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 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

Samples: 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~~documentation and, ~~and~~ in addition, shall ~~set out~~ 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 ~~requested.~~sought; (d) ~~Satisfactory~~ satisfactory proof that the applicant has consulted, or will consult, its employees at plant level in respect of the exemption ~~sought and the response resulting from such consultations. Such~~ sought, which 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) 7 below, ~~and in form the applicant of its decision~~ within 30 45 days from the date of ~~lodgement~~ lodgment 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 refused. (c) The Exemptions Committee may call for any further information or submissions it deems ~~relevant~~ 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 of 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 ~~refused~~rejected. (e) Subject to the time period for considering the application ~~as provided~~ referred to in subclause (b) above, should the Exemptions Committee be unable to agree, the application shall be deemed to have been ~~refused~~ 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 to 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 ~~amount~~ quantum 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 also~~ 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 that 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 does 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 employees affected 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 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 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 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. 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 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

Samples: 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 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 requested. (d) Satisfactory proof that the applicant has consulted, or will consult, its employees at plant level in respect of the exemption sought and the response resulting from such consultations. Such consultations shall include a registered trade union where such union has members employed at the workplace. (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, 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, the application shall be deemed to have been refused. (c) The Exemptions Committee may call for any further information or submissions it deems relevant from the applicant, prior to making a decision. The 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 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 refused. (e) Subject to the time period for considering the application as provided in subclause (b) above, should the Exemptions Committee be unable to agree, the application shall be deemed to have been 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 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 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 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, 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 that 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 does 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 employees affected 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 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 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 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. 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 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

Samples: 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~~documentation and, ~~and~~ in addition, shall ~~set out~~ 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 ~~requested.~~sought; (d) ~~Satisfactory~~ satisfactory proof that the applicant has consulted, or will consult, its employees at plant level in respect of the exemption ~~sought and the response resulting from such consultations. Such~~ sought, which 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) 7 below, ~~and in form the applicant of its decision~~ within 30 45 days from the date of ~~lodgement~~ lodgment 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 refused. (c) The Exemptions Committee may call for any further information or submissions it deems ~~relevant~~ 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 of 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 ~~refused~~rejected. (e) Subject to the time period for considering the application ~~as provided~~ referred to in subclause (b) above, should the Exemptions Committee be unable to agree, the application shall be deemed to have been ~~refused~~ 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 to 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 ~~amount~~ quantum 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 also~~ 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~~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 ~~that~~ who 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 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 ~~does~~ will 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~~industry. (ef) There has been compliance with subclause (3) above. (fg) The majority of affected employees ~~affected~~ 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 ~~put up~~ 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 sought~~alternative proposed is at least equal to, ~~including the period 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 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 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 Council~~benefit 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. 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 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

Samples: Collective Agreement

Common use of Exemptions Clause in Contracts