| 10.1 | Any employer, 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 Agreement, may apply to the Council for exemption from any provision of this this Agreement. |
| 10.1 | Any person bound by this agreement may apply for an exemption. The Council has authority to consider applications for exemptions; and grant exemptions in appropriate cases. |
| 10.2 | Any applications for exemption shall be made on a prescribed form, in the form of "Annexure B" to this Agreement. |
| 10.3 | Any applications for exemption or appeal shall be motivated in accordance with the exemption criteria set out in 10.18 below; shall be supported by relevant documentation and, in addition, shall contain the following information: |
| (a) | The period for which the exemption or appeal is sought; |
| (b) | the number of employees affected and how many of such employees are member of a registered trade union; |
| (c) | satisfactory proof that the applicant has consulted, or will consult, its employees at plant level in respect of the exemption or appeal sought, which consultation shall include a registered trade union party, where such trade union has members employed at the workplace, and shall include the response resulting from such consultation; and |
| (d) | the demonstrable commercial need of the applicant for the exemption or appeal sought. |
| 10.4 | All applications for exemption shall be made to the General Secretary of the Council, who shall forthwith refer the full exemption application to the relevant Chamber Exemptions Committee, which shall have delegated powers to deal with such application on behalf of the Council. |
| 10.5 | The Chamber Exemptions Committee shall consider and decide on an application in accordance with the criteria set out in 10.19 below, within 30 days of receipt of the application by the Chamber Exemptions Committee. |
| 10.6 | The Chamber Exemptions Committee or National Exemption Appeals Committee may call for any further information or submission it deems appropriate from the applicant, prior to making a decision. |
| 10.7 | The Chamber Exemption Committee may, after considering the application in terms and the provisions of the criteria in clause 10.19 , 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. |
| 10.8 | The Chamber Exemptions Committee shall notify the applicant of its decision within seven days of such decision having been reached. |
| 10.9 | If the application has been granted or partially granted, the Chamber 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 will be valid; |
| (iii) | the full name of the exempted employer or employee; and |
| (iv) | upon receipt of a written request, the Chamber Exemptions Committee shall provide brief written reasons for its decision to grant the exemption to any party which has an interest in the matter. |
| 10.10 | If the application for exemption is rejected or partially approved, the Chamber Exemptions Committee shall provide concise written reasons for such rejection or partially approval to the applicant within 7 days of its decision. |
| 10.11 | Any reasons given by the Chamber Exemption Committee shall not bind the National Exemption Appeals Committee in considering any appeal in 10.12 below, since the latter may make a decision on appeal in accordance with such reasons as it deems appropriate, |
| 10.12 | Any decision of the Chamber Exemptions Committee to reject, partially approve the application or withdraw an exemption already granted may be referred on appeal to the National Exemptions Appeals Committee hereby established in terms of Act. |
| 10.13 | In terms of section 32(3)(e) of the Act, the Council establishes an Independent Body to hear and decide as soon as possible any appeal brought against the Exemptions Body's known as Chamber Exemptions Committee refusal of a non-party's application for exemption from the provisions of a collective agreement by the exemption body or withdrawal of an exemption by the Council. |
| 10.14 | The Independent Body shall hear and decide and inform the applicant and the council as soon as possible and not later than 30 days after the appeal has been lodged against the decision of the exemptions body. |
| 10.15 | No representative, office bearer, or official of the Council, trade union or employers' organisation party to the Council may be a member or participate in the deliberations of the Independent Body. |
| 10.16 | Such application shall be lodged within fourteen (14) days of the applicant's being notified of the decision of the Chamber Exemptions Committee. The National Exemption Appeals Committee may condone a late appeal on good cause shown. |
| 10.17 | The National Exemption Appeals Committee's decision shall be final and binding. |
| 10.18 | The following criteria shall be taken into account by the Chamber Exemptions Committee and the National Exemption Appeals Committee when determining applications for exemptions or appeals: |
| (a) | The merits of the written and verbal (if any) motivation provided by the applicant, the documentation supporting the application, and in particular, whether the applicant has made a compelling case for the exemption or appeal; |
| (b) | Whether or not the employees have supported or rejected the application, providing such support or rejection may be determined by ballot; |
| (c) | Whether or not the applicant is in arrears with respect to payment of Council levies or employer or trade union subscriptions and if so, whether an agreed payment plant exists in respect of any such outstanding money; |
| (d) | Whether the application, if granted, would result in a conflict with the primary objectives of the Act; |
| (e) | what impact, if any, a successful application for exemption or appeal will have on the applicant's competitors; |
| (f) | the extent to which the proposed exemption or appeal may undermine collective bargaining and labour peace in the Industry or sector; |
| (g) | an existing or projected special financial, economic or other circumstances put forward by the applicant as reasons warranting the granting of an exemption or appeal, including what economic hardship the applicant will suffer if the applicant is refused: Provided that the Chamber Exemptions Committee or the National Exemption Appeals Committee may require the disclosure of such relevant verifiable information as it deems fit in this regard; |
| (h) | the history of the business entity and/or its shareholders, directors and owner 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) |
| (i) | any representations made by the employees and/or their representatives, including a registered trade union, or any party to the Council; |
| (j) | any possible alternatives which may be acceptable to the applicant and/or any other interested party in the circumstances; |
| (k) | the cost, efficiency and administration of any conditions which the Chamber Exemptions Committee or National Exemption Appeals Committee may feel it necessary to impose; |
| (I) | what cost-saving measures may have been implemented by the applicant other than those in respect of its cost of labour; |
| (m) | what hardship may eventuate to employees in the event of the exemption or appeal being granted; |
| (n) | any relevant time limits contained in this exemption procedure or appeal procedure and the Act, and in particular that any exemption or partial granting of an exemption or granting or partial granting of appeal shall be for a fixed, stipulated period; |
| (o) | whether the applicant has provided sufficient verifiable and relevant information in support of the application; |
| (p) | any other relevant factor. |
| 10.19 | An applicant shall be entitled to apply on the prescribed form, "Annexure B" to the General Secretary of the Council for the extension of any exemption or appeal granted by either the Chamber Exemptions Committee or the National Exemption Appeals Committee. 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 10.3 above. |
| 10.20 | The procedure and requirements for considering and determining an application for extension shall be in accordance with the provisions of 10.2 above, read with the changes required by the context. |
| 10.21 | If an exemption is granted or partially granted the Exemptions Body or Independent Body whichever the case might be, shall issue an exemption certificate, signed by its Chairman and Secretary, containing the following particulars: |
| (a) | the full name of the applicant(s) or enterprise concerned; |
| (c) | the provisions of the Agreement from which exemption or appeal has been granted; |
| (d) | the period for which then exemption or appeal shall operate; |
| (e) | the date of issue and from which the exemption or appeal shall operate; |
| (g) | the condition(s) of the exemption or appeal granted |
| (h) | the area in which the exemption or appeal applies |
| 10.22. | The Exemptions Body or Independent Body shall; |
| (a) | retain a copy of the certificate |
| (b) | forward the original certificate to the Secretary of the Council; and |
| (c) | a copy of the exemption or appeal certificate is sent to the applicant |
| 10.23 | An employer to whom a certificate has been issued shall at all times have the certificate available for inspection at his establishment. |
[Clause 10 substituted by section 7 of Notice No. R. 41, GG39610, 22 January 2016]
