Government Gazette
Part1:
H. General |
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36. LIMITATION ON THE RIGHT TO STRIKE OR LOCK OUT
Unless othenwise specified in the relevant Annexures in Part 2 of this Agreement—
36.1 no person may take part in a strike or lockout or any conduct in contemplation or furtherance of a strike or lockout in respect of any dispute about the interpretation or application, including enforcement, of this Agreement; and
36.2 notwithstanding the provisions of clause 36.1, strikes and lockouts in respect of disputes about the alteration of the provisions of this Agreement are permitted, in terms of the provisions of the NTBC Constitution.
37. EXEMPTIONS
37.1 The Bargaining Council must determine its exemptions policy and process all exemption applications in terms of this policy.
37.2 All applications for exemption must be made in writing to the Secretary of the Bargaining Council, setting out relevant information, including—
37.2.1 the provisions of the Agreement in respect of which exemption is sought;
37.2.2 the persons in respect of whom the exemption is sought;
37.2.3 the reasons why the exemption is sought;
37.2.4 the nature and size of the business in respect of which the exemption is sought;
37.2.5 the duration of the exemption sought;
37.2.6 the business plan of the applicant seeking the exemption; and
37.2.7 any other information the Council may prescribe from time to time.
37.3 An exemption application in respect of a term or provision of a Collective Agreement—
37.3.1 concluded in the Council that applies throughout the Textile Industry must be considered by an exemptions committee appointed by the Council;
37.3.2 concluded in a subsector chamber must be considered by an exemptions committee whose members are appointed from the employers' organisation{s) and trade union{s) who participate in the subsector chamber or section.
37.4 An exemption committee appointed by the Council may request additional information from an applicant applying for exemption.
37.5 The Secretary must advise the applicant in writing of the decision of the exemptions committee within 45 days of receipt of the application, failing which the Bargaining Council shall be deemed to have refused the application for exemption.
37.6 Within thirty (30) days of the date of refusal of the exemption application, an affected party may refer the application, in writing, to the Independent Exemptions Committee established by the Council or Executive Committee to consider and decide the application.
37.7 The Independent Exemptions Committee established by the Bargaining Council shall consist of one independent person.
37.8 When considering an application for exemption, the Independent Exemptions Committee must consider—
37.8.1 whether the granting of the exemption will prejudice the objectives of the Bargaining Council or contravene the provisions of any labour legislation or Collective Agreements;
37.8.2 the circumstances prevailing in the Textile Industry as a whole or the subsectors likely to be affected by the application;
37.8.3 the nature and size of the business in respect of which the application is made;
37.8.4 whether the duration of the exemption is for a limited or specified period;
37.8.5 any representations made by the employees likely to be affected by the application;
37.8.6 whether the business plan presented by the applicant demonstrates that the granting of the exemption will make a material difference to the tongterm viability of the business in respect of which the exemption is sought;
37.8.7 whether a refusal to grant an exemption will result in undue financial hardship to the applicant;
37.8.8 whether the granting of the exemption will undermine collective bargaining and be likely to cause undue financial hardship to the employees affected;
37.8.9 whether the granting of the exemption will impact negatively on parity agreements; and
37.8.10 Whether the granting of the exemption will impact negatively on local competitors who are complying with Collective Agreements.
37.9 The decision of the Independent Exemptions Committee shall be final and binding upon the applicant and the Bargaining Council.
38. ADMINISTRATION
38.1 The Council shall be responsible for the administration of this Agreement.
38.2 Subject to the powers and functions specifically granted to other structures in the NTBC Constitution, the Council may issue guidelines and/or make policies regarding the implementation of this Agreement, which guidelines and or policies shall be binding on all employees and employers who fall under the registered scope of the Bargaining Council.
38.3 The Council may appoint designated agents in accordance with the Act to monitor and enforce the provisions of this Agreement.
38.4 All payments to the Council must be accompanied by the remittance advice forms prescribed by the Council, together with all other informtion required by the Council.
39. DESIGNATED AGENTS
39.1 The Council may request the Minister of Labour to appoint one or more specified persons as designated agents to assist In enforcing the terms of this and other Agreements of the Council.
39.2 A designated agent may—
39.2.1 secure compliance with the Council's Collective Agreements by—
39.2.1.1 publicising the contents of the Agreements;
39.2.1.2 conducting inspections;
39.2.1.3 investigating complaints;
39.2.1.4 investigating means of conciliation;
39.2.1.5 issuing a compliance order requiring any person bound by this Agreement to comply with this Agreement within a specified period; or
39.2.1.6 using any other means the Council may adopt;
39.2.2 perform any other functions that are conferred or imposed on the agent by the Council.
39.3 A designated agent must report all disputes concerning compliance with any provision of this and any other Agreements of the Council to the Secretary of the Council or his/her appointee.
39.4 Within the registered scope of the Council, a designated agent of the Council has all the following powers:
39.4.1 A designated agent may, without warrant or notice at any reasonable time, enter any workplace or any other place where an employer carries on business or keeps employment records, that is not a home, in order to monitor or enforce compliance with a Collective Agreement concluded in the Council.
39.4.2 A designated agent may only enter a home or any place other than a place referred to in clause 39.4.1—
39.4.2.1 with the consent of the owner or occupier; or
39.4.2.2 if authorised to do so by the Labour Court in terms of clause 39.4.3;
39.4.3 The Labour Court may issue an authorisation contemplated in clause 39.4.2.2 only on written application by a designated agent who states under oath or affirmation the reasons for the need to enter a place, in order to monitor or enforce compliance with a Collective Agreement concluded in the Council.
39.4.4 If it is practicable to do so, the employer and a trade union representative must be notified that the designated agent is present at a workplace and be given the reason for the designated agent's presence. The Council may develop a policy to give further effect to this provision.
39.4.5 In order to monitor or enforce compliance with a Collective Agreement a designated agent may—
39.4.5.1 require a person to disclose information, either orally or in writing, and either alone or in the presence of witnesses, on a matter to which a Collective Agreement relates, and require that disclosure to be under oath or affirmation;
39.4.5.2 inspect and question a person about any record or document to which a Collective Agreement relates;
39.4.5.3 copy any record or document referred to in clause 39.4.5.2 or remove these to make copies or extracts;
39.4.5.4 require a person to produce or deliver to a place specified by the designated agent any record or document referred to in clause 39.4.5.2 for inspection;
39.4.5.5 inspect, question a person about, and if necessary remove, an article, substance or machinery present at a place referred to in clause 39.4.5.1 and 39.4.5.2;
39.4.5.6 question a person about any work performed; and
39.4.5.7 perfom any other described function necessary for monitoring or enforcing compliance with a Collective Agreement;
39.4.5.8 perform any other function necessary in the execution of their functions as prescribed by the Council and/or the provisions of employment law.
39.4.6 A designated agent may be accompanied by an interpreter and any other person reasonably required to assist in conducting an inspection.
39.4.7 A designated agent must—
39.4.7.1 produce on request a copy of the authorisation referred to in clause 39.4.3;
39.4.7.2 provide a receipt for any record or document removed in terms of clause 39.4.5, and return any removed record, document or item within a reasonable period.
39.4.8 Any person who is questioned by a designated agent in terms of clause 39.4.5.2 must answer all questions lawfully put to that person truthfully and to the best of that persons's ability.
39.4.9 An answer by any person to a question by a designated agent in terms of this clause may not be used against that person in any criminal proceedings, except proceedings in respect of a charge of perjury or making a false statement.
39.4.10 Every employer and each employee must provide any facility and assistance at a workplace that is reasonably required by a designated agent to effectively perform the designated agent's functions.
39.4.11 The Council may apply to the Labour Court for an appropriate order against any person who—
39.4.11.1 refuses or falls to answer all questions lawfully put to that person truthfully and to the best of that person's ability; or
39.4.11.2 refuses or fails to comply with any requirement of the designated agent in terms of this clause; or
39.4.11.3 hinders the designated agent in the performance of the agent's functions in terms of this clause; and
39.4.11.4 for the purposes of this clause, a Collective Agreement shall be deemed to include any basic condition of employment which constitutes terms of a contract of employment in terms of section 49 (1) of the Basic Conditions of Employment Act No. 75 of 1997.
40. COUNCIL LEVIES
Unless otherwise specified in the relevant Annexure in Part 2 of this Agreement—
40.1 each employer must deduct a Bargaining Council levy of R1 per week from the salary/wage of each employee;
40.2 employers must pay to the Bargaining Council an amount equivalent to that deducted from all its employees;
40.3 every employer must pay the amounts referred to in clause 40.1 and 40.2 to the Bargaining Council before the 15th day of the following month;
40.4 of this Council levy received, an amount of 10 cents per side shall be allocated to the relevant subsectors and or sections for purposes of assisting in the financing of wage negotiation expenses and this 10 cent cost entitlement shall be transferred to the respective parties on a quarterly basis subject to Council approved conditions.
41. CLOSED SHOP
Unless otherwise specified in the relevant Annexure in Part 2 of this Agreement—
41.1 the closed shop shall be applicable to bargaining unit employees;
41.2 current employees who were not members of the trade union at the time that the closed shop became effective shall not be required or compelled, by virtue of the provisions of this clause, to become members of the trade union;
41.3 for the purposes of this section of this Agreement, no union membership subscription or levy deducted in consequence thereof may be—
41.3.1 paid to a political party as an affiliation fee;
41.3.2 contributed in cash and l<ind to a political party or a person standing for election to any political office; or
41.3.3 used for any expenditure that does not advance or protect the socio-economic interests of employees;
4.1.4 all other provisions relating to the closed shop not covered by the provisions of this section shall be as per the relevant provisions of section 26 of the Labour Relations Act, No. 66 of 1995.
42. TRADE UNION AGENCY SHOP
Unless othenwise specified in the relevant Annexure in Part 2 of this Agreement—
42.1 a trade union agency fee shall be applied by an employer to all bargaining unit employees who, although eligible to be members of the trade union, are not members of the trade union;
42.2 the trade union agency fee shall also be applicable to those employees in respect of whom wages are prescribed in this Agreement who are not members of the trade union because the closed shop does not apply to them;
42.3 all employers shall deduct the trade union agency fee from the wages of all employees to whom clause 42.1 and 42.2 apply;
42.4 such trade union agency fee amounts deducted from any non-union members' wages shall be paid over by the employer to the Bargaining Council by the 15th day of the following month, together with a schedule detailing the names of employees and the amounts deducted;
42.5 moneys paid to the Council in terms of clause 42.1 and 42.2 of this Agreement shall be paid over the trade union monthly;
42.6 no trade union agency fee deducted may be—
42.6.1 paid to a political party as an affiliation fee;
42.6.2 contributed in cash or kind to a political party or a person standing for election to any political office ; or
42.6.3 used for any expenditure that does not advance or protect the socio-economic interests of employees;
42.7 no employee who is covered by the provisions of this Agreement will be compelled to become a member of the trade union by virtue of this agency shop agreement;
42.8 all other provisions relating to the agency shop not covered by the provisions of this clause shall be as per the relevant provisions of section 25 of the Labour Relations Act, No. 66 of 1995.
43. EMPLOYER AGENCY SHOP
Employer agency shop provisions shall be as per the relevant Annexure in Part 2 of this agreement.
44. FAILURE TO MAKE PAYMENTS TO THE COUNCIL
44.1 If any amount that is payable to the Council in terms of this Agreement is not paid by the stipulated date—
44.1.1 interest will accrue on that amount from the stipulated date of payment;
44.1.2 the employer will become liable for any legal costs incurred by the Council for recovery of the amounts due;
44.2 the interest referred to in clause 44.1 is the interest prescribed from time to time in terms of the Prescribed Rate of Interest Act, 1975;
45. REGISTRATION OF EMPLOYERS AND EMPLOYEES
Unless othenwise specified in the relevant Annexures in Part 2 of this Agreement—
45.1 every new employer entering the Industry must within one month from the start of business send the following particulars to the Secretary of the Council:
45.1.1 The employer's name and address;
45.1.2 the business's name and address;
45.1.3 the date of the start of business;
45.1.4 the nature of the business and product made;
45.1.5 an application for membership of the Textile Industry Provident Fund, subject to the provisions of clause 25.1;
45.2 Each employer must submit statistical and information returns in the prescribed formats by the required date as determined by the Council from time to time;
45.3 the Secretary of the Council must keep a register of all known employers engaged in the Industry.
46. EXHIBITION OF AGREEMENT
Every employer must make this Agreement available to employees in the place of work.
47. DISPUTES
All disputes shall be dealt with as per the provisions of Annexure B in Part 1 of this Agreement.
48. EXISTING AGREEMENTS
Unless otherwise specified in the relevant Annexues in Part 2 of this Agreement—
48.1 the parties acknowledge and recognise that all previously concluded Agreements, the contents of which are not specifically dealt with in this Agreement, will continue to be binding on the parties to such Agreements;
48.2 all conditions applicable at the various participating employers will, where they are more favourable than those concluded in this Agreement, remain in full force and effect;
48.3 the provisions of this Agreement shall only be amended through collective bargaining between the parties;
49. OTHER CONDITIONS OF EMPLOYMENT
All other terms and conditions of employment shall be as specified In the relevant Annexures in Part 2 of this Agreement or as prescribed in law.
50. FREQUENCY OF NEGOTIATIONS AND INDUSTRIAL ACTION
Unless otherwise specified in the relevant Annexures in Part 2 of this Agreement—
50.1 this Agreement shall remain in force until 31 December 2008, provided that the parties to the Bargaining Council shall annually negotiate through collective bargaining amendments to this Agreement, unless they agree to negotiate at different intervals, provided further that no amendment(s) shall take effect before the effective date of such amendments as agreed to by the parties;
50.2 the parties to the Bargaining Council, and in the event of this Agreement being extended to non-party employers and their employees in accordance with the provisions of clause 1.2 of Part 1 of this Agreement, shall have the right to pursue industrial action within establishments bound by the provisions of this Agreement, in compliance with the Act after utilizing applicable procedures set out in the NTBC Constitution, in the event of Agreement not being reached on any issue in negotiations at the Bargaining Council, on wages and other substantive issues designed to replace or amend the remuneration and/or other substantive provisions of this Agreement;
50.3 the reference to negotiations in clause 50.2 above shall mean negotiations as contemplated in clause 50.1 above;
50.4 section 65 (3) of the Act shall not render industrial action as contemplated in clause 50.2 above unprocedural.
51. DEFINITIONS
As per Annexure A of Part 1 of this Agreement.
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