Government Gazette

Vol. 422, No. 21441, 11 August 2000

Regulation Gazette, No. 6860

No. R. 783

GOVERNMENT NOTICE

LABOUR RELATIONS ACT, 1995

ENTERTAINMENT INDUSTRY OF SOUTH AFRICA: EXTENSION OF ADMINISTRATION AND EXPENSES RE-ENACTING AND AMENDING COLLECTIVE AGREEMENT TO NON-PARTIES

I, Membathisi Mphumzi Shepherd Mdladlana, Minister of Labour, hereby in terms of section 32 (2) of the Labour Relations Act, 1995, declare that the Collective Agreement which appears in the Schedule hereto, which was concluded in the Bargaining Council for the Entertainment Industry of South Africa, and is binding in terms of section 31 of the Labour Relations Act, 1995, on the parties which concluded the Agreement, shall be binding on the other employers and employees in that Industry, with effect from 21 August 2000, and for the period ending 30 June 2003.

M. M. S. MDLADLANA
Minister of Labour

SCHEDULE

BARGAINING COUNCIL FOR THE ENTERTAINMENT INDUSTRY OF SOUTH AFRICA: ADMINISTRATION AND EXPENSES COLLECTIVE AGREEMENT

in accordance with the provisions of the Labour Relations Act, 1995, made and entered into by and between

Employers' Association for the Entertainment Industry of South Africa
Employers' Labour Organisation (ELO)

(hereinafter referred to as the "employers" or the "employers' organisations"), of the one part and the

Entertainment, Catering, Commercial, and Allied Workers' Union of South Africa
Independent Performing Arts Trade Union
Musicians' Union of South Africa
Performing Arts Workers' Equity
South African Commercial Catering Allied Workers' Union

(hereinafter referred to as the "employees" or the 1rade unions") of the other part, being the parties to the Bargaining Council for the Entertainment Industry of South Africa, (hereinafter referred to as the "employees" or the 1rade unions") of the other part, being the parties to the Bargaining Council for the Entertainment Industry of South Africa, to amend the Agreement published under Government Notice No. R. 178 of 12 February 1999 as extended by Government Notice No. R. 541 of 2 June 2000.

1. SCOPE OF APPLICATION

  1. This Agreement shall be observed in the Entertainment Industry-
  1. by all employers who are members of the employers' organisation and by all employees who are members of the trade unions; and
  2. in the Republic of South Africa.
  1. The terms of this Agreement shall not apply to-
  1. non-parties in respect of clauses 1 (1) (a), 2, 3 and 10.
  2. members of the Commercial Producers' Association who were members as at the date on which the Agreement published under Government Notice No. R. 178 dated 12 February 1999 came into operation for non-parties and the employees of such members.

2. PERIOD OF APPLICATION OF AGREEMENT

This Agreement shall come into operation on the date fixed by the Minister of Labour to be the effective date from which the Agreement shall be extended to become binding on non-parties, and the Agreement shall remain in force for the period ending 30 June 2003.

3. SPECIAL PROVISIONS

The provisions contained in clauses 8 (2) and 30 (2) and (3) of the Agreement published under Government Notice No. R. 178 of 12 February 1999 as extended by Government Notice No. R. 541 of 2 June 2000 (hereinafter referred to as the "Former Agreement"), as further amended, extended or re-enacted from time to time, shall apply to employers and employees.

4. GENERAL PROVISIONS

The provisions contained in clauses 3 to 8 (1) and 9 to 30 (1) of the Former Agreement (as further amended, extended or re-enacted from time to time), shall apply to employers and employees.

5. CLAUSE 4: DEFINITIONS

Insert the following new definition in the correct alphabetical position:

'establishment' means the premises wherein or whereon the Industry as herein defined and work incidental thereto is carried on;".

6. CLAUSE 6: REGISTRATION OF EMPLOYERS

Substitute the following for subclause (3):

"(3) Every employer shall notify the Council in writing of any change in the particulars furnished on registration or of ceasing operations in the Industry or the sale of the business within 14 days of such change or of ceasing operations in the form of Annexure C hereto.".

7. CLAUSE 7: EXPENSES OF THE COUNCIL

Insert the following new subclause (3) and renumber the existing subclauses accordingly:

"(3) For the purpose of meeting the expenses of the Council in the administration of a Dispute Resolution Fund to be used for the resolution of disputes, every employer shall deduct from the wages of each employee R1,00 per month in the case of all employees who have worked in that month: Provided that, for the purpose of this paragraph, an employee shall be deemed to have worked during any period in which he is absent from work on paid leave or sick leave as provided in this Agreement. A separate account shall be kept by the Council for this fund. Every employers shall contribute to the fund an amount equal to that deducted from the employee as prescribed in this subclause.

The fund shall be managed by the Council and be part of the General Funds of the Council. Upon winding-up of the Council or expiry of the Agreement, the balance (debit or credit) shall be dealt with as if part of the General Funds of the council.".

8. CLAUSE 8: EXEMPTIONS

Substitute the following for the existing clause 8:

"8.1 APPLICATIONS FOR EXEMPTION

  1. The Council may grant exemption from any of the provisions of this Agreement to any employer and employee.
  2. Applications for exemption stating full details and the reason why exemption is required shall be submitted in writing the Secretary of the Council, P.O. Box 6649, Johannesburg, 2000.
  3. All applications shall be substantiated, and such substantiation shall include the following details:
  1. the period for which exemption is required (Maximum 1 year);
  2. the Agreement and the clauses or subclauses of the Agreement from which exemption is required;
  3. 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 support of or against the application, are to be included with the application.
  1. Exemption criteria: The Council shall consider all applications for exemption with reference to the following criteria:
  1. The written and verbal substantiation provided by the applicant;
  2. the extent of consultation with and the petition for or against the granting of the exemption as provided by employers or employees who are to be affected by the exemption if granted;
  3. the terms of the exemption;
  4. the infringement of basic conditions of employment rights;
  5. the fact that a competitive advantage is not created by the exemption;
  6. the viewing of the exemption from any employee benefit fund or training provision in relation to the alternative comparable bona fide benefit or provision, including the cost to the employee, transferability, administration and cost, growth and stability;
  7. the extent to which the proposed exemption undermines collective bargaining and labour peace in the Entertainment Industry;
  8. any existing special economic or other circumstances which warrant the granting of the exemption;
  9. reporting requirements by the applicant and monitoring and re-evaluation processes; and
  10. cognisance of the recommendations contained in the Report of the Presidential Commission to Investigate Labour Market Policy.
  1. The Council must fix the conditions subject to which such exemption shall operate: Provided that the Council may, if it deems fit, after one week's notice has been given, in writing, to the person concerned, withdraw any licence of exemption even if the period for which such exemption was granted has not expired.
  2. The Secretary of the Council shall issue to every employee or employer granted exemption a licence duly signed setting out-
  1. the full name of the person concerned;
  2. the provisions of the Agreement from which exemption is granted;
  3. the conditions subject to which such exemption is granted; and
  4. the period for which the exemption shall be valid.
  1. The Secretary of the Council shall-
  1. number consecutively all licences issued;
  2. where exemption is granted, forward the original to the person concerned; and
  3. retain a copy of each licence issued.

8.2 APPEALS AGAINST DECISION OF COUNCIL: NON-PARTIES

  1. In terms of section 32 (3) (e) of the Labour Relations Act, 1995, the Council hereby establishes an Independent Appeals Body to hear and decide any appeal brought against the Council's refusal of a non-party's application for exemption.
  2. All appeals shall be in writing, and shall be addressed to the Secretary of the Council, P.O.Box 6649, Johannesburg, 2000, for consideration by the Independent Appeals Body appointed by the Council.
  3. The appeal shall constitute a fresh hearing and shall be substantiated, and such substantiation shall include the following details:
  1. A copy of the application for exemption as set out in clause 8.1 (4);
  2. full reasons, in writing, why the appeal should be upheld;
  3. the criteria set out in clause 8.1 (4) above shall be considered by the Independent Appeals Body when considering an appeal;
  4. the Independent Appeals Body may not consider any fresh or new submissions made by the non-party, unless the Council has had an opportunity to consider the submission, together with any submissions made by the Council.
  1. The Secretary of the Council shall in the first instance place the applications for exemption on the agenda of the next Council meeting for comment.
  2. The Secretary of the Council shall provide the Independent Appeals Body with details of all applications for exemption.
  3. The Independent Appeals Body shall within 7 days consider and decide on all written applications and, when requested by the applicants to do so, may interview applicants at its following meeting: Provided that the Independent Body may defer a decision to a following meeting within 7 days if additional substantiation, information or verbal representations are considered necessary to decide on the application for exemption, or if they so in their discretion decide to refer the application to the Council for reconsideration.
  4. Once the Independent Appeals Body has decided to grant an exemption, it shall issue a certificate and advise the applicant(s) within 14 days of the date of its decision. Such certificate shall set out the terms of the exemption.
  5. When the Independent Appeals Body decides against granting an exemption or part of an exemption requested, it shall advise the applicant(s) and respondent(s) within 14 days of the date of such decision and shall provide the reason or reasons for not granting an exemption.
  6. All costs incurred by an applicant in attending an interview (subclause 6 above) are for the applicant's account.".

9. CLAUSE 18: DEDUCTIONS FROM REMUNERATION

Insert the following proviso after clause 18 (1) (d):

": Provided that whenever an employer fails to make such deductions and/or fails to pay such deductions over to the Bargaining Council, he shall be liable for the payment thereof, and may deduct only two months' payment from the employee/employees concerned.".

10. CLAUSE 31: BINDING NATURE OF EXISTING AGREEMENTS

Insert the following new clause:

"31. BINDING NATURE OF EXISTING AGREEMENTS

The parties acknowledge and recognise that all previously concluded agreements, the contents of which are not specifically within this Agreement, will continue to be binding on the parties to such agreements. Specifically, clauses contained in such agreements relating to the wage matrix and grade models will remain applicable.".

11. CLAUSE 32: ULTRA VIRES

Insert the following new clause:

"32. ULTRA VIRES

Should any of the provisions of this Agreement be declared ultra vires by any competent court of law, the remaining provisions of this Agreement shall be deemed to be the Agreement and shall remain in force for the unexpired period of this Agreement.".

Signed at Johannesburg this 6th day of April 2000.

M. TSOTETSI
Chairman

W. ROODE
Vice-Chairman

J. J. ALBERTS
Secretary