Section 139 of the Labour Act, 2007 (No. 11 of 2007) on Exemptions and Variation makes provision for the Minister to exempt any employer or class of employers from any provision of Chapter 3 of the Act concerning Basic Conditions of Employment, e.g exemption from payment of overtime and rest period. The deviation for exemption and variation is on sections 35 and 38 on severance pay and dispute concerning non-compliance with contravention, application or interpretation of Basic Conditions of Employment respectively.
Variation on the other hand may only be granted after the Minister consults the Social Dialogue Institute (Labour Advisory Council).
Once an exemption is granted, an employer is relieved from complying with the provision of the section of the Act from or varied, provided that the employer adhere to the exclusive conditions determined for the purpose of the exemption/variation.
HOW IS AN EXEMPTION / VARIATION GRANTED?
An employer must apply to the Minister of Labour in writing and attach the Prescribed Form (Form LM 35 found in the Labour Act Regulations), indicating the section(s) of the Act for which exemption / variation is sought, as well as the period thereof.
The employer must satisfy the Minister that they have consulted with the affected employees or their trade union(s). The employer must provide a written submission on behalf of the affected employees, or evidence of consultation with employees – reflecting their views on each of the proposed exemption/variation and clearly indicate the employees or categories of the employees that would be affected by exemption / variation and any other condition under which the exemption/variation is granted.
The Minister must publish the Notice of Exemption or Variation granted to a class of employer in the Government Gazette and through other means or platforms in order to ensure that the individuals whose interests are affected by the Notice receive the information.
The period for which an exemption / variation is granted varies from an employer’s application.
CAN AN EXEMPTION/VARIATION BE AMENDED OR WITHDRAWN?
An exemption / variation may be amended or withdrawn by the Minister of Labour. If the exemption / variation was published in a Gazette for a class of employers, the amendment or withdrawal must be done by a Notice in the Gazette from a date stated in that Notice.
WHAT IF AN EMPLOYEE OR INDIVIDUAL IS AGGRIEVED BY AN EXEMPTION / VARITION GRANTED BY THE MINISTER?
Section 139 (7) of the Act makes provision for any person who is aggrieved by the grant, amendment or withdrawal of an exemption to apply for a review of the decision to the Labour Court.