Labour Relations Act, 1995 (Act No. 66 of 1995)Codes of Good PracticeCollective Bargaining, Industrial Action and PicketingPart B : Collective Bargaining13. Disclosure of information |
| (1) | Disclosure of information of relevant and credible information is essential for rational collective bargaining and effective consultation at the level of the workplace. It is an essential ingredient for winning cooperation of employees and building a culture of trust. |
| (2) | Section 16(2) of the Act gives a trade union with majority of employees in the workplace as members the right to require the disclosure of relevant information that should allow the trade union to engage effectively in collective bargaining or consultation. The information has to be relevant to the issues being negotiated or consulted on. So for example the financial information of an employer become relevant if the employer motivates its demand or its refusal to accept a trade union demand on the grounds of its inability to pay or the employer motivates its need to retrench on the grounds of financial difficulties. But not all relevant information needs to be disclosed. Section 16(5) lists four exceptions: |
| (a) | Legally privileged information2 |
| (b) | Information the disclosure of which would entaila contravention of a law or a court order. |
| (c) | Personal information concerning an employee without that employee's consent. |
| (d) | Confidential information that if disclosed might cause substantial harm to the employer or an employee such as information that may constitute a threat to the employer's security or affect its competitiveness. There are alternatives to the disclosure of such information such as agreeing to an auditor or arbitrator to assess whether the standpoint relied on in the negotiations or the consultations is supported by the information which the employer does not wish to disclose. |
| (3) | Although the statutory right to disclosure in section 16 is limited to registered trade unions with a majority of the employees in the workplace as members, employers should disclose information in accordance with section 16 to any trade union with which it negotiates at the level of the workplace subject to the ability of the employer party to access the information,and the requisite agreement by the trade union not to disclose confidential information to third parties or to agree to a trusted auditor or arbitrator to have access to the information to determine whether the standpo int that may be relied on in the negotiations or consultations is supported by the information. |
| (4) | Just as this Code urges the disclosure of credible and relevant information by employers in order to promote rational negotiations, so does it urge trade unions to use the information received responsibly and to take that information into account when formulating demands or responses or when deciding to declare a dispute. |
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2 Such as the communications between an employer andits lawyers in respect of any anticipated or pending litigation.