As of the 1st of July 2021, the implementation of the Protection of Personal Information Act 4 of 2013 has resulted in many companies ensuring they are compliant with the Act. This may put employers in a position where they would rather withhold information than disclose certain information to third parties such as trade unions. However, employers must be mindful of the provisions of Section 16 of the Labour Relations Act 66 of 1995 (hereinafter referred to as the Act).

Section 16 of the Act states that an employer must disclose all relevant information to a trade union to allow for the union to engage in effective collective bargaining.
However, the employer is not required to disclose the following information in terms of Section 16 (5) of the Act :

  1. Information that is legally privileged.
  2. Information that an employer cannot disclose without contravening a prohibition imposed on the employer by any law or order of court.
  3. Information that is confidential and, if disclosed, may cause substantial harm to an employee or the employer.
  4. Information that is private personal information relating to an employee, unless that employee consents to the disclosure of information.

Should there be a dispute about the disclosure of information in terms of section 16 of the Act, any party to the dispute may refer the dispute to the CCMA. It must be noted that should parties fail to resolve the dispute through conciliation, the matter will be decided through arbitration.

The first aspect that the arbitrator must consider is whether the information required is relevant to the dispute. Further information, which falls under section 16(5), may still have to be disclosed if a Commissioner decides such information is relevant to the dispute.

The commissioner must, however, balance the harm that the disclosure of such information poses to an employer or employee against the harm of hampering a representative trade union from effectively conducting consultations or engaging in collective bargaining. Should the balance of harm favour the employer or employee, a commissioner may order the disclosure of such information on terms that would reduce or limit the likely harm that would be caused to an employer or employee.

In terms of making such an award, a commissioner must also consider any forms of breach of confidentiality at the workplace, and may refuse to order the disclosure of such information for a period specified in the award.

It is strongly advised that companies take the necessary steps to protect themselves against breaching legislation but also be mindful of the binding provisions of the Labour Relations Act and arbitration awards.

Should you have any further questions or queries, kindly contact your nearest CEO office for assistance.

Article by: Krian Rathinam
Dispute Resolution Official – Durban