A counterbalance between the unions right to disclosure of information and the employers right to the privacy or confidentiality of information

Abstract

The issue of disclosure of information during negotiations has been a concern to both unions and employers. Unions have the right to have access to information that is in possession of the employer, while the employer has the right to refuse to disclose such information if the disclosure will affect their privacy or if the information requested is confidential and the disclosure will negatively impact on the competitive edge of the business. Despite the fact that access to information is protected in the law, the union can only request information that is relevant to the discussion before the parties. A refusal by the employer to provide a union with relevant information can negatively impede the prospects for a successful collective agreement or an amicable settlement of a labour dispute. The point of contention is that employers may be concerned that very important information like trade secrets may land in the hands of competitors if precautionary measures (like refusing to disclose such to the trade union and other parties) are not taken to guard against their disclosure. Then the question arises as to how to strike a balance between the refusal of the employer to disclose the information required by the union on the basis that the information is private and/or confidential, and the union’s right to have access to such information. It is argued that the employer’s right to privacy or confidentiality may be tempered with in terms of the limitation clause of the Constitution. This article further addresses the question of what can constitute acceptable reasons for the employer’s refusal to provide the union with the requested information, and the effects of such refusal on the capacity of a union to negotiate effectively. Key words: disclosure, confidentiality, privacy, access to information, negotiations.