Press Statement dated 22 August 2018
The United National Transport Union (UNTU) with the support of its affiliated federation, the Federation of Unions of South Africa (FEDUSA), is taking on the unconstitutionally of certain sections of the Labour Relations Act (LRA) which the Bombela Operating Company (BOC) relied on to withhold its financial statements.
UNTU declared an unfair labour practice dispute at the Commission for Conciliation, Mediation and Arbitration (CCMA) after operator of the Gautrain refused to disclose its financial statements to the Union during the #2018wagenegotiations resulting in the first ever #GautrainStrike.
UNTU demanded the statements in terms of Section 16 (2) and (3) of the LRA. Steve Harris, General Secretary of UNTU, says according to these sections employers must disclose “all relevant information” that will allow the representative Trade Union to perform its functions effectively in terms of collective bargaining, which is a constitutional right.
“The employer must also disclose to the representative Trade Union all relevant information that will allow the representative Trade Union to engage effectively in consultation or collective bargaining. By refusing to disclose its financial statements, BOC made it impossible for UNTU to properly engage in collective bargaining as the Union has no idea what profits the Company makes, what amount is being paid to the French Concessionaire or what bonuses management gets,” says Harris.
The Union was prepared to sign a confidentially clause prohibiting it from making the contents of BOC’s financial statements public, says Harris.
The Company however claimed Section 16 (5) allowed it not to disclose its financial statement because it was contractually bound to a confidentially clause with the French Concessionaire and, if disclosed, it may cause substantial harm to the Employer. Moreover, section 23 of the Constitution supports the argument of UNTU and FEDUSA, “Every trade union, employers' organisation and employer has the right to engage in collective bargaining”.
Harris says the result was that UNTU had to negotiate blind as the Employer refused to be transparent. This worsened the suspicion of the Employees, the majority of whom UNTU represents, about what their employer was hiding.
“Although UNTU realised that no Employer would like an uncontrolled disclosure of its confidential financial statements, there are ways to ensure that both parties are satisfied without denying the Union its right to relevant information in the interest of effective collective bargaining.
“If all private companies take BOC’s attitude, it will make lip service of the wording of Sections 2 and 3 of the LRA. UNTU therefore believes that the wording of Section 5 is inconsistent with Sections 2 and 3 and with recent case law on access to information and disclosure,” says Harris.
Jaco du Plessis, an attorney in private practice, says according to recent case law, the Labour Court does not only expect the employer to disclose information in the context of collective bargaining, but must also be prepared to disclose relevant information that might affect employees.
“Employees have an enforceable right to be provided with relevant information,” says Du Plessis.
Dennis George, General Secretary of FEDUSA, says this is highlighted by the recent Constitutional Court ruling that even voters have the right to know who funds political parties.
In this ruling Chief Justice Mogoeng Mogoeng stressed the importance of the public, voters and the media’s right to access information that pertains to the funding of political parties.
“This principal is even more important when employees’, represented by a registered Trade Union, rights to have the financial statements of the company disclosed during wage negotiations and amidst an ongoing strike action is considered. BOC did not consider the disclosure of its financial statements as relevant,” says George.
UNTU has also declared an unfair labour practice dispute against BOC’s implementation of the recourse to lock-out in accordance with Section 64 of the LRA during the strike that continued for two weeks.
Harris says BOC selectively allowed some UNTU members to continue with their duties, while others were informed via an SMS not to report for work and enjoy the “rest” during the lock-out.
“The LRA does not allow the employer to discriminate against employees by selecting who would be locked out and who not,” says Harris.
The CCMA has yet to determine a date for the disputes to be heard.
Issued on behalf of United National Transport Union (UNTU) by Sonja Carstens, Media and Liaison Officer