scholarly journals THE RIGHT OF TRADE UNIONS TO DISCLOSURE OF INFORMATION UNDER THE LRA: BALANCING THE INTERESTS OF TRADE UNIONS AND EMPLOYERS

Obiter ◽  
2018 ◽  
Vol 39 (2) ◽  
Author(s):  
ME Manamela
Keyword(s):  
South Africa ◽  
Collective Bargaining ◽  
Trade Union ◽  
Trade Unions ◽  
Relevant Information ◽  
Sensitive Information ◽  
Access To Information ◽  
Disclosure Of Information ◽  
The Right ◽  
Right Of Access

Access to information promotes values of transparency, openness, and accountability that are important for a progressive constitutional democracy. Section 32(1) of the Constitution of the Republic of South Africa, 1996 (hereinafter “the Constitution”) provides that “everyone has the right of access to information held by the state or by another person that is required for the exercise or protection of any rights”. It is submitted that the word “everyone” in this provision, includes trade unions and employees and that the words “another person” in the provision include employers. Employees and their trade unions, therefore, have the right of access to information that the employer has, which may be required for the exercise or protection of their rights. Section 32(2) of the Constitution, further provides that “legislation may be enacted to give effect to this right”. The Promotion of Access to Information Act (2 of 2000 (PAIA)) gives effect to the right of access to information in general, however, for purposes of this discussion, the Labour Relations Act (66 of 1995 (LRA)) gives effect to the right through a number of provisions; including its sections 16 and 189. While section 16 requires the employer to disclose to a representative trade union all relevant information that will enable trade union representatives to effectively perform functions, which are listed in section 14(4); section 189 regulates the disclosure of information in the context of dismissals based on operational reasons of the employer.The above is in line with the International Labour Organisation’s (ILO) Collective Bargaining Standards Recommendation 163 (1981) which provides that “measures adapted to national conditions should be taken, if necessary so that parties have access to the information required by meaningful negotiation”. Section 23(5) of the Constitution grants every trade union a right to engage in collective bargaining. This right is protected and supported through provisions mentioned above which permit trade unions to request relevant information, which is important for the effective exercise of the right. This, however, has often proved to be problematic; largely due to the fact that on the one hand, trade unions need information, while on the other hand, employers sometimes regard this as an invasion of privacy. Employers often refuse to divulge information requested by trade unions as they think that the disclosure of information will also negatively affect their bargaining power or that sensitive information may get to competitors and jeopardize their business. Business South Africa (BUSA) raised concerns regarding the right to disclosure of information in its submissions to the National Economic Development and Labour Council (NEDLAC) during the drafting of the LRA as it regarded the obligation to disclose information to trade unions as a threat and an encroachment into management prerogatives. This argument was largely based on commercial secrecy; confidentiality and that disclosure of information would impede effective decision-making.In view thereof, it is important that there be a balance between the right of trade unions to information and the employer’s duty to disclose the information. This analysis will consider the relevant provisions of the LRA that grant trade unions the right to information and employers’ duty to disclose the information, to determine the balance between the interests of trade unions and employers regarding disclosure of information. It will also look at the position in the United Kingdom (UK) in order to determine whether there are lessons to be learned for South Africa.

scholarly journals Access to information: Information disclosure in some South African organisations

2007 ◽  
Vol 38 (1) ◽  
pp. 25-36
Author(s):  
R. Van Der Walt
Keyword(s):  
South Africa ◽  
South African ◽  
Trade Unions ◽  
Information Disclosure ◽  
Industrial Democracy ◽  
Access To Information ◽  
Labour Relations ◽  
Disclosure Of Information ◽  
The Way

Legislation such as the Labour Relations No 66 of 1995 and the Promotion of Access to Information Act No 2 of 2000 has paved the way for creation of a culture of un-coerced disclosure of information in South African organisations. The article reviews progress in respect of information disclosure in South Africa and other countries and discusses the effects of the LRA in regard to disclosure of information to trade unions and workplace forums. It then describes a study conducted by the author and discusses the findings. It concludes with pointing out certain weaknesses in the disclosure process and exhorts managements and the trade unions to work together to improve this important tool for achieving success in organisations and enhancing industrial democracy.

scholarly journals DETERMINING THE THRESHOLD FOR ORGANIZATIONAL RIGHTS: THE LEGAL QUAGMIRE FACING MINORITY UNIONS RESOLVED – South African Post Office v Commissioner Nowosenetz No (2013) 2 BLLR 216 (LC)

Obiter ◽  
2021 ◽  
Vol 34 (3) ◽  
Author(s):  
Clarence Tshoose
Keyword(s):  
Collective Bargaining ◽  
South African ◽  
Trade Union ◽  
Trade Unions ◽  
Post Office ◽  
Labour Relations ◽  
Industry Level ◽  
Pluralistic Approach ◽  
The Right ◽  
Conditions Of Employment

The issue of organizational rights facing minority unions has been a quagmire since the advent of the Labour Relations Act 66 of 1995(hereinafter “the LRA”). This quagmire exists, notwithstanding the fact that the Constitution affords every trade union the right to engage in collective bargaining (s 23 of the Constitution, 1996). The acquisition of organizational rights by trade unions plays a crucial rolein as far as collective bargaining is concerned. It is through collective bargaining that unions are able to negotiate with employers regarding the terms and conditions of employment. Commentators have often viewed the LRA as favouring larger unions and as conferring clear advantages on unions with majority support at the industry level. Chapter III of the LRA regulates collective bargaining. Whereas this chapterostensibly promotes a pluralistic approach to organizational rights it is unequivocally biased towards majoritarianism. This is the case despite minority trade unions fulfilling an important role in the current labour system especially when it comes to the balance of powerin the employment arena. In light of the above, the legal quagmire faced by the minority unions in the quest for acquiring organisation rights in terms of the relevant provisions of the LRA is clearly illustrated by the decision in South African Post Office v Commissioner Nowosenetz No ((2013) 2 BLLR 216 (LC) (hereinafter “ the South African Post Office case”)).

scholarly journals Enabling the enabler: Using access to information to ensure the right to peaceful protest

2017 ◽  
pp. 51-62 ◽  
Author(s):  
Tsangadzaome Alexander Mukumba ◽  
Imraan Abdullah
Keyword(s):  
South African ◽  
Relevant Information ◽  
Access To Information ◽  
The South ◽  
South African Police Service ◽  
South African Police ◽  
The Right ◽  
Right Of Access ◽  
Responsible Person

The Regulation of Gatherings Act (RGA) places strict guidelines on how to exercise the right to protest, with particular emphasis on the submission of a notice of gathering to the responsible person within a municipality in terms of sections 2(4) and 3 of the Act. However, municipalities do not proactively make the notice of gathering templates available for public use (or may not have these at all), and often do not publicise the details of the designated responsible person. To test municipalities’ compliance with the RGA, the Legal Resources Centre (LRC) enlisted the help of the South African History Archive (SAHA) to submit a series of Promotion of Access to Information Act (PAIA) requests to every municipality in South Africa. PAIA requests were also submitted to the South African Police Service (SAPS) for records relating to public order policing. The initiative aimed to provide these templates and related documents to interested parties as an open source resource on the protestinfo.org.za website. The results of these efforts show that compliance with the RGA is uneven. This article explores the flaws in the regulatory environment that have led to this level of apathy within government, despite the crucial role of the right to protest and the right of access to information as enabling rights in our constitutional democracy. An analysis of the full PAIA request dataset shows the extent of government’s resistance to facilitating these enabling rights, and provides insights into remedial interventions. The article concludes with a series of recommendations, which centre on statutory reforms to the RGA and PAIA to ensure appropriate sanction for non-compliance by government, proactive disclosure of relevant information, and emergency provisions allowing curtailed procedural requirements. The intention of the proposed amendments is to minimise the possibility that these fundamental, enabling rights might be frustrated.

scholarly journals The Impact of the Labour Relations Act on Minority Trade Unions: A South African Perspective

2017 ◽  
Vol 16 (4) ◽  
pp. 284
Author(s):  
Johan Kruger ◽  
Clarence Itumeleng Tshoose
Keyword(s):  
Collective Bargaining ◽  
South African ◽  
Trade Union ◽  
Trade Unions ◽  
Freedom Of Association ◽  
Labour Relations ◽  
Labour Standards ◽  
International Labour Standards ◽  
The Right ◽  
The Impact

The advent of the new political dispensation in 1994 heralded the coming of a new labour dispensation. Labour relations and labour policies changed significantly from that which prevailed under the previous government. The review of the labour legislation framework was at that stage a priority for the new government, with specific focus on the review of the collective bargaining dispensation. The abuse of trade unions under the previous government gave rise to a unique entrenchment of labour rights in the Constitution. The drafters thereof were determined to avoid a repetition of this abuse after 1994. Section 23 of the Constitution goes to great lengths to protect, amongst others, the right to form and join a trade union, the right of every trade union to organise and the right of every trade union to engage in collective bargaining. In furtherance of section 23(5) of the Constitution, the Labour Relations Act 66 of 1995 was promulgated. One of the most significant changes of the LRA was that it now provided for legislated organisational rights. Commentators have often viewed the LRA as favouring larger unions and as conferring clear advantages on unions with majority support at the establishment or industry level.  It is within this context that this article examines the impact of section 18 of the LRA on the constitutionally entrenched right of every person to freedom of association, the right of every trade union to engage in collective bargaining, and the right of every trade union to organise. Furthermore, this article explores the justifiability of the impact of section 18 on minority trade unions in terms of international labour standards and the Constitution. In part one the article examines the concept of majoritarianism, pluralism and industrial unionism in the context of South African Labour market. Part two deals with the impact of section 18 of the LRA on minority Trade Unions. Whilst part three explores the concept of workplace democracy. Part five investigates the applicability of international labour standards in the context of the right to freedom of association. Part four ends up with conclusion and recommendations on the impact of section 18 of the LRA.

scholarly journals Sharing business information with employees

2003 ◽  
Vol 6 (3) ◽  
pp. 542-561
Author(s):  
R. Van der Walt
Keyword(s):  
South Africa ◽  
South African ◽  
Trade Unions ◽  
Information Disclosure ◽  
Radical Change ◽  
Industrial Democracy ◽  
Access To Information ◽  
Labour Relations ◽  
Business Information ◽  
Disclosure Of Information

The adoption of legislation such as the Labour Relations Act No 66 of 1995 and the Promotion of Access to Information Act No 2 of 2000 has brought about radical change in the process of disclosure of information in South African organisations. The article reviews developments in respect of information disclosure in South Africa and other countries and discusses the effects of the LRA in regard to disclosure of information to trade unions and workplace forums. It then describes a study conducted by the author and discusses the findings. It concludes with pointing out certain shortcomings in the disclosure process and urges managements and the trade unions to work together to improve this important tool for achieving success in organisations and enhancing industrial democracy.

scholarly journals The limitation of the discovery rules of Court against the right of access to information in South Africa

2017 ◽  
Vol 13 (3) ◽  
pp. 1029-1051
Author(s):  
Rashri Baboolal-Frank ◽  
Fola Adeleke
Keyword(s):  
South Africa ◽  
South African ◽  
Access To Information ◽  
Legal Analysis ◽  
Civil Proceedings ◽  
Access Information ◽  
Constitutional Right ◽  
South African Constitution ◽  
The Right ◽  
Right Of Access

Abstract In South Africa, the Promotion of Access to Information Act 2 of 2000 (PAIA) gives effect to the right of access information in Section 32 of the South African Constitution (the Constitution). Section 7 of PAIA provides that PAIA does not apply to records required for criminal or civil proceedings after commencement of proceedings where access to that record is already provided for in any other law. Where records are obtained in contravention of Section 7, they are not admissible as evidence in criminal or civil proceedings. The aim of this paper is to determine whether the discovery rules of Court limit the constitutional right of everyone to access information. Consequently, the methodology employed in this paper involves a legal analysis namely: a limitations analysis utilising Section 36, the limitations clause of the Constitution. This paper further engages in case law analysis interpreting the exercise of the right of access to information before PAIA was passed and after PAIA was passed to highlight the anomaly of the application of Section 7. This paper argues that Section 7 unconstitutionally limits the ambit of the right of access to information and a direct constitutional challenge on this provision is necessary.

Access to Information under the Nigerian Freedom of Information Act, 2011: Challenges to Implementation and the Rhetoric of Radical Change

2019 ◽  
Vol 63 (3) ◽  
pp. 435-461
Author(s):  
Uchechukwu Nwoke
Keyword(s):  
South Africa ◽  
Public Information ◽  
Radical Change ◽  
Freedom Of Information ◽  
Access To Information ◽  
Freedom Of Information Act ◽  
Public Governance ◽  
The Right ◽  
Right Of Access

AbstractInformation is essential for the functioning of modern societies. Access to information denotes the right of citizens to obtain information regarding how they are governed. In 2011, Nigeria enacted the Freedom of Information Act, to ensure openness and transparency in public governance. This article evaluates the extent to which the legislation has strengthened the right of access to information in Nigeria. Through analysis of the provisions of the act and some decided cases, the article argues that challenges, both in the act's provisions and in its enforcement by the courts, have resulted in a “blunted” law that lacks the capacity to satisfy the people's expectations on the right of access to public information. Drawing on the experience of other jurisdictions where similar laws are operative (notably South Africa and India), the article suggests ways through which the implementation of the act could be made more effective.

scholarly journals Strikes in Essential Services in Kenya: The Doctors, Nurses and Clinical Officers' Strikes Revisited and Lessons from South Africa

2020 ◽  
Vol 23 ◽  
pp. 1-25
Author(s):  
Johana Kambo Gathongo ◽  
Leah Ndimurwimo
Keyword(s):  
South Africa ◽  
Collective Bargaining ◽  
Trade Unions ◽  
Health Care Services ◽  
Fundamental Rights ◽  
Labour Relations ◽  
Essential Services ◽  
Constitutional Right ◽  
The Right ◽  
Essential Service

The right to strike is one of the fundamental rights enshrined in the Kenyan Constitution, 2010. Any limitation to the right involves the danger of collective bargaining. The right to strike is derived from the Right to Organise and Collective Bargaining Convention, 1949 that Kenya ratified on 18 July 1951. Article 2(4) of the Constitution emphasises that any law inconsistent with it is void. The Labour Relations Act, 2007 gives effect to the constitutional right to strike but is also subject to a number of limitations. Such limitations include the prohibition of strikes for employees who are engaged in essential services. Although the limitations to the right to strike may be justified, a number of bottlenecks exists in the current scope and application of the Labour Relations Act. For example, the Labour Relations Act does not provide mechanisms in terms of which essential service employees can lawfully embark on strikes. Unlike disputes in South Africa, those about essential services in Kenya are not preceded by consensus-seeking processes such as conciliation, mediation and arbitration. Instead, essential service disputes are referred directly to the Employment and Labour Relations Court for litigation. Consequently, the rights of employees who are employed in essential services like hospitals and patients' right to access health care services can easily be violated. Due to the lacunae in the Labour Relations Act, an increase in the number of strikes in essential services has been witnessed in Kenya. This article argues that the litigation of disputes in essential services should be the option of last resort. In addition, to date, more than 11 years after the Labour Relations Act came into effect, no provisions have been incorporated or even suggested that employer and trade unions need to conclude minimum service agreements and designate employees to perform the minimum services. This article suggests that, trade unions and government can work together through adopting consultative and more inclusive approaches in order to establish an effective statutory framework that regulates the right to strike in essential services in Kenya.

THE STATE OF OPEN ACCESS ADOPTION IN LEGAL SCHOLARLY COMMUNICATION: AN ANALYSIS OF SELECTED OPEN ACCESS RESOURCES

Mousaion ◽  
2016 ◽  
Vol 34 (1) ◽  
pp. 83-100
Author(s):  
Solomon Bopape
Keyword(s):  
South Africa ◽  
Open Access ◽  
Open Access Publishing ◽  
The Internet ◽  
Free Access ◽  
Access To Information ◽  
Legal Information ◽  
Scholarly Literature ◽  
Open Access Resources ◽  
The Right

The study of law focuses, among other aspects, on important issues relating to equality, fairness and justice in as far as free access to information and knowledgeis concerned. The launching of the Open Access to Law Movement in 1992, the promulgation of the Durham Statement on Open Access to Legal Scholarshipin 2009, and the formation of national and regional Legal Information Institutes (LIIs) should serve as an indication of how well the legal world is committed to freely publishing and distributing legal information and knowledge through the Internet to legal practitioners, legal scholars and the public at large aroundthe world. In order to establish the amount of legal scholarly content which is accessible through open access publishing innovations and initiatives, this studyanalysed the contents of websites for selected open access resources on the Internet internationally and in South Africa. The results of the study showed that there has been a steady developing trend towards the adoption of open access for legal scholarly literature internationally, while in South Africa legal scholarly literature is under the control of commercial publishers. This should be an issue for the legal scholarship which, among its focus, is to impart knowledge about the right of access to information and knowledge.

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