The Industrial Court has ruled that employers must disclose the salaries of senior managers to junior staff during salary negotiations, in a decision expected to influence collective bargaining practice across the country.
In a judgement delivered last week and raising the bar for fair bargaining in Botswana,
the court ordered the Motor Vehicle Accident Fund (MVA Fund) to disclose its management salary structure, ruling that its refusal to release the information amounted to bargaining in bad faith.
In a judgment delivered recently, Maun Industrial Court Judge Sampa Kaisara directed the MVA Fund to provide the Botswana Public Employees Union (BOPEU) with salary details covering management Bands 1 to 4 within 14 days of a renewed request subject to confidentiality safeguards.
‘The Respondent’s failure to disclose information on pay structure covering Bands 1 to 4 constitutes bargaining in bad faith,’ ruled Kaisara.
The dispute arose during a review of the MVA Fund’s organisational structure and job evaluation exercise where BOPEU argued that it could not meaningfully participate in negotiations without access to the full salary structure including senior management pay.
BOPEU maintained that the information was essential to ensure fairness, transparency and reasonableness across the organisation.
‘The disclosure of the information will allow the union to make considerations on the impact of its submissions, determine reasonability and guard against causing any conflict or distortion of the remuneration structure,’ the union argued.
However, the MVA Fund had refused to release the information arguing that management employees fall outside the union’s bargaining unit and that their salary details were confidential.
The Fund insisted that there was ‘no specific clause in the Collective Labour Agreement that compelled the Respondent to disclose the management salary structure.’
But the court rejected this argument as it found that management salary information was directly relevant to the ongoing salary review and collective bargaining process.
‘The nature of information sought is linked to the present exercise on review of Respondent’s job evaluation and remuneration structure,’ Kaisara said.
‘The information will be crucial to gauge Respondent’s financial ability to afford the union’s wage proposals,’ the judge added.
The court emphasised that disclosure of relevant information is a fundamental part of negotiating in good faith.
‘Disclosure of information is a critical component of bargaining in good faith. Employers are under a duty to disclose relevant information to enable effective collective bargaining,’ the judgment stated.
The court further found that withholding the information would harm the union’s ability to negotiate effectively.
‘In the absence of the information, the union will be constrained to carry out a more effective and meaningful bargaining,’ Kaisara said.
The judge also dismissed concerns that disclosure would violate management privacy, noting that the information related to salary bands and pay structures rather than personal employee data.
‘It is rather information on the identified management structure mostly on salary bands and recommended pay. Hence, no substantial harm is likely to be occasioned by its disclosure,’ the court ruled.
However, the court ordered that safeguards be put in place to protect confidentiality, including limiting access to specific union officials and requiring discretion.
Despite the ruling, the legal battle is far from over.
The MVA Fund has since filed an appeal with the Court of Appeal in Gaborone, arguing that the Industrial Court erred in law and fact.
In its appeal papers, the Fund argued that management employees ‘do not form part of the bargaining unit’ and that their consent was not obtained before ordering disclosure of their salary information.