Employees cannot contract out of right to disclose salary information

By Lauren Salt, Associate, Employment, Cliffe Dekker Hofmeyr

Employees are often contractually prohibited from disclosing the details of their remuneration to any person, including colleagues. A clause to this effect is often found in employment contracts. In some instances, employers flag such a disclosure as a disciplinary offence. The rationale for such prohibition is understandable in that employers do not want to upset the employee relations climate by having the details of their employees’ salary information floating about in the workplace.

However, s78(1)(b) of the Basic Conditions of Employment Act, No 75 of 1997 (BCEA) provides that “[e]very employee has the right to discuss his or her conditions of employment with his or her fellow employees, his or her employer or any other person.” In this regard, the Labour Court recognised in Schoeman & another v Samsung Electronics SA (Pty) Ltd (1997) 18 ILJ 1098 (LC) that “[r]emuneration is always a term and condition of the employment contact.”

That established, the question begs whether an employer can require an employee to contract out of her right to discuss her conditions of employment. Section 79 of the BCEA provides the answer to this question. Section 79(2) states that “… no person may do, or threaten to do, any of the following –a) require an employee not to exercise a right conferred by this Part;b) prevent an employee from exercising a right conferred by this Part; orc) prejudice an employee because of a past, present or anticipated –i. failure or refusal to do anything that an employer may not lawfully permit or require an employee to do;ii. disclosure of information that the employee is lawfully entitled or required to give to another person; oriii. exercise of a right conferred by this Part.”

The effect of this section is that employers are precluded from (i) requiring an employee not to disclose the details of their remuneration to any person; (ii) preventing an employee from disclosing the details of their remuneration to any person; or (iii) prejudicing an employee because of a past, present or anticipated disclosure of such details.

In addition, s79(2) provides that no person may discriminate against an employee for exercising a right conferred by this Part. Section 79(3) provides further that no person may favour, or promise to favour, an employee in exchange for the employee not exercising a right conferred by this Part.

As consequence of s79, a provision in a contract of employment prohibiting an employee from exercising her right to disclose his or her remuneration will be unenforceable. Further, any disciplinary action taken against an employee for exercising such a right will, most likely, be held to be unfair. In Maneche & others v CCMA (2007) 28 ILJ 2594 (LC) at 2598 it was noted that s79 buttresses the protections provided by sections 4 and 5 of the Act. The workers’ refusal to work beyond the daily overtime limit, the court found, was “an exercise of their statutory rights, and they may not be prejudiced, whether in the form of a dismissal or otherwise, for doing so.” (emphasis own).

This section should not be seen as permitting employees to discuss the remuneration of other employees. Employers may prohibit employees from discussing or disclosing salary information of other employees. Thus, should the remuneration details of an employee come to the attention of another employee, the latter employee cannot rely s78 and 79 to avoid disciplinary action where his conduct contravenes a workplace rule.

Employers should consider whether their current workplace rules adequately address this situation.

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