Non-disclosure obligations binding trade union representatives
The new provisions make an exception allowing trade secret to be disclosed to employee representatives (i.e. in particular to a trade union) in connection with the function performed by them by virtue of the law, as long as this is necessary for the proper performance of such functions.
The new provisions confirm that trade secret can be disclosed to trade union representatives. In this context, we should pay attention to a few practical issues involved in such information transfer and the non-disclosure obligations of union representatives.
First, trade secrets can only be disclosed to persons in representative functions (including in trade unions) in connection with the performance of these functions. Thus, it is not the case that rank and file union members will have access to confidential information. This means, in particular, that information constituting trade secret cannot be disclosed by trade union representatives to regular members.
Second, the information may be disclosed to employee representatives only to the extent necessary to perform these functions correctly. This is in line with the provisions of the Act on Trade Unions which obligate the employer to provide the union with information that is essential for union activities. The employer (in particular HR employee acting on behalf of the employer) can refuse to transfer information if it is not essential, invoking, in particular, trade secret protection. Therefore, it is justified to inquire every single time what exactly the union needs the given piece of information for.
Third, information may only be transferred to authorized employee representatives who perform their function pursuant to the provisions of the law. Before information is transferred, the employer is entitled to request that the union indicate how a given individual is authorized to represent it. If the union fails to indicate its representatives, the employer (in particular HR employee acting on behalf of the employer) can refuse to transfer information invoking trade secret protection.
Given that the provisions clearly allow for trade secrets to be disclosed to trade union representatives, it is vitally important that they preserve the confidentiality of such information. If there is reasonable doubt on the employer’s side as to the security of information transferred, the employer may make the transfer of information conditional on the conclusion of a non-disclosure agreement with trade union representatives.