What is it?
A picket is a demonstration designed to pressure an employer by encouraging the general public to the reason for the strike and to mobilise support for the strikers’ cause.
Where does the right come from?
The right to picket derives from Section 17 of the Constitution. This constitutional right can only be exercised peacefully. Section 69 of the Labour Relations Act seeks to give effect to this right in respect of a picket in support of a protected strike or a lockout. Section 69(5) provides that no picket in support of a protected strike or in opposition to a lockout may take place unless the said picketing rules have been established in terms of Section 208 of the Code of Good Practice.
The Code of Good Practice does not apply to all pickets and demonstrations in which employees and trade unions may engage. It applies only to pickets in terms of section 69 of this Act. That section has four elements:
- The picket must be authorised by a registered trade union;
- Only members and supporters of the trade union may participate in the picket;
- The purpose of the picket must be to peacefully demonstrate in support of any protected strike or in opposition to any lockout;
- The picket may only be held in a public place outside the employer’s premises or, with the permission of the employer, inside its premises. The permission of the employer is subject to overrule by the CCMA, if such permission is unreasonably denied.
How is it authorised?
The right to picket is regulated in terms of Section 69 of the Labour Relations Act. A registered trade union may authorise a picket by its members and supporters in support of a protected strike.
Section 69(1) provides:
A registered trade union may authorise a picket by its members and supporters for the purposes of peacefully demonstrating-
- in support of any protected strike; or
- in opposition to any lockout.
Purpose of the picket.
The purpose of the picket is to assemble and demonstrate support for a protected strike. To peacefully encourage non-striking employees and members of the general public to oppose a lockout or to support strikers involved in a protected strike. The nature of that support can vary from dissuading the general public to the conduct of the employer, to pressuring the employer to engage in collective bargaining.
Picketers may not physically prevent members of the public, including customers, other employees and service providers, from gaining access to or leaving the employers premises. Picketers may not commit any action which may be unlawful, including but not limited to any action which is, or may be perceived to be violent.
Picketing in support of unprotected strikes
The strike must be a protected strike. Otherwise, provisions of Section 69 of the Labour Relations Act will not apply.
Section 69(4) and (5) Provides –
- Unless there is a collective agreement binding on the trade union that regulates picketing, the commissioner conciliating the dispute must attempt to secure an agreement between the parties to the dispute on rules that should apply to any picket in relation to that strike or lockout before the expiry of the period contemplated in section 64(1)(a)(ii).
- If there is no collective agreement, or no agreement is reached in terms of subsection(4), the commissioner conciliating the dispute must determine picketing rules, in accordance with any default picketing rules prescribed by the Commission under section 208 or published in any code of good practice and in doing so must take account of-
- the particular circumstances of the workplace or other premises where it is intended that the right to picket is to be exercised;
- any relevant code of good practice; and
- any representations made by the parties to the dispute attending the conciliation meeting.
If no picketing agreement exists or the commissioner is unable to secure an agreement between the parties, the conciliating commissioner must then determine picketing rules based on standard picketing rules to be prescribed under Section 208, the code of good practice, and any representations made by the parties. Picketing rules must be issued together with any certificate of failure to settle the dispute, and factors that will be considered when determining such picketing rules include:
- the nature of the authorisation and its service upon the employer;
- the notice of the commencement of the picket, including the place, time and the extent of the picket;
- the nature of the conduct in the picket;
- the number of picketers and their location;
- the modes of communication between union marshals and employers and any other relevant parties;
- access to the employers’ premises for purposes other than picketing;
- the conduct of the pickets on the employer’s premises; and
- this code of good practice.
Article by: Wesley Lazarus
Dispute Resolution Official – George