Picketing and the right to gather and peacefully demonstrate is a constitutional right and provision for same are made in the Labour Relations Act. Chapter 2 of the Constitution, which is the Bill of Rights, with specific reference to section 17 deals with the right to assemble and demonstrate. Section 69 of the Labour Relations Act gives embodiment to the right by setting out the manner in which employees may effect their right to demonstrate in response to their particular matter of mutual interest.
Section 69 states:
(1) A registered trade union may authorise a picket by its members and supporters for the purposes of peacefully demonstrating-
(a) in support of any protected strike; or
(b) in opposition to any lockout.
(2) Despite any law regulating the right of assembly, a picket authorised in terms of subsection (1), may be held-
(a) in any place to which the public has access but outside the premises of an employer; or
(b) with the permission of the employer, inside the employer’s premises.
(3) The permission referred to in subsection (2)(b) may not be unreasonably withheld.
(4) If requested to do so by the registered trade union or the employer, the Commission 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 lock-out.
(5) If there is no agreement, the Commission must establish picketing rules, and in doing so must take account of-
(a) the particular circumstances of the workplace or other premises where it is intended that the right to picket is to be exercised; and
(b) any relevant code of good practice.
(6) The rules established by the Commission may provide for picketing by employees on their employer’s premises if the Commission is satisfied that the employer’s permission has been unreasonably withheld.
(7) The provisions of section 67, read with the changes required by the context, apply to the call for, organisation of, or participation in a picket that complies with the provisions of this section.
(8) Any party to a dispute about any of the following issues may refer the dispute in writing to the Commission-
(a) an allegation that the effective use of the right to picket is being undermined;
(b) an alleged material contravention of subsection (1) or (2);
(c) an alleged material breach of an agreement concluded in terms of subsection (4); or
(d) an alleged material breach of a rule established in terms of subsection (5).
(9) The party who refers the dispute to the Commission must satisfy it that a copy of the referral has been served on all the other parties to the dispute.
(10) The Commission must attempt to resolve the dispute through conciliation.
(11) If the dispute remains unresolved, any party to the dispute may refer it to the Labour Court for adjudication.
Further the Code of Good Practice, even though not legally binding, is a guideline that should be closely followed as a requirement of the Act (section 69 (5)(b) of LRA).
With our country’s fragile economic climate, coupled with current unprecedented drought and social economic issues, which have led to massive service delivery and wild cat strikes. Wild cat or unprotected strikes are not protected under the aforementioned and it would be prudent to deal with them separately.
As an employer, is it important to remember that in terms of section 69 of the Labour Relations Act, employers organisations and trade unions can negotiate picketing rules. This is vitality important as an employer can use the picketing rules as an instrument to ensure s/he has the ability to continue trading with minimal interference from the picketing (strike). The Act allows for the matter to be referred to the CCMA and for the CCMA to facilitate such a negotiation. If no consensus has been reached, a Commissioner may make a ruling in respect of the picketing rules.
Consolidated Employers Organisation has helped and continues to assist members in ensuring that when they face a protected or unprotected strike, that all of their rights as employers are protected. By way of representation and ongoing practical regional and national based advice, employers whom are members of our organisation are armed with the correct arsenal to ensure an employer favoured outcome to strike action. We encourage our members to familiarize themselves with the picketing rules, such that, should the need arise, they will be well versed in this area of labour relations.
Article by: Adrian Moodley
CEO Dispute Resolution Official – Durban