Amongst the various CCMA processes, the establishment and determination of picketing rules is an important process that employers often do not know enough about. When the term “picketing” is brought up, it is associated with strikes and lockouts – but what is picketing, and why is it important to regulate with rules?
Picketing is used to exert pressure on an employer by encouraging other people not to do work for, or business with, that employer. This usually occurs when collective bargaining reaches a deadlock, whereby a strike or lockout may occur, both of which are often accompanied by picketing.
During a legal strike or lockout, the Code of Good Practice does allow employees to picket where they normally perform the work that is an integral and substantial part of the employer’s operation, and which is under the control and direction of the employer. Picketing must, however, be peaceful and cannot be used to forcibly prevent people from entering an employer’s premises.
Prior to the amendment of Section 69 of the Labour Relations Act, there was much uncertainty created amongst employers due to the CCMA being able to issue a strike certificate, without any establishment or determination of picketing rules. The amendments of Section 69, however, sought to define and establish certain parameters within which picketing may take place.
Section 69 now provides that the CCMA must conciliate the dispute to determine picketing rules at the same time as issuing the certificate allowing for a protected strike or lockout. Section 69(5) further 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 27 of the Code of Good Practice.
Practically, when parties reach a deadlock in a mutual interest, or unilateral changes dispute referred to the CCMA, the parties will have to reach a written agreement on the picketing rules.
Picketing rules in terms of the Code of Good Practice does give the parties, to a dispute, certain guidelines on what is required when establishing and determining an agreement in terms of picketing rules. Namely:
- The number of employees envisaged to participate in the picket;
- The areas designated for the picket;
- The time and duration of the picket;
- The proposals by the trade union to exercise control over the picket;
- The conduct of the picketers;
- That the trade union should identify persons to communicate with and provide their contact details;
- The contact details of the union representatives should be forwarded to the conciliator or facilitator to enable the latter to re-institute negotiations during the strike/lockout;
- The employer should request the SAPS to appoint a police officer to liaise with; and
- If private security is present, the contact number of a representative of the latter should be provided to the trade union, conciliator and the SAPS.
It is important that this agreement also includes relevant clauses to indicate that the picketers must conduct themselves in a peaceful, unarmed, and lawful manner; and further includes what actions/conduct they may and may not commit. For example, this may include that picketers may carry placards, chant or sing and dance, but that they may not physically prevent customers/clients and other employees from entering/exiting the employer’s premises.
Should employers be dealing with a mutual interest dispute and foresee that a deadlock will be reached that could potentially lead to a strike or lockout – contact CEO as soon as possible so that we may assist and advise you in dealing with the matter effectively and efficiently.
Article by: Carl Ranger
Dispute Resolution Official – Bloemfontein