In the past, once parties reached a deadlock at the CCMA in terms of a section 64 dispute, a certificate to go on strike was issued. Either party to the dispute would have to refer a further dispute to the CCMA for assistance in establishing picketing rules. This has now changed with the new amendments to the Labour Relations Act (LRA). Once a matter is set down for a section 64 dispute, picketing is also dealt with at the same time should parties reach a deadlock.
What should the employer be aware of before engaging in negotiations regarding picketing?
Picketing is a form of protest action in which strikers congregate outside a place of work. Often, this is done in an attempt to dissuade others from going into the workplace, but it can also be done to draw public attention.
In terms of section 17 of the Constitution, “it recognises the right to assemble, to demonstrate, to picket and to present petitions”. However, this constitutional right must be exercised in a peaceful manner.
A picket may take place on the employer’s premises or any other designated area agreed upon by parties. The picketers may carry placards, chant slogans and sing and dance.
Very important to note, that in terms of the LRA picketers may not:
“a) forcefully prevent or intimidate suppliers, client and customers of the employer, members of the public, employees who are not on strike and replacement workers from entering or leaving the premises of the employer;
- b) commit any unlawful action, such as intimidating, coercing, threatening or assaulting any person or causing or threatening to cause any damage to any property whether belonging to the employer or not;
- c) incite violence;
- d) wear masks; or
- e) have any dangerous weapons or objects in their possession”
The trade union must appoint convenors and marshals to monitor and keep control over the picket. During your negotiations at the CCMA, parties will agree on how many convenors and marshals will be on site. Parties can also agree on the number of striking employees that will be entitled to picket during the strike action.
Once the picketing rules have been established, parties will sign an agreement at the CCMA. Parties are to adhere to this agreement during the duration of the strike.
If parties are unable to reach an agreement, the CCMA Commissioner will hear submissions from both parties and then the Commissioner will impose picketing rules that he/she deems fit.
Article by: Claire Turner
Provincial Manager – Durban