The right to picket can be traced back to section 17 of the Constitution of South Africa, 1996, which provides that everybody (strikers and their supporters) has the right to collect, demonstrate, picket and present petitions in a non-violent, unarmed manner. The purpose of a picket is to “peacefully encourage non-striking employees and members of the public to oppose a lock-out or to support strikers involved in a protected strike, to encourage employees not to work during the strike or lock-out, to discourage replacement labour from working, and to convince members of the public or other employers and their employees not to do business with the employer”.
Section 69 of the Labour Relations Act (LRA) pertains to picketing rules. However, a major stumbling block that employers faced, particularly in the past, was that a protected strike may have been authorised by the CCMA without the establishment of defined picketing rules. The practical and legal anomaly was that employees were permitted to commence and participate in a protected strike, but the establishment of defined picketing rules would only be introduced at a much later stage, and after much damage and destruction had already ensued.
The proposed amendments to the LRA envisage that the issue of picketing rules would be addressed during the conciliation process of the wage negotiation and that employers would not be in peril after the conciliation process has been finalised.
Item 5(1): A picket may take place on the employer’s premises with the permission of the employer. Such permission may not be unreasonably withheld. The following factors should be taken into consideration when determining whether withholding permission is reasonable:
Conduct during a picket can become troublesome. In terms of Items 6(6) and (7) of the said Code-
6) the picketers must conduct themselves in a peaceful, unarmed and lawful manner. They may–
7) the picketers may not–
We at SERR Synergy assist employers with the internal and external wage negotiation process, which includes the establishment of detailed and precise picketing rules. We further provide employers with guidance during the course of a strike and the disciplinary steps that can be taken against employees who commit acts of misconduct in contravention of established picketing rules.
About the Author: Jared Francis joined SERR Synergy in October 2016, and currently holds the title of KZN Labour Manager. He is an admitted attorney who has practised in KZN and Gauteng. He holds an LLB degree, a Post-Graduate Diploma in Industrial Relations and a Post-Graduate Certificate in Forensic Investigation from the University of KwaZulu-Natal. He also holds Post-Graduate Certificates in Advanced Labour Law, Corporate Law, Advanced Human Resource Management and Health and Safety from UNISA and has more than 10 years’ experience in the legal and industrial relations fields respectively.
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