In the recent unreported decision of Verulam Saw Mills (Pty) Ltd v AMCU and Others J1580/15 dated 20thOctober 2015, the court confirmed that a trade union is obliged to take all reasonable steps to ensure that its members comply with a picketing agreement.

The court said:

"to my mind, this is the fundamentally important obligation.  Not only are picketing rules there to attempt to ensure the safety and security of persons and the employer's workplace, but if they are not obeyed and violence ensues resulting in non strikers also withholding their labour, the strikers gain an illegitimate advantage in the power play of industrial action, placing illegitimate pressure on employers to settle.  Typically one or two things then happen – either the employer gives in to the pressure and settles at a rate above that reflected by the forces of demand and supply (which equates to a form of economic duress) or the employer digs in its heels and refuses to negotiate or settle while the violence is ongoing (which inevitably causes strikes to last longer than they should).  Either way, the ordinary system of bargaining that they LRA aspires to it undermined – and ultimately, economic activity and job security is threatened".

If a union receives evidence of serious unlawful activity on the part of strikers, it is obliged to investigate immediately.  The failure to do so represents a failure on part of the union to take all reasonable steps to comply with the picketing rules and undermine the entire purpose of such rules.

Employers should take time when drafting picketing rules that are appropriate to their circumstances. Both practical and legal issues should be carefully considered.