Whilst the Labour Relations Act, No 66 of 1995 (LRA) regulates industrial action, there is an absence of strict regulation as to conduct during a strike.
In terms of the LRA, a registered union may authorise a picket for its members and supporters to peacefully demonstrate in support of a protected strike or in opposition to a lock out imposed by an employer.
Currently, parties may establish picketing rules which regulate conduct during a particular strike or lock-out. If there are no picketing rules in place, the bargaining council or CCMA commissioner must either attempt to reach agreement on picketing rules or impose picketing rules, but only if approached by a party to do so. It is rarely the case that employers have the opportunity to approach the CCMA to secure an agreement on picketing rules before a union and its members embark upon a strike.
There is now finally a step in the right direction with the introduction of the Labour Relations Amendment Bill which was introduced by Parliament on 24 November 2017.
It is significant to note that the amendments seek to require a Commissioner to determine picketing rules in circumstances where the commissioner could not secure an agreement between the parties on picketing rules during conciliation or where there is no collective agreement regulating picketing. In essence, in terms of the amendments, a picket is prohibited unless there are picketing rules. Any certificate of outcome reflecting non-resolution of the dispute and any consequent notice to strike will therefore be invalid.
The amendments will provide longevity to the picketing rules as parties will not be required to reach agreement on new picketing rules for each instance of a strike or a lock-out. The picketing rules will remain in place between the parties for each subsequent instance of industrial action. If the parties are unable to reach agreement on the picketing rules, then the Commissioner must determine the picketing rules in line with any applicable code of good practice. The draft Code of Good Practice: Collective Bargaining, Industrial Action and Picketing will provide for default picketing rules.
In terms of the amendments, the commissioner also may determine picketing rules on an urgent basis on application by a union in circumstances where the union has referred a dispute pertaining to a unilateral change to terms and conditions of employment and where the employer has failed to comply with the requirements of s64(5) of the LRA. In essence, if an employee or a union refers a dispute about a unilateral change to terms and conditions of employment, the referral will require the employer to not implement the change alternatively, if the employer has already implemented the unilateral change, require it to restore the terms and conditions of employment that applied before the change. Employers are reminded that the LRA prescribes that they are required to comply with this requirement within 48 hours of service of the referral upon the employer.
The focus of the amendments is to ensure that unions take responsibility for pickets and that the conduct during the picket remains lawful and importantly does not infringe on the constitutional rights of others, which include the rights to freedom of association, freedom and security of person and fair labour practices. It will be important for employers to ensure that they participate in the process of reaching agreement on the picketing rules which will seek to protect its rights and the rights of all its employees during all further industrial action.
These amendments have not been promulgated.