Section 17 of the Constitution recognises the right to assemble, to demonstrate, to picket and to present petitions. This constitutional right can only be exercised peacefully and unarmed. Section 69 of the Labour Relations Act, No. 66 of 1995, seeks to give effect to this right in respect of a picket in support of a protected strike or a lock-out.
The code of Good Practice on Picketing does not apply to all pickets and demonstrations in which employees and trade unions may engage. It applies only to pickets held in terms of section 69 of this Act. That section has four elements:
The picket must be authorised by a registered trade union;
Only members and supporters of the trade union may participate in the picket;
The purpose of the picket must be to peacefully demonstrate in support of any protected strike or in opposition to any lock-out;
The picket may only be held in a public place outside the premises of the employer or, with the permission of the employer, inside its premises. The permission of the employer is subject to overrule by the CCMA, if such permission is unreasonably denied.
A picket may take place on the employer's premises with the permission of the employer and such permission may not be unreasonably withheld. In order to determine whether the decision of the employer to withhold the permission is reasonable, which would be determined by the appointed Commissioner, the factors considered would entail-
the nature of the workplace e.g. a shop, a factory, a mine etc;
the particular situation of the workplace e.g. distance from place to which public has access, living accommodation situated on employer premises, etc;
the number of employees taking part in the picket inside the employer's premises;
the areas designated for the picket;
time and duration of the picket;
the proposed movement of persons participating in the picket;
the proposals by the trade union to exercise control over the picket;
the conduct of the picketers.
The registered trade union and employer should seek to agree to picketing rules before the commencement of the strike or picket. A collective agreement may contain picketing rules. In attempting to determine picketing rules, the following should be considered:
the nature of the authorisation and its service upon the employer;
the notice of the commencement of the picket including the place, time and the extent of the picket;
the nature of the conduct in the picket;
the number of picketers and their location;
the modes of communication between marshals and employers and any other relevant parties;
access to the employer’s premises for purposes other than picketing e.g. access to toilets, the use of telephones, etc;
the conduct of the pickets on the employer's premises; and
this code of good practice.
In the absence of a collective agreement or predetermined picketing rules, the parties to the dispute are guided by the amendments to the Labour Relations Amendment, specifically with regards to section 69 of the Act which altered the approach when dealing with picketing. Commissioners of the CCMA and or Bargaining Council Panellists who are appointed to facilitate a dispute pertaining to a strike/lockout are required to determine the rules pertaining to picketing. The appointed Commissioner or Bargaining Council Panellist are tasked with attempting to reach a picketing agreement between the parties involved, during the conciliation process. The parties to the potential picketing action are therefore obliged to agree on picketing rules, prior to the commencement of the proposed industrial action. In the absence of such agreement between the parties, the appointed conciliating Commissioner is required to determine picketing rules based off the standard picketing rules which are prescribed under Section 208 of the Code of Good Practice as well as in consideration of any submissions made by the parties to the dispute. The Appointed Commissioner is required to issue the picketing rules to the parties, in addition to the certificate of non-resolution should the matter not be settled.
The picketers must conduct themselves in a peaceful, unarmed and lawful manner. They may-
chant slogans; and
sing and dance.
Picketers may not -
physically prevent members of the public, including customers, other employees and service providers, from gaining access to or leaving the employers premises;
commit any action which may be unlawful, including but not limited to any action which is, or may be perceived to be violent.
A person who takes part in a picket protected in terms of this Act does not commit a delict or a breach of contract. This means that the employer may not sue a person or a union for damages caused by a picket.
The employer may not take disciplinary action against an employee for participating in a lawful picket. Where the employee's conduct during a picket constitutes misconduct the employer may take disciplinary action in accordance with the provisions of this Act.
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