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Marius Scheepers & Company Attorneys |
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CODE OF GOOD PRACTICE ON PICKETING(General Notice 765
in Government Gazette 18887 of 15 May 1998) Notice is hereby
given in terms of section 203 (2) of the Labour Relations Act, 1995 (Act
66 of 1995), that the National Economic Development and Labour Council has
issued under section 203 (1) of that Act a code of good practice on
picketing as set out in the Schedule. ScheduleItalicised words
and phrases bear the same meaning as accorded to them by section 213 of
the Labour Relations Act, 1995. 1 Introduction (1) This code of good practice is intended to provide practical guidance
on picketing in support of any protected strike or in opposition to any
lock-out. It is intended to be a guide to those who may be contemplating,
organising or taking part in a picket, and for those who as employers or
employees or members of the general public may be affected by it. (2) 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,
1995 (Act 66 of 1995) (‘the Act’), seeks to give effect to this right
in respect of a picket in support of a protected strike or a lock-out (3) This code does not impose any legal obligations and the failure to
observe it does not by itself render anyone liable in any proceedings. But
section 69 (5) (b) of the Act provides that the Commission must take
account of this code of good practice when it establishes picketing rules. (4) Any person interpreting or applying the Act in respect of any picket
must take this code of good practice into account. This is the effect of
section 203 of the Act. This applies to the Commission, Labour Court, the
Labour Appeal Court and the South African Police Services. (5) This code 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 the Act. That
section has four elements: (a)
The picket must be authorised by a registered trade union. (b)
Only members and supporters of the trade union may participate in
the picket. (c)
The purpose of the picket must be to peacefully demonstrate in
support of any protected strike or in opposition to any lock-out. (d)
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. (6) If the picket complies with these four elements then the ordinary
laws regulating the right of assembly do not apply. These laws include the
common law, municipal by-laws and the Regulation of Gatherings Act, 1993
(Act 205 of 1993). (7) A picket with purposes other than to demonstrate in support of a
protected strike or a lockout is not protected by the Act. The lawfulness
of that picket or demonstration will depend on compliance with the
ordinary laws. 2 Authorisation (1) A picket contemplated in section 69 of the Act must be authorised by
a registered trade union. The authorisation must be made in accordance
with the trade union’s constitution. That means that there must either
be a resolution authorising the picket or a resolution permitting a trade
union official to authorise a picket in terms of section 69 (1). The
actual authorisation should be formal and in writing. A copy of the
resolution and, if necessary, the formal authorisation ought to be served
on the employer before the commencement of the picket. (2) The authorisation applies only to its members and its supporters. 3 Purpose of the picket (1) The purpose of the 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. The nature of that support can
vary. It may be to encourage employees not to work during the strike or
lock-out. It may be to dissuade replacement labour from working. It may
also be to persuade members of the public or other employers and their
employees not to do business with the employer. (2) The strike must be a protected strike. In normal cases, employees
picket at their own place of work in support of their strike against their
own employer. Cases do arise, however, where employees picket at their own
place of work in support of a strike between another employer and its
employees. This is what is contemplated in section 66 as a ‘secondary
strike’. In this case, in
order to be protected, the picket must further satisfy the requirements of
a lawful secondary strike in terms of section 66 of the Act. This is
because the definition of ‘secondary strike’ in section 66 includes
‘conduct in contemplation or furtherance of a strike’. A picket is
‘conduct in contemplation or furtherance of a strike’. (3) The requirements for a protected secondary strike are: (a)
The strike that is to be supported by the secondary strike must
itself be a protected strike; (b)
the employer of the employees taking part in the secondary strike
must have received written notice of the proposed picket at least seven
days prior to its commencement; and (c)
the nature and extent of the secondary strike must be reasonable in
relation to the possible direct or indirect affect that the secondary
strike may have on the business of the primary employer. (4)
If a picket is in support of an unprotected strike, the picket is
not protected by section 69 of the Act. (5)
Pickets may be held in opposition to a lock-out. Section 69 (1)
does not distinguish between protected and unprotected lock-outs. This
means that a picket may be authorised and held in opposition to a
protected or an unprotected lock-out. 4 Picketing rules (1) The registered trade union and employer should seek to agree to
picketing rules before the commencement of the strike or picket. (2) A collective agreement may contain picketing rules. When an agreement
is negotiated the following factors should be considered: (a)
The nature of the authorisation and its service upon the employer; (b)
the notice of the commencement of the picket, including the place,
time and the extent of the picket; (c)
the nature of the conduct in the picket; (d)
the number of picketers and their location; (e)
the modes of communication between marshals and the employer and
any other relevant parties; (f)
access to the employer’s premises for purposes other than
picketing, e.g. access to toilets, the use of telephones, etc; (g)
the conduct of the picketers on the employer’s premises; and (h)
this code of good practice. (3) The factors listed in subparagraph (2) apply to the determination of
picketing rules by a commissioner. 5 Pickets on the employer’s premises (1) A picket may take place on the employer’s premises with the
permission of the employer. The
permission may not be unreasonably withheld.
In order to determine whether the decision of the employer to
withhold the permission is reasonable, the factors that should be taken
into account include- (a)
the nature of the workplace, e.g. a shop, a factory, a mine, etc; (b)
the particular situation of the workplace, e.g. distance from place
to which public has access, living accommodation situated on employer’s
premises, etc; (c)
the number of employees taking part in the picket inside the
employer’s premises; (d)
the areas designated for the picket; (e)
time and duration of the picket; (f)
the proposed movement of persons participating in the picket; (g)
the proposals by the trade union to exercise control over the
picket; (h)
the conduct of the picketers. 6 Conduct
In the picket (1) The registered trade union must appoint
a convenor to oversee the picket. The convenor must be a member or an
official of the trade union. That person should have, at all times, a copy
of section 69 of the Act, a copy of these guidelines, any collective
agreement or rules regulating pickets and a copy of the resolution and
formal authorisation of the picket by the registered trade union. These
documents are important for the purposes of persuading the persons
participating in the picket to comply with the law. These documents may
also be important to establish the lawfulness and the protected nature of
the picket to the employer, the public and in particular to the police. (2) The convenor must notify the employer,
the responsible person appointed in terms of section 2 (4) (a) of the
Regulation of Gatherings Act, 1993, and the police of the intended picket.
The notice should contain- (a)
notification that the picket is in compliance with section 69 of
the Act; (b)
the name, address and telephone number of the trade union and the
convenor; (c)
details of the picket, including the details of the employer being
picketed, the date of the commencement of the picket, the location of the
picket, etc (3) The employer must, on receipt of the notification, provide he
convenor with the name, address and telephone number of the person
appointed by the employer to represent it in any dealings arising from the
picket. (4) The registered trade union should appoint picket marshals to monitor
the picket, and they should have the telephone numbers of the convenor,
the trade union office and any persons appointed to oversee the picket, in
the absence of the convenor. The marshals should wear arm bands to
identify themselves as marshals. The trade union should instruct the
marshals on the law, any agreed picketing rules or, where no agreed rules
exist, any picketing rules that have been stipulated by the CCMA, this
code of good practice and the steps to be taken to ensure that the picket
is conducted peacefully. (5) Although
the picket may be held in any place to which the public has access, the
picket may not interfere with the constitutional rights of other persons. (6) The picketers must conduct themselves in a peaceful and lawful manner
and must be unarmed. They may- (a)
carry placards; (b)
chant slogans; and (c)
sing and dance. (7) Picketers
may not- (a)
physically prevent members of the public, including customers,
other employees and service providers, from gaining access to or leaving
the employer’s premises; (b)
commit any action which may be unlawful, including but not limited
to any action which is, or may be perceived to be violent. 7 Role of the police (1) It is not the function of the police to take any view of the merits
of the dispute giving rise to a strike or a lock-out. They have a general
duty to uphold the law and may take reasonable measures to keep the peace,
whether on the picket line or elsewhere. (2) The police have no responsibility for
enforcing the Act. An employer cannot require the police to help in
identifying picketers against whom it wishes to seek an order from the
Labour Court. Nor is it the job of the police to enforce the terms of an
order of the Labour Court. Enforcement of an order on the application of
an employer is a matter for the courts and its officers, although the
police may assist officers of the court when there is a breach of the
peace. (3) The police have the responsibility to
enforce the criminal law. They may arrest picketers for participation in
violent conduct or attending a picket armed with dangerous weapons. They
may take steps to protect the public if they are of the view that the
picket is not peaceful and is likely to lead to violence. 8 General
rights, obligations and immunity (1) A person who takes part in a picket protected in terms of the 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. (2) 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 the Act. |
