May employees picket in support of a protected strike?
In terms of section 69 of the Labour Relations Act 66 of 1995 as amended (LRA), only a registered trade union has the right to authorise a picket (as provided for by the LRA) by its members and supporters for purposes of demonstrating peacefully:
- in support of any protected strike; or
- in opposition to any lock-out.
Where can an authorised picket be held?
An authorised picket may be held:
- in any place to which the public has access, but outside the premises of the employer; or
- inside the premises of an employer, with the permission of the employer.
An employer may not unreasonably refuse permission for lawfully striking employees to picket inside its premises.
If picketing is to take place within a shopping mall, business complex or business park in which employers share private or public premises, the conciliating Commissioner may, but only after consultation with all interested parties, determine that the picket be held within the following places and subject to such terms as the Commissioner considers reasonable. This means that where the proposed picketing site is controlled or owned by a person other than the employer, that person must be given an opportunity to make representations to the conciliating Commissioner.
Picketing rules regulate the conduct of those engaged in the picket and set out the details of where and when the picket may be held, who will be appointed to control the picket, etc.
A registered trade union may not engage in a picket unless –
- there is a collective agreement regulating picketing;
- an agreement on picketing rules is reached in the conciliation proceedings; or
- picketing rules are determined by the conciliating Commissioner in terms of section 69(5) of the LRA.
The trade union must make sure that the picket convenors and marshalls receive a copy of the picketing rules and that they understand the rules.
Direct application for picketing rules
Section 69 (6B) of the LRA provides for a registered trade union to make a direct application to the CCMA (not a bargaining council) to determine picketing rules.
Such an application may be on an urgent basis –
- where the employer has not complied with an application to restore terms and conditions of employment that the trade union alleges have been changed unilaterally (section 64(4) of the LRA); and
- where the employer has given notice of an intention to commence or has already commenced an unprotected lock-out.
A dispute about any breach of the right to picket or that the content of the picketing rules is not being followed, may be referred to the CCMA for conciliation. If the dispute remains unresolved, it may be referred to the Labour Court.