Section 69 of the LRA deals with right of strikers and their supporters, to picket, which is further dealt with in an LRA Code of Good Practice on Picketing.
This right to picket can be traced back to section 17 of the constitution, which provides that everyone (strikers and their supporters) has the right to assemble, demonstrate, picket and present petitions in a peaceful, unarmed manner. The purpose of a picket is to “peacefully encourage non-striking employees and members of the public to oppose a lockout to support strikers involved in a protected strike, to encourage employees not to work during the strike or lockout, to dissuade replacement labour from working, and to persuade members of the public or other employers and their employees not to do business with the employer”. The LRA gives effect to this right as a legitimate right associated with strike action. Importantly, this right to picket is limited to protected industrial action (i.e a protected strike or protected lock-out), and does not apply in cases of, example, unprotected (so called “wildcat”) strike action.
Pickets may only be authorised by a registered trade union, and may only be held in a public place “but outside the premises of an employer”, or with the permission of the employer, inside the employer’s premises. Importantly, the employer may not unreasonably withhold permission for a picket on its premises. Section 69 of the LRA also makes provision for the trade union or employer to approach the CCMA to facilitate picketing rules, to establish picketing rules, and to provide for picketing on the employer’s premises if the commission is of the view that the employer’s refusal to permit on site picketing is unreasonable. Procedural or recognition agreements frequently include picketing rules for implementation during protected industrial action, as it is invariable difficult to reach agreement on picketing rules during the normally tension-filled pre-industrial action period. Picketing rules would typically be drafted according to the following structure:
• The purpose of the picket
• Who and how many may picket
• Designated picketing area
• Picketing facilities
• The conduct of the picketers
• Control of picketers and picket marshals
• Picket disputes
Conduct during a picket can become troublesome. The LRA Code of Good Practice on Picketing states, at section 6, that “picketers must conduct themselves in a peaceful and lawful manner, and must be unarmed”. In addition picketers “may not physically prevent members of the public, including customers, other employees and service providers, from gaining access to or leaving the employer’s premises”. Insofar as they do, they would be subject to the employer’s disciplinary procedure and could render themselves liable for dismissal given the gravity of the picketing-related misconduct. Finally, picketing rules should also include a clear prohibition of violent and threatening conduct.
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