The previous era of strikes and picketing was earmarked by serious disruption of businesses and chaos as a result of unregulated picketing by striking employees due to a lack of regulation.
Government has now amended the Labour Relations Act (LRA), issued a new Code of Good Practice on collective bargaining, industrial action and picketing and regulations, which will hopefully regulate these issues more effectively in order to limit the severe disruption and chaos which ensued during strikes and picketing in the past. The amendments to the LRA and the Regulations came into effect on 1 January 2019. The Code of Good Practice was issued on 19 December 2018 and was effective from that date.
Prior the new Code and Regulations, a union and its’ members were allowed to commence with a strike at any time after their 48 hours’ notice of intention to strike has expired. This meant that they could wait for long periods before the actual strike could commence. They therefore waited to commence with their strike at a time it was least expected by the employer. In some cases, they waited for as long as 19 months. By that time the employer was brought under the impression that the strike will never happen and that the employees abandoned their right to strike. They were then also allowed to picket without picketing rules in place and agreed to. These unexpected strikes and chaotic picketing caused severe disruption and often led to damage and criminal activities.
The new Code and Regulations now prohibits picketing if picketing rules are not yet in place. If a union or employees intend to embark on strike action, they must give notice of their intention to strike and if they don’t strike immediately after the 48 hours’ notice has expired, they must give notice again. If they wait too long before they commence with the strike, it may be assumed that they have abandoned their right to strike.
The effect of these new rules will avoid that the union can delay the strike and obtain an unfair advantage to cause unnecessary disruption and chaos during unregulated picketing.
This is how it will work in future:
The Strike:
The union must refer a dispute to the CCMA. Once the dispute has been referred, the CCMA must conciliate the dispute within 30 days of the date of the referral. The CCMA will notify the parties to the dispute to attend a conciliation process. If the dispute is not resolved the Commissioner will issue a certificate, declaring that the dispute is unresolved. This certificate will authorize the union to strike and the employer to lock employees out. The union must within 48 hours of the issuing of the certificate, give notice of their intention to strike. They may not commence with the strike before a period of 48 hours has expired.
Picketing:
During the period awaiting the conciliation, the union (if they intend to authorize picketing), must approach the employer and negotiate a picketing rule agreement and attempt to conclude such an agreement. If the union and the employer fail to conclude an agreement, the Commissioner must, during the conciliation of the dispute and if not resolved, attempt to conclude a picketing agreement between the parties. If this fails, the Commissioner must set picketing rules before he issues the certificate declaring the dispute not resolved.
The union must authorize picketing in accordance with its constitution. This must be in writing and be served on the employer. Only members of the union may take part in the picketing. The picketing must take place in terms of the rules set in the agreement or those set down by the Commissioner. Picketing without authorization by the union or without an agreement between the employer and the union or without rules set by the Commissioner, is prohibited and will constitute misconduct.
These “new” regulations are not yet well known and many employees are not aware of the fact that they may not picket if the above requirements have not been complied with. In order to avoid picketing, not in compliance with these rules and procedures, and to enable the employer to take disciplinary action against employees, it is advised that employers notify employees of these new rules so that they can’t claim that they were not aware of the new rules when being charged with misconduct in this sense.