The recent increase in protests and pickets in the country has spurned South African government to release a draft of new picketing rules that are now available for public comment. When looked at in combination with the amendments made to the Labour Relations Act in 2017, they may forever change the way in which trade unions embark on protected strike action.
In South Africa, the rights to join a trade union and to embark on lawful strike action are protected by the Constitution, as the Labour Relations Act requires that all protest action be done through a trade union. This also protects a worker from being dismissed for partaking in a strike – the only exception to this is misconduct on the part of the employee.
Picketing has always played a vital role in industrial action, as it allows for striking workers to exert pressure on employers to meet the demands of workers, and may also garner support from other employees and the public in the process.
In the current climate of strikes and pickets, trade unions refer a dispute of mutual interest to the Commission for Conciliation, Mediation and Arbitration (CCMA) to mediate between the employer and trade union to bring an orderly end to the disagreement.
If both parties are unable to resolve the dispute within 30 days, a certificate of non-resolution is issued – this is more commonly known as a strike certificate. After this has been issued, the trade union must notify the employer of any further strike action 48 hours before it is embarked on.
There is no current legal requirement for the rules of picketing to be agreed on before a strike is initiated. The incoming picket laws, however, may change this.
Now, picketing rules will have to be agreed on before a certificate of non-resolution is issued, and many are concerned that severe limitations will be imposed on picketing if these laws come into play.
The new rules may also mean that trade unions will have to police strikes, and includes being forced to participate in investigations into unlawful conduct against their own members. The new picket rules will then require trade unions to assist authorities to investigate members accused of misconduct.
These changes may also favour employers, as they will have a heads up on a strike before it even occurs as it must be stated in the new picketing rules. This will provide employers with ample time to hire alternative labour which may, in turn, undermine the collective power of striking workers.
Pickets will also be limited to a maximum number of workers allowed to participate, and this begs the question of whether the Constitutional rights of workers to strike and their freedom of expression will be violated.
Source: The Conversation