Employment law update – Suspension of picketing rules

July 1st, 2021
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In Clover SA (Pty) Ltd v General Industries Workers Union of South Africa and Others [2021] 4 BLLR 419 (LC), the General Industries Workers Union of South Africa (GIWUSA) and its members embarked on a protected strike in pursuance of wage demands. As a result of unlawful conduct allegedly perpetrated by GIWUSA’S members during the course of the protected strike, Clover SA (Pty) Ltd (the Company) approached the Labour Court (LC) for an interdict.

The LC ordered, among other things, that GIWUSA and its members –

  • must comply with the picketing rules established between GIWUSA and the Company;
  • were interdicted from interfering with road traffic and from barricading entrance points of the Company’s premises; and
  • were interdicted from committing any violent and unlawful conduct in pursuit of their wage demands. In this regard, GIWUSA was ordered to assist the Company with identifying those members who breach the provisions of the court order.

Thereafter, the Company again approached the LC for various orders on an urgent basis. After the court noted that these orders amounted to a duplication of the orders previously obtained by the Company, the Company persisted with one prayer only, which was for an order suspending the picketing rules for the duration of the protected strike.

The picketing rules applicable to the parties were set by the Commission for Conciliation, Mediation and Arbitration (CCMA) and were for purposes of regulating any picketing that would take place in relation to mutual interest disputes. In the event of non-compliance, the picketing rules made provision for a court to suspend the picket in accordance with s 69(12) of the Labour Relations Act 66 of 1995 (the LRA).

The court noted that the purpose of s 69 of the LRA, read with the Code of Good Practice Relating to Picketing Rules, is to regulate protest action and demonstrations during protected strike action, and to ensure that it is lawful and peaceful. Unlawful conduct, violence, and harassment are inimical to the principle of peaceful demonstration. However, the rule of the mob during strikes has sadly become the ‘new normal’ in industrial relations, and often spreads to neighbouring communities. When unlawful conduct replaces peaceful demonstration and the picketing rules are ignored, s 69(12) enjoins the court to intervene and grant urgent relief either by suspending the picketing rules or by varying them.

In determining whether a suspension or variation of picketing rules is justified, the court is required to take the circumstances of each case into account. This involves a balancing act between the employees’ constitutional rights to, inter alia, assemble and strike and the employer’s rights to conduct its affairs without hindrance and in the interests of its employees and clients. Thus, an order suspending the operation of picketing rules should not be lightly granted and the onus rests on the employer to demonstrate that such is necessary.

In the present case, the Company contended that there had been non-compliance with the provisions of the interdict granted by the LC. The Company had cited various examples where its employees had been attacked while travelling to and from work or were attacked while at home. The bulk of the incidents on which the Company relied had, however, taken place some distance away from its premises and outside the demarcated picketing areas. Most of the incidents in fact took place in the communities where the employees resided and had been perpetrated by unknown persons. Although the Company’s concern for the safety of its non-striking employees was warranted, the court found that this was not enough to justify suspending the employees’ right to picket peacefully. On the contrary, a suspension of the picketing rules could exacerbate the situation.

The court found that in terms of the previous LC order, GIWUSA had agreed to assist with the identification of persons who contravened the picketing rules. All that the Company was required to do was to call on GIWUSA to identify the individuals and to take action against them. The Company did not do so. The alternative option available to the Company was to approach the court by way of contempt of court proceedings. The prospects of a prison sentence or financial penalty may have been more effective than suspending the picketing rules and would have formed an adequate alternative remedy to the present application.

The court held that as picketing rules can only be applicable between an employer and its employees, what happens outside of the framework of those rules and the workplace is a matter for the criminal justice system. In the present circumstances, there was nothing to indicate that the picketing rules were inadequate. The Company had, accordingly, failed to make out a case for suspension of the picketing rules.

The application was dismissed.

Procedure governing protest action

In Congress of South African Trade Unions and Another v Business Unity South Africa and Another [2021] 4 BLLR 343 (LAC), Congress of South African Trade Unions (COSATU), a trade union federation, gave notice to the National Economic Development and Labour Council (NEDLAC) of their intention to embark on protest action in accordance with s 77 of the Labour Relations Act 66 of 1995 (LRA). The protest action was in support of demands that private sector employers be prohibited from retrenching workers and be compelled to create a certain number of jobs per year.

About 15 months later, COSATU issued a further notice to NEDLAC that it intended embarking on the protest action indicated in the earlier notice and confirmed this in a further notice issued a month later. Seven months after that, COSATU issued yet another notice announcing that the protest action would take place in one month’s time, which would focus mainly on the financial sector.

Thereafter, Business Unity South Africa (BUSA) approached the Labour Court (LC) for an order interdicting the planned protest action on the basis that COSATU had failed to comply with the provisions of s 77 of the LRA. Section 77 regulates protest action and provides that every employee who is not engaged in an essential service or a maintenance service has the right to take part in protest action if –

‘(a) the protest action has been called by a registered trade union or federation of trade unions;

(b) the registered trade union or federation of trade unions has served notice on NEDLAC stating –

(i) the reasons for … ; and

(ii) the nature of the protest action;

(c) the matter giving rise to the intended protest action has been considered by NEDLAC or any other appropriate forum in which the parties are able to participate in order to resolve the matter; and

(d) at least 14 days before the commencement of the protest action, the registered trade union or federation of trade unions has served a notice on NEDLAC of its intention to proceed with the protest action’.

The LC found that COSATU’S notice in terms of s 77(1)(d) had been unreasonably delayed and interdicted COSATU from proceeding with the intended protest action. COSATU took the matter on appeal.

The central issue on appeal concerned the interpretation of s 77 of the LRA. The court noted that s 77 had been scrutinised more than 20 years earlier in Business SA v COSATU and Another [1997] 5 BLLR 511 (LAC). In this judgment, it was held that if protest action was permitted while the parties to NEDLAC were still considering the matter, the purpose of s 77 would be defeated.

Following this judgment, BUSA argued in the present matter that s 77 envisaged a continuum of conduct, namely that protest action may only follow upon a series of steps to be taken in sequence shortly after each other. The timing of the protest action could not be left open-ended and due regard must be had to the LRA’s object of resolving disputes timeously and expeditiously.

The court held that the approach to statutory interpretation means that s 77 needs to be viewed and understood through the prism of constitutional rights which are implicated by that section. Section 77 implicates three constitutional rights, namely –

  • the right of freedom of expression;
  • the right to assemble, demonstrate and picket; as well as
  • various labour rights protected by the LRA, particularly the right to fair labour practices and to participate in the activities of trade unions.

Section 77 must be viewed through the prism of these rights to give meaning to them.

Having regard to case law, the court found that the principle of expeditious resolution of labour disputes did not apply to strikes nor protest action as contended by BUSA. Once lawfully acquired, the right to strike does not become stale. Similarly, s 77 does not expressly set any time limits. Unlike labour disputes between parties to an employment relationship, the nature of protest action as envisaged by s 77, in this case a complaint concerning government’s economic policy, is not one that can be resolved as expeditiously as a defined labour dispute.

The court further found that the architecture of s 77 was instructive. It requires an initial notice in which the reasons for, and the nature of, the protest action is set out. Before embarking on protest action, it is incumbent for the matter to be considered by NEDLAC. Once there has been compliance with these requirements, all that s 77 requires is that at least 14 days before the commencement of the protest action, a further notice be served on NEDLAC.

The various notices issued by COSATU had informed BUSA that pressure would be applied, when it would be applied, the nature of the pressure and its duration. Once dispute resolution had failed, all COSATU was required to do was inform NEDLAC when the protest action would occur, which it had done 14 days before the planned protest action. The process would be completed only once the protest action had occurred and would have to be repeated in its entirety if COSATU sought to engage in further protest action.

In the circumstances, there was no justification for the LC’s finding that the notice in terms of s 77(1)(d) had to be issued by COSATU within a reasonable time.

The appeal was upheld with costs.

Nadine Mather BA LLB (cum laude) (Rhodes) is a legal practitioner at Bowmans in Johannesburg.

This article was first published in De Rebus in 2021 (July) DR 37.

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