This blog was co-authored by: Mduduzi Sibiya, Candidate Attorney
The 2019 amendments to section 69 of the Labour Relations Act, 1995 provide that no picket in support of a protected strike or in opposition to a lockout may take place in the absence of picketing rules. The picketing rules may be agreed to or determined by the CCMA. In the case of SACTWU obo members v KZN Marketing (Pty) Limited and Bheki Khumalo N.O., the Labour Court pronounced that the lawfulness of a strike is not affected by the absence of picket rules. The judgment addresses the frequent misconception that a picket and a strike are the same.
The union represented its members in wage negotiations with two different but related companies, KZN Marketing (Pty) Ltd and Orange Grove Dairy (Pty) Ltd. The wage negotiations deadlocked and a mutual interest dispute was referred against KZN Marketing. The dispute was not resolved. Picketing rules were not issued. After the CCMA issued the certificate of outcome, SACTWU gave notice to KZN Marketing that its members would commence strike action. KZN Marketing does not own premises. Instead, its employees take instructions from various sites and depots, and thereafter report to numerous retail stores.
At about the same time that the strike commenced at KZN Marketing, Orange Grove Dairy’s employees also commenced a strike. Picketing rules were not issued for the Orange Grove Dairy strike either. A number of the KZN Marketing employees picketed with the Orange Grove Dairy employees at their picketing sites. KZN Marketing believed that the strike was not protected in the absence of picketing rules being issued by the CCMA. As a result, it issued ultimatums to its employees to return to work. The employees did not comply with the ultimatums and were consequently disciplined for instigating or participating in an unprotected strike.
SACTWU represented the employees in their disciplinary hearing. It raised a preliminary point that the strike was protected and that the employer was therefore not permitted to discipline employees for participation. The point was unsuccessful and the disciplinary hearing went ahead. The chairperson found that by joining the Orange Grove picket, the employees participated in an unprotected secondary strike. The chairperson further found that because the CCMA did not issue picketing rules, the strike was not protected. Having regard to his finding that the employees were not remorseful and that their conduct caused significant financial distress to KZN Marketing, the chairperson found the employees guilty of the charge and imposed the sanction of dismissal. Curiously, he suspended the dismissal “pending the employees’ unconditional return to work on acceptance of the KZN Marketing’s terms for such return work within four weeks of their receipt of [the] decision, but not later than 16 June 2022”. Even more strangely, the chairperson also ordered that the striking employees were to be issued with final written warnings valid for 12 months.
Aggrieved by the outcome, SACTWU brought an urgent application to the Labour Court to declare (1) that the strike was protected, and (2) that the chairperson’s finding that the dismissal be suspended pending the employees’ unconditional return to work, a nullity.
In opposing the application, KZN Marketing remained of the view that the strike was unprotected because picketing rules had not been issued. SACTWU’s position was that it did not require picketing rules because it had no intention to call a picket given the nature of the employer’s business and operations. The Labour Court rejected this view given that SACTWU’s attorneys had given KZN Marketing written notice of the picket and indicated that picketing rules were expected from the CCMA. Such picketing rules were not forthcoming. Neither the union nor the employer had referred a request to establish picketing rules to the CCMA.
Having found that SACTWU did indeed call a picket, the Court considered whether the employees answered the call. The union contended that the employees only withheld their labour, but also admitted that some of the KZN Marketing employees attended the Orange Grove employees’ picket in breach of section 69(5) of the LRA and the Picketing Regulations. SACTWU also admitted at the disciplinary hearing that its KZN Marketing members were picketing in support of their own demands, and not in support of the Orange Grove Dairy employees’ demands. As a result it was held that the striking employees participated in an unlawful picket.
The question then was whether the unlawful picket rendered the strike unlawful. The Court elucidated the difference between a strike and a picket. The notice requirements for strikes are prescribed in section 64(1)(b); while the notice requirements of pickets are prescribed in sections 69(1) and (2). There was no question that the requirements of section 64 had been met. The Court noted that it was “incomprehensible that the conciliating commissioner issued the outcome certificate without a determination on the picketing rules as formally sought by SACTWU.” The Court contrasted to the definition of a strike in section 213 of the LRA with a picket. A picket, the Court held, “is a peaceful demonstration in support of any protected strike or lockout” and an exercise of the Constitutional right to assemble, demonstrate, picket and present petitions, peacefully and unarmed. The employer’s argument that the strike was not protected because SACTWU did not conduct a strike ballot was also rejected. The Court held:
“… the contention that, because there is a nexus between a strike and picket, then a picket is tantamount to a strike is fallacious. Clearly, while it is true that a picket constitutes an action in furtherance of a strike, the two actions are regulated separately. Any interpretation that conflates the two stands to be rejected as it does not accord with the structure, context and purpose of sections 64 and 69 of the LRA….In sum, it cannot be overemphasised that a right to strike is a fundamental constitutional right that cannot be interfered with willy-nilly.”
As the strike was protected, the Court concluded that the chairperson’s ruling unlawfully interfered with the right to strike and undermined the power play that is fundamental to collective bargaining under the LRA. The Court was clear that KZN Marketing was entitled to discipline its employees for participating in the unlawful picket. The Court declared the strike lawful and declared the chairperson’s ruling unlawful, a nullity and of no force and effect.
The judgment is a warning to employers and unions alike to attend conciliation hearings prepared for the prospect that the matter may not be resolved, by being prepared to address the issue of picketing rules, and in particular, where the picket will be conducted. Where picketing rules are not issued, the parties should refer a request to the CCMA to establish picketing rules.