Legal Eagles – Picketing

Picketing

Tips for shop stewardsAs a shop steward you may find yourself leading a legal strike. Read these tips from France Ntuli on how to handle picketing in your workplace. For more details read Section 69 of the Labour Relations Act, Act 66 of 1995 (LRA).

When can you picket?* to support a protected (legal) strike; or * to oppose a lockout.

Where can you picket?* in any public place outside the premises of an employer; OR * with the permission of the employer, inside the employer's premises. The employer "cannot unreasonably withhold permission".

What to do if there is a disagreement about picketing rules?* Declare a dispute at the CCMA. * The CCMA will then conciliate the matter and establish picketing rules.

The CCMA could decide that the employer must allow picketers on the premises if it is "satisfied that the employer's permission has been unreasonably withheld".

If there is a breach of the picketing rules or you believe that your right to picket is being undermined, refer the matter to the CCMA for conciliation or determination.If the conciliation or determination fails, only then can the matter be referred to the Labour Court for adjudication.

And what about urgent interdicts?In the judicial precedent of Makhado Municipality v SAMWU & others (2006) 15 LC, the applicant (Makhado Municipality) applied for an urgent interdict against the picketing respondents (Samwu).

The Labour Court granted a rule nisi (interim order with a return date for when it should be made final) interdicting Samwu.

On the return date, the applicant applied for the final order to be confirmed. It drafted, issued, filed and delivered the notice of motion accompanied by the founding affidavit and annexures.

The applicant had to justify the urgency and the dispensing with the customary rules of the court related to service.

Samwu drafted, issued, filed and delivered the opposing papers ie the notice to oppose and the answering affidavit.

The respondents (Samwu) raised two points in limine in respect of the urgent application.The first point in limine claimed that the picketing had stopped and the final interdict would serve no purpose.

The second point in limine averred that the applicant failed to refer the matter to the CCMA for conciliation.The first point in limine failed on the basis that there was no evidence that the picketing had stopped.

The second point in limine was accepted because the applicant had failed to refer the matter to the CCMA for conciliation.

The Honourable Justice Steenkamp dismissed the final interdict with costs on the basis that the applicant had failed to refer the issue to the CCMA for conciliation.

The court also said that the applicant should have identified the respondents in the documents and pleadings.

This judgment does not stop employers or trade unions during strikes from applying for urgent interdicts. What it does reaffirm is that proper procedures must be followed if the interdict is to be successful.

Legal terminology:

Applicant = the party taking the case to court – in this case Makhado MunicipalityRespondent = the party that has to respond to the party that is taking the case to court – in this case, Samwu.rule nisi = interim order with a return date for when it should be made finalpoint in limine = points raised in court to bring light to the case before the actual case can be heard

France Ntuli is a Numsa national legal officer

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