Given the unfortunate regularity with which strikes occur in South Africa, it is important for employers to ensure that they are adequately prepared to deal with them.

An important aspect of the preparation is to know the rules of engagement between the parties.

To this extent, the LRA seeks to bring some certainty to the process and in particular the conduct of the strike through section 69, which deals with picketing.

The LRA seeks to create a framework for the parties to conclude an agreement on various issues relating to picketing during protected strikes or in response to any lock-out. 

A picketing agreement should seek to deal with issues such as ensuring the safety of non-strikers, prohibiting the carrying of weapons, the area in which the picket may take place and the general conduct of strikers during the picket.

The LRA permits the CCMA to assist parties in concluding such agreements as they are intended to ensure the peaceful exercise of the right to strike which is fair to both parties.

Non-compliance with the picketing agreement can lead to serious consequences for Unions and their members, as appears from the recent case of Verulam Sawmills (Pty) Ltd v AMCU & Others ZALCJHB 359 (20 October 2015).

In this case, the Union embarked on a protected strike in support of wage demands on 28 July 2015. Prior to the strike, the employer and the Union had concluded a picketing agreement.

During the strike, the Union’s members engaged in carrying of weapons, picketing outside the designated areas, stopping vehicles travelling on the main road, prohibiting employees from entering the workplace, blockading the entrance to the employer’s premises and also damaging property belonging to the employer.

The strikers’ conduct became so volatile that a decision was taken by the employer to close its entire operations on 3 August 2015. The following day the strikers chanted the words ‘shoot Edward’, referring to the Managing Director of the employer.

The employer had, since the commencement of the strike, addressed several letters to the Union requesting its urgent intervention in regard to serious breaches of the picketing agreement and the unlawful conduct of the strikers.

The Union alleged in a letter that it was unaware of any complaints from the police or anyone else regarding intimidation or damage to property. Notwithstanding this, when the employer was compelled to bring an application for urgent relief, the Union agreed to the Order sought by the employer.

The Court was therefore left to determine the issue of costs, as the employer had argued that it had been compelled to take urgent legal action against the Union and its members.

The Court found that picketing agreements seek to ensure the safety and security of persons and the employer’s workplace. In examining the evidence before it, the Court found that the Union’s members had breached the picketing agreement and that the Union did not take reasonable steps to ensure compliance with the agreement and prevent the misconduct of its members.

The Court also reaffirmed its stance that it would not hesitate to grant punitive costs orders against Unions in appropriate circumstances. The Court accordingly awarded a punitive costs order against the Union as a mark of its disapproval of the conduct of both the Union and its members.

Written by By Neil Coetzer, Senior Associate, Employment Law, Benefits & Industrial Relations, Cowan-Harper Attorneys