Strikers, all too frequently, fail to comply with picketing rules, and elect, on the contrary, to behave in a violent and unlawful manner, causing mayhem.  This was the backdrop to the recent Labour Court case in Dis-Chem Pharmacies Ltd v Solly Malema and the National Union of Public Service & Allied workers Case number J4124/18, with the Court eventually starting to show some steel in dealing with unlawful and violent strike related behaviour.

The facts of the case were quite simple.  The union had recruited 11% of the employer’s workforce.  Regardless of its slim minority membership, it sought collective bargaining rights to negotiate wages and conditions of service on behalf of its’ members. Unsurprisingly, the employer refused to grant the union the collective bargaining rights it sought.  Employers typically refuse to grant minority unions collective bargaining rights, as they run the untenable risk of union proliferation, resulting in multiple collective bargaining arrangements in the same workplace or bargaining unit.

The dispute proceeded to the CCMA, and an advisory arbitration award was issued paving the way for the union to embark upon a protected strike to compel the employer to accede to its collective bargaining demands. Picketing rules were ultimately issued by the CCMA, and made an order of Court, after which the protected strike began.

The Labour Relations Act has a Code of Good Practice relating to picketing which, at paragraph two, states that “Section 17 of the Constitution recognises the right to assemble, to demonstrate, to picket and to present petitions. This constitutional right can only be exercised peacefully and unarmed. Section 69 of the Labour Relations Act, No. 66 of 1995, seeks to give effect to this right in respect of a picket in support of a protected strike or a lock-out.”

Needless to say, the strikers completely disregarded the picketing rules, and their obligation to picket peacefully, and “remained steadfast in their conduct of violence, intimidation and unlawful behaviour” noted the Labour Court judgment, which continued that the union “either had no control over (the strikers), or did not want to control them”.

The range of unlawful conduct on the part of the strikers included the intimidation and serious assault of non-strikers, the damage to the property (homes and vehicles) of non-striking employees, blockades of shopping malls, and the assault of members of the public.  In many instances, the SAPS needed to be summonsed to restore order, “bring the striking employees under control, and protect persons and property”.

The Labour Court judgment, in its analysis, noted that “It has become an almost common place occurrence that where there is a protected strike, violence and unlawful behaviour inevitably follows.  It is almost as if striking employees believe this is how things should be done. One only has to spend a week in the urgent Court in this Court to appreciate the gravity of the problem.  A significant portion of the urgent roll is devoted to interdicting violence and unlawful behaviour during strikes.  The situation perpetuates because it seems that there is very little consequence for transgressors, despite picketing rules and interdicts by this Court being issued”.

This steely stance adopted by the Labour Court is refreshing, and this show of back-bone on the part of the Court, whilst overdue, is to be welcomed.

It is arguable that the all too common cycle of unlawful and violent strike conduct, should rob a protected strike from its protected status?  Section 69 (1) of the Labour Relations Act is clear, a picket must be “for the purposes of peacefully demonstrating”, and not, as we so often see, carte blanche license to cause public mayhem.

The Labour Court judgment continued that “It follows that it cannot be seen to constitute a violation of a fundamental right where employees are held accountable for failing to exercise their right to picket in a peaceful manner as required by way of a suspension or forfeiture of those rights …. those who commit acts of criminal and other misconduct during the course of strike action in breach of an order of this court must accept in future to be subjected to the severest penalties that this court is entitled to impose.  The right to protect, picket and assemble is directly linked to it being exercised peacefully”.

The judgment suspended the picketing rules, and interdicted and restrained the union from continuing to picket, or to gather, protest or assemble at any of the employer’s premises.