In light of recent case law, the amendment raised the question of whether the establishment of picketing rules is a requirement for a lawful strike?

Section 64 of the LRA and the CCMA rule

Section 64(1) of the Labour Relations Act 66 of 1995 (LRA) states that every employee has the right to strike if the issue in dispute has been referred to a council or the CCMA and a certificate stating that the dispute remains unresolved has been issued; or a period of 30 days has elapsed since the referral was received by the CCMA or council.

A separate section of the LRA deals with establishing picketing rules. Section 69 states that the commissioner conciliating the dispute in terms of section 64 must attempt to secure agreement between the parties on picketing rules, and if there is no agreement then the commissioner must determine picketing rules. Section 65 of the LRA does not limit the right to strike in the absence of picketing rules.

The new CCMA rule, Rule 13(1A), now clarifies this connection between a commissioner’s responsibilities in conciliating relevant disputes that could result in strike action if a certificate is issued. The section reads as follows:

“In the event that a dispute relates to section 64 of the Act [LRA], picketing rules must be established before a certificate of non-resolution is issued, unless a party provides a signed picketing rules agreement as required by section 69(6A) of the Act.”

The CCMA rule indicates that in terms of striking and lock-out disputes under section 64 of the LRA, a certificate can only be issued once picketing rules are established. However, does this mean that if there are no picketing rules established prior to the issuing of a certificate, is the strike unlawful?

Case law

In Southern African Clothing and Textile Workers’ Union obo Members v KZN Marketing (Pty) Ltd and Another [2023] 1 BLLR 83 (LC), the Labour Court (LC) recently grappled with the interplay between strikes and picketing, particularly relating to the lawfulness of strike action where no picketing rules were established. 

In this case, a certificate was issued by the CCMA in terms of section 64(1) of the LRA, but the commissioner did not establish any picketing in terms of section 69(5) of the LRA. The employees went on strike and picketed at locations connected to the employer’s operations. The employer was of the view that due to the unlawful picketing, the strike action by the employees was unlawful.

The LC made a distinction between the right to strike and picketing. Strike action entails:

“… the partial or complete concerted refusal to work, or the retardation or obstruction of work, by persons who are or have been employed by the same employer or by different employers, for the purpose of remedying a grievance or resolving a dispute in respect of any matter of mutual interest between employer and employee, and every reference to ‘work’ in this definition includes overtime work, whether it is voluntary or compulsory.” 

Picketing is a peaceful demonstration in support of the strike action.

According to the court, these are two distinct actions and the failure to establish picketing rules does not render a strike unlawful where a certificate has been issued. In other words, while a connection may exist between a strike and a picket, the latter in and of itself does not constitute strike action. In this case, the c upheld the lawfulness of the strike while acknowledging that the picketing was unlawful.

The court also bemoaned the fact that the conciliating commissioner issued the certificate without a determination on the picketing rules, which had been requested by the trade union. Nonetheless, despite this failure, the strike was lawful.

The implication of the new Rule 13(1A), despite its possibly inarticulate wording, attempts to close the gap within the CCMA rules framework between section 64 of the LRA and the obligations on a commissioner in terms of section 69 of the LRA. This amendment should avoid an instance in future, such as in this case, where a commissioner issues a certificate without establishing picketing rules.