Abstract
The hierarchy of the South African legal framework affords protection over the right to freedom of association and other organisational rights. The Constitution is currently the supreme law in the country, and it consists of the human rights in accordance with international standards. However, the constitutional rights in terms of section 23 have impact on the adequacy of the regulation of employment relations. For instance, the circumstances in the labour market allow every employee the right to join and participate in any trade union of their choice, as well as participate in the activities and programmes of the union. Furthermore, employers have the right to form and join employers’ organisations with consideration to acknowledging all activities of the organisation. Subsequently, the national labour legislation affects the constitutional right to picket in section 69 of the LRA. In most instances, picketing is associated with violence, intimidation, property damage, job losses and economic harm.
Moreover, it is still undetermined how employers can reasonably accommodate picketers, particularly when there is wielding of weapons, property damage, and intimidation. To this point, the right to picket remains a mechanism of good faith bargaining and carries a natural duty of shop stewards to maintain peace and order. In essence, the nature and conduct of pickets must be peaceful, but this is not the case most often. Thus, for peace to be maintained, the employer must not undermine employees’ right to picket and must appoint someone to liaise with the employees. The problem remains that the regulatory legal framework does not extend authority to the labour court to terminate or suspend violent industrial action. However, this can be achieved by revising and amending section 158 of the LRA and ensuring change in the powers of the labour court, as well as working towards progressive legislation for economic development.
This dissertation evaluated regulations surrounding picketing in South Africa, focusing on the current legislative framework. This is because the current legislation requires only CCMA commissioners to regulate all picketing activities, while there is a need for the labour court to adjudicate critical bargaining matters. The study further assessed the legal position in Australia to draw lessons that could assist in filling legal gaps in South Africa. This comparison forms the basis for the conclusion and recommendations reached in this dissertation.