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Home » Violence and intimidation associated with industrial action Part 2

Violence and intimidation associated with industrial action Part 2

Brett Abraham, Partner,and Nonjabulo Mthembu, Associate from Webber Wentzel argues in this contributed article whether employers can rely on the Code of Good Practice on the Prevention and Elimination of Harassment in the Workplace (Code) in managing strike-related misconduct and, in particular, engagements with trade unions in seeking to quell such conduct. This is Part 2 of a two-part article.

Nonjabulo Mthembu, Associate: Webber Wentzel. Image supplied by Webber Wentzel
Nonjabulo Mthembu, Associate: Webber Wentzel. Image supplied by Webber Wentzel

… Continued from part one.

Employers will typically react to strike-related unlawful conduct using legal mechanisms such as interdicts and contempt of court proceedings.  These only become available once strike-related violence (or the conduct that amounts to harassment) is an imminent threat or has already erupted.  Employers will also take disciplinary action against employees identified as perpetrators of strike-related misconduct, in compliance with the obligations under the Labour Relations Act (LRA).

When the violent conduct is or could amount to harassment, such reactive steps may not, however, go far enough, given the Code’s emphasis on preventing and eliminating harassment in the workplace. It could now be necessary for employers to consider what further and proactive steps they may take to comply with this obligation.

The most obvious is to place more stringent obligations on trade unions in anticipation of protected strike action.  No picket in support of a protected strike (or in opposition to a protected lockout) may take place without picketing rules:

  • containing a collective agreement binding on the trade union; or
  • agreed between the employer and trade union as parties to the dispute; or
  • determined by the commissioner conciliating the dispute.

If picketing rules cannot be agreed on, and must be established, the Commissioner must take account of any relevant code of practice. Consequently, the Code cannot be avoided.

Employers should, when seeking to agree on  picketing rules or at the time they are established, seek to impose obligations on the trade union (and/or picketers):

  • not to commit any conduct that would amount to harassment under the Code;
  • acknowledging that any harassment is unacceptable;
  • to supply convenors or marshals trained in accordance with the Code and any policy of the employer implemented in compliance with the Code;
  • to disseminate with the picketing rules any policy of the employer in compliance of the Code and assist any picketer to understand their obligations under that policy;
  • requiring convenors or marshals to immediately report any consultation process or subsequent steps taken to address a complaint and eliminate harassment in compliance with the Code and the EEA;
  • accepting that any conduct contravening these obligations constitutes a material breach of the picketing rules, justifying a complete suspension of the picket.

The inclusion of such obligations will never stop harassment from taking place in the context of a strike. Including such obligations will, however, demonstrate an employer’s commitment to compliance with the Code and hold trade unions (at least in writing) to their commitments towards eliminating harassment. Apart from potentially helping to obtain an order suspending the picket, such rules may also act as a greater deterrent to trade union-led or supported harassment and, hopefully, a greater culture of accountability by union officials leading or facilitating pickets.

Of course, while accepting that strike-related violence may amount to harassment under the Code, employers also need to accept that (together with managing the aftermath of work stoppages) there will also be a requirement to comply fully with the obligations under the Code in respect of any complaint of harassment. A failure to take adequate steps if a complaint of harassment is brought to its attention may still result in an employer being held vicariously liable for such harassment under the EEA.