Labour Law
<p>Some wage disputes are difficult because the parties are far apart. Others are difficult because the negotiations never really begin, and the dispute moves toward industrial action before the demands have been properly discussed.</p><p>When that happens, a union may send the employer picketing rules. Many employers are not sure what to do with them.</p><p>This article explains the difference between a strike and a picket, where picketing rules come from, and what an employer should do when it receives a union's draft rules.</p><h2>A Strike Is Not a Picket</h2><p>A strike is a refusal to work. It is protected when the dispute has been referred to conciliation, a certificate has been issued (or 30 days have passed), and written notice has been given. The notice period is 48 hours, or seven days where the employer is the State. These requirements come from section 64 of the Labour Relations Act (LRA).</p><p>A picket is a peaceful demonstration in support of a protected strike. It is regulated separately by section 69 of the LRA.</p><p>In <em>SACTWU obo Members v KZN Marketing (Pty) Ltd</em> [2022] ZALCD 31, the Labour Court dealt with this distinction. The union had asked for picketing rules, but the commissioner issued the certificate without determining them.</p><p>The employer argued that the strike was unprotected because there were no rules. The Court held that missing picketing rules did not, on their own, make the strike unprotected where the section 64 requirements had been met. The picket, however, was unprotected.</p><h2>What Picketing Rules Are and Where They Come From</h2><p>Section 69(6C) of the LRA does not allow a picket in support of a protected strike unless picketing rules have been agreed or determined.</p><p>The rules can come from:</p><ul><li><p>a collective agreement that regulates picketing;</p></li><li><p>a written agreement between the employer and the union; or</p></li><li><p>a determination by the CCMA commissioner.</p></li></ul><p>The commissioner is expected to deal with picketing rules during conciliation. Since the 2018 amendments, the rules must be determined at the same time as the certificate is issued.</p><p>CCMA Rule 13(1A) was introduced in 2023. It says that picketing rules must be established before a certificate is issued, unless a signed picketing agreement is provided. The rule was intended to prevent certificates from being issued without picketing rules.</p><h2>What Should an Employer Do with a Union's Draft Rules?</h2><p>Rules drafted by the union alone are a proposal. They do not bind the employer. They become binding only if the employer agrees to them in writing, or if the CCMA determines them.</p><p>An employer who receives draft picketing rules should:</p><ol><li><p>read the rules carefully before responding, including the locations, times, numbers, marshals and conduct provisions;</p></li><li><p>not sign anything it does not agree with;</p></li><li><p>respond in writing, state which parts it accepts and which it rejects, and give reasons;</p></li><li><p>state that no picket may take place until rules have been agreed or determined; and</p></li><li><p>keep a record of the draft rules received, its response and the dates.</p></li></ol><p>The picketing rules should also be kept separate from the wage negotiation. They should not replace the discussion on the demands.</p><h2>What If the Certificate Was Issued Without Rules?</h2><p>The law does not set out one clear procedure for going back to the CCMA after a certificate has already been issued without picketing rules.</p><p>Employers should not assume that a particular CCMA rule applies. The better approach is to contact the CCMA in writing, explain that the certificate was issued without rules, and ask how the matter can be placed before a commissioner.</p><p>Where a picket is imminent and no valid rules exist, an employer may be able to seek urgent relief from the Labour Court. That relief deals with the picket. It does not decide whether the strike itself is protected.</p><h2>What Good Picketing Rules Cover</h2><p>Practical picketing rules usually deal with:</p><ul><li><p>where the picket may take place;</p></li><li><p>the times and duration;</p></li><li><p>the number of pickets;</p></li><li><p>marshals and union contact persons; and</p></li><li><p>peaceful conduct, with no intimidation or obstruction.</p></li></ul><p>A picket may be held in a place to which the public has access outside the employer's premises. It may take place inside the premises only with the employer's permission, which may not be unreasonably withheld.</p><h2>What This Means for Employers</h2><h3>A Paper Trail Protects You</h3><p>Meetings, requests for information, draft rules and the replies to them can all become important if the matter reaches the CCMA or the Labour Court.</p><p>Every request should be made in writing and with a clear purpose.</p><h3>Do Not Confuse a Picket with a Strike</h3><p>The strike and the picket follow different rules. An employer who treats an unprotected picket as proof that the strike is unprotected may be wrong.</p><h3>Come Prepared to Conciliation</h3><p>Bring a proposed set of picketing rules to conciliation. It speeds up the process and gives the employer a say in the outcome.</p><h3>Prove It Before You Discipline</h3><p>If employees are disciplined for an alleged unlawful picket, the employer must still prove what they did and follow a fair process.</p><p>In 2026, the Labour Court found that an employer had not proved that employees had engaged in illegal picketing, and held their dismissals unfair. The employer said the gathering was a picket. The employees said they were rehearsing for a wedding.</p><h2>Conclusion</h2><p>A wage dispute that heads toward industrial action needs a plan from day one.</p><p>The employer needs to know how to respond to the demands, how to keep a proper record, how to deal with picketing rules, and how to protect the business if industrial action follows.</p><p>A certificate issued without picketing rules does not, on its own, make a compliant strike unprotected. A picket without agreed or determined rules, however, is not lawful.</p>