INSIGHT / BUYERS GUIDE •
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 the picketing rules and 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 . •
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African Mining • May 2023 • 39