Strikes and misconduct of harassment . It tries to encourage trade union involvement by acknowledging that :
• trade unions are obligated to refrain from committing harassment
• trade unions have a role to play in contributing to a working environment in which harassment is unacceptable , by ensuring that standards of conduct do not cause offence and by discouraging unacceptable behaviour
• trade unions should , with employers if appropriate , implement awareness training initiatives to educate employees and shop stewards at all levels about harassment . Compliance should be reinforced and maintained through ongoing awareness programmes
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 .
• 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 . RACA
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 ;
www . refrigerationandaircon . co . za RACA Journal I May 2023 47