This article was written by Douglas de Jager, a candidate attorney at Norton Rose Fulbright South Africa
The right of striking workers to picket is an important tool in the collective bargaining process. A picket traditionally involves the gathering of striking workers in a public place to demonstrate against their employer or to create awareness about the dispute and to gain the attention of the general public.
While picketing during a protected strike can sometimes be difficult to manage, a prudent employer quickly establishes picketing rules either by agreement or on application to the Commission for Conciliation, Mediation and Arbitration (CCMA).
Provocative messages on banners, songs and speeches are commonplace and are something with which all South Africans are familiar. When we think of picketing in a South African context we think of the “toyi-toyi” which often includes dancing and chanting and the singing of sometimes controversial political songs.
However, with the advent of social media, which is being used around the world to organise and conduct demonstrations on a wide range of issues, there are already examples in South Africa of striking employees taking to one or more of the established online public forums to voice their concerns.
If employees in a protected strike “gather” online and demonstrate, by posting messages or banners or “memes” to create awareness about their dispute with their employer, would this constitute “picketing”?
An online forum is certainly a public place and if that place is on an employer’s website then could that not also be considered as part of an employer’s “premises” or property?
Are the relevant regulatory bodies like the CCMA equipped to deal with and establish “picketing rules” for online conduct? What kind of rules could be set and could the breach of such rules give rise to an application by an employer to the Labour Court for interdictory relief?
There is little doubt that an online protest can be just as damaging, if not more so, than a protest of a few workers outside an employer’s physical premises as has traditionally occurred. There is certainly a wider audience online and a capacity for an issue to acquire greater impedance.
It will be interesting to see what develops in this regard as Africa is increasingly exposed to the internet. We may see developments in our law to deal with picketing which takes place online. It is the role of the law, and indeed our job as lawyers, to evolve with and always be relevant to the society in which it operates.