Civil Engineering December 2022 | Vol 30 No 11

22 December 2022 Civil Engineering V iolence and unlawful conduct in the context of industrial ac- tion is a reality in South Africa. Increasingly, there appears to be nowhere for employers to turn as they seek to manage violent industrial action. As South Africa reels from the eco- nomic and human cost of the protracted Transnet strike that ended in mid-Oc- tober 2022, we discuss 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. Various trade unions have welcomed the introduction of the Code and have ex- pressed their commitment to its objectives. Industrial action in South Africa, however, continues to be characterised by intimida- tion and violence by union members. It is often instigated by trade union leadership or, at least, not actively discouraged. Support for, or apathy towards, violent and unlawful conduct by trade union members is irreconcilable with the stated objective of the Code to eliminate all forms of harass- ment in the workplace and in any activity linked to, or arising out of, work. The Code, issued in terms of the Employment Equity Act (No. 55 of 1998) (EEA), requires employers to take steps to prevent and eliminate harassment. It describes harassment as unwanted con- duct which impairs dignity and creates a hostile or intimidating work environment for one or more employees or is calculated to, or has the effect of, inducing submis- sion by actual or threatened adverse consequences and is related to one or more of the grounds in respect of which discrimination is prohibited. Throwing stones, carrying dangerous weapons, blocking workplace entrances, making death threats to management or members of rival trade union members, and any threats to or intimidation of non-striking employees or preventing them from attending to normal business operations could all fall into this category, which is wider than the Code’s predecessor (that only dealt with sexual harassment). Even strike-related conduct that does not amount to ‘physical harassment’ as de- scribed in the Code could still be regarded as bullying, mobbing or intimidation, which is described as, “intentional behav- iour that would cause a person of ordinary sensibilities to fear injury or harm.” The Code does not place obligations on trade unions that are enforceable under the Code or the EEA, but it does accept that trade union representatives could be the perpetrators (or victims) of harassment. It tries to encourage trade union involvement by acknowledging that: Q Q Trade unions are obligated to refrain from committing harassment. Q Q 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 discour- aging unacceptable behaviour. Q Q Trade unions should, with employers if appropriate, implement awareness training initiatives to educate em- ployees 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 mech- anisms 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 that meet one of the following requirements: Q Q Contain a collective agreement binding on the trade union Q Q Are agreed between the employer and trade union as parties to the dispute Brett Abraham Partner Webber Wentzel brett.abraham@webberwentzel.com Nonjabulo Mthembu Associate Webber Wentzel nonjabulo.mthembu@webberwentzel.com Violence and intimidation associated with industrial action Employers trying to tackle violence related to industrial action have traditionally reacted with court proceedings and disciplinary action once such action has taken place. Employers should consider taking more proactive steps, including agreeing on picketing rules incorporating the Code of Good Practice on the Prevention and Elimination of Harassment in the Workplace