Observación (CEACR) - Adopción: 1992, Publicación: 79ª reunión CIT (1992)

With reference to its previous comments, the Committee notes the information supplied by the Government in its reports and before the Conference Committee in 1991. It emphasises, however, that the discrepancies between the legislation and the Convention arise from the need to amend the legislation which imposes a system of trade union unity at the confederation level and confers extensive powers on the Registrar as regards the registration of trade unions and the certification of negotiating representatives.

1. Extensive powers of the Registrar to oppose the registration of a trade union following any comment or objection concerning an application for registration (sections 11(3) and 12(1) of the Trade Unions Ordinance, 1941) contrary to Article 2 of the Convention.

The Government stated in its report that the powers of the Registrar in this respect have been limited, since section 12(3) of the Ordinance provides for the right of appeal to the Supreme Court.

The Committee none the less considers, as it has explained to the Government since 1968, that sections 12(1)(d) and 11(3) do not clearly define the nature of the objections which can justify a refusal by the Registrar to register a trade union, which severely limits the scope of the Court to exercise any control.

A Government representative indicated before the Conference Committee of 1991 that the Government did not feel that the absence of any definition of the nature of the objection limited the scope of the court to exercise control, but that it would seek legal assistance so that it could reply more fully to the comments on this issue.

2. The powers of the Registrar, in the context of the procedure for granting recognition for collective bargaining purposes, to refuse to appoint a trade union for any class of employees if there is already a certificate in force naming a negotiating representative for that class of employees or any part of that class (section 3(4) of the Industrial Relations Act, No. 299 of 1965), contrary to Article 3 of the Convention.

The Government indicated in its report that in Ghana all workers' organisations are affiliated to the national union of the sector concerned, which held the collective bargaining certificate for all the component groups; the purpose of section 3(4) is to avoid a class of employees being covered by more than one bargaining certificate.

Moreover, the Government representative stated that if there was any doubt as to which of the 17 national unions should obtain a bargaining certificate for a particular group of workers, the matter is settled by a Demarcation Committee which is a subcommittee of the Executive Board of the Trades Union Congress, which is a confederation of the 17 national unions. When the Demarcation Committee agrees on the union to be granted a collective bargaining certificate, the Registrar never refuses to issue the certificate.

The Committee again recalls that, while it is not necessarily incompatible with Article 3 of the Convention to provide for a certificate to be issued to the majority trade union of a particular unit recognising it as the exclusive bargaining agent for that unit, the majority trade union should be determined according to pre-established and objective criteria. Furthermore, the legislation should provide that, if another trade union becomes the majority union, it should be entitled to be granted a certificate designating it as the exclusive bargaining agent.

3. The absence of provisions on the right to form and join federations and confederations and the right to join international organisations of workers and employers, contrary to Article 5 of the Convention.

In a previous report, the Government mentioned that section 1 of the Industrial Relations Act, 1965, provides for the existence of the Trades Union Congress (TUC), which is a federation/confederation of the 17 national unions. The Government stated that, of its own volition, the TUC is not affiliated to any international workers' organisation but that, according to it, each of the 17 national unions, being autonomous, is affiliated to the various trade secretariats of international occupation organisations, such as those covering transport, chemical and agricultural workers. The Ghana Employers' Association is affiliated to the International Organisation of Employers and to the Pan-African Employers' Confederation.

The Committee observes once again that the 1965 Industrial Relations Act, by dealing only with the right of unions to affiliate with the TUC or withdraw from it without prejudice, establishes a system of trade union unity. The Committee recalls that under Article 5 of the Convention trade unions should have the right to establish federations and confederations of their own choosing. Since this system of trade union monopoly imposed by law is at variance with the principle of free choice of organisation laid down in the Convention, the Committee once again asks the Government to adopt legislative provisions guaranteeing the right of first-level organisations to join national federations and confederations of their own choosing, and the right of unions, federations and confederations to affiliate with international workers' organisations.

In view of the fact that the Committee has been repeating its comments on the three above issues since 1968, and that the Government has received technical assistance from the ILO, the Committee again expresses the hope that appropriate amendments will be made to the law in the near future and that the Government will, if necessary, as suggested by the Conference Committee in 1991, make use of the technical assistance of the ILO once again so that appropriate measures be taken to eliminate as soon as possible the existing divergence between the legislation and the Convention and, in particular, to make trade union pluralism possible. The Committee urges the Government to keep it informed of any developments in this regard and to provide a copy of the desired amendments as soon as they are adopted.