Informe provisional - Informe núm. 67, 1963

1. 244. The complaint of the I.C.F.T.U is contained in a communication dated 22 June 1962. The Government of Ghana furnished its observations on the complaint in a communication dated 5 October 1962.
2. 245. On 13 May 1957 the Government of Ghana, already a member of the United Nations, addressed to the Director-General of the International Labour Office a letter, signed by Mr. Kwame N'Krumah, the Prime Minister, in which Ghana formally accepted the obligations of the Constitution of the I.L.O, and thereby became a Member of the Organisation, by virtue of Article 1, paragraph 3, of the Constitution, as from 20 May 1957, the date of receipt of the letter. In the same letter the Government of Ghana stated that it would continue to apply the provisions of the Right of Association (Non-Metropolitan Territories) Convention, 1947 (No. 84), pending formal ratification by Ghana of the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87), and the Right to Organise and Collective Bargaining Convention, 1949 (No. 98). Ghana has ratified the Right of Association and Collective Bargaining Convention, 1949 (No. 98), but has not ratified the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87).

A. A. The complainants' allegations

• Preliminary Question as to the Political Party of the Complainants
  246. 246 The Government declares that the complaint is inspired by purely political motives.
  247. 247 In Case No. 67, relating to Egypt, in which the Government contended that the allegations made were meant for political propaganda, the Committee recalled that it had formulated certain principles in its First Report with respect to the examination of complaints to which the government concerned ascribed a purely political character, and, in particular, decided that, even though cases may be political in origin or present political aspects, they should nevertheless be examined from the point of view of substance if they raise questions directly affecting the exercise of trade union rights. In the case relating to Egypt, the Committee, observing that the complainant raised certain issues which affected the exercise of trade union rights, considered that, without prejudicing the merits, it should examine the case, whatever the complainant's actual motives might be. In Case No. 143 relating to Spain e, in which the Government contended that the complaining organisation was politically biased, the Committee recalled that it had held, in the earlier case relating to Egypt, that the complaint was receivable since it was presented in due form by a workers' organisation and that, as regards the motives of the complaint, the fact that these were political, as the Government maintained, was not a reason for dismissing it. In Case No. 143, therefore, the Committee took the view that, while the accepted political bias of the complaining organisation was a matter to be taken into account when the merits of the case were examined, it would not in any way be regarded as affecting the form and consequently the receivability of the complaint.
  248. 248 In the present case allegations relating to infringements of trade union rights in Ghana have been submitted in due form by an international organisation of workers having consultative status with the I.L.O and competent, by reason of this fact, to present the complaint in accordance with the procedure in force for the examination of allegations relating to infringements of trade union rights. The Committee's concern is not with the motive of the complainant, a matter which it is rarely, if ever, in a position to determine with a reasonable degree of accuracy, but with the justification or lack of justification for the complaint, a matter which is susceptible of examination by the application of objective criteria.
  249. 249 The Committee therefore considers that the Government's contention as to the political motives of the complainant does not constitute a reason which prevents it from examining the substance of the allegations.
• Allegations relating to Non-Observance of the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87)
  250. 250 In the introductory part of the complaint it is alleged that the Government has infringed a number of the principles relating to freedom of association which are embodied in the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87), and in the Right to Organise and Collective Bargaining Convention, 1949 (No. 98).
  251. 251 The Government points out that Ghana has not ratified the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87), and cannot technically be accused of not complying with it. However, adds the Government, to dismiss the complaint or to decline to answer the points raised might be interpreted as an evasion on the basis of a technicality. The Government, therefore, has presented its observations on the substance of the allegations made.
  252. 252 While the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87), has not been ratified by Ghana, the Committee, as it did in Case No. 211 relating to Canada, Case No. 191 relating to Sudan, Case No. 266 relating to Portugal and certain earlier cases, considers it appropriate to point out that the Declaration of Philadelphia, which now constitutes an integral part of the Constitution of the International Labour Organisation and whose aims and purposes are among those for the promotion of which the Organisation exists, as mentioned in article 1 of the Constitution as amended in Montreal in 1946, recognises:
• the solemn obligation of the International Labour Organisation to further among the nations of the world programmes which will achieve... the effective recognition of the right of collective bargaining, the co-operation of management and labour in the continuous improvement of productive efficiency, and the collaboration of workers and employers in the preparation and application of social and economic measures.
• In these circumstances the Committee, as it did in the earlier cases cited above, considers it appropriate that:
• it should, in discharging the responsibility to promote these principles which has been entrusted to it, be guided in its task, among other things, by the provisions relating thereto approved by the Conference and embodied in the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87)... which affords a standard of comparison when examining particular allegations, more particularly as Members of the Organisation have an obligation under article 19 (5) (e) of the Constitution to report to the Director-General of the International Labour Office, at appropriate intervals as requested by the Governing Body, the position of their law and practice in regard to the matters dealt with in unratified Conventions, showing the extent to which effect has been given, or is proposed to be given, to any of the provisions of the Convention by legislation, administrative action, collective agreement or otherwise and stating the difficulties which prevent or delay the ratification of such Conventions.
• Ghana is one of the governments which have complied with this obligation at the request of the Governing Body in respect of the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87). The Committee, therefore, considers that, while recognising that the provisions of the said Convention are not binding upon Ghana, it should examine the allegations relating to that Convention made in the present case with a view to ascertaining the facts and reporting them to the Governing Body.
• Allegations relating to the Legislation concerning Trade Unions and Industrial Relations in Ghana
  253. 253 These allegations relate to various provisions in the legislations of Ghana and, especially, in the Industrial Relations Act, 1958, as amended. The different matters raised are considered separately.
       • (a) Allegations relating to the Monopoly of the Trades Union Congress of Ghana
  254. 254 It is alleged that the Industrial Relations Act, 1958, provides for the establishment of a Trades Union Congress to act as the representative of all registered trade unions, as listed in the First Schedule to the Act, contrary to the provisions of Article 5 of the Freedom of Association and Protection of the Right to Organise Convention, 1948. It is alleged further that the Minister of Labour may add to or delete from the list of organisations constituting the Trades Union Congress.
  255. 255 The Government states that the Trade Unions Ordinance, 1941, as amended, provides for the compulsory registration of trade unions, which connotes recognition, and empowers the Registrar to refuse registration. Section 28 of the ordinance requires trade union rules to make provision as to change of their names, alienation of rules or amalgamation. While the ordinance provides simply for changes of name to be entered in the record of the Registrar's office, the Industrial Relations Act went further by scheduling the 16 registered trade unions which enjoy recognition. The whole purpose of giving power to the Minister to amend the First Schedule, declares the Government, " is to prevent such trivial matters as change of names and subsequent amalgamation having to go to Parliament "; in case of such change, section 4 (3) of the Act enables the Minister simply to amend the schedule on the advice of the Registrar of Trade Unions. The reason for listing the organisations in the schedule was to enforce recognition by employers, contrary to the practice of recognising company unions in the days before independence. The Government declares that the provision is not intended to prevent the formation of other unions by persons who wish to organise or to prevent such unions being recognised unless the Registrar has reasons so to advise the Minister. The Government adds that nothing in the Act prevents workers' organisations from establishing and joining federations and Confederations, and that the Act supplements the ordinance and streamlines the organisation and administration of the trade union movement in Ghana. In conclusion the Government makes the observation that mushroom organisations of employees or employers will not do any country any good and that the history of trade unionism everywhere proves this to be true.
  256. 256 Section 3 (1) of the Industrial Relations Act, 1958, provided for the establishment of a Trades Union Congress " which shall act as the representative of the trade union movement in Ghana ". Section 4 (1) provides that the Congress shall consist of members of the trade unions listed in the First Schedule to the Act; section 4 (3) empowers the Minister to add or to delete from that list the name of any trade union. These provisions above might not have been sufficient to establish a complete trade union monopoly, by law, in favour of the unions listed as members of the Congress, because unions outside the list who had been registered under the Trade Unions Ordinance, 1941, as amended, could still apparently exist, although no longer having the privilege of representation and other privileges accorded to the scheduled trade unions. But the situation was changed by the Industrial Relations (Amendment) Act, 1959. Section 2 of the amending Act provided that, within two months of its enactment, every trade union registered under the ordinance which was not at the date of such enactment a union having the right to elect members of the Congress - i.e. a union named in the Schedule to the Industrial Relations Act 1958 must be dissolved, with the only exception that, within the same period, it could amalgamate with one of the scheduled unions. Section 3 prohibited the registration of any new union under the ordinance without the written consent of the Minister.
  257. 257 The Government refers to the addition to or deletion from the Schedule of the name of a trade union by the Minister as intended to prevent " such trivial matters as changes of names and subsequent amalgamation " having to go to Parliament. But the Industrial Relations Act, as amended, gives the impression that this is not a question of a change of name which does not fundamentally affect the existence of the organisation. The change of name is linked with the compulsory amalgamation provisions by which a union not listed in the Schedule to the Industrial Relations Act was obliged, by the amendment to that Act, to amalgamate with one of the listed unions as the only alternative to dissolution. It is to be observed, further, that, under section 4 (3) of the Industrial Relations Act, where the name of a union is added to the list, members elected to the Congress by that union take office forthwith and that, where the name of a union is deleted from the list, persons elected by that union shall forthwith cease to be members of the Congress.
  258. 258 The position therefore appears to be that no trade union can legally exist in Ghana unless it is one of the unions scheduled in the Industrial Relations Act or unless, being already a union outside that list but registered under the ordinance, it amalgamated with one of those scheduled unions, with the sole exception of a new union to the registration of which the Minister in his discretion may give his consent.
  259. 259 The position in Ghana, therefore, appears to be that a trade union monopoly has been established, by legislation, limited to the trade unions referred to in the preceding paragraph.
  260. 260 The I.L.O. Committee of Experts on the Application of Conventions and Recommendations has observed that, while it may be to the advantage of workers to avoid a multiplicity of trade union organisations, unification of the trade union movement imposed through state intervention by legislative means runs counter to the principle, embodied in Article 2 of the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87), that workers and employers should have the right to establish and join organisations " of their own choosing " and to the principle, embodied in Article 11 thereof, that workers and employers should be enabled to " exercise freely the right to organise ". The Committee of Experts has pointed out that there is a fundamental difference, with respect to the guarantees of freedom of association and protection of the right to organise, " between a situation in which a trade union monopoly is instituted or maintained by legislation and the factual situations which are found to exist in certain countries in which all the trade union organisations join together voluntarily in a single federation or Confederation, without this being the direct or indirect result of legislative provisions applicable to trade unions and to the establishment of trade union organisations. The fact that workers and employers generally find it in their interests to avoid a multiplication of the number of competing organisations does not, in fact, appear sufficient to justify direct or indirect intervention by the State, and, especially, intervention by the State by means of legislation.
  261. 261 When the provisions referred to above, moreover, are considered together with the provision in section 3 (1) of the Industrial Relations Act, 1958, that the Trades Union Congress shall act as " the representative " of the trade union movement in Ghana, it would appear that the Congress is, in effect, the only Confederation that can exist in Ghana.
  262. 262 It would also appear that, in so far as the only trade unions which can now legally exist, except where the consent of the Minister is given to the registration of a new union, are those which are scheduled in the Act, the right to form federations is limited necessarily to such federations, if any, as those unions themselves may form.
  263. 263 It would, therefore, appear that the provisions of the Industrial Relations Act, 1958, as amended, prevent trade unions from forming federations and Confederations of their own choosing, contrary to the generally accepted principle embodied in Article 5 of the Freedom of Association and Protection of the Right to Organise Convention, 1948.
  264. 264 While fully appreciating the desire of the Government to promote a strong trade union movement by avoiding the defects resulting from an undue multiplicity of small and competing trade unions, whose independence may be endangered by their weakness, the Committee draws attention to the comment made by the I.L.O. Committee of Experts on the Application of Conventions and Recommendations referred to in paragraph 260 above, that it is more desirable in such cases for a government to seek to encourage trade unions to join together voluntarily to form strong and united organisations than to impose upon them by legislation a compulsory unification which deprives the workers of the free exercise of their right of association and thus runs counter to the principles which are embodied in the International Labour Conventions relating to freedom of association.
  265. 265 In these circumstances the Committee, while appreciating the desire of the Government of Ghana to promote a strong trade union movement and to avoid the weaknesses arising from an undue multiplicity of small, competing trade unions, recommends the Governing Body:
       • (a) to draw the attention of the Government to the importance which the Governing Body has always attached to the generally accepted principles that workers should have the right to establish organisations of their own choosing without previous authorisation and that workers' organisations should have the right freely to form federations and Confederations;
       • (b) to express the view that the provisions of the Industrial Relations Act, 1958, as amended in 1959, which establish a Trades Union Congress as the representative of the trade union movement in Ghana and limit the trade unions which may lawfully exist to those which, subject to such changes therein as the Minister himself may determine, are listed in the First Schedule to that Act, except for such other unions as the Minister may authorise to be registered, are not compatible with the aforesaid principles;
       • (c) to ask the Government to reconsider the provisions of the Industrial Relations Act, 1958, as amended, in the light of the considerations set forth in subparagraph (b) above, with a view to giving fuller effect to the principles enunciated in subparagraph (a) above;
       • (d) to request the Government to be good enough to keep the Governing Body informed as to further developments in this connection.
       • (b) Allegations relating to Compulsory Union Membership
  266. 266 It is alleged that according to section 16 of the Industrial Relations Act, 1958, as amended, no person belonging to a category of workers specified under the functions of a registered trade union but not belonging to that trade union may remain at work for longer than one month. The complainant considers this provision to be incompatible with Article 2 of the Freedom of Association and Protection of the Right to Organise Convention, 1948.
  267. 267 The Government states that the amendment to section 16 to deal with the question of the union shop is not contrary to the principles of freedom of association. The Government considers that if a man enjoys the better conditions obtained by organised workers he should join in the crusade to secure them; hence section 16 was amended to embody the union shop principle as adopted in New Zealand.
  268. 268 The exact terms of the legal provisions involved are not clear. Section 16 of the Industrial Relations Act, 1958, provided that " among the matters with which a standing negotiating committee... shall have power to deal... shall be the practice known as union shop ". It does not appear to have been changed by the amending Act of 1959. Further, the I.L.O. Committee of Experts on the Application of Conventions and Recommendations noted that, in its report for the period 1 July 1959 to 30 June 1961 on the application of the Right to Organise and Collective Bargaining Convention, 1949 (No. 98), ratified by Ghana, the Government stated that section 31 (1) (a) of the Industrial Relations Act, 1958, as amended, makes it an unfair labour practice if an employer " continues to employ any person who is not a member of a trade union " and belongs to a class of employees specified in a certificate and who would share in the benefit of a collective agreement. As neither the Act of 1958 nor the amending Act, No. 43 of 1959, appears to contain such a provision, the Committee of Experts requested the Government to furnish the texts of any other enactments which had amended the Act of 1958 and, in particular, the text which had amended sections 31 (1) (a) to read as stated in the Government's report.
  269. 269 In these circumstances the Committee requests the Government to be good enough to furnish the text of sections 16 and 31 (1) (a) as now amended and to indicate, in particular, by what enactment section 31 (1) (a) was amended so as to read as indicated in the report of the Government mentioned in the preceding paragraph.
       • (c) Allegations relating to Interference in the Internal Affairs of the Trades Union Congress
  270. 270 It is alleged that section 5 (1) of the Industrial Relations Act, 1958, provides that the power of the Congress to make its rules is subject to approval by the Minister of Labour, contrary to Article 3, paragraph 1, of the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87). It is also alleged that section 5 (3) of the Act states that Congress may not spend any sum exceeding (Ghana) £50 without the authorisation of the Minister of Labour, that trade union finances are audited by a person appointed by the Minister, who may call for examination of accounts at any time, and that the funds can be frozen if the Minister is satisfied that the Congress has undertaken action " not conducive to the public good ". These provisions, it is contended, are incompatible with Article 3, paragraph 2, of the Convention.
  271. 271 The Government points out that in the transition stage of the trade union movement in Ghana the Government has been morally obliged to protect the movement from exploitation and guide it in its formative stage until it was able to manage its own affairs, and that the Government still has moral responsibility of ensuring that organisations can manage their affairs.
  272. 272 The Government declares that, since the enactment of the Industrial Relations Act, 1958, and since the " examination and acceptance " of the rules of the Congress, no Minister of Labour has found it necessary to exercise his powers under section 5 of the Act. In order to aid the proper organisation of trade union activity, declares the Government, it must satisfy itself that the functions of the Trades Union Congress are not used other than for the proper activities of the Congress. The Government contends that this view was upheld in the Report of the Director-General to the 46th Session of the International Labour Conference, when he urged governments to give greater place to workers in the economic and social development of member States. The Government considers that the words " until rules have been made " in section 5 (3) of the Act clearly show that the whole section was intended to guide the movement from the old practice to the new and that until rules were made by Congress it was considered wise to protect Congress funds and for the Minister to approve expenditures exceeding £50. The Government considers that it must be able to take action when it is satisfied that the funds of Congress are used in a manner " not conducive to the public good ", and that, in a country in which there are no social security benefits, it must ensure that the finances of the Congress are not used for ends not appropriate or beneficial to the constituent trade unions.
  273. 273 So far as audits are concerned, the Government declares that the Act applies to Congress funds the same principles as govern the audit of trade union funds under the Trade Unions Ordinance.
  274. 274 With reference to Article 3 of the Freedom of Association and Protection of the Right to Organise Convention, 1948, the Government considers that, as it is not the purpose of the I.L.O to create chaos and confusion, it cannot be argued that workers' and employers' organisations should be able " to draw up their Constitutions and rules, to elect their representatives in full freedom, to organise their administration and activities and to formulate their programmes" outside the pale of, and at variance with, the economic policy of the Government in any particular country, so long as that policy is in the best interests of the country as a whole.
  275. 275 It is not quite certain to what part of the Director-General's Report to the 46th Session of the International Labour Conference the Government is referring (see paragraph 272 above). If, as appears likely, the reference is to the paragraph beginning at the foot of page 83 of Part It of that Report, it is not there maintained that a government must satisfy itself that the functions of a Trades Union Congress are not used for purposes other than its proper activities. In the paragraph in question, relating to the role of trade unions in contemporary society, note is taken of the views expressed by many speakers at the 45th Session of the Conference that trade unions should above all be free and independent of the public authorities in developing their policy, and also of the views expressed by certain other speakers, some from African countries, in favour of a unified trade union movement acting in concert with the State for the implementation of national development programmes.
  276. 276 With regard to the question relating to the approval of the rules of the Trades Union Congress, the Committee has pointed out in the past that where the approval of union rules is within the discretionary powers of a competent authority this is not compatible with the generally accepted principle that workers' organisations should have the right to draw up their Constitutions and rules in full freedom.
  277. 277 It would appear that nothing in the Industrial Relations Act qualifies the provision in section 5 (1) that the Congress shall have the power to make rules with the approval of the Minister. Thus, the Act would not appear to lay down any statutory criteria, compliance with which would have made it obligatory to give such approval, nor does any provision appear to have been made for an appeal to the courts in the event of approval being refused.
  278. 278 The Government has referred to this, however, as one of the provisions which were essentially transitional in character. Before dealing further with this particular aspect of these allegations, the Committee requests the Government to state whether, the rules of the Congress now having been approved, the approval of the Minister would be necessary for any further additions to, deletions from or changes in the rules of the Trades Union Congress.
  279. 279 It would appear also from the Government's reply that the approval of the Minister for items of Congress expenditure exceeding £50 was also intended to be only a transitional measure until, according to section 5 (3) of the Act, rules governing the expenditure of Congress funds had been made. The Committee therefore requests the Government to state whether the provision requiring approval of the Minister for these expenditures has automatically lapsed since the rules of the Congress were made, so that Congress may make disbursements not limited as to amount without the approval of the Minister being required.
  280. 280 Under section 8 (1) of the Act, if it appears to the Governor-General that the Congress has taken any action " which is not conducive to the public good ", he may by order direct that all the assets of the Congress shall be transferred to and vested in a receiver appointed in the order and held by him. No statutory definition of what is " not conducive to the public good " is given and no right of appeal to the courts appears to exist against any action taken.
  281. 281 The Government's reply for ends not appropriate or beneficial to the constituent trade unions. This point, however, which relates indeed to an alleged breach of the generally accepted principle that workers' organisations should have the right to organise their administration and activities and that the public authorities should refrain from any interference which would restrict this right or impede the lawful exercise thereof, cannot be treated as an isolated point. The Government has, in reality, taken account of it in a broader context, when it expresses the view that all the generally accepted principles embodied in Article 3, paragraph 1, of the Freedom of Association and Protection of the Right to Organise Convention, 1948-the rights of workers' and employers' organisations to draw up their Constitutions and rules, to elect their representatives in full freedom, to organise their administration in full freedom and to formulate their programmes - hold good only in so far as these rights are not exercised outside the pale of and at variance with the economic policy of the government, so long as that policy is in the best interests of the country as a whole. In other words, according to the Government's argument, there can be no infringement of the generally accepted principle, embodied in Article 3, paragraph 2, of the said Convention, that the public authorities should refrain from any interference which would restrict or impede the lawful exercise of the rights listed in paragraph 1, if the government intervenes in internal union affairs because the unions do not, in the government's view, function in accordance with a government's economic policy, so long as that policy, again in the government "s view, is in the best interests of the country.
  282. 282 The crucial test in such cases, as the Committee has pointed out in the past, is whether a provision limiting the rights set forth in Article 3, paragraph 1, of the said Convention-and a provision allowing the Governor-General to freeze trade union funds in certain contingencies, of which he in his discretion is the judge, must be regarded as a limitative provision of that kind-implies some degree of subordination of the trade unions to the government's economic policy. This was the test applied when the Committee examined Case No 11 relating to Brazil. In Case No. 266 relating to Portugal the Committee examined legislative provisions which obliged trade unions to include in their rules a declaration of respect for the principles and purpose of the national community and a renunciation of all activity contrary to the interests of the nation and a recognition of the fact that the trade union constitutes a factor required for active co-operation with the other factors of the national economic system. It concluded that these provisions were not compatible with the generally accepted principles that workers' organisations should have the right to draw up their Constitutions and rules, to organise their activities and to formulate their programmes, that the public authorities should refrain from any interference which would restrict this right or impede the lawful exercise thereof, and that the law of the land should not be such as to impair, or be so applied as to impair, the effective enjoyment of this right.
  283. 283 In the case of Ghana there is a specific provision entitling the authorities to freeze Congress funds if, in their discretion, they consider that Congress acts in a manner " not conducive to the public good " and the Government has made the general statement that the rights of trade unions embodied in Article 3, paragraph 1, are exercisable only in a manner consistent with the economic policy of the Government.
  284. 284 The Committee notes, however, that the Government has stated in its reply that section 8 of the Act is a logical sequence of section 5, the provisions of which are " more or less transitory ".
  285. 285 In these circumstances the Committee, before reaching its final conclusions on these aspects of the allegations now being examined, requests the Government to indicate whether, in the light of the considerations set forth in paragraphs 280 to 283 above, it is disposed to repeal or modify section 8 (1) of the Industrial Relations Act.
       • (d) Allegations relating to the Legal Recognition of Trade Unions
  286. 286 It is alleged that, when a trade union applies for legal recognition, the Minister of Labour may reject such application if fewer than 40 per cent of the workers in the category concerned belong to the trade union. In that case a ballot may be organised in the said occupational category and, in order that the request for legal recognition be considered, not less than two-thirds of the votes registered must be in favour of the trade union, subject to a minimum participation of 52 per cent of the employees in the occupational category concerned. In case of dispute between the trade union and the Minister, it is alleged, the Minister gives his decision without right of appeal.
  287. 287 The Government declares that the object of the Second Schedule to the Industrial Relations Act, which contains the provisions referred to above, is to prevent the growth of mushroom organisations. Prior to this Act there were 135 registered unions, some with paid-up memberships of 7, 10, 11 and 14 persons, and, declares the Government, splinter groups were favoured by employers. The Trade Unions Ordinance, in its form at that time, did not enforce recognition upon registration. The Government quotes from the speech of the Government delegate of Nigeria at the 45th Session of the International Labour Conference in order to show how, in Nigeria, as in other developing countries, the weakness of a large number of small and ineffective trade unions is apparent. Thus, says the Government, this problem is not peculiar to Ghana. The Government refers to sections 11 and 12 of the Industrial Relations Act, 1958, as amended, as providing safeguards against a return to the former situation, and expresses the view that the fact that the Minister can take action under those sections only after consulting the workers' and employers' organisations concerned affords an adequate guarantee that the Minister's powers cannot be used arbitrarily.
  288. 288 It is necessary to consider more closely the legal provisions referred to in these allegations. Part 11 of the Industrial Relations Act relates to collective bargaining by certified trade unions and, in particular, sections 10, 11 and 12 (the latter as amended in 1959) relate to the issue and withdrawal of certificates appointing a trade union registered under the Trade Unions Ordinance as bargaining representative for the class of employees mentioned, whether members of the union or not.
  289. 289 Section 10 (1) provides that the Minister may, on application made according to section 11, and after consulting the appropriate employers' organisations, issue a certificate appointing a trade union registered under the Trade Unions Ordinance as the appropriate representative to conduct, on behalf of a class of employees specified in the certificate, collective bargaining with the employers. Section 10 (4) provides that such certificate takes effect even though some of the employees of the class specified are not members of the union. Section 10 (6) does not permit a certificate to be issued as respects persons in the public service or in the service of a municipal council or a council under the Local Government Ordinance. Section 11 requires the application for such a certificate to be made by the Trades Union Congress on behalf of the union concerned; if the Congress does not put forward the application within three months, the union may apply directly to the Minister. Section 12 of the Act (i.e. the new text inserted by the amendment of 1959) provides that the Minister may, if he thinks fit, after consultation with the trade union concerned and with the appropriate employers' organisation, withdraw a certificate.
  290. 290 The Second Schedule to the Act provides that, if the Minister is satisfied that not less than 40 per cent of the employees of the class described in the application are members of the union and that the class forms a suitable unit for collective bargaining, he may, if he thinks fit, issue a certificate. If not satisfied that the union has such 40 per cent membership, he may order that the matter be decided by a majority of the votes of the class concerned, cast by secret ballot according to conditions prescribed by the Minister; then, if not less than two-thirds of those voting are in favour of the appointment of the union and the total of those voting is not less than 52 per cent of the total entitled to vote, the Minister shall issue a certificate, but in any other case he shall refuse the application, without prejudice to the making of a further application after not less than 12 months; any dispute as to the application of these voting provisions shall be settled on the final decision of the Minister.
  291. 291 In a number of cases the Committee has emphasised the importance that it has always attached to the fact that the right to bargain freely with employers with respect to, conditions of work constitutes an essential element in freedom of association, and to the principle that trade unions should have the right, through collective bargaining or other lawful means, to seek to improve the living and working conditions of those whom the trade unions represent, and that the public authorities should refrain from any interference which would restrict this right or impede the lawful exercise thereof. Any such interference, by the same token, would appear to infringe the generally accepted principle, embodied in Article 3 of the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87), that workers' and employers' organisations should have the right, without such interference, to organise their activities and to formulate their programmes.
  292. 292 While there is no necessary incompatibility with Article 3 of the said Convention in a provision for the certification of the most representative union in a given unit as the exclusive bargaining agent for that unit, this is the case only if a number of safeguards are provided. In several countries in which the procedure of certifying unions as exclusive bargaining agents has been established, it has been regarded as essential that such safeguards should include the following: (a) certification to be made by an independent body; (b) the representative organisation to be chosen by a majority vote of the employees in the unit concerned; (c) the right of an organisation which fails to secure a sufficiently large number of votes to ask for a new election after a stipulated period; (d) the right of an organisation other than the certificated organisations to demand a new election after a fixed period, often 12 months, has elapsed since the previous election.
  293. 293 The Industrial Relations Act does not provide such safeguards. Certification is made by the competent Minister and not by an independent body, such as a labour relations board or labour court, etc.
  294. 294 Under the Act the representative organisation is not necessarily chosen by a free vote of the employees in the unit concerned. Under section 10 (1) of the Act the Minister appears to have a discretionary right to grant a certificate or not. The Second Schedule to the Act provides that the Minister, if he " is satisfied " that not less than 40 per cent of the employees concerned are members of the applicant union, " may, if he thinks fit," issue a certificate. If the Minister is not satisfied that 40 per cent of the employees are members of the union, he " may direct " that a vote of the employees in the unit be held.
  295. 295 While a union may make a further application after 12 months have elapsed since an application has resulted in no certificate being issued or in a certificate being issued to another organisation, the application, once again, is subject to the same provisions empowering the Minister to act in his discretion. Section 12 (1) of the Act, as amended in 1959, empowers the Minister to withdraw a certificate " if he thinks fit ".
  296. 296 The provisions of the Act referred to in the preceding paragraphs do not appear to be compatible with Article 3 of the Convention.
  297. 297 In a direct request addressed to the Government of Ghana in 1962, the Committee of Experts, referring to the provisions of sections 10 (1) and 12, stated, having regard to the fact that the Act does not lay down any objective criteria governing the issue or withdrawal of a certificate, that these provisions hardly appear to be of such a nature as to " encourage and promote the full development and utilisation of machinery for negotiation... of collective agreements ", as is provided in Article 4 of the Right to Organise and Collective Bargaining Convention, 1949 (No. 98), ratified by Ghana, and asked the Government to indicate the measures which it intends to take to repeal or amend these provisions.
  298. 298 In the same direct request, the Committee of Experts referred to the provision in section 10 (6) of the Act prohibiting the issue of a certificate in respect of persons in the public service or persons in the service of a municipal council or a council under the Local Government Ordinance and observed that this provision did not appear to apply only to public officials engaged in the administration of the State-whom a government may exclude from the application of the Convention by virtue of Article 6 thereof-but also to other workers employed by various administrations, who appear to be deprived, contrary to the provisions of Article 4 of the said Convention No. 98, of the right to bargain collectively. The Committee of Experts requested the Government to indicate the measures which have been taken or are intended to be taken to accord them this right.
  299. 299 In these circumstances the Committee, while fully appreciating the desire of the Government of Ghana to ensure that strong and stable trade unions shall engage in collective bargaining on behalf of the workers and that they shall be recognised as entitled to negotiate, recommends the Governing Body:
       • (a) to draw the attention of the Government to the importance which the Governing Body has always attached to the fact that the right to bargain freely with employers with respect to conditions of work constitutes an essential element in freedom of association, and to the principle that trade unions should have the right, through collective bargaining or other lawful means, to seek to improve the living and working conditions of those whom the trade unions represent, and that the public authorities should refrain from any interference which would restrict this right or impede the lawful exercise thereof;
       • (b) to express the view that, for the reasons indicated in paragraphs 294 and 295 above, the discretionary powers accorded to the Minister under sections 10 (1) and 12 of the Industrial Relations Act, 1958, as amended, and the Second Schedule to that Act do not appear to be compatible with the above principle;
       • (c) to draw the attention of the Government to the different points raised by the I.L.O. Committee of Experts on the Application of Conventions and Recommendations, as indicated in paragraphs 297 and 298 above, with regard to incompatibilities which appear to exist between the provisions of sections 10 (1), 10 (6) and 12 of the Industrial Relations Act, 1958, as amended, and the provisions of Article 4 of the Right to Organise and Collective Bargaining Convention, 1949 (No. 98), ratified by Ghana;
       • (d) to suggest to the Government that it may care to consider the possibility of amending the Industrial Relations Act having regard to the considerations set forth in subparagraphs (a), (b), and (c) above;
       • (e) to request the Government to be good enough to keep the Governing Body informed as to further developments in this connection.
       • (e) Allegations relating to Individuals Entitled to Negotiate
  300. 300 It is alleged that all negotiations concerning employment or refusal of employment, conditions of work, etc., for any worker, whether a member of a trade union or not, are undertaken on behalf of the workers by an officer or member of a registered trade union.
  301. 301 The Government declares that the intention in enacting this provision was to prevent certain employers from continuing to choose the trade union leaders with whom they would negotiate and to ensure that negotiations should be undertaken by accredited representatives of the trade unions concerned.
  302. 302 This allegation is so closely linked with and dependent on the allegations relating to the legal recognition of trade unions already examined that the Committee considers that it should be regarded as already covered by the recommendations made in paragraph 299 above.
       • (f) Allegations relating to the Regulation of the Right to Strike
  303. 303 It is alleged that the Industrial Relations Act prohibits strikes and lockouts in the case of certain categories of workers such as those employed in the public services or the municipal councils and school teachers, but it also empowers the Minister to declare other strikes unlawful. In this connection the complainants criticise sections 28 and 29 of the Act.
  304. 304 The Government states that the intent of section 28 is to enable strikes and lockouts to be called in the event of a genuine trade dispute. The Government cites the text giving effect to the principle of conciliation and, if that fails, permitting a strike or lockout unless the Minister has directed that the dispute be referred to arbitration. In the view of the Government these provisions, to which the Trades Union Congress has agreed, promote conciliation and leave the strike weapon to be used only in the last resort. Nevertheless, 99 strikes have taken place since the enactment of the Act without prosecution. The categories referred to by the complainants (see paragraph 303) are those mentioned in section 10 (6) of the Act; the Government regards these as essential services.
  305. 305 To understand the situation it is necessary to consider certain other provisions of the Act. Reference has already been made to the conditions under which unions may be certified as bargaining representatives. Under section 14 a certificated union may call upon the other party to negotiate and vice versa. If either party is satisfied that negotiations have failed, that party may notify the Minister and request the appointment of a conciliation officer (section 23). Unless other effective steps to conciliate or arbitrate have taken place, conciliation then proceeds in accordance with section 24. If conciliation fails the Minister shall serve a notice on the parties asking whether both parties agree to a reference of the dispute to arbitration under section 25 and informing them that if only one party consents to a reference the Minister may order such reference.
  306. 306 According to section 28 (1) a party to a dispute which receives a notice under section 25 may in return serve notice that it does not agree to arbitration and that, unless a compulsory reference to arbitration is made by the Minister with the consent of the other party within four weeks, strike or lockout will be called. When the four weeks end without a reference to arbitration being ordered, the strike or lockout can be lawfully declared. Otherwise, a strike or lockout of employees specified in a certificate is unlawful and, in particular, if the dispute concerns matters covered by a collective agreement (section 28 (2)). Section 29 provides that a strike or lockout of employees who are not of a class specified in a certificate is unlawful under any circumstances.
  307. 307 The Committee has always been guided by the principle that allegations relating to the exercise of the right to strike are not outside its competence in so far, but only in so far, as they affect the exercise of trade union rights and has noted on a number of occasions that the right of workers and their representatives to strike as a legitimate means of defending their occupational interests is generally recognised. In this connection the Committee has emphasised the importance which it attaches, where strikes are prohibited or subject to restriction, to ensuring adequate guarantees to safeguard to the full the interests of the workers thus deprived of an essential means of defending occupational interests, and has pointed out that the restriction should be accompanied by adequate, impartial and speedy conciliation and arbitration proceedings in which the parties concerned can take part at every stage.
  308. 308 In the present case the complainants have not furnished evidence to show that, so far as certificated unions are concerned, the restrictions placed upon the right to strike are not accompanied by the provision of conciliation and arbitration procedures of such a character as to safeguard the workers concerned. However, a difference of treatment appears to exist as between certificated unions, which have the right to strike on certain conditions, and non-certificated unions, which, under section 29, cannot exercise the right to strike under any other circumstances. These non-certificated unions, as already noted, include those which have not secured a certificate because they have not satisfied the numerical or election standards laid down in the Industrial Relations Act, and also those specified in section 10 (6) of the Act to which no certificate can ever be granted. The persons affected by section 10 (6) are not only public officials engaged in the administration of the State but appear to include also, as indicated in paragraph 298 above, other workers employed by administrations, public services, etc.
  309. 309 Under the provisions of the Industrial Relations Act, therefore, the non-certificated classes are not only treated differently, compared with the certificated classes, as regards the actual exercise of the right to strike. In addition, their organisations cannot participate in the statutory conciliation and arbitration procedures therein provided.
  310. 310 In this connection it is to be observed that the Committee has already pointed out in Case No. 258, relating to the Argentine Republic, that where legislation draws a distinction between the most representative organisations and other organisations for such purposes as collective bargaining, this distinction should not have the effect of depriving trade union organisations not recognised as being among the most representative of the essential means whereby they may defend the occupational interests of their members, organise their administration and activities and formulate their programmes.
  311. 311 In these circumstances the Committee recommends the Governing Body:
       • (a) to draw the attention of the Government to the fact that the right of workers and their organisations to strike as a legitimate means of defending their occupational interests is generally recognised, and to the importance which the Governing Body has always attached, where strikes are prohibited or subject to restriction, to ensuring adequate guarantees to safeguard to the full the interests of the workers thus deprived of an essential means of defending occupational interests and to providing that such restrictions should be accompanied by adequate, impartial and speedy arbitration proceedings in which the parties concerned can take part at every stage;
       • (b) to note that the right to strike of workers and their organisations of a class specified in a collective bargaining certification under the Industrial Relations Act is subject to temporary restriction pending recourse to the conciliation and arbitration procedures established by the Act;
       • (c) to note further, however, that workers and their organisations of a class at present not specified or of a class which cannot lawfully be specified in a certificate are entirely prohibited from striking and are not entitled to participate in the conciliation and arbitration procedures established by the Act;
       • (d) to draw the attention of the Government to the importance which the Governing Body attaches to the principle that, where legislation draws a distinction between the most representative organisations and other organisations for such purposes as collective bargaining, this distinction should not have the effect of depriving trade union organisations not recognised as being among the most representative of the essential means whereby they may defend the occupational interests of their members, organise their administration and activities and formulate their programmes;
       • (e) to express the view that the present situation in Ghana of trade unions of workers of a class not specified in a collective bargaining certificate, by contrast with those so specified, does not appear to be compatible with the principles enunciated in subparagraphs (a) and (b) above;
       • (f) to suggest to the Government that it may care to consider the possibility of amending the Industrial Relations Act in the light of the foregoing considerations;
       • (g) to request the Government to be good enough to keep the Governing Body informed as to further developments in this connection.
  312. Allegations relating to the Strikes Which Took Place in September 1961 and to the Arrests of Trade Unionists
  312. 312 It is alleged that on 4 September 1961 railway workers of Takoradi and Sekondi stopped work because deductions had been made from their pay for the " forced savings plan ". The movement spread to other branches of economic activity and of the public administration and processions were organised by strikers throughout the country. In face of this general movement the Government proclaimed a state of emergency at Takoradi and Sekondi. Several trade union officers were arrested and the strikers demanded their release before agreeing to any negotiation. It is alleged that Mr. Adamfio, the Minister for Presidential Affairs, said that " not only would none of those imprisoned be released, but that the strikers would be treated like detestable rats ". Ten days after the strike began a curfew was imposed. The President of the Republic returned from abroad, lifted the state of emergency and appealed to the strikers to return to work, but refused to withdraw the forced savings plan. He accused the instigators of the strike of trying to decide government policy by an unlawful strike. It is alleged that various trade union leaders and political figures were arrested, that the trade union Confederation expelled a dozen trade union officers for participating in the strike and that several trade union leaders were imprisoned or removed from their posts. The complainants state that the White Paper, entitled " Statement by the Government concerning the Recent Conspiracy", which was published on 11 December 1961, attempted to justify the arrest or detention of 50 persons, including 21 trade unionists.
  313. 313 The Government states that the strike was purely political and that the complainants' own statement that the " movement spread to other branches of economic activity and of the public administration " proves that there existed no trade dispute between the workers and their employers. The fact, moreover, that not only trade unionists were arrested is sufficient indication, claims the Government, that this was not a trade union or industrial issue. It was not an industrial strike but a rising in objection to an Act of Parliament. In the view of the Government, therefore, the strike was a political attempt to intimidate the Government and, during the absence of the President, to overthrow the legally constituted Government by illegal means.
  314. 314 It is alleged that the strike began among the railwaymen and then became general and was directed against the making of deductions from pay in respect of the Government's forced savings plan, a matter, according to the Government, regulated by an Act of Parliament. The Government submits further evidence with a view to showing that this was only one part of a concerted and illegal political action. In any event, it would seem clear from the evidence on both sides that the strike was not occasioned by a trade dispute, between the workers and their employers, public or private, but was a protest against an enactment forming part of the Government's economic policy and perhaps in addition, it was a strike connected with political objects not of an occupational nature entering in the normal activities of trade unions.
  315. 315 While the Committee has always applied the principle that allegations relating to the right to strike are not outside its competence in so far, but only in so far, as they affect the exercise of trade union rights, it has taken the view that it was not within its competence to examine allegations relating to strikes by reason of their non-occupational character, or where they have been designed to coerce a government with respect to a political matter, or have been directed against the government's policy and not " in furtherance of a trade dispute ".
  316. 316 While noting the contention of the Government that the strike was purely political in character and recalling that it has in previous cases taken the view that it was not within its competence to deal with strikes of a political nature, the Committee observes that in the present case there is a further question to be considered, namely that of the trade unionists alleged to have been arrested.
  317. 317 According to the complainants 21 trade unionists have been arrested; it is not quite clear whether these arrests are because of their participation in the strike or because of their association in what the Government regards as a political conspiracy of which the strike formed only a part, or even because or partly because of other activities which may or may not have included trade union activities. It is not clear whether all or any of these persons are still in prison or detention or whether all or any of them have ever been brought to trial.
  318. 318 The Committee has recognised that there is a clear distinction between detaining trade union leaders or workers for trade union activities and detaining persons who happen to be trade unionists on the ground of subversive activities outside the trade union sphere. The Committee has also pointed out in the past that where persons have been sentenced on grounds having no relation to trade union rights the matter would fall outside its competence, but has emphasised that the question as to whether such a matter is one relating to a criminal offence or to the exercise of trade union rights is not one which can be determined unilaterally by the government concerned This is one of the reasons, as the Committee explained in paragraph 159 of its 62nd Report when examining Case No. 251 relating to Southern Rhodesia, why the Committee, pointing out that in all cases in which trade union leaders are preventively detained these measures may involve a serious interference with the exercise of trade union rights, has always emphasised the right of all detained persons to receive a fair trial at the earliest possible moment, and has also requested the governments which have contended that arrests or detentions were made for subversive activities to furnish information as to the nature and result of the legal or judicial proceedings instituted. Indeed, it is only on the basis of a trial attended by the guarantees of due process of law that the Committee can appreciate whether such a contention is justified or not.
  319. 319 The Committee therefore recommends the Governing Body:
       • (a) to draw the attention of the Government to the importance which the Governing Body has always attached to the right of all detained persons to receive a fair trial at the earliest possible moment;
       • (b) to request the Government to indicate whether any of the trade unionists alleged by the complainants to have been arrested or detained are still in prison or in detention and, if so, to furnish information as to the legal or judicial proceedings which have been taken or are intended to be taken and as to the outcome of such proceedings.
  320. Allegations relating to the Dissolution of Certain Trade Unions
  320. 320 It is alleged that, following the strikes in September 1961, the Government ordered the dissolution of all trade union branches at Takoradi and Sekondi, contrary to the provisions of Article 4 of the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87).
  321. 321 The Government states that the organisations concerned were dissolved for being " subversive " and for the mere exercise of their freedom " of industrial association ".
  322. 322 In a considerable number of cases the Committee has emphasised the importance which it attaches to the generally accepted principle that workers' and employers' organisations should not be liable to be dissolved or suspended by administrative authority. So as the exact manner in which the dissolution was effected is not fully explained, the Committee requests the Government to indicate whether the dissolution was ordered directly by the Government or through proceedings instituted by the competent authorities in the courts, and by virtue of which legal provisions such dissolution was ordered.