Rapport intérimaire - Rapport No. 87, 1966

1. 127. This case was previously examined by the Committee at its meetings in October 1962, November 1963 and May 1965. At its meeting in May 1965 the Committee, while submitting its definitive conclusions to the Governing Body on the remaining allegations, presented an interim report with regard to certain allegations relating to the legislation concerning trade unions and industrial relations in Ghana. The latter allegations, based on the provisions of the Industrial Relations Act, 1958, as amended in 1959 and 1960, are considered further in the present report. In this connection the Government has furnished the text of the Industrial Relations Act, 1965, which has repealed and replaced the enactments referred to above.
2. 128. 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 Nkrumah, 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 to Organise 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

• Allegations relating to the Legislation concerning Trade Unions and Industrial Relations in Ghana
  • (a) Allegations relating to the Monopoly of the Trades Union Congress of Ghana
    129. 129 These allegations and the Government's observations thereon were examined by the Committee in paragraphs 254 to 265 of its 67th Report and again in paragraphs 176 to 183 of its 83rd Report.
    130. 130 In short, they were based on section 3 (1) of the Industrial Relations Act, 1958, which provided that the Trades Union Congress " shall act as the representative of the trade union movement in Ghana ", section 4 (1), providing that the Congress should consist of members of the trade unions listed in the First Schedule to the Act, and section 4 (3), empowering the Minister to add to or delete from that list the name of any trade union.
    131. 131 Having considered these provisions at its meeting in October 1962, together with other provisions which required any other existing union either to dissolve or to amalgamate with one of the scheduled unions and prohibited the registration of any new union without the consent of the Minister, the Committee recommended the Governing Body, in paragraph 323 (a) of its 67th Report, 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. The Committee also recommended the Governing Body to express the view that the legal provisions referred to above were not compatible with the aforesaid principles.
    132. 132 At its meeting in May 1965 the Committee, in the light of further information furnished by the Government, recommended the Governing Body, in paragraphs 184 and 236 (a) (i) of its 83rd Report, to note that the Government was considering amending the provisions in question.
    133. 133 The Government has forwarded the text of the new Industrial Relations Act, assented to on 23 June 1965, which has repealed the Act of 1958, as previously amended.
    134. 134 Section 1 (3) of the new Act provides that the Trades Union Congress shall continue to act as the representative of the trade union movement in Ghana " unless and until otherwise decided by the trade unions or any appropriate organisation of workers ". According to section 1 (4) the unions in the subsisting schedule shall continue to be members of the Congress " without prejudice to the withdrawal therefrom or addition thereto of any trade union upon the decision of such trade union ". According to section 1 (5), upon such withdrawal from or addition to the membership of the Congress, the Minister " shall " by legislative instrument amend the schedule accordingly. The new Act appears to contain no provision restricting the registration of new trade unions in accordance with the Trade Unions Ordinance, 1941, as amended.
    135. 135 In these circumstances the Committee recommends the Governing Body:
  • (a) to note that the Industrial Relations Act, 1958, as amended in 1959 and 1960, has been repealed and replaced by the Industrial Relations Act, 1965;
  • (b) to note that the new legislation appears to have removed the previous restrictions on the adhesion of trade unions to the Congress and the requirement of the consent of the Minister to the registration of new trade unions.
  • (b) Allegations relating to Compulsory Union Membership
    136. 136 In paragraphs 185 to 194 of its 83rd Report the Committee considered the provisions of sections 16 and 31 (1) (a) of the 1958 Act, as amended. Section 16 provided that " No person who belongs to a class of employees specified in a certificate issued under the provisions of Part II of this Act but who is not a member of the trade union covered by the certificate shall be kept in any employment for a period exceeding one month." Section 31 (1) (a) provided that an employer who " 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 under Part II of this Act and who would share in the benefit of a collective agreement in accordance with section 17 of this Act shall be guilty of an unfair labour practice ".
    137. 137 The Committee, having recalled in paragraphs 189 to 191 of its 83rd Report its own jurisprudence and the observations of the I.L.O. Committee of Experts on the Application of Conventions and Recommendations with respect to trade union monopolies imposed by legislation, in contrast to union security effected voluntarily by trade unions, recommended the Governing Body, in paragraphs 194 and 236 (b) of its 83rd Report, to draw the attention of the Government to its view that sections 16 and 31 (1) (a) of the 1958 Act, as amended, appeared to be incompatible with the generally accepted principle that workers should have the right to establish and join organisations of their own choosing and to express the hope that the Government, when making its proposed amendments to the legislation, would consider amending these provisions with a view to giving full effect to the said principle.
    138. 138 The Act of 1965 does not appear to contain any provision imposing the requirement of compulsory union membership.
    139. 139 In these circumstances the Committee recommends the Governing Body to note that the previously subsisting requirement of compulsory union membership in the case of persons belonging to a category of employees specified in a collective bargaining certificate appears to have been repealed by the new Act.
  • (c) Allegations relating to Interference in the Internal Affairs of the Trades Union Congress
    140. 140 These allegations were examined by the Committee in paragraphs 270 to 285 of its 67th Report and again in paragraphs 195 to 199 of its 83rd Report.
    141. 141 The allegations were based on section 5 (1) of the 1958 Act, as amended, which made the power of the Congress to make its rules subject to approval by the Minister of Labour, section 5 (3), which reserved to the competent Minister certain powers in relation to expenditure by the Congress and the auditing of its funds, and section 8 (1), according to which, if it appeared to the Governor-General that the Congress had taken any action which was " not conducive to the public good ", he might by order direct that all the assets of the Congress should be transferred to and vested in a receiver appointed in the order and held by him.
    142. 142 At its meeting in May 1965 the Committee recommended the Governing Body, in paragraphs 199 and 236 (c) of its 83rd Report, to take note of a statement by the Government that it intended to repeal the provisions in question.
    143. 143 These provisions are no longer maintained in the Industrial Relations Act, 1965.
    144. 144 The Committee therefore recommends the Governing Body to note that sections 5 (1), 5 (3) and 8 (1) of the Industrial Relations Act, 1958, as amended, have been repealed.
  • (d) Allegations relating to the Legal Recognition of Trade Unions
    145. 145 These allegations were examined by the Committee in paragraphs 286 to 299 of its 67th Report and again in paragraphs 200 to 216 of its 83rd Report.
    146. 146 The position may be briefly summarised as follows. Section 10 (1) of the 1958 Act, as amended, provided that the Minister might, on application made according to section 11, issue a certificate appointing a trade union registered under the Trade Unions Ordinance as the appropriate representative to conduct collective bargaining on behalf of a class of employees specified in the certificate, and, according to section 10 (4), such certificate took effect even though some of the employees of the class specified were not members of the union. Section 10 (6) did 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 required the application to be made by the Trades Union Congress on behalf of the union concerned; if the Congress made no application within three months the union could apply directly to the Minister. Section 12 empowered the Minister to withdraw a certificate if he thought fit, after consultation with the union concerned and with the appropriate employers' organisation.
    147. 147 Paragraph 1 (2) of the Second Schedule to the Act provided that, if the Minister was satisfied that not less than 40 per cent of the employees of the class described in the application were members of the union and that the class formed a suitable unit for collective bargaining, he might, if he thought fit, issue a certificate. If not so satisfied he could order a vote to be held, in the circumstances defined in paragraph 2 of the Schedule and with the consequences described in paragraph 203 of the Committee's 83rd Report.
    148. 148 When it examined these provisions at its meeting in October 1962 the Committee observed that, in a number of cases, it 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, said the Committee, 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.
    149. 149 The Committee pointed out that, while there is not necessarily incompatibility with Article 3 of the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87), 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 for certifying unions as exclusive bargaining agents has been established, observed the Committee, 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 other than the certificated organisation to demand a new election after a fixed period, often 12 months, has elapsed since the previous election.
    150. 150 The Committee took the view that the 1958 Act, as amended, did not provide such safeguards, certification being made by the competent Minister and not by an independent body, and the representative organisation not necessarily being chosen by a free vote of the employees in the unit concerned. The Committee referred especially to the discretion of judgment accorded to the Minister by sections 10 (1) and 12 (1) and the Second Schedule to the Act.
    151. 151 The Committee concluded therefore that the provisions referred to above did not appear to be compatible with the principle enunciated in Article 3 of the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87). The Committee also referred to the fact, noted by the I.L.O. Committee of Experts on the Application of Conventions and Recommendations, that the legal provisions referred to above, bearing in mind that the Act did not lay down any objective criteria governing the issue or withdrawal of a certificate, hardly appeared 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.
    152. 152 Accordingly, in paragraph 323 (b) of its 67th Report, the Committee recommended the Governing Body to draw the attention of the Government to the principles enunciated in paragraph 148 above and to the incompatibilities referred to in paragraph 151 above and to suggest to the Government that it might care to consider the possibility of amending the legislation in the light of these considerations.
    153. 153 At its meeting in May 1965 the Committee had before it a communication from the Government dated 26 April 1965, in which the Government stated that section 10 (1) of the 1958 Act (see paragraph 146 above) would be replaced by the following text:
  • Subject to the provisions of this Part of this Act, the Registrar of Trade Unions shall, on the application of the Trades Union Congress, register under the Trade Unions Ordinance and issue a certificate appointing a trade union as the appropriate representative to conduct, on behalf of a class of employees specified in the certificate, collective bargaining with their employers.
• In the same letter the Government stated that it was intended also to repeal sections 10 (6), 11 (1) and (2), paragraphs 1 (2) and 2 of the Second Schedule (see paragraphs 146 and 147 above); paragraph 2 of the Schedule, which contained the complex voting rules prior to a certification, would be replaced by a short provision to the effect that " if there is more than one union in any organisation the Trades Union Congress shall decide which union shall represent the interests of the organisation ".
  154. 154 The Committee took note of these statements but observed in paragraph 215 of its 83rd Report that, nevertheless, it appeared that the registration of any new union and the issue of a bargaining certificate to any union at all would both be effected by the Registrar " on the application of the Trades Union Congress ", and that the proposed amending legislation did not appear to define the criteria according to which a union would be certificated as a representative bargaining agent. It seemed to the Committee, if it understood the position correctly, that no new union could be registered and no union at all, however representative, could have the certificate entitling it to bargain unless the Congress made application on its behalf, so that the Congress would still have the sole right to determine, in effect, whether a new union could register and whether any given union would enjoy bargaining rights at all, without even being bound by any criteria as to its degree of representativeness.
  155. 155 In these circumstances, while deferring the formulation of its definitive conclusions on this aspect of the case, the Committee recommended the Governing Body, in paragraph 236 (d) of its 83rd Report, to take note of the Government's statement that it was considering the repeal of sections 10 (1), 10 (6), 11 (1) and 11 (2) of the Act, and paragraphs 1 (2) and 2 of the Second Schedule to the Act, to draw the attention of the Government to the considerations set forth in the preceding paragraph and to suggest to the Government that it might care to have regard to such considerations when putting into effect its proposals to amend the legislation.
  156. 156 The new Act does not appear to have carried into effect the Government's original intention (see paragraph 153) to provide for registration to be effected through the application of the Trades Union Congress. In fact it appears to contain no provisions relating to registration at all, so that trade unions would appear to be entitled to registration if they comply with the provisions of the Trade Unions Ordinance. Section 3 (1) of the 1965 Act provides:
• The Congress shall on application by a trade union request the Registrar to issue a certificate appointing that trade union as the appropriate representative to conduct on behalf of a class of employees specified in the certificate collective bargaining with the employers of such employees and, subject to subsection (4), the Registrar shall be bound to comply with such a request.
• Section 3 (4) provides:
• More than one certificate may be issued under this section in respect of the same trade union but the Registrar shall not appoint a trade union under this section for any class of employees if there is in force a certificate under this section appointing another trade union for that class of employees or any part of that class.
• Section 3 (5) provides:
• A certificate issued under this section shall have effect notwithstanding that some of the employees of the class specified are not members of the trade union appointed under the certificate.
• Section 3 (7) provides:
• At any time after the issue of the certificate under this section the Registrar may at the request of either the trade union to which the certificate applies or the appropriate employers' organisation and after consultation with the said trade union and the said organisation withdraw the certificate without prejudice to the right of such a trade union to apply for a fresh certificate under this section.
  157. 157 The new Act does not define the manner in which the representativeness of a union shall be determined or lay down rules as to the degree of representativeness which shall entitle a union to the issue of a certificate under section 3 (1). This being so, the Committee has no information before it as to the criteria on the basis of which these matters are decided. Also, in view of the provisions of section 3 (4), the Committee is unable to form a view as to how, in the event of a new union being registered under the Trade Unions Ordinance and organising a larger number of employees of a given class than does a union already having a bargaining certificate in respect of that class, the new union could obtain a bargaining certificate as being more representative.
  158. 158 The Committee also observes that, when an application for registration is made under the Trade Unions Ordinance, 1941, as amended, the Registrar shall, according to section 11 (3) thereof, first consider the observations and objections (if any) of the Commissioner of Labour and certain other authorities and any other objections which may have been brought to his notice, and that, according to section 12 (1) (d), he shall not register the union unless he is satisfied, inter alia, that the objections (if any) submitted under section 11 (3) are not of sufficient substance to justify a refusal to register. As the ordinance does not define the grounds on which valid objections may be made, the Committee is unable to form an opinion as to whether, for example, the fact that a trade union already existed which catered for the same class of employees as a new union seeking registration organised or proposed to organise, or the fact that the existing union held a bargaining certificate under the Industrial Relations Act, 1965, in respect of such class of employees, would give rise to objections of sufficient substance to justify the Registrar, in terms of the Trade Unions Ordinance, in refusing to register the new union.
  159. 159 In these circumstances the Committee, while fully appreciating the importance of the legislative changes which have been made by the new Act, would be grateful if the Government would be good enough to clarify the situation as regards the registration or certification of new unions in the light of the points mentioned in paragraphs 157 and 158 above.
       • (e) Allegations relating to the Regulation of the Right to Strike
  160. 160 These allegations, examined by the Committee in paragraphs 303 to 311 of its 67th Report and again in paragraphs 217 to 222 of its 83rd Report, were based on the fact that section 28 of the 1958 Act placed temporary restrictions on the right to strike of workers belonging to certificated unions, while section 29 prohibited strikes in any circumstances whatsoever by workers belonging to non-certificated unions, even though the latter could also not participate in the statutory conciliation and arbitration procedures provided for in the Act.
  161. 161 At its meeting in May 1965 the Committee had before it a statement by the Government, in its communication dated 26 April 1965, that it intended to repeal section 29 of the 1958 Act, and recommended the Governing Body, in paragraphs 222 and 236 (e) of its 83rd Report, to take note of this statement.
  162. 162 The position under the 1965 Act is not quite clear. The Act places temporary restrictions on strikers pending recourse to the procedures for settlement of disputes provided for in the Act. These restrictions, contained in section 21 of the Act, appear to be applicable with respect to strikes by employees of a class specified in a bargaining certificate, but no indication appears to be given as to the situation of employees who do not belong to such a class, so far as the exercise of the right to strike is concerned. The Committee therefore requests the Government to be good enough to state what distinctions, if any, still exist between the strike rights of workers of a certificated class and those of other workers.