Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87) - Ghana (RATIFICATION: 1965)

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The Government has communicated the following information:

In relation to the powers of the Registrar to oppose registration of trade unions the Government indicated that the actual purpose of the powers of the Registrar is to check the possibility of registering a trade union whose activities might be unlawful.

Section 12(3) of the Trade Unions Ordinance, 1941 (Cap. 91), states as follows:

Any person aggrieved by any refusal of the Registrar to register a trade union may, within ninety days from the date of notification of such refusal, appeal to the Supreme Court, and on such appeal the Supreme Court may make such order as it thinks proper, including any directions as to the costs of the appeal. Any such order of the Supreme Court shall be final and conclusive and shall not be subject to appeal to any other court.

Thus it can be seen that a limitation has been placed on the powers of the Registrar to refuse to register a trade union by giving the right of appeal to the Supreme Court.

As regards "the powers of the Registrar, in the context of the procedure of granting recognition for purpose of collective bargaining, to refuse to appoint a trade union for any class of employees if there is in force a certificate as a negotiating representative for that class (section 3(4) of the Industrial Relations Act No. 299 of 1965)", it is worthy to note that under trade unionism in Ghana every class of workers, which becomes a trade union, is affiliated to one of the existing national unions depending on the industry or economic activity to which the establishment of the employees forming the union belongs.

Under normal circumstances, and in practice, collective bargaining certificates for the component groups of a national union are issued to the appropriate national union. The meaning of section 3(4) of the Industrial Relations Act, 1965 (Act No. 299), in this context, is that the national union involved should not create the situation whereby a class of employees covered under one collective bargaining certificate is found to be covered under another certificate. Such a situation could arise, where, for example, some engineering workers of one national union, who hitherto belonged to separate local unions, could decide to come together and apply for a certificate. Under section 3(4), they are disqualified because either of the two component parts would be catered for under the certificate of their existing local unions.

In connection with the absence of provisions on the right to form and to join federations and confederations and the right to join international organisations of workers and employers, even though in practice Ghana Trades Union Congress and its 17 national organisations are affiliated to the International "Confederation of Free Trade Unions (ICFTU) and the Organisation of African Trade Union Unity (OATUU)", it is worth mentioning that section 1 of the Industrial Relations Act, 1965 (Act No. 299), gives ample provision for the existence of the Trades Union Congress which is a federation/confederation of the 17 national unions. Each of these unions is a federation of all the local unions falling within the same industry division since, in Ghana, unionisation is based on industry division and not on craft basis. The national unions are all constituents of the Trades Union Congress which is therefore a federation/confederation of the national unions.

As regards the right to join international organisations of workers, the Trades Union Congress is not affiliated to any of the three international organisations, namely: (1) International Confederation of Free Trade Unions; (2) World Federation of Trade Unions; and (3) World Confederation of Labour.

This non-affiliation is on the Trades Union Congress's own volition as a means of pursuing a policy of non-alignment. Despite this, the Trades Union Congress maintains joint educational and publication programmes and secures assistance from them.

Furthermore, each of the 17 autonomous national unions is affiliated to the trade secretariats of international trade union organisations, e.g. transport workers, chemical workers and agricultural workers.

With regard to employers, the Ghana Employers' Association is affiliated to the International Organisation of Employers and the Pan-African Employers' Confederation.

In addition, a Government representative of Ghana reiterated the written information communicated by his Government. He further stated that, since ratification of the Convention, Ghana has made every effort to ensure full compliance of the Convention in law and practice. He indicated that some background information on the practice in Ghana, supported by the Industrial Relations Act, which governed relations between the union and the employer as well as other matters concerning collective bargaining and peaceful settlement of industrial disputes arising from such collective bargaining, might clarify the situation and demonstrate the efforts made, and which continue to be made, to conform with the provisions of the Convention.

Before the enactment of the Industrial Relations Act in Ghana in 1958, there were two major trade union centres, the Gold Coast Trades Union Congress and the Ghana Trades Union Congress. These two merged later on to form the Ghana Trades Union Congress. At that time there was a large multiplicity of trade unions, numbering about 146, which were small and ineffective. The Ghana Trades Unions Congress found it necessary to restructure the trade union movement in the country. This led to the merging of these unions into 24 national unions.

The Industrial Relations Act of 1958 was, therefore, passed to recognise these unions and to make it possible for them to negotiate with their employers. The Industrial Relations Act was amended in 1959 and 1960. It was finally repealed and re-enacted in 1965 and is still in force. The unions under this law had to restructure themselves and reduced from 24 to 10 national unions and then increased to 16 in 1966 and again to 17 in 1970. The Registrar of Trade Unions, throughout these changes, issued them with certificate on application to enable them to operate as trade unions.

The restucturing of trade unions was carried out to organise these unions on a industrial basis. This meant that the union to which a worker belonged would depend on the industry in which he worked. This type of trade unionism had been functioning effectively. A worker was free to join or not to join a union where he was employed. Either way, the worker would enjoy the conditions negotiated by the union at his place of work.

All the national unions were affiliated to the Ghana Trades Union Congress. No new trade union had been formed since 1970. Indeed, in all sectors of industry, commerce and services in the economy which employed labour, their workers were organised in one of the 17 national unions. These 17 national unions were structured so as to cover all the sectors of the economy.

When a new business was etablished, the appropriate national union, without delay and without any prompting from any one group of the social partners, organised the workers in that establishment. The TUC on behalf of that national union then applied to the Registrar of Trade Unions for a collective bargaining certificate, to enable them to bargain with their employers. This was issued by the Registrar without question.

If there was a doubt as to which of the 17 national unions should organise the workers and obtain a bargaining certificate for a particular group of workers, this was settled by a Demarcation Committee which was a subcommittee of the Executive Board of the TUC. The work of the Demarcation Committee was carried out completely without interference. When the Demarcation Committee agreed on the union to be issued with a collective bargaining certificate to negotiate with a particular employer, the Registrar had never refused and would never refuse to issue the certificate. It was in the interest of the Government, the employer and the union that the certificate be issued to enable the parties to bargain collectively for conditions of service to ensure that industrial relations were conducted through dialogue and consensus so as to ensure industrial peace at the workplace.

With regard to the registration of trade unions, there was no reason to believe that the Registrar would refuse to issue a certificate to a new trade union if that group satisfied the requirements of the Trade Unions Ordinance. Section 8 of this Ordinance provided:

"Any five or more members of a trade union may, by subscribing their names to the rules of the union and otherwise complying with the provisions of this Ordinance with respect to registration, register such trade union under this Ordinance; provided that if any one of the purposes of such trade union be unlawful such registration shall be void."

In fact, no such new trade union had applied for registration since 1970.

The other issue concerned the powers of the Registrar, in the context of the procedure of granting recognition for purposes of collective bargaining, to refuse to appoint a trade union for any class of employees if there is in force a certificate as a negotiating representative for that class, as stated in Section 3 (4) of the Industrial Relations Act, 1965 (Act 299).

That provision reads as follows: "More than one certificate may be issued unde 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".

The reference in the Government's reply to the Committee of Experts' comments about the fact that the bargaining certificate is normally held by national unions to which the workers who wish to negotiate belong is real and practical. In fact, there have been cases where the Registrar has had to issue two certificates to two national unions organising two different classes of workers. An example is a certificate issued to Industrial and Commercial Workers' Union and Maritime and Dockworkers' Union to negotiate for workers in the Ghana Industrial Holding Corporation (GIHOC) Boat Yard Division and the commercial and industrial workers of GIHOC. Others are the Industrial and Commercial Workers Union and the General Agricultural Workers Union which negotiate with one employer, the Ghana Cocoa Marketing Board and again a Public Services Workers Union and the General Agricultural Workers Union which negotiate with one employer, the Council for Scientific and Industrial Research.

The issue raised by the Committee of Experts' comments as regards the right of majority union has not arisen and in fact is non-existent in Ghana. The unions are organised on an industrial basis and a national union for an industry would normally not apply for more than one certificate for the same class of workers except in the cases already mentioned, where two national unions are organising two different classes of workers employed by the same employer.

It was not necessary to enact legislation as suggested by the Committee of Experts since the Registrar already had the power to issue a certificate when necessary. The problem did not exist now. If ever it did arise, the Registrar would use his present powers and duties to issue a certificate.

As concerns the right of appeal against a refusal to register a trade union, the Committee of Experts' view that the law did not clearly define the nature of objection which could justify such a refusal and, therefore, limited the scope of the court to exercise any control, did not reflect the true picture. In fact, in the absence of any definition of the nature of the objections which could be appealed against, it would be for the court to decide any cases which arose. So far there have not been any such cases. In this matter, the Government would have to obtain a legal opinion from the Attorney-General of Ghana. The Government had indicated in its report that the National Advisory Committee on Labour was handling the matter, but this interpretation of the law was beyond its competence and the Government was therefore obliged to seek the assistance of the Government Legal Office.

Every effort would be made to obtain a legal interpretation so that the Government could reply fully to the comments on this issue.

The Committee of Experts' comments concerning the absence of provisions to guarantee 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 would have to be examined in the light of the existing federation of unions with the national unions and the confederation of the national unions with the TUC.

If the Government stated in its reply to the Experts' comments that this matter was being examined by the National Advisory Committee on Labour, it was because the issue was not a simple one of adopting a recommended legislative provision. The Government would ensure that a statement be supplied which would give full information on the Constitution of the TUC and the national unions in order to provide a fuller understanding of the practice in the country, which the Government considered did not infringe Article 5 of the Convention.

The Employers' members noted that the Government had been indicating its intention to clarify the legislative situation since 1967. They associated themselves with the comments made in the Committee of Experts' report concerning the extensive powers of the Registrar and the system of trade union unity. Since 1986, the Committee of Experts had indicated that the provisions granting the Registrar the right to refuse an application for the registration of a trade union were not clear. If the criteria were not clearly defined, then the right of appeal was not sufficient because the courts would not have any criterion for determining whether the Registrar had acted properly. It was necessary to establish clear criteria so that the powers of the Registrar could be appropriately controlled.

As concerned the granting of collective bargaining certificates, it was clear that such a certificate would be refused if there was already in force a certificate naming a negotiating representative for that class of employees. The Committee of Experts had recognised that a certificate could be issued to the majority trade union as the exclusive negotiator, but that the determination of what constituted a majority trade union should be based on pre-established and objective criteria. Without such an objective criteria it would be impossible to change the majority trade union recognised. The Government representative had provided no new information concerning the criteria on which a majority trade union was to be determined.

Finally, there was the issue of the right to form and join federations and confederations and the right to join international organisations of workers and employers. The Industrial Relations Act of 1965 established a system of trade union unity by dealing only with the right of unions to affiliate with the TUC or to withdraw from it. Independent associations were not possible. The Committee of Experts had been commenting on this issue since 1968. Since 1981, the Experts had made observations in their report concerning this discrepancy and, in 1983, the ILO provided technical assistance to the Government and certain texts were drafted in order to bring the legislation into conformity with the Convention. It seemed that the Government then had the will and desire to change the legislation in this regard. The necessary changes were not made, however, and the Government representative's statement today seemed to indicate that there was no longer a will to amend the legislation.

This case was never discussed in this Committee previously, although the case probably should have been taken up earlier as it involved clear violations of the Convention on freedom of association and the protection of the right to organise. The Employers' members concluded by urging that the necessary changes to law and practice be made in the very near future and suggested that, if these changes were not made by next year, the Committee would have to discuss the case again and indicate their great concern.

The Workers' members noted that the Committee of Experts' report was very clear and confirmed that, in the light of the divergence between the legislation and the Convention, it was necessary to amend the legislation as concerns, in particular, three points.

In the first place, there was the absence of provisions concerning the right to form and join federations and confederations and the right to join international organisations. According to the Experts, the legislation had established a system of trade union monopoly contrary to the principles of the Convention and the workers' right to organise.

The second problem concerned the extensive powers of the Registrar as regards the registration of trade unions. The Committee had been stressing, for a long time now, that even if the Government maintained that the right of appeal was provided for, the Experts had replied that this right of appeal remained illusory as the Registrar's reasons for refusal did not have to be explained or specified.

Finally, there was the problem of the issuance of a certificate for collective bargaining to the majority trade union. This provision made the existence of several trade union organisations impossible in practice, even if the workers wanted this.

The comments made by the Government representative and the text must be examined by the Committee of Experts, but this information unfortunately did not add much to the elements commented upon by the Committee of Experts. To the contrary, this information confirmed the situation which had been commented upon for a long time now. Even if the Government maintained that there was no problem in practice, this was all the more reason to change the legislation in the near future, as had been requested for many years.

The Workers' members added that the Committee of Experts had been making these same fundamental comments concerning Convention No. 87 since 1968. In December 1983, thanks to ILO technical assistance, amendments to the existing legislation had been drafted, yet they had still not been adopted. For this reason, the Workers' members urged that, in its conclusions, the Committee firmly request the Government to take the necessary measures in the near future to bring the legislation into conformity with the Convention. If no progress could be noted next year, the Committee would have to consider taking other measures.

The Workers' member of Sri Lanka supported the comments made by the Workers' members and added that the Government representative seemed to be indicating in his statement that the law and practice in his country was in complete harmony with the provisions of the Convention. He asked the Government representative, therefore, to confirm that the Government was prepared to adopt the amendments drafted with the assistance of the ILO in 1983, so as to ensure that there was no divergence between the law and practice and the Convention.

The Government representative of Ghana indicated that he had taken note of all the comments made and assured that every effort would be made to ensure that the National Advisory Committee on Labour would make the necessary amendments to bring the law into conformity with the Convention, according to the comments made by the Committee of Experts.

The Committee took note of the written and oral information supplied by the Government and of the discussion which took place in the Committee. The Committee recalled that the conclusions of the Committee of Experts concerning the continuing divergence between, on the one hand, the law and practice and, on the other hand, the requirements of the Convention as regards the registration of trade unions, the designation of a negotiating agent, the denial of the right to set up federations and confederations outside the existing trade union structure, and the absence of provisions guaranteeing the right to affiliate with international organisations. The Committee recalled that these questions have been raised for many years and that the Government has benefited from the technical assistance of the ILO since 1983. Consequently, the Committee expressed the firm hope that the Government would be in a position to indicate the substancial progress made in its next report and, if necessary, 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. In the event that the case did not favourably evolve very rapidly, the Committee would have to envisage other measures in the examination of this case.

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Articles 2 and 3 of the Convention. Right of workers and employers, without distinction whatsoever, to establish and join organizations of their own choosing. Right of workers’ organizations to organize their activities in full freedom. The Committee recalls that, for many years, it has been requesting the Government to take the necessary measures to amend the following provisions of the 2003 Labour Act and its 2007 Regulations:

• • section 79(2), which excludes persons performing managerial and decision-making functions from the right to establish and join organizations of their own choosing;
• • section 1, which excludes prison staff from the scope of application and therefore from the right to establish and join organizations of their own choosing;
• • section 80(1), which provides that two or more workers may establish or join a trade union if they are in the same “undertaking”, defined in section 175 of the same Act as “the business of any employer”;
• • section 80(2), which provides that employers must employ not less than 15 workers to establish or join an employers’ organization;
• • section 81, which does not explicitly authorize trade unions to form or join confederations;
• • sections 154–160, which do not set any time limit with regard to mediation;
• • section 160(2), under which collective disputes are referred to compulsory arbitration if they are not resolved within seven days; and
• • section 20 of the 2007 Regulations which sets out too broad a list of essential services.

The Committee notes that the Government indicates in its report that the social partners have started to review the labour legislation and are submitting their contributions to the text that will subsequently become law. The Committee expects that the Government, in consultation with the social partners, will soon complete the review of the labour legislation and ensure that it is brought into full conformity with the Convention, in light of the comments that the Committee has been making for many years. The Committee requests the Government to provide information on any progress and a copy of the legal texts adopted. The Committee reminds the Government that it may request technical assistance from the Office.

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The Committee takes note of the observations of the International Trade Union Confederation (ITUC) received on 1 September 2017 referring to many of the issues raised below and also alleging violations of the right to strike in practice. The Committee requests the Government to provide its comments thereon.

Articles 2 and 3 of the Convention. Right of workers and employers, without distinction whatsoever, to establish and join organizations of their own choosing. Right of workers’ organizations to organize their activities in full freedom. The Committee recalls that, for many years, it has been requesting the Government to take the necessary measures to amend the following provisions of the 2003 Labour Act and its 2007 Regulations:

• -section 79(2), which excludes persons performing managerial and decision-making functions from the right to establish and join organizations of their own choosing;
• -section 1, which excludes prison staff from the scope of application and therefore from the right to establish and join organizations of their own choosing;
• -section 80(1), which provides that two or more workers may establish or join a trade union if they are in the same “undertaking”, defined in section 175 of the same Act as “the business of any employer”;
• -section 80(2), which provides that employers must employ not less than 15 workers to establish or join an employers’ organization;
• -section 81, which does not explicitly authorize trade unions to form or join confederations;
• -sections 154–160, which do not set any time limit with regard to mediation;
• -section 160(2), under which collective disputes are referred to compulsory arbitration if they are not resolved within seven days; and
• -section 20 of the 2007 Regulations which sets out too broad a list of essential services.

The Committee notes that the Government once again indicates in its report that the concerns raised by the Committee are being considered for necessary action by the National Tripartite Committee, the relevant Ministries and other authorities concerned. The Committee expresses its concern regarding the lack of progress in this respect and requests the Government to intensify its efforts in bringing its legislation into conformity with the Convention. The Committee once again requests the Government to provide information on any measures taken or envisaged with a view to amending the abovementioned legislative provisions, and to provide a copy of all relevant texts. The Committee recalls that the Government may, if it so wishes, avail itself of the Office’s technical assistance in this matter.

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The Committee notes the observations of the International Organisation of Employers (IOE) received on 1 September 2015, which are of a general nature.

Articles 2 and 3 of the Convention. Legislative issues. The Committee recalls that, for many years, it has been commenting on the need to amend the following provisions of the 2003 Labour Act and its 2007 Regulations:

• -section 79(2), which excludes persons performing managerial and decision-making functions from the right to establish and join organizations of their own choosing;
• -section 1, which excludes prison staff from the scope of application and therefore from the right to establish and join organizations of their own choosing;
• -section 80(1), which provides that two or more workers may establish or join a trade union if they are in the same “undertaking”, defined in section 175 of the same Act as “the business of any employer”;
• -section 80(2), which provides that employers must employ not less than 15 workers to establish or join an employers’ organization;
• -sections 154–160, which do not set any time limit with regard to mediation;
• -section 160(2), under which collective disputes are referred to compulsory arbitration if they are not resolved within seven days; and
• -section 20 of the 2007 Regulations which sets out too broad a list of essential services.

The Committee notes that the Government indicates once again in its report that the concerns raised by the Committee are being considered for necessary action by the ministries and other authorities concerned. The Committee regrets the lack of progress, and again requests the Government to provide information on any measures taken or envisaged with a view to amending the abovementioned legislative provisions, and to provide a copy of all relevant texts. The Committee recalls that the Government may, if it so wishes, avail itself of the Office’s technical assistance in this matter.

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The Committee takes note of the comments provided by the Government in reply to previous observations from the International Trade Union Confederation (ITUC). The Committee however notes that the Government’s report contains no reply to its previous comments. It hopes that the next report will include full information on the matters raised in its previous comments.

Repetition

Legislative issues. The Committee recalls that, for many years, it has been commenting on the need to amend the following provisions of the 2003 Labour Act and its 2007 Regulations:

• – section 79(2), which excludes persons performing managerial and decision-making functions from the right to establish and join organizations of their own choosing;
• – section 1, which excludes prison staff from its scope of application and therefore from the right to establish and join organizations of their own choosing;
• – section 80(1), which provides that two or more workers may establish or join a trade union if they are in the same “undertaking”, defined in section 175 of the same Act as “the business of any employer”;
• – section 80(2), which provides that employers must employ not less than 15 workers to establish or join an employers’ organization;
• – sections 154–160, which do not set any time limit with regard to mediation;
• – section 160(2), under which collective disputes are referred to compulsory arbitration if they are not resolved within seven days; and
• – section 20 of the 2007 Regulations which sets out too broad a list of essential services.

The Committee notes the Government’s indication in its report that in the work that is being carried out with the ministries concerned, the Committee’s comments are being taken into account. The Committee requests the Government to provide information in its next report on any measures taken or envisaged with a view to amending the abovementioned legislative provisions and to provide a copy of all relevant texts. The Committee recalls that the Government may, if it so wishes, avail itself of the Office’s technical assistance in this matter.

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The Committee notes the comments made by the International Trade Union Confederation (ITUC), dated 31 July 2012, concerning the application of the Convention and, in particular, the allegations of violent repression by the police during a peaceful demonstration organized by the National Association of Graduate Teachers (NAGRAT). The Committee requests the Government to provide its observations on this subject, as well as on the ITUC’s 2008, 2009 and 2011 comments.

Legislative issues. The Committee recalls that, for many years, it has been commenting on the need to amend the following provisions of the 2003 Labour Act and its 2007 Regulations:

• -section 79(2), which excludes persons performing managerial and decision-making functions from the right to establish and join organizations of their own choosing;
• -section 1, which excludes prison staff from its scope of application and therefore from the right to establish and join organizations of their own choosing;
• -section 80(1), which provides that two or more workers may establish or join a trade union if they are in the same “undertaking”, defined in section 175 of the same Act as “the business of any employer”;
• -section 80(2), which provides that employers must employ not less than 15 workers to establish or join an employers’ organization;
• -sections 154–160, which do not set any time limit with regard to mediation;
• -section 160(2), under which collective disputes are referred to compulsory arbitration if they are not resolved within seven days; and
• -section 20 of the 2007 Regulations which sets out too broad a list of essential services.

The Committee notes the Government’s indication in its report that in the work that is being carried out with the ministries concerned, the Committee’s comments are being taken into account. The Committee requests the Government to provide information in its next report on any measures taken or envisaged with a view to amending the abovementioned legislative provisions and to provide a copy of all relevant texts. The Committee recalls that the Government may, if it so wishes, avail itself of the Office’s technical assistance in this matter.

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The Committee notes the observations of the International Trade Union Confederation (ITUC) dated 4 August 2011 concerning issues already raised by the Committee and in particular refers to obstacles on the right of organizations to freely organize their activities in the export processing zones (EPZs). The Committee requests the Government to provide its observations on these comments, as well as on the 2008 and 2009 ITUC’s comments.

The Committee notes that the Government’s report has not been received. It must therefore repeat its previous observation which read as follows:

Article 2 of the Convention. Right of workers and employers to establish and join organizations of their own choosing without previous authorization. Managerial and executive staff. The Committee had previously requested the Government to take the necessary measures to amend section 79(2) of the Labour Act so as to ensure that workers performing managerial and decision-making functions maintain the right to establish and join organizations of their own choosing and in alignment with article 21(e) of the 1992 Constitution of Ghana which allows for freedom of association, including the freedom to form or join trade unions or other associations, national and international. The Committee had noted that the Government indicated that this request had been communicated to the Sector Minister (Ministry of Manpower, Youth and Employment). The Committee requests the Government to indicate in its next report any measures taken or contemplated to amend section 79(2).

Prison staff. The Committee had previously requested the Government to take the necessary measures to amend section 1 of the Labour Act to ensure that the guarantees of that Act apply to the staff of the prison service, ensuring that they enjoy the right to establish and join organizations of their own choosing. The Committee once again requests the Government to take the necessary measures to amend section 1 and to inform it of any progress in this regard.

Right to establish and join organizations at the branch or industry level. The Committee, in its previous comment, noted the Government’s statement that workers may establish trade unions at the branch or industry level, as section 80(1) of the Labour Act allows two or more workers to form or join a trade union if they are in the same “undertaking”, which is defined under section 175 of the same act as “the business of any employer”. The Committee recalled that under Article 2 of the Convention workers have the right to establish organizations of their own choosing, including organizations grouping together workers from different workplaces and requested the Government to take the necessary measures to amend section 80(1) of the Labour Act. The Committee again noted that the Government indicated that the apparent discrepancy between section 80(1) and the requirements of the Convention has been communicated to the Sector Minister for redress. The Committee therefore once again requests the Government to indicate in its next report the measures adopted to ensure the right to establish and join organizations at the branch or industry level.

Right of employers to establish and join organizations of their own choosing. The Committee had previously requested the Government to amend section 80(2) of the Act to lift the requirement of employing at least 15 workers in order for an employer to establish or join an employers’ organization. The Committee requests the Government to indicate in its next report any progress made in this regard.

Article 3. Right of workers’ organizations to organize their administration and activities and to formulate their programmes. In several of its previous comments, the Committee had noted that sections 154–160 of the Labour Act contain no specific time limit within which mediation should be concluded, and requested the Government to complement the Labour Act by setting specific and not excessively long time limits within which mediation efforts should be concluded, so as not to unduly impede the possibility for workers to have recourse to lawful strikes for the defence of their occupational rights and interests. The Committee had also asked the Government to repeal section 160(2) of the Labour Act, so as to limit the possibility for the authorities to refer collective disputes to compulsory arbitration only to cases involving: (1) essential services in the strict sense of the term; and (2) public servants exercising authority in the name of the State. The Committee noted the Government’s indication that this concern has been communicated to the Minister of Employment and Social Welfare. The Committee once again requests the Government to set specific and not excessively long time limits within which mediation efforts should be concluded, and to take the necessary measures to repeal or modify section 160(2) of the Labour Act and to communicate any measures taken or contemplated in either respect.

Essential services. In its previous comment, the Committee noted that section 16 of the Labour Act prohibits strikes in essential services and listed the specific services deemed to be essential. The Committee further noted that the list of essential services in section 20 of the Labour Regulations, 2007, included the following: air transport services; the supply and distribution of fuel and petrol; public transport services, ports and harbours, private security services; and the Bank of Ghana. The Committee has considered that, although a prohibition on strikes in essential services is permissible under Article 3 of the Convention, these services are not essential in the strict sense of the term – i.e. services the interruption of which would endanger the life, personal safety or health of the whole or part of the population (see General Survey of 1994 on freedom of association and collective bargaining, paragraph 159). The Committee recalled that, as an alternative to an outright prohibition on strikes, in order to avoid damages that are irreversible or out of proportion to the interests of the parties in a dispute, the authorities could establish a negotiated minimum service in case of strikes in these services. Such a service, the Committee further recalled, must genuinely be a minimum service – that is, one which is limited to the operations which are strictly necessary to meet the basic needs of the population or the minimum requirements of the service, while maintaining the strike’s effectiveness. Secondly, since this system restricts one of the essential means of pressure available to workers to defend their interests, their organizations should be able to participate in defining such a service, along with employers and the public authorities (see General Survey, op. cit., paragraphs 160 and 161). The Committee noted that the Government indicated that the concerns of the Committee had been communicated to the Sector Ministry for consideration. The Committee recalled in this respect that, although a prohibition on strikes in essential services is permissible under Article 3 of the Convention, the abovementioned services are not essential in the strict sense of the term. The Committee once again requests the Government to take the necessary measures to amend section 20 of the Labour Regulations, 2007, so as to remove the outright prohibition on strikes in the services noted above and, if it so wishes, to provide for a negotiated minimum service during strikes in these services, in accordance with the principles outlined above.

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The Committee notes the observations of the International Trade Union Confederation (ITUC) dated 29 August 2008 and 26 August 2009 on the application of the Convention and requests the Government to provide its comments in regards to these observations in its next report.

Article 2 of the Convention. Right of workers and employers to establish and join organizations of their own choosing without previous authorization. Managerial and executive staff. The Committee had previously requested the Government to take the necessary measures to amend section 79(2) of the Labour Act so as to ensure that workers performing managerial and decision-making functions maintain the right to establish and join organizations of their own choosing and in alignment with article 21(e) of the 1992 Constitution of Ghana which allows for freedom of association, including the freedom to form or join trade unions or other associations, national and international. The Committee notes that the Government’s report indicates that this request has been communicated to the Sector Minister (Ministry of Manpower, Youth and Employment). The Committee requests the Government to indicate in its next report any measures taken or contemplated to amend section 79(2).

Prison staff. The Committee had previously requested the Government to take the necessary measures to amend section 1 of the Labour Act to ensure that the guarantees of that Act apply to the staff of the prison service, ensuring that they enjoy the right to establish and join organizations of their own choosing. The Committee notes that the Government indicates in its report that the Sector Minister has been informed of this request. The Committee once again requests the Government to take the necessary measures to amend section 1 and to inform it of any progress in this regard.

Right to establish and join organizations at the branch or industry level. The Committee, in its previous comment, noted the Government’s statement that workers may establish trade unions at the branch or industry level, as section 80(1) of the Labour Act allows two or more workers to form or join a trade union if they are in the same “undertaking”, which is defined under section 175 of the same act as “the business of any employer”. The Committee recalled that under Article 2 of the Convention workers have the right to establish organizations of their own choosing, including organizations grouping together workers from different workplaces and requested the Government to take the necessary measures to amend section 80(1) of the Labour Act. The Committee again notes that the Government indicates in its report that the apparent discrepancy between section 80(1) and the requirements of the Convention has been communicated to the Sector Minister for redress. The Committee therefore once again requests the Government to indicate in its next report the measures adopted to ensure the right to establish and join organizations at the branch or industry level.

Right of employers to establish and join organizations of their own choosing. The Committee had previously requested the Government to amend section 80(2) of the Act to lift the requirement of employing at least 15 workers in order for an employer to establish or join an employers’ organization. Noting the Government’s indication that the new Sector Minister’s attention has been drawn to this concern, the Committee requests the Government to indicate in its next report any progress made in this regard.

Article 3. Right of workers’ organizations to organize their administration and activities and to formulate their programmes. In several of its previous comments, the Committee had noted that sections 154–160 of the Labour Act contain no specific time limit within which mediation should be concluded, and requested the Government to complement the Labour Act by setting specific and not excessively long time limits within which mediation efforts should be concluded, so as not to unduly impede the possibility for workers to have recourse to lawful strikes for the defence of their occupational rights and interests. The Committee had also asked the Government to repeal section 160(2) of the Labour Act, so as to limit the possibility for the authorities to refer collective disputes to compulsory arbitration only to cases involving: (1) essential services in the strict sense of the term; and (2) public servants exercising authority in the name of the State. The Committee notes the Government’s indication that this concern has been communicated to the Minister of Employment and Social Welfare. The Committee once again requests the Government to set specific and not excessively long time limits within which mediation efforts should be concluded, and to take the necessary measures to repeal or modify section 160(2) of the Labour Act and to communicate any measures taken or contemplated in either respect.

Essential services. In its previous comment, the Committee noted that section 16 of the Labour Act prohibits strikes in essential services and listed the specific services deemed to be essential. The Committee further noted that the list of essential services in section 20 of the Labour Regulations, 2007, included the following: air transport services; the supply and distribution of fuel and petrol; public transport services, ports and harbours, private security services; and the Bank of Ghana. The Committee considers that, although a prohibition on strikes in essential services is permissible under Article 3 of the Convention, these services are not essential in the strict sense of the term – i.e. services the interruption of which would endanger the life, personal safety or health of the whole or part of the population (see General Survey of 1994 on freedom of association and collective bargaining, paragraph 159). The Committee recalls that, as an alternative to an outright prohibition on strikes, in order to avoid damages that are irreversible or out of proportion to the interests of the parties in a dispute, the authorities could establish a negotiated minimum service in case of strikes in these services. Such a service, the Committee further recalls, must genuinely be a minimum service – that is, one which is limited to the operations which are strictly necessary to meet the basic needs of the population or the minimum requirements of the service, while maintaining the strike’s effectiveness. Secondly, since this system restricts one of the essential means of pressure available to workers to defend their interests, their organizations should be able to participate in defining such a service, along with employers and the public authorities (see General Survey, op. cit., paragraphs 160 and 161). The Committee notes that the Government indicates in its report that the concerns of the Committee have been communicated to the Sector Ministry for consideration. The Committee recalls in this respect that, although a prohibition on strikes in essential services is permissible under Article 3 of the Convention, the abovementioned services are not essential in the strict sense of the term. The Committee once again requests the Government to take the necessary measures to amend section 20 of the Labour Regulations, 2007, so as to remove the outright prohibition on strikes in the services noted above and, if it so wishes, to provide for a negotiated minimum service during strikes in these services, in accordance with the principles outlined above.

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The Committee notes the Government’s report.

Article 2 of the Convention. Right of workers and employers to establish and join organizations of their own choosing without previous authorization. 
1. Managerial and executive staff. Previously, the Committee had requested the Government to amend section 79(2) of the Labour Act so as to ensure that workers performing managerial and decision-making functions maintain the right to establish and join organizations of their own choosing. Noting that the Government indicates that article 21(e) of the 1992 Constitution of Ghana allows for freedom of association, including the freedom to form or join trade unions or other associations, national and international, for the protection of workers’ interests, the Committee once again requests that section 79(2) of the Labour Act be amended, in accordance with its previous comments and in alignment with the constitutional provision noted above.

2. Prison staff. Previously, the Committee had requested the Government to indicate the legal provisions ensuring that the staff of the prison service enjoy the right to set up and join organizations of their own choosing and, if there are no such provisions, to amend section 1 of the Labour Act – which exempts the prison service from the Act’s provisions – accordingly. The Committee notes the Government’s statement that, while no legal provisions set forth the right to organize of prison staff, the Prisons Service Council established under article 206 of the Constitution regulates the prison service’s activities and prison service staff have formed an association to protect and promote their interests. The Committee notes this information and requests the Government to amend section 1 of the Labour Act so as to ensure that the guarantees of the Labour Act apply to the staff of the prison service.

3. Right to establish and join organizations at the branch or industry level. The Committee had previously requested the Government to specify whether workers have the possibility to establish trade unions at the level of branch or industry, and to indicate any applicable provision in this respect. In this regard the Committee notes the Government’s statement that workers may establish trade unions at the branch or industry level as section 80(1) of the Labour Act allows two or more workers to form or join a trade union if they are in the same “undertaking”, which is defined under section 175 of the same act as “the business of any employer”. The Committee recalls that the free exercise of the right to establish and join unions implies the free determination of the structure and composition of unions, and that under Article 2 of the Convention workers have the right to establish organizations of their own choosing, including organizations grouping together workers from different workplaces. Noting that the Government has taken steps to notify the Sector Ministry (Ministry of Manpower, Youth and Employment) of the apparent discrepancy between the section concerned and the requirements of the Convention, the Committee asks the Government to amend section 80(1) of the Labour Act and to keep it informed of the measures adopted in this respect.

4. Right of employers to establish and join organizations of their own choosing. The Committee had previously requested the Government to amend section 80(2) of the same Act, so as to lift the requirement of employing at least 15 workers in order for an employer to establish or join an employers’ organization. Noting the Government’s indication that it would advise the Sector Ministry (Ministry of Manpower, Youth and Employment), in collaboration with the Attorney-General and Ministry of Justice, to set up a technical committee to examine section 80(2) of the Labour Act and take steps to amend it, the Committee requests the Government to keep it informed of the progress made in this regard.

Article 3. Right of workers’ organizations to organize their administration and activities and to formulate their programmes. The right to strike. 1. The Committee previously noted that sections 154–160 of the Labour Act contain no specific time limit within which mediation should be concluded, and requested the Government to complement the Labour Act by setting specific and not excessively long time limits within which mediation efforts should be concluded, so as not to unduly impede the possibility for workers to have recourse to lawful strikes for the defence of their occupational rights and interests. The Committee had also asked the Government to repeal section 160(2) of the Labour Act, so as to limit the possibility for the authorities to refer collective disputes to compulsory arbitration only to cases involving: (1) essential services in the strict sense of the term, and (2) public servants exercising authority in the name of the State. The Committee notes the Government’s indication that steps are being taken in collaboration with the Attorney-General to address these issues; it requests the Government to keep it informed of the steps taken to bring the legislation into conformity with the principle of the right to strike under Article 3 of the Convention.

2. The Committee had previously noted that section 163 of the Labour Act prohibits strikes in essential services, and had asked the Government to keep it informed of any instrument issued by the minister under section 175 of the Labour Act with a view to qualifying a particular service as essential, as well as any list of the specific services which are considered to be essential. In this regard the Committee notes that the Ministry of Manpower, Youth and Employment has enacted the Labour Regulations 2007 (LI 1833), section 20 of which lists a number of services deemed to be essential. The Committee further notes that the list of essential services includes the following: sanitary services; air transport services; the supply and distribution of fuel, petrol, power and light; public transport services, ports and harbours security services; and the Bank of Ghana. The Committee considers that, although a prohibition on strikes in essential services is permissible under Article 3 of the Convention, these services are not essential in the strict sense of the term – i.e. services the interruption of which would endanger the life, personal safety or health of the whole or part of the population (see General Survey of 1994 on freedom of association and collective bargaining, paragraph 159). The Committee recalls that, as an alternative to an outright prohibition on strikes, in order to avoid damages that are irreversible or out of proportion to the interests of the parties to a dispute, the authorities could establish a negotiated minimum service in case of strikes in these services. Such a service, the Committee further recalls, must genuinely be a minimum service – that is, one which is limited to the operations which are strictly necessary to meet the basic needs of the population or the minimum requirements of the service, while maintaining the strike’s effectiveness. Secondly, since this system restricts one of the essential means of pressure available to workers to defend their interests, their organizations should be able to participate in defining such a service, along with employers and the public authorities (see General Survey, op. cit., paragraphs 160 and 161). In these circumstances, the Committee requests the Government to amend section 20 of the Labour Regulations 2007 so as to remove the outright prohibition on strikes in the services noted above and, if it so wishes, to provide for a negotiated minimum service during strikes in these services, in accordance with the principles outlined above.

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The Committee notes the Government’s report and the comments submitted by the International Trade Union Confederation (ITUC) on 28 August 2007. The ITUC’s comments mainly refer to matters previously raised by the Committee.

The Committee had previously taken note of the comments submitted by the International Confederation of Free Trade Unions (ICFTU, now ITUC) in 2006, which concerned allegations of the police firing shots and tear gas to disperse protesting miners and the dismissal of 17 workers, including five union executives, following a strike. In respect of the police shootings, the Committee notes the Government’s statement that the workers concerned, who were employed on short-term contracts, were denied severance awards by their employer following the expiry of their contracts. They then commenced a demonstration and blocked the road leading to the employer’s worksite, following which the police intervened to control the situation. The Government adds that no workers were injured, and that the workers concerned subsequently reached a settlement with their former employer in July 2003; a copy of the settlement, which was approved by the High Court of Justice, is attached to the Government’s report.

As regards the alleged dismissals following a strike, the Committee notes the Government’s indication that, following deadlocked contract negotiations, the union and enterprise concerned had resorted to the mediation procedure to resolve the dispute over salaries and remuneration. When mediation failed to resolve the dispute over salaries, the parties chose to submit the matter to arbitration, which in turn resulted in an arbitration award. The Government adds that the union local rejected the terms of the arbitration award, despite pleas from the National Labour Union Commission and the National Union, and embarked on an illegal strike on 17 October 2005. The employer then lawfully dismissed the workers in accordance with section 168(4) of the Labour Act, 2003 (Act 651). A tripartite investigation board was subsequently established to investigate the illegal strike, and following a request from the National Union the local union secretary was reinstated. The Committee takes due note of the above information.

The Committee is raising other points in a request addressed directly to the Government.

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The Committee notes the Government’s report.

Previously, the Committee had raised a number of points with respect to the Labour Act, 2003 (Act 651), which came into force on 31 March 2004. Noting the Government’s indications that the Labour Act repeals legislation that had not been in conformity with the requirements of the Convention, and that a tripartite committee had been established to promote continuous dialogue between the social partners, the Committee nevertheless regrets that the Government otherwise does not reply to the matters contained in its previous comment. The Committee therefore once again requests the Government to provide information on the following points.

Article 2 of the Convention. Right of workers and employers to establish and join organizations of their own choosing without previous authorization. 1. Managerial and executive staff. The Committee requests the Government to amend section 79(2) of the Labour Act so as to ensure that workers performing managerial and decision-making functions maintain the right to establish and join organizations of their own choosing in order to defend and further their professional rights and interests.

2. Right to establish and join organizations at the branch or industry level. The Committee asks the Government to specify whether workers have the possibility to establish trade unions at the level of branch or industry, and to indicate any applicable provision in this respect.

3. Right of employers to establish and join organizations of their own choosing. The Committee requests the Government to amend section 80(2) so as to lift the requirement of employing at least 15 workers in order for an employer to establish or join an employers’ organization.

Articles 2 and 9. Admissible exceptions from the scope of the Convention. The Committee requests the Government to indicate the legal provisions ensuring that the staff of the prison service enjoy the right to set up and join organizations of their own choosing and, if there are no such provisions, to amend section 1 of the Labour Act accordingly.

Article 3. Right of workers’ organizations to organize their administration and activities and to formulate their programmes. The right to strike. 1. Noting that sections 154-160 of the Labour Act contain no specific time limit within which mediation should be concluded, the Committee requests the Government to complement the Labour Act by setting specific and not excessively long time limits within which mediation efforts should be concluded, so as not to unduly impede the possibility for workers to have recourse to lawful strikes for the defence of their occupational rights and interests.

2. The Committee asks the Government to repeal section 160(2) of the Labour Act so as to limit the possibility for the authorities to refer collective disputes to compulsory arbitration only to cases involving: (1) essential services in the strict sense of the term; and (2) public servants exercising authority in the name of the State.

3. Recalling that essential services are only those the interruption of which would endanger the life, personal safety or health of the whole or part of the population (see General Survey of 1994 on freedom of association and collective bargaining, paragraph 159), the Committee requests the Government to keep it informed of any instrument issued by the Minister under section 175 of the Labour Act with a view to qualifying a particular service as essential, and any list of the specific services that are considered to be essential.

The Committee expresses the hope that the Government will take the necessary steps to amend the Labour Act, in keeping with its above comments, and requests the Government to inform it of the progress made in this regard.

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The Committee notes the Government’s report and the comments submitted by the International Confederation of Free Trade Unions (ICFTU) on 10 August 2006. The ICFTU’s comments refer to matters previously raised by the Committee, as well as to allegations of the police firing shots and tear gas to disperse protesting miners and the dismissal of 17 workers, including five union executives, following a strike. The Committee notes the recent communication of the Government which replies to the ICFTU’s comments. The Committee will examine the ICFTU’s comments and the Government’s reply at its next session.

In its previous comments the Committee had asked the Government to provide information in its next report on any practical use of the powers to suspend the operation of any law and prohibit public meetings and processions established under the Emergency Powers Act, 1994. The Government indicates in this respect that the Emergency Powers Act, 1994, is applicable only in exceptional cases, where a state of emergency has been declared, and then only for the duration of the state of emergency; the Act is not intended to be of general application, nor is it directed against the activities of workers’ organizations. The Committee takes due note of this information.

The Committee is raising other points in a request addressed directly to the Government.

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The Committee notes that the Government’s report has not been received. The Committee also takes note with interest of the text of the Labour Act, 2004 which entered into force on 31 March 2004.

Article 2 of the Convention. Right of workers and employers to establish and join organizations of their own choosing without previous authorization (not applied). 1. Managerial and executive staff. The Committee notes that section 79(1) of the Labour Act proclaims the right of every worker to form or join a trade union of his or her choice for the promotion and protection of the worker’s economic and social interests. However, subsection (2) of section 79 provides that the workers whose function is normally considered as: (a) policy-making; (b) decision-making; (c) managerial; (d) holding a position of trust; (e) performing duties that are of a highly confidential nature; or (f) an agent of a shareholder of an undertaking, may not form or join trade unions. The Committee emphasizes that Article 2 of the Convention makes no distinction based on the nature of the functions or the hierarchical level of workers, who should all enjoy the right to organize, including managerial and executive staff. Thus, provisions which might lead to a denial of the right to association and artificially reduce the size of the bargaining unit by granting fictitious promotions to unionized workers without actually according them management responsibilities, thereby effectively placing them in the category of so-called "employers" to whom the right to organize is not permitted, is not in accord with the Convention. Provisions which prohibit managerial and executive staff in the private sector from joining trade unions in which other workers are represented are acceptable under the Convention only if these workers have the right to establish their own organizations, restricted to persons performing senior managerial or decision-making functions (see General Survey of 1994 on freedom of association and collective bargaining, paragraph 66). The Committee therefore requests that the Government amend section 79(2) so as to ensure that that workers performing managerial and decision-making functions maintain the right to establish and join organizations of their own choosing for the defence and promotion of their social, economic and professional rights and interests.

2. Right to establish and join organizations at the branch or industry level. The Committee notes that section 80(1) of the Labour Act sets a minimum membership requirement for the establishment of trade unions of two or more workers employed in the same undertaking. The Committee asks the Government to specify whether workers have the possibility to establish trade unions at the level of branch or industry and indicate any applicable provision in this respect.

3. Right of employers to establish and join organizations of their own choosing. The Committee notes that section 80(2) provides that two or more employers in the same industry or trade, each of whom employs not less than 15 workers, may form or join an employers’ organization. The Committee considers that the requirement for employers to employ at least 15 workers, would seem likely to unduly restrict the right of employers, especially in micro and small enterprises, to establish and join organizations of their own choosing. The Committee asks the Government to amend section 80(2) so as to lift the requirement for employers to employ not less than 15 workers in order to be able to establish or join a trade union.

Articles 2 and 9. Admissible exceptions from the scope of the Convention. The Committee notes that the prison service is excluded from the scope of the Labour Act (section 1 of the Act). The Committee draws the Government’s attention to Article 9 of the Convention which excludes the police and armed forces from the scope of the Convention but it does not extend to prison staff. The functions exercised by this category of public servants should not justify their exclusion from the right to organize (see General Survey, op. cit., paragraph 56). The Committee is therefore of the view that prison staff have the right to organize, like all other workers, without distinction whatsoever. This is independent of any restrictions imposed on this category of workers as regards the right to strike. The Committee therefore requests that the Government indicate the provisions which ensure that the staff of the prison service enjoy the right to set up and join organizations of their own choosing and if there are no such provisions, to amend section 1 of the Labour Act accordingly.

Article 3. Right of workers’ organizations to organize their administration and activities and to formulate their programmes. The right to strike. 1. The Committee notes that sections 154-160 of the Labour Act contain no specific time limit within which mediation should be concluded. This could serve as an impediment to the staging of lawful strikes given that the exhaustion of mediation proceedings is a prerequisite in this respect (section 159). The Committee therefore requests that the Government complement the Labour Act by setting specific and not excessively long time limits within which mediation efforts should be concluded so as not to unduly impede the possibility for workers to have recourse to lawful strikes for the defence of their occupational rights and interests.

2. The Committee further notes that section 160(2) of the Labour Act provides that if a dispute remains unresolved within seven days from the commencement of a strike, the dispute shall be settled by compulsory arbitration proceedings in which the tripartite National Labour Commission shall serve as an arbitration body (section 164). The award shall be final and binding on the parties and shall prevail over any collective agreement in force and the terms of the collective agreement shall be deemed to have been modified as far as may be necessary, to conform to the award (section 167). The Committee is of the view that such a system would deprive strikes of any effect and would seriously limit the means available to trade unions to further and defend the interests of their members, as well as their right to organize their activities and to formulate their programmes, contrary to Article 3 of the Convention (see General Survey, op. cit., paragraph 153). The Committee asks the Government to repeal section 160(2) so as to limit the possibility for the authorities to refer collective disputes to compulsory arbitration only to cases involving essential services in the strict sense of the term and public servants exercising authority in the name of the State.

3. The Committee notes that section 175 of the Labour Act defines essential services, in which strikes are prohibited in accordance with section 163, as "areas in an establishment where an action could result in a particular or total loss of life or pose a danger to public health and safety and such other services as the Minister may by legislative instrument determine". The Committee recalls that essential services are only those the interruption of which would endanger the life, personal safety or health of the whole or part of the population (see General Survey, op. cit., paragraph. 159). The Committee requests that the Government keep it informed of any instrument issued by the Minister under section 175 of the Labour Act with a view to qualifying a particular service as essential and any list of the specific services which are considered to be essential.

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The Committee notes that the Government’s report has not been received.

With regard to its previous comments concerning the steps taken for the adoption of a labour act which had been prepared with the assistance of the ILO, the Committee takes note of the text of the Labour Act which entered into force on 31 March 2004 and addresses certain questions concerning the provisions of this Act in a direct communication to the Government.

The Committee recalls that in its previous comments it had requested that the Government repeal the Emergency Powers Act, 1994, which grants extensive powers to suspend the operations of any law and to prohibit public meetings and processions. The Committee once again asks the Government to provide information in its next report on any practical use of these powers.

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The Committee takes note of the Government’s report.

With regard to its previous comments concerning the steps taken for the adoption of the draft Labour Bill which had been prepared with the assistance of the ILO, the Committee notes that the Government indicates that since 8 October 2003 the Bill has received presidential assent as Labour Act 2004 (Act 561), and that it will transmit a copy of the Act in its next report. The Committee requests the Government to provide a copy of the Labour Act 2004, so as to enable it to examine its conformity with the Convention.

The Committee also notes that according to the Government, its previous comments concerning the Emergency Powers Act, 1994, which grants extensive powers to suspend the operations of any law and to prohibit public meetings and processions, have been well noted. The Committee recalls that the Government had indicated in a previous report that the Emergency Powers Act will be reviewed in accordance with the Committee’s comments. It therefore once again requests the Government to take the necessary measures in the near future to repeal this Act or to exclude explicitly the exercise of freedom of association from its scope of application.

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The Committee notes that the Government’s report has not been received. It must therefore repeat its previous observation which read as follows:

The Committee notes the Government’s indication that the draft labour Bill, prepared with the assistance of the ILO, is currently before Parliament. The Committee also notes the Government’s statement to the effect that the Trade Union Ordinance of 1941 and the Industrial Relations Act, which were the subject of its previous comments, will be repealed by the new draft labour Bill, and that the Emergency Powers Act will be reviewed in accordance with the Committee’s comments.

The Committee trusts that the labour Bill will be adopted in the very near future and that it will ensure full conformity with the provisions of the Convention. The Committee therefore requests the Government to provide with its next report a copy of the adopted labour Bill in order to enable it to examine its conformity with the provisions of the Convention.

As for the Emergency Powers Act, 1994, the Committee recalls its previous comments concerning the extensive powers granted under this Act to suspend the operations of any law and to prohibit public meetings and processions. The Committee trusts that the Government will take the necessary measures in the near future to repeal this Act or to exclude explicitly the exercise of freedom of association from its scope of application.

The Committee hopes that the Government will make every effort to take the necessary action in the very near future.

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The Committee takes note of the report submitted by the Government. It notes the Government’s indication that the draft labour Bill, prepared with the assistance of the ILO, is currently before Parliament. The Committee also notes the Government’s statement to the effect that the Trade Union Ordinance of 1941 and the Industrial Relations Act, which were the subject of its previous comments, will be repealed by the new draft labour Bill, and that the Emergency Powers Act will be reviewed in accordance with the Committee’s comments.

The Committee trusts that the labour Bill will be adopted in the very near future and that it will ensure full conformity with the provisions of the Convention. The Committee therefore requests the Government to provide with its next report a copy of the adopted labour Bill in order to enable it to examine its conformity with the provisions of the Convention.

As for the Emergency Powers Act, 1994, the Committee recalls its previous comments concerning the extensive powers granted under this Act to suspend the operations of any law and to prohibit public meetings and processions. The Committee trusts that the Government will take the necessary measures in the near future to repeal this Act or to exclude explicitly the exercise of freedom of association from its scope of application.

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The Committee takes note of the Government’s report. It notes in particular that the codification of the new Labour Bill mentioned in last year’s report has been completed and is currently being examined by the Cabinet before it is transmitted to Parliament for final approval. The Committee requests the Government to transmit a copy of this Bill in order to enable it to examine its conformity with the requirements of the Convention. The Committee trusts that the Bill, once adopted, will ensure full conformity with the provisions of the Convention in particular in respect of its previous comments concerning the following points:

-           the need to modify sections 11(3) and 12(1) of the Trade Union Ordinance of 1941, and section 3(4) of the Industrial Relations Act (IRA) No. 299 of 1965, which, respectively, impose a single trade union system and grant the Registrar extensive powers regarding the registration of trade unions and the approval of negotiators;

-           the need to ensure that any restrictions imposed on public meetings and processions by virtue of the Emergency Powers Act, 1994 (Act No. 472), be limited in scope and duration;

-      the need to amend section 18 of the IRA which provides for compulsory arbitration by the Minister at the request of one of the parties to the dispute;

-      the need to repeal section 22 of the IRA, which provides that a person declaring, instigating or inciting others to take part in a strike considered to be illegal is liable to a fine or one year’s imprisonment, or both.

The Committee requests the Government to indicate in its next report the measures taken or envisaged to bring its legislation into conformity with national practice and, in the meantime, to keep it informed of any prosecutions arising under section 22 of the IRA.

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The Committee notes that the Government’s report contains no reply to its previous comments and that the Government merely reiterates in its latest report that tripartite consultations are in progress to codify labour laws to ensure their compatibility with the Convention. The Committee expresses, once again, the hope that the next report will include full information on the matters raised in its previous observation which concerned the following.

Articles 2 and 3 of the Convention. Right of workers and employers to establish and join organizations of their own choosing without previous authorization and for these organizations to organize their administration and activities and formulate their programmes.  The Committee’s previous comments concerned the need to modify sections 11(3) and 12(1) of the Trade Union Ordinance of 1941, and section 3(4) of the Industrial Relations Act No. 299 of 1965, which, respectively, impose a single trade union system and grant the Registrar extensive powers regarding the registration of trade unions and the approval of negotiators. The Committee had noted the recommendations of the National Advisory Committee on Labour (NACL) to amend the sections in question.

The Committee had also noted that the Emergency Powers Act, 1994 (Act No. 472) allows prohibition in particular of public meetings and processions in areas which had been under a state of emergency. In this connection, the Committee recalled that recourse to a state of emergency may not be made to justify restrictions on the civil liberties that are essential to the proper exercise of trade union rights, except in circumstances of extreme gravity (acts of God, serious disruption of civil order, etc.) and on condition that any measures affecting the application of the Convention are limited in scope and duration to what is strictly necessary to deal with the situation in question (see General Survey on freedom of association and collective bargaining, 1994, paragraph 41). The Committee firmly hopes that measures will be taken at an early date to bring the legislation into conformity with the Convention and requests the Government to indicate in its next report the measures effectively taken in this connection.

The Committee had also noted that the procedure for resolving disputes as defined by the Act of 1965 provides under its section 18 for compulsory arbitration by the minister if one of the parties to the dispute thinks fit. In this regard, the Committee considers that compulsory arbitration to end a collective labour dispute is acceptable either when called for by both parties to the dispute, or in cases where the strike may be limited, or even prohibited, that is in cases of conflict concerning public servants exercising authority in the name of the State or in essential services in the strict sense of the term, that is those the interruption of which would endanger the life, personal safety or health of the whole or part of the population or in the case of acute national crisis. The Committee therefore requests once again the Government to amend its legislation regarding the resolution of disputes so as to restrict the minister’s authority to refer a dispute to compulsory arbitration to the cases listed above, and to transmit to it statistics on the number of strikes declared illegal, as well as the grounds for their illegality.

Finally, the Committee had noted that under section 22 of the Industrial Relations Act of 1965, a person declaring, instigating or inciting others to take part in a strike considered to be illegal is liable to a fine or of one year’s imprisonment, or both.

The Committee recalled in this regard that penal sanctions for strike action should be possible only where the prohibitions in question are in conformity with the principles of freedom of association. Any sanction applied as a result of activities arising from illegal strikes should be in proportion to the offence committed, and the authorities should not impose measures of imprisonment on those organizing or taking part in a peaceful strike (see General Survey, op. cit, paragraph 177). In an earlier report, the Government had indicated that, even though records available indicate that all strikes in Ghana have been illegal because of non-compliance with the dispute settlement procedure laid down in the Industrial Relations Act, 1965, no worker had been prosecuted on the grounds that he had embarked on strike action or incited others to strike. Noting once again the absence of comments by the Government in its latest report on this question, the Committee reiterates its request to the Government to take the necessary measures to bring its legislation into conformity with national practice and amend it accordingly and to keep it informed of all developments in this regard.

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The Committee notes the information contained in the Government's report.

Article 3 of the Convention (The right of workers' organizations to organize their activities and to formulate their programmes without interference from the public authorities). The Committee noted that under section 22 of the Industrial Relations Act of 1965, a person declaring, instigating or inciting others to take part in a strike considered to be illegal is liable to a fine or one year's imprisonment, or both.

The Committee recalls in this regard that penal sanctions for strike action should be possible only where the prohibitions in question are in conformity with the principles of freedom of association. Any sanction applied as a result of activities arising from illegal strikes should be in proportion to the offence committed, and the authorities should not impose measures of imprisonment on those organizing or taking part in a peaceful strike (see General Survey on freedom of association and collective bargaining, 1994, paragraph 177). In an earlier report, the Government indicated that, even though records available indicate that all strikes in Ghana have been illegal because of non-compliance with the dispute settlement procedure laid down in the Industrial Relations Act, 1965, no worker had been prosecuted on the grounds that he had embarked on strike action or incited others to strike. Noting the absence of comments by the Government in its latest report on this question, the Committee again requests the Government to take the necessary steps to bring its legal text into conformity with practice and amend its legislation accordingly and to keep it informed of all developments in this sphere.

The Committee also notes that the procedure for resolving disputes as defined by the Act of 1965 provides under its section 18 for compulsory arbitration by the minister if one of the parties to the dispute thinks fit.

In this connection the Committee considers that compulsory arbitration to end a collective labour dispute is acceptable either when called for by both parties to the dispute, or in cases where the strike may be limited, or even prohibited, that is in cases of conflict in the public service where the public servant is exercising authority in the name of the State or in essential services in the strict sense of the term, that is those the interruption of which would endanger the life, personal safety or health of the whole or part of the population or in the case of acute national crisis.

The Committee therefore requests the Government to amend its legislation regarding the resolution of disputes so as to restrict the minister's authority to refer a dispute to compulsory arbitration to the cases listed above, and to transmit to it statistics on the number of strikes declared illegal, as well as the grounds for their illegality.

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The Committee notes the information contained in the Government's report. It recalls that its previous comments concerned the need to modify sections 11(3) and 12(1) of the Trade Union Ordinance of 1941, and section 3(4) of the Industrial Relations Act No. 299 of 1965 which, respectively, impose a single trade union system and grant the Registrar extensive powers regarding the registration of trade unions and the approval of negotiators, contrary to Articles 2 and 3 of the Convention. The Committee had noted the recommendations of the National Advisory Committee on Labour (NACL) to amend the sections in question.

The Committee notes that the Government reiterates in its last report that tripartite consultations are in progress to codify labour laws to ensure their compatibility with the Convention. It firmly hopes that measures will be taken at an early date to bring the legislation into conformity with the Convention and requests the Government to indicate in its next report the measures effectively taken in this connection.

The Committee had also noted that the Emergency Powers Act, 1994 (Act No. 472), allows prohibition in particular of public meetings and processions in areas which had been under a state of emergency. In this connection the Committee recalls that recourse to a state of emergency may not be made to justify restrictions on the civil liberties that are essential to the proper exercise of trade union rights, except in circumstances of extreme gravity (acts of God, serious disruption of civil order, etc.) and on condition that any measures affecting the application of the Convention are limited in scope and duration to what is strictly necessary to deal with the situation in question (see General Survey on freedom of association and collective bargaining, 1994, paragraph 41).

The Committee requests the Government to keep it informed of all measures taken or envisaged in order to put its legislation into conformity with the principles of freedom of association.

The Committee is also addressing a request directly to the Government.

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The Committee notes that the Government's report has not been received. It hopes that a report will be supplied for examination by the Committee at its next session and that it will contain full information on the matters raised in its previous direct request.

The Committee had noted that under section 22 of the Industrial Relations Act No. 299 of 1965 a person declaring, instigating or inciting others to take part in a strike considered to be illegal is liable to a fine or one year's imprisonment, or both.

The Committee notes the statement in the report that, even though records available indicate that all strikes in Ghana have been illegal because of non-compliance with the dispute settlement procedure laid down in the Industrial Relations Act, 1965, there is no indication that any worker has been prosecuted merely on account of having embarked on strike action or incited others to strike.

It asks the Government to take the necessary steps in order to bring the legal texts into keeping with its practice and to amend its legislation accordingly. It also asks the Government to keep it informed of any application of this provision as well as of any judicial decisions in this respect.

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The Committee notes that the Government's report has not been received. It must therefore repeat its previous observation which read as follows:

1. The Committee had noted in its previous observations that the National Advisory Committee on Labour (NACL) had recommended that sections 11(3) and 12(1) of the Trade Union Ordinance of 1941 be amended and repealed, respectively, so that the Registrar no longer had extensive powers to oppose the registration of a trade union. The Committee has also pointed out section 3(4) of the Industrial Relations Act No. 299 of 1965, which stipulates that the Registrar shall not appoint a trade union for collective bargaining purposes for any class of employees if there is in force a certificate appointing another trade union for that class of employees or any part of that class, and it had noted that the NACL recommended amending that section. The Committee had considered that it should be amended so that a union with the support of a simple majority of the members of a bargaining unit be granted a certificate. The Committee had requested the Government to take steps to give effect to these recommendations so as to bring its legislation into conformity with Articles 2 and 3 of the Convention. The Committee notes the assurances of the Government in its report that the recommendations for the amendment of said sections had been forwarded to the competent authority. The Committee recalls that it has commented on these matters for a number of years and it asks the Government to take effective steps to amend its legislation at an early date, and to keep it informed of any progress made in this respect and to communicate the texts of the amendments as soon as they have been adopted. 2. The Committee had noted that section 6 of the Emergency Powers Act, 1994 (Act No. 472), prohibits public meetings and processions in areas which had been under a state of emergency. The Committee notes the Government's statement that the Act is applicable only in exceptional cases, to areas where a state of emergency has been declared and for the duration of the state of emergency only. The Government further states that the Act is not intended to be of general application within the country nor is it directed against the activities of workers or unionized labour which could lead to an infringement of their right to assemble freely. The Government communicated the Committee's concern to the Attorney General and will convey his reaction in due course. While noting the Government's statement, the Committee observes that the Emergency Powers Act (No. 472), 1994, provides for very extensive powers (such as the suspension of operation of any law, section 6(2)(viii)) and it wishes to recall once more that freedom of assembly and demonstration constitutes a fundamental aspect of trade union rights (General Survey on freedom of association and collective bargaining, 1994, paragraphs 35-37) and that the authorities should refrain from any interference which would restrict this right or impede the lawful exercise thereof, and again urges the Government to repeal this legislation or to exclude explicitly the fundamental trade union rights from its scope of application.

The Committee hopes that the Government will make every effort to take the necessary action in the very near future.

The Committee is also addressing a request directly to the Government.

CMNT_TITLE

The Committee noted the information supplied by the Government in its report.

The Committee had noted that under Section 22 of the Industrial Relations Act No. 299 of 1965 a person declaring, instigating or inciting others to take part in a strike considered to be illegal is liable to a fine or one year's imprisonment, or both.

The Committee notes the statement in the report that, even though records available indicate that all strikes in Ghana have been illegal because of non-compliance with the dispute settlement procedure laid down in the Industrial Relations Act, 1965, there is no indication that any worker has been prosecuted merely on account of having embarked on strike action or incted others to strike.

It asks the Government to take the necessary steps in order to bring the legal texts into keeping with its practice and to amend its legislation accordingly. It also asks the Government to keep it informed of any application of this provision as well as of any judicial decisions in this respect.

CMNT_TITLE

The Committee notes the information supplied by the Government in its report.

1. The Committee had noted in its previous observations that the National Advisory Committee on Labour (NACL) had recommended that sections 11(3) and 12(1) of the Trade Union Ordinance of 1941 be amended and repealed, respectively, so that the Registrar no longer had extensive powers to oppose the registration of a trade union.

The Committee has also pointed out section 3(4) of the Industrial Relations Act No. 299 of 1965, which stipulates that the Registrar shall not appoint a trade union for collective bargaining purposes for any class of employees if there is in force a certificate appointing another trade union for that class of employees or any part of that class, and it had noted that the NACL recommended amending that section. The Committee had considered that it should be amended so that a union with the support of a simple majority of the members of a bargaining unit be granted a certificate.

The Committee had requested the Government to take steps to give effect to these recommendations so as to bring its legislation into conformity with Articles 2 and 3 of the Convention.

The Committee notes the assurances of the Government in its report that the recommendations for the amendment of said sections had been forwarded to the competent authority.

The Committee recalls that it has commented on these matters for a number of years and it asks the Government to take effective steps to amend its legislation at an early date, and to keep it informed of any progress made in this respect and to communicate the texts of the amendments as soon as they have been adopted.

2. The Committee had noted that section 6 of the Emergency Powers Act, 1994 (Act No. 472), prohibits public meetings and processions in areas which had been under a state of emergency. The Committee notes the Government's statement that the Act is applicable only in exceptional cases, to areas where a state of emergency has been declared and for the duration of the state of emergency only. The Government further states that the Act is not intended to be of general application within the country nor is it directed against the activities of workers or unionized labour which could lead to an infringement of their right to assemble freely. The Government communicated the Committee's concern to the Attorney General and will convey his reaction in due course.

While noting the Government's statement, the Committee observes that the Emergency Powers Act (No. 472), 1994, provides for very extensive powers (such as the suspension of operation of any law, section 6(2)(viii)) and it wishes to recall once more that freedom of assembly and demonstration constitutes a fundamental aspect of trade union rights (General Survey on freedom of association and collective bargaining, 1994, paragraphs 35-37) and that the authorities should refrain from any interference which would restrict this right or impede the lawful exercise thereof, and again urges the Government to repeal this legislation or to exclude explicitly the fundamental trade union rights from its scope of application.

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The Committee notes that under the terms of section 22 of the Industrial Relations Act, 1965, a person declaring, instigating or inciting others to take part in a strike considered to be illegal under this Act, is liable to a fine or one year's imprisonment or both.

However, since the application of disproportionate penal sanctions does not favour the development of harmonious and stable industrial relations, the Committee considers that if measures of imprisonment are to be imposed at all, they should be justified by the seriousness of the offences committed. In any case, a right of appeal should exist in this respect (see 1994 General Survey on freedom of association and collective bargaining, paragraph 177).

The Committee requests the Government to keep it informed of any cases where this provision has been applied in practice as well as of any judicial decisions in this respect.

CMNT_TITLE

The Committee notes the Government's reports as well as the two memoranda submitted by the National Advisory Committee on Labour (NACL) to the Minister for Employment and Social Welfare concerning amendments to the Industrial Relations Act of 1965 and the Trade Unions Ordinance of 1941.

The Committee recalls that its previous comments concerned the following points:

-- the extensive powers of the Registrar to oppose the registration of a trade union (sections 11(3) and 12(1) of the Trade Unions Ordinance, 1941), contrary to Article 2 of the Convention;

-- the wide powers of the Registrar to refuse to recognize a trade union as a representative in collective negotiations (section 3(4) of the Industrial Relations Act, No. 299 of 1965), contrary to Article 3;

-- the absence of provisions on the right to form and join federations and confederations and the right to join international organizations of workers and employers, contrary to Article 5.

The Committee notes with interest that the NACL, in its memorandum of 8 September 1993, recommends that sections 11(3) and 12(1)(d) of the Trade Unions Ordinance be amended and repealed, respectively, so that the Registrar no longer has extensive powers to oppose the registration of a trade union.

It further notes that the NACL, in its memorandum of 29 July 1993, recommends that section 3(4) of the Industrial Relations Act be amended so as to enable the Registrar to issue collective bargaining certificates to unions and other workers' organizations with two-thirds majority membership of organizations nationwide. Nevertheless, the Committee considers that this amendment would not be sufficient to ensure the full respect of the right of unions to organize their activities as provided for in Article 3 of the Convention.

The Committee observes that neither of these two memoranda contain recommendations in respect of provisions on the right to form and join federations and confederations and the right to join international organizations of workers and employers. It notes, however, from the Government's report that the Ghana Trades Union Congress (TUC) and its 17 national unions are affiliated to the International Confederation of Free Trade Unions (ICFTU) and the Organization of African Trade Union Unity (OATUU). Furthermore, each of the 17 national unions is affiliated to the trade secretariats of international trade union organizations. On the employers' side, the Ghana Employers' Association is affiliated to the International Organization of Employers and the Pan-African Confederation. Finally, the Government mentions that a new trade union federation - the Textile, Garment and Leather Employees' Union Ghana (TGLEU) - was recently registered and is not affiliated to the Trades Union Congress. Currently, seven collective bargaining certificates have been issued to affiliates of the TGLEU.

The Committee would request the Government to keep it informed of any developments concerning the adoption of these memoranda and consequently, the enactment of the proposed amended provisions of its national legislation.

CMNT_TITLE

The Committee notes the information supplied by the Government in its report.

1. The Committee had noted in its previous observations that the National Advisory Committee on Labour (NACL) to the Minister for Employment and Social Welfare, had recommended that sections 11(3) and 12(1)(d) of the Trade Unions Ordinance of 1941 be amended and repealed, respectively, so that the Registrar no longer had extensive powers to oppose the registration of a trade union. The Committee would once again request the Government to take steps to give effect to the above recommendations so as to bring its legislation into conformity with Article 2 of the Convention. It further requests the Government to keep it informed of developments regarding the adoption of the above-mentioned amendments, and to provide it with a copy thereof.

2. The Committee had previously pointed out that section 3(4) of the Industrial Relations Act, No. 299 of 1965, which stipulates that the Registrar shall not appoint a trade union for any class of employees if there is in force a certificate appointing another trade union for that class of employees or any part of that class, was contrary to Article 3. Furthermore, the Committee had considered in its previous observation that a recommendation of the NACL that section 3(4) of the Industrial Relations Act be amended so as to enable the Registrar to issue collective bargaining certificates to unions and other workers' organizations with a two-thirds majority membership of organizations nationwide would not be sufficient to ensure the full respect of the right of unions to organize their activities as provided for in Article 3. It would therefore once again request the Government to take the necessary steps to amend section 3(4) of the Industrial Relations Act so that a union with the support of a simple majority of the members of a bargaining unit be granted a certificate under this section. It requests the Government to keep it informed of any progress made in this respect.

3. The Committee notes that section 6 of the Emergency Powers Act, 1994 (Act No. 472) prohibits public meetings and processions in areas which had been under the state of emergency. The Committee recalls that freedom of assembly and demonstration constitutes a fundamental aspect of trade union rights (see 1994 General Survey on freedom of association and collective bargaining, paras. 35 to 37) and that the authorities should refrain from any interference which would restrict this right or impede the lawful exercise thereof, provided that the exercise of these rights does not cause a serious and imminent threat to public order. The Committee notes that the Emergency Powers Act was adopted in 1994 and therefore requests the Government to indicate in its next report whether this emergency legislation has been repealed. If not, it would request the Government to take steps to repeal this legislation immediately and to provide it with a copy of the repealing legislation.

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The Committee notes the Government's report.

It recalls that its previous comments concerned the following points:

- the extensive powers of the Registrar to oppose the registration of a trade union (sections 11(3) and 12(1) of the Trade Unions Ordinance, 1941), contrary to Article 2 of the Convention;

- the wide powers of the Registrar to refuse to recognize a trade union as a representative in collective negotiations (section 3(4) of the Industrial Relations Act, No. 299 of 1965), contrary to Article 3;

- the absence of provisions on the right to form and join federations and confederations and the right to join international organizations of workers and employers, contrary to Article 5.

The Committee notes the Government's indication in its report that on 29 July and 8 September 1993 the National Advisory Committee on Labour submitted two memoranda to the Minister for Employment and Social Welfare concerning the review, respectively, of the Industrial Relations Act and the Trade Unions Ordinance, with a view to giving effect to the Committee's comments.

In these circumstances, the Committee expresses the firm hope that the Government will be able to provide information in its next report on measures actually taken as a result of the work of the National Advisory Committee on Labour in order to bring the national legislation fully into conformity with the requirements of the Convention.

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While noting that the Government's report has not been received, the Committee acknowledges with interest that under section 24(3) and (4) of the Constitution, which came into force on 7 January 1993, every worker has the right to form or join a trade union of his choice for the promotion and protection of his economic and social interests and that restrictions shall not be placed on the exercise of this right except those prescribed by law. The Committee recalls none the less that the discrepancies between the legislation and the Convention relate to:

1. The 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.

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.

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

The Committee expresses once again the hope that appropriate amendments will be made to the law in the near future and that the Government will, if necessary, make use of the technical assistance of the ILO so that appropriate measures be taken to eliminate as soon as possible the existing divergencies 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.

CMNT_TITLE

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.

CMNT_TITLE

With reference to its previous comments, the Committee notes the information supplied by the Government in its reports. 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 states 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 nonetheless 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.

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 in force a certificate 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 indicates in its report that in Ghana all workers' organisations are affiliated to the national union of the sector concerned, which holds 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.

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 negotiator 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 issued with a certificate designating it as the exclusive negotiating representative.

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 its report, the Government mentions 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 states that, of its own volition, the TUC is not affiliated to any international workers' organisation, but that each of the 17 national unions, being autonomous, is affiliated to the various trade secretariats of international occupation organisations, such as those covering transport workers, chemical workers and agricultural workers, and to the Pan-African Employers' Confederation.

The Committee observes 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 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 which, since 1983, has proposed specific amendments to the provisions in question, the Committee trusts that appropriate amendments will be made to the law in the near future. The Committee asks the Government to keep it informed of any developments in this regard and to provide a copy of the amendments as soon as they are adopted.

[The Government is asked to supply full particulars to the Conference at its 78th Session.]

CMNT_TITLE

For several years, the Committee has been noting divergencies between the legislation and the Convention on the following points:

- the powers of the Registrar to oppose the registration of a trade union following any comments or objections concerning an application for registration (sections 11(3) and 12(1)(d) of the Trade Unions' Ordinance, 1941);

- the powers of the registrar, in the context of the procedure of granting recognition for purposes of collective bargaining, to refuse to appoint a trade union for any class of employees if there is in force a certificate as 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);

- the absence of provisions on the right to form and to join federations and confederations and the right to join international organisations of workers and employers, even though, in practice, the Ghana Trades Union Congress and its 17 national organisations are affiliated to the International Confederation of Free Trade Unions (ICFTU) and to the Organisation of African Trade Union Unity (OATUU).

In its previous observation, the Committee noted that the Subcommittee of the National Advisory Committee on Labour had been given the task of examining the comments of occupational organisations on draft amendments to the Industrial Relations Act of 1965.

The Committee notes, from the Government's last report, that the Subcommittee is continuing its work and that the examination of the question will only be begun when the National Advisory Committee on Labour examines the work of the Subcommittee.

The Committee points out that the provisions respecting the powers conferred upon the competent official to refuse to register a trade union are so broad that they could be used in a manner that is contrary to Article 2 of the Convention, by preventing workers from establishing without previous authorisation organisations of their own choosing. With regard to the prohibition upon issuing a certificate designating a trade union in the event of another trade union already being designated, the Committee points out that 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 negotiator for that unit. However, 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 issued with a certificate designating it as the exclusive negotiating representative.

The Committee also points out that workers' organisations should have the right to establish and join federations and confederations and freely to affiliate with international organisations in accordance with Article 5 of the Convention.

The Committee expresses the firm hope that measures will be taken in the near future in the light of the points set out above and it requests the Government to supply information in this respect with its next report.