Report in which the committee requests to be kept informed of development - Report No 93, 1967

Case No 303 (Ghana) - Complaint date: 22-JUN-62 - Closed

1. 77. This case has already been considered by the Committee at its sessions in October 1962, November 1963, May 1965 and February 1966. At its meeting in February 1966 the Committee submitted a further interim report to the Governing Body, on the allegations concerning the provisions of the Ghana Industrial Relations Act which were still before it, in paragraph 163 of its 87th Report, which reads as follows:
   • In all the circumstances the Committee recommends the Governing Body:
     • (a) to note that the Industrial Relations Act, 1958, as amended in 1959 and 1960, has been repealed and replaced by the Industrial Relations Act, 1965;
     • (b) to note with regard to the allegations relating to the monopoly of the Trades Union Congress in Ghana that the new legislation appears to have removed the previous restrictions on the adhesion of trade unions to the Congress and the requirement of the consent of the Minister to the registration of new trade unions;
     • (c) to note that the previously subsisting requirement of compulsory union membership in the case of persons belonging to a category of employees specified in a collective bargaining certificate appears to have been repealed by the new Act;
     • (d) to note, with regard to the allegations relating to interference in the internal affairs of the Trades Union Congress, that sections 5 (1), 5 (3) and 8 (1) of the Industrial Relations Act, 1958, as amended, have been repealed;
     • (e) to take note of the present interim report with regard to the allegations relating to the legal recognition of trade unions and to the regulation of the right to strike, it being understood that the Committee will report further thereon to the Governing Body when it has received additional information which it has decided to request the Government to be good enough to furnish.
   • 78. The present report is confined to the outstanding allegations referred to in paragraph 163 (e) of the Committee's 87th Report cited above. That report having been approved by the Governing Body at its 164th Session (February-March 1966), the Committee's request for further information on certain matters arising out of those allegations was brought to the notice of the Government of Ghana by a letter dated 8 March 1966. The Government replied by a letter dated 20 April 1966, which was not received by the I.L.O until 23 May 1966. As the Committee met on the same date it was not able to examine the reply at its last session.
2. 79. Ghana has ratified the Right of Association and Collective Bargaining Convention, 1949 (No. 98), which entered into force for Ghana on 2 July 1960. Ghana ratified the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87), on 2 June 1965, so that this Convention entered into force for Ghana on 2 June 1966.

A. A. The complainants' allegations

• Allegations relating to the Legal Recognition of Trade Unions
  80. 80 At its meeting in February 1966 the situation had evolved to the point where the Committee had to consider not the provisions of the Industrial Relations Act, 1958, as amended (in the light of which the allegations were first submitted) but the provisions of the Industrial Relations Act, 1965, which had repealed and replaced the earlier Act and its amendments. The Committee devoted its attention especially to the position with regard to the registration of trade unions and the certification of trade unions for collective bargaining purposes.
  81. 81 As the 1965 Act did not seem to contain any provisions relating to the registration of trade unions, it appeared to the Committee that a trade union would be entitled to registration if it complied with the Trade Unions Ordinance, 1941, as amended. The Committee then took note of the provisions of the 1965 Act relating to applications for collective bargaining certificates through the intermediary of the Ghana Trades Union Congress. Section 3 (1) of the 1965 Act provides as follows:
• The Congress shall on application by a trade union request the Registrar to issue a certificate appointing that trade union as the appropriate representative to conduct on behalf of a class of employees specified in the certificate collective bargaining with the employers of such employees and, subject to subsection (4), the Registrar shall be bound to comply with such a request.
• Section 3 (4) provides as follows:
• More than one certificate may be issued under this section in respect of the same trade union but the Registrar shall not appoint a trade union under this section for any class of employees if there is in force a certificate under this section appointing another trade union for that class of employees or any part of that class.
• Section 3 (5) provides as follows:
• A certificate issued under this section shall have effect notwithstanding that some of the employees of the class specified are not members of the trade union appointed under the certificate.
• Section 3 (7) provides as follows:
• At any time after the issue of the certificate under this section the Registrar may at the request of either the trade union to which the certificate applies or the appropriate employers' organisation and after consultation with the said trade union and the said organisation withdraw the certificate without prejudice to the right of such a trade union to apply for a fresh certificate under this section.
  82. 82 The Committee noted that the new Act did not define the manner in which the representativeness of a union shall be determined or lay down rules as to the degree of representativeness which shall entitle a union to the issue of a certificate under section 3 (1). This being so, the Committee had no information before it as to the criteria on the basis of which these matters were decided. Also, in view of the provisions of section 3 (4), the Committee was unable to form a view as to how, in the event of a new union being registered under the Trade Unions Ordinance and organising a larger number of employees of a given class than does a union already having a bargaining certificate in respect of that class, the new union could obtain a bargaining certificate as being more representative.
  83. 83 The Committee also noted that, when an application for registration is made under the Trade Unions Ordinance, 1941, as amended, the Registrar shall, according to section 11 (3) thereof, first consider the observations and objections (if any) of the Commissioner of Labour and certain other authorities and any other objections which may have been brought to his notice, and that, according to section 12 (1) (d), he shall not register the union unless he is satisfied, inter alia, that the objections (if any) submitted under section 11 (3) are not of sufficient substance to justify a refusal to register. As the ordinance does not define the grounds on which valid objections may be made, the Committee was unable to form an opinion as to whether, for example, the fact that a trade union already existed which catered for the same class of employees as a new union seeking registration organised or proposed to organise, or the fact that the existing union held a bargaining certificate under the Industrial Relations Act, 1965, in respect of such class of employees, would give rise to objections of sufficient substance to justify the Registrar, in terms of the Trade Unions Ordinance, in refusing to register the new union.
  84. 84 In these circumstances the Committee decided to request the Government to be good enough to clarify the situation as regards the registration or certification of new unions in the light of the points mentioned in paragraphs 82 and 83 above.
  85. 85 In its communication dated 20 April 1966 the Government points out that section 3 (1) of the 1965 Act is mandatory; if a union applies for a certificate Congress shall request the Registrar to issue it and the Registrar shall be bound to do so. There is no criterion as to the degree of representativeness required; the only criterion is the union's own decision to apply. In view of the wording of section 3 (4), says the Government, " even if another union emerges which would have been more entitled to obtain the certificate ", as long as the existing certificate is still in force the new union has no right under the Act to supersede the other one. The only way a change could be made in such circumstances, the Government explains, would be for the certificated union to apply of its own volition, under section 3 (7), for the cancellation of its certificate, so that the " more deserving union " can then apply for a certificate. The Government expresses the view that " this process will not, in practice, cause any injustice to either of the two unions, since they will confer among themselves freely in the interest of the class of employees concerned".
  86. 86 With regard to the question of registration, the Government states that if a union fulfils the conditions of sections 8 and 11 (1) of the Trade Unions Ordinance, 1941, as amended, the Registrar is bound to register it in accordance with the provisions of section 11 (2), (3), (4) and (5) thereof, if the registration does not defeat the provisions of section 12 (1) (a), (b) and (c) thereof.
  87. 87 With regard to the question of certification, therefore, the Government confirms that once a union has a bargaining certificate in respect of a particular class of employees (to obtain which, exclusively, it needs to satisfy no criterion as to representativeness) it cannot be superseded by a new union, however more representative the latter may be, unless it chooses of its own volition to ask for its own certificate to be cancelled. Under the Industrial Relations Act, 1965, no union, however representative, can bargain collectively on behalf of its members unless it has a bargaining certificate.
  88. 88 The Committee has already drawn attention, at an earlier stage in the present case, to the importance it has always attached to the fact that the right to bargain freely with employers with respect to conditions of work constitutes an essential element in freedom of association and to the principle that trade unions should have the right, through collective bargaining or other lawful means, to seek to improve the living and working conditions of those whom they represent. In addition, Article 4 of the Right to Organise and Collective Bargaining Convention, 1949 (No. 98), ratified by Ghana, provides that " Measures appropriate to national conditions shall be taken, where necessary, to encourage and promote the full development and utilisation of machinery for voluntary negotiation between employers or employers' organisations and workers' organisations, with a view to the regulation of terms and conditions of employment by means of collective agreements ".
  89. 89 A new element in the situation is that, since 2 June 1966, the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87), has entered into force for Ghana, following its ratification on 2 June 1965. Article 3 of this Convention provides that workers' and employers' organisations shall have the right to organise their activities and to formulate their programmes, and Article 8, paragraph 2, thereof provides that the law of the land shall not be such as to impair, nor shall it be so applied as to impair, the guarantee provided for in Article 3.
  90. 90 The Committee has already pointed out in the present case that, while there is no necessary incompatibility with Article 3 of Convention No. 87 in a provision for the certification of the most representative union in a given unit as the exclusive bargaining agent for that unit, this is the case only if a number of safeguards are provided. The Committee observed that, in several countries in which the procedure of certifying unions as exclusive bargaining agents has been established, it has been regarded as essential that such safeguards should include the following: (a) certification to be made by an independent body; (b) the representative organisation to be chosen by a majority vote of the employees in the unit concerned; (c) the right of an organisation which fails to secure a sufficiently large number of votes to ask for a new election after a stipulated period; (d) the right of an organisation other than the certificated organisation to demand a new election after a fixed period, often 12 months, has elapsed since the previous election. The last three of these safeguards do not appear to be contained in the present law of Ghana.
  91. 91 In these circumstances the Committee recommends the Governing Body to draw the attention of the Government of Ghana to the importance it attaches to the principles set forth in paragraph 88 above and to those embodied in Article 4 of the Right to Organise and Collective Bargaining Convention, 1949 (No. 98), and Articles 3 and 8 (2) of the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87), both of which have been ratified by Ghana; to express the hope that, having regard to the considerations set forth in paragraphs 87 and 90 above, the Government of Ghana will amend the legislation with respect to the certification of trade unions as exclusive collective bargaining agents in order to give full effect to the foregoing principles; and to request the Government to keep the Governing Body informed of the legislative measures it may take or intend to take in this connection.
  92. 92 With regard to the question of registration under the Trade Unions Ordinance, 1941, as amended, the Government confirms that among the provisions of that ordinance which must be satisfied before a new union is granted registration are those contained in sections 11 (3) and 12 (1) (d) thereof. As the Committee observed at its meeting in February 1966, when an application for registration of a trade union is made, the Registrar shall, according to section 11 (3), first consider the observations and objections (if any) of the Commissioner of Labour and certain other authorities and any other objections which may have been brought to his notice, and, according to section 12 (1) (d), he shall not register the union unless he is satisfied, inter alia, that the objections (if any) submitted under section 11 (3) are not of sufficient substance to justify a refusal to register. As the ordinance does not define the grounds on which valid objections may be made, the Committee observed that it was unable to form an opinion as to whether, for example, the fact that a trade union already existed for the same class of employees as a new union seeking registration organised or proposed to organise, or the fact that the existing union held a bargaining certificate under the Industrial Relations Act, 1965, in respect of such class of employees, would give rise to objections of sufficient substance to justify the Registrar, in terms of the Trade Unions Ordinance, in refusing to register the new union. Under the ordinance registration of trade unions is compulsory, a union which does not apply for registration within a given time after being formed or which is refused registration or is deregistered being an unlawful association unless it is dissolved. The Committee therefore decided to request the Government to be good enough to clarify the situation in these respects, but the reply furnished by the Government on 20 April 1966 adds no new elements of information to enable the Committee to assess the position.
  93. 93 Since that time, as stated above, the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87), entered into force for Ghana on 2 June 1966. Article 2 of that Convention provides that workers and employers, without distinction whatsoever, shall have the right to establish organisations of their own choosing without previous authorisation, and Article 8, paragraph 2, provides that the law of the land shall not be such as to impair, nor shall it be so applied as to impair, the guarantee contained in Article 2 of the Convention.
  94. 94 In these circumstances the Committee recommends the Governing Body to draw the attention of the Government of Ghana to the importance which it attaches to the principles embodied in Articles 2 and 8 (2) of the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87), ratified by Ghana; to suggest to the Government that, having regard to the provisions of Articles 2 and 8 (2) of the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87), referred to in paragraph 93 above, it should amend its legislation so as to define clearly the nature of the objections which can justify a refusal by the Registrar of Trade Unions to register a trade union and, in particular, to make it clear that objections based on grounds such as those indicated in paragraph 92 above could not justify a refusal.
• Allegations relating to the Regulation of the Right to Strike
  95. 95 These allegations were based on the fact that section 28 of the industrial Relations Act, 1958, placed temporary restrictions on the right to strike of workers belonging to certificated unions, while section 29 prohibited strikes in any circumstances whatsoever by workers belonging to non-certificated unions, even though the latter could not participate in the statutory conciliation and arbitration procedures established by the Act. At its meeting in May 1965 the Committee recommended the Governing Body to take note of a statement by the Government that it intended to repeal section 29 of the Act.
  96. 96 The Act of 1958 has since been replaced by the Industrial Relations Act, 1965. At its meeting in February 1966 the Committee observed that section 21 of the new Act placed temporary restrictions on strikers pending recourse to the procedure for the settlement of disputes provided for in the Act, applying apparently with respect to strikes by employees of a class specified in a bargaining certificate, but that no indication appeared to be given as to the situation, as regards the exercise of the right to strike, of employees not belonging to such a class. The Committee therefore requested the Government to state what distinctions, if any, still existed between the strike rights of workers of a certificated class and those of other workers.
  97. 97 In its communication dated 20 April 1966 the Government states that in practice the only persons who will be interested in strike action in the circumstances outlined in the Act are those who have failed to obtain satisfaction in respect of grievances which are the subject of arbitration and other machinery for the settlement of disputes and that any other persons who go on strike with reference to a dispute do so in sympathy with those aggrieved. Therefore, states the Government, if it is unlawful for certificated workers to strike without having recourse to the statutory procedures for the settlement of disputes, then in the event of an illegal strike persons not belonging to a certificated union but who participate in the strike action will be dealt with on the ground of aiding and abetting the illegal action of the certificated persons; hence section 21 should not be interpreted, says the Government, as allowing non-certificated workers to strike illegally.
  98. 98 While thanking the Government for these explanations, the Committee does not feel that they fully answer the preoccupations of the Committee. The situation of workers belonging to a certificated union appears to be clear-they may not strike legally before having recourse to the statutory procedures laid down in the Act and recourse to which is the exclusive right of the certificated workers. The Committee also appreciates that a strike by other persons in sympathy with an illegal strike by members of a certificated union may also be deemed to be illegal. But what the Committee wished to understand, by comparison with the situation of members of a certificated union, was the situation of workers belonging to a non-certificated union which, on that account, could not have recourse to the statutory settlement procedures and therefore called a strike, not in sympathy but as the only means of enforcing the economic demands of its members.
  99. 99 In the circumstances the Committee recommends the Governing Body to suggest to the Government of Ghana that it should review the provisions of the legislation relating to strikes with a view to ensuring that members of a non-certificated union are not treated differently by comparison with members of a certificated union.

The Committee's recommendations

1. 100. With regard to the case as a whole the Committee recommends the Governing Body:
   • (a) to note that Ghana, which has ratified the Right to Organise and Collective Bargaining Convention, 1949 (No. 98), has also ratified the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87), which entered into force for Ghana on 2 June 1966, that is to say, since the Committee submitted to the Governing Body the recommendations contained in paragraph 163 of its 87th Report;
   • (b) to decide, with regard to the question of the legal recognition of trade unions:
   • (i) to draw the attention of the Government to the importance which the Governing Body attaches to the fact that the right to bargain freely with employers with respect to conditions of work constitutes an essential element in freedom of association; to the principle that trade unions should have the right, through collective bargaining or other lawful means, to seek to improve the living and working conditions of those whom they represent; and to the provision of Article 4 of the Right to Organise and Collective Bargaining Convention, 1949 (No. 98), ratified by Ghana, according to which measures appropriate to national conditions shall be taken, where necessary, to encourage and promote the full development and utilisation of machinery for voluntary negotiation between employers or employers' organisations and workers' organisations, with a view to the regulation of terms and conditions of employment by means of collective agreements;
   • (ii) to draw the attention of the Government to the importance which it attaches to the provisions of Articles 3 and 8 (2) of the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87), which has now entered into force for Ghana, according to which workers' and employers' organisations shall have the right to organise their activities and to formulate their programmes and the law of the land shall not be such as to impair, nor shall it be so applied as to impair, this guarantee;
   • (iii) to express the hope that, having regard to the considerations set forth in paragraphs 87 and 90 above, the Government of Ghana will amend the legislation with respect to the certification of trade unions as exclusive collective bargaining agents in order to give full effect to the foregoing principles;
   • (iv) to request the Government to keep the Governing Body informed of the legislative measures it may take or intend to take in this connection;
   • (c) to decide, with regard to the question of the registration of trade unions under the Trade Unions Ordinance, 1941, as amended:
   • (i) to draw the attention of the Government to the importance which the Governing Body attaches to the provisions of Articles 2 and 8 (2) of the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87), which has now entered into force for Ghana, according to which workers and employers, without distinction whatsoever, shall have the right to establish organisations of their own choosing without previous authorisation, and the law of the land shall not be such as to impair, nor shall it be so applied as to impair, this guarantee;
   • (ii) to suggest to the Government that, having regard to these provisions, it should amend its legislation so as to define clearly the nature of the objections which can justify a refusal by the Registrar of Trade Unions to register a trade union and, in particular, to make it clear that the fact that a trade union already exists for the same class of employees as a new union seeking registration organises or proposes to organise, or the fact that the existing union holds a bargaining certificate under the Industrial Relations Act, 1965, in respect of such class of employees, could not give rise to objections of sufficient substance to justify the Registrar in refusing to register the new union;
   • (d) to suggest to the Government that it should review the provisions of the legislation relating to strikes with a view to ensuring that members of a non-certificated union are not treated differently by comparison with members of a certificated union.