Direct Request (CEACR) - adopted 2009, published 99th ILC session (2010)

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.