Informe provisional - Informe núm. 83, 1965

Caso núm. 303 (Ghana) - Fecha de presentación de la queja:: 22-JUN-62 - Cerrado

1. 171. This case was previously examined by the Committee at its meetings in October 1962 and November 1963.
2. 172. On 13 May 1957 the Government of Ghana, already a Member of the United Nations, addressed to the Director-General of the International Labour Office a letter, signed by Mr. Kwame Nkrumah, the Prime Minister, in which Ghana formally accepted the obligations of the Constitution of the I.L.O, and thereby became a Member of the Organisation, by virtue of article 1, paragraph 3, of the Constitution, as from 20 May 1957, the date of receipt of the letter. In the same letter the Government of Ghana stated that it would continue to apply the provisions of the Right of Association (Non-Metropolitan Territories) Convention, 1947 (No. 84), pending formal ratification by Ghana of the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87), and the Right to Organise and Collective Bargaining Convention, 1949 (No. 98). Ghana has ratified the Right to Organise and Collective Bargaining Convention, 1949 (No. 98), but has not ratified the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87).

Allegations relating to the Legislation concerning Trade Unions and Industrial Relations in Ghana

1. 173. At its meeting in October 1962 the Committee considered, in paragraphs 253 to 311 of its 67th Report, a number of allegations relating to the provisions of the Industrial Relations Act, 1958, as amended. On the recommendation of the Committee, the Governing Body, as indicated in paragraph 323 (a), (b) and (c), of that report, drew certain principles to the attention of the Government of Ghana, suggested that it might care to re-examine the provisions of the Act in the light of those principles and requested the Government to be good enough to keep the Governing Body informed as to further developments. With regard to the application of certain of the provisions of the Act, the Committee itself requested the Government to furnish further information, as indicated in paragraphs 269 and 285 of its 67th Report.
2. 174. At its meeting in November 1963 the Committee had before it a letter dated 26 July 1963 in which the Government stated that proposed amendments to the Industrial Relations Act were due to be placed before the National Advisory Committee on Labour soon for examination and approval. Accordingly, the Committee recommended the Governing Body, in paragraph 144 (a) of its 72nd Report, to take note of this statement and to request the Government to be good enough to keep the Governing Body informed as to further developments in this connection.
3. 175. On 26 April 1965 the Government, by a " final reply ", forwarded the text of amendments to the Industrial Relations Act, 1958, and to the Industrial Relations (Amendment) Act, 1959, which it now has under consideration. This document is considered below in the context of the different allegations regarding the legislation which the Committee examined in its 67th Report.
4. (a) Allegations relating to the Monopoly of the Trades Union Congress of Ghana
5. 176. These allegations and the Government's observations thereon were analysed in detail by the Committee, at its meeting in October 1962, in paragraphs 254 to 265 of the Committee's 67th Report. The situation is recapitulated more briefly below.
6. 177. Section 3 (1) of the Industrial Relations Act, 1958, provides for the establishment of a Trades Union Congress " which shall act as the representative of the trade union movement in Ghana". Section 4 (1) provides that the Congress shall consist of members of the trade unions listed in the First Schedule to the Act; section 4 (3) empowers the Minister to add to or to delete from that list the name of any trade union. Section 2 of the Industrial Relations (Amendment) Act, 1959, provides that, within two months of its enactment, every trade union registered under the Trade Unions Ordinance, 1941, as amended, which was not at the date of such enactment a union having the right to elect members of the Congress - i.e. a union named in the Schedule to the 1958 Act-must be dissolved, with the only exception that, within the same period, it might amalgamate with one of the scheduled unions, while section 3 prohibited the registration of any new union under the ordinance without the written consent of the Minister.
7. 178. It appeared to the Committee that no trade union could legally exist in Ghana unless it was one of the unions scheduled in the 1958 Act or unless, being already a union outside that list but registered under the ordinance, it amalgamated with one of those scheduled unions, with the sole exception of a new union to the registration of which the Minister at his discretion might give his consent. The Committee came to the conclusion, therefore, that the position appeared to be that a trade union monopoly had been established by legislation.
8. 179. The Committee pointed out that the I.L.O. Committee of Experts on the Application of Conventions and Recommendations had observed that, while it may be to the advantage of workers to avoid a multiplicity of trade union organisations, unification of the trade union movement imposed through state intervention by legislative means runs counter to the principle, embodied in Article 2 of the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87), that workers and employers should have the right to establish and join organisations " of their own choosing " and to the principle, embodied in Article 11 thereof, that workers and employers should be enabled to " exercise freely the right to organise ". The Committee of Experts had also emphasised that " the fact that workers and employers generally find it in their interests to avoid multiplication of the number of competing organisations does not, in fact, appear sufficient to justify direct or indirect intervention by the State, and, especially, intervention by the State by means of legislation ".
9. 180. The Committee also concluded that, on the basis of the provisions referred to in paragraph 177 above, it appeared that the Congress was the only Confederation which could exist in Ghana and that the right to form federations was limited necessarily to such federations, if any, as the unions scheduled in the Act and such new unions as would be registered with the consent of the Minister themselves might form, a situation which seemed to be incompatible with the generally accepted principle, embodied in Article 5 of the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87), that trade unions should have the right to form federations and Confederations of their own choosing.
10. 181. Consequently, the Committee, while appreciating the desire of the Government of Ghana to promote a strong trade union movement and to avoid the weaknesses arising from an undue multiplicity of small, competing trade unions, recommended the Governing Body, in paragraph 323 (a) of its 67th Report:
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12. (i) to draw the attention of the Government to the importance which the Governing Body has always attached to the generally accepted principles that workers should have the right to establish organisations of their own choosing without previous authorisation and that workers' organisations should have the right freely to form federations and Confederations;
13. (ii) to express the view that the provisions of the Industrial Relations Act, 1958, as amended in 1959, which establish a Trades Union Congress as the representative of the trade union movement in Ghana and limit the trade unions which may lawfully exist to those which, subject to such changes therein as the Minister himself may determine, are listed in the First Schedule to that Act, except for such other unions as the Minister may authorise to be registered, are not compatible with the aforesaid principles;
14. (iii) to ask the Government to reconsider the provisions of the Industrial Relations Act, 1958, as amended, in the light of the considerations set forth in subparagraph (ii) above, with a view to giving fuller effect to the principles enunciated in subparagraph (i) above;
15. (iv) to request the Government to be good enough to keep the Governing Body informed as to further developments in this connection.
16. 182. In the text of the amendments to the 1958 Act being considered by the Government it is stated that section 3 will be amended so as to enable the Trades Union Congress to perform the functions conferred on it by its own rules and regulations instead of functions conferred on it by the Act. (The present section 3 (1) provides that the Congress shall act as the representative of the trade union movement in Ghana and perform the functions conferred on it by the Act.) Section 4 (1), which at present provides that the Congress shall consist of members of the trade unions listed in the First Schedule to the Act, would be deleted and replaced by a new subsection providing that the Congress would consist of the national trade unions listed in the First Schedule. Section 4 (3) would be deleted " so as to take away the power conferred on the Minister responsible for labour to add to or delete from the list in the said First Schedule ". Section 3 of the 1959 amending Act, which requires the written consent of the Minister for the registration of a trade union under the Trade Unions Ordinance, would be repealed.
17. 183. The Government does not, in its reply, explain what would be the over-all effect of these amendments. Although, prima facie and read alone, they would appear to remove from the legislation certain of the clauses questioned by the Committee in its 67th Report, it would seem necessary to regard the whole Act, as eventually amended, before reaching any final conclusions as to how far effect was given to the principles set forth in paragraph 323 (a) of the 67th Report of the Committee. It has also to be borne in mind that section 2 of the 1959 amending Act, which required the dissolution within two months of existing registered unions outside the Congress, unless they amalgamated with a union named in the First Schedule to the 1958 Act, has presumably been carried into effect; no reference is made to it in the amendments being considered.
18. 184. In these circumstances the Committee recommends the Governing Body:
19. (a) to note that the Government of Ghana is considering amending sections 3 (1), 4 (1) and 4 (3) of the Industrial Relations Act, 1958, and repealing section 3 of the Industrial Relations (Amendment) Act, 1959, which the Governing Body, when adopting paragraph 323 (a) of the Committee's 67th Report, regarded as incompatible with the generally accepted principles that workers should have the right to establish organisations of their own choosing without previous authorisation and that workers' organisations should have the right freely to form federations and Confederations;
20. (b) to note further that, for the reasons indicated in paragraph 183 above, the Committee has decided to defer submitting its final conclusions on this aspect of the case until it has had an opportunity of considering the effect of these particular proposed amendments in the light of the provisions of the amending Act as a whole, when it has been enacted.
21. (b) Allegations relating to Compulsory Union Membership
22. 185. At its meeting in October 1962 the Committee considered an allegation that section 16 of the 1958 Act, as amended, provided that no person belonging to a category of workers specified in a certificate issued to a registered union but not belonging to that union could remain at work for more than one month-a provision which, the Government argued, justifiably gave effect to the principle that if a man enjoyed the better conditions obtained by organised workers he should join in the crusade to secure them, and embodied the union shop principle as adopted in New Zealand. It observed also that the I.L.O. Committee of Experts on the Application of Conventions and Recommendations had asked the Government of Ghana, in the light of its report for the period 1 July 1959-30 June 1961 on the application of the Right to Organise and Collective Bargaining Convention, 1949 (No. 98), ratified by Ghana, to specify by what amending legislation section 16 had been so amended and section 31 (1) (a) of the Act had been amended to provide that it would be an unfair labour practice for an employer to continue to employ a worker in such circumstances.
23. 186. Accordingly, in paragraph 269 of its 67th Report, the Committee asked the Government to furnish the text of the amendments to sections 16 and 31 (1) (a) of the Act.
24. 187. In its latest reply the Government states that section 16 was amended by Act No. 7 of 1960 to read: " No person who belongs to a class of employees specified in a certificate issued under the provisions of Part II of this Act but who is not a member of the trade union covered by the certificate shall be kept in any employment for a period exceeding one month." Section 31 (1) (a) was amended by the 1960 Act to provide that an employer who " continues to employ any person who is not a member of a trade union and belongs to a class of employees specified in a certificate under Part II of this Act and who would share in the benefit of a collective agreement in accordance with section 17 of this Act shall be guilty of an unfair labour practice ".
25. 188. There is no indication in the reply and the texts now furnished by the Government that it is intended to amend these provisions.
26. 189. The effect of sections 16 and 31 (1) (a) of the 1958 Act, as amended, is to impose a union shop by law. The Committee has been called upon in the past to examine cases in which deduction of union dues or other forms of union security arrangements had been instituted not by virtue of legislation but by means of collective agreements or by established practice subsisting between the two parties. In these cases the Committee declined to entertain the allegations made, basing its reasoning on the statement in the report of the Committee on Industrial Relations set up by the International Labour Conference in 1949 9 that the Right to Organise and Collective Bargaining Convention, 1949 (No. 98), could in no way be interpreted as authorising or prohibiting union security arrangements, such matters being matters for regulation in accordance with national practice.
27. 190. In fact there are many examples of countries in which the law prohibits certain forms of union security arrangements and many others in which the law permits such arrangements, either formally or by reason of the fact that no legislation on the matter exists at all. But, as the Committee pointed out in Case No. 266 relating to Portugal, the position is very different when the law imposes union security-either in the form of making union membership compulsory or by the making of union contributions payable in such circumstances as to amount to the same thing.
28. 191. The I.L.O. Committee of Experts on the Application of Conventions and Recommendations has regarded a situation in which an individual is denied any possibility of choice between different organisations, by reason of the fact that legislation permits the existence of only one organisation in which he carries on his occupation, as being incompatible with the principles embodied in the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87), because such provisions establish, by legislation, a trade union monopoly which must be distinguished both from union security clauses and practices and from situations in which trade unions voluntarily form a simple federation or Confederation. Finding that such a monopoly existed under the legislation of Portugal, the Committee on Freedom of Association concluded in Case No. 266 that it appeared that a legal obligation to pay contributions to that monopoly trade union represented a further consecration and strengthening of that monopoly. The Committee therefore recommended the Governing Body, in that case, to draw the attention of the Government of Portugal to its view that the power given by law to the competent Minister to impose an obligation on all the workers in the category concerned to pay contributions to the single national trade union which was permitted to be formed in any one occupation in a given area was not compatible with the principle that workers should have the right to join organisations " of their own choosing ".
29. 192. The Committee has already expressed the view, in paragraph 259 of its 67th Report, that a trade union monopoly appears to have been established in Ghana by legislation. Sections 16 and 31 (1) (a) of the 1958 Act, as amended, therefore, would appear to strengthen that monopoly further and to be incompatible with the principle that workers should have the right to join organisations of their own choosing.
30. 193. While certain of the amendments to the legislation now under consideration may, when enacted, result in the workers being permitted to form other unions apart from those listed as constituents of the Trades Union Congress of Ghana, it would appear, from the texts furnished by the Government, that sections 16 and 31 (1) (a) are intended to be retained, with the result that, even if a worker could join a different union as a matter of law, he would still be obliged to join a particular union-by law-if he wished to retain his employment, a requirement which would seem to be incompatible with his right to join the organisation of his own choosing.
31. 194. In these circumstances the Committee recommends the Governing Body:
32. (a) to draw the attention of the Government to its view that sections 16 and 31 (1) (a) of the Industrial Relations Act, 1958, as amended, appear to be incompatible with the generally accepted principle that workers should have the right to establish and join organisations of their own choosing;
33. (b) to express the hope that the Government, when effecting the amendments it proposes to make to the legislation, will consider, having regard to the considerations set forth in paragraphs 190 to 193 above, amending these particular provisions also, with a view to giving full effect to the principle enunciated in the preceding subparagraph.
34. (c) Allegations relating to Interference in the Internal Affairs of the Trades Union Congress
35. 195. These allegations and the Government's observations thereon were examined in detail by the Committee, at its meeting in October 1962, in paragraphs 270 to 285 of its 67th Report. The situation is recapitulated more briefly below.
36. 196. The first provisions of the Industrial Relations Act, 1958, as amended, which were brought into question were section 5 (1), which provides that the power of the Congress to make its rules is subject to approval by the Minister of Labour, and section 5 (3), which reserves to the competent Minister certain powers in relation to expenditure by the Congress and the auditing of its funds. Before reaching firm conclusions on this aspect of the case, the Committee, while indicating that provisions of this kind might call for examination in the light of, inter alia, the generally accepted principle that workers' organisations should have the right to draw up their Constitutions and rules in full freedom, observed that the provisions had been referred to by the Government as being of a transitional character and asked the Government to state whether their application had lapsed since the Congress had become established.
37. 197. The Committee also considered section 8 (1) of the Act, according to which, if it appears to the Governor-General that the Congress has taken any action " which is not conducive to the public good ", he may by order direct that all the assets of the Congress shall be transferred to and vested in a receiver appointed in the order and held by him. The Committee observed that provisions of this kind had to be considered in the light of the generally accepted principles that workers' organisations should have the right to draw up their Constitutions and rules, to elect their representatives in full freedom, to organise their administration and activities and to formulate their programmes, and that the public authorities should refrain from any interference which would restrict or impede the lawful exercise thereof. As the Government had stated, however, that this provision was more or less transitory, the Committee, before proceeding further with its examination, decided to request the Government to state whether it was disposed to repeal or modify section 8 (1).
38. 198. In its communication dated 26 April 1965 the Government states that, under the amendments now under consideration, sections 5 (1), 5 (3) and 8 (1) of the Act will be repealed.
39. 199. In these circumstances the Committee recommends the Governing Body to take note with satisfaction of the Government's statement that it is intended to repeal sections 5 (1), 5 (3) and 8 (1) of the Industrial Relations Act, 1958, as amended.
40. (d) Allegations relating to the Legal Recognition of Trade Unions
41. 200. The issues raised by these allegations were examined by the Committee in paragraphs 286 to 299 of its 67th Report. The situation is recapitulated more briefly below.
42. 201. Part II of the Act relates to collective bargaining by certified trade unions and, in particular, sections 10, 11 and 12 (the latter as amended in 1959) relate to the issue and withdrawal of certificates appointing a trade union registered under the Trade Unions Ordinance as bargaining representative for the class of employees mentioned, whether members of the union or not.
43. 202. Section 10 (1) provides that the Minister may, on application made according to section 11, and after consulting the appropriate employers' organisations, issue a certificate appointing a trade union registered under the Trade Unions Ordinance as the appropriate representative to conduct collective bargaining with the employers on behalf of a class of employees specified in the certificate. Section 10 (4) provides that such certificate takes effect even though some of the employees of the class specified are not members of the union. Section 10 (6) does not permit a certificate to be issued as respects persons in the public service or in the service of a municipal council or a council under the Local Government Ordinance. Section 11 requires the application for such a certificate to be made by the Trades Union Congress on behalf of the union concerned; if the Congress does not put forward the application within three months, the union may apply directly to the Minister. Section 12 of the Act (i.e. the new text inserted by the amendment of 1959) provides that the Minister may withdraw a certificate if he thinks fit, after consultation with the trade union concerned and with the appropriate employers' organisation.
44. 203. The Second Schedule to the Act provides that, if the Minister is satisfied that not less than 40 per cent of the employees of the class described in the application are members of the union and that the class forms a suitable unit for collective bargaining, he may, if he thinks fit, issue a certificate. If not satisfied that the union has such 40 per cent membership, he may order that the matter be decided by a majority of the votes of the class concerned, cast by secret ballot according to conditions prescribed by the Minister; then, if not less than two-thirds of those voting are in favour of the appointment of the union and the total of those voting is not less than 52 per cent of the total entitled to vote, the Minister shall issue a certificate, but in any other case he shall refuse the application, without prejudice to the making of a further application after not less than 12 months; any dispute as to the application of these voting provisions shall be settled on the final decision of the Minister.
45. 204. When the Committee examined these provisions at its meeting in October 1962 it observed that, in a number of cases, it has emphasised the importance that it has always attached to the fact that the right to bargain freely with employers with respect to conditions of work constitutes an essential element in freedom of association and to the principle that trade unions should have the right, through collective bargaining or other lawful means, to seek to improve the living and working conditions of those whom the trade unions represent, and that the public authorities should refrain from any interference which would restrict this right or impede the lawful exercise thereof. Any such interference, by the same token, would appear to infringe the generally accepted principle, embodied in Article 3 of the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87), that workers' and employers' organisations should have the right, without such interference, to organise their activities and to formulate their programmes.
46. 205. While there is not necessarily incompatibility with Article 3 of the said Convention, the Committee pointed out, in a provision for the certification of the most representative union in a given unit as the exclusive bargaining agent for that unit, this is the case only if a number of safeguards are provided. In several countries in which the procedure for certifying unions as exclusive bargaining agents has been established, it has been regarded as essential that such safeguards should include the following: (a) certification to be made by an independent body; (b) the representative organisation to be chosen by a majority vote of the employees in the unit concerned; (c) the right of an organisation which fails to secure a sufficiently large number of votes to ask for a new election after a stipulated period; (d) the right of an organisation other than the certificated organisations to demand a new election after a fixed period, often 12 months, has elapsed since the previous election.
47. 206. The Committee considered that the Act, in its present form, does not provide such safeguards, certification being made by the competent Minister and not by an independent body, such as a labour relations board or labour court, etc., and that, under the Act, the representative organisation is not necessarily chosen by a free vote of the employees in the unit concerned. In this connection the Committee referred especially to the discretion of judgment accorded to the Minister by sections 10 (1) and 12 (1) and the Second Schedule to the Act.
48. 207. In these circumstances the Committee reached the conclusion that the provisions referred to in the preceding paragraphs did not appear to be compatible with the principles enunciated in Article 3 of the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87).
49. 208. Further, in paragraphs 297 and 298 of its 67th Report, the Committee drew attention to the fact that in 1962 the Committee of Experts on the Application of Conventions and Recommendations had addressed to the Government of Ghana a direct request in which it had drawn attention to certain incompatibilities between sections 10 (1), 10 (6) and 12 of the Act, as amended (see paragraph 202 above), and Article 4 of the Right to Organise and Collective Bargaining Convention, 1949 (No. 98), ratified by Ghana.
50. 209. The Committee, therefore, while fully appreciating the desire of the Government of Ghana to ensure that strong and stable trade unions shall engage in collective bargaining and that they shall be recognised as entitled to negotiate, recommended the Governing Body, in paragraph 323 (b) of its 67th Report:
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52. (i) to draw the attention of the Government to the importance which the Governing Body has always attached to the fact that the right to bargain freely with employers with respect to conditions of work constitutes an essential element in freedom of association, and to the principle that trade unions should have the right, through collective bargaining or other lawful means, to seek to improve the living and working conditions of those whom the trade unions represent, and that the public authorities should refrain from any interference which would restrict this right or impede the lawful exercise thereof;
53. (ii) to express the view that, for the reasons indicated in paragraphs 294 and 295 above, the discretionary powers accorded to the Minister under sections 10 (1) and 12 of the Industrial Relations Act, 1958, as amended, and the Second Schedule to that Act do not appear to be compatible with the above principle;
54. (iii) to draw the attention of the Government to the different points raised by the I.L.O. Committee of Experts on the Application of Conventions and Recommendations, as indicated in paragraphs 297 and 298 above, with regard to incompatibilities which appear to exist between the provisions of sections 10 (1), 10 (6) and 12 of the Industrial Relations Act, as amended, and the provisions of Article 4 of the Right to Organise and Collective Bargaining Convention, 1949 (No. 98), ratified by Ghana;
55. (iv) to suggest to the Government that it may care to consider the possibility of amending the Industrial Relations Act having regard to the considerations set forth in subparagraphs (i), (ii) and (iii) above;
56. (v) to request the Government to be good enough to keep the Governing Body informed as to further developments in this connection.
57. 210. In its communication dated 26 April 1965 the Government states that section 10 (1) of the Act (see paragraph 202 above) will be replaced by the following text:
58. Subject to the provisions of this Part of this Act, the Registrar of Trade Unions shall, on the application of the Trades Union Congress, register under the Trade Unions Ordinance and issue a certificate appointing a trade union as the appropriate representative to conduct, on behalf of a class of employees specified in the certificate, collective bargaining with their employers.
59. The intention, says the Government, is to transfer to the Registrar of Trade Unions the functions under Part 11 of the Act of the Minister responsible for labour.
60. 211. The Government states that it is proposed to repeal section 10 (6) of the Act, which does not permit the issue of a certificate as respects persons in the public service, persons in the service of a local council, or teachers in teaching service or other public service as defined in the Teachers' Pensions Ordinance, 1955.
61. 212. Section 11 (1) and (2) would be repealed. Section 11 (1) at present provides that an application for the issue of a certificate shall be made by the Trades Union Congress on behalf of the trade union concerned; under section 11 (2), if the Congress does not comply with the request within three months, the union may make application to the Minister.
62. 213. Paragraph 1 (2) of the Second Schedule to the Act would be repealed. This at present provides that, if the Minister is satisfied that not less than 40 per cent of the employees of the class described in an application are members of the trade union concerned and that the class forms a suitable unit for collective bargaining, he may, if he thinks fit, issue a certificate.
63. 214. The present paragraph 2 of the Second Schedule, which contains the complex union voting provisions referred to in paragraph 203 above, would be repealed and replaced by a short provision reading: " If there is more than one union in any organisation the Trades Union Congress shall decide which union shall represent the interests of the organisation."
64. 215. While the provisions questioned in the 67th Report of the Committee would thus largely be repealed, the main result being to divest the Minister of his present functions with regard to the issue of bargaining certificates, it is necessary to consider the situation in the light of the clauses which would replace those provisions. As already noted in paragraph 182 above in connection with the allegations relating to the monopoly of the Trades Union Congress, the Government stated at an earlier stage in its reply dated 26 April 1965 that section 3 of the amending Act of 1959, which makes the registration of a new union under the Trade Unions Ordinance dependent on the consent of the Minister, would be repealed. However, it would appear that, following the enactment of the new section 10 (1) now being considered, the registration of any new union under the ordinance, and the issue of a bargaining certificate to any union at all, would both be effected by the Registrar " on the application of the Trades Union Congress ". Further, the proposed amending legislation would not appear to define the criteria according to which a union would be certificated as a representative bargaining agent. If the Committee understands the position correctly no new union could be registered and no union at all, however representative, could have the certificate entitling it to bargain unless the Trades Union Congress made application on its behalf. While the Committee has deferred making its final recommendations with regard to the alleged monopoly of the Trades Union Congress until it can see the amending legislation as a whole when it has been enacted, it would appear, if its reasoning above is correct, that the Congress would still have the sole right to determine, in effect, whether a new union could register and whether any given union would enjoy bargaining rights at all, without even being bound by any criteria as to its degree of representativeness. In that event, even the amended legislation would require to be examined in the light of the question as to whether it was compatible with the generally accepted principles embodied in Article 3 of the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87), and with the stipulations contained in Article 4 of the Right to Organise and Collective Bargaining Convention, 1949 (No. 98), ratified by Ghana.
65. 216. In these circumstances the Committee recommends the Governing Body:
66. (a) to take note of the Government's statement that it is considering further amending the Industrial Relations Act, 1959, by repealing sections 10 (1), 10 (6), 11 (1) and 11 (2) and paragraphs 1 (2) and 2 of the Second Schedule to the Act;
67. (b) to draw the attention of the Government to the considerations set forth in paragraph 215 above in respect of the proposed new provisions regarding the registration of new unions and the certification of unions as bargaining representatives;
68. (c) to suggest that the Government may care to have regard to such considerations when putting into effect its proposals to amend the legislation;
69. (d) to note that, subject to those considerations, the Committee has decided to defer submitting its final conclusions on this aspect of the case until it has had an opportunity of examining the effect of the amendments in the light of the provisions of the amending Act as a whole, when it has been enacted.
70. (e) Allegations relating to the Regulation of the Right to Strike
71. 217. At its meeting in October 1962 the Committee, recalling that it has always been guided by the principle that allegations relating to the exercise of the right to strike are not outside its competence in so far as they affect the exercise of trade union rights, examined these allegations in paragraphs 303 to 311 of its 67th Report.
72. 218. The Committee examined first the provisions of section 28 of the Act, which place temporary restrictions on the right to strike of workers and their organisations of a class specified in a collective bargaining certificate pending recourse to the conciliation and arbitration procedures established by the Act. After considering the procedure provided for, it concluded, in paragraph 308 of its 67th Report, that the complainants had not furnished evidence to show that, so far as certificated unions are concerned, the restrictions placed upon the right to strike are not accompanied by the provision of conciliation and arbitration procedures of such a character as to safeguard the workers concerned.
73. 219. However, the Committee noted that a difference of treatment appeared to exist as between certificated unions, which have the right to strike under certain conditions, and non-certificated unions, which, under section 29, cannot exercise the right to strike under any circumstances, and that, in addition, the organisations of non-certificated classes cannot participate in the statutory conciliation and arbitration procedures provided for in the Act.
74. 220. In these circumstances the Committee recommended the Governing Body, in paragraph 323 (c) of its 67th Report:
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76. (i) to draw the attention of the Government to the fact that the right of workers and their organisations to strike as a legitimate means of defending their occupational interests is generally recognised, and to the importance which the Governing Body has always attached, where strikes are prohibited or subject to restriction, to ensuring adequate guarantees to safeguard to the full the interests of the workers thus deprived of an essential means of defending occupational interests and to providing that such restrictions should be accompanied by adequate, impartial and speedy arbitration proceedings in which the parties concerned can take part at every stage;
77. (ii) to note that the right to strike of workers and their organisations of a class specified in a collective bargaining certification under the Industrial Relations Act is subject to temporary restriction pending recourse to the conciliation and arbitration procedures established by the Act;
78. (iii) to note further, however, that workers and their organisations of a class at present not specified or of a class which cannot lawfully be specified in a certificate are entirely prohibited from striking and are not entitled to participate in the conciliation and arbitration procedures established by the Act;
79. (iv) to draw the attention of the Government to the importance which the Governing Body attaches to the principle that, while legislation draws a distinction between the most representative organisations and other organisations for such purposes as collective bargaining, this distinction should not have the effect of depriving trade union organisations not recognised as being among the most representative of the essential means whereby they may defend occupational interests of their members, organise their administration and activities and formulate their programmes;
80. (v) to express the view that the present situation in Ghana of trade unions of workers of a class not specified in a collective bargaining certificate, by contrast with those so specified, does not appear to be compatible with the principles enunciated in subparagraphs (i) and (iv) above;
81. (vi) to suggest to the Government that it may care to consider the possibility of amending the Industrial Relations Act in the light of the foregoing considerations;
82. (vii) to request the Government to be good enough to keep the Governing Body informed as to further developments in this connection.
83. 221. In its reply dated 26 April 1965 the Government states that section 29 of the Act will be repealed.
84. 222. The Committee recommends the Governing Body to take note of this statement.
85. Allegations relating to the Strikes Which Took Place in September 1961 and to the Arrests of Trade Unionists
86. 223. In paragraphs 312 to 319 of its 67th Report the Committee examined allegations relating to measures taken by the Government, including the arrest of 21 trade unionists, including several trade union officers, following a railway workers' strike which began on 4 September 1961. The Government contended that no trade dispute had existed at the time and that the strike was purely political in character, involving a protest against an Act of Parliament relating to forced savings. In the Government's view the strike was a political attempt to intimidate the Government and to overthrow the legally constituted Government by illegal means.
87. 224. While noting the Government's contentions and recalling that it had in previous cases taken the view that it was not within its competence to deal with strikes of a political nature, the Committee observed that in the present case there was a further question to be considered, namely that of the trade unionists alleged to have been arrested, and that it was not clear whether all or any of these persons were still in prison or under detention or whether all or any of them had ever been brought to trial.
88. 225. As the Committee pointed out in paragraph 318 of its 67th Report, it has, in the past, recognised that there is a clear distinction between detaining trade union leaders or workers for trade union activities and detaining persons who happen to be trade unionists on the ground of subversive activities outside the trade union sphere. The Committee has also pointed out in the past that where persons have been sentenced on grounds having no relationship to trade union rights the matter would fall outside its competence, but has emphasised that the question as to whether such a matter is one relating to a criminal offence or to the exercise of trade union rights is not one which can be determined unilaterally by the government concerned. This is one of the reasons, as the Committee explained in paragraph 159 of its 62nd Report when examining Case No. 251 relating to Southern Rhodesia, why the Committee, pointing out that in all cases in which trade union leaders are preventively detained these measures may involve a serious interference with the exercise of trade union rights, has always emphasised the right of all detained persons to receive a fair trial at the earliest possible moment, and has also requested the governments which have contended that arrests or detentions were made for subversive activities to furnish information as to the nature and result of the legal or judicial proceedings instituted. Indeed, it is only on the basis of a trial attended by the guarantees of due process of law that the Committee can appreciate whether such a contention is justified or not.
89. 226. Having recalled these principles followed in its procedure the Committee, at its meeting in October 1962, recommended the Governing Body, in paragraph 323 (d) of its 67th Report:
90. ......................................................................................................................................................
91. (i) to draw the attention of the Government to the importance which the Governing Body has always attached to the right of all detained persons to receive a fair trial at the earliest possible moment;
92. (ii) to request the Government to indicate whether any of the trade unionists alleged by the complainants to have been arrested or detained are still in prison or in detention and, if so, to furnish information as to the legal or judicial proceedings which have been taken or are intended to be taken and as to the outcome of such proceedings.
93. 227. In its reply dated 26 April 1965 the Government states that " the strike in question was not an industrial strike but a subversive attempt to overthrow the legally constituted Government of the country " and concludes with the statement that " as it was a grave internal political matter involving the security of the State, the question is outside the competence of the I.L.O and, accordingly, the Government of Ghana does not propose to supply any further information ".
94. 228. The Committee has already pointed out in paragraph 318 of its 67th Report, as repeated in paragraph 225 above, the reasons why, in such cases, it has always asked the governments concerned to furnish information as to the nature and results of the legal or judicial proceedings instituted. It is appropriate to point out further that it has always followed the practice in such cases of requesting the governments concerned to communicate the texts of the judgments given and of the grounds adduced therein, and that generally governments have co-operated with the Committee by responding to such requests. The request made to the Government of Ghana to furnish information as to the nature and result of any legal or judicial proceedings taken in respect of the 21 arrested trade unionists was not, therefore, a singular proceeding for the Committee to follow in the present case, but was in accordance with its normal practice, to which it has always had recourse in order to assess to the full the facts contested in a complaint.
95. 229. The Committee regrets that the Government, in its " final reply ", refuses to state whether any of the 21 arrested trade unionists are still in prison or under detention and, if so, to furnish any information as to whether legal or judicial proceedings have been taken or are intended to be taken and as to the outcome of such proceedings. It is also surprised at the assertion by the Government that a case involving the arrest of trade unionists " is outside the competence of the I.L.O". In the past, where governments have failed to accede to requests by the Governing Body to furnish the texts of judgments handed down in the case of trade unionists accused of criminal offences on the ground that the charges did not relate to the trade union activities of the persons concerned, the Governing Body has, for the reasons indicated in paragraph 225 above, always rejected such arguments.
96. 230. In these circumstances the Committee recommends the Governing Body:
97. (a) to draw the attention of the Government once again to the importance which the Governing Body has always attached to the right of all detained persons to receive a fair trial at the earliest possible moment;
98. (b) to draw the attention of the Government to the fact that the question whether the formulation of charges of having committed crimes on the basis of facts and allegations involving the exercise of trade union rights is to be regarded as a matter relating to a criminal offence or a matter relating to the exercise of trade union rights is not one which can be determined unilaterally by the government concerned, in such a manner as to prevent the Governing Body from inquiring further into it;
99. (c) to reject therefore the Government's argument that, because of the nature of the offences with which the trade unionists concerned were charged, the matter is outside the competence of the I.L.O.;
100. (d) to express its keen disappointment that the Government has refused to co-operate with the Governing Body by furnishing the information previously requested;
101. (e) to state that, in these circumstances, it is not possible for the Governing Body to conclude whether or not the arrest and detention of the 21 trade unionists concerned constitutes a violation of trade union rights.
102. Allegations relating to the Dissolution of Certain Trade Unions
103. 231. At its meeting in October 1962 the Committee examined allegations that, following the strikes in September 1961, the Government ordered the dissolution of all trade union branches at Takoradi and Sekondi. The Committee had before it a communication from the Government dated 5 October 1962 in which the Government stated that " the organisations concerned were dissolved for being subversive and not for the mere exercise of their freedom of (industrial) association ".
104. 232. The Committee therefore, emphasising the importance which it attaches to the generally accepted principle that workers' and employers' organisations should not be liable to be dissolved or suspended by administrative authority, and noting that the information before it did not fully explain the exact manner in which the dissolution in question was effected, decided, as indicated in paragraph 322 of its 67th Report, to request the Government to indicate whether the dissolution was ordered directly by the Government or through proceedings instituted by the competent authorities in the courts, and by virtue of which legal provisions such dissolution was ordered.
105. 233. In its communication dated 26 April 1965 the Government states: " It is now pointed out (contrary to the information contained in an earlier reply) that no trade union had in fact been dissolved as a result of the strike. It is also pointed out that, following the strike, certain officials of the National Union of Railway and Harbour Workers were removed from office by that union in strict compliance with the union's Constitution and rules."
106. 234. The Committee now has before it two replies from the Government which are directly contradictory with each other.
107. 235. In these circumstances the Committee recommends the Governing Body:
108. (a) to note that in its communication dated 5 October 1962 the Government stated that "the organisations concerned were dissolved for being subversive and not for the mere exercise of their freedom of (industrial) association ", while, in its communication dated 26 April 1965, the Government now states that " no trade union had in fact been dissolved as a result of the strike ";
109. (b) to draw the attention of the Government to the importance which it attaches to the generally accepted principle that workers' and employers' organisations should not be liable to be dissolved by administrative authority.

The Committee's recommendations

1. 236. With regard to the case as a whole the Committee recommends the Governing Body:
   • (a) with regard to the allegations relating to the monopoly of the Trades Union Congress of Ghana:
   • (i) to note that the Government of Ghana is considering amending sections 3 (1), 4 (1) and 4 (3) of the Industrial Relations Act, 1958, and repealing section 3 of the Industrial Relations (Amendment) Act, 1959, which the Governing Body, when adopting paragraph 323 (a) of the Committee's 67th Report, regarded as incompatible with the generally accepted principles that workers should have the right to establish organisations of their own choosing without previous authorisation and that workers' organisations should have the right freely to form federations and Confederations;
   • (ii) to note further that, for the reasons indicated in paragraph 183 above, the Committee has decided to defer submitting its final conclusions on this aspect of the case until it has had an opportunity of considering the effect of these particular proposed amendments in the light of the provisions of the amending Act as a whole, when it has been enacted;
   • (b) with regard to the allegations relating to compulsory union membership:
   • (i) to draw the attention of the Government to its view that sections 16 and 31 (1) (a) of the Industrial Relations Act, 1958, as amended, appear to be incompatible with the generally accepted principle that workers should have the right to establish and join organisations of their own choosing;
   • (ii) to express the hope that the Government, when effecting the amendments it proposes to make to the legislation, will consider, having regard to the considerations set forth in paragraphs 190 to 193 above, amending these particular provisions also, with a view to giving full effect to the principle enunciated in the preceding clause;
   • (c) with regard to the allegations relating to interference in the internal affairs of the Trades Union Congress, to take note with satisfaction of the Government's statement that it is intended to repeal sections 5 (1), 5 (3) and 8 (1) of the Industrial Relations Act, 1958, as amended:
   • (d) with regard to the allegations relating to the legal recognition of trade unions:
   • (i) to take note of the Government's statement that it is considering further amending the Industrial Relations Act, 1959, by repealing sections 10 (1), 10 (6), 11 (1) and 11 (2) and paragraphs 1 (2) and 2 of the Second Schedule to the Act;
   • (ii) to draw the attention of the Government to the considerations set forth in paragraph 215 above in respect of the proposed new provisions regarding the registration of new unions and the certification of unions as bargaining representatives;
   • (iii) to suggest that the Government may care to have regard to such considerations when putting into effect its proposals to amend the legislation;
   • (iv) to note that, subject to those considerations, the Committee has decided to defer submitting its final conclusions on this aspect of the case until it has had an opportunity of examining the effect of the amendments in the light of the provisions of the amending Act as a whole, when it has been enacted;
   • (e) with regard to the allegations relating to the regulation of the right to strike, to take note of the Government's statement that it is intended to repeal section 29 of the Industrial Relations Act, 1958;
   • (f) to request the Government to be good enough to furnish copies of the legislation amending the Industrial Relations Act, 1958, and the existing amendments to that legislation when it has been enacted;
   • (g) with regard to the allegations relating to the strikes which took place in September 1961 and to the arrests of trade unionists:
   • (i) to draw the attention of the Government once again to the importance which the Governing Body has always attached to the right of all detained persons to receive a fair trial at the earliest possible moment;
   • (ii) to draw the attention of the Government to the fact that the question whether the formulation of charges of having committed crimes on the basis of facts and allegations involving the exercise of trade union rights is to be regarded as a matter relating to a criminal offence or a matter relating to the exercise of trade union rights is not one which can be determined unilaterally by the government concerned, in such a manner as to prevent the Governing Body from inquiring further into it;
   • (iii) to reject therefore the Government's argument that, because of the nature of the offences with which the trade unionists concerned were charged, the matter is outside the competence of the I.L.O.;
   • (iv) to express its keen disappointment that the Government has refused to co-operate with the Governing Body by furnishing the information previously requested;
   • (v) to state that, in these circumstances, it is not possible for the Governing Body to conclude whether or not the arrest and detention of the 21 trade unionists concerned constitutes a violation of trade union rights;
   • (h) with regard to the allegations relating to the dissolution of certain trade unions:
   • (i) to note that in its communication dated 5 October 1962 the Government stated that " the organisations concerned were dissolved for being subversive and not for the mere exercise of their freedom of (industrial) association ", while, in its communication dated 26 April 1965, the Government now states that " no trade union had in fact been dissolved as a result of the strike ";
   • (ii) to draw the attention of the Government to the importance which it attaches to the generally accepted principle that workers' and employers' organisations should not be liable to be dissolved by administrative authority.