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JUDGMENT This
ruling is in respect of an
application filed by the
National Labour Commission
(hereinafter referred to as the
Applicant) on 25th October, 2010
against Polytechnic Teachers'
Association (hereinafter
referred to as the Respondent),
for an order for the enforcement
of the orders of the Applicant
against the Respondent under
Section 172 of the Labour Act,
2003 (Act 651), which the
Respondent has opposed. The
Applicant attached to the motion
paper a 20-paragraph affidavit
in which it stated the grounds
for the application. The
Respondent, on the other hand
opposed the application in a
19-paragraph affidavit filed on
4th November, 2010. As has been
stated earlier on in this ruling
the application was brought
under Section 172 of the Labour
Act, 2003 (Act 651) which states
as follows: "Where any person
fails or refuses to comply with
a direction or an order issued
by the Commission, under this
Act, the Commission shall make
an application to the High Court
for an order to compel that
person to comply with the
direction or order." In the
current case, the Applicant has
come before this Court seeking
an order to compel the
Respondent to comply with its
decision in accordance with
Section 172 of the Act as shown
above. The main ground for the
application is that the
Respondent has refused to comply
with the decision of the
Applicant dated 15th October
2010, that it should call off
its strike action and also
submit itself to compulsory
arbitration. However, the
Respondent has opposed the
application on the following
grounds: a. that it is obvious
and clear that its terms and
conditions of service has
expired since 2008; b. that the
Fair Wages and Salaries
Commission (FWSC) was clearly
not acting in good faith but
merely playing for time in order
to migrate the members of the
Respondent association onto the
Single Spine Salary Scheme based
on the expired terms and
conditions of service to the
disadvantage of the Respondent;
C. that the Applicant has not
deemed it necessary to call the
FWSC to order but has instead
turned on the Respondent who has
shown at all times that it was
ready and willing to restore
industrial harmony once
negotiations begin in good
faith; d. that the Applicant and
the FWSC have failed to
negotiate in good faith with the
Respondent over its expired
terms and conditions of service;
and e. that the Applicant has
failed in its duty to invoke the
provisions of the Labour Act for
resolving trade dispute through
mediation and that the decision
of the Applicant to compel the
Respondent to enter into
compulsory arbitration is wrong,
arbitrary, premature and
contrary to the provisions of
Section 154 to 157 of the Labour
Act, 2003 (Act 651). Since the
Respondent has opposed the
application, this Court is
enjoined by law to carefully
examine the affidavit evidence
and submissions made by counsel
for both parties in order to
decide whether or not to grant
the application. In doing so the
Court will have to find out
whether the Applicant adopted
the right procedures in arriving
at its decision. Evidence before
the Court shows that per a
letter dated 30th July, 2010,
addressed to the Executive
Secretary, National Council for
Tertiary Education, the
Respondent demanded that they
should be called to negotiate on
their conditions of service
which expired since 2008 and
also for a discussion on
unresolved issues in the
conditions of service which
could not be resolved since
2006. The Respondent went on to
serve notice that, "if by
Friday, 13th of August, 2010
nothing concrete conies from
Government, the leadership of
POTAG cannot take responsibility
for any industrial unrest."
Copies of this letter were sent
to certain personalities,
including the Executive
Secretary of National Labour
Commission. In reaction to the
said letter, the Applicant
acting in accordance with its
functions under the Labour Act
per a letter dated 13th August,
2010 pointed out to the
Respondent that its letter of
30th July, 2010 did not satisfy
the provision of Section 159 of
the Labour Act. The Applicant,
therefore, invited the
Respondent to a meeting on
Wednesday, 18th August, 2010 for
a discussion on the issues
raised in the Respondent's
letter. Meanwhile, in reaction
to the same letter, the National
Council for Tertiary Education
wrote to the Fair Wages and
Salaries Commission and by a
copy of that letter informed the
leadership of the Respondent
that the Fair Wages and Salaries
Commission has been given the
mandate to negotiate salaries
and other conditions of service
for public sector employees, as
such, matters of that nature
should be directed to the Fair
Wages and Salaries Commission
for necessary action. This
clearly shows that it is the
Fair Wages and Salaries
Commission and not the National
Council for Tertiary Education
that has the mandate to
negotiate with the Respondent on
its terms and conditions of
service. So the question that
this Court will have to address
is whether the Respondent and
the Fair Wages and Salaries
Commission are prepared to
negotiate? In another letter
dated 25th August, 2010 written
to the Applicant by the
Respondent, the Respondent
informed the Applicant that
since January 2010, efforts to
get Fair Wages and Salaries
Commission to negotiate POTAGs
conditions of service had proved
futile. They catalogued some of
the efforts made by them to
negotiate their terms and
conditions of service with the
Fair Wages and Salaries
Commission which had not yielded
the required results in the said
letter. So in that letter, they
gave Government up to 1st
September, 2010 to call them to
negotiate on their conditions of
service. On 8th September, 2010
the Applicant invited the
Respondent and the Fair Wages
and Salaries Commission to a
meeting on the conditions of
service and other allowances for
POTAG members but no decision
was taken on the condition of
service. The Applicant directed
both parties to comply with the
law whilst efforts were made to
resolve the matter and stressed
that POTAG should not embark on
strike. Another meeting was held
on 15th September, 2010 between
the Applicant and the Respondent
and the Fair Wages and Salaries
Commission. At that meeting,
Fair Wages and Salaries
Commission stated that when
Government presented its White
Paper, they were not given the
mandate to negotiate. They,
however, stated that they had
advertised in the papers in
December 2009 asking all
organizations to bring their
conditions of service in order
for them to meet with the
stakeholders for a discussion on
it. So the conditions of
services will he discussed after
they had met the stakeholders.
The Respondent also stated at
the said meeting that they want
to start the negotiation on
their conditions of service and
other allowances in order to put
the matter to rest. At the end
of that meeting, the Applicant
directed Fair Wages and Salaries
Commission to meet POTAG to
address their concern and report
to the Commission. So on 22nd
September, 2010 another meeting
took place. At that meeting, the
Fair Wages and Salaries
Commission made available road
map for negotiation but the
Respondent pointed out that the
road map for negotiation
submitted by the Fair Wages and
Salaries Commission was in
connection with the Single Spine
Structure and not the conditions
of service. They were,
therefore, demanding negotiation
on their expired conditions of
service which the road map did
not address. So the Applicant
asked the Respondent to formally
respond to the road map and
state their objective with
regard to the conditions of
service. Another meeting was as
a result scheduled for 29th
September, 2010. At that
meeting, the Fair Wages and
Salaries Commission indicated
that they would meet in
mid-November to negotiate. The
applicant directed that the
parties should meet and discuss
the results of job re-evaluation
while the Applicant takes other
measures on the matter and
invite parties as soon as
possible to another meeting. The
Applicant never invited the
parties for any other meeting
but on its own wrote to POTAG
and Fair Wages and Salaries
Commission that they have
compulsorily referred the matter
to Voluntary Arbitration in
accordance with Section 164 of
the Labour Act. They indentified
the unresolved issue in the said
letter as follows:- "that the
National Labour Commission
compels the Fair Wages and
Salaries Commission to negotiate
conditions of service of the
Polytechnic Teachers'
Association which expired since
2006." The applicant gave
parties three (3) days to notify
the Commission whether or not
they agree with the unresolved
issues. The Respondent in a
letter dated 16th October, 2010
addressed to the Applicant,
stated that it was premature for
the Applicant to invoke Section
164 of the Labour Act to compel
POTAG to go into negotiation
since there had not been a
negotiation on the grievances.
They, therefore, asked the
Applicant to rescind its
directive and rather put
machinery in place to appoint a
mediator to resolve the impasse
for industrial peace to prevail
on the Polytechnic campuses. So
from the proceedings so far, can
it be said that the Applicant
has exhausted all procedures to
the point where it will invoke
this Court jurisdiction under
Section 172 of the Act? In the
first place, no specific
decision was given by the
Applicant at the meeting held on
29th September, 2010 in order
for them to compulsorily refer
the matter to voluntary
arbitration. I will want to
refer to its conclusion at the
said meeting: "The Commission
directed both parties to meet
and discuss the results of job
re-evaluation while it takes
other measures on the matter and
invite parties as soon as
possible." From the said
conclusion no date was given for
the next meeting. Also the
applicant did not adjourn the
case for ruling. The impression
created was that it was
adjourning for the parties to
meet and discuss the results of
job re¬evaluation. No time limit
was given for that exercise to
be completed. The impression is
also created from the said
meeting that the Applicant was
going to look at other measures
on the matter after which it
would invite the parties for
further discussion. So after the
Applicant had indentified the
alleged unresolved issue, it
should have invited the parties
for them to agree on the issue
and the modalities to resolve
the issue, but not for it to
unilaterally decide on the
unresolved issue and refer the
matter to either voluntary or
compulsory arbitration. So on
what basis did the Applicant
refer the matter to arbitration?
It is even observed that the
said decision of the applicant
as shown in Exhibit I is
ambiguous. For the avoidance of
doubt I will want to refer to
some aspects of the letter on
the decision in this ruling.
"THE NATIONAL PRESIDENT POTAG
KOFORIDUA THE CHIEF EXECUTIVE
FAIR WAGES AND SALARIES
COMMISSION ACCRA Dear Sir/Madam,
COMPULSORY REFERENCE TO
VOLUNTARY ARBITRATION RE: IN THE
MATTER OF STRIKE ACTION BY THE
POLYTECHNIC TEACHERS'
ASSOCIATION OF GHANA (POTAG) The
National Labour Commission
writes to formally notify the
parties in dispute - POTAG and
Fair Wages and Salaries
Commission (FWSC) of the
compulsory reference to
Voluntary Arbitration, the
dispute involving the strike
action by POTAG. The reference
to Compulsory Arbitration is
under the Labour Act 2003, Act
651, Section, 164...." The said
letter which is supposed to be
the decision of the Applicant
which it is seeking the order of
this court to enforce talks
about compulsory reference to
voluntary arbitration".
Meanwhile, it claims the order
is made under Section 164 of the
Labour Act. There is nothing in
the said section dealing with
compulsory reference to
voluntary arbitration. Rather,
it deals with compulsory
arbitration and not compulsory
voluntary arbitration. There is
nothing in the Act that deals
with compulsory voluntary
arbitration and I do not
understand what that implies.
How can it be compulsory and at
the same time voluntary? The Act
talks about voluntary
arbitration which is found at
Section 157 and compulsory
arbitration found at Section
164. So as has already been
stated in this ruling there is
nothing like compulsory
voluntary arbitration in the
Act. So this court is in a fix
as to the specific order the
Applicant wants this court to
enforce. Is it compulsory
arbitration or voluntary
arbitration? This is not clear
from Exhibit I so how can the
court enforce such an order? It
must be noted that such orders
or decisions of institutions
with adjudication functions must
be specific and unambiguous that
can be enforced. In the current
case the court finds it
difficult to order the
enforcement of the decision of
the applicant because it is
ambiguous. Assuming the
intention of the applicant was
to refer the matter to
compulsory arbitration, the
question is whether the issue
had got to that Stage as a
result of which it should be
referred to compulsory
arbitration under Section 164 of
the Act? Even though Regulation
33 of LI 1822 allows the
Applicant to settle industrial
dispute summarily without
recourse to mediation or
arbitration, considering the
nature of the case and the fact
that the Respondent has shown
that it is willing to negotiate
its terms and conditions of
service with the Fair Wages and
Salaries Commission, it would
have been more appropriate for
the respondent to adopt the
settlement procedures provided
under Sub-part 4 of the Labour
Act when it realized that it
could not resolve the issue
summarily. Section 153 of the
Act states that parties to an
industrial dispute are under an
obligation to negotiate in good
faith with a view to reaching a
settlement of the dispute in
accordance with the dispute
settlement procedures
established in the collective
agreement or contract of
employment. In the current case,
since no collective agreement or
contract of employment is made
available the settlement
procedures that must be adopted
are those provided by the Labour
Act. The fact that the
conditions of service of the
Respondent has expired since
2008 is not in doubt. This is
confirmed by all the parties
especially Exhibit P01 being the
letter written by National
Council for Tertiary Education
to the Fair Wages and Salaries
Commission confirms this. There
is, therefore, no doubt about
that. In view of that the
Applicant had the mandate under
Section 154 of the Act to
request the parties to settle
the dispute by mediation. If at
the end of mediation proceedings
no agreement is reached, the
mediator shall immediately
declare the dispute as
unresolved and refer the dispute
to the Commission. When
mediation fails under Section
154(6) and the dispute is
referred to the Commission, the
Commission shall with the
consent of the parties refer the
dispute to an arbitrator or an
arbitration panel appointed
under Section 156. See Section
157(1) of the Act. It is where
the dispute still remains
unresolved after the voluntary
arbitration that it must be
settled under Section 164 of the
Act. So from the provisions in
the Act, it is my view that the
Applicant did not follow the
right procedures for settling
industrial disputes as provided
by the Act before attempting to
refer the matter to compulsory
arbitration. The decision by the
Applicant to refer the matter to
compulsory arbitration is,
therefore, arbitrary and
premature which cannot be
enforced by this Court. There is
also no specific order made by
the Applicant that this Court
must enforce. The Court,
however, observes that there is
the need for the matter between
POTAG and the Fair Wages and
Salaries Commission to be
resolved in order for there to
be industrial harmony on various
Polytechnic campuses. From the
proceedings before the court the
Respondent has shown the
commitment that it wants to
negotiate with the Fair Wages
and Salaries Commission on its
terms and conditions of service.
The evidence before the court
does not show that, the Fair
Wages and Salaries Commission
has shown such commitment. It
is, therefore, surprising that
the applicant is seeking an
order of this court to compel
the Respondent to submit itself
to arbitration, be it voluntary
or compulsory when nothing is
done to the Fair Wages and
Salaries Commission which has
not shown that commitment. There
is the need for the Labour
Commission to resolve the matter
by adopting the proper procedure
acceptable to both parties. From
the fore going the application
by the Applicant to compel the
Respondent to comply with its
decision of 15th October 2010 is
dismissed. The Court, however,
orders the Applicant to appoint
a mediator within seven (7) days
from today to settle the
unresolved dispute between the
parties. In the meantime, I
appeal to the Respondent that in
the interest of the students in
particular and in the interest
of mother Ghana as a whole it
should call off its strike
action and resume classes whilst
the Applicant takes steps to
resolve the dispute as ordered
by the court. All parties are
advised to ensure that the
dispute is settled in good
faith. No order as to costs.
M.C.S Sackey with Miss Effiba
Amihere and Mr.Prosper Danquah
for the Applicant. Mr. Sampson
Obeng With Nana Agyekum Kesse
for the Respondent.
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