NICHOLAS FREDUAH KWARTENG, ESQ. (LL.B) Ghana; (LL.M) Birmingham, UK
Lecturer in Law, Central University, Ghana.
Strike is defined in as an action by two or more workers acting in concert which is intended by them to restrict in any way the service they normally provide to the employer or diminish the output of the service with a view to applying coercive pressure upon the employer; and it includes sympathy strike, and those activities commonly called a work-to-rule, a go-slow or sit-down strike.1
On the other hand a lockout means closing of a workplace, the suspension of work by an employer or refusal by an employer to employ or re-engage any member of his or her workers, in consequence of an industrial dispute.2 Industrial dispute means any dispute between an employer and one or more workers or between workers and workers which relates to the terms and conditions of employment, the physical condition in which workers are required to work, the employment and non-employment or termination or suspension of employment of one or more workers and the social and economic interests, of the workers but does not include any matter concerning the interpretation of this Act, a collective agreement or contract of employment or a matter which by agreement between the parties to a collective agreement or contract of employment does not give cause for industrial action or lockout.3
It is clear therefore that workers and employers could only resort to strikes and lockout when there is an industrial dispute.
Whenever industrial disputes occurs, the law requires that the parties to the industrial dispute should endeavor to resolve their dispute in accordance with their contract of employment, the conditions of service; failing which they must resolve dispute in accordance with the provisions of the Labour Act and the Regulations made thereunder.
Strike is illegal if the workers did not follow laid down procedure as stated below: 1. Resolving dispute in accordance with collective agreement or terms of contract The parties to an industrial dispute are required by law to negotiate in good faith in accordance with the dispute settlement procedure laid down in the collective agreement or contract of employment within 7 working after the occurrence of the dispute – [where the parties are unable to resolve their differences through negotiation within the statutory 7 working day, then they must
1 See Labour Act, 2003 (Act 651) s 175 2 Ibid s 175 3 Ibid s 175
1|Page exhaust dispute settlement procedures provided for under the Labour Act as well as the National Labour Commission Regulations, 2006 (L.I.1822).4
2. Resolving disputes in accordance with the Act and Regulations
Where the parties are unable to resolve the dispute in accordance with the collective agreement or the terms of the employment contract, then the dispute must be resolved through the following procedure as set out under the Labour Act and the Regulations made pursuant thereto:
Firstly, before a party to an industrial dispute could resort to the procedure aforesaid, he must first submit a written complaint to the NLC or complete Form A (Complainant Form) as specified in the schedule to L.I.1822. Upon receipt of the complaint, the Commission shall within three working days serve the other party with a copy of the complaint and request the other party to the dispute to respond to the complaint in writing within 14 working days of the receipt of the Commission’s request. Where the party fails to respond to the request of the Commission within the stipulated period, the Commission shall send a final notice to the party concerned to respond within a further 7 working days after which the Commission shall proceed to determine the case.
Thereafter the parties go through mediation which should be concluded within 14 days of the appointment of the mediator [either by the parties or the NLC]. Where the NLC is informed by the mediator of his/her inability to resolve the dispute through mediation, the NLC shall with the consent of the parties refer the matter to an arbitrator(s) for voluntary arbitration; which should be concluded within 14 days after the date of appointment.
Where the parties fail to agree to refer the dispute to voluntary arbitration, or the dispute remains resolved at the end of the arbitration proceedings, either party intending to embark on strike should give a written notice of the intention to the NLC and the other party within 7 days after failure to refer dispute to arbitration or the termination of proceedings.5
A party to an industrial action who gives 7 days of intention to embark or lockout can only resort to the strike or lockout only after the expiration of 7 days from the date of the notice. Similarly, where the dispute remains unresolved within 7 days from the commencement of the strike or lockout, the dispute shall be resolved by compulsory arbitration.6
Cooling-off period A party to an industrial dispute who embarks on a strike or lockout during a cooling-off period shall be liable for the damage, loss or injury suffered by another party to the dispute. The Act defines a cooling-off period as the period during which negotiation, mediation or arbitration proceedings are ongoing.7
4 Ibid s 153 and regulations 1 and 2 of the of the National Labour Commission Regulations, 2006 (L.I.1822) 5 Ibid s 159 and National Labour Commission Regulations, 2006 (L.I. 1822), regulation 37 6 Ibid s 160 7 Ibid s 161 and National Labour Commission Regulations, 2006 (L.I. 1822), regulation 41
2|Page ESSENTIAL SERVICES
The Labour Act prohibits strike and lockout in respect of workers who are engaged in essential services.8 Regulation 20 of the Labour Regulations, 2007 (L.I. 1833) list the services that are considered essential services as follows:
1. Water supply services
2. Electricity generation, transmission and distribution services 3. Health and hospital services 4. Sanitary services 5. Air traffic control 6. Meteorological services 7. Fire services 8. Air transport services 9. Supply and distribution of fuel, petrol, power and light 10. Telecommunications services 11. Public transport services 12. Ports and harbours security services, and 13. Bank of Ghana
The Act makes provision for the settlement of disputes that affects workers engaged in essential services as follows:9 1. the parties should endeavour to settle disputes within 3 days of the occurrence of the dispute; and 2. where the dispute remains unresolved at the expiration of this period, the parties shall refer the dispute to the NLC for settlement through compulsory arbitration.10
Rights and remedies of employers when workers embark on illegal strike
The rights available to the employer if his employees embark on an illegal strike include:11 i) Payment by the worker for losses or damage, loss or injury suffered by any other person as a result of the illegal strike; ii) Forfeiture of salary for the duration of illegal strike; iii) Termination of employment without notice (i.e. summary dismissal)
8 Ibid s 163 and National Labour Commission Regulations, 2006 (L.I. 1822), regulation 40 9 Ibid s 162 10 In accordance with the provisions of s 164 11 Ibid s 168
3|Page Picketing Picketing is the action whereby workers outside a place of work intend to persuade other workers not to enter the place of employment during labour unrest. Picketing is unlawful if it conducted at a place less than 10 metres away from the work place or place of business of the worker, and a person who engages in an unlawful picketing is liable for the damage, loss or injury suffered by any person as a result of the unlawful picketing.12
