The Act also defines under what circumstances a strike can be permitted. In general it indicates that where the parties fail to agree to refer a dispute to voluntary arbitration or the dispute remains unresolved at the end of the arbitration proceedings, either party intending to strike or institute a lock out shall give written notice of intention to the other party and the commission within 7 days. A party who gives such a notice to resort to strike may do so only after the expiration of the 7 days from the date of notice and not at any time before the end of that notice.
If the issue remains unresolved after commencement of strike/lockout the dispute shall be settled by compulsory arbitration. Under compulsory arbitration the National Labour Commission(NLC) will define the issues and serve them with the due notices with a request from parties if they are in agreement with the definition of the issues. Within 14 days after service of notice the NLC shall determine the dispute. A compulsory arbitration is then constitutes and is made up of members each from government, employers association, and organized labour. The decision of the majority shall be binding and this body has the powers of a high court.
A strike is legal if it is in line with the above processes. If not it will be illegal and participation in an illegal strike can be the basis for termination without notice or may forfeit remuneration for period of engagement in strike. In the same vein employer who results to an illegal lockout shall pay the employee for that period. Sections 162-163 defines the period within a labour dispute within an essential services should be addressed.
In three separate researches that this author did on industrial relations in Ghana, the data has shown that there are numerous reasons why Ghanaian workers embark on strikes, one of which is on perceived unfairness and lack of equity in determining working conditions.(Coleman 1993, 1996, 1997)
The Psycho- Philosophical Context
Equity in employment relations simply means fairness in the determination, administration, monitoring and evaluation of terms and conditions of service. The process for formulating policy on compensation and benefits must be done with due consideration of distributive justice. Distributive justice simply means that in defining what is reasonable compensation and benefits(C&B), the employer looks at the input(I) that is the what, when and how the employee adds value into the task/job process), the output(O), that is the results of his/her input in terms of services, and the outcome(O1) which is the impact of the combination of I & O in qualitative and quantitative terms from an efficiency and effectiveness value for money perspective. In that regard studies in industrial psychology have shown that workers compare their C&B with that of equivalent or similar referents or others who have the same qualifications and work conditions. If they realize that their C&B is lower than their equivalent referents, then they feel relatively deprived and become dissatisfied. This is called the relative deprivation theory and it is derived from perceptions of inequity and unfairness.(Adamd 1965, Adams &Friedman 1975, Ekeh, 1975, Folger 1977, Friedman & Goodman 1967, Lawler 1968, Lerner 1974). It is one of the major factors that explains the underlining basis of some of the strikes in Ghana.
Collective Action
Strikes are also defined as collective actions where people are mobilized to stop work and in some cases demonstrate en-masse. During collective actions, two types of psycho-political processes occur. One aspect of collective action is defined as consensus mobilization where union leaders or management leaders define the issues in a way to obtain common understanding and commitment from their members. It is to ?ideologically charge them into action? and is the foundation block before moving to stage two that is action mobilization. Successful strikes are preceded by effective consensus mobilization. Action mobilization is where after securing the ?ideological commitment? of members, the clarion call is made for physical demonstration of action through collective work stoppages, picketing and demonstrations.
The paper will like to briefly share some findings of an ongoing study that the writer is doing on comparative industrial relations in Africa which will be published in September.
In terms of legal enforceability, in Ghana and Senegal collective agreements are legally enforceable while in Uganda it is voluntary. With regards to the terms of duration of collective agreements, in Senegal it is generally permanent until parties agree to revise it and a collective agreement which is of a fixed term cannot normally be more than five years In Ghana, the minimum duration of a collective agreement is one year as per Article 107 page 39 of the act.
During collective bargaining, three types of ?psychological formulas? are at play. The first formula is called the current demand and this is usually the first stage where the parties announce their ?first demand?. Current demands(CD) are for strategic purposes, often a bit exaggeratory and is intended to begin the negotiation like the typical situation when one visits the Makola market. The second formula is called the level of aspiration(LOA). This is a rate where the parties are actually looking at securing ?at the back of their minds?. A good bargainer can right from the current demand, estimate the LOA and then use that to negotiate effectively. The third formula is called the bargainers limit(BL). This is the minimum point below which a negotiator will not compromise.(Hogan 1996, Allen & Stephenson 1983, Brown 1984). For example in one study this writer did during a standing joint negotiating committee meeting over the determination of yearly bonus in the mining sector, the union began by demanding a 100% of gross monthly salary. Management then counter offered with 25%. After further negotiations, the union moved to 65% and indicated they will not take any thing below that. The Management countered with 33%. Finally both parties ended up at 42% and the issue was resolved.
Management counter-argued that it was illegal for the doctors to embark on the strike action as stipulated in section 161 of the New Labour Law and cited their 10 days vacation without permission clause and threatened to apply it which will warrant summary dismissal. Junior doctors at the Koforidua Regional Hospital then withdrew their services to back their demands for the payment of five months' salary arrears and said they would restore their services only when their salary arrears are paid in full.
In an interesting development, doctors at the two government hospitals in the Tamale Metropolis did not join the strike action arguing that they were on contract and paid directly by the hospital and did not have any outstanding issue with the authorities. This reason was found to be very revealing since it raises the issue as to whether there were different terms and conditions for different workers in different regions. This situation was later explained by the GMA leadership who said their constitution allowed divisions to take certain decisions and actions without resort to the national executive. (GNA posted on Ghanaweb 5th June 2006).
This we contend is an example of intra union management flexibility and autonomy. However the question as to whether this can potentially prevent industrial action or create lack of a unified and cohesive union front and the impact on bargaining strength has to be investigated further. In any case their argument that the GMA was negotiating with the government on their behalf seem to suggest that intra-union flexibility with clear definition of the mandate of the central union can potentially reduce mass action once members allow the leadership the space and time to reach agreement. We also assert that probably this was an example of a possible lack of total consensus mobilization on the issue of total work withdrawal. It can also be counter-argued that perhaps, they were simply following good reasoning to allow for the due processes as defined by the labor act for fear of the applicable sanctions that could be applied it there was a breach. Further still one can say that perhaps it was due to their behavioral commitment to their Hippocratic oath. In any case one can now understand why the framers of the labour act defined health workers as essential services and barred them from going on strikes. The enforcement of the act is another issue which will be discussed in the conclusion.
In view of persistent public pressure and in order not to break their front, the GMA met and voted by 170 to 28 votes to continue their strike.(Graphic posted on Ghanaweb 6th June 2006). This explains why the president upon persistent pressure from the government and public to order his members to stop the action, he indicated that once a collective decision had been agreed upon in a democratic manner he as the leader could not reverse it until the same process was used to reverse it.
Another example of intra-union democracy in line with the Labour act that gives unions the right to organize their affairs in an effective manner to promote due process in labour relations.
The GMA then went on a public relations and sustained communication offensive and said that their members were worried about the health of patients but were of the view that a hungry and worried doctor could not offer the best of care to a patient. They argued that since patients were now suing doctors for negligence, it was better to adopt preventive measures to secure their own future. Another evidence of consensus mobilization and strategic definition of the issues to win public support.
The Management of GHS, then appealed to the junior doctors to call-off their strike action with an assurance that the government was taking measures to solve their problems. These were unpaid new salaries plus two months arrears of the Additional Duty Hours Allowance (ADHA), in June. Management then gave a background to the dispute, and said following the problems that arose with the ADHA, a decision was taken to seek the services of a foreign consultant to "re-look" the salary of the health sector.
A job evaluation was then conducted with the involvement of all health professional groups culminating in a draft report that was disseminated to the various associations. Management said the HWG comprising all other professional groups apart from doctors took the issue to the National Labour Commission, which called for an independent committee to evaluate the job profiles to grade the salary structure
For the HWG, it was wrong to identify the medical officers' bands in the summary of the banded jobs as 6,7, 8a, 8b/8c, 8d and 9 when the bands in pay scale 1, which was proposed for director-generals, chief executives, medical officers and directors at the board level and their equivalents in the ministry, was identified as A1, A, B and C; while pay scale 2, proposed for nursing, allied health professionals and directly employed public health sector staff, was identified as 1 to 9. The Government and Hospital Pharmacists Association also argued that the government had been selective in instituting a good salary structure for health workers. Their opinion was that the new salary structure which sought to consolidate the Additional Duty Hours Allowance (ADHA) had distortions, saying ?the gap between the doctors, on one hand, and the nurses and paramedical staff, on the other, was very big?. They said the salary of the paramedical staff was low and that the gap between the doctors and other medical staff should be bridged in the future.(Graphic posted on Ghanaweb 27th April 2006, GNA posted on Ghanaweb 6th June2006, GHP posted on Ghanaweb 7th June 2006) .
This was the basis of their strike.
In reviewing the complaint the NLC panel observed that the report relied on the principle of equal pay for equal work, a persuasive argument which although reasonable, was not legally binding for enforcement by any adjudicating body like the NLC, since it had not been made part of the laws of Ghana, in accordance with Article 75 of the 1992 Constitution.
The panel directed the consultant to list for future use and to be embodied in the report the 'additional soft factors' that were not part of the job evaluation weighting scheme but had been weighted in favour of medical officers, placing them outside the 1-9 band identification and thereby undermining the report in the eyes of the Health Workers' Group. It said although parties acknowledged the relevance of such premium in the health sector, the view of the workers' groups was that the resultant gap generated between the salaries of the doctors and the other groups by the use of the 'additional soft factors' was unacceptable.
The NLC panel also decided that the workers' groups were right in pointing out that medical officers who were put in the same band with other professionals should have received almost equal pay, bearing in mind the job evaluation scores of the consultant. It also recommended to the government to constitute an independent negotiating committee in future negotiations to avert protracted industrial dispute resulting from the mistrust of the Negotiation Committee by other clinical and health staff.(Graphic posted on Ghanaweb 21st April 2006 At the time of writing this paper the government has called for a meeting to resolve the issues. (Myjoyonline 9th June 2006).
In a very ominous sign, the Civil Servants' Association of Ghana(CSA) have called on the Government to employ fairness and equity when dealing with salaries of public servants. It said the Government had tended to listen more to some categories of health workers to the detriment of other health workers and the general public sector workers.
They argue that there was already dissatisfaction in the entire public service especially among Civil Servants about the inequities in the salary administration adding that this had only been "temporarily put on ice" and cited the entry point of a graduate in the Ghana Education Service was level 14 while level nine was the entry point in the Civil Service. The CSA also point out that to single out health workers for special treatment was to worsen the already volatile situation. In said it was "watching these developments with eagle eye" and would 'act appropriately' if it felt cheated by their common employer.(Myjoyonline 10th June 2006).
From a comparative analytical perspective, there is some similarity with TEWU because in both examples the issues either begun with either procedural or substantive issues and then as the dispute progressed they were linked together to strengthen their bargaining positions. In both cases Management attempted to invoke threats but they did not work. The research also observed the scathing public criticism of the NLC in their handling of the disputes. This paper believes given the fact that the Labour Act is barely 3 years old, it is necessary that actors in industrial relations give the commission time to gradually assert itself. This limited research has also shown the need for parties to create trust and demonstrate goodwill during collective bargaining processes.
There is also need for more sensitization on the labour laws and not a rigid interpretation of the clauses by the NLC. With education and internalization gradually compliance will gradually become institutionalized. It is also important to resource NLC with high caliber and well qualified staff well grounded in industrial relations theory, research and practice. They then should be given continuius training to reinforce on a continuous basis their skills to keep abreast in development in industrial relations. A solid research gathering, monitoring and evaluation unit will strengthen the capacity of the NLC to ensure that early warning signs of possible industrial conflicts are detected in good time and addressed. This should be reinforced with the required logistics.
Rampant industrial conflicts and strikes has a huge impact on public sector effectiveness and efficiency. This also affects the implementation of public policies. The government should not under-estimate the impact of such strikes in social and political-economic terms. Strikes discourages investment.
One significant observation this research made was that at no point during the strikes was there a clear attempt by the political parties to politicize the issues and possibly link them to recent political demonstrations over fuel increases etc. Perhaps it was because the issues were purely technical and industrial relations specific hence the tension was purely on substantive labor matters. However if it is also a sign of political maturity by the other political parties, then that is a source of hope for the country. The paper?s position is that if due diligence and care is not taken to address industrial relations related issues, this will seriously affect the government?s human resources development agenda and slow down the path to economic growth. An environment of rampant strikes is also a fertile ground for political instability. Clearly there is a link between peaceful industrial relations and economic growth.
This paper has attempted to analyze the resent strikes from a purely industrial relations system conceptual perspective. It has done so, mindful of the fact that, perhaps some other equally important variables may have been left out or not discussed. We hope that further studies will be done to provide more insights into the phenomenon of strikes in Ghana
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