Saturday, November 13, 2010 (Lead Story)
THE Fast Track High Court has given the National Labour Commission (NLC) a seven-day ultimatum, effective yesterday, to appoint a mediator to settle disputes between the Polytechnic Teachers Association of Ghana (POTAG) and the Fair Wages and Salaries Commission (FWSC).
The Labour and Industrial Division of the Fast Track High Court in Accra gave the order yesterday after it had dismissed a suit filed by the NLC which had prayed the court to order members of POTAG to end their strike.
The NLC had also prayed the court to order POTAG to submit itself to compulsory arbitration with the FWSC but the court declined to grant that offer as well.
The court, presided over by Mr Justice Kwabena Asuman-Adu, however, appealed to the polytechnic teachers “to, in the interest of students and Mother Ghana, call off the strike”.
Members of the association, who have been on strike for the past four weeks, thronged the court premises to listen to the decision. They applauded immediately the court threw out the suit.
The POTAG leadership expressed its intention to convene an emergency meeting to decide the next line of action.
According to the court, the NLC failed to adhere to processes set out in the Labour Act for the settlement of disputes.
For instance, it held that records available clearly indicated that the NLC did not follow the right procedure before referring POTAG and the FWSC to engage in compulsory arbitration.
The court held that the Labour Act stipulated that feuding parties must first enter into mediation and when that failed, they were then required to enter into arbitration.
It said it was only when the arbitration failed that the NLC could go ahead and order parties to enter into compulsory or voluntary arbitration and not compulsory/voluntary arbitration as the NLC had sought to make the court believe.
Mr Justice Asuman-Adu said he had carefully read the Labour Act and nowhere did it state that parties could enter compulsory/voluntary arbitration.
“The Labour Act makes mention of either compulsory or voluntary arbitration and not compulsory/voluntary arbitration,” the judge held, pointing out that the NLC’s decision directing POTAG and the FWSC to enter into compulsory/voluntary arbitration was ambiguous.
“The court is in a fix as to the specific order the NLC wants the court to address. The NLC was not clear in citing the act. How can the court order anything?” Mr Justice Asuman-Adu queried.
The presiding judge further argued that the court found it difficult to enforce the NLC’s application because the issue had not got to that stage to warrant the court to order compulsory arbitration.
According to the court, from the records, it could be said that the NLC did not exhaust all procedures under the Labour Act, adding that records available also indicated that the NLC did not arrive at any specific decision to warrant the court to sanction its decision for compulsory arbitration.
He said POTAG had, throughout its correspondence with the NLC, clearly indicated its willingness and readiness to negotiate for a review of its conditions of service which had expired since 2006, while the FWSC had, from the court records, proved it was not in a position to negotiate with POTAG.
It further held that due to the NLC’s failure to follow due processes stipulated under the Labour Act in resolving disputes, it was premature for it to direct compulsory arbitration between POTAG and the FWSC and, worst of all, pray the court to enforce its directive which, according to the court, did not exist in the first place.
It said it was also not fair for the NLC to pray the court to direct POTAG to go into compulsory arbitration with the FWSC when it was evident that the FWSC was the unwilling party.
It, therefore, directed the NLC to adopt a proper procedure acceptable to both parties.
No costs were awarded.
Reacting to the court’s ruling, counsel for POTAG, Mr Sampson Obeng, described it as “excellent” and expressed his client’s willingness and readiness to negotiate with the FWSC.
“Once they are willing to negotiate, we will call off the strike. The court is there to enforce the law and not to do anybody’s bidding,” he pointed out.
Mr Obeng gave the assurance that his client was responsible and would comply with the court’s ruling if the FWSC opened its doors for POTAG.
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