Labour Law I Introduction and Scope of Law in Ghana - PDF

LABOUR LAW I INTRODUCTION AND SCOPE OF LAW IN GHANA LAW 359  I. CONCEPT AND SOURCES CONCEPT AND SOURCES OF LABOUR LAW a) Concept and Study b) Sources of Labour Law in Ghana i. Laws relating to Labour ii. I.L.O Conventions. iii.Constitution, 1992 iv.Labour Act: Scop...

LABOUR LAW I INTRODUCTION AND SCOPE OF LAW IN GHANA LAW 359  I. CONCEPT AND SOURCES CONCEPT AND SOURCES OF LABOUR LAW a) Concept and Study b) Sources of Labour Law in Ghana i. Laws relating to Labour ii. I.L.O Conventions. iii.Constitution, 1992 iv.Labour Act: Scope of the subject v. Employment in the public and private sectors A. CONCEPT OF LABOUR LAW Labour law as a subject has generally been defined as "the regulation of the relationship between employer and worker, or put in another way, the relationship between the user of labour and the supplier of labour". Malcolm Sargent, 2nd Ed, p.1 The subject relates to a set of laws, establishing basically the rights, obligations, principles and standards as among workers, union members, individual employers and employers' organizations in the workplace and in a defined employment relationship. Forms Bilateral Contract Agreement (between worker and employee) Collective Agreement (between Union workers and Employers' Associations) History First labour laws were mainly aimed at imposing discipline on workers, penalizing any protest movements, and ensuring obedience and loyalty to employers. For example: Ordinance of Labourers Act of 1349 in England  It was not until the nineteenth century that there was the need and finally understood for a specific body of law that would provide workers with minimum protection against any abuse by employers, while recognizing that people's working lives cannot be governed by market forces alone. In other words, human labour was no longer to be seen as a commodity.  Labour law was assigned to the realm of public protection, contrary to civil law, which assumes that the parties to a contract are equal. Through legislation or collective agreements, labour law seeks to correct the basic inequality between employer and employee PURPOSE OF LABOUR LAW To correct the imbalance of power between the employee and the employer To prevent working conditions being pushed below levels society deems. acceptable To regulate the labour market “Between the strong and the weak, between the rich and the poor, between master and servant, it is freedom which oppresses and law which sets free” The fundamental principle of labour legislation is to guarantee the weaker party in the labour market protection and basic rights in order to be in a fair position when negotiating salaries and working conditions. B. SOURCES OF LABOUR LAW There is no comprehensive and conceptionally coherent definition of labour law It is not always helpful to view labour law as being primarily a set of laws issued by a state. 1.Much of what governs conduct at the workplace is the content of agreements, informal understandings, and formal instructions that originate within the workplace. 2. Legislation becomes relevant only to fill gaps or ensure minimum standards. 3. It is not only “labour laws” that govern the workplace. Often a lawyer must look to constitutional law, and other statutes, the “common law”, and even the criminal law. 4 Thus Labour Law, far from being a unified legal concept and thus comprises the amalgamation of legal frameworks that fall into a harmonious and compelling system, converging around the regulation of the workplace and working life. 5. The international standards established by the ILO For one thing, the ILO Conventions ratified by Ghana are a form of labour law negotiated at the international level. They are negotiated and adopted by all of the ILO's constituents together, including governments, employers and workers, and their provisions are universally applicable minimum standards.  The National Constitution, 1992 Article 16 Article 17 Article 21(e) Article 24 Article 27 Article 36 Article 37 (2)  Article 37 (6) Article 41 (c) In the case of Ghana Lotto Operators Association vrs. National Lottery Authority [2007-2008] SCGLR 1088; Date-Baah JSC (as he the was) “Do these provisions of Act 722 infringe article 36(2)(b) of the Constitution? To use a hackneyed expression, we think that the plaintiffs are crying wolf! If the above provisions were an infringement of article 36(2), it would imply that the government had virtually no regulatory authority over private enterprise. The licensing regime over banks and insurance companies, for example, would be unconstitutional! That would be an absurd result, if ever there was one. To afford the citizens and residents of Ghana an opportunity for individual initiative and creativity in economic activities does not imply the denial to the Ghanaian State of the normal regulatory authority exercised by democratic states the world over.”  The Labour Act, 2003, (Act 651) Isolated areas of labour  The Industrial Relations Act, 299 of 1965 and its amendments  The Labour Decree, 1967 (NLCD 157) and its amendments,  The Civil Service Act, 1993  The Public Service (Negotiating Committee) Law, 1992, (PNDCL 309).  The Labour Act, 2003, (Act 651) sought to amend and consolidate the old laws relating to labour, employers, trade unions and industrials relations.  One remarkable character of the Act is its establishment of the National Labour Commission, which having been vested with quasi-judicial powers, performs as its principal function, the adjudication and settlement of industrial disputes.  Scope of the Labour Act The Labour Act, 2003, (Act 651) applies to all workers and to all employers except the following as clearly and expressly excluded under the Act: The Armed Forces The Police Service The Prison Service All Security and Intelligent Agencies specified under the Security and Intelligent Agencies Act, 1996 (Act 526). (i.e. the Bureau of National Investigation (BNI) and the Research Department. See section 10 of Act 526 Establishment of Public Employment Centres and Private Employment Agencies Sections 1-7  Employment in the Public Service and private sector  Provisions of Chapter 14 of the Constitution, 1992 Article 191(b) and 199 re-enforce the guarantee security of tenure of office of public officers.  These constitute the apotheosis of the security of the tenure of the public office of public servants  Article 1 (2) declared the Constitution as the supreme law of Ghana and that any other law found to be inconsistent with any of its provisions should, to the extent of the inconsistency, be void and of no effect. A fortiori no one could contract out of the express provisions of the Constitution. Read Nartey-Tokoli v. Valco [1987-88] 2 GLR 531 CA. Aryee v. State Construction Corporation [1984-86] I GLR 424-436. Kwapong v. Ghana Cocoa Marketing Board; Frimpong­- Attafuah v. GCMB; Amch v. G(JOB (Consolidated) [1984- 861 1 GLR 74. Owusu-Afriyie v. State Hotels Corporation 1GLR 247 Bank of Ghana v. Nyarko GLR 265, CA GCMB v. Agbettoh [1984-86] 1 GLR 122