Workers Battle Gov’t In Court


Marietta Brew Appiah Oppong – Minister of Justice and Attorney Genaral

Government may have to brace itself for a legal tussle with disgruntled public sector workers over their pensions, with the filing of defence and subsequent counterclaim by the 12 labour unions it sued over the recent strike action.

They have therefore made a case against government as an institution and its assigns, including the National Pensions Regulatory Authority (NPRA) and the Bank of Ghana (BoG).

The workers believe the current stance taken by government over the standoff on the Tier 2 of their pensions fund is ‘laden with contradictions and smacks of utter hypocrisy and a brute desire to act contrary to law,’ according to their lawyers, from  Akufo-Addo, Prempeh & Co chambers.

Government has not been able to account for workers’ contributions into the Pensions Fund from May 2012 to date.

This was what compelled some public sector workers and civil servants to embark on a two-week strike over who should manage their Tier 2 pension funds under the new Pensions Law which has been in operation since January 2010.

Government subsequently sued the workers over the strike, describing their action as an illegality—an act being challenged by the workers.

To even make matters worse, the government has been churning out conflicting figures about the Tier 2 pension account, with the latest revelation that over GH¢270 million had not been remitted to the account by the Controller and Accountant General’s Department.

Independent Auditors
In a counterclaim filed on behalf of the 12 labour unions by their lawyers, dated Monday, November 3, 2014, they are also seeking a declaration from the Industrial and Labour Division of an Accra High Court ‘an order for the appointment of an independent auditor to audit all accounts relating to the Tier 2 pension scheme from January, 2010 to date and to file the said accounts in court.’

They equally want an order ‘compelling the full disclosure by the Bank of Ghana of information relating to the full quantum of remittances by the Government of Ghana, interest accrued thereon as well as relevant expenses made in respect of the second tier mandatory occupational pension scheme’ and ‘an order compelling the Government of Ghana to make a full disclosure of the statement of account and records of contributions, including the rates and due dates thereof made in respect of the second tier mandatory occupational pension scheme from 2010 to date.’

The workers further want an order of the court ‘compelling the National Pensions Regulatory Authority (NPRA) to transfer funds from the Temporary Pensions Funds Account (TPFA) to the Health Sector Occupational Pension Scheme, Ghana Educational Service (GES) Occupational Pension Scheme, Judicial Service Occupational Pension Scheme and the Hedge Master Trust Occupational Pensions Scheme according to the quantum of contribution standing in the names of members of such schemes.’

The lawyers also want an order ‘compelling the Controller and Accountant General to ensure the monthly transfer of funds to the Health Sector Occupational Pension Scheme, Ghana Educational Service (GES) Occupational Pension Scheme, Judicial Service Occupational Pension Scheme and the Hedge Master Trust Occupational Pensions Scheme’ and ‘an order restraining the Government of Ghana from imposing any trustee on the defendants and their members in respect of the Tier 2 occupational pension scheme.’

That is an addition to ‘an order for the payment of pecuniary losses occasioned by the Government of Ghana’s failure to pay the monthly remittances in respect of members of defendants into the designated Bank of Ghana accounts in accordance with Act 766′ including general damages against the Government of Ghana for losses caused members of defendants (workers) by the violation of the provisions of Act 766′ coupled with ‘an order for the payment by the Bank of Ghana pecuniary losses by way of returns on the funds on the lodged with the Bank of Ghana.’

They are also seeking the court’s declaration that ‘the purported appointment by the Ministry of Finance and Economic Planning of the Pensions Alliance Trust Limited as the sole trustee of the Tier 2 pension scheme of all employees on the government of Ghana payroll, is unlawful,’ among others.

Defence
In their statement of defence, the workers justified the decision to embark on the strike, insisting government had no cause of action against them.

This, they said, was because within the context of Sections 159 and 160 of the Labour Act, ‘it is only where parties after a trigger of the dispute resolution procedures set out from Sections 153 to 158 have failed to refer the dispute to voluntary arbitration or the dispute remains unresolved at the end of arbitration proceedings, that a party intending to embark on strike or lock-out, is compelled to give notice of a strike.’

They therefore noted that there had not been any trigger of the dispute resolution mechanisms set out under Sections 153 to 158 before the decision by its members to proceed on strike; the very essential conditions precedent for an application of Section 159 being non-existent, the strike action embarked upon cannot be described as illegal.

According to the lawyers, ‘The strike action embarked upon by their members is in exercise of the right to form trade union in protection of their economic and social rights guaranteed by Articles 24 and 33(5) of the Constitution, 1992, to which the Labour Act is subject. Any constraint placed upon the right of the Ghanaian worker to proceed on strike in due protection of their economic rights in a manner as to derogate from the Constitutionally guaranteed rights, will be unlawful.’

By Charles Takyi-Boadu
 

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