IN THE MATTER OF

AVIANCE (GH) LTD

VRS

FINANCIAL AND BUSINESS SERVICES EMPLOYEES’ UNION (FBSEU) OF THE GHANA FEDERATION OF LABOUR

ON THE

UNIONISATION OF SENIOR STAFF

INTRODUCTION

The National Labour Commission by letter Ref.NLC/35/05/53R dated 16^th January, 2007 appointed as Dual Arbitrators, Messrs. Dennis K.Y. Vormawor and Mahami Salifu, to arbitrate on a dispute between AVIANCE (GH) LTD and the FINANCIAL AND BUSINESS SERVICES EMPLOYEES’ UNION (FBSEU) of the Ghana Federation of Labour, on the Unionisation of certain categories of Senior Staff.

This dispute arose as a result of Collective Bargaining Certificate No. FBSEU/2 issued by the Chief Labour Officer on the 21^st April 2006 (Aviance Exhibit 4) purporting to be an amendment to Collective Bargaining Certificate No. FBSEU/1 issued on 8^th February, 2005 (Aviance Exhibit 3).

Aviance (Gh) Ltd hereinafter called “the Employer” is a Company engaged in ground handling operations at the Kotoka International Airport, Accra. Its staff are categorized into Management Staff, Senior Staff and Junior Staff.

All the Junior Staff are unionised members of the General Transport, Petroleum and Chemical Workers’ Union of the TUC.

The Senior Staff are unionised under the Financial and Business Services Employees’ Union (FBSEU) hereinafter called “the Union” of the Ghana Federation of Labour.

While the Union considers all Senior Staff unionisable by virtue of the fundamental rights of workers to form or join a Trade Union as enshrined in S.79 (1) of the Labour Act 2003, Act 651, Management on the other hand considers that some sections of the said Senior Staff should fall outside union coverage as permitted under 79 (2) of Act 651.

The parties not being able to resolve their differences as stipulated in S.79 (3 & 4) of Act 2003, even through mediation, referred the matter to the National Labour Commission, which appointed the Dual Arbitration Panel under Regulation 18 of the National Labour Commission Regulation 2006, Legislative Instrument 1822.

PRELIMINARY MEETING

The panel at its preliminary meeting on 18^th January, 2007 appointed Ms. Bridget Dzifa Hanyabui, a Private Secretary at the Labour Enterprises Trust Co. Ltd. as its Recorder. The Panel invited the parties to a pre-hearing meeting in the Boardroom of the Labour Enterprises Trust Co. Ltd., Adabraka, Accra on 24^th January, 2007 at 15:00 hours.

PRE-HEARING MEETING

The panel took assurances from the parties that they will co-operate and be civil in their presentation. The parties also agreed to present written final submissions to the panel on the last hearing day. The panel then received statements of issues from the parties and it was agreed that subsequent meetings will be held in the Boardroom of Labour Enterprises Trust Co. Ltd. alternating between Tuesdays and Thursdays at 15:00 hours each day.

The Employer appointed Mr. Abed Botchway (Financial Director of Aviance) as its spokesperson while the Union appointed Messrs. Abraham Koomson, Secretary General of the Ghana Federation of Labour and Ben Mingle, General Secretary of the Union, as its spokespersons.

SUBMISSIONS AND EXHIBITS

Following a request for a Collective Bargaining Certificate (CBC) made by the Union to the Chief Labour Officer on 27^th April, 2004 (FBSEU Exhibit 9), the Chief Labour Officer issued CBC No. FBSEU/1 on 8^th February, 2005 to the parties (Aviance Exhibit 3)

The Class of Senior Staff covered by Aviance Exhibit 3 are as follows:

• ULD Supervisor

• Senior Operations Officer

• Reclaims Supervisor

• Shift/Loading Supervisor

• Refrigeration Supervisor

• Export Warehouse Supervisor II

• Import Warehouse Supervisor II

• Cargo Office Supervisor II (Export)

• Operations Officer

• Senior GE Operator II (Import)

• Assistant Chief Driver II

On the other hand, Aviance Exhibit 4, which Collective Bargaining Certificate became the issue of contention, stipulated that coverage should include:

“Senior Supervisor, Supervisor, Shift Supervisor, Senior Ground Equipment Supervisor, Ground Equipment Operator Grade I, Senior Electrician, Private Secretary, Senior Accountant, Accounts Officer, Supervising Cashier, Chief Driver, Senior Operations Officer, Operations Officer, Senior Personnel Officer, Personnel Officer, Maintenance Store Controller, Data Entry Supervisor, General Services Supervisor”.

The panel noted that FBSEU Exhibit 8 presented by the Union is another Collective Bargaining Certificate with No.FBSEU/2 dated 21^st April, 2006 (same certificate number and date as Aviance Exhibit 4) but curiously specified classes of Senior Staff which are at variance with Aviance Exhibit 4.

The classes specified on FBSEU Exhibit 8 are:

“Senior Supervisor, Supervisor, Shift Supervisor, Senior Ground Equipment Operator Grade I, Senior Electrician, Senior Accountant, Accounts Officer, Supervising Cashier, Senior Operations Officer, Operations Officer, Senior Personnel Officer, Personnel Officer, Maintenance Stores Controller, Data Entry Supervisor, General Services Supervisor”.

The panel notes that while it was hearing the case, the Ag. Chief Labour Officer, on 9^th February, 2007 wrote to the National Labour Commission as follows:

“Re: Application For An Amending Collective Bargaining Certificate of Aviance Ghana Ltd. – FBSEU of GFL

Attached for your information is the amended Collective Bargaining Certificate of Aviance Ghana Limited No. KD-317/34 dated 21^st April, 2006. We inadvertently sent a wrong certificate to management.

We deeply regret” – AVIANCE Exhibit 6 (A – B).

The Certificate attached to this letter is the same as FBSEU Exhibit 8 and numbered as FBSEU/2 and not KD-317/34 as stated by the Ag. Chief Labour Officer to the National Labour Commission.

SUMMARY OF EVIDENCE

During the formal hearings, the Employer prayed the panel to uphold the position that the following class of senior staff, by the sensitive nature of their work, and the trust reposed in them to ensure uninterrupted service to the Employer’s clients, namely the Ghana Civil Aviation Authority and the various airlines operating at Kotoka International Airport, should not be members of the Union:

• Senior Ramp Supervisor/Ramp Supervisor

• ULD Supervisor

• Senior Supervisor (Export Warehouse)

• Supervisor (Export Warehouse)

• Senior Cargo Supervisor (Import and Export Officer)

• Cargo Supervisor

• Import Warehouse Supervisor (Tallying)

• Operations Supervisor

• Security Supervisor

• Equipment Maintenance Supervisor (Mechanical and Auto)

The Union on the other hand contended that

• The decision of the Employer to exclude selected numbers of the supervisory ranks violates the fundamental rights of those employees to Freedom of Association and contravenes S.79 (1) of Act 651.

• The action of management is discriminatory as it is an attempt to exclude all the executives of the Senior Staff Association from union coverage.

• Claims by Management that such employees hold positions of trust are not reflected in their appointment letters.

• Management resorts to constant changes to the Company’s organogram to their detriment and without the knowledge of the Senior Staff Association.

The panel asked the contending parties to justify their respective positions.

1. THE EMPLOYER

Management averred to the fact that its operations are carried out in a sensitive security zone. That any disruptions in its operations which lead to disruptions in the planned schedules of airlines has the potential of compromising the Ghana Civil Aviation Authority and the Kotoka International Airport as a safe and reliable port to transact international business. Its operations are therefore organized along the following lines:

• Ground Operations

• Cargo Operations

• Human Resource/Finance

• Security Monitoring

The Employer emphasized that its position on non-unionisation of these classes, is informed by the following factors:

• The essential nature of  their roles

• The supervisory roles they play

• The leadership they offer within their work groups

• The necessity of the roles for the functionality of their workgroups

• The position of trust put on them by their role.

On sectoral basis, the employer stipulates as follows:

I.                  GROUND OPERATIONS

The Ground Operation is composed of the following main divisions:

·        Flight Dispatch (Operations/Services)

·        Ramp Services

·        Ground Support Equipment (Maintenance Services)

To ensure effective workflow, the department operates four (4) shifts for a 24- hour day operation.

The section is headed by an Operations Supervisor who reports to the Station Manager.

The Employer proposes that Operations Supervisors as Shift leaders should not be unionised.

It pointed out that even though there are four shifts in a day, this position is incumbered by two (2) persons: One (1) for day operations and the other for night operations and argued that their unionisation may be detrimental to the uninterrupted provision of services to their clients.

1.     RAMP SERVICES

The Ramp Services Department provides all services on the tarmac for aircrafts while they are parked at the airport. This department, like the Flight Dispatch Department, operates four (4) shifts a day.

The head of this department is the Ramp Superintendent who is responsible to the Station Manager for the smooth operations of the Department.

The employees of this department comprise loaders, cobus drivers and equipment drivers who are responsible to their Supervisors.

The Employer contended that the following positions in the department should not qualify for Union membership:

• Senior Ramp Supervisor

• Ramp Supervisor

• Ramp Equipment Supervisor

• Unit Load Device Supervisor (ULD)

2.     CARGO OPERATIONS

The Cargo Operations Department is divided into two sections, namely Export and Import Sections.

The functions of these two departments involve the handling of export/import documentation as well as storage of cargo.

The Employer contended that the following members of the Senior Staff should not be members of the Union:

• Warehouse Supervisor I (Export)

• Warehouse Supervisor I (Import)

• Senior Cargo Supervisor (Export)

• Senior Cargo Supervisor (Import)

• Cargo Supervisor (Export) Cargo Office

• Cargo Supervisor (Import) Cargo Office

3.     GROUND SUPPORT EQUIPMENT (MAINTENANCE) SERVICE

(EQUIPMENT AND PROPERTIES MAINTENANCE)

This is a support service department entrusted to see to the proper functioning/maintenance of ground equipment and other properties of the Company. The department has as its head, a Senior Properties Supervisor who is responsible to the Vehicle and Properties Manager. This department provides support service to Ground Operations. The Senior Properties Supervisor is assisted by Equipment Supervisor (Mechanic) and Auto Electrical Supervisor, who acts as team leaders.

The Employer contends that the following should not be unionised since in the employer’s view, their participation in any interruption of work would adversely affect the company’s work:

·        Equipment Maintenance Supervisor (Mechanic)

·        Auto Electrical Supervisor

4.     SECURITY MONITORING

The Employer, as a policy, outsourced Security to a private Security Company. The Employer, however, maintains responsibility for security within its areas of operation. The Employer therefore has a security monitoring section to oversee the work of the security personnel engaged by the Company to which this activity has been outsourced.

The head of the department, who is in managerial position, is the Security Monitoring Co-ordinator (SMC). The SMC is responsible to the Station Manager for the maintenance of the security regime in the Company. The Employer contended that the class of Security Supervisor be outside union coverage.

The Employer explained that as the Security Supervisor acts as the main link between the Manager of the department and the functionaries, he occupies a position of trust, that this could be compromised to the detriment of the Employer if he participates in any Union inspired disruption of work.

THE UNION

The Union’s position is basically informed by the provisions of Section 79 (1) of Act 651. The Union contended that the job functions of the Senior Staff that the Employer seeks to exclude from union coverage are not those to which provisions of Section 79 (2) of Act 651 could be applied. In other words, these classes of Senior Staff are not in managerial/decision making positions, and that they do not hold positions of trust as envisaged in Section 79(2) of Act 651.

The summation of the Union’s position vis-à-vis the various classes in contention are:

a.     Senior Ramp Supervisor/Ramp Supervisor

The job functions of the Ramp Supervisor is the same as the Senior Ramp Supervisor.

The Union postulated that the Ramp Supervisors, Equipment Supervisor and Shift Supervisor report to the Senior Ramp Supervisor.

Since the Employer is not averse to the unionisation of the Shift Supervisor, it should follow that the Senior Ramp Supervisor should be allowed union Membership.

b.     Equipment Supervisor

Union stated that the Equipment Supervisor is answerable to the Ramp Supervisor who has responsibility towards the Senior Ramp Supervisor. The Union argued that the job functions of the Equipment Operator is similar to that of Ramp Equipment Supervisor, and as the Ramp Equipment Operator is unionised, it follows that the Ramp Equipment Supervisor should not be denied his union membership rights.

c.      ULD Supervisor

The Union averred to the fact that the function of the ULD Supervisor is not different from that of the ULD Controller which is a unionised class.

Union stated that in one organogram, the ULD Controller reports to the ULD Supervisor who in turn is answerable to Ramp Supervisor, just like the Equipment Supervisor whom they posit ought not be denied union coverage. In similar vein, it is their view that the ULD Supervisor class should have union coverage.

d.     Cargo Export/Import

Senior Supervisor/Supervisor

Union stated that these classes of staff do not work independently. They collaborate with other stakeholders like Customs, Excise and Preventive Service (CEPS) and representatives of the various airlines.

Union averred to the fact that the sections work in accordance with IATA Standards, thus the individual operatives do not exercise any discretionary authority in the discharge of their duties.

Union therefore maintained that the class of Senior Supervisor/Supervisor in the Cargo Export/Import section deserved union coverage.

e.     Operations Supervisor

Union insisted that the Operations Supervisor is responsible to the Senior Operations Supervisor and not directly to the Superintendent.

Additionally, Union pointed out that there was no distinction between the job functions of the Operations Supervisor and Senior Operations Supervisor. Union suggested that the proposal that the Operations Supervisor class should be outside union coverage is simply because the present incumbent is a member of the Senior Staff Union.

f.       Equipment Maintenance Supervisor

Union stated that the class of Equipment Maintenance Supervisor is non-existing in the scheme of things in the Company.

It pointed out that, the present incumbent of the position being referred to, is a Senior Properties Supervisors. Union is doubtful that the position of the present incumbent has any decision-making authority or role.

FINDINGS

The panel, after carefully listening to both parties and reviewing documentation and written statements of the parties arrived at these findings.

a)    The Role of the Acting Chief Labour Officer

The Panel noted that in response to an application for Collective Bargaining Certificate (CBC), (a pre-requisite for the establishment of formal relations between a Union and any Management/Employer), by the FBSEU of GFL dated 27^th April, 2004 (FBSEU Exhibit 9), the Ag. Chief Labour Officer issued CBC NO. FBSEU/1 dated 8^th February, 2005 in accordance with Section 99 of Act 651 (Aviance Exhibit 3).

The panel did not find any further communication between the Union and the Ag. Chief Labour Officer, therefore could not appreciate what informed/motivated/inspired the subsequent issuance of two different CBC’s NO. FBSEU/2 dated 21^st April, 2006 (Aviance Exhibit 4 and FBSEU Exhibit 8).

What further surprised the panel was that, while the transmittal letter covering both Aviance Exhibit 4 and FBSEU Exhibit 8 stated that the said CBC was an Amended Certificate(s) the letter stated that the purported Amended Certificate(s) was issued in accordance with Section 99, Act 651.

It is pertinent to note here that Section 99 of Act 651 deals with the issuance of an original CBC.

An amended certificate can only be issued by following the procedure specified under Section 100 of Act 651.

 This the Chief Labour Officer did not do.

To appreciate the motivation for this apparent misapplication of the provisions of Act 651, the panel sought the assistance of the National Labour Commission to invoke Section 139 (2) of Act 651 to invite the Chief Labour Officer, or his representative to give evidence before it on Thursday, 15^th February, 2007 at 15.00 hours.

Evidence of the Chief Labour Officer

Mr. D.A. Bosompem, Assistant Chief Labour Officer, at present the Acting Chief Labour Officer appeared and gave evidence on affirmation before the panel in compliance with Section 165 of Act 651.

The panel showed the following Exhibits to him to identify and confirm their authenticity which he did:

                                              i.            Aviance Exhibit 3

                                           ii.            Aviance Exhibit 4

                                         iii.            FBSEU Exhibit 8

The panel then asked Mr. Bosompem to say what he knew about those CBC’s (the Exhibits referred to him). He admitted that Aviance Exhibit 3 was issued but did not recollect what prompted the issuance of Aviance Exhibit 4 and FBSEU Exhibit 8. He remembered however, that the General Secretary of the Union and a Consultant to the Employer held several “informal” and formal meetings in his office to iron out certain differences over the union coverage. He explained that the discrepancy between Aviance Exhibit 4 and FBSEU Exhibit 8 was a consequence of those “informal” discussions between the parties.

He confirmed to the panel that he had no documentation to support what he said. However, he indicated that the letter that transmitted Aviance Exhibit 4 should have sent the “correct” amending certificate which is FBSEU Exhibit 8. He produced a relevant letter in this respect which the parties agreed should be marked Aviance Exhibit 6. The Panel noted that Aviance Exhibit 6 was written at the time it had started hearing the case.

The Panel drew his attention to Section 100 of Act 651 and asked if the provisions had been complied with. He admitted that the provisions of Section 100 had not been complied with but added that his Department worked in good faith with the parties but now realized how important it is for things to be done in accordance with the provisions of the Law.

b)    MANAGEMENT

The Panel was convinced that the Employer is not averse to the unionisation of the workers. Running through their submission however is the anxiety to ensure smooth operations to avoid incurring financial liabilities to clients due to Union induced interruption of work.

For this reason, the Employer defined certain classes which it is anxious to have limits imposed on their right to join Unions as prescribed in Section 79 (1) of Act 651.

Finding a window of opportunity under Section 79(2) of Act 651, the Employer intended to explore as much of it as possible to his advantage.

c)     UNION

The Union on the other hand is determined to explore the rights of a worker as enshrined in Act 651 Section 79 (1). Union, in all its submissions tried to suggest that the Employer was using discriminating tactics to deny certain employees that hold Union office from enjoying their fundamental rights.

According to the Union, the Employer often “shifts the goal post” by presenting different organograms during their discussions since 2004.

This has made Union apprehensive and suspicious of the true intentions of the Employer vis-à-vis the Senior Staff since all Junior Staff had been unionised.

d)    THE ROLE OF THE MEDIATOR

The Panel finds that the role played by the Mediator appointed by the Chief Labour Officer compounded the problem, and increased the level of mistrust and suspicion among the parties.

A Mediator is expected to help parties to reach an acceptable agreement. In this case, the Mediator assumed the role of an Adjudicator and made a verdict -  Aviance Exhibit 2. This is clearly ultra vires the Mediator and fouls Section 154 (6) of Act 651.

The Panel notes with satisfaction that the National Labour Commission has over-ruled this “verdict”; noting that the process could only be resolved through Arbitration, and directed that the matter be referred to an Arbitrator or Panel of Arbitrators (FBSEU Exhibit 7).

OPINION

The Panel unanimously agrees that it is important for every stakeholder/player in the world of work to resort to the due process of law to resolve industrial disputes.

We find it difficult to appreciate why the Office of the Chief Labour Officer, an important state institution, should not follow due process in its work by adhering to the provisions of Act 651.

In fact, when Aviance Exhibit 3 was issued, neither party is on record to have objected to the Class of Employees listed on the CBC. We therefore cannot appreciate why Aviance Exhibit 4 and FBSEU Exhibit 8 were issued without any formal or proven request from either party.

In our view, even if there was a formal request for an amending certificate, the Chief Labour Officer was under obligation to follow procedure laid down in Section 100 of Act 651.

We hope that the lessons learnt out of this present case, as we tried to bring forcefully to the attention of the Ag. Chief Labour Officer, when he appeared before us, will guide his department in the future.

It would be for the good of Industrial harmony in the country that all stakeholders are mindful of the long term consequences of their actions.

THE DECISION

Aviance Ghana Ltd. is engaged in the provision of ground services to airlines that use the Kotoka International Airport. The airport is under the overall supervision of the Ghana Civil Aviation Authority. Air travel is a complicated matter involving the movement of persons/cargo to several destinations. Airlines have schedules for interconnectivity at various airports across the globe.

The operations at every airport are linked in such a way that any delays or interruption of service at any one airport has rippling effect on other airports, plane schedules and travel plans of passengers and cargo.

In Ghana, as of now, Aviance is the sole provider of ground services at the Kotoka International Airport.

We therefore appreciate the anxiety of the Employer to keep certain classes of employees outside union coverage.

On the other hand, we are mindful of the fact that union membership is a fundamental right granted to every worker by the 1992 Constitution and Act 651, save that, for the protection of the interests of Industry in general, Act 651, Section 79 (2) places some limitations on this right of Freedom of Association in certain specified cases.

We would have wished that the parties, knowing the circumstances, challenges and obligations placed on them and the nature of their operations would have amicably settled on the classes of workers that should be excluded from union membership as stipulated in Sections 79 (2) (3) and (4) of Act 651.

Be it as it may, this did not happen.

We are therefore obliged to examine the submissions made before us, the nature of the operations of the Employer and match this against the position of the Union that all Senior Staff must have union coverage.

Taking all these factors into consideration, and guided by the spirit of Section 79 (2) and (4) of Act 651, we have decided as follows:

1.     Ground Operations (Aircraft)

a.      The position of Operations Supervisor is critical for the smooth provision of service to facilitate Aircraft movement. This is a major activity of Aviance and must be handled efficiently and promptly to avoid chaos and subsequent financial liability to the Employer for failure to deliver. This class should be outside union coverage

b.     Senior Ramp Supervisor: This class of worker has overall responsibility for Ramp Operations and reports to the Ramp Superintendent. This places the officer in a de-facto leadership position and must be able to co-ordinate effectively and act promptly. We hold that the class should be excluded from union membership.

c.      Ramp Supervisor: The job functions of this Officer, even though similar to that of the Senior Ramp Supervisor, he is effectively a team leader in a shift. The presence, at all times, of the Ramp Supervisor places him in a subordinate position to the Senior Ramp Supervisor and should be entitled to union membership. In the event of the temporary absence of the Senior Ramp Supervisor, he would be expected to take decisions. But this should be viewed as the exception and not the rule.

d.     Ramp Equipment Supervisor: Like the Ramp Supervisor, it is our view that the Ramp Equipment Supervisor’s functions are not over sensitive. We note that in the section, especially, the critical roles are performed by loaders, cobus drivers and tractor drivers. These are all unionised junior staff. The class must benefit from union coverage.

e.      ULD Supervisor: We reckon that the ULD Supervisor is expected to make critical decisions like ensuring that the necessary loading devices are provided timely and accurately to the export department for the preparation of export loads.

We hold that this is a responsible position and as such should be denied union membership.

2.     CARGO OPERATIONS

Warehouse Supervisor I (Export) and Warehouse Supervisor I (Import)

We hold that these classes of the Officers hold critical positions of trust and should be excluded from union membership:

a.      Senior Cargo Supervisor (Export Office) and Senior Cargo Supervisor (Import Office)

We hold that, from the submissions received; these classes of officers hold sensitive positions and are responsible for vital import/export documentation for clients of the Employer. They should be excluded from union membership.

b.     Ground Support Equipment (Maintenance Supervisor) – Mechanic

The Union suggests that this class is non-existent at Aviance. This does not imply that if the position is not encumbered as of now, it may not be in future. Reviewing the functions of the class as provided by the Employer, we hold the view that, the class should be outside union coverage.

c.      Auto Electrical Supervisor

Union submission in their final written statement was silent on this class. We take it that they did not intend to contest this with the Employer.

That the functions of this class are similar to that of the Ground Support Equipment Maintenance Supervisor (Mechanic) we hold that the class be excluded from union coverage.

3.     SECURITY MONITORING

Security Monitoring Supervisor

We realize that the Employer has outsourced the security functions of its obligations to its clients. However, the Employer maintains a handful of security staff to oversee the operations of the outsourced operatives.

We realize also that the Kotoka International Airport is a State security zone. Therefore those charged with the maintenance of security form a critical core of operatives.

We hold that the classes of persons occupying the office of Security Monitoring Supervisor are in positions of trust if the security of the entire airport is not to be compromised. The class should therefore not be unionised.

SUMMARY OF DECISIONS

CONSEQUENTIAL MATTTERS

In view of these decisions, the following steps need to be taken to bring them to effect:

a.      Withdrawal of CBC No. FBSEU/2 dated 21^st April, 2006 by the Chief Labour Officer

b.     Issuance of a new amending CBC to reflect our decision.

c.      To ensure that equity prevails at Aviance, we recommend that the terms of any negotiated agreement for the unionised senior staff should apply to those classes on which we have placed limitations – Section 109 (1) of Act 651.

Submitted

DENNIS K.Y. VORMAWOR                            MAHAMI SALIFU

NLC APPOINTED ARBITRATOR                           NLC APPOINTED ARBITRATOR

Dated in Accra this 22^nd day of February, 2007.