CARL TIEDEMANN STEVEDORING ENTERPRISE BASED UNION & 236 OTHERS V. SAFEBOND COMPANY LIMITED AND 1 OTHER

JUDGMENT 

1st Plaintiff is a trade union which holds a bargaining certificate. The other Plaintiffs are members of 1st Plaintiff and employees or former employees of 1st Defendant which is a company. 2nd Defendant is also a registered company. In 2011, 1st Defendant declared redundancy but there appears to be no agreed compensation package for the affected employees. It is also 1st Plaintiff’s contention that 1st Defendant has failed to negotiate any collective bargaining agreement. 

Plaintiff is seeking the following reliefs as endorsed on their writ of summons: 

1. An order directed at the Defendant to negotiate and execute forthwith, a collective agreement with 1st Plaintiff to cover all the other Plaintiffs who are the 1st Plaintiff’s members in the employment of the Defendant. 

2. An order directed at the Defendant to provide in writing to the 1st Plaintiff forthwith, the number and categories of 1st Plaintiff’s members to be affected by the redundancy exercise which the Defendant has decided to carry out on 30th November 2011. 

3. An order directed at the Defendant to consult with the 1st Plaintiff on measures to be taken to arrest or minimize the terminations as well as measures to mitigate the adverse effects of the terminations on the 1st Plaintiff’s members to be affected by the redundancy exercise such as finding alternative employment. 

4. An order restraining the Defendant from going ahead to pay the unilateral redundancy and severance packages which the Defendant has decided to pay the 1st Plaintiff’s members and to negotiate in good faith with 1st Plaintiff, the redundancy and severance packages due to each of the 1st 

Plaintiff’s members under the Defendant’s own conditions of service put in place by the Defendant in year 2005. 

5. An order of injunction to restrain the Defendant from going ahead with the redundancy exercise unless and until the Defendant has complied with the substance of the prayers of the Plaintiffs in this court as contained in reliefs (2), (3) and (4). 

6. An order directed at the Defendant to pay to the 1st Plaintiff’s members: 

i) All salary arrears 

ii) Payment of educational grant 

iii) Risk/dirty allowances 

iv) Outstanding night allowances 

v) Outstanding overtime payments and  

vi) Outstanding leave allowances and travelling expenses (T and T) as provided for under the Defendant’s own conditions of service put in place since June, 2005 but which have remained unpaid since the 1st day of January,2006. 

7. An order directed at the Defendant to present to each of the Plaintiff’s members to be affected by the redundancy exercise, long service awards which they qualify for under the Defendant’s own conditions of service. 

8. Compensation for the Defendant’s abuse of the economic rights of the 1st Plaintiff’s members guaranteed under the 1992 Constitution of the Republic of Ghana. 

9. Interest on all monies found due and owing from the Defendant to the Plaintiffs from the date of issue of writ to date of final payment. 

10.Costs. 

At the application for direction stage the following issues were settled for trial: 

a) Whether the defendant ought to be ordered to negotiate and execute forthwith a collective bargaining agreement with the 1st Plaintiff. 

b) Whether the defendant ought to be ordered to provide to the 1st Plaintiff forthwith, the number and category of the 1st Plaintiff’s members to be affected by the redundancy exercise to be carried out by the 1st Defendant.

c) Whether the defendant ought to be ordered to consult with the 1st Plaintiff in order that measures could be taken to minimize the terminations or effects or the terminations on the 1st Plaintiff’s members? 

d) Whether the defendant ought to be restrained from paying the unilateral packages which the board of defendant has decided to pay as redundancy to the 1st Plaintiff members? 

e) Whether the court ought to grant an injunction to restrain the defendant from going ahead with the redundancy exercise until and unless the defendant has complied with the statutory requirements claimed by the 1st Plaintiff. 

f) Whether the 1st Plaintiff’s members have at any point in time waived their rights to their entitlements under the defendant’s own conditions of service? 

g) Whether the Plaintiffs have at any point in time material to the present action waived any of the terms of the defendant’s own conditions under which the Plaintiffs are entitled to benefits? 

h) Whether the defendant has paid all overtime payments and other emoluments due the 1st Plaintiff’s members under the defendant’s condition of service as alleged? 

i) Whether the Plaintiffs are entitled to the reliefs endorsed on the writ of summons? 

j) Any other issues arising from the pleadings. 

The provisions of the Evidence Decree, 1975 (NRCD 323) regarding burden of proof in civil cases are as follows:

Section 10—Burden of Persuasion Defined. 

(1) For the purposes of this Decree, the burden of persuasion means the obligation of a party to establish a requisite degree of belief concerning a fact in the mind of the tribunal of fact or the court. 

(2) The burden of persuasion may require a party to raise a reasonable doubt concerning the existence or non-existence of a fact or that he establish the existence or non-existence of a fact by a preponderance of the probabilities or by proof beyond a reasonable doubt. 

Section 11—Burden of Producing Evidence Defined. 

(1) For the purposes of this Decree, the burden of producing evidence means the obligation of a party to introduce sufficient evidence to avoid a ruling against him on the issue. 

(4) In other circumstances the burden of producing evidence requires a party to produce sufficient evidence so that on all the evidence a reasonable mind could conclude that the existence of the fact was more probable than its non-existence. 

Section 12—Proof by a Preponderance of the Probabilities.

(1) Except as otherwise provided by law, the burden of persuasion requires proof by a preponderance of the probabilities. 

(2) "Preponderance of the probabilities" means that degree of certainty of belief in the mind of the tribunal of fact or the court by which it is convinced that the existence of a fact is more probable than its non existence. 

Section 14—Allocation of Burden of Persuasion. 

Except as otherwise provided by law, unless and until it is shifted a party has the burden of persuasion as to each fact the existence or non-existence of which is essential to the claim or defence he is asserting. 

Section 17—Allocation of Burden of Producing Evidence. 

(1) Except as otherwise provided by law, the burden of producing evidence of a particular fact is on the party against whom a finding on that fact would be required in the absence of further proof. 

(2) Except as otherwise provided by law, the burden of producing evidence of a particular fact is initially on the party with the burden of persuasion as to that fact. 

In his Address, learned Counsel for Plaintiffs submitted that the redundancy had been carried out therefore issues b, c and e are moot. 1st Plaintiff argued that in respect of issue d) 1st Defendant ought to have paid Plaintiffs as redundancy pay what has been stipulated under sections 13 and 14 of 1st Defendant’s conditions of service for its junior staff, exhibit K. Plaintiffs contended that 1st Defendant refused to negotiate the redundancy pay but imposed on Plaintiffs what it had decided based on section 13 of exhibit K. Section 65 (4) and (5) of the Labour Act 2003 (Act 651) provides that:

(4) The amount of redundancy pay and the terms and conditions of payment are matters which are subject to negotiation between the employer or a representative of the employer on the one hand and the worker or the trade union concerned on the other. 

(5) Any dispute that concerns the redundancy pay and the terms and conditions of payment may be referred to the Commission by the aggrieved party for settlement, and the decision of the Commission shall subject to any other law be final. 

Exhibit K provides at section 13(iii) under the heading “REDUNDANCY” that employees who are declared redundant shall received: 

1. 1 – 4 years: one (1) months’ salary for each year of service. 2. 5 years and above: Two (2) months’ salary for each year of service. 

It is therefore clear what the redundancy pay would be as agreed between the parties in exhibit K for junior staff. The law is concerned with legal obligations created by mutual agreement between the parties unless a statute provides otherwise (see Kobea and Others v Tema Oil Refinery; Akomea-Boateng and Others v Tema Oil Refinery (Consolidated) [2003-2004] SCGLR 1033; Abraham v Herbert Reiach Ltd (1922) 1KB 177at 482, CA cited). Plaintiffs however, contended that in addition to the stipulated redundancy pay in exhibit K they are entitled to severance pay which ought to be negotiated between the parties in addition to the redundancy pay.

Section 14 of exhibit K on “SEVERANCE PAY” provides as follows: 

Severance pay shall apply where an employee’s services are terminated as a result of a close down, re-arrangement or amalgamation causing severance of the relationship of employee and Company and the employee become unemployed or suffers any diminution in his terms and conditions of employment as laid down by the NLCD 432 and any subsequent amendments. Entitlements under severance shall be negotiated by Management and workers. 

The relevant extract of section 65 provide that where an undertaking is closed down or undergoes an arrangement or amalgamation and the close down, arrangement or amalgamation causes severance of the legal relationship of worker and employer as it existed immediately before the close down, arrangement or amalgamation; and as a result of and in addition to the severance that worker becomes unemployed or suffers any diminution in the terms and conditions of employment, the worker is entitled to be paid by the undertaking at which that worker was immediately employed prior to the close down, arrangement or amalgamation, compensation, in this section referred to as "redundancy pay". The amount of redundancy pay and the terms and conditions of payment are matters which are subject to negotiation between the employer or a representative of the employer on the one hand and the worker or the trade union concerned on the other hand. It has been held in Ashun v Accra Brewery Limited Civil Appeal No J4/18/2007 that “we do not interpret these provisions as casting any duty of negotiation on the parties to this suit. These provisions do not, by their very terms, apply to redundancy situations, but rather to when an organization is closing down or undergoing an arrangement or amalgamation and these results in the termination of the employer-employee relationship.” It appears section 14 of exhibit K was drafted in line with section 65 of Act 651. The question is the instant redundancy the subject of this suit; did it occur as a result of the close down of Defendant, rearrangement or amalgamation? The reason for the redundancy as stated in exhibit S, letter to Mr Joshua Allotey states in alia that “The reason for the redundancy as we stated in that memorandum is as a results of a recent discussion between Ghana Ports and Harbours Authority and Safebond Company Limited. This therefore resulted in Safebond Company Limited ceding its shore handling operations in Tema to another company by 30th November 2011.” The reason for the redundancy was as a result of ceding its operations to another company. It was not demonstrated that the redundancy, the subject of this suit was as a result of a close down, rearrangement or amalgamation to entitle 1st Plaintiff’s members to redundancy pay pursuant to section 65 of Act 651 following negotiations. 

Issues f and g are essentially the same that is whether the 1st Plaintiff’s members have at any point in time waived their rights to their entitlements under the defendant’s own conditions of service? It is Plaintiff’s contention that 1st Defendant has often refused to apply all the provisions of the conditions of service. Plaintiffs averred that the conditions of service provide that there shall be annual salary increments effective 1st January of each year. Plaintiff contended that in spite of this provision Defendant failed to apply same and whenever it made any salary increment it did not take effect from 1st January. In this regard Plaintiffs contended that in the year 2006 there was no salary increment but cost of living allowance was paid, in 2007 the salary increment was effected from 1st April, in 2008 salary increment was effective 1st June, in 2009 salary increment was effected 1st May, in 2010 there was no salary increment and in 2011 the salary increment was effective 1st May. Plaintiffs are thus seeking an order of the court to pay all salary arrears from 1st January of each year to the month preceding the effective date of salary increment in the respective years. In answer to these aversions 1st Defendant contended that 1st Plaintiff’s members who were covered by the conditions of service to whom the various salary increments were made agreed to be paid amounts as agreed between the Plaintiffs and Defendant thus it does not owe any of the Plaintiffs any outstanding sums by way of salary arrears. 

Amah v Kaifio [1959] GLR 23 at 25 held that ‘The principle of law is that “the burden of proof rests upon the party who would fail if no evidence at all, or no more evidence, as the case may be, were given on either side - i.e. it rests, before evidence is gone into, upon the party asserting the affirmative of the issue; and it rests, after evidence is gone into, upon the party [p.26] against whom the tribunal, at the time the question arises, would give judgment if no further evidence were adduced”. The provisions relating to salary in exhibit K, Article 6 are as follows:

“SECTION 3 ANNUAL INCREMENT: 

a) Annual increment shall be granted to all employees from the beginning of the salary year subject to satisfactory performance. The salary year shall be the 1st January to the end of December in the same year.” 

From the above, annual increment is not automatic but subject to performance. Plaintiffs did not indicate which of the Plaintiffs’ were to be paid the annual increment in salary having performed satisfactorily. Defendant on the other hand demonstrated that its management was in constant discussions with representatives of Plaintiffs regarding salary increment and effective dates having so agreed. The following are excerpts from the relevant exhibits: 

Exhibit Y (SAME AS EXHIBIT 3C) 

MEMORANDUM 

From; YJ 

To: SA, EO 

Date; 19/04/2007 

CC: OM, EBU Chairman, and Executive Secretary 

Re: SALARY ADJUSMENT 

As the result of final negotiations we had, we the executives of the EBU, the management has decided on the followings with effect from 1st April 2007. 

1. That there should be a differentiated salary adjustment.

2. The differentiated salary adjustment should be such that  

(i) All staff whose basic monthly salary is below ₵1,000,000 (one million – cedis) and does overtime should have 30% basic monthly salary adjustment, with the exception of Security, CTC and CTS. 

(ii) All staff whose basic monthly salary is ₵1,000,000 (one million cedis) and above and does overtime should 17.5% basic monthly salary adjustment. This also applies to all staff of Security, CTC and CTS. 

(iii) All staffs who do not qualify for overtime and whose basic monthly salary is above ₵2,600,00 (two million six hundred thousand) are to enjoy basic monthly salary adjustment of 25% 

Please be informed and implement accordingly. Thank you and best wishes. sgd 

Mr Yekeen Jimoh 

(GM-Personnel/Admin.)  

EXHIBIT Z (SAME AS EXHIBIT 3E) 

MEMORANDUM 

From; YJ 

To: EBU 

Date; 04/06/2008 

Re: NEGOTIATIONS FOR 2008 SALARY REVIEW

With regards to your memo dated 2nd June 2008 on the above issue and subsequent discussions thereafter, I am happy to inform you that management has agreed to an across board of 15% salary increase for all workers for 2008. This takes effect from 1st June 2008. 

The management will be happy to hear from you and the workers at large if this is acceptable to you in accordance with our previous discussions. 

An early reply from you with regards to the acceptance will also inform the management in its bid for necessary implementation. 

Thank you. 

sgd 

MR YEKEEN JIMOH 

(GM-PERSONNEL/ADMIN.) 

Exhibit AA (SAME AS EXHIBITS 3 and 9) 

MEMORANDUM 

TO: ALL STAFF 

FROM; DEPUTY MANAGING DIRECTOR (F and A) 

DATE: 22/05/09 

SUBJECT: SALARY INCREASE

I am pleased to inform all staff that, the Board of Safebond Africa Ltd. has approved the 2009 salary increase. As a result there is a minimum of 15% across board pay increase to all staff. However, certain category of staff will earn up to a maximum of 50% increase to correct previous anomalies in the salary structure. All such staff will receive a formal letter to this effect. 

In addition to the salary increase, a new overtime rate has been introduced. All eligible staff will earn a maximum overtime of 4 hours per day @25% rate for weekdays and a maximum overtime of 8 hours @ 50% rate for weekends. Overtime rate for Sundays and public holidays remain unchanged. 

Effective dates for implementation of the above measures are: 

∙ Salary increment; 1st May, 2009 

∙ Overtime: 1st June, 2009 

Contract workers to note 

Salary increase is not applicable to newly recruited contract workers. We hope you will all continue to offer your best to move Safebond forward Thank you 

sgd 

Isaac Kodom 

EXHIBIT BB (SAME AS EXHIBITS 1, 3H and 10) 

MEMORANDUM

TO: GENERAL MANAGER - SCL 

FROM; EXECUTIVE DIRECTOR – HR 

CC: GA, DA, CN, OB, EBU and ALL MANAGERS 

DATE: 10 – 05 -11 

SUBJECT: RE- ANNUAL SALARY INCREASE 

At a meeting held on 8th and 9th May 2011, management and EBU agreed on the following annual salary increase for the year 2011. 

They are; 

Management will increase salary by 20% for permanent staff ⮚ Salary for contract staff would be increased by 15% 

T and T would be increased by 25% across board 

Increment in salary and T and T would take effect from 1st May, 2011. Thank you. 

Best wishes 

sgd 

YekeenJimoh 

MEMORANDUM OF UNDERSTANDING 

We, the undersigned parties herein have agreed on the following for the 2011 salary increase:

1. Management will increase salary by 20% for permanent staff 2. Salary for contract staff would be increased by 15% 

3. T and T would be increased by 25% across board 

4. Increment in salary and T and T would take effect from 1st May, 2011. 

Parties herein agree to abide by this MoU 

BY 

EBU representatives Management representatives 

Signature: SGD Signature: SGD Name: JOSHUA ALLOTEY Name: ISAAC KODOM Title: CHAIRMAN Title :DEPUTY MANAGING DIRECTOR Date: 10 – 05 -2011 Date: 10 – 05 – 2011 

WITNESS 

Signature: SGD Signature: SGD Name:J.A.B ABDUL-HAKEEM Name: YEKEEN JMOH Title:GENERAL SECRETARY Title :EXEC. DIRECTOR-HR Date: 10TH MAY, 2011 Date: 10 – 05 – 2011 

Where an employer and its employees have agreed the terms of the employment contract such as exhibit K, the said terms cannot be changed except by mutual agreement of both parties. The exhibits above reproduced show that Defendant was in constant negotiations with Plaintiffs as to quantum of salary increment and effective date. The court finds that although article 6 section 3 of exhibit K provided that the salary increment shall be effected from the beginning of the salary year being 1st January the evidence show that both parties have been in constant negotiations regarding the quantum of salary increase as well as effective dates which in all instances was not 1st January. Robinson v Tescom Corporation [2008] IRLR 408 held that where an employer does try to impose a unilateral variation on an employee there are four options open to him which are (i) to agree to the variation (either expressly, or by continuing to work without protest), (ii) to resign and complain of unfair constructive dismissal and wrongful dismissal, (iii) to refuse to work under the new terms and force the employer to take such steps as it thinks is appropriate; and (iv) to stand and sue, ie continue to work under protest and seek damages (either for breach of contract – see Rigby v Ferodo [1987] IRLR 516 or if the breach is so serious as to bring the original contract to an end, unfair dismissal). The court is of the view that Plaintiffs did not avail themselves of any of these options as they agreed to the variations by way of memorandum of understandings among others. This makes 1st Defendant’s story regarding the payment of salaries more probable than Plaintiffs’ story. This was part of PW1’s testimony on 30th May 2012 in cross examination: 

Q In your capacity as the interim general secretary did you ever negotiate with management in your team salary adjustment? 

A My Lord in my capacity as the general secretary with other colleagues we were involved in a number of meetings with the Defendant on issues (such as ) salary increment and other allowances, bonuses and other workers conceded my Lord. 

Q Did any of these meeting result in salary increase and improvement of conditions of service? 

A Marginally, My Lord 

Q Those increases benefited your members, that is correct 

A That is so my Lord. 

The court will therefore find in favour of Defendant and hold that Plaintiffs are not owed any salary arrears as being claimed as both parties by their conducts by way of negotiation varied exhibit K. 

The next issue is whether the defendant has paid all overtime payments and other emoluments due the 1st Plaintiff’s members under the defendant’s condition of service as alleged? Plaintiffs averred that although the conditions of service provided that 1st Plaintiffs’ members be paid educational grant of one month salary in each year, risk/dirty allowance in each year, night allowances, overtime payments, leave allowances and travelling expenses (T and T) yet 1st Defendant has failed to pay these benefits. Article 10(4) of exhibit K provides that “The Company agrees to grant all staff an Educational Grant equivalent to or one month basis salary at the beginning of every year towards their wards education.” The finding of the court is that this educational grant has never been paid. 

Defendant Counsel submitted that for all the years that Plaintiffs worked for 1st Defendant, none of them put in a claim for that allowance, in all negotiations to discuss salary increments and other allowances the issue of educational grant was never discussed or raised and not even at the point of discussing redundancy and severance packages was it raised. It is therefore the case of Defendant that same have been waived by virtue of Plaintiffs’ conduct and cannot now claim same. The evidence placed before the court indicates that Plaintiffs never protested against this breach of contract as it were by 1st Defendant and continued to work until they were declared redundant in 2011. This leads the court to come to the conclusion that Plaintiffs by their conduct agreed to the variation of their employment contract whereby the educational grant was never paid thereby waiving their right to same and will so hold. 

Plaintiffs are also claiming an order of the court to pay them risk/dirty allowance. Article 10(6) of exhibit K provides that “the Company shall pay any employee working on dangerous cargo such as acid, cement, bitumen, sulphur ammonia, caustic soda, compress gas, blue asbestos and poisonous gas etc as per agreed tariff.” Plaintiffs averred that 1st Defendant has refused to pay risk/dirty allowance to Plaintiffs in accordance with the conditions of service, exhibit K. Plaintiffs’ Counsel submitted that those Plaintiffs who worked at the Operations and Car Terminal worked on dangerous cargo and they ought to be paid the said allowance which is outstanding. PW1 testified in cross examination thus: 

Q Mr Hakeem you have also indicated that certain allowances such as risk and dirty allowance was not paid you, is that not so? 

A Such is so my lord

Q Over what period did the Defendant fail or refused to pay this allowance 

A Since we were employed that is 2003 to date 

Q What step did the union take to ensure that you were paid these allowances 

A My Lord through various representations by memoranda and meetings we indicated our concerns to the Defendant. Besides we (took) our concerns to the National Labour Commission in around 2007, 2008 to 2009 to that effect in which we did not get the desired response my lord. 

Q When you said desired response are you saying the Labour Commission treated your petition with contempt? 

A The National Labour Commission did assure us of setting a compulsory arbitration panel to look into our concerns which to date has never seen the light of day. 

Q So as you sit here this matter is still pending at the Labour Commission is that correct 

A I think that will be so. 

DW1 also testified thus in cross examination: 

Q I am putting it to you that Joshua Allotey personally supervised the offloading of asbestos, acids, cements and other dangerous chemicals which are identified in the conditions of service under risk allowance. 

A My Lord that is not correct, there hadn’t been any instance where my attention have been drawn to the fact that a personnel had worked on such cargos because there are procedures involved in claiming for risk allowance. If one ever handled a dangerous cargo, that is a supervisor would have signed an overtime or an allowance form every month specifying the type of services one has done with respect to overtime and other special duties and these would have been approved and forwarded to finance department and there is a column on that form which specifies special allowance there you need to indicate if you ever handled any of these cargos but nothing of that sort came to the finance department that we have to process for payment because every month where there is outstanding for any unpaid claim these are brought as an additional information for further processing and so if there is any of that sort that ever took place we were ready to look at it and see if it indeed ever happened. 

Q Mr Amoo, I put it to you that you know as a fact some of these plaintiffs worked either with asbestos, others worked with cement and other various dangerous chemicals, in fact you know that all of them did some work with 

A My Lord that is not true….. 

Q Mr Stephen Amoo, each of those staff were paid risk allowance not so A Yes My Lord 

Although PW1 testified that risk allowance was never paid since 2003, the evidence per exhibits AL, AL1 and AL2 suggests that risk allowance were paid to some workers of Defendants. In a claim where there is more than one Plaintiff, each bears the burden of proving his or her case. (See Kobi v Manganese Co Ltd [2007-2008] SCGLR 771). In the instant suit it has not been demonstrated which of the Plaintiffs worked with dangerous cargo, when they worked with dangerous cargo and whether or not they put in a claim for payment but Defendant failed and or refused to pay. Plaintiffs have failed to discharge the burden they assumed when they alleged they are owed risk allowance. 

Plaintiffs averred that although the 1st plaintiff’s members worked overtime, and the defendant charged the defendant’s clients for that overtime and overtime records known as overtime sheets or overtime requisition forms exist to prove this, the defendant still failed to pay the 1st plaintiff’s members the overtime payments and the defendant ought to be ordered by this Court to effect the payments. PWI testified thus: 

Q Now that in respect of salary increases and salary arrears which you say you are entitled to is there any other thing that you want to tell the court about? 

A My Lord besides this there is other outstanding allowances which the Defendant owes us one of them is overtime allowances and this overtime allowances are in different categories. 

Q Can you explain to the court 

A That is what am attempting to do my Lord. We have what we call overtime requisition forms and this one is in respect to people who usually handle vessels within the key area in it you will find that the Defendant charged clients who the 1st Plaintiff worked for however the Defendant refused to pay us the said overtime which we executed for the Defendant. Besides this when we do stay on the work above normal eight hours a day the Defendant still refuses to pay us the due rate and when we work on Saturdays and Sundays as well as public holidays the Defendant pay us lower than what is indicated in the Defendant’s own dictated conditions of service of June 2005. 

Q Do you have anything to show that this overtime allowances are due you? 

A My Lord we do have records to indicate that the 1st Plaintiff members worked overtime for the Defendant’s client which the Defendant charged for these overtime but refused to pay the Plaintiffs their overtime. This document is known as the overtime sheets. 

In respect of these assertions regarding the outstanding overtime, PW1 tendered exhibits CC and DD series. Exhibit CC series are photocopies of 1st Defendant’s Overtime Requisition Forms in respect of companies to whom service charges are to be made. There is nowhere on the form indicating a request to be paid overtime by 1st Plaintiffs’ members. Exhibit CC series therefore do not show that Plaintiffs are owed overtime. Exhibit DD series are copies of pay slips of 26th Plaintiff, Alhassan Ntigiyelgu Zibilila. The exhibit DD series show that weekday overtime was paid at 1.25 whilst Saturday overtime allowance was paid at 1.5 consistently from January 2010 to November 2010. Article 5 of exhibit K regarding overtime provides as follows: 

a) For weekdays, all overtime payments are included as part of the guaranteed monthly salary. 

b) Work performed on Saturdays, Sundays and Public Holidays – Rate: two (2) times the employee’s hourly rate of pay.

i) The method of calculating overtime payments shall be as follows:

Monthly Basic salary x hour 

 176 

Clearly 26th Plaintiff was not paid overtime in accordance with exhibit K, the conditions of service. Instead of being paid double hourly rate for Saturdays, he was paid 1.5. Per article 5(a) of exhibit K, he was not supposed to have been paid overtime for weekdays as weekday overtime payments are included as part of the guaranteed monthly salary yet he was paid at a rate of 1.5. Below are excerpts of some exhibits: 

Exhibit AA1 dated 22/05/09 (same as exhibit 3) 

In addition to the salary increase, a new overtime rate has been introduced. All eligible staff will earn a maximum overtime of 4 hours per day @ 25% rate for weekdays and a maximum overtime of 8 hours @ 50% rate for weekends. Overtime rate for Sundays and public holidays remain unchanged. 

Effective dates for implementation of the above measures are: ∙ Salary increase: 1st May 2009 

∙ Overtime: 1st June 2009 

Exhibit 4 

Memorandum

To: Deputy Managing Director 

From: EBU Executives 

Date: 10.09.09 

Subject: FALLOUTS IN OVERTIME RATE REVIEW/REVIEW OF OUR TRAVEL AND TRANSPORT UPWORDS 

We wish to bring to your notice the appalling effect of the recent review of our overtime rate. Although staff are now enjoying weekday overtime, the review of the Saturday overtime to 1.5 instead of the 2.0 rate has caused staff up to 10% drop in our salaries. 

We all upheld that the coming of Weekday overtime would improve the earnings of staff but to our utter surprise, the downward review of Saturday rate has brought untold blow to our salaries. 

In the light of the above, we ask that the 2.0 rate formerly applied should be restored. This would bring meaning to the effect of the newly introduced Weekday overtime. 

From exhibits 3 and 4 the court can infer that provisions regarding overtime in exhibit K were varied at some point in time so cannot be a point of reference anymore. Following the variation which appeared to have been agreed by the parties, Plaintiffs discovered about three months after its implementation that the new rates of overtime did not favour them and proposed that they revert to the 2.0 rate for Saturdays. It was held in Ackah v Pergah Transport Limited and Others [2010] SCGLR 728 that it is a basic principle of the law on evidence that a party who bears the burden of proof is to produce the required evidence of the facts in issue that has the quality of credibility short of which his claim may fail. 

The method of producing evidence is varied and it includes the testimonies of the party and material witnesses, admissible hearsay, documentary and things(often described as real evidence), without which the party might not succeed to establish the requisite degree of credibility concerning a fact in the mind of the court or tribunal of fact such as a jury. It is trite law that matters that are capable of proof must be proved by producing sufficient evidence so that on all the evidence a reasonable mind could conclude that the existence of the fact is more reasonable than its non-existence. This is a requirement of the law on evidence under sections 10 and 11 of the Evidence Decree. There is no evidence before the court to suggest that the condition of service was varied consequently to that effect. In the light of the above Plaintiffs have not discharged that burden of proof they assumed when they asserted that they are owed overtime payments. 

Plaintiffs are also claiming for outstanding leave allowances and travelling expenses (T and T) as provided for under the Defendant’s own conditions of service put in place since June, 2005 but which have remained unpaid since the 1st day of January, 2006. PW2 testified thus: 

Q Take a look at these documents what are you holding in your hands tell the court. 

A My Lord these are my payslips (exhibits EE, EE1 – EE10) 

Q What do they show 

A My Lord on my pay slips I have leave allowance, the T and T allowance, the weekday night allowance, weeknight duty allowance, weekday overtime allowance, my basic salary 

Q Now can you tell the court apart from the testimony you’ve given in this matter any other matter you want to testify in respect of this suit. 

A Yes my Lord we also have the leave and transport allowance to take. My Lord since 2006 the Defendant decided to stop paying us T and T allowance for leave. My Lord since 2006 it was 2010 before the Defendant restored the T&T leave. 

Q So it is between 2006 – 2009 that you are making this claim A Yes My Lord 

The exhibit EE series are pay slips of DW2 from January 2005 to December 2005 showing payments of both leave and T&T allowances. Leave allowances were paid in January and October 2005 whilst T&T allowances were paid each month of the year. Pay slips not showing payments of these allowances under the relevant period were not tendered to show that during 2006 to 2009 these allowances were not paid. Contrary to the assertion that Plaintiffs were not paid these allowances between 2006 and 2009, exhibit AJ which is DW2’s pay slip for June 2008 showed that transport allowance was paid him. In a suit where plaintiffs are several, each bears the burden to prove their respective claims. In the instant case Plaintiffs have not convinced the court that under the relevant period Defendant failed to pay them leave and T&T allowances. In Barima Gyamfi v Ama Badu [1963] 2 GLR 596 SC it was held that ‘in a claim made by a plaintiff, there is no onus on the defendant to disprove the claim ..... The evidence of the defence only becomes important if it can upset the balance of probabilities which the plaintiffs evidence might have created in the plaintiff's favour or if it tends to corroborate the plaintiff's evidence or tends to show that evidence led on behalf of the plaintiff was true.’ Plaintiffs have failed to prove their claim for T&T and leave allowances for the period 2006 to 2009. 

Plaintiffs averred that in spite of the provisions in the conditions of service, the defendant never paid the 1st plaintiff’s members who are entitled to night allowance, same, until sometime in or about June 2009 and to date the outstanding payments in respect of these night allowances due the 1st plaintiff’s members from January, 2006 to May, 2009 remain unpaid hence Plaintiffs claim for outstanding night allowances. In this regard DW2 testified thus: 

Q Can you tell the court you are also talking about weekend night allowance 

A My Lord for the night allowances some of us were paid except the security staffs who were not paid night allowance. They started paying the security night allowance in 2010. 

Q So before 2010 the Defendant had not paid any of these allowances to the security personnel. 

A Yes My Lord 

"As a rule, the onus of proof lies upon the party who has in his pleading maintained the affirmative of the issue; for a negative is usually incapable of proof. The affirmative is generally, but not necessarily, maintained by the party who first raises the issue . . . But the burden frequently shifts, as the case proceeds, from the person on whom it rested at first to his opponent. This occurs whenever a prima facie case has been established on any issue of fact or whenever a rebuttable presumption of law has arisen. . . .In a civil case, the question on whom does the burden of proof rest, depends upon the pleadings. At the beginning of the case the test is this: Which party would be unsuccessful if no evidence were given on either side? (Amos v. Huges, 1 M. and Rob. 464; Cockle 125). And if at any stage of the action a question arises as to the party on whom should rest the burden of proving any particular allegation, the test is, Which party would fail if the allegation in question were struck out of the pleading? (Mills v. Barber, 1 M. and W. 427). The issue must be proved by the party who alleges the affirmative in substance, and not merely the affirmative in form." (see Bank of West Africa Ltd v Ackun [1963] 1 GLR 176-182 SC). Applying these principles, in my view the onus lies on Plaintiffs to prove the debt in terms of unpaid night and travelling allowances they are alleging. It is only when they have established a prima facie case that “x” amount of money is owed this plaintiff who worked for “x” amount of nights under the relevant period can the burden shift to Defendants. The Plaintiffs have not discharged the burden of persuasion when they alleged they were owed these allowances and same must fail. 

Plaintiffs averred that under the conditions of service exhibit K, 1st Plaintiff’s members who qualified for long service award ought to be given the awards. The conditions of service provides that long service award shall be granted to serving employees who have attained the required number of years in manners stipulated therein. 1st Defendant concedes that long service award has never been paid and that same had been waived by 1st Plaintiff’s members. Plaintiffs rely on section 105 of the Labour Act, 2003 (Act 651) in their submission that it was not legally possible to waive any rights conferred on them by exhibit K, the conditions of service. Section 105 (4) of Act 651 provides as follows: 

The rights conferred on a worker by a collective agreement shall not be waived by the worker and, if there is any conflict between the terms of a collective agreement and the terms of any contract not contained in the collective agreement, the collective agreement shall prevail unless the terms of the contract are more favourable to the worker; and it is immaterial whether or not the contract was concluded before the collective agreement. (emphasis added). 

The right being protected here is one conferred by a collective agreement and not just any agreement. The issue here is whether or not exhibit K is a collective agreement? Section 96 of Act 651 is instructive on what is a collective agreement and provides that “... a collective agreement relating to the terms and conditions of employment of workers, may be concluded between one or more trade unions on one hand and representatives of one or more employers or employers' organisations on the other hand.” Essentially a collective agreement is terms and conditions of service regarding the employment relationship which have been concluded by negotiation between trade unions acting for their members on the one hand and employers or employers organizations or association on the other hand. The ingredients of a collective agreement do not fit exhibit K. Article 1 of exhibit K states who the parties to it are namely CTS Group of companies called the company on the one hand and the employees of the company on the other hand. Exhibit K is executed by the Managing Director, General Manager Personnel/Admin and representative of workers. It is purely an agreement between employer and employee and not one negotiated with the inputs of a trade union and employers or its organization. Section 105 of Act 651 is thus not applicable. That notwithstanding, which of the Plaintiffs are owed long service award. Article 13(15) of exhibit K provides that: 

The Company shall grant long service award to serving employees as follows: 

a. Employees with ten (10) years Company Service – 1 month basic salary plus Table top fridge 

b. Employees with fifteen (15) years Company Service - 1 ½ months basic salary plus 20” Colour T. V, Set 

c. Employees with twenty (20) years Company Service - 2 months basic salary plus deep freezer 

d. Employees with twenty-five (25) years Company Service - 2 ½ months basic salary plus 50 bags of cement 

e. Employees with thirty (30) years Company Service - 3 months basic salary plus 2 bundles of roofing sheets. 

Plaintiffs did not indicate who was eligible for the long service award and for which of the categories. The court will hold that they have not establish any prima facie case in this regard thus they have failed to discharge the burden which they assumed when they made the said claim.

1st Plaintiff alleged that its members also worked for and continue to work for the Defendant on Saturdays, Sundays and Public Holidays but the Defendant pays the 1st plaintiff’s members for such work at rates far lower than that stipulated under the conditions of service. I believe it is for these reasons that Plaintiffs are claiming salary arrears among others which have been dealt with already. Plaintiffs also alleged that defendant actually abused the 1st plaintiff’s members’ economic rights as guaranteed by article 24 of the 1992 Constitution and the defendant ought to be made to pay compensation to the 1st plaintiff’s members for its abuse of the plaintiff’s economic rights. Consequently Plaintiffs per their relief 8 claimed compensation for the defendant’s abuse of the economic rights of the 1st plaintiff’s members guaranteed under the 1992 Constitution of the Republic of Ghana. Article 24 of the 1992 Constitution provides as follows: 

Article 24—Economic Right. 

(1) Every person has the right to work under satisfactory, safe and healthy conditions, and shall receive equal pay for equal work without distinction of any kind. 

(2) Every worker shall be assured of rest, leisure and reasonable limitation of working hours and periods of holidays with pay, as well as remuneration for public holidays. 

(3) Every worker has a right to form or join a trade union of his choice for the promotion and protection of his economic and social interests. (4) Restrictions shall not be placed on the exercise of the right conferred by clause (3) of this article except restrictions prescribed by law and reasonably necessary in the interest of national security or public order or for the protection of the rights and freedoms of others. 

In respect of this relief it is not clear which of the subsections of article 24 was breached by Defendants. Learned Counsel for Plaintiffs submitted that the defendants’ treatment of the plaintiffs amounted to a violation of the economic rights of the plaintiffs guaranteed under the 1992 Constitution. He elaborated by submitting that the defendants refused to pay the plaintiffs the remuneration commensurate with the work the plaintiffs performed by denying the plaintiffs the entitlements and allowances due them. The only sub section of article 24 of the 1992 Constitution which deals with pay is subsection one (1) which stipulates that every person has the right to work under satisfactory, safe and healthy conditions, and shall receive equal pay for equal work without distinction of any kind. The reference to pay is equal pay for equal work done. It has not been demonstrated that some plaintiffs did the same work with others yet they were paid less than the others. It was also not demonstrated that plaintiffs worked in unsafe, unsatisfactory and unhealthy conditions. It is trite law that a bare assertion by a party of his pleadings in the witness box without proof did not shift the evidential burden onto the other party. (see Sebastian Dzaisu and 92 ors v Ghana Breweries Ltd CIVIL APPEAL NO. J4/29/2007 28TH MAY 2008). The facts upon which the law can be applied in this circumstance do not exist. 

1st Plaintiff averred that 1st Defendant is a limited liability company belonging to a group of companies that was called the Carl Tiedemann Stevedoring (GH) Ltd (CTS) but since year 2009 is now known as Safebond Africa Limited. It further alleged that Safebond Africa Limited is a holding company and consists of strategic business units including Carl Tiedemann Stevedoring (GH) Ltd, Safebond Company Ltd, Safebond Car Terminal Ltd, Safebond Logistics Ltd and others; an assertion which was denied by Defendants thereby the onus of proof resting on Plaintiffs. In proof thereof Plaintiffs tendered exhibits H and J. Exhibit H is an A4 size sheet with information about 2nd Defendant as a holding company consisting of carefully selected business units including 1st Defendant. Exhibit H is a search report on 2nd Defendant from the Registrar-General’s Department dated 13th July 2009. The search revealed that 2nd Defendant was incorporated on 11th February 2009 and commenced business on 12th February 2009. Its directors were shown to be Krobo Edusei JNR, Newton Brenya and Isaac Kodom, Beatrice Ampomah Asiedu as secretary and Isaac Kodom as sole shareholder. There is nothing in exhibit J to show that 1st Defendant metamorphosed into 2nd Defendant. The source of the information in exhibit H is unknown and therefore can not be relied upon to make a finding of fact. Plaintiffs further tendered exhibits AK, AK1 to AK3 which are complimentary cards which have logos of what appear as several companies including 1st and 2nd Defendants’. These in themselves are not conclusive that 1st Defendant is a subsidiary of 2nd Defendant. The first schedule to the Companies Code, 1963 (Act 179) defines what a subsidiary and holding company is as follows: 

"subsidiary" and "holding company"  

A body corporate shall be the subsidiary of another and that other shall be its holding company if,

(a) that other body corporate by the exercise of some power directly or indirectly vested in it, whether by virtue of the beneficial ownership of shares or otherwise, can appoint or remove or procure the appointment or removal of all or not less than half of its directors for the time being or can prevent the appointment or removal of all or not less than half of its directors: 

Provided that, 

(i) a power exercisable in a fiduciary capacity for another person shall be treated as exercisable by that other and not by the fiduciary;

(ii) a power exercisable by virtue of shares held by way of security only for the purpose of a transaction entered into in the ordinary course of business of that other body corporate shall be disregarded; (iii) a body corporate shall be deemed to have power to appoint a director of another body corporate if any person's appointment as director of that other body corporate necessarily follows from his appointment as director or other officer of that first named body corporate; or 

(b) it is a subsidiary of any body corporate which is that other's subsidiary. 

The evidence adduced before the court do not show that some power has been invested in 2nd Defendant to appoint and or remove directors of 1st Defendant; in other words control 1st Defendant to put it in a subsidiary position. Plaintiffs have been unable to discharge the burden they assumed when they made that assertion. 

Whether the defendant ought to be ordered to negotiate and execute forthwith a collective bargaining agreement with the 1st plaintiff? Plaintiffs averred that since the date the 1st plaintiff acquired the collective bargaining certificate covering the defendant’s employees who are its members, the 1st plaintiff has through various representations, by letters, memoranda and oral requests at meetings, demanded that the defendant negotiate and execute a collective bargaining agreement with the 1st plaintiff to cover the remaining plaintiffs herein but the defendant has refused to do so. 1st Plaintiff states that it even submitted a draft collective bargaining agreement to the defendant as far back as on or about 19 April, 2010 following meetings with the defendant but the defendant has still refused to negotiate and execute a collective bargaining agreement with the 1st plaintiff to cover the 1st plaintiff’s members. These assertions were echoed in the testimony of PW1 and supported by evidence placed before the court. Defendant, however, contended that the inability of the parties to negotiate a collective bargaining agreement stemmed from the fact that 1st Plaintiff did not have the mandate to negotiate and was embroiled in a tussle with another trade union of Defendant at the National Labour Commission. These assertions by Defendant were admitted by PW1 in cross examination. The finding is that parties have not negotiated a CBA. The records do not however show that 1st Plaintiff served notice on 1st Defendant requiring it to enter into negotiation to negotiate the collective bargaining agreement; instead the evidence show that 1st Plaintiff per exhibit P, sent letter dated 19th April 2010 to 1st Defendant as follows: 

Dear Sir 

PROPOSED COLLECTIVE BARGAINING AGREEMENT (CBA) 

In line with consolidating and sanctifying our employment relationship as required by the Labour Act 2003, (Act 651) and having been appointed by the Chief Labour Officer as the Representative of Workers within your establishment, we put forward a proposed CBA for your consideration and acceptance. 

We anticipate your due acceptance and soonest response to allow us have a working CBA to guide our relationship. 

The invitation was to consider and accept exhibit P; there is no evidence of notice to negotiate served on 1st Defendant placed before the court as provided by the Labour Act. The position of the law is that where a party on whom a notice is served to negotiate does not within fourteen days after service of the notice take any steps to enter into negotiations, the National Labour Commission shall direct the party to enter into negotiations immediately, and the party shall comply with the directive. (see sections 102 (2), 103 (2) and 104 of Act 651). The legislature has in its wisdom provided in mandatory terms the procedure to follow when there is a failure to negotiate and in my view these provisions must necessarily be honoured in their observance. The court will therefore not order 1st Defendant to negotiate and execute forthwith a collective bargaining agreement with the 1st plaintiff. Parties may comply with the relevant provisions of the Labour Act regarding negotiation if they so desire. In the light of the above and in conclusion, Plaintiffs are not entitled to their claim and same is dismissed in its entirety. There will be no order as to cost as same was waived. 

(SGD) 

Justice Gifty Dekyem (Mrs) 

Justice of the High Court, Labour Court 1, Accra 

COUNSEL

Albert Adaare ESQ for Plaintiffs

D K Ameley for with him Desmond Nii Adamah Sackey Defendants