Justification For The Payment Of Book And Research (B&R) Allowance To POTAG

1.0. INTRODUCTION. 1.1 The Book and Research allowances are two separate allowances paid primarily to Teaching staff in Tertiary and analogous institutions. With regard to Polytechnics, it commenced in June 2006, when Government and the Polytechnic Teachers� Association of Ghana ( POTAG) signed onto a collective agreement as part of their conditions of service. As a condition of service, article seven (7), with the heading: Resolution of Trade Dispute spells out the procedure for resolving any dispute that might arise. It reads: �In the event of a trade dispute the employer and the Employee shall attempt to resolve it in the spirit of the preamble of this document.� The Book and Research allowances have been in place since 2006 until government unilaterally decided in 2014 to scrap it and replace it with a National Research and Innovation Fund (NRIF). It is important to note that the Labour Act 2003, (Act 651) states clearly how the conditions of service of an employee may be reviewed when the need arises. It is, therefore, strange, unlawful and ultra vires for government and for that matter the ministry of education to singularly vary POTAG�s conditions of service without recourse to the position of the law. It is a huge error for the ministry of education to equate developmental research to instructional research. These are completely different as developmental research aims at exploring alternative ways to solve a particular problem to bring about development, whilst instructional research involves inter alia the basic preparation a lecturer undertakes to discover further insights on a given subject matter before going to the lecture hall to teach. The outcomes of some of the instructional research conducted by lecturers are published as contribution to existing perspectives, and to stimulate further research in academia. This research activity may involve consulting books, documents, journals and a myriad of reading materials before teaching takes place. Therefore, the B&R allowances are not necessarily for developmental research which seems to be the nature and main focus of the NRIF. 1.2. OBJECTIVES OF THE BOOK AND RESEARCH ALLOWANCE. The Book and Research allowance constitute part of the tools, equipment, machinery or learning materials that is to aid the Lecturer in performing his or her day-to-day activities as a teachers. Therefore, its basic purpose is not necessarily to aid or help the Lecturer to conduct publishable or developmental research. Although at some material moment the lecturer can use it to pay publication fees for research work, it is basically considered as a tool to help in the acquisition of instructive knowledge. Therefore, it is out of context for someone to suggest that the B&R allowance is purely for publishable research activity. That kind of interpretation amounts to a complete misrepresentation and mis-education, because all other working environments per their peculiar nature are assigned specific allowances. The Book and Research allowance is also an allowance paid to the POTAG members to help them to execute their work as teachers of the Polytechnics. 2.0 CONCEPTUAL FRAMEWORK. 2.1 THE BOOK AND RESEARCH AND NATIONAL RESEARCH AND INNOVATION FUND (NRIF) COMPARED. The Book and Research allowance as has been stated above is a negotiated condition of service or an accrued right by the Polytechnic Lecturer, and commenced in June 2006, while the National Research and Innovation Fund is entirely new , a unilateral effort by the Ministry of education, and government first talked about in the year 2013. The NRIF looks more or less like a policy decision if Government has already started its implementation, or it is a policy proposal if it is now being proposed and is awaiting acceptance and implementation. It would, therefore, be a mistake and a misunderstanding of facts if Government intends to replace the Book and Research allowance with the NRIF , since the two are not the same. One is a condition of service and the other is a Government policy directive awaiting implementation. As has been stated the purpose of the two are not the same. Whereas the Book and Research allowance is purposely a condition of service and a tool, material or machinery to aid POTAG members in the execution of their work as Teachers or Lecturers, the NRIF is purely a fund set up by Government purposely for research and developmental activities of the Nation from which people from Academia , Research and Scientific Institutions, Journalists, Lecturers, Medical Practitioners, Lawyers , Judges etc. can access for such purposes. Therefore, the Book and Research allowance can be seen as occupation related allowance to lecturers only and NRIF is open to all occupations once they intend to carry out any research for the development of the nation. 2.2. POTAG�S POSITION ON THE NATIONAL RESEARCH AND INNOVATION FUND (NRIF) The Polytechnic Teachers� Association of Ghana has stated in unequivocal and emphatic terms , that they are not against the NRIF and that it is a laudable idea and POTAG is in full support if Government intends setting up a research fund. As it is done in other jurisdictions, such funds are in existence and people from all walks of life including academia can access for developmental research. So if Government can guarantee sustainable financial commitment to the Fund that would be a plus for the Government to implement. Government can even appeal to corporate Ghana to contribute to such a wonderful idea/fund, and that would broaden the fund�s base and a go a long way to sustain it. Government can also source for external funding for a start to compliment her efforts. POTAG believes the NRIF is a policy decision by Government which should do all it takes to obtain funding before implementation to ensure its sustainability. 2.3. JUSTIFICATION FOR THE PAYMENT OF THE BOOK AND RESEARCH ALLOWANCE ; THE POSITION OF THE LAW ( JUNE 2006 CONDITION OF SERVICE AND THE LABOUR ACT 2003 ( {ACT 651} ). The Book and Research allowance which is the subject of debate as to whether Government can scrap and replace with NRIF became part of POTAG members conditions of service signed in June 2006 between the employer represented by Council Chairmen of all the ten Polytechnics in Ghana on one hand and Executives of POTAG of the ten Polytechnics on the other. It is important to note that one of the signatories to the conditions of service referred to in this paper who represented Government as the employer was the Council Chairman of Takoradi Polytechnic in the year 2006. This personality is now the Chairman of the NRIF in what seems like a clear contradiction and a breach of contract is that, since he signed the 2006 POTAG conditions of service on behalf of Government, which preamble makes the document binding on all the parties,(in this case POTAG and Government), he also the Chair of the NRIF Committee which seeks to replace the agreed and binding Book and Research allowance. Article seven (7.0) of the 2006 conditions of service provides for resolution of trade dispute and reads: �In the event of a trade dispute the employer shall attempt to resolve it in the spirit of the preamble of this agreement.� Paragraph two (2) of the preamble affirms the provision on section seven (7.0) as it reads: � Whereas the contracting parties are committed to and hereby bind themselves to actively co-operate and resolve all problems affecting their relationship in a spirit of mutual accommodation, trust, respect and understanding : and whereas the parties hereto affirm and commit themselves to employing their best endeavors to encourage and ensure the fair prompt settlement of all matters and disputes which may arise under the terms and conditions of this agreement.� It is my belief and POTAG�s also, that none of these principles were applied in the decision to scrap the Book and Research allowance, and that due consideration was not accorded the provisions in the conditions of service above. The Book and Research allowance is emphatic and obligatory on the part of the employer to comply with as contained in section eleven (11.0) of the conditions of service. Article 11.0 states, �The Polytechnic shall pay allowances ( Refer to Appendix 1) to employee�s as follows : responsibility allowance, entertainment allowance , extra teaching allowance etc.� Article 11 (14) and (15) refer the Book and research allowance respectively. The provision in this article make these allowances appear as implements, tool, machinery and equipment that would aid the Polytechnic Lecturer to carry out his duties as a Lecturer in a Tertiary Institution. The provision in article (11) is strengthened by section 9 (a) and (b) of the Labour Act 2003, (Act 651). Section 9 of the Labour Act 2003, (Act 651) reads; �without prejudice to the provisions of this Act and any other enactment for the time being in force , in any contract of employment or collective agreement , the duties of an employer include the duty to: a. Provide work and appropriate raw materials, machinery, equipment and tools; b. Pay the agreed remuneration at the time and place agreed on in the contract of employment or collective agreement or by custom without any deduction except deduction permitted by Law or agreed between the employer and the worker. These two provisions, I believe, make the Book and Research allowance a tool to aid the Lecturer to perform the day-to-day duties, and any decision to vary it must be done with the agreement of both parties, the employer (government) and the employee (POTAG) and not a unilateral decision by one party, as has been done by Government to replace the Book and Research allowance with the NRIF. In fact, this allowance should be seen and treated as an accrued right of the worker (POTAG member). It will be worthy of note that there are other provisions in the Labour Act 2003, (Act 651), that support the payment of the of the Book and Research allowance until there is a possible variation by both parties. The first of such provisions is section 69 of Act 651 , and sub �section 2(b) of this section reads; � An employer shall not deduct from remuneration due to a worker , any amount whatsoever, unless the deduction is permitted by section 70 or by any other Law or is by way of repayment of an advance of remuneration Lawfully made by the employer to the worker.� Section (70), sub-section 1(a) to (f) relates to permitted deductions, and reads: an employer may, with the consent of the worker, make any of the following deductions from the remuneration of the worker: a. Any amount due from the worker in respect of contribution to any provident, pension, or other fund or scheme agreed by the worker; b. Any financial facility advanced by the employer to the worker at the written request of the worker or any facility guaranteed by the employer to the worker; c. Any amount paid to the worker in error, as remuneration, in excess of what the worker is legitimately entitled to, from the employer; d. On the written authority of the worker, any amount due from the worker as membership fee or contribution to an organization of which the worker is a member e. For meeting any loss suffered by the employer as a result of the loss of, or damage to, any property or thing used in connection with, or produced by, the employer�s business and which is under the control of the worker f. Any deduction in compliance with an order made by the commission. I do not believe the B&R allowance can fall under any of the provisions of section 70, subsection 1 (a) to (f), in order for government to scrap or cancel it. Again section 105 of Act 651 relates to the effect of collective agreement and section 105 sub- section two (2) reads: � The provisions of a collective agreement concerning the terms of employment and termination of employment , and personal obligations imposed on, and rights granted to, a worker or employer shall be regarded as terms of a contract of employment between each worker to whom the provisions apply and his or her employer.� The sub-section three (3) of section 105 of Act 651 says � Any provisions that have effect as terms of contract of employment under sub-section (2) , shall continue to have effect after the expiration of the collective agreement , so long as they have not been varied by agreement of the parties or in pursuance of this Act� . Section 107,sub-section (3) also reinforces section 105 (3) and reads: � Where no notice is given under sub-section ( 2) by either party within thirty days after the expiration of a collective agreement ,the collective agreement shall be deemed to have continued in force until rescinded by the parties�. Both section 105 (3) and 107 (3) of Act 651 buttress the point that since POTAG�s 2006 conditions of service was due for review in 2008, but was not, it is deemed to have continued since both parties did not rescind it. 3.0 WHY POTAG REJECTED THE 23RD JULY 2014 MEMORANDUM OF UNDERSTANDING BETWEEN GOVERNMENT AND POTAG, ON THE PAYMENT OF THE 2013/2014 B&R ALLOWANCE. 3.1 At a meeting held on Monday, 22nd July 2014 between the Parliamentary Select Committee on Education and the Executives of POTAG on the protracted strike action by POTAG, the following were resolved: That the Ministry of Education, the Ministry of Finance, the Fair Wages and Salaries Commission, the National Council for Tertiary Education and POTAG sign a joint Memorandum of Understanding(MOU) containing the following; 1. That the arrears for the B&R allowance for the year 2013/2014 academic year be paid as a matter of urgency. 2. That POTAG calls off the strike action upon approval of the amount for disbursement to its members. 3. That notwithstanding anything to the contrary, the payment of the B&R allowance be made within one month. 4. That leadership of the Parliamentary Select Committee on Education(PSCE) undertakes to facilitate the early disbursement of the approved amount. 5. That POTAG fully participates in all subsequent discussions/negotiations relating to the Book and Research Allowance. This resolution was made and signed by the POTAG national President and the chairman of the PSCE with the view of signing a memorandum of understanding with government to end the strike and its associated problems. To the surprise of POTAG the ministry of education brought a memorandum of understanding that contains entirely different contents as was contained in the agreed resolution above. In what seemed like the Ministry of Education not ready to end this impasse, brought an MOU that read; �The Ministry of Education today, 23rd of July 2014 convened a meeting at the Ministry of Education with the Polytechnic Teachers� Association of Ghana (POTAG) under the auspices of the Minister of Employment and Labour Relations, Ministry of Finance, National Council for Tertiary Education, Chairman of the Education Committee of Parliament and the Fair Wages and Salaries Commission to discuss the way forward on the Book and Research Allowance and the National Research Fund. Government resolved to pay the Book and Research Allowance under the existing arrangement for 2013/2014 Academic Year with an agreement to reopen discussions on the operationalization of the National Research Fund for the 2014/2015 Academic Year and beyond. All parties resolved to ensure that payment of the 2013/2014 Book and Allowance is made within the next sixty days.� This MOU, POTAG saw as a complete departure from the resolution reached with the PSCE, especially paragraph 2, which seems to suggest POTAG has agreed to the implementation of the Research Fund and the scraping of the B&R, which we have stated over and over that it is a condition of service. As a result of this, and the Ministry of Education�s intransigence on their position, POTAG rejected the MOU. 4.0 CONCLUSION. In conclusion, it must be stated that the Book and Research allowance is an accrued right of POTAG members as legitimately contained in the POTAG�s 2006 conditions of service document, article 11 (14) and (15). It is also supported by the Labour Act 2003, (Act 651). Sections 9 (a) and (b), section 69 (b) and 70 (a) to (f), as well as sections 105 (2) and (3) and 107 (3), all support POTAG�s argument. The Labour Commission must therefore abide by the Labour Act 2003, Act 651 and enforce its powers and functions of independence under section 138 of the Act, especially section 138 (a), (b) and (c). These include: a. To facilitate the settlement of industrial disputes; b. To settle industrial disputes; and most importantly section 138(c), which reads; c. To investigate Labour related complaints, in particular unfair Labour practices and take steps as it considers necessary to prevent Labour disputes. I believe if the Labour Commission had activated its functions under section 138 (c), of Act 651, Government would have been advised appropriately on their decision to scrap the Book and Research allowance and replace with the NRIF. It is also worth mentioning, that Government and for that matter the Ministry of Education should stop ridiculing itself by meddling in the review and negotiation of the conditions of service and allowances of its employees, as it has no locus to do so. The Ministry of Education should allow or task the Fair Wages and Salaries Commission (FWSC) which is the mandated state agency to negotiate salaries and allowances if Government believes there is the need to vary POTAG�s conditions of service. Furthermore, the payment of the 2013/2014 Book and Research allowance should not be conditioned on any agreement or policy as was contained in the rejected 23rd July,2014 memorandum of understanding between the Ministry of Education and POTAG on the road map for payment of the 2013/2014 Book and Research allowance. This is because the above academic year has ended and work has already been executed, therefore any policy conditioning its payment would amount to ex-post-facto Legislation, in other words, legislating to take a retrospective effect. Finally, POTAG�S position is further enhanced with reference to an article in the 1992 Constitution of Ghana. That is, Article 71 of the 1992 Constitution of Ghana relates to determination of certain emoluments; however section 3 of article 71 strengthens POTAG�s position on the payment of Book and Research allowance. It states �For the purposes of this article, and except as otherwise provided in this constitution, �Salaries, includes allowances, facilities and privileges and retiring benefits or awards�. If this provision of article 71, subsection 3 of the 1992 constitution is anything to go by, then it stands to reason that the Book and Research allowance is part of POTAG members salary and any attempt to scrap it would be tantamount to a �pay-cut� which would be against Fair Labour practice. APPIAH, ASARE M. POTAG PRESIDENT, TAKORADI POLYTECHNIC. JULY 2014.