The Supreme Court yesterday ruled that workers of the Customs, Excise and Preventive Service (CEPS) cannot be part of organised labour.
In a 3-2 majority decision, the court ruled that CEPS was a very sensitive institution whose functions were similar to those of other security agencies and for that matter its workers could not be allowed to form a union.
Recounting the more-than-a-decade-old struggle of CEPS workers to form a union, the court said, "The time is ripe for us to take a bold decision to recognise CEPS, as a security agency."
The court was giving its ruling in the matter in which the management of CEPS had prayed the court to rule that the portion of the Labour Act 2003 (Act 651) which gave workers the mandate to form or belong to a union was inconsistent with the 1992 Constitution.
The portion which was challenged by CEPS was Section 1 of the Labour Act 2003 (Act 651), which says, "This act applies to all workers and to all employers, except the Armed Forces, the Police Service, the Prison Service and the security and intelligence agencies specified under the Security and Intelligence Agencies Act 1996 (Act 526)."
Affected parties in the suit were the National Labour Commission (NLC) and the Public Services Workers Union (PSWU) of the Trades Union Congress (TUC), who had argued that Section 10 of the Security and Intelligence Agencies and the laws governing CEPS clearly did not mention CEPS as a security agency.
Messrs Justice Julius Ansah, Justice Jones Dotse and Justice Annin Yeboah upheld the position of the management of CEPS and argued that the Commissioner of CEPS, who is appointed by the President, is a member of the National Security Council, as stipulated under Article 83 (I) (j) of the 1992 Constitution.
They further argued that Article 84 (a) mentioned the functions of the National Security as including "considering and taking appropriate measures to safeguard the internal and external security of Ghana", among many other sensitive and important duties.
They said the inclusion of CEPS as a union in the Labour Act was inconsistent and contravened the Security and Intelligence Agencies Act, as well as Articles 24 (4),83 (1) (j) and 84 (a) of the 1992 Constitution.
They, therefore, said although Article 2.(3) of the 1992 Constitution gave every worker the right to form or join a trade union, Article 24 (4) of the Constitution restricted those rights in the interest of national society or public order or for the protection of the rights and freedoms of others.
Reading the court's decision on behalf of his colleagues, Mr Justice Dotse said the powers of CEPS workers were extensive and they included collecting revenue, taxes, penalties, as well as the power to handle weapons; arrest aircraft, ships, vehicles, stop smuggling, among others.
He said it was the role of the Supreme Court to interpret what constituted national security under the Constitution and for that matter upon a true and proper interpretation of the Constitution, it was false for the NLC to state that CEPS did not fall under security agencies.
Citing authorities to buttress its point, the court held that sanctions applied under CEPS regulations were in consonance with other security agencies such as the Ghana Armed Forces, the Ghana Police Service, among others.
"The Supreme Court has jurisdiction to exercise its Judicial power and cannot act in a straight jacket,” it said adding that it was the duty of the Supreme Court to shape the Constitution and the legal development of the country.
Dissenting, Mr Justice William Atuguba and Mrs Justice Sophia Adinyira held that the Labour Act applied to CEPS and for that reason workers of CEPS had the right to form or join a union.
They further argued that the fundamental human rights of CEPS workers to join or form a union would be denied if they were not allowed to unionise, adding that the fact that the Commissioner of CEPS was a member of the National Security Council did not automatically envelop all CEPS workers under the security agencies.
According to them, CEPS was considered a revenue agency, just as the Internal Revenue Service (IRS) and the Value Added Tax (VAT) Service.
They argued that it was the duty of the Supreme Court to assume the role of the Legislature and the Executive who had as yet not included CEPS among the security agencies.
In August 2007 the Accra Fast Track High Court referred the matter to the Supreme Court for interpretation.
The CEPS had been dragged to the court by the NLC to compel CEPS to convene negotiations with the PSWU on the issue of unionisation.
The service then filed an application challenging the inherent jurisdiction of the High Court to hear the matter, after which the court referred the matter to the Supreme Court.