FACULTY OF LAW AND POLITICAL SCIENCE

DEPARTMENT OF LAW

LABOUR LAW I (KLW 237)

FELIX ANTWI OPPONG

QUESTION:

Commenting on the provisions of Article 24(3) of the Constitution of Ghana, 1992 in the

popular case of CEPS VRS. NLC [2009] SCGLR 530, His Lordship Dotse JSC stated, after

citing the provisions that, ‘‘…this means that every worker in Ghana has the unfettered right

of choice to affiliate or join any trade union in pursuit of his or her economic or social rights.

What this means is that the provision in Article 24(4) admits of the guarantee of the worker’s

right to form and join any trade union of his choice in pursuit of his economic or social

rights….’’.

In light of the above decision and other relevant decided cases and/or specific constitutional

provisions, to what extent has the Constitution of Ghana, 1992 safeguarded Workers’ Rights

in Ghana.
SUBMISSION:

INTRODUCTION:

The Constitution of the Republic of Ghana, 1992 has provided for the rights of workers under

many of its Articles. The Constitution however restricts certain classes of workers from

enjoying some of these rights. In Customs Excise & Preventive Service v National Labour

Commission (CEPS v NLC), the Supreme Court was called upon by the Plaintiff to declare

that the Customs, Excise and Preventive Service was one of such agencies to which the

Labour Act, 2003 (Act 651) was not applicable and therefore whose workers are restricted

from enjoying certain rights. In the determination of the issues in CEPS v NLC, the Supreme

Court considered some of the rights guaranteed by the 1992 Constitution especially, the right

of a worker to form or join a trade union under Article 24 (3) and whether by virtue of Article

24 (4), workers of Customs, Excise and Preventive Service were allowed such right as

guaranteed under Article 24 (3).

As mentioned above, there are other rights guaranteed by the 1992 Constitution specifically

to protect workers as well as those rights guaranteed for all persons in Ghana which can be

enjoyed by workers. These rights, as well as other obligations imposed on authorities which

inure to the benefit of workers, shall form the bases of our discussion below albeit interwoven

with relevant case law.

BODY:

Article 12 (1) of the Constitution of the Republic of Ghana, 1992 enjoins all persons in

Ghana, natural and legal and the Executive, Legislature and Judiciary and all other organs of

government and its agencies to respect and uphold the fundamental human rights and

freedoms enshrined in Chapter 5 of the Constitution. The same clause makes the fundamental

human rights and freedoms justiciable. Article 12 (2) of the Constitution entitles every person

in Ghana to the fundamental human rights and freedoms although subject to the respect for
the rights and freedoms of others. These provisions entitle workers also to those fundamental

rights and freedoms guaranteed by the Constitution. Furthermore, a worker may bring an

action against any person violating the rights of the said worker.

One of the many provisions of the Constitution applicable to the worker-employer

relationship is Article 14 (1) which protects personal liberty of all persons so that the only

few conditions whereby a person’s liberty may be curtailed are defined. This means that no

worker may be restricted from enjoying his personal liberty. In Warner v Riddiford where

an employer sought to prevent a worker whose contract the employer had terminated from

leaving until the worker made up for a shortage that had been discovered, the court held that

the worker had been falsely imprisoned.

Article 15 (1) of the 1992 Constitution provides that “The dignity of all persons shall be

inviolable.” This means that a worker must be accorded reasonable respect and shall not be

demeaned to the extent that his human dignity may be said to have been violated. In other

words, employers are not at liberty to maltreat their workers. Severe abuse shall not be

countenanced by the law.

It is provided at Article 16 (1) and (2) that a person shall not be held in slavery or servitude or

be required to perform forced labour. This means that it is unlawful for any contract of

service to make provisions that will render it akin to a contract of servitude. It is well

established that there is no contract of servitude. The court speaking through Adade JSC said

as much in the case Aryee v State Construction Corporation that “It should be noted that a

contract of service is not a contract of servitude…The contract is framed in such a way that

either party may bring it to an end and free himself from the relationship painlessly.”

The provisions under Article 17 of the 1992 Constitution protects against discrimination on

grounds of race, colour, gender, ethnic origin, religion, creed or social or economic status.

This makes it unlawful at the workplace for different treatment to be given to different
persons attributable only or mainly to their respective descriptions by race, place of origin,

political opinions, colour, occupation, religion or creed whereby persons of one description

are subjected to disabilities which persons of the other description are not made subject or are

granted privileges which persons of the other description are not granted. In the National

Labour Commission’s decision In the matter of Senyo Adjabeng v National Investment

Bank, the Commission found that certain acts by the Respondent Bank including reduction in

remuneration of complainant, retrieval of complainants official vehicle and failure to adhere

to the bank’s own human resources policy on queries constituted demotion and ill-treatment

of the complainant and held accordingly that the respondent bank had unfairly terminated the

contract of the complainant. In explaining the provisions under Article 17, Date-Bah JSC in

Nartey v Gati stated thus, “To our mind, it is clear what article 17 does not mean. It certainly

does not mean that every person within the Ghanaian jurisdiction has, or must have, exactly

the same rights as all other persons in the jurisdiction. Such a position is simply not

practicable. Soldiers, policemen, students and judges, for instance, have certain rights that

other persons do not have. The fact that they have such rights does not mean that they are in

breach of article 17. The crucial issue is whether the differentiation in their rights is

justifiable, by reference to an object that is sought to be served by a particular statute,

constitutional provision or some other rule of law. In other words, article 17(1) is not to be

construed in isolation, but as part of article 17. This implies that the equality referred to in

article 17(1) is in effect freedom from unlawful discrimination.” It must be noted that Clause

(4) of Article 17 provides exceptions to the extent that Parliament may enact laws that are

reasonably necessary to address specified situations.

The general fundamental freedoms are guaranteed under Article 21 of the Constitution.

Clause (1) of Article 21 guarantees the right of all persons to freedom of speech; freedom of

thought, conscience and belief; freedom to practise any religion; freedom of assembly;
freedom of association; information; and freedom of movement. Of special import is freedom

of association which is guaranteed under Article 21 (1) (e). The full provision states that all

persons shall have the right to “freedom of association, which shall include freedom to form

or join trade unions or other associations, national and international, for the protection of their

interest”. This fundamental freedom guaranteed under Article 21 (1) (e) also applies to

workers in Ghana and therefore, where a worker forms or joins a trade union, for example,

that worker may not be penalised by his employer. In Opare Yeboah & 8 ors v Barclays

Bank Ghana Limited, the first eight plaintiffs/appellants were employees of the

defendant/respondent and local union executives of the ninth plaintiff/appellant and instituted

an appeal at the Supreme Court following defeats at the court of first instance and at the

Court of Appeal. The facts of the case were that the first eight appellants were dismissed by

the defendant for the reason that the appellants planned, instigated and supported an illegal

action contrary to the Labour Act, 2003 (Act 651) and contrary to the Collective Bargaining

Agreement negotiated between the defendant Bank and its employees. It was argued by the

appellants that their subsequent dismissal by the Company was unlawful. In its judgment the

court held that there was no unlawful dismissal. The appellants had organised an illegal strike

action and it was within the power of the bank to dismiss them especially as the appellants

failed to respond to the notice of dismissal which invited them to proffer explanation. It is

provided at Article 21 (3) that citizens have the right and freedom to form or join political

parties. Therefore it would be unlawful for an employer to penalise a worker for joining or

forming a political party.

Under Article 23, the Constitution enjoins administrative bodies and administrative officials

to act fairly and comply with requirements imposed on them by law. The Article further

makes this right actionable before a court or other tribunal. In Opare Yeboah v Barclays

Bank Ghana Ltd, the Supreme Court stated that Article 23 is referable only to public bodies
and authorities and not applicable to private relationships. This means that Article 23 has to

do with public administration. It attempts to guard against abuse and misuse of public power

and so any worker in the public sector affected by unfair practices may bring an action to

remedy the same.

Article 24 of the Constitution guarantees at Clauses (1) and (2) rights of a worker to work

under satisfactory, safe and healthy conditions; to receive equal pay for equal work without

distinction; to be assured of rest, leisure and reasonable limitation of working hours and

periods of holidays with pay. Article 24 (3) provides that a worker has the right to form or

join a trade union for the promotion and protection of his economic and social interest.

Article 24 (4) provides that unless prescribed by law and reasonably necessary in the interest

of national security or public order, restrictions shall not be placed on the exercise of the right

to form or join a trade union. Articles 24 (4) and 23 (3) were considered in Customs, Excise

and Preventive Services v National Labour Commission where a majority of the Supreme

Court held that in the interest of national security as provided under Article 24 (4) and also

the Security and Intelligence Agencies Act, 1996 (Act 526), the Customs, Excise and

Preventive Service was exempted from the application of the Labour Act, 2003 (Act 651) and

that workers thereof cannot unionise.

Article 27 of the Constitution guarantees special rights for women. It provides at Clause (1)

that special care be afforded mothers during a reasonable period before and after child-birth

during which they shall be accorded paid leave. It further provides at Clause (2) that facilities

shall be provided for the care of children below school-going age to enable women who have

traditional care for children, realise their full potential. At Clause (3), the Article guarantees

for women equal rights to training and promotion without any impediments. Clearly, Article

27 is one which guarantees special rights for working women. And even though Article 17

(1) and (2) do provide in no uncertain terms that all persons are equal before the law and that
a person shall not be discriminated against on grounds inter alia of gender, it appears that

Article 27 was inserted ex abundanti cautela.

The law at Article 28 (1) (d) enjoins Parliament to enact laws, the purpose of which is to

protect children and young persons from physical and moral hazards. It is submitted that this

provision covers working children and young persons too. Clause (2) of Article 28 guarantees

the right of children to be protected from engaging in work that constitutes a threat to their

health, education or development. Article 28 (5) then defines a child in terms of the Article as

a person below the age of eighteen years. We submit that in pursuance of the provisions of

Article 28, the legislature enacted section 58 of the Labour Act, 2003 (Act 651) to give effect

to some of the said provisions.

Chapter 6 of the Constitution is titled The Directive Principles of State Policy. The Articles

under this Chapter, though they do not confer personal rights on individuals create

obligations on the state and other bodies “for the establishment of a just and free society.”

These obligations, if properly performed would inure to the benefit of workers as well as the

general populace. Article 36 (2) under the Directive Principles enjoins the state to take all

necessary steps to establish an economy whose underlying principles are inter alia “the

guarantee of a fair and realistic remuneration for production and productivity in order to

encourage continued production and higher productivity.” Article 36 (10) provides that the

state shall safeguard the health, safety and welfare of all persons in employment. And Article

36 (11) provides that the state shall encourage the participation of workers in the decision-

making process at the workplace. What this means is that the government through its policies

may encourage and or incentivise employers to provide better remuneration and to include

workers in the decision making process. We submit that the minimum wage is one such way

in which the state attempts to ensure employers pay fair and realistic remuneration to

workers.
The Constitution provides special protection to workers in public services at Article 191. It is

provided thereunder that a member of the public services shall not be victimised or

discriminated against for having discharged his duties faithfully in accordance with the

Constitution or punished in any way without just cause. The Constitution provides at Article

190 that the public services include the Civil Service comprising both the central and local

government, the Judicial Service, the Audit Service, the Education Service and others and

public corporations other than those set up as commercial ventures, public services

established by the Constitution and other public services as Parliament may by law prescribe.

The Constitution at Article 296 makes provisions for the exercise of discretionary power. It

enjoins persons or authority wielding discretionary power to do so under a duty to be fair and

candid. It further enjoins that the exercise of such power must be in accordance with due

process of law and not be arbitrary, capricious or biased. Finally, Article 296 provides that

regulations shall be passed under constitutional instruments or statutory instruments which

shall govern the exercise of discretionary power where the person or authority exercising

discretionary power is not a judge or other judicial officer. The provisions under Article 296

allows a worker to challenge any decision by his employer affecting such worker. The Court

in Awuni v West African Examination Council quashed the decision of the Council in

cancelling examination results of the appellants which the Council argued was as a result of

preliminary investigations showing that the appellants had engaged in examination

malpractice. The Court was of the view that by failing to give notice or hearing to those

whose rights were affected by its decision, the Council had breached the rules of natural

justice. In Aboagye v Ghana Commercial Bank, the Court held that the plaintiff should

have been served with proper disciplinary charges and given adequate notice of the date of

hearing as well as be given the opportunity to be heard. The court was of the view that the

fact that the bank’s policy did not include such rules did not relieve the bank from complying
with the rules of natural justice and fair trial. In Aryee v State Construction Corporation,

the court stated that the audi alteram partem rule would have been complied with where a

board wrote to an employee drawing his attention to alleged acts of misconduct and

impropriety and invited a written explanation. However, it must be noted that the provisions

under Article 296 do not derogate from the employer’s right at common law to dismiss a

worker for misconduct. Date-Bah JSC in Laguda v Ghana Commercial Bank said, “Thus,

once there was evidence on record sufficient to justify the conclusion that the plaintiff’s

behaviour amounted to misconduct, the learned Trial Judge did not have to concern himself

with whether there had been compliance with the rules of natural justice, unless there was a

contractual provision to the contrary. From the principle of law quoted above which entitles

an employer to dismiss summarily an employee he considers guilty of serious misconduct,

such as dishonesty, it is evident that the employer is not obliged to set up an investigative

process to give the employee a fair hearing.” It was held in Lever Brothers Ghana Ltd. V

Annan; Lever Brothers Ghana Ltd. V. Dankwa (Consolidated) that, “Since the employer

was entitled to dismiss summarily an employee he considered guilty of grave misconduct

such as dishonesty, he was not obliged to give the employee a fair hearing. What was

required was that when the employee’s dismissal was brought to question in a court of law

the employer’s action could be vindicated.”

We submit that the Constitution has brought together a regime of rights favourable to workers

and duties upon persons and bodies of which workers may take advantage. We submit that

the Constitution has through these provisions safeguarded workers’ rights in Ghana.

CONCLUSION:

The Constitution of the Republic of Ghana, 1992 provides comprehensive protection for the

fundamental human rights and freedoms of workers. These protections are enshrined in

Chapter 5 of the Constitution and are justiciable. The Constitution guarantees workers inter
alia the right to personal liberty, dignity, freedom from slavery and servitude, freedom from

discrimination, freedom of association, freedom to form or join trade unions, and the right to

work under satisfactory, safe and healthy conditions. The Constitution also guarantees special

rights for public officers, working women and children. The state is obligated to take all

necessary steps to establish an economy that provides fair remuneration for workers,

safeguards their health, safety and welfare, and encourages their participation in decision-

making at the workplace. Finally, the Constitution imposes obligations on various individuals

and bodies which may form the basis for action by a worker against that individual or body.

Respectfully Submitted.