Freedom of Association and the Right to Organize Trade Union Activities in Nigeria: An International Perspective ()
1. Introduction
1[1995] 6 NWLR (Pt. 299) 35.
The right to establish or join a trade union is a fundamental human right. Because exercising this freedom is so important, employers are not allowed to obstruct it in any way. As a result, an employer cannot create a union on behalf of its employees, influence its formation, or run its operations. In the case of Anigboro v Sea Trucks Nigeria Ltd1 the Court of Appeal decided that it is critical for employees to have the right to establish or join a trade union and have control over how it functions. According to the court:
It becomes crystal clear that the right to form or join any trade union is exclusively that of the individual citizen and not that of the employer. His employer has no business forming a trade union let alone compelling his workers to join it2.
An employer is not allowed to meddle with a trade union’s internal operations and management. Members of the trade union itself are the only ones who have such right. This freedom is enshrined in Nigeria’s 1999 Constitution, as amended3 and ILO Freedom of Association and Right to Organize Convention, 1948.
International law protects both the right of workers to create trade unions and to organize their activities. This paper examines these rights and the extent to which Nigeria’s 1999 Constitution, as amended, protects them. It also looks at the limitations on the right to organize trade union activities in Nigeria. It further examines the National Industrial Court’s stance in upholding the right of workers to engage in trade union activities with particular focus on the case of NASU v. Vice-Chancellor, University of Agriculture, Abeokuta4.
2. International Standards
2Ibid 62 (Akpabio JCA).
3Constitution of the Federal Republic of Nigeria 1999 as amended (hereinafter simply referred to as “CFRN 1999 as amended”) s 40.
4[2012] 27 NLLR (Pt. 82) 221.
The right to organize is the cornerstone for successful social dialogue (ILO, 1997) and collective bargaining (ILO, 1994) . It is especially recognized by ILO Convention 87 of 1948 (ILO, 1948) and Convention 98 of 1949 (ILO, 1949) . Member states are forbidden by article 8 paragraph 2 from passing laws that might restrict the enjoyment of rights protected by Convention 87. Additionally, article 2 outlined the fundamental principle of “trade union autonomy” (Hendy & Ewing, 2005) . Employees are free to join any trade union they choose, without prior permission, and are only bound by their rules or constitutions.
Convention 98 adds to the concepts established by Convention 87 ( ILO, 1948, No. 87) and safeguards employees from anti-union discrimination in matters relating to their employment ( ILO, 1948 , article 13). Measures intended to make workers’ employment conditional on their decision not to join unions or renounce their membership, or to subject them to dismissal, or to treat them differently due to their union membership or involvement in union operations are forbidden ( ILO, 1948 , article 1). Additionally, it shields workers’ and employers’ groups from each other, as well as their representatives and agents, interfering with their formation, operation or administration ( ILO, 1948 , article 2).
Three, if not four, fundamental trade union rights are said to have been guaranteed by the two Conventions. The right to associate is the first, followed by the right to organize, then the right to bargain collectively and, finally, the right to strike (Ewing & Henry, 2012) . Convention 154 of 981 followed these Conventions (ILO, 1981) , which additionally encourages free and voluntary collective bargaining. Details on how to apply these general standards in particular fields can be found in other ILO Conventions and Recommendations5.
Over time, ILO jurisprudence has aided in elucidating the ideas of freedom of association and the right to organize trade union activities. According to Gernigon, Odero and Guido (2002) the following rights are part of freedom of association:
1) The rights of workers and employers to form and join groups, without discrimination;
2) The right to form and join groups of their own choosing, without requiring permission, both for workers and employers;
3) The right of labour unions and employers’ associations to freely choose their representatives and write their own constitutions and bylaws;
4) The right of employers and labour organizations to establish and join groups of their own choosing without prior permission;
5) The right of employers and labour organizations to establish and join new organizations (Valticos, 1979) 6;
6) The right of employers and labour organizations to protection from any activities that interfere with their creation, management or administration by each other’s organizations or their agents (Gernigon, Odero, & Guido, 2002) .
5See, for example, ILO, Workers’ Representative Convention (No. 135) and Recommendation (No. 143) of 1971; ILO, Rural Workers’ Organizations Convention (No. 141) and Recommendation (No. 149) of 1975; ILO, Labour Relations (Public Service) Convention (No. 151) and Recommendation (No. 159) of 1978.
6In ILO jurisprudence, the term “organization” means any organization of workers (strictly called “trade union” or “workers’ organization”) or organization of Employers (strictly called “employers’ association” or “employers’ organization”) to promote and protect their interests. See N. Valticos, International Labour Law (Springer 1979) 79-85. See Article 10 of the ILO Convention 87 of 1948 on Freedom of Association and Protection of the Right to Organize.
7United Nations Declaration of Human Rights of 1948, article 23, paragraph 4.
8United Nations Covenant on Civil and Political Rights of 1966, article 22, paragraph 1.
9United Nations Covenant on Economic, Social and Cultural Rights of 1966, article 8(1), paragraphs (a) and (b).
The right of employees to organize union activities is also protected by three international human rights treaties that were adopted by the United Nations in 1948 and 1966. The first is the Universal Declaration of Human Rights, which states that workers have the right to create and join a union in order to further their interests7. The second is the International Covenant on Civil and Political Rights, which also emphasizes the freedom to form and join unions8. The third is the International Covenant on Economic, Social and Cultural Rights, which provides detailed guidelines on workers’ freedom to associate, to create and join unions, to take part in collective bargaining and to strike in cases of conflicts of interests9.
The International Labour Organization has emphasized the connection between civil liberties and trade union rights (ILO, 1970a) . Additionally, it has drawn attention to the fact that overall associational freedom, and not just the freedom of industrial association, is important, all of which falls under the umbrella of human rights (ILO, 1947) . It makes the case that only in an atmosphere where civil liberties are preserved can the rights granted to workers and their organizations be realized10, without which legitimate union rights cannot be exercised and workers cannot be protected (ILO, 1992) .
The Committee of Experts claims that when labour union leaders and members are arrested or detained for establishing for trade union activities, albeit momentarily, the tenets of freedom of association are violated (International Labour Conference, 2016) . The ability to exercise one’s right to organize a union is threatened, according to the Committee on ability of Association, by any violation of the fundamental standards outlined in the Universal Declaration of Human Rights11.
In order to emphasize the vital relationship between these two rights, in 1970, the International Labour Conference passed a resolution on trade union rights and civil liberties (ILO, 1997) . It was understood that the idea of trade union rights would be pointless if basic civil liberties were not upheld and that the cornerstone for the rights granted to labour and employers’ organizations must be based on respect for the civil liberties established in the Universal Declaration of Human Rights and the International Covenant on Civil and Political Rights. The significance of civil liberties was emphasized in the exercise of union rights, particularly 1) personal liberty; 2) freedom of thought and speech; 3) freedom of assembly; 4) right to fair trial; and 5) protection of union property rights (ILO, 1997; ILO, 1970b) .
The ILO has also underlined that regardless of the country’s level of development, trade union rights should be upheld, just like other fundamental human rights ( ILO, 1996 , paragraph 41). To uphold this principle, it also considered that that the leaders and members of these organizations must be free from any form of intimidation, coercion or threat in order to exercise their rights as workers’ and employers’ groups ( ILO, 1996 , paragraph 47).
10General Survey (1994) 14, para 25.
11Digest (2006) 13, paras 30-31.
12ILO, Employment Relationship Recommendation, 2006 (No. 198).
The ILO has observed a tendency toward the replacement of traditional work connections with various other types of contracts, especially triangular and disguised employment relationships, to evade the application of labour laws (ILO, 2003) . The International Labor Organization recommends that national policies should, at least, take steps to “fight disguised employment relationships” and uphold standards that apply to all kinds of employment contracts12. In addition, the ILO has urged nations that operate export processing zones to remove restrictions on trade union rights (ILO, 1998a) and follow the guidelines outlined in the ILO Declaration on Fundamental Principles and Rights at Work, 1998, and the Tripartite Declaration on Multinational Enterprises and Social Policy, 1977 (ILO, 1998b) .
3. The Position in Nigeria
Nigeria has ratified both ILO Convention 87of 1948 and Convention 98 of 194913. The Federal Republic of Nigeria’s modified Constitution upholds the fundamental tenets of the right to freedom of organization for labor union purposes, which include the following:
Every person shall be entitled to assemble freely and associate with other persons and in particular he may form or belong to any…trade union or any other association for the protection of his interests14.
Existing labour laws, particularly the Labour Act of 2004 and the Trade Unions Act of 200415 strengthen and expound the constitutional provisions16. The Labour Act protects employees against anti-union discrimination at work. According to the Act, no contract may demand that a worker join, remain a member of, or renounce membership of a trade union; or cause a worker to be dismissed or prejudiced because of trade union activities17.
It is contended that these provisions are consistent with ILO Convention 98 of 1949, which guarantees adequate protection for workers against anti-union discrimination. Consequently, all “yellow dog contracts” that ban casual workers from organizing unions and bargaining collectively for better wages and working conditions are illegal in Nigeria. However, it is significant to emphasize that the statutory protections for workers are focused on the traditional employment relationship. The law does not apply to employees who are involved in non-standard employment relationships (Danesi, 2017; Okene & Otuturu, 2017) such as disguised or triangular employment relationships18.
13Nigeria ratified the Freedom of Association and Protection of the Right to Organize Convention and the Right to Organize and Collective Bargaining Convention, 1949 (No. 98), 1948 (N0. 87) on October 17, 1960.
14Constitution of the Federal Republic of Nigeria 1999, as amended, s. 40
15Trade Unions Act, Cap T14, Laws of the Federation of Nigeria, 2004, as amended by the Trade Unions (Amendment) Act 2005 (hereafter referred to as “TUA”). (hereinafter simply referred to as “TUAA”).
16Labour Act, Cap L1, Laws of the Federation of Nigeria, 2004 (hereinafter simply referred to as “LA”).
17LA, s 9(6).
18Ibid, s 91(b).
In the typical employment relationship, there are two parties involved: the employer and the employee. The triangular and disguised employment relationship, on the other hand, is a more complicated setup that involves one or more third parties. It happens when employees of a company (the “service provider”) provide labour or services for a third party (the “user enterprise”). The most well-known example is the use of independent contractors and private employment firms (ILO, 2003: p. 39) . The worker is not entitled to the benefits that are promised to employees by labour laws and collective bargaining agreements (ILO, 2003: p. 26) .
The ILO does not consider the triangular employment relationship as invalid or illegal; nor does it consider outsourcing and contracting out as unfair labour practice19. The ILO, on the other hand, advises that national policies should include steps to address nonstandard work arrangements and ensure that all types of employment contracts are subject to the same requirements20.
It is also clear that the definition of the term “worker” for the purposes of the protection under the Act is limited to manual and office workers as well as vulnerable groups like women and young persons. It does not apply to workers in the administrative, executive, technical and professional cadres21. Thus, in Evans Bros. (Nig,) Ltd v Falaiye22 the Court of Appeal held that the Labour Act did not apply to the respondent because, according to the court, he was an individual exercising managerial, executive, or technical duties during his employment with the company.
Export Processing Zone workers are also not covered by labour laws. The Nigerian Export Processing Zones Authority Act 1992 restricts the right to organize in export processing zones (Gopalakrishnan, 2007; Aiyelabola & Yusha’u, 2011) . The right to organize is also restricted in the Oil and Gas Export Free Zone23. The Nigerian government’s interference with employees’ rights to organize in export processing zones has drawn criticism from the International Labour Organization (ILO, 2009) .
The Trade Unions Act of 2004 (as amended) gave workers the justification they required under the law to use their fundamental right to form and join trade unions and to protect their interests, to manage their internal affairs and to organize their activities. For the purposes of forming or joining a labor union, one who works on a temporary basis is now considered a “worker” under the Act. Accordingly, a trade union is defined as any combination of workers, whether temporary or permanent, whose object is to regulate the terms and conditions of employment of workers24.
19PENGASSAN v. Mobil Producing Nigeria Unlimited [2013] 32 NNLR (Pt. 92) 243, 327 (Justice Kanyip).
20ILO (n 41) 39.
21Olaja v. Kaduna Textile Ltd [1971] 2 NCLR 431.
22[2003] 13 NWLR (Pt. 838) 564.
23Oil and Gas Export Free Zone Act 1996, s. 13(1).
24TUA, s 1(1).
25Patovilki Industrial Planners Ltd v. National Union of Hotels and Personal Services Workers [1978-2006] DJNIC 288-289.
It is submitted that “temporary worker” includes contract or casual worker. Thus, a person who is recruited temporarily or on a casual basis is treated as a worker for the purposes of forming and joining a trade union in Nigeria. In Patovilki Industrial Planners Ltd v. National Union of Hotels and Personal Services Workers25, given that the appellant’s employees were contract workers, the corporation denied the respondent union’s attempt to organize them. The Industrial Arbitration Panel then heard the respondent union’s trade dispute and ruled in the respondent’s favour. On appeal, the National Industrial Court upheld the Industrial Arbitration Panel’s decisions that both temporary and permanent employees had the right to unionize. According to the Court, a relevant trade union may unionize workers, whether they are employed on temporary or casual basis.
Every trade union is required by the Act to make rules about the various matters mentioned in the First Schedule to the Act26. The rules must contain provisions, amongst other things, for the appointment of workers’ representatives, election and removal of union officials and general management of the internal affairs of the union27. The rules are registered along with the trade union28.
It is argued that these provisions are also in line with ILO Convention 87, which was adopted in 1948 and grants employees’ and employers’ organizations’ freedom to choose their own representatives, write their own rules, plan their administration, and organize their own activities29. They are also consistent with ILO Convention 98 of 1949, which safeguards workers’ and employers’ organizations from acts of interference in their formation, operation, or administration by each other or by each other’s agents or representatives30.
Once the rules are registered, they become the trade union’s constitution or charter, defining the members’ individual rights and responsibilities as well as the union’s obligations to outsiders. Any action taken in violation of the rules or the regulations’ stipulations would be regarded as ultra vires and void. Therefore, it is illegal and goes beyond the scope of the employer’s jurisdiction for an employer to control the internal affairs of a trade union.
26TUA, s 4(1).
27Ibid, items 7, 8 and 9 of the First Schedule.
28Ibid, s 4(2).
29ILO Convention 87 of 1948, article 3.
30ILO Convention 98 of 1949, article 2(1).
31[1978-2006] DJNIC 23, 25.
32[2012] 27 NLLR (Pt. 82) 221.
It is either the labour union would be at the mercy of the employer’s whims and fancies, or its representatives would face intimidation and repressed from making any legitimate demands if an employer or his representative was permitted to meddle in the union’s internal affairs. Thus, in Nigerian Sugar Co. Ltd v National Union of Food, Beverage and Tobacco Employees31 the National Industrial Court ruled that it is improper for management to engage in the workers’ union’s internal affairs in a way that either subjects the union to its whims and caprices or frighten the workers from making what they consider to be legitimate demands.
In NASU v. Vice-Chancellor, University of Agriculture, Abeokuta32 the claimants filed an originating summons against the defendants, seeking, among other things, a declaration that the defendant violated the Trade Unions Act as amended by forming a Caretaker Committee to run the claimant union’s affairs at the defendant’s workplace and interfered with its internal affairs. The only issue the claimant formulated was whether the defendant had the legal authority, under the Trade Unions Act or the Constitution, to interfere in the claimant’s affairs by appointing a Caretaker Committee to run the claimant’s branch in its establishment.
The defendant did not dispute that it interfered with the appellant union’s internal affairs but claimed that the defendant was not the proper party to sue and that the proper party to be sued was the University. As a result, the defendant raised a second question, namely, whether the Vice-Chancellor is a proper party to the case and can be sued. The National Industrial Court ruled on the defendant’s argument that the Vice-Chancellor is a proper party and can be sued as a Vice-Chancellor because he is the University’s Chief Executive Officer and alter ego. Justice Kanyip said:
It is not in doubt that the present defendant is the Head and Chief Executive officer of the University, the University’s “alter ego”, who oversees the day-to-day running of the University33.
Regarding the claimant’s issue, the Court determined that the University’s Management actively contributed to the formation and creation of the claimant’s branch union’s Caretaker Committee within the University. This amounted to interference with the claimant’s branch union’s internal operations and administration at the University, which was unconstitutional, unlawful, and in contravention of the constitution of the claimant’s branch union. As stated by Justice Kanyip:
[No] employer is permitted to interfere, no matter how minutely it may be, in the internal running and management of a trade union. That is the exclusive preserve of the members of the trade union itself34.
33Ibid 259-260; see also Emuze v. Vice Chancellor, University of Benin [2002] 10 NWLR (Pt. 828) 378.
34Ibid 258.
The National Industrial Court ordered the defendant, its servants, officers, and privies to refrain from bullying, abusing, sacking or victimizing any of its employees in any way because they engaged in trade union activities with the claimants. The Court also directed the Caretaker Committee to account to the claimants for its stewardship within 30 days of the judgment.
This case exemplifies some of the key roles trade unions play in promoting and protecting the rights of workers in Nigeria. Most importantly, trade unions protect the collective rights of workers especially the right to associate, the right bargain, the right to organize and the right to strike (Ewing & Henry, 2012) . In the event of disputes, trade unions represent the workers in the settlement of disputes with their employers in and out of court. In the instant case, the complaint of the workers is that the activities of the University in appointing a caretaker committee to run the affairs of their union interfered with their right to organize their activities as guaranteed by the Trade Unions Act, the Nigerian Constitution and International Labour Organization Conventions.
Trade unions also accelerate globalization of the workplace through international affiliations and ensure fair globalization by influencing the implementation of international labour standards at the national level (Morris, 2002) . In most cases on workers’ freedom of association, as in the instant case, in addition to the constitutional guarantee on freedom of association, the unions also relied on ILO Conventions 87 and 98 to protect the rights of the workers to associate and organize their activities35.
Amongst other things, trade unions promote the welfare of workers and improve their living standards by negotiating the best possible terms of employment such as wages, hours of work and physical conditions of work. Trade unions also promote industrial democracy (Webb & Webb, 1897) . They represent the workers and engage their employers in collective bargaining and thus make workplace rules through collective agreements.
Furthermore, trade unions incorporate democratic norms into their constitutions and thereby create platforms for training in leadership and advancement in democratic governance (Gumbrell-McCormick & Hyman, 2019) . Finally, trade unions promote equality and social justice by balancing the power equation in the workplace. They employ strikes and other economic weapons to countervail the power of capitalism (Davies & Freedman, 1983; Tumangkar, 2020) .
4. Suggestions for Reform
35See, for example, Attorney-General of Enugu State v National Association of Government General Medical and Dental Practitioners [2014] 27 NLLR (Pt. 153) 427; Aero Contractors Co. (Nig.) Ltd v National Association of Aircraft Pilots and Engineers (2014) 42 NLLR (Pt. 133) 664.
36CFRN, s. 254C (1)(h).
37Ibid, s. 254C (2).
38CFRN 1999 as amended by the Constitution (Third Alteration) Act 2010, s. 254C (1)(d).
39Ibid, s. 254C (1)(f); see also National Industrial Court Act 2006, s. 7(6).
It is suggested that employers and governmental agencies should support trade union rights much like other fundamental human rights. Due to its jurisdiction to implement international labour standards, the National Industrial Court should interpret all labour laws especially those governing trade union rights, particularly the right to organize trade union activities, in accordance with ILO Convention 87 of 1948 and Convention 98 of 1949 by virtue of its jurisdiction to apply international labour standards36 and any convention, treaty, or protocol dealing to labour and industrial relations that Nigeria has ratified37.
It is also suggested that the National Industrial Court should be proactive in its adjudicatory role by insisting on both substantive and procedural fairness in cases involving termination of employment at the initiative of the employer and interpret Chapter IV of the CFRN 199938 in accordance with international best practices in labour39. When it is found that a worker’s job was terminated due to his or her involvement in trade union activities, the worker should be reinstated with back pay and no loss of seniority. In appropriate circumstances, the National Industrial Court should award punitive damages against the employer for firing any employee for reasons related to trade union activities.
It is further suggested that the minimum threshold of 50 workers necessary to form a labour union be reduced to the pre-1973 minimum threshold of 5 workers. This is in line with ILO jurisprudence, which states that the minimum threshold for the creation of labour unions should be set in a fair manner to avoid impeding the formation of such organizations40. This will afford greater opportunities for trade unions to promote and protect the collective rights of workers in Nigeria.
5. Conclusion
Employees are free to form unions, join them and organize collective actions. An employer cannot create a trade union for his employees, force them to join one, or control how the union is run or administered. It is the members of the trade union that have exclusive right to manage and run the internal affairs of the union and to organize its activities41. This right is recognized under the CFRN 1999 as amended42 and implemented under numerous labour laws, particularly the Labour Act 200443 and the Trade Unions Act 200444. It is also recognized as a basic right of workers by the International Labour Organization Convention 87 of 194845 and Convention 98 of 194946. It is also recognized by the UN International Bill of Human Rights made up of the Universal Declaration of Human Rights, the International Covenant on Civil and Political Rights, and the International Covenant on Economic, Social, and Cultural Rights (Sibbel, 2001) .
However, employees who work under nonstandard employment arrangements such as triangular and disguised employment relationships do not have the right to organize. This is because the Labour Act which safeguards workers’ unions from anti-union discrimination and government interference is based on the traditional employment relationship. It does not cover employees in a triangular employment relationship, such as those employed by contractors or private employment agencies.
40ILO (n 31) 33.
41NASU (n 56) 258.
42CFRN 1999, s 40.
43Cap L1 LFN 2004.
44Cap T14 LFN 2004, as amended by the Trade Unions (Amendment) Act 2005.
45ILO Freedom of Association and Protection of the Right to Organize Convention, 1948 (No. 87).
46ILO Right to Organize and Collective Bargaining Convention, 1949 (No. 98).
47Olaja v. Kaduna Textile Ltd [1971] 2 NCLR 431; Evans Bros. (Nig,) Ltd v. Falaiye [2003] 13 NWLR (Pt. 838) 564.
48Nigeria Export Processing Zones Authority Act 1992, s. 13(1).
49Oil and Gas Export Free Zone Act 1996, s. 13(1).
The application of the Labour Act in terms of employment rights tends to be limited to manual and clerical jobs, as well as vulnerable groups, such as women and children. Workers in the managerial, executive, technical and skilled cadres are not included47. As a result, only a small percentage of employees are covered by existing labour laws. Finally, workers in export processing zones48 and the free trade areas and oil and gas zones49 have limited rights to organize trade union activities.