Monday, 13 March 2017
Participation in trade union
1.0 CONCEPTUAL FRAMEWORK
The society in which we find ourselves is one characterized by a great degree of uncertainty and exploitative tendencies. To check all these, adequate legal framework has been put in place by various legislations. These legislations grants individuals in the society the right to join or form organizations, which in their opinion, will sufficiently cater for their interest and insulate them from all forms of ill and exploitative treatments.
Interestingly, the right to join or form associations is not just a statutory right; but enjoys the enviable position of a constitutional right. The constitution spells out the right to peaceful assembly and association. It provides thus:
“Every person shall be entitled to assemble freely and associate with other persons, and in particular he may form or belong to any political party, trade union or any other association for the protection of his interests. Provided that the provisions of this section shall not derogate from the powers conferred by this constitution on the Independent National Electoral Commission with respect to political parties which that commission does not accord recognition”.
The court, in a long line of decisions have upheld the fact that the right to associate is fundamental and as such should be respected. In the case of AKANINWO V. NSIRIM, the Court of Appeal held that every Nigerian citizen has a fundamental right to peaceful assembly and freedom of association under the constitution.
However, this right is not iron cast; but subject to some reasonable and justifiable exceptions. Also, Nigeria as a sovereign nation is a member of a host of international organizations and as a necessary consequence, respect rules and regulations made and adopted at such international fora in accordance with the principles of Pacta Sunt Servanda. Those bodies of international laws, also recognizes and respects the rights of an individual to so form or join associations to cater for his interest. One of such association one can form or join for the primary purpose of safeguarding his interest is a Trade Union.
1.2 DEFINITION OF TRADE UNION
Trade unions are offshoots of the constitutional right of freedom of Association. The Trade Unions Act, 2004 defines a trade union thus:
“Trade Union means any combination of workers or employers, whether temporary or permanent, the purpose of which is to regulate the terms and conditions of employment of workers whether the combination in question would or would not, apart from this Act, be an unlawful combination by reason of any of its purposes being in restraint of trade, and whether its purposes do or do not include the provision of benefits for its members”.
From the foregoing, it can be noted that two set of individuals are qualified to form or join a trade union; employers and employees. The common and the legal denominator in trade union formation is the fact that its main objective must be to regulate the terms and conditions of service of her members.
However, it is pertinent to note that a trade union may have other purpose(s); but such other purpose(s) must be merely ancillary or complimentary to the purpose of regulating the terms and conditions of employment of workers. This position was given judicial affirmation in the case of UDOH V. ORTHORPEADIC HOSPITAL MANAGEMENT BOARD where the court of Appeal held inter alia that primarily, the reason for the existence of a trade union is to regulate the terms and conditions of employment of workers.
The law amongst other things seeks to ensure orderly and good conduct in every segment of the society. To this end, trade unionism is not left out. As such, The Registrar of Trade Unions may cancel the registration of trade unions if it is shown that the principal purpose for which the union is being formed is not to cater for the interest of the workers. In Re UNION OF IFELODUN TIMBER DEALERS AND ALLIED WORKMEN an application to register a combination of persons, calling themselves the union of Ifelodun Timber Dealers and Allied Workmen as a Trade Union was refused by the Registrar of Trade Unions on the grounds that “it is a combination of traders and not registrable as a Trade Union under the law”. The court held that whether a combination is a trade union or not does not depend on its constituents but on its principal purposes under the Trade Union Act. That is, the reason for seeking registration as a trade union is not that which is contemplated by the Trade Unions Act.
1.3 HISTORICAL EVOLUTION OF TRADE UNIONS
Having Europe as its origin, trade unionism became popular in many countries during the era of industrial revolution. Due to lack of skills necessary to perform most jobs, employment bargaining powers shifted almost completely to the employers. As a necessary consequence, many workers were mistreated and underpaid.
Although, trade unionism as it is known today never existed in any part of present day Nigeria not until 1912 when the Nigeria Civil Service Union was formed. This is not to say that practices which are cast in the mould of modern trade unionism never existed hitherto. As T.M Yesufu noted “in fact group activity of the sorts is strongly rooted in the tribal structure, an organization of hunters, blacksmiths, carvers and weavers were widely spread.” S.F. Nadel also writes that the following were organized in craft guilds among the Nupe of Northern Nigeria: Blacksmiths, Brass & Silver Smiths, Carpenters and butchers. The guild represented a class group, the membership of which is to a large extent hereditary in a number of families, outsiders can join only through formal adoption into the profession after a period of apprenticeship. The group moreover is defined not only with regards to the productive pursuit but also socially and politically, as a specific social group almost an artisan class which enjoys official recognitions and certain political privileges.
From the forgoing, it can be seen that trade unionism is not the brainchild of the Europeans. At best, they laid the foundation for the modernization of trade unionism. Model trade union rules prepared by British colonial officers were everywhere used and slavishly copied. Also, most of the provisions of English labour legislation are now embodied in local statutes. That is, these statutes which regulate the industrial arena of Nigeria are cast in the mould of their English counterpart.
1.3 RIGHT TO FREEDOM OF ASSOCIATION
As earlier stated, the fundamental right to form or join an association which will sufficiently cater for ones interest is both statutory and constitutional. Of importance under this heading is the constitutional aspect of that right. The constitution of every modern nation is built around the tripartite concept of Democracy, separation of powers and rule of law. These three doctrines according to CAJ Chinwo have become of very fundamental importance and serve as yardsticks and touchstones in the assessment of the quality of a constitution with reference to the protection and projection of the welfare and good governance of the people which is the primary goal of the law and all its regimes. The benefits of the fundamental human right to every society cannot be overemphasized. It is a very vital ingredient for the realization of a peaceful and secured society. The benefit of human right to the society is best summarized in the following statement of Mr. Kofi Anan, the former Secretary-General of the United Nations Organization. Anan said:
“We will not enjoy development without security. We will not enjoy security without development, and we will not enjoy either without respect for human rights”.
The fundamental human rights has been described in the case of RANSOME-KUTI V. ATTORNEY-GENERAL OF THE FEDERATION to be those rights which are so fundamental to the very existence of a particular country that they stand above all the ordinary human rights and laws of such a country.
The foregoing to a great extent has buttressed the very fact that the fundamental human right stands taller than any ordinary law of the land. However, its provisions are not iron cast. The constitution itself makes derogatory provisions in appropriate circumstance. From the wordings the constitution, it is clear that fundamental rights do not operate unlimited. Certain situation has been justified by Section 45 to put a stop to the operation of the fundamental rights in certain circumstances. These situations can be categorized into two, to wit, laws which are made for the betterment of the larger society and periods of emergency which was not contemplated by anyone.
The constitution prohibits the coming into force of any association which will corrupt public morals. For instance, a bid to incorporate an association like prostitutes union of Nigeria will not see the light of day because such an organization will do more harm than good to the society. Also, from the wordings of Section 45(1)(b), it can be deduced that the right of one man or a few persons or even an entire community can be jettisoned for the larger society. In other words, the betterment of the larger society should not be sacrificed on the altar of the right of one man. This subsection received judicial blessings in the case of BADEJO V. MINISTER Of EDUCATION KUTIGI JSC, while delivery the lead judgment of the Supreme Court, had this to say:
“A fundamental right is certainly a right which stands above the ordinary laws of the land, but I venture to say that no fundamental right should stand above the country, state or the people”.
It will not be out of place to assert that the right to freedom of association as enshrined in Section 40 on its own is not enough to handle the problems faced by workers. Right to Freedom of association should be given a community reading with the rights to dignity of human persons, freedom of expression and privacy and family life provided for in Section 34, 39 and 37 respectively. Workers must be free to associate without fear of molestation. This is a significant aspect of trade union rights.
Unfortunately, it is not uncommon to hear of violence, injuries, loss of life, cruelty and other forms of ill treatment, forced exile and disappearances of workers all over the world. Many workers who try to form trade unions are spied on, harassed, pressured, threatened, suspended, fired, deported or otherwise victimized in reprisal for exercising their right to freedom of association. The state must ensure that the lives of workers and especially their leadership are protected from both the state itself and others.
Violence against trade unionist is endemic, including murder, disappearance, intimidation, torture, harassment and detention. In 2002, shortly after the Nigerian Labour Congress (NLC) declared a nationwide strike over the increase of petroleum prices, security agents rounded up Adams Oshiomole, the Nigeria labour Congress president, and several other labour leaders, including Doctor Dipo Fashina, president of Academic Staff Union of Universities (ASUU). Sixteen other union leaders were arrested in Port Harcourt, Rivers State while twenty-five persons, including the state secretary of Nigerian Labour Congress, Wale Olamiyan, were locked up in Ogun State by the police. In the course of the Abuja arrests, the police exhibited excessive brutality. They seized the Nigerian Labour Congress president’s car and savagely beat up Dare Agbaje, the driver. ASUU President Fashina had his shirt torn and one of his fingers broken. Throughout a twenty-four hour stint in detention, they were not allowed to receive any medical attention.
With the use of the police and other law enforcement agencies to harass and assault trade unions in Nigeria, the state cannot deny responsibility. A government spokesman sometime warned labour against what he described as “unnecessary confrontation”, and added that the government would not tolerate “any excessive militancy” from them. This sort of statement suggests that the government tacitly supports the attacks against unions. Even where unions and workers are harassed by people outside the government, responsibility still rest on the government, for it turns a blind eye to the atrocities. The role trade unions in Nigeria played in Nigeria’s quest for independence cannot go unnoticed. It is disturbing that they are now treated as enemies by the government. The Secretary-General of the Organization of African Trade Union Unity (OATUU) has expressed a similar view:
“As a trade unionist, the question that worries me most is why trade unions which fought side by side with political parties to dislodge colonialists […] are not now accepted by Africa Governments […] trade unionists are in jail or in detention […] some under investigation splits are being encouraged to weaken trade union leadership […] some unions are facing threats of dissolution. There are trade unionists living in exile because they have displeased home governments”.
In the same vein, the right to freedom of opinion and expression for trade unions should be allowed to run its due course. The right of trade unions to function freely and properly can be affected by state or other forms of censorship. Unionist need to be able to express their views openly, without fear of reprisals from the state or others. The presence of police or other security outfit at trade union meetings could chill the freedom of expression of trade unionist and their participation in trade union activities.
Although, the Nigerian constitution guarantees freedom of expression for every citizen, authorities take brutal measures against those trade unions perceived to be working against their interest. The Nigerian Union of Journalists has persistently complained of violations of its member’s right. On January4, 2002, for example, an anonymous caller who claimed to be working in tandem with the State Security Services (SSS) in Ibadan, the Oyo State Capital, in a telephone conversation with Bayo Oladeji of the Nigerian Tribune said in a muffled voice, “Your (telephone) number is under surveillance and we know what you have been doing with it, especially Bayo Oladeji”. This call is from the SSS and we are going to sweep that house very soon.” the reason for this threat was plainly articles considered unfavourable to those in power. Other examples of violation include the acid thrown in the face of one Alifa Daniel, head of the concord Newspapers in Kogi State, and the arrest of an Editor-in-Chief and journalist of the Tribune Newspapers for writing an article critical of the police.
Another very important right required for proper working of the trade union is the right of private and family life. This right is enshrined in Section 37 of the constitution. Government and its functionaries must treat trade union property like any other private property: as inviolable without reasonable justification. Searches of trade union offices and the dwellings of trade union member should be carried out only with proper warrant and in strict compliance with the purpose of warrant.
In Nigeria, government disrespect for trade union property is very common. The Nigerian Labour Congress and its affiliate unions have been raided by the authorities without legitimate cause. In the ILO case No. 2267/Nigeria (2004) complaint against the government of Nigeria on freedom of association, the Academic Staff Union of Universities (ASUU) brought a complaint to the International Labour Organisation concerning violation of freedom of association and gross infringement of trade union rights, including summary dismissal of academic staffs because they had taken part in strike actions, and harassment and victimization of trade union members. Following strike actions by Academic Staff Union of Universities in 2001, 2002 and 2003, forty-nine lecturers of the University of Ilorin were dismissed, Union property vandalized and removed, and premises were sealed. Members of staff purportedly dismissed were also brutally evicted from their living quarters.
These actions were condemned in strong terms by the International Labour Organisation committee on freedom of association, and the decision of Nigerian court in the famous UNILORIN’s case is an audacious effort geared towards maintaining the sanctity of the freedom of association.
The fundamental rights as we know are those inalienable rights enjoyed by citizens of a particular country. These rights are attached to humans by virtue of the very fact that they are humans. However, the fundamental human rights provisions in the constitution would become mere statements or declarations of intention or wish to respect human rights in a nation if they are not enforceable in court. These rights to approach the court on issues of breach of fundamental right is the striking difference between the Fundamental Human Rights and the Fundamental Objectives and Directive Principles of State Policy which are mere guideposts for the government to follows .
The constitution has provided for the right of access to court to enforce fundamental rights and also mandated the Chief Justice of Nigeria to make rules for the purposes of enforcement of the rights in a High Court.
This enforceability of the fundamental human rights became a subject of judicial scrutiny in the case of AHMAD V. SOKOTO STATE HOUSE of ASSEMBLY where the trial judge declined jurisdiction to hear a matter owing to the fact that the claimant is a judicial officer. Upon appeal to The Court of Appeal, it was dismissed on the ground that there is no limitation or qualification of the nature of persons to enforce seeking to enforce their right.
From the tenor and colour of section 46(1), it is evident that enforcement of Fundamental Human Rights is unqualified. Everyone is entitled to apply to the court for the enforcement of his or her right irrespective of where he or she belongs-whether a member of the judicial arm or not.
Also, subsection 4, provides for the grant of financial aid to enable the citizenry approach the courts for redress.
This, is an audacious effort geared towards the realization of the rights of the citizenry. However, it will not be out of place to posit that the provision of financial aid is more on paper than real. Quite unfortunately, fundamental rights can only be enforced by the rich in the society while the poor gets no remedy.
1.4 FREEDOM OF ASSOCIATION IN INTERNATIONAL LAW
According to legal theory, each state is sovereign if it can handle her own affairs without external interference. In reality, with the phenomenal growth in communications and consciousness, and with the constant reminder of global rivalries, not even the most powerful of states can be entirely sovereign. Undoubtedly, it can be opined that international law is like the unwritten exception to the hallowed posture of sovereignty which a state acquires upon birth. Not only has man, not left human rights as a mere endowment of nature, the international community, working through several multilateral organizations at regional and world levels, has not allowed human rights issues to be left to the several devices of nations.
Every state in present times belongs to one organization or the other either regionally or internationally. At these regional and international fora, ample legal framework has been put on ground to cater for the fundamental rights of individuals.
The Universal Declaration of Human Rights adopted by the United Nations General Assembly in 1948, proclaims that: “everyone has the right of freedom of peaceful assembly and association” article 23, paragraph 4 also state that “everyone has the right to form and to join trade unions for the protection of his interest”. The same principle is echoed in International Covenant on Economic, social and cultural Rights (ICESCR) and International Covenant on Civil and Political Rights (ICCPR) 1966.
The international Labour Organization (ILO) also recognizes freedom of association as a fundamental principle in several major documents, the most important ones being the freedom of association and the protection of the right to organize conventions 1948 (NO. 87) and the right to organize collective bargaining convention 1949 (No. 98). The right to freely associate is guaranteed in the European convention on Human Rights (ECHR), 1950 and the African Charter on Humans and people’s Rights (ACHPR) 1981.
Nigeria is a member of the international community and party to several international treaties that impose an obligation to respect, protect and fulfil labour and human rights.
These treaties impose on Nigeria the obligation to prevent violations of those rights and to investigate, prosecute and remedy their abuses. The international Labour Organization (ILO) is the pre-eminent authority on international labour standards. In its preamble to its constitution, adopted in 1919, it took note of the need for “recognition of the principle of freedom of association” among workers. In its 1944 declaration of Philadelphia it declared that “freedom of association” was fundamental principle upon which the International Labour Organisation is based, and included among the programmes that it should achieve “the effective recognition of the right of collective bargaining”. In 1948 the International Labour Organisation adopted convention No. 87 on freedom of association and protection of the right to organize. This convention established the right of all workers to form and join organizations of their own choosing, and set out guarantees for workers organization to function independent of government control. Nigeria is a member of the International Labour Organization (ILO) and has ratified both ILO the freedom of association and protection of the right to organize convention 1948 (No. 87) and the right to organize and collective bargaining. However, Nigeria is bound by these instruments to protect workers’ rights.
Another source of freedom of association of workers in Nigeria and commonwealth Africa generally can be found in the African (Banjul) Charter of Human and peoples’ Right of 1981. Article 10 of the charter provides that every individual shall have a right to associate provided that he abides by the law. Member states of the African union who are parties to the Banjul charter have an obligation to recognize the rights, duties and freedom enshrined therein and to “undertake to adopt legislative or other measures to give effect to them. The African charter demands a strong commitment from member states. Apart from establishing a duty on states to enact legislations to give effect to the charter’s provision, it also establishes a commission to oversee the protection of enumerated rights; this implies that each state are bound to respect these rights.
However, it is pertinent to note that these provisions are merely persuasive until it crosses the threshold in section 12(1) of the constitution. This section requires that the treaty be domesticated as part of our Corpus Juris. This provision was given judicial affirmation in the case of ABACHA V. FAWEHINMI. Ogundare JSC (as he then was) had this to say regarding the status of international treaty in law:
“Suffice to say that an international treaty entered into by the government of Nigeria does not become binding until enacted into law by the National Assembly in accordance with section 12(1) of the 1979 constitution”.
1.5 FREEDOM OF ASSOCIATION UNDER RELEVANT STATUTE
As earlier stated in this work, the right to freedom of association is both statutory and constitutional. The constitution provides the restrictions on fundamental rights. These restrictions, inter alia, gives powers to statutory instruments to govern issues of trade union.
Having in mind that one of the chief ends of law is to secure an orderly society. In the arena of labour jurisprudence, legislations have been put in place to ensure that issues of labour or trade unionism do not undergo any form of abuse. The most prominent amongst them vis-à-vis the topic under consideration is the Trade Union Act, 2005; Labour Act, 2004;Trade Dispute Act, 2006. A cursory look at this point should be given to these legislations to ascertain their relevance to freedom of association. The Trade Union Act regulates membership, formation and governance of the union ; The Trade Dispute Act is the first port of call for resolution of all trade disputes and The Labour Act supports membership and even non-membership of a union and provides that non should suffer deprivation as a result of membership or non-membership.
The right to freedom of association is one which is constitutional and statutorily provided for. This right in Nigeria is given a touch of panache by the hallowed provision of section 46 of the constitution which empowers one whose right is infringed or who perceives infringement on his right to approach the court for redress. However, the right is not iron cast as it is subject to limitations to reduce its abuse to the bearest minimum. Also, the international arena has not folded her arms to watch this right suffer. Nigeria, being a member of a host of international organizations with a legal framework which creates the right of freedom of association is duty bound to respect such, based on the principles of pacta sunt servanda bonafide.
2.0 RIGHT TO PARTICIPATE IN TRADE UNION ACTIVITIES.
As earlier stated, the right to participate in trade union activities is both statutory and constitutional. However, it should be understood that they are not unqualified rights; but can actually be derogated from in appropriate circumstances. Section 45 of the Constitution of the Federal Republic of Nigeria makes provision for situations or circumstances where there can be derogations. Although, it is a feature of the constitution of every modern nation to have enshrined in it the fundamental rights; however, abuse is also checked by making derogatory provisions for appropriate circumstances. Also, the Trade Unions Act which regulates formation and membership of trade unions is not also mute in this regard as it makes provision for membership, exceptions and extent to which a member can participate.
2.1 MEMBERSHIP OF TRADE UNIONS
Membership of trade unions is open for all and sundry save to the extent of statutory or constitutional exceptions. Section 12 of Trade Unions Act laid a proper foundation for membership of trade unions in the sense that it kicks against every form of discrimination in trade union membership. Also, it provides that any portion of the union rule which contravenes this section shall be null and void to the extent of its inconsistency.
The combined effect of section 40 of the constitution of the Federal Republic of Nigeria, 1999 (as amended) and section 12 of the Trade Unions Act is the blue print or foundation upon which labour movement is built. The constitution further provides for right of access to court to ventilate claims when the right is breached or there is a perceived breach of the right. This is copiously provided for in section 46 of the constitution. In ANIGBORO V. SEA TRUCKS (NIGERIA) LIMITED, The Court of Appeal held that the dismissal of workers for not joining the trade union of the employer’s choice constituted a violation of the right of association of the workers, as it is not for the employer to choose a trade union for his employees.
From the foregoing, it can be seen that non-membership of any association should not be a basis for meting out ill treatment to people. Membership or otherwise of trade unions is not also a platform for the denial of privileges due a worker in an industrial environment. From this provision, it is evident that a worker cannot be dismissed on account of membership or non-membership of trade union.
2.2.1 LIMITATION OF RIGHTS OF MEMBERSHIP
Limitations placed on the right of association are not by any stretch of imagination. It is provided for in the constitution itself.
The constitution has laid the foundation for statutory instruments to govern membership and set limits on trade union membership; and even as a member the extent to which you can go. Limitations on rights of membership can be summarized thus:
2.2.2 LIMITATION AIMED AT CURBING PROLIFERATION
One of the chief ends of law in the society is to order the best conduct possible in all facets of the society including the area of trade unionism. A proposed trade union may be denied registration by the Registrar of Trade Unions, if in his opinion, there is a union already in existence which sufficiently caters for the interest sought to be protected by the proposed union.
The court had an opportunity of elucidating this portion of the Trade Unions Act in the case of ERASMUS OSAWE & TWO ORS V. REGISTRAR OF TRADE UNIONS where The Registrar of Trade Unions refused to register the proposed association of the appellants on the ground that there is in existence a trade union which sufficiently caters for the interest of members of the proposed union. The Supreme Court held that the Trade Union Act is a law passed in the interest of public order, it was necessary to ensure order in the chaotic proliferation of trade unions which was the practice before the promulgation of the Act.
2.2.3 LIMITATIONS BASED ON PUBLIC POLICY
The enjoyment of any fundamental right should not be in a manner that will affect the generality of the public. On the strength of the foregoing, it becomes evident that if certain persons are allowed to exercise their right to freedom of association by becoming members of trade unions, it will occasion harm to members of the public. The persons who are barred from becoming members are well spelt out in The Act.
The prohibition of these persons when looked at with commonsense reveals that if they are allowed to form unions there would be breakdown of law and order. Considering the fact that the right to strike is the trade unions means of warfare, the big question is what happens if these persons are allowed to join trade unions and as a necessary consequence employs the right to strike? Society would simply come back to the state of nature where might was right.
However, without prejudice to the provisions of section 11(1) of the Act, these groups of persons can set up a joint consultative committee in the establishments concerned.
2.2.4 LIMITATION BASED ON NON-REFLECTION OF THE PURPOSE OF TRADE UNION
The chief purpose of trade unions must be to protect the interest of their members. However, trade unions can have other purpose(s); but this purpose(s) must be merely ancillary or complimentary of the main purpose. Section 7(1)(d) of the Trade Unions Act, 2004 empowers The Registrar of Trade Unions to cancel the registration of a trade union if its shown that the principal purpose for which the union is in practice being carried on is a purpose other than that of regulating the terms and conditions of employment of workers.
2.2.5 LIMITATION BASED ON IRREGULARITIES
The desire to form or belong to association can also be truncated when there is a perceived irregularity by The Registrar of Trade Unions. Irregularity in this context can take the form of defective application or objectionable names.
In Ojo & 4 Ors (trading under the name and style of Ibadan Corn Millers Association) V. Registrar of Trade Union and 5 ors, the plaintiffs sought an injunction to restrain The Registrar from registering the Ibadan & District Corn millers Association as a Trade Union on the ground inter alia that the name Ibadan and District corn millers association so nearly resembles the plaintiffs registered business as it is likely to mislead the public. The action was dismissed as the court held that the plaintiffs not being a registered trade union could not validly object to the registration of the defendant’s union.
Furthermore by virtue of section 6 subsection 2, a trade union must not be registered under a name containing any word which in the opinion of The Registrar are deceptive or objectionable in that they contain a reference (direct or indirect) to any personage, practice or institution or are otherwise unsuitable as a name for a trade union. If the Registrar refuses to register a trade union on this ground, any official or any member of the union may require the matter to be referred to the Minister of labour whose decision is final.
2.2.6 LIMITATION BASED ON AGE
Limitation based on age is two-dimensional. Section 20 (1) provides that a person under the age of sixteen shall not be capable of being a member of a trade union, and a person under the age of 21 shall not be capable of being an official of a trade union. However, the member above sixteen may unless to the extent that the rules of the union provides otherwise enjoy all the other weights of membership and may sign an agreement or other documents and give any receipts required to be signed or given as the rules of the union may require or for the purpose of the Trade Union Act or the regulation made thereafter.
2.3 TRADE UNION RULES
Just like every other organization, a trade union has a document which acts as its charter or constituting element. This document is the union rules. The union rules are to trade unions what the memorandum and an article of association is to an incorporated company. Apparently, the rationale behind trade union rules is to ensure that the rights, duties and obligations of members as well as the limit or scope of operation of trade unions are well spelt out. For a long time, the courts has been faced with the questions of whether or not a trade union was free to act outside the scope of its constitution (the rule book) or must, like a corporate body, conform to its statutory objects. These puzzle lingered until the pronouncement of the House of Lords in YORKSHIRE MINERS’ ASSOCIATION V. HOWDEN and ALMAGAMATED SOCIETY OF RAILWAY SERVANTS V. OSBORNE that it is ultra vires a trade union to act outside its statutory objects. The rules of trade union like the rules of any other association represent a contract between the members of the union. Any person joining an existing union does so on the understanding that he subscribes to the rules. The Act and the schedule thereto provide a catalogue rules of trade unions must include.
The rules of a trade union are sacred and The Registrar of trade unions is empowered to refuse to register a union unless it has rules which contains provisions with respect to the various matters contained in the first schedule of The Act.
As stated earlier, the rule book is regarded by the courts as a contract document spelling out the terms of agreement between the members and the union and defining the rights and obligations of parties. Therefore, the dealings between the parties must be regulated by it. In NIGERIAN CIVIL SERVICE UNION & ANOR V. O.G ESSIEN & ANOR, the court of appeal held that the constitution of a union is a contract document between the members of the union and that the members have subsumed several rights into the letters of the constitution.
2.4 COURTS INTERVENTION IN TRADE UNION ACTIVITIES
The administration of trade union, has been held in the case of ALHAJI IMAM N. ABUBAKRI & ORS V. ABUDU SMITH & ORS , to be governed by the common law rule known as the rule in FOSS V. HARBOTTLE the rule FOSS V. HARBOTTLE actually is of company law origin. In these cases, it was contended that the company was entitled to damages from some of the directors for their fraudulent Act. In consequence, a general meeting was held and the majority decided that no action be taken against the directors on behalf of themselves and all, others except the defendants to compel them to pay damages. It was held that the acts of the directors were capable of confirmation by the company and if the majority wanted to take action, they could have done so. The action was thus dismissed since it was for the majority to decide whether or not the action was necessary for the benefit of the company.
Although, the provision of the Act which talks about this rule, talks only of “company” and the word is defined in the Act as a company formed and registered in Nigeria under the Act or before the enactment of the Act, thereby excluding organizations registered under other statues such as trade unions, the rules covers or has been extended to all corporate organizations and artificial persons in law and even completely unincorporated bodies in so far as they each have a constitution or a set of rules and regulations permitting them to sue and or be sued as a legal entity.
The intervention of the court is geared towards regulating the way and manner persons run to the court about issues concerning organizations with a constitution. It is evident that if all and sundry were to approach the court on the slightest discovery of irregularity, it will lead to unnecessary suits. However, just like every other rule, the rule in FOSS V. HARBOTTLE has the reason for its application and the exceptions.
2.5 RATIONALE, APPLICATION, EXCEPTION TO THE RULE IN FOSS V. HARBOTTLE
The rule in FOSS V. HARBOTTLE as earlier stated is geared towards maintaining sanity in the running of trade unions and other organization with a constitution. The rule has been held to apply not only to incorporated bodies , but also unincorporated associations like trade unions, professional associations in so far as they have a constitution or a set of rules and regulation permitting them to sue and, or be sued as a legal entity. The rule is premised on the following reasons.
1. Allowing the minority shareholders to institute an action on every case where there is an alleged wrong or irregularity done to the company, then the floodgate to multiplicity of suits will be opened by the courts. This situation [multiplicity of suits] is however cured by this rule. By invoking this rule, baseless, vexatious and frivolous litigation by a minority share holders will be avoided.
According to a learned author, the rule in FOSS V. HARBOTTLE illustrates the traditional unwillingness of the common law courts to interfere in the domestic affairs of companies or review matters of commercial judgment that is to say, provided the irregularities or wrongs which occurred related to the internal affairs of the company, it is prepared to leave it to the majority to take what action it pleases.
This rationale is also justified when looked at from the point of view that a union assumes a separate and distinct character from its members upon registration by The Registrar of Trade unions and it follows as a matter of logic that it is only the union itself (Via majority) that can litigate whenever there is any allegation of wrong doing or irregularity in the conduct of its affairs save to the extent of permissible exceptions which will be examined hereunder.
2. Most vital amongst the reasons justifying the rule in FOSS V. HARBOTTLE is the fact that litigation at the instance of a minority is futile if the majority do not want it. The court will reasonably allow majority decision to prevail because where an irregularity which is capable of ratification has been done to a union; it is only the majority who can complain that what they should have done was done irregularly. A minority has no locus standi otherwise the minority will be a stumbling block on the wishes of the majority wherever there is a difference of opinion in respect of internal management of the company. After all a person who joins a union is presumed to have accepted the fact that the union will be ran based on majority rule.
Although, the majority may have her way, but that does not mean the minority should be suffocated or be unprotected by law. To this end, the rule in FOSS V. HARBOTTLE like every other rule in law admits of some forms of exceptions. The exceptions are there to make sure that the minority do not live totally at the mercy of an overbearing majority. The following are some exceptions of the rule in FOSS V. HARBOTTLE.
1. The rule does not apply when the act complained of is ultra vires the union. This exception has been upheld by the judiciary in the case of IBADAN NEWSVENDORS ASSOCIATION V. DYKE. Here, it was held that the general executive council of the Post and Telecommunication Union not only appointed some of the defendants as officials of the union irregularly but also that they had no power to do so. It was therefore an ultra vires act of the council and the rule in FOSS V. HARBOTTLE could not apply.
2. The rule will not also apply where what has been done amounts to a fraud on the minority and the persons against whom the action may be brought are in control of the union and refuse to allow an action to be brought in the name of the union. In that case, a member(s) may be allowed to bring an action in their own names.
3. This rule is also excluded where the matter complained of is one which cannot be ascertained or validated by a simple majority of the union members at a general meeting but only by some special majority. In COTTER V. NATIONAL UNION OF SEAMEN (NUS) the plaintiffs who were members of a registered trade union commenced proceedings against the union & certain officials of the union. The plaintiff purported to sue on behalf of themselves and all the members of the union other than the defendant. They claimed the declaration that a certain special general meeting was invalidly convened and that certain resolutions, which were passed at that meeting, were invalid and they sought injunctions restraining the unions from acting on those resolutions. It was held by the court that if irregularities were committed in the convening and conduct of the meeting at which the resolution complained of were passed, the matter could be regularized by the passing of a fresh and effective resolution.
4. The rule in FOSS V HARBOTTLE will not also apply if the rules of the union gives any member the right to initiate an action at his own expense in connection with any breach of the constitution . In the case of ELUFIOYE V. HALILU, the court per Babalakin JCA, held that rule 7(v) of the constitution of the National Union of Banks, Insurance and Financial Institution Employees (NUBIFIE) which gives any member the right to initiate action at his own expense in connection with any breach of union constitution is an exception to the rule in Foss v. Harbottle.
The application of the rule in Foss v. Harbottle ,which is a common law rule, to trade unions is subject to The Trade Union Act in Nigeria. Therefore, section 19(1) of The Act provides an exception of the rule in Foss v. Harbottle to trade unions in Nigeria .
Trade union formation or trade unionism though permitted by the laws of the land, and most importantly, has a constitutional dimension to it is not just left without appropriate checks. If all and sundry were permitted to be members of trade unions, undoubtedly, the society would return to the state of nature –where might was right. Adequate provisions has been made proscribing trade union formation for certain persons because of the sensitive nature of the services they render to the society and the attendant breakdown of law and order if they were allowed to partake in trade unionism. However, the other persons allowed to so participate are not just left to their whims and caprices. They are well checked by the union rules which acts as the bible and qu’ran of the union and the common law principles derived from the case of Foss .v. Harbottle.