Monday, 13 March 2017
Right of participation in trade union activities in Nigeria
THE RIGHTS OF PARTICIPATION IN TRADE UNION ACTIVITIES IN NIGERIA.
BEING A PROJECT SUBMITTED TO THE FACULTY OF LAW,
DEPARTMENT OF JURISPRUDENCE AND INTERNATIONAL LAW.
IN PARTIAL FULFILLMENT OF THE REQUIREMENTS FOR THE AWARD OF THE BACHELOR OF LAWS (LL.B) DEGREE OF THE
RIVERS STATE UNIVERSITY OF SCIENCE AND
WOSU EMMANUEL M. (ESQ)
I, Nworgu Chinedu, with Matric No. De.2008/1950 do hereby declare that this research work was carried out by me. It is therefore an original work by me.
NWORGU CHINEDU DATE
This is to certify that this project work was diligently and successfully carried out by NWORGU CHINEDU of the Department of Jurisprudence and International Law with Matriculation Number De. 2008/1950 under the erudite supervision of E.M. Wosu Esq of the Faculty of Law, Rivers State University of Science and Technology, Port Harcourt.
(Project Researcher) Signature Date
E.M. Wosu, Esq
(Project Supervisor) Signature Date
Dr. O.W. Igwe
(Head of Department) Signature Date
Dr. N.S. Okogbule
(Dean, Faculty of Law) Signature Date
External Examiner Signature Date
This piece is dedicated first and foremost to almighty God for his GUIDANCE and GRACE within this years of my academic sojourn. Indeed, it is not of he that willeth its just you (God) who showed me mercy.
I also dedicate this work to the loving memory of my beloved father – Clifford Okabile Nworgu - who was overwhelmed with joy, when in 2008, I broke the news of my admission to him but unfortunately did not stay to see me complete this programme, May your gentle soul rest in perfect peace! To my lovely mum-Mrs. Nnenne Nworgu-who defied all odds to make sure I completed this programme.
Also this project work is dedicated to my lovely wife and children (The Peculiar People) unknown.
Finally, I dedicate this project to all past, present and future of the Student Christian Movement of Nigeria, RSUST Chapter.
“What is the argument on the other side? Only this that no case has been found in which it has been done before. That argument does not appeal to me in the least. If we never do anything which has not been done before, we shall never get anywhere. The law will stand still whilst the rest of the world goes on and that will be bad for both”. Per Lord Alfred Denning M.R. in Packer V. Packer (1954) P. 15 @ 22.
I thank Almighty God for this opportunity to contribute to the legal Library in this little capacity. I also thank Him for greater contribution which He will enable me make in the nearest future. Indeed, Daddy if not that you were on my side my dreams definitely would not have been shattered. (Psalm 124)
The Almighty God in His infinite mercy sent certain persons my way who have been of tremendous help within these few years of my stay in this academic environment.
First on the list is my amiable project supervisor –E.M. Wosu Esq. – a man out of whose belly flows rivers of law. I thank you so much for the guidance and tolerance you have shown to me within this period. It is my earnest prayers that the Almighty God will take you to the pinnacle of this profession both in the classroom and at the bar.
I am also grateful to my family members (immediate, extended, maternal and in-laws) and benefactors. To my dear mum –Mrs Nnenne Nworgu – who has remained steadfast and committed to see that I completed this programme, I remain indebted. Her quest to see me through school would not have been so easy without the support of my lovely sisters, to wit, Ijeoma Bekwe , Chikaodinaka Nworgu , Ukaego Nworgu , Chinenye Nworgu, and Kelechi Nworgu. Be rest assured that I take into cognizance the fact that to whom much is given much is as a matter of necessity expected.
I am also grateful to Chief Collins Ovunwo (Onunwo III) and his household- Ijinwere Ovunwo, Chituru Okemini, Abochi Ovunwo and Okekem Ovunwo,and aunty Ify, who are my first cousins – for their support within this few years. Since 2010 I packed fully to your place, you all have been so wonderful.
To my maternal aunties and in-laws- Mr. & Mrs. Aniefiok Jack, Engr. & Mrs Olusola Owoeye, aunties Linda and Gogo Adele, Mr. G.H. Bekwe and Mr. P. Okemini- words cannot be enough to convey my gratitude to you all. I am grateful.
You all are the family God has given to me and I need not ask for another.
Also, special mention must be made of the kind gesture of certain past and presents members of The Faculty of Law towards me within this few years. On this premise I pay tributes especially to a lady who is a rare combination of beauty, brain and character- Mrs. Ibifake Ross George. Within this few years, you have been like a mother to me. Your willingness to assist knows no bound. Apart from your kind gestures towards me, your words of advice and encouragement helped sustain discipline and character. You are a perfect example of the kind of persons my people calls, “otu nu ahia.” Extend my vote of thanks to your lovely husband –Mr. Ross Alabo George, Daye, Bryan and Winston who kept me company whenever I visited the house and your sister- Mrs. Deinma Tennyson whose hands ministered unto my necessity.
Mention must also be made of the brotherly love and care of Mr Chike Wori. I thank you most heartily for the opportunity you gave to me to relate with you. Relating with a man of wits and immense exposure like you was most rewarding. God bless you sir!
God forbid I forget Mrs. N.I. Odio and household- Sola, Kemi, who incidentally is my classmate; and praise. Mummy I am so grateful to you for keeping the doors of your home open to me at all times. Am grateful!
I cannot but pay tributes to Mrs Atinuke Adewoye who has not allowed distance to become an excuse in knowing my level of progress. Though you live in Oyo state; but you sufficiently bridged the gap through your numerous calls and text messages. God bless you!
In my fellowship- The Student Christian Movement- the kindness of some brethren is worthy of mention. I am so grateful to Sisters Eunice Minainyo(FORMERLY Sis Eunice allen) , Damsel Freeman, Ukeme Udoh and Dugbor Taanadeeba who at various times made provisions to cater for the demands of my appetite. Also, Osikeimia Douglas, Boma Tamuno, Adewoye Marvellous and Victoria Williams, Susan Daso, joy opurum, Ruth Nic-Amuso were also wonderful. God bless you all! To my brothers- Eugene Ogbuta, Elera Oguru, Gbenga Ayorinde, Bright Waya, Wisdom Amuso Lebee Emmanuel, peter Patrick, Okwukwu Damion, Charlse Mbadike – thanks for being there God bless you all!
YOU ALL ARE WRITTEN INDELIBLY ON THE WALLS OF MY HEART!
TABLE OF CONTENT
Title page i
Table of contents viii
Table of Cases xi
Table of Statutes xiii
1.0 CONCEPTUAL FRAMEWORK
1.2 Definition of Trade Unions 3
1.3 Historical Evolution of Trade Unions. 5
1.4 Right to Freedom of Association. 7
1.5 Freedom of Association in International Law 18
1.6 Freedom of Association under Relevant Statute 22
1.7 Conclusion 24
2.0 RIGHT TO PARTICIPATE IN TRADE UNION ACTIVITIES
2.2 Membership of trade unions 26
2.2.1 Limitations on rights of membership 27
2.2.2 Limitation Aimed at Curbing Proliferation 28
2.2.3 Limitations Based on Public Policy 29
2.2.4 Limitation based on non-reflection of the purpose
of trade union 30
2.2.5 Limitation Based On Irregularities 30
2.2.6 Limitation Based On Age 32
2.3 Trade Union Rules 32
2.4 Courts Intervention in Trade Union Activities 34
Rationale, Application and Exceptions to the Rule
in Foss v. Harbottle 36
2.6 Conclusion 42
3.0 COLLECTIVE BARGAINING AND COLLECTIVE AGREEMENT
3.1 Introduction 43
3.2 Collective Bargaining: Meaning and Function 44
3.3 Collective Agreement: Meaning and Function 56
3.4 Legal Status of Collective Bargaining and
Collective Agreement 58
3.5 Status of Collective Bargaining in the Nigerian
Society: ASUU as a Case Study 59
3.6 Conclusion 61
4.0 SETTLEMENT OF TRADE DISPUTE
4.1 Introduction 62
4.2 Meaning and Nature of Trade Dispute 62
4.3 Methods of Settlement 69
4.4 Alternative Trade Dispute Resolution 71
4.5 Conclusion 76
CONCLUSION AND RECOMMENDATION 77
TABLE OF CASES
1Abacha V. Fawehinmi (2003) 6 NWLR (PT67) 19721,552African Continental Bank Limited V. Nwodika 1996 4 NWLR pt443 470
573. Ahmad V. Sokoto State House of Assembly(2003) FWLR (PT 174)306
164. Akaninwo V. Nsirim (1997) 9NWLR (PT520) 25525. Alhaji Imam Abubakri & Ors V. Abudu Smith & Ors (1973)6SC 31 346. Almagamated Society of Railway Servants V. Osborne (1910) AC 87 337. Anigboro v. Sea Trucks (Nigeria) Limited (1995 ) 6 NWLR (PT 399)26,358.Apena V. National Union of Printing, Publishing & Paper Products (2003)8 NWLR (PT 382)639.Badejo V. Minister of Education (1996)-10 SCNJ 519,2910.Cotter V. National union of seamen (1996)2 CH 58 4011.Elufioye V. Halilu (1993)2 NWLR (Pt. 30) 53041,4212.Etienan V. Registrar of Trade Unions (Unreported) Appeal No. ID/38A/69 High Court of Lagos. 7713.Federal Government of Nigeria V. Adams Oshiomole & Anor (2004)3 NWLR (pt 860)305.6414.Foss v. Harbottle (1843)2 HARE 461 3515.Ibadan Newsvendors Association V. Dyke (Unreported) suit no. 1/62/63)3916.Kalango V. Dokubo & ors (2004)1 NLLR 1876417.Miscellaneous offences Tribunal V. Okoroafor (2001)8 NWLR (pt 745) 2957018National Association of Local Government officers. V. Bolton (pt. 43)A.C 116 @ 1896319.Nigerian Civil Service Union Anor V. O.G. Essien & Anor (1985)3 NWLR (pt 12) 306 3420.Ojo & 4 Ors (Trading Under The Name & Style Of Ibadan Corn miller Association) V. Registrar of Trade Union & five others (Unreported) Suit No. LD/521/68 High Court of Lagos State.3121Oloruntoba –Oju & Anor V. Dopamu (2008)4 SCM @ (P. 128).7022Osawe V Registrar of Trade Union (1985)1 NWLR (pt. 4)7552822.Ransome – Kuti V.A.G. Federation (1985)2 NWLR (pt 6) 211 823Re Union Of Ifelodun Timber dealers & Allied workmen (1964)All NLR 634,3024.Schmidt & Dalstrom V. Sweden (1980) 1 EHRR 6375325Udoh V. Orthorpaedic Hospital Management Board (1990)4 NWLR (pt 142) 533, 30,6526Yorkshire Miners Association V. Howden (1905) Ch 25 @ 26333
TABLE OF STATUTES
The Constitution of the Federal Republic of Nigeria, 1999 (as amended)
S.1(1)(3) - - - - - - - 70
S.12(1) - - - - - - - 22,80
S.34 - - - - - - - 10
S.37 - - - - - - - 10,14
S.39 - - - - - - - 10
S.40 - - - - - - - 2,26
S.45 - - - - - - - 9,27
S.46 - - - - - - - 16,17,77
Africa Charter of Human and People’s Right 1981
Article 1 - - - - - - - 21
Article 5 - - - - - - - 54
Article 10 - - - - - - - 54
Article 11 - - - - - - - 20
Article 15 - - - - - - - 54
Article 25 - - - - - - - 54
Article 26 - - - - - - - 54
Universal Declaration of Human Rights, 1948
Article 20 - - - - - - 19
Article 23(4) - - - - - - 19
International Covenant on Economic, Social and cultural Rights, 1966
Article 8(1)(a-c) - - - - - 19
International Covenant on Civil and Political Rights
Article 21(1) - - - - - 19
International Labour Organization Conventions on the freedom of association and the protection of right to organize, 1948 (No. 87)
Article 2-7 - - - - - 19,80
International Labour Organization Conventions on the Right to organize Collective Bargaining, 1949 (No. 98)
Article 1-6 - - - - - 56
The National Industrial Court Act, 2006
S. 7 - - - - - - 69,70,76
The Trade Dispute Act, 2004
S.3(1)(3) - - - - - - 57,58, 59,78
S.4(1) & 2 - - - - - 72
S.6 - - - - - 72
S.8(1)(2)& (3) - - - - - 73,74
S. 9(1),(3)(4)&(6) - - - - 73,75
S.13(1) - - - - 75
s.17 - - - - - - 73
S.33(1) - - - - - - 73
S.38 - - - - - - - - 67
S.48 - - - - - - - - 62,67,56
European Social Charter, 1964
Articles 1-6 - - - - - - 67
European Convention on Human Rights, 1950
Article 1-6 - - - - - - 20
Trade Union Act, 2004
S.1(1) - - - - - - - 3
S.7(1)(d) - - - - - - - 4
S.11(1)(2) - - - - - - - 29,30,79,80
S.5(1)(4) - - - - - - - 28, 31
S.6(1)(2)(3) - - - - - - - 31,32
S.20(1)(2) - - - - - - - 32
S.4(1)(2) - - - - - - - 33,34
S.12 - - - - - - - 26
S.19(1) - - - - - - - 41,42
S. 43(1A) - - - - - - 68
The Labour Act, 2004
S. 9(6) - - - - - - - 23,27
S.91 - - - - - - - 47
The Companies and Allied Matters Act, 2004
S. 299-312 - - - - - - 35
S.567(1) - - - - - - - 35
TABLE OF ABBREVIATION
UNDHR - Universal Declaration of Human Rights.
ILO - International Labour Organization.
JSC - Justice of the Supreme Court.
JCA - Justice of the Court of Appeal.
NWLR - Nigerian Weekly Law Report.
SC - Supreme Court Report.
SCNJ - Supreme Court of Nigeria Judgment.
ALL ER - All England Law Report.
AC - Appeal Cases.
ACHPR - African Charter on Human and People’s Rights.
ECHR - European convention on Human Rights.
ICCPR - International Covenant on Human Rights.
CEDAW - Convention on the Elimination of all forms of Discrimination Against Women.
ICESCR - International Covenant on Economic, Social and Cultural Rights.
EHRR - European Human Rights Report.
ALL NLR - All Nigeria Law Report.
SCM - Supreme Court Monthly.
CH - Chancery.
ESC - European Social Charter.
It is indubitable that one of the core functions of law is to order the best conduct possible from every segment of the society. To this end, the law provides a plank upon which all activities in the society gains anchorage; trade unionism inclusive. The constitution in chapter four precisely section 40 and 45 provides the right to freedom of association and derogatory provisions for appropriate circumstances respectively. The law puts into consideration the fact that provision of rights without means of enforcement will just amount to an empty declaration of sentiments and consequently section 46 of the constitution empowers citizens to go to court to seek redress on any form of infringement. The law also realizes that trade unions will be toothless bull dogs without being allowed to collectively bargain and consequently made provisions which serves as frameworks upon which collective bargaining thrives. Trade unions most times set themselves on a collision course against the employers of their members in course of negotiations which is geared towards securing better conditions of service for their members and as such, The Trade Dispute Act makes very copious provisions on the procedures to be followed by this unions and employers to arrive at industrial harmony. Most times, the employers attempt to restrain the employees from joining trade unions of their choice, while the employees insist on their right to join or participate in trade union activities of their right. Whether these rights exist or not is a matter of law. Therefore, this research work will focus on the rights of participation in Trade Union activities in Nigeria. Chapter one deals with conceptual framework, definition of terms, historical evolution of trade union etc. chapter two focuses on right to participate in trade union in Nigeria. Chapter three x-ray collective bargaining and collective agreement while chapter four deals with settlement of trade dispute and chapter five concludes the this research work with recommendations.
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.
3.0 COLLECTIVE BARGAINING AND COLLECTIVE AGREEMENT
Having known that the principal function of trade unions is the promotion of the welfare of their members, something must now be said about the way the union fulfils this herculean task. To achieve this aim, trade unions make use of available negotiating machinery for achieving maximum benefits for all its members with minimum friction.
Negotiating or entering into agreements is one of great antiquity. Even from the biblical days, agreements were seen between men and God; group of persons; friends and so on. These agreements were not left naked but were attached with certain things or signs which constituted the binding nature or legal effect of such agreements. A perfect example of an agreement with a sign which accompanies it that makes it binding is that between God and Noah concerning flood. God said to Noah thus:
“And I will establish my covenant with you ; neither shall all flesh be cut of any more by the waters of a flood; neither shall there anymore be flood to destroy the earth. I do set my bow, and it shall be for a token of a covenant between me and the earth.”
Interestingly, the significance of rainbow did not end in the time of Noah. The rainbow till date assures us that there is going to be no rain, especially, immediately after a heavy downpour. Another very significant form of agreement with binding effect in the bible can be seen in the account of Rahab and the Isreali spies. Rahab a prostitute provided refuge for the Isreali spies on the understanding that when they (the Isrealis ) come to possess the land , she and her family will be spared. The bible records that the spies were taken out of house by a cord through the window. The same cord was requested by the Isreali spies to be kept at the same spot for the purpose of identification during the invasion .Agreements in themselves are not sufficient and as such requires an element which gives it the desired legal effect.
3.2 COLLECTIVE BARGAINING: MEANING AND FUNCTION
The presence of industrial conflict and the desire to control it in capitalist society is because the employers and employees are in perpetual relationship of antagonism. There is perpetual conflict amongst them because of the following reasons:
These are two parties working together but the interest of each is against the interest of the other. The employer is only mainly concerned with his property which in turn may be related to the financial interest of a number of stockholders, while the employees or their organization is interested in their material needs , seeing that they are the ones daily building and expanding the property;
The antagonism is manifested deeply in the relations that the less the employers pays workers the more profits he declares while the more workers insist must be given means the less profit the employers would make.
Even Karl Marx once observed that conflict rather than peace is the engine of progress. Although, industrial conflict may portend negative signal for economic and political development and growth, especially in the area of improvement in the standard of living.
Industrial conflict can be regarded as an important feature of capitalist system where profit maximization is the central objective of investors and industrial organizations. However, because the majority of workers in capitalist economies live at the level of subsistence, their ability to improve their economic and social condition lies in their unionization. Therefore, workers combination in the forms of unions form an important and indispensable stepping stone in the expenditure of labour.
Trade unions in the society have as their principal purpose the regulation of the terms of employment of their employees. In doing so, conflicts are inevitable. The means available in law to trade unions is that of collective bargaining.
Collective bargaining is well recognized under statutes in Nigeria as well as the international arena. The Trade Dispute Act, 2004 and The Wages Board and Industrial Councils Act, 2004, provides amongst others, a mechanism for collective bargaining in Nigeria.
Collective bargaining is the process of arriving or attempting to arrive at a collective agreement. It is the lifewire of industrial democracy. The expansion of collective bargaining is the major means of achieving industrial democracy. Hence to attain democracy in workplace, it is necessary that the procedure of collective bargaining is adhered to by both trade unions and management.
The concept collective bargaining as defined by James and Morris is “… in all its complexities is the bread and butter of trade unions, their lifeblood , what their members regard as the reason for their existence , the normal means of defending their interest and maintaining and improving their living standards. The terms covers the various negotiating methods and procedures generally used to reach agreements between employers and unions at all levels…”
The procedures of collective bargaining “normally set out the different stages of the negotiating process between management and unions, the occasion for the use of conciliation or arbitration machinery, the references of issues to third parties or committees agreed by both sides or laid down by the legislations.
The primary aim of workers engaging in collective bargaining has been expressed thus:
“By bargaining collectively with management , organized labour seeks to give effect to its legitimate expectations that wages and other conditions of work should be such as to guarantee a stable and adequate form of existence and as to be compatible with the physical integrity and moral dignity of the individual , and also that jobs should be reasonably secure.”
The imbalance of power between employees and employers has necessitated the desire to come together. Workers have come to the realization that bargaining collectively is their only chance of having a semblance of an equal relationship with their employers. They realize that against the powers of the employers, the individual worker has almost no bargaining powers and that the chances of improving conditions of work are slim. Workers have resorted to collective action because by banding together they are able to consolidate their strength far more effectively than they could as individuals. In effect, a properly conducted collective bargaining is the most effective means of giving workers the right to representation in decisions affecting their working lives, a right which is or should be the prerogative of every worker in a democratic society.
According to a learned author, there are four broad functions of collective bargaining namely: the settlement of trade disputes; democracy in the workplace; redistribution; and maintainance of efficiency. These four functions of collective bargaining will be examined hereunder.
1. Settlement of Trade Dispute: Settlement of trade dispute is one important function of collective bargaining. The major interest of trade unions is in winning wage concessions from the employers through collective action. Where this fails, strike could be the only means. Thus collective bargaining provides the mechanism for dispute settlement by negotiation of terms and conditions of employment. Negotiation within the framework of collective bargaining must be conducted with a view to reaching an agreement. Collective bargaining therefore provides inducement by which union and management can accommodate each other’s view through compromise and persuasion. This quality is an important aspect of the system and provides the underlying basis for industrial peace, among it other several functions.
2. Workplace Democracy: Owing to the fact that the employer can easily discard of the employee faster than the employee can discard his employer, collective bargaining enables the employee to acquire some bargaining power –“countervailing power” to that of their employer. This is not to say that the employers and employees now possess equal bargaining powers. What simply happens is that some powers are wrestled out of the hand of the employers and given to the employees.
3. Redistribution of Power: Another function of collective bargaining is to redistribute power and resources from employers to employees. This function is based on the fact that the employers usually possess superior bargaining power as against individual employees and because of this power imbalance the resulting terms and conditions of employment are unjust.
Promotion of Efficiency
Collective bargaining also helps to promote economic efficiency by limiting industrial conflict in the workplace. Most laws which promote collective bargaining were designed to limit industrial conflict which is seen as inimical to efficiency. Through collective bargaining there is an information flow between workers and from workers to management, morale is higher and firm-specific investments are increased. This is because collective bargaining gives job security and there is every motivation for the labour and management to co-operate to increase productivity.
As stated earlier, collective bargaining is not just provided for in our municipal laws, the international community has also made relevant provisions in these respect. International consensus on the status of the right to collective bargaining as a fundamental human right has evolved. A number of human rights instruments acknowledge the existence and protection of the right to collective bargaining, both at the international and regional levels. These instruments are:
The Universal Declaration of Human Rights: The right of workers to freedom of association is protected under the Universal Declaration of Human Rights, 1948, The International Covenant on Civil and Political Rights, 1966, The International Covenant of Economic, Social and Cultural Rights, 1966 and the European Convention for the Protection of Human Rights and Fundamental Freedom, 1950. All these international instruments guarantee the right of workers to join and form trade unions for the protection of their economic and social interest. There is little doubt that one of the principal means by which workers can protect their economic and social interest is through collective bargaining. To deny workers that right to collective bargaining is tantamount to negating or emasculating their right to freedom of association. Indeed, the argument that freedom of association must include the freedom to protect the occupational interests of trade union members and therefore by necessary implication, inter alia, the right to bargain collectively, was confirmed in SCHMIDT & DALSTROM V. SWEDEN where the European Court of Human Rights endorsed the claim that freedom of association implies freedom of trade unions to engage in trade union activities to protect the interest of its members, and which by necessary implication includes the right to collective bargaining.
The European Social Charter: The European social charter promotes joint consultation between workers and employers and encourages the setting up of machinery for voluntary negotiations between workers and employers or their representative organization in order to regulate terms and conditions of employment by means of collective agreements. The European Social Charter went further in Article 6(1) (3) to empower workers to go on strike upon failure of collective bargaining.
The African Charter on Human and Peoples Right: The African Charter on Human and Peoples Right is also not silent on this issue of collective bargaining. Although, the African Charter does not specifically provide for the right to collective bargaining or for trade union rights; however, it submits that a community reading of Articles10, 5 , and 15 of the charter provides support and a basis for the right to collective bargaining. Furthermore, Article 25 places a duty on the states to promote rights contained in the charter, and Article 26 puts a duty on states to ensure that its legal system recognizes and enforces the right in the charter. The provisions of Article 26 are undoubtedly an important dimension of this right because laws without means of enforcement are like a body without a soul. However, despite the absence of direct provisions in the charter as touching on union formation, The African Commission on Human and Peoples’ Right which is established by The Charter has provided detailed guidelines on trade union rights in its Guidelines for the Submission of State Report. Under the guidelines, states are obliged to provide information on laws, regulations and court decisions that are designated to promote, regulate or safeguard trade union rights, including the right to collective bargaining. It is noteworthy that Nigeria has ratified this charter into its laws. In ABACHA V. FAWEHINMI, the Supreme Court held that, since the African Charter has been incorporated into Nigerian law it enjoys a status higher than a mere international convention.
The International Labour Organisation: The International labour Organisation is the supreme authority on labour standards. The International Labour organization provides the major human rights instrument that guarantees and advances the right of collective bargaining throughout the world. In 1948, the ILO adopted CONVENTION NO 87 on freedom of association and protection of right to organize. This convention established the right of all workers to form and join organization of their own choosing and set out guarantees for workers organization to function independently of government control. This right is moved further by convention no.98 (1949). The right to organize and collective bargaining goes on to protect workers against acts of anti-union discrimination in respect of their employment. In addition, the convention provides for the obligation to establish machinery appropriate to national conditions, where necessary to ensure respect for the right to organize and encourage the full development and utilization of the machinery for collective bargaining.
3.3 COLLECTIVE AGREEMENT: MEANING AND FUNCTION
Upon completion of collective bargaining and subsequent putting in writing, it transmutes into collective agreement.
According to a learned author, in Labour Law in Nigeria, it should be noted that this definition makes it possible for workers to negotiate a collective agreement with their employers without launching a formal union provided that their representative has been lawfully accredited. Collective agreements are to be deposited pursuant to section 3(1) of The Trade Dispute Act with the minister and failure to so do is an offence and attracts a fine of #100 upon conviction.
Collective agreements are very important in the determination of contracts of employment. That is, the contents of collective bargaining can be resorted to in the determination of the status of employment especially where letters of appointment are not so comprehensive.
Collective agreements is like a guard to the employee in industrial circles. A piece of collective agreement deposited with the minister assumes the status of a binding contract and can as it were be the subject of industrial action or even litigation in a court of competent jurisdiction.
3.4 LEGAL STATUS OF COLLECTIVE BARGAINING AND COLLECTIVE AGREEMENT.
Collective bargaining and collective agreements are to trade unions what words are to the legal draftsperson. Denial of these rights will simply render trade unions very impotent. Collective agreement as pointed out earlier is the product of collective bargaining. Under the Trade Dispute Act, parties to a collective agreement are expected to deposit same with the Minister of Employment and Productivity at least three copies of their agreement within 30 days of its execution. Where a copy of collective agreement has been so deposited, The Minister may by an order make the provisions of the agreement or any part thereof binding on the employers and workers to whom it relates. This means that either party may take legal action to enforce the agreement.
According to a learned author, there is however a serious objection to the enforceability of any collective agreement whosoever the parties may have been. Professor O Kahn-Freund one of the leading authorities in industrial law has suggested that collective agreement could not be enforced at all by court action because they are not contracts in the legal sense of that term, lacking the essential ingredient of contract namely the intention to contract. Freund suggests that a collective agreement is a kind of industrial code which is intended to be binding in honour only while Professor Wedderburn takes the view that the question of enforceability of collective agreement is not yet finally closed. The controversy surrounding the enforceability of collective agreement seems to be unsettled in Nigeria despite the provisions section 3(3) of The Trade Dispute Act, 2004
3.5 STATUS OF COLLECTIVE BARGAINING IN THE NIGERIAN SOCIETY: ASUU AS A CASE STUDY.
Ifeanyi Onyenoro in his paper titled: Human Capital in Nigerian Universities: The Presence of the past and the Thrust of the Future noted that the industrial crisis in our tertiary institutions is historical and constitutes parts of a wider governance crisis. He further noted that the efforts made to restore the system often pitched the Academic Staff Union of Universities (ASUU) against the government and its agencies, both at the federal and state levels. The conflicts have had a devastating impact on the university system in Nigeria.
The 1992 strike of ASUU, in particular, culminated in negotiation on the issues in dispute and the signing that year of a collective agreement between ASUU and the federal government of Nigeria regarded by ASUU as being of great value. This agreement was to be reviewed every 3 years to reflect social and economic changes including inflationary trends and cost of living. The agreement freely reached and duly signed by the government and ASUU unfortunately became a basis for intensive contest between the parties, so that up to 2003 there has rarely been a session without an industrial conflict, sometimes protracted, such as those of 1996 and 2002-3 that stretched for about six months.
The 1996 ASUU strike was basically carried out in defence of the 1992 agreement following violations of some of its sections by the Federal Military Government and university authorities. The government for instance refused to review the agreement when it was due in May 1995, contrary to the agreement , while the then Minister of Education, Mr. Ben Nwabueze, argued that the agreement was a document of limited obligation , only binding in honour.
The issue of ASUU and Federal Government has been a very long one. The truth remains that collective agreements when negotiated between the both parties is only used as a bait to send them back to school and not really to look into their welfare. In a nutshell, collective agreements keep failing the Academic Staff Union of Universities.
Collective bargaining and collective agreements are like lubricants on the wheel of industrial life. Remove this right from trade unions, they become like toothless bull dogs that can bark but not bite. The right to collectively bargain is also embodied in statutory provisions both municipal and international. However, in Nigeria, the problem with collective bargaining and agreement is really that of enforcement.
4.0 SETTLEMENT OF TRADE DISPUTE
Dispute is a natural phenomenon which an individual, an association, the government cannot do without encountering. In our daily intercourse, disputes are like recurring decimals; that is, you encounter it even when you do all you can to avoid it.
Even in the biblical days, disputes were not non-existent. Problems arose between God & man, brothers, and so on. The very important thing about dispute is not that they exist; but how the solution is going to come. Today, business and commercial circles are not exempted from these menace- disputes, though not with clash of arms.
4.2 MEANING AND NATURE OF TRADE DISPUTE
A trade dispute is defined by section 48 of the Trade Dispute Act, 2004 as any dispute between employers and workers, or between workers and workers, which is connected with the employment or non-employment or the terms of employment or conditions of work of any person. According to a learned author , two basic elements are to be further looked into from the definition. They are parties to a trade dispute and subject-matter of trade disputes.
For a dispute to qualify as a trade dispute there must be workers on one or both sides. It must be a dispute between workers and employers or between workers and workers. This was the holding of the court in the case of APENA V. NATIONAL UNION OF PRINTING PUBLISHING & PAPER PRODUCTS. A trade union as was opined per Lord Wright in the case of NATIONAL ASSOCIATION OF LOCAL GOVERNMENT OFFICERS V. BOLTON can also be a part of trade dispute.
Trade dispute must be between the proper parties and in respect of the proper subject matter for which workers can undertake legitimate industrial action. This goes to say that the disputes which relates to political or non-industrial subject-matter are excluded from the ambit of legitimate trade dispute. This position got judicial affirmation in the case of FEDERAL GOVERNMENT OF NIGERIA & ANOR V. ADAMS OSHIOMOLE & ANOR. The Nigerian Labour Congress called a general strike over the federal government’s decision to introduce a policy increasing the prices of petroleum products, including the introduction of #1.50 fuel sales tax on every litre of petrol. The federal government (as plaintiff) contended that a trade union can only embark on a strike over matters affecting the terms and conditions of employment of their members and that anything outside that will be an illegal and unlawful assembly. The court held that this was not a legitimate trade dispute in view of the subject- matter and that the action was merely a strike against the government qua government.
Heavy weather has been made about whether the internal affairs of the union and inter-union disputes are a trade dispute within the contemplations of the Trade Dispute Act. In KALANGO V. DOKUBO & ORS, the plaintiffs instituted a suit against the officers of the union who refused to quit office when their tenure expired according to the union’s constitution, and to call the annual conference to enable the union elect new officers. The defendants raised preliminary objections contending that intra-union disputes belonged exclusively to the jurisdiction of the National Industrial Court and not The State High Court were the action was commenced. The Chief Judge dismissed the application and the defendants appealed on the issue of jurisdiction. By a split judgement of 2-1, the court dismissed the appeal. Ikongbeh , JCA , said that to qualify as a trade dispute , “ the dispute must have emanated from matters relating to the way they have been employed or how they are being used for the job they have been employed to do. However, in his dissenting judgement, Ogebe, JCA (as he then was) , drew attention to the claims and held that the facts clearly disclosed that the dispute came within “ intra-union dispute .” The dissenting view of Ogebe, JCA (as he then was) in this case is the correct view. This is because it is in agreement with the Supreme Court’s view in UDOH V ORTHORPEADIC HOSPITAL MANAGEMENT BOARD. The Supreme Court took the view that an intra-union or inter –union dispute is a trade dispute within the contemplations of the Trade Disputes Act, 1976.
Trade dispute is not just any form of misunderstanding in the work arena. What amounts to trade dispute must be in relation to employment and consequently terms and conditions of service. Trade disputes in our society manifests via the following media:
STRIKE: Strike is a tool used in compelling the relevant authorities to look into the grievances of the striking party . It occupies a central place in the industrial arena of any country L. Mac Farlane , in his book titled: The Right to Strike had this to say about strike :
“The right to strike is a keystone of modern industrial society. No society which lacks that right can be democratic. Any society which seeks to become democratic must secure that right.”
Strike according to the indomitable Lord Denning , M.R. , is a concerted stoppage of work by men , done … with a view to improving their wages or conditions of employment , or giving vent to grievance , or making a protest about something or otherwise supporting or sympathizing with other workmen in such endeavour
The meaning of strike is also provided in the relevant law regulating trade dispute.
A cursory glance at the both definitions reveals that the former provided by Lord Denning includes “protest about something” other than wages and conditions of employment as well as “sympathy strike.” These were not reflected in section 48 of The Trade Dispute Act.
LOCKOUT: Lock-out is the converse of a strike. It is the right of an employer to lock his employees out of the business premises in order to compel them to accept his terms and conditions of employment. From the nature of lock –outs, it is evident that it is preceded by strike from employees. Often, when workers embark on an industrial action which the employer or third party intervention has failed to resolve, the employer might find it expedient to lock –out the workers, either to reduce overhead cost or to safeguard lives and properties
PICKETING: Picketing is a persuasive form of trade dispute. It is employed by striking workers to persuade non-striking workers to join them on strike. It involves a situation where a group of workers go to the factory gate or any other place of work during a strike to persuade others not to go to work. The rationale for picketing has some statutory restraints attached to it .Section 43 (1A) of The Trade Unions Act, provides that no person shall subject any other person to any kind of constraint or restriction of his personal freedom in the course of persuasion. From the tenor and colour of section 43 (1A) of the Trade Unions Act, it can be deduced that all that is expected of the striking workers is mere persuasion and there should be no atom of force.
WORK-IN: Work –in is another form of industrial action. It is a situation where workers take steps to interfere with the employer’s business by seizing control of either the whole or part of the premises in order to put pressure on the employers to accede to their requests. Strikes and work-in share some similarities; however, the difference between the both of them is that in the former, the strikers stay at home, whereas in the latter, the workers occupy the place of work.
4.3 METHODS OF SETTLEMENT
Industrial conflict are envisaged by the law vis a vis The Trade Dispute Act. The Trade Dispute Act makes very copious provisions on how industrial conflict can be resolved. Resolution of industrial conflicts can be in court or out of court. Of importance under this heading, is the resolution in court. In Nigeria, the National Industrial Court is the Supreme Court for all labour-related disputes. Exceptions is however, made in matters relating to issues of fundamental human rights as enshrined in chapter 4 of the constitution on which appeal lies as of right to the Court of Appeal.
The National Industrial Court is a creation of the law. By the provisions of section 7 of The Act, The National Industrial Court has been vested with wider jurisdiction of adjudication and enforcement and that exclusively on trade union and dispute settlement. However , the creation of the National Industrial Court as a specialized court of labour and trade dispute settlement is still in the arena of controversy . There are still very many cases of trade and industrial dispute lying at the various Federal and State High Courts inspite of the provisions of section 7 of The Act and preliminary objections to their jurisdiction has been lost for very obvious reasons – the conflict with the constitution which vest jurisdiction on this courts. In OLORUNTOBA-OJU & ANOR V.DOPAMU, the Supreme Court, per Mohammed JSC, relied on the constitution to confer jurisdiction on the Federal High Court even on matters of trade dispute
The purport of this position is that the constitution of the Federal Republic of Nigeria , in the words of Karibi-Whyte , JSC (Retired) , in the celebrated case of MISCELLANEOUS OFFENCES TRIBUNAL V. OKOROAFOR , is the fons et origo of all laws. Fons et origo means the source and origin of all laws. The constitution is the platform upon which all legislations are tested and conflicting portions rendered null and void to the extent of its inconsistency-section 1 (1) –(3).
4.4 ALTERNATIVE TRADE DISPUTE RESOLUTION
The Nigerian law acknowledges the role of voluntary grievance procedures in the settlement of trade dispute and accordingly requires the disputing parties to first attempt settling their disagreements by existing negotiation machinery at a meeting between both parties.
In the words of a learned author, a grievance may be defined as the dissatisfaction by any employee or a group of employees over perceived right or interest to which the individuals or the group feels entitled. From the definition, there are two types of grievance which are individual grievance and collective grievance. Individual grievance refers to the individual worker’s protest against a disciplinary measure or dissatisfaction of a group of employees or the entire members of the union. It is important to note that individual grievance can metamorphose into a collective grievance if the workers see the action of management as a challenge to the union together.
When misunderstandings in the workplace are being dealt with by these grievance procedures, the parties must not resort to industrial action. Doing so will be contrary to law.
Mediation is another form of alternative dispute resolution. Where the parties fails to resolve the dispute after exhausting the voluntary grievance procedure, or in the absence of such means of settlement , they are required within seven days, to meet to resolve the dispute amicably under the presidency of a mediator mutually agreed upon and appointed by the parties. If the dispute cannot be settled within the seven days by the mediator, a report of the efforts made and the points of disagreement must be furnished to The Minister of Labour by or on behalf of either party within three days of the end of the seven days. Upon receipt of the report, The Minister is empowered to review action already taken by the parties on the matter. If he is satisfied that the procedures laid down in section 4 and 6 have not been complied with, he may refer the matter back to the parties to take such further steps necessary to achieve an amicable settlement.
If the dispute still remains unresolved after all the necessary steps have been taken , or parties refuse to take such steps , The Minister must then set in motion appropriate machinery prescribed by law by exercising his powers under sections 8, 9, 17 or 33. The options open in this circumstance to The Minister is the appointment of a conciliator; reference of dispute to a board of inquiry; or The Industrial Arbitration Panel; or The National Industrial Court.
Conciliation is another method of alternative dispute resolution. The Minister may appoint a fit person to act as a conciliator for the purpose of effecting a settlement of dispute. His duty is to look at the cause of problems and by negotiation effect settlement. Where the dispute is settled within seven days of his appointment, the conciliator is expected to submit to The Minister a memorandum of settlement signed by the representatives of the parties and ipso facto the terms contained therein shall automatically become binding on the parties thereto. Any breach thereof is made an offence under the Act. However, where the settlement is not reached within seven days or if after negotiation with the parties the conciliator is satisfied that he will not be able to bring about settlement , he must report this fact to The Minister of Labour who is obliged to refer the dispute to the Industrial Arbitration Panel within fourteen days.
The Industrial Arbitration Panel is resorted to in a situation where conciliation has failed. The Minister is required to refer the dispute for settlement to The Industrial Arbitration Panel within 14 days of receipt of the report of conciliation. The panel consists of a chairman and a vice-chairman and ten other members all of whom are appointed by The Minister. Of the ten, at least two must represent the interest of the employers while at least two must represent that of the employees. For the purpose of each dispute referred to the IAP, the chairman, having regard to the subject-matter of the dispute and the means already adopted to settle it, constitutes an arbitration tribunal drawn from the members of The Industrial Arbitration Panel which may consist of a sole arbitrator assisted by assessors, or one or more arbitrators nominated by the workers concerned and an equal number of arbitrators nominated by the employers concerned, presided over by the chairman or vice-chairman . Where an arbitrator is assisted by an assessor, he makes the award. In other cases, the award is arrived at by the majority of the members. An arbitration tribunal is expected to make its award within 21 days unless the period is extended by The Minister pursuant to his powers in section 13(1) of The Trade Dispute Act. The award shall be communicated to The Minister as soon as made. Upon its receipt, The Minister may, if he considers it desirable to do so, refer the award back to the tribunal for reconsideration. Where The Minister chooses not to refer the matter back for reconsideration, he shall subsequently serve a notice on the parties setting out the award and informing them of their right to objection to the award within seven days, failing which the award is to be confirmed by The Minister.
Disputes are part and parcel of our everyday life. Industrial arena is not exempted. The law as we know is against self- help and as such makes relevant provisions for the procedures industrial conflict may follow to get resolution. The National Industrial Court is a court with specialized jurisdiction, created exclusively to look into industrial matters. The jurisdiction of the court is spelt out in section 7. However, the provisions of section 7 looks like an almost ineffective provision owing to the fact that they are to an extent conflicting with the provision of the constitution which vests jurisdiction on The Federal High Court and The State High Court respectively. The law also takes into contemplation the rigours involved in litigation and also makes provision for alternative means of dispute resolution.
CONCLUSION AND RECOMMENDATION
Taking into cognizance the fact that one worker standing alone cannot garner momentum to influence his employers to take policies which are favourable to him, the law recognizes the right and even empowers the worker to join a union to protect his interest. However, the right to join trade unions, like every other right, is not an absolute right but one which is qualified and also is given a touch of panache by its enforceability. The case of ETIENAN V. REGISTRAR OF TRADE UNIONS, is one which amplified section 46 of the constitution, vis-à-vis trade union formation and membership. In this case, the registrar of trade unions refused registration of a proposed union without giving any reasons for his refusal. He (The Registrar) averred that grounds of his refusal were contained in secret documents which could not be made public. He added that it could take him a long time to obtain permission from the powers that be to produce the documents. Justice John Idowu Conrad Taylor observed that, although he hard sympathy for The Registrar for the difficulties placed before him in producing the documents, he had no sympathy for his lack of courage to do what was right.Accordingly, The Registrar was ordered to register the union within 30 days.
The international community on her own has not left this right to suffer as she has in various legal instruments asserted this right.
Trade unions, just like human persons, go about their responsibility in such a manner that is prescribed by laws. One of such instrument employed by trade unions in pursuit of her principal aim of securing better conditions of service for their members is collective bargaining. Collective bargaining transmutes to collective agreement upon being deposited with the Minister of Labour. Implementation or failure to implement the terms of collective bargaining breeds either peace or disharmony in the industry. However, in the event of disharmony, The Trade Dispute Act, makes adequate provision to cater for it.
Having highlighted all these, I will now go on to make some recommendations, which in my view, is germaine to the growth and development of trade unionism and consequently impact the larger society positively.
The first area deserving recommendation is section 11(1) of The Trade Union Act . I am of the opinion that the academic staffs unions of various tertiary institutions deserves a place in section 11(1) of the Trade Unions Act. The Universities, Polytechnics and Colleges of Education are like any other money-spinning companies and should be able to take care of the social benefits of their staffs even with little or no dependence on the government. They collect tuition fees and other form of fees per academic sessions. They also enjoy goodwill from the public. Evident in this respect in UST is the CORPORATE SOCIETY INITIATIVE. This scheme has helped the university gather the required funds and goodwill necessary to run an institution. The words of Professor B.B. Fakae, the indomitable Vice-chancellor at the last convocation confirms this:
“On November 26th, 2013, the university launched the RSUST CORPORATE SOCIETY DAY PROJECT. This is our initiative in exploring the potentials of the corporate community in Nigeria and abroad to support the university through endowment and funding for research, infrastructure, curriculum development and expansion and strengthening our ICT backbone. In this regard, we will like to commend the banks and various corporate organizations that have responded to this initiative by expressing their interest in the areas they wish to collaborate and do business with the university. Notable among them are SPDC, TOTAL E & P, MTN, NDDC whose hostel should be completed as soon as possible. We are calling on public spirited individuals and companies to visit our corporate society office for enquiries on how to participate in this initiative. We believe that one of the best things we can do for any society is investment in education.”
In summary, I strongly recommend that Academic Staff Union of various tertiary institutions be scraped pursuant to its inclusion in section 11(1) of the Trade Unions Act but without prejudice to the fact that they can have a consultative forum pursuant to section 11(2). Another area that requires urgent attention to enable trade unions function very effectively is the aspect of being allowed to be affiliated to the international community. Being affiliated to the international community will enable trade unions to be protected even better. This right of affiliation is provided for in The International Labour Organisation Convention. It is pathetic to note that here in Nigeria, this right has not seen the light of day. It is my submissions that Nigeria goes a step further to get this right domesticated as part of our corpus juris pursuant to section 12(1) of the constitution of the Federal Republic of Nigeria, 1999.
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