OVERVIEW OF LEGAL FRAMEWORK OF NIGERIA'S INDUSTRIAL RELATIONS
The fact of depression or rather more appropriately underdevelopment of an economy does not legally justify the denial of workers rights particularly those that are in the statute books.
In spite of its beggarly prescriptions for solving Africa's economic crisis, the NEPAD document contains two admissions which are:
• The impoverishment of the African continent was accentuated primarily by the legacy of colonialism, the cold war, the workings of the international economic system and the inadequacies of and shortcomings in the policies pursued by many countries in the post-independence era.
• For centuries, Africa has been integrated into the world economy mainly as a supplier of cheap labour and raw materials. Of necessity, this has meant the draining of Africa's resources rather than their use for the continent's development. The drive in that period to use the minerals and raw materials to develop manufacturing industries and a highly skilled labour force to sustain growth and development was lost. Thus, Africa remains the poorest continent despite being one of the most richly endowed regions of the world.
• The Constitution and Labour Rights
The Constitution of the Federal Republic of Nigeria 1999 is the supreme law of the country. Any law, which is inconsistent with its provisions, are to the extent of the inconsistency null and void
(Section 1 (3) of the Constitution). It follows that any provision of a labour law which is in conflict with the Constitution is invalid. It is imperative to consider constitutional provisions which deal with labor issues.
Section 40 guarantees the right of every person to form or belong to any trade union or any other association for the protection of his interest. Section 45 however permits derogation from this all-important right in the interest of defense, public safety, public order morality or public health or for the purpose of protection of the right and freedom of other persons. Presumably, the Trade Disputes (Essential Services) Act and the Trade Unions Act itself were made pursuant to Section 45.
In Chapter II of the Constitution (Fundamental Objectives and Directives Principles of State Policy) Section 17 (3) deals with labour matters:
• Opportunity for securing adequate means of livelihood.
• Just and humane conditions of work.
• Health, safety and welfare of all persons in employment
• Equal pay for equal work without discrimination on any ground whatsoever
• Prohibition of child and aged labour
Regrettably, the provisions of Section 17 are not enforceable. This is because Section 6 (6) © of the constitution makes them non-justifiable. The Section stipulates that the judicial powers vested in the court shall not extend to any issue or question as to whether any act or omission by any authority or person or as to whether any law or any judicial decisions is in conformity with the Fundamental Objectives and Directive Principles of State Policy set out in Chapter II. It follows that no action can lie to enforce the provisions of sections 16, 17 and 20 of the Constitution. In other words, the provisions are paper tigers.
They are completely worthless for protecting Nigerians. The unfortunate implication of the ouster of court's jurisdiction in respect of Chapter II is that every government and person can violate the so-called fundamental objectives without any adverse legal consequence. In other words, section 13 which states that: 'It shall be exercising legislative, executive or judicial powers, to conform to, observe and apply the provisions of this Chapter of this Constitution' is of no legal consequence.
In South Africa where it is felt that government does not have the capacity to guarantee immediately certain rights such as the right to housing, they insert a provision mandating the executive to submit periodic report to the parliament on efforts by government to realize the provision. This is what is known as the progressive realization clause. In Nigeria apart from the absence of such a provision our government in fact directly violates the provisions of Chapter II.
That is the case with the mindless privatization of our collective heritage by the government through the activities of the Bureau of Public Enterprises (BPE).
Privatization is clearly a breach of section 16 (1) (c) & (d) which enjoins government to manage and operate the major sectors of the economy, while others may participate only in the minor-sectors of the economy. But then the ouster of court's jurisdiction allows this infringement to go unchallenged. Section 6(6) (c) has to be expunged from the Constitution in order to restore whatever is left of the integrity of the Constitution.
The Ruling Elite and Imposition of Labour Statutes
There is no doubt that the ruling elite in this country sees itself as the errand workers of their counterparts in the advanced western societies. The tendency has been for them to accept dictation from the so-called experts concerning labour policies without considering their ultimate impact on our economy. Thus such laws like the Nigeria Export Processing Zones Authority Act were promulgated on the prompting of western societies that alone can benefit, as a result of their huge comparative advantage and access to finance capital controlled in fact by them, from the exemption from all federal, state and government taxes, levies and rates.
The Act also permits the approved enterprises to import into an EPZ, free of customs duty, any capital goods, consumer goods, raw materials and components or articles intended to be used in connection with an approved activity within the zone. Is it not surprising that no provision is inserted in the law to restrict capital flight from foreign companies enjoying these unprecedented incentives?
Although, the stated rationale for the law is to encourage foreign investment, it is clear that the law will further entrench Nigeria's dependence in the International economic system. Of course the law was as usual imposed by the military without any consultation as to its desirability or implication. In order to ensure that the accumulation of the nation's resources will go unchallenged, the Act provides that Strikes and lockouts are prohibited for a period of 10 years of commencement of operations within an EPZ.
The Act conjures the frightening image of the Royal Niger Company in providing that a zone established pursuant to the Act may be operated
and managed by a public, private or a combination of public and private entity under the supervision and approval of the NEPZA (Section 1(2)). For a private commercial interest to be managing any territory in Nigeria is a clear violation of the constitution that stipulates that no part of the country shall be governed except in accordance with the provisions of the Constitution.
The Pension Reforms Act, 2004 is yet another example of how labour laws are imposed on the working people in this country. Although the National Assembly went through the charade of a public hearing, it nevertheless imposed the Act on private sector workers in what seems a clear and violent violation of item 44 of the Exclusive Legislative List that makes it clear that it could only enact pension law in respect of moneys drawn from the Consolidated Revenue Fund of the Federation or any other federal funds. It appears that the aim is to enable some members of the ruling elite engage in further primitive accumulation. No one has asked who stole billions of Naira belonging to workers under the National Provident Fund Scheme.
There is no guarantee that the Pension Fund Administrators and the Pension Custodians will not help themselves to the workers money in spite of the bogus oversight functions accorded the National Pension Commission under the Act. The emergence of the Trade Union (Amendment) Act 2005 in the aftermath of labour and civil society challenge to the ceaseless increase in the prices of petroleum products demonstrates that it was aimed at intimidating labour. The speed of its passage at the National Assembly and the fact the government succeeded in further restricting or rather achieving a statutory blunting of the weapon of strikes, which was its real aim, shows clearly that the legislators and the executive would work in tandem to impose any law that would protect the status quo as member of the ruling elite.
Divergence or non-conformity with global best practice
Due to stealing of public funds, misplacement of priorities and mismanagement of the economy, Nigerian workers earn some of the most miserable wages in Nigeria. The administration of laws and policies is virtually non-existent. There are hardly up to ten factories inspectors for example. Every now and then industrial accidents consume our people due to lack of the necessary manpower to enforce even the primitive laws.
The Labour Act makes lengthy provisions as to the duties of authorized labour officers, but one has not been fortunate to see anyone that mistakenly ran into one in the last ten years. The consequence of all this is that Nigeria has become the punching bag for delegates at the annual ILO Conference as our labour practices and law diverge remarkably and dangerously from the standards of the organization. Yet one cannot recall any ILO Conference that Ministry of labour officials did not attend. Since it is unlikely that they enjoy the annual reprimands, it must be that their participation is estacode-driven.
Major Labour Statues
In this segment of the paper we shall deal with an examinationof certain problematic provisions of those laws that have direct implication for labour and trade unionism.
Trade Union Act
The requirement of compulsory registration has generated rather lively controversy. For many it is in effect analogous to the restriction placed on unregistered political parties by the electoral law. While its origin may be traced to the wish of the colonial.
Masters to exercise effective control on the union, quite a number of people feel that it gives the government too wide a latitude to refuse registration to a trade union it either does not like or cannot control. On the other hand, those who support the requirement point to the need for government to play a regulatory role in industrial matters. They feel it strengthens trade unionism as only big unions tend to be registered.
No Strike and No Lockout Clauses in Collective Bargaining Agreement
Workers and employers are respectively required to insert 'no strike' and 'no lock-out' clauses in collective agreements. While some people point to this requirement as authority for the view that workers have no right to go on strike, others have argued that the right of workers to go on strike is implicit in the sections 23 and 43 of the law which stipulate that no court action can be filed against union officials for acts committed during strike action. The global trend is that workers have a right to strike. There is no reason why Nigerian workers cannot enjoy the same right. This may however be a mute point as in practice, workers have gone on strike without effective restriction.
Punishment under the Act
One principal aim of sanctions generally is both general and specific deterrence. But the sanction attached to some forbidden acts or omissions are unlikely to deter. Indeed in some cases they tend to
trivialize the matter. This would seem to be the case for the punishment for refusing to recognize a union. The law merely prescribes a paltry sum of N1000. The poser is: What happens in case of continuing breach of the provision? Is an employer permitted to refuse to recognize a union simply because he or she can pay N1000 each time a conviction is secured. When it is realized that it might
take up to 5 years on the average for a criminal trial to terminate, it should be clear that the sanction does not really count for much. Freedom of Association (Section 40 and 45). There exists a delicate tension between the two desirable values of ensuring that workers are free to associate and of preventing mushroom and unviable unions. Quite a number of international instruments particularly Convention 87 of the International Labour Organization recognize the right of workers to belong to unions of their choosing.
In Nigeria, while the Constitution in Section 40 guarantees the right to form or belong to any trade union, the requirement of compulsory registration of the union and the rigid requirement laid down by the Trade Union Act prospective unions makes this right at best illusory.
In any case, section 45 of the constitution empowers the senate to enact law, Such as the Trade Union Act, which restricts the right in section 40 provided such law is justifiable in a democratic society in the interest of defence, public safety, public order, public morality or public health. Trade Unions (Amendment) Act, 2005
The Trade Unions Act has been further amended. The amendment came into force on 30th March, 2005 when the President assented to it. The Act has continued to generate lively comments from the stakeholders. It has introduced some fundamental changes into the law governing trade unions and by necessary implication also industrial relations.
It is therefore necessary that workers are familiar with its provisions. This is why we are treating separately from the Principal Act.
Membership of Trade Unions
Section 12 of the Trade Union Act (hereinafter called the 'principal Act') forbids denial of membership of a trade union to a person on the ground only that the person is of a particular community, tribe, place of origin, religion or political opinion. But it does not protect a worker who does not want to belong to a trade union. This section has now been amended by the insertion of a new sub-section 4 which reads: 'notwithstanding anything to the contrary in this Act, membership of a trade union by employees shall be voluntary and no employee shall be forced to join any trade union or be victimized for refusing to join or remain a member'
The comment one would like to make on this amendment is that it has only brought the Act on the same keel with the Constitution and existing practice. Section 40 of the Constitution already guarantees the right to voluntary membership of trade unions. According to section 40 of the constitution every person is entitled to form or belong to any trade union or any other association for the protection of his interests. If a person May belong it follows that he may also not belong. Even if it is conceded that the principal Act was in conflict with the constitution on this issue, it is clear that the right protected by the constitution will prevail on the ground of constitutional supremacy.
Indeed in practice one is not aware of a case in which a member of a trade union complains that he was forced to remain in a union. If there is such a case and the worker presses the matter in court he or she would have succeeded even without the amendment. This is more so that section 5(3)(b) Labour Act permits a junior worker to ask his or her employer in writing not to deduct union dues from his or her salary. This is what is known in Nigerian industrial relations parlance as 'contracting out'. In the case of senior workers union dues cannot be deducted from their salaries unless they agree in writing to make voluntary contributions to the trade union. It is fair to say that the amendment has not added anything significant to the law.
There also seems to be a conflict between the amendment and section 3(2) of the principal Act that empowers the Registrar of Trade Union not to register a new union in an industry where there is a union in existence. The courts would have to pronounce on this issue before there can be some certainty.
Before the amendment, the employer had a duty to make deduction from the wages of every workers who is eligible to be a member of any trade union and pay such deductions to the registered office of the trade union after deducting what is due to the Central Labour Organisation.
A new section 16A has been introduced. The section only requires an employer to make deductions from the wages of workers who are members of the union and not those who are eligible to be members. In other words, there is no need for the operation of the contracting out system as workers must have indicated their intention to be members before union dues can be deducted from their wages. In the past deductions are made from the salaries of the junior workers who were eligible to be members of the union unless they asked their employers not to do so. That would no longer be the case.
Also, the employer would not have to deduct any sum to the Federation of trade unions. The trade unions would have to pay directly and on their own their dues to the federation. This appears sensible as the employer is not the agent of the federation. It was an unnecessary interference in the affairs of the Central Labour Organisation (now federation - se section 7 of the Amendment) for the employer to be remitting dues of trade unions to it. However, it is wrong to give the employer the unnecessary discretion of paying deductions to the trade union 'within a reasonable period or such period as may be prescribed from time to time by the Registrar'.
This amendment may encourage some difficult employers to seek to paralyze the unions by withholding their dues for what is reasonable is a question of fact to be decided by the court. Not many unions would want to spend their resources litigating on such a matter. Even if they want to, the law should not create a basis for such unnecessary and expensive approach to industrial relations. The old system worked well and there is no reason why we should not have stuck to it.
Section 17 has been amended to remove the percentage of union dues, which was 10% that unions should pay to the federation. The trade unions are now required to pay whatever is contained in the constitution of the federation. This was the case before the amendment in 1996. It is democratic and allows for flexibility in determining the rate payable by the unions given the effect of inflation in an unstable economy such as ours. It is a lesson to our lawmakers to avoid hasty and unnecessary amendments of legislations unless there is an overriding need to do so.
Trade Unions and Collective Bargaining
Registered trade unions were entitled to recognition by employers without further assurance once there were members of the unions in the establishment. The old section 24 which conferred this right has been amended. By the new section 24 all registered trade union shall constitute an electoral college to elect members who will represent them in negotiations with the employer in collective bargaining. By the same token for the purposes of representation in tripartite bodies all the registered federation of trade unions shall constitute an electoral college taking into account the size of each registered federation of trade unions.
There are a few problems with the amendment. First, the amendment does not prescribe the modalities for constituting an electoral college. This has the tendency to encourage favoritism an employers may prefer to negotiate only with the sweetheart unions for obvious reasons. Of course this would generate industrial strife more than ever before. There is also no provision as to how dispute on which union should represent workers in collective bargaining should be resolved. One had thought that the principle of most representative union should have been adopted with a provision for arbitration in the event of dispute on which union is sufficiently representative.
The other concern has to do with the fact that section 3(2) of the principal Act has not been amended. That section states clearly that no 'trade union shall be registered to represent workers or employers in a place where there already exists a trade union'. The question is where are the other trade unions that would constitute Electoral College coming from. It appears the new section 24 is incapable of enforcement until section 3 has been amended.
Federation of Trade Unions
'Central Labour Organisation' has been replaced by federation of trade unions. (see section 7 of the Amendment). By the deletion of section 33, the Nigeria Labour Congress is no longer the only registered federation of trade unions. However, the NLC shall continue to exist unless and until it is dissolved, amalgamated, judicially forfeited or its registration cancelled. (see section 8(3) of the Amendment).
Expectedly section 30 of the principal Act has been amended to allow trade unions in different trades, occupations or industries to come together and form a federation.
This is necessary in view of the fact that federation has now replaced central labour organization in our trade union law. This amendment brings our law in tandem with the common practice in other jurisdictions. Permitting the formation of other federation of trade unions is democratic and so justifiable. The existence of the NLC as the only Central Labour Organisation by virtue of statute was contrary to the Constitution and some Conventions of the ILO and was untenable. Another implication of the amendment is that the previous prohibition of so-called senior staff association, including ASUU, from affiliating to the NLC has been removed.
A federation may be registered if it satisfies, among other conditions, the following:
• its main objective is to represent the interest of employees;
• it is made up of 12 or more trade unions none of which shall have been a member of another registered federation of trade union;
• It had been established by resoliution of the national delegated conference of the trade unions that constitute its members
• It has adopted a name that does not resemble the name of another federation of trade unions.
The Registrar has 90 days to decide whether or not he or she would register the federation. A registered shall be issue with a certificate of registration. Those aggrieved by refusal are not given the right to appeal the decision of the Registrar as is the case with refusal to register trade unions. (see section 5(4)(b) of the principal Act). This appears to be an omission that ought to be rectified at the earliest occasion.
The requirement that none of the unions intending to form a federation of trade union must have belonged to another registered federation may be defended on the ground that it is aimed at discouraging cross-carpetting and the attendant problems, it certainly offends the provision of the Constitution on freedom of association and Conventions 87 and 98 of the ILO. Furthermore, it has the tendency to make union leaders complacent. Maybe what should have been done is to have a two year transitional period within which the restriction would operate. This would ensure the needed initial stability.
Strikes and Lock-outs
The amendment stipulates conditions that must be satisfied before strikes and lock-outs can take place. These conditions are listed in section 30 of the Act. (see section 6 of the Amendment). The
conditions are as follows:
1. The person, trade union or employer must not be engaged in the provision of essential services as defined in the Trade Disputes Act. (see section 6(9) of the Amendment).
2. The strike or lock-out concerns a dispute of right which is defined as a labour dispute arising from the negotiation, interpretation or implementation of a contract of employment or collective agreement under the Trade Unions Act or any other employment law.
Right to Picketing
Workers have a right to go near a house or place of work to persuade any person to work or not to work, if it is done in contemplation or furtherance of a trade dispute (Section 42). Thus workers cannot be charged with any offence arising from peaceful picketing.
Trade Disputes Act
Cumbersome Dispute Resolution Procedure (Section 17)