Observation (CEACR) - adopted 2006, published 96th ILC session (2007)

Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87) - Nigeria (Ratification: 1960)

The Committee notes the Government’s report. It also notes the conclusions and recommendations reached by the Committee on Freedom of Association in Case No. 2432.

The Committee further notes the comments of the International Confederation of Free Trade Unions (ICFTU) dated 10 August 2006, addressing several legislative issues and numerous violations of trade union rights in practice. In particular, the ICFTU alleges that the criminal trial of six trade union leaders arrested in September 2004 was still not completed, and refers to numerous instances of intervention in trade union activities, including arrests and acts of violence, by the police and the state security services. The Committee requests the Government to communicate its observations on these comments in its next report.

The Committee notes the Trade Union (Amendment) Act, 2005, and draws the attention of the Government to the following points.

Article 2 of the Convention. (a) Legislatively imposed trade union monopoly. 1. In its previous comments, the Committee had raised its concern over legislatively imposed trade union monopoly. In this respect, it requested the Government to amend section 3(2) of the Trade Union Act, which restricted the possibility of other trade unions from being registered where a trade union already existed. In its report, the Government indicates that section 3(2) has been amended by the Trade Union (Amendment) Act. Noting that there is no such amendment in the language of the Act, the Committee reiterates that under Article 2 of the Convention workers have the right to establish and to join organizations of their own choosing without distinction whatsoever (see 1994 General Survey on freedom of association and collective bargaining, paragraph 45). It therefore requests the Government to amend section 3(2) of the principal Act so as to ensure that workers have the right to form and join organizations of their own choosing even if another organization already exists.

2. The Committee notes with satisfaction that under the Trade Union (Amendment) Act, section 33 of the principal Act, which previously required all registered trade unions to be affiliated to the central labour organization named in the same section, was repealed.

In its previous observation, the Committee requested the Government to provide information on the impact of the deletion of section 33 of the Trade Union Act, which provided that the Nigeria Labour Congress (NLC) shall be registered as the only central labour organization in Nigeria, on the existence and functioning of the NLC. The Committee notes the Government’s indication that the NLC is still in existence.

(b) Organizing in export processing zones. The Committee notes the Government’s statement that the Federal Ministry of Labour and Productivity is still in discussion with the EPZ authority on the issues of unionization and entry for inspection in the export processing zones. The Committee therefore once again requests the Government to take the necessary measures in the near future to ensure that EPZ workers are guaranteed the right to form and join organizations of their own choosing, as provided by the Convention, and to transmit a copy of any new laws adopted in this respect. It further requests the Government to indicate the measures taken or envisaged to ensure that representatives of workers’ organizations have reasonable access to EPZs in order to appraise the workers in the zones of the potential advantages of unionization.

(c) Organizing in various government departments and services. In its previous comments, the Committee requested the Government to amend section 11 of the Trade Unions Act, which denied the right to organize to employees in the Customs and Excise Department, the Immigration Department, the prison services, the Nigerian Security Printing and Minting Company, the Central Bank of Nigeria, and Nigerian telecommunications. The Committee notes that this section was not amended by the Trade Union (Amendment) Act and that according to the Government’s statement, the Collective Labour Relations Bill, pending before the lower chamber of Parliament will address this issue. The Committee recalls that workers, without distinction whatsoever, shall have the right to establish and to join organizations of their choosing and that the only exceptions authorized by Convention No. 87 are members of the police and armed forces, who should be defined in a restrictive manner and should not include, for example, civilian workers in the manufacturing establishments of the armed forces. Furthermore, the functions exercised by employees of customs and excise, immigration, prisons and preventive services should not justify their exclusion from the right to organize on the basis of Article 9 of Convention No. 87 (see General Survey, op. cit., paragraphs 55 and 56). The Committee therefore requests the Government to take the necessary measures to amend section 11 of the Trade Union Act, which is still in force, and keep it informed of the progress made towards the adoption of the Collective Labour Relations Bill and send a copy of the legislation, once it is adopted.

(d) Minimum membership requirement. The Committee had previously expressed its concern over section 3(1) of the Trade Unions Act requiring 50 workers to form a trade union. The Committee notes the Government’s statement that the national practice has shown that a 50-membership threshold does not hinder the establishment of a trade union. The Committee considers that even though this minimum membership would be permissible for industry trade unions, it could have the effect of hindering the establishment of enterprise organizations, particularly in small enterprises. In these circumstances, the Committee is therefore bound to reiterate that this number is too high and requests the Government to take the necessary measures to reduce the minimum membership requirement, particularly in respect of enterprise trade unions, and thus ensure the right of workers to form organizations of their own choosing.

Article 3. The right of organizations to organize their administration and activities and to formulate programmes without interference from the public authorities. (a) Export processing zones. The Committee recalls that it had previously requested the Government to indicate the measures taken or envisaged to ensure that workers in EPZs have the right to freely organize their administration and activities and to formulate their programmes without interference by the public authorities, including through the exercise of industrial action. Noting the Government’s indication that the EPZ authority is not opposed to trade union activities and that the Federal Ministry of Labour and Productivity is still in discussion on this issue, the Committee reiterates its previous request and expects that the necessary measures will be taken without delay so as to ensure that workers in EPZs enjoy the rights under the Convention.

(b) Conditional check-off facilities. The Committee had previously expressed its concern over section 16 of the Trade Unions Act, which conditioned check-off facilities on the inclusion of “no-strike” clauses. The Committee notes with satisfaction that new section 16A does not subject check-off facilities for workers to any such conditionality.

(c) Administration of organizations. The Committee recalls that, in its previous comments, it had requested the Government to amend sections 39 and 40 of the Trade Unions Act in order to limit the broad powers of the registrar to supervise the union accounts at any time and to ensure that such a power was limited to the obligation of submitting periodic financial reports, or in order to investigate a complaint. The Committee notes that these sections were not amended under the new legislation and that the Government refers to the Collective Labour Relations Bill. The Committee trusts that the new legislation to which the Government refers will address this matter.

(d) Right to strike. 1. Compulsory arbitration. The Committee notes that section 30, as amended by section (6)(d) of the Trade Unions (Amendment) Act, continues to rely on the Trade Disputes Act to restrict strike action through the imposition of a compulsory arbitration procedure leading to a final award. The Committee has already pointed out on several occasions that such a restriction, which is binding on the parties concerned, constitutes a prohibition which seriously limits the means available to trade unions to further and defend the interest of their members, as well as their right to organize their activities and to formulate their programmes. The Committee therefore once again requests the Government to take the necessary measures to amend section 7 of Decree No. 7 of 1976 amending the Trade Disputes Act in order to limit the possibility of imposing compulsory arbitration to only essential services in the strict sense of the term, public servants exercising authority in the name of the State or in the case of acute national crisis.

2. Strike quorum. The Committee notes that section 6 of the Trade Union (Amendment) Act amends section 30 of the principal Act by inserting subsection (6)(e), which requires the observance of a quorum of a simple majority of all registered trade union members for the calling of a strike. The Committee considers that if a member State deems it appropriate to establish in its legislation provisions, which require a vote by workers before a strike can be held, it should ensure that account is taken only of the votes cast (see General Survey, op. cit., paragraph 170). It therefore requests the Government to take the necessary measures to amend new section 30(6)(e) accordingly, so as to bring it into conformity with the Convention.

3. Restrictions relating to essential services. The Committee notes with concern that section 6 of the new Act relies on the definition of “essential services” provided for in the Trade Disputes Act (1990) to restrict participation in a strike. Specifically, the Trade Disputes Act defines “essential service” overly broad so as to include, amongst others, service for or in connection with: the Central Bank of Nigeria, the Nigerian Security Printing and Minting Company Limited, any corporate body licensed to carry on banking business under the Banking Act, the postal service, sound broadcasting, maintaining ports, harbours, docks or aerodromes, transportation of persons, goods or livestock by road, rail, sea or river, road-cleansing, and the disposal of night soil and rubbish. The Committee recalls that essential services are only those the interruption of which would endanger the life, personal safety or health of the whole or part of the population (see General Survey, op. cit., paragraph 159). It once again requests the Government to take the necessary measures to amend the Trade Disputes Act’s definition of “essential services”. The Committee reminds the Government that in order to avoid damages which are irreversible or out of all proportion to the occupational interests of the parties to the dispute, as well as damages to the third parties, namely the users or consumers who suffer the economic effects of collective disputes, the authorities could establish a system of minimum service in other services which are of public utility rather than impose an outright ban on strikes, which should be limited to essential services in the strict sense of the term (see General Survey, op. cit., paragraph 160).

4. Restrictions relating to the objectives of a strike. The Committee notes with concern section 30 of the Trade Unions Act as amended by section 6(d) of the new Act, limiting legal strikes to disputes constituting a dispute of right, defined as “a labour dispute arising from the negotiation, application, interpretation or implementation of a contract of employment or collective agreement under the Act or any other enactment of law governing matters relating to terms and conditions of employment”, as well as to a dispute arising from a collective and fundamental breach of employment or collective agreement on the part of the employee, trade union or employer. It appears to the Committee that the legislation would exclude any possibility of a legitimate strike action to protest against the Government’s social and economic policy affecting workers’ interests. The Committee recalls that organizations responsible for defending workers’ socio-economic and occupational interests should, in principle, be able to use strike action not only to support their position regarding particular employment, but also in the search for solutions posed by major social and economic policy trends which have a direct impact on their members and on workers in general, social protection, and the standard of living (see General Survey, op. cit., paragraph 165). Therefore, it requests the Government to amend section 6 of the new Act so as to ensure that workers enjoy the full right to strike and, in particular, to ensure that workers’ organizations may have recourse to protest strikes aimed at criticizing the Government’s economic and social policies without sanctions.

5. Other restrictions. The Committee notes that section 42(1)(B) of the Trade Unions Act, as amended, requires that “no trade union or registered federation of trade unions or any member thereof shall in the course of any action compel any person who is not a member of its union to join and strike or in any manner whatsoever, prevent aircrafts from flying or obstruct public highways, institutions or premises of any kind for the purpose of giving effect to the strike”. This section appears to provide for two prohibitions: firstly, with regard to compelling non-union members to participate in a strike action and, secondly, the prohibition to obstruct public highways, institutions or premises of any kind for the purpose of giving effect to the strike. The Committee recalls that taking part in picketing and firmly but peacefully inciting other workers to keep away from their workplace should not be considered unlawful. The case is different, however, when picketing is accompanied by violence or coercion of non-strikers. As to the second prohibition, the broad wording of this section could potentially outlaw any gathering or strike picket. The Committee recalls that the conditions that have to be fulfilled under the law in order to render a strike lawful should be reasonable and, in any event, not such as to place substantial limitation on the means of action open to trade union organizations. In addition, given that aircraft-related services, with the exception of air traffic controllers, are not in themselves considered to be essential services, a strike of workers in that sector or related services should not be the subject of an overall ban, as could be implied from the wording of this section. The Committee therefore requests the Government to take the necessary measures to amend section 42(1)(B) so as to bring it into conformity with the Convention and the above principles and so as to ensure that any restrictions placed on strike actions aimed at guaranteeing the maintenance of public order are not such as to render any such action relatively impossible or ban it for certain workers beyond those in essential services.

6. Sanctions against strikes. The Committee notes that section 30 of the Trade Unions Act, as amended by section 6(d) of the new Act, makes strikers liable to the possibility of both paying a fine and being imprisoned up to six months, which might lead to a disproportionate penalty to the seriousness of the violation. The Committee therefore requests the Government to ensure that sanctions for strike action should be possible only where the prohibitions in question are in conformity with the principle of freedom of association. The Committee considers that the application of disproportionate penal sanctions does not favour the development of harmonious and stable industrial relations, if measures of imprisonment are to be imposed at all they should be justified by the seriousness of the offences committed (see General Survey, op. cit., paragraph 177). The Committee therefore requests the Government to ensure that sanctions against strikers are proportionate to the offence committed and that no measures of imprisonment could be imposed unless criminal or violent acts have been committed.

Article 4. Dissolution by administrative authority. In its previous comments, the Committee had requested the Government to amend section 7(9) of the Trade Unions Act by repealing the broad authority of the minister to cancel the registration of workers’ and employers’ organizations, as the possibility of administrative dissolution under the provision involved a serious risk of interference by the public authority in the very existence of organizations. The Committee notes the Government’s statement that this matter will be addressed in the Collective Labour Relations Bill. Noting that section 7(9) of the principal Act is still in force, the Committee requests the Government to take the necessary measures to amend it and to provide a copy of the new legislative Act once it is adopted.

Articles 5 and 6. The right of organizations to establish federations and confederations and to affiliate with international organizations and the application of the provisions of Articles 2, 3 and 4 to federations and confederations of employers’ and workers’ organizations. The Committee notes that section 8(a)(1)(b) and (g) of the new Act requires federations to consist of 12 or more trade unions in order to be registered. In this respect, the Committee requests the Government to provide information on the practical application of this requirement and, in particular, the level at which federations are established.

The Committee expresses the firm hope that appropriate measures will be taken in the very near future to make necessary amendments to the laws referred to above in order to bring them into full conformity with the Convention. It requests the Government to keep it informed of the measures taken or envisaged in this respect.