Beyond the Minimum Threshold

CONTRIBUTED BY JANET UDOKA

Introduction

The Nigerian Constitution guarantees workers the fundamental right to freedom of association, as articulated in the Constitution of the Federal Republic of Nigeria.^[1] This provision empowers them to form and join trade unions, which play a vital role in fostering a healthy labour market. Trade unions serve as a unified representation for employees, facilitating improved working conditions through collective bargaining and, when necessary, strike action.^[2]

However, the legal framework surrounding freedom of association in Nigeria extends beyond the basic rights enshrined in the Constitution, with specific requirements and limitations governing how unions are formed, operate, and exercise their power.^[3]

This article critically assesses these requirements within Nigerian labour law, moving beyond the basic standards set by the Constitution to explore the complexities inherent in establishing and functioning as a trade union in Nigeria. This analysis aims to pinpoint areas where the current framework may impede the effectiveness of worker organization and suggest potential remedies to promote a more equitable and productive work environment for all.^[4]

Freedom of Association in Nigeria

The bedrock of the right of freedom of association is enshrined in section 40 of the Nigerian Constitution, guaranteeing the ability to assemble and associate freely, including forming or belonging to a trade union for the protection of one’s interests.^[5]

In a broader context, freedom of association enjoys universal recognition as a fundamental civil liberty, rooted in the principle that individuals have the right to join organizations and engage in collective activities without causing harm to others.^[6] This principle, championed by leaders such as Sir Abubakar Tafawa Balewa, the former Prime Minister of Nigeria, underscores the essence of democratic societies and upholds the rights of individuals in free nations.^[7]

Within the sphere of labour relations, freedom of association takes on added significance, encompassing the right of workers to form, join, or participate in trade unions, and engage in collective bargaining.^[8] This right allows employees to associate for union purposes and partake in union activities without unwarranted interference, a fundamental tenet upheld by international law and civilized nations worldwide.^[9]

In Nigeria, freedom of association, particularly within the sphere of trade unionism, plays a pivotal role in safeguarding employees’ rights and interests.^[10] Trade unions serve as vital mechanisms for countering potential exploitation and mistreatment by employers, thereby enhancing workers’ overall welfare and dignity. Through collective action, employees can effectively address grievances, negotiate for improved working conditions, and shield themselves against unjust labour practices, reflecting the collective strength inherent in union membership.^[11]

Furthermore, the potency of freedom of association is particularly evident when trade unions boast large memberships as their influence becomes increasingly challenging for employers to disregard. This collective solidarity empowers employees to assert their rights and interests more effectively, fostering a more equitable and just labour environment in Nigeria.^[12]

Limitations of Freedom of Association in Nigeria

While fundamental, the right to Freedom of Association is subject to limitations as outlined in Section 40 of the Nigerian Constitution.^[13] This provision ensures that employers cannot compel their workers to join specific unions, and emphasizes the importance of workers aligning union membership with their professional interests. Court rulings, such as the Non-Academic Staff Union of Educational and Associated Institutions (NASU) v Vice-Chancellor, University of Agriculture, Abeokuta,^[14] the court in this case underscore the exclusivity of internal union management and the prohibition of employer interference.

Furthermore, limitations on Freedom of Association are evident in the Trade Unions Act^[15] and its Third Schedule, which delineates the jurisdictional scope of registered trade unions. Workers are legally bound to join unions relevant to their profession, as established by precedents such as the National Union of Petroleum and Natural Gas Workers (NUPENG) v Maritime Workers’ Union of Nigeria.^[16] Here, the court affirmed the association of dock workers with the Maritime Workers’ Union, highlighting the legal restrictions on union membership based on the profession. Trade Union Act also prohibits management staff from joining certain unions to mitigate loyalty conflicts, which fall within this category. A pertinent example is the case of Basil Osita dima Mbanefo and others v Judicial Service of Anambra State,^[17] where the court upheld the prohibition on management staff joining a general judiciary union because of potential conflicts.

Remarkably, while individual workers are constrained by professional boundaries, trade union federations enjoy greater flexibility in their associations. Unlike individual unions, federations have the liberty to join, regardless of industry focus, providing a broader platform for collective action and collaboration.

Section 45 of the Constitution introduces further limitations on the right to association, allowing restrictions for reasons of national security, public order, health, or safeguarding the rights of others.^[18]

Reinforcing the right to freedom of association, the Labor Act (LA) prohibits employers from imposing employment conditions that curtail workers’ union membership.^[19] Section 9 of the Labour Act safeguards workers against prejudicial actions based on their trade union activities, with judicial precedents illustrating the legal consequences of discriminatory practices.^[20] In cases such as the National Union of Banks, Insurance and Financial Institutions Employees v. Management of the Nigerian Industrial Development Bank,^[21] courts have affirmed the unlawfulness of terminating employment due to trade union activities, underscoring the protection granted to employees under the Labour Act. Similarly, in the National Union of Food, Beverage, and Tobacco Employees v. Cocoa Industries Ltd. Ikeja,^[22] a reinstatement of an employee dismissed for trade union activities, was ordered, citing violations of the Labour Act.

Freedom of Association under International Legal Framework

Nigeria demonstrates its dedication to upholding the right to freedom of association through its compliance with significant International Labour Organization (ILO) conventions and domestic legal provisions. The ratification of conventions, including the Right to Organize and Collective Bargaining Convention of 1949,^[23] and the Freedom of Association and Protection of the Right to Organize Convention of 1948,^[24] ensures protection against discrimination based on union membership and safeguards workers’ rights to establish and join organizations. This commitment is further reinforced by the establishment of the ILO Committee on Freedom of Association, which addresses violations and ensures compliance with international labour standards.^[25]

The Constitution of the Federal Republic of Nigeria (Third Alteration) Act, 2010 marked a pivotal moment in Nigeria’s legal sphere by granting the National Industrial Court (NICN) exclusive original civil jurisdiction over labour matters.^[26] This Act empowered the NICN to apply international labour standards ratified by Nigeria, regardless of their domestication status. The NICN has taken a proactive approach to interpreting and applying international labour norms, as evidenced by landmark cases such as Aloysius v. Diamond Bank Plc.^[27] In this case, the court highlighted the significance of international labour standards, specifically the Termination of Employment Convention, 1982 (No. 158), and Recommendation No. 166, in regulating the termination of employment. Nigeria’s alignment of its jurisprudence with global best practices signifies its commitment to promoting fair labour practices and protecting the rights of workers.

Critical Assessment of Freedom of Association Requirements in Nigerian Labour Law

The right to freedom of association is a fundamental aspect of a healthy labour market, as it enables workers to advocate for their interests collectively. In Nigeria, this right is enshrined in Section 40 of the Constitution.^[28] However, the practical exercise of this right faces significant challenges due to provisions in the Trade Union Act (TUA), particularly Section 3, which mandates a numeric threshold for the formation of trade unions.^[29] Specifically, the TUA requires a minimum of fifty members for employee unions, whereas employers’ unions only need two members. ^[30]This disparity raises critical questions about the true accessibility of freedom of association for Nigerian workers.

The TUA’s numerical requirement presents a significant obstacle, particularly for smaller workplaces, startups, or geographically dispersed workforces.^[31] These groups are effectively disenfranchised, as their ability to form a union and engage in collective bargaining is hindered by an arbitrary number. This requirement places undue emphasis on quantity rather than the substantive reasons for union formation, such as the protection of worker rights and interests.^[32]

Additionally, the TUA creates a two-tier system within the labour landscape, granting legal immunities and benefits to registered trade unions that meet the 50-member threshold, while denying these benefits to employee associations formed with fewer members.^[33] This disparity is exemplified in the case of the Federal Government of Nigeria & Anor. v. Adams Oshiomhole & Anor.^[34] The court in this case recognized the significant advantages enjoyed by registered trade unions, further exacerbating the power imbalance between registered.

The TUA’s provisions appear to contradict the very notion of freedom of association. This right is not contingent on reaching a specific headcount; it is fundamental for all workers, regardless of their workplace size. The emphasis on numerical thresholds undermines the core principle of collective action and disadvantages smaller workforces.^[35]

Therefore, the TUA’s stringent requirements for trade union formation pose a significant challenge to the realization of the right to freedom of association in Nigeria. The Act’s provisions create an uneven playing field, favouring larger workforces and hindering the ability of smaller groups to advocate for their interests effectively. A critical reevaluation of the TUA, particularly Section 3, is necessary to ensure that the fundamental right to freedom of association becomes a tangible reality for all Nigerian workers, irrespective of their workplace size.^[36]

Conclusion

Freedom of association, the cornerstone of a fair labour market, faces a curious hurdle in Nigeria. The Trade Union Act, meant to empower workers, unintentionally creates a labyrinth through its emphasis on union size. Smaller workforces, the very ones who might need collective bargaining the most, are left out. Nigeria must revisit the TUA to ensure this fundamental right becomes a reality for all workers, not just those with a large enough team.

1. See section 40 of the 1999 CFRN Cap. C23 LFN 2004 ↑
2. C.S. Jackson & C. Ajae, “The Workers’ Right to Freedom of Association in Nigeria: Myth or Reality” (2018) Vol 2 (1) Yenagoa Bar Journal See section 12 of the 1999 CFRN Cap. C23 LFN 2004 Available @ workersrighttofreedomofassociationinnigeria-mythorreality.pdf accessed 24^th March, 2024. ↑
3. O.V.C. Okene, ‘Current Issues and Developments in Workers’ Freedom of Association in Nigeria’ (2007) 5(1) Commonwealth Journal of Law and Legal Education 49-68. ↑
4. Ibid ↑
5. E. Emudainohwo, “The Legal Framework for Workers’ Freedom of Association in Nigeria; A Critical: Appraisal” (2023) Available @ (PDF) The Legal Framework for Workers’ Freedom of Association in Nigeria: A Critical: Appraisal (researchgate.net) accessed 23^rd March, 2024. ↑
6. O.V.C. Okene, ‘Curbing State Interference in Workers’ Freedom of Association in Nigeria’ (2006) Vol 8 (4) The International Journal of Not-for-Profit-Law Available @ Curbing State Interference in Workers’ Freedom of Association in Nigeria – ICNL accessed 25^th March, 2024. ↑
7. Ibid ↑
8. Ibid ↑
9. Ibid ↑
10. Ibid ↑
11. Ibid ↑
12. Ibid ↑
13. See section 40 of the 1999 CFRN Cap. C23 LFN 2004 ↑
14. NIC/LA/15/2011 ↑
15. Trade Union (Amendment) Act, Cap T14 LFN, 2004 ↑
16. NIC/LA/48/2010 ↑
17. NIC/En/07/2009 ↑
18. See section 45 of the 1999 CFRN Cap. C23 LFN 2004 ↑
19. Labour Act Cap L1 LFN, 2004. ↑
20. See section 9 of the Labour Act Cap L1 LFN, 2004. ↑
21. Suit No. NIC/8/85Digest of Judgments of the National Industrial Court (NIC) 1978-2006, pp. 235-236 ↑
22. Suit No. NIC/1/2001Digest of Judgments of the National Industrial Court (NIC) 1978-2006, pp. 486-489. ↑
23. Article 2(b) The Right to Organise and Collective Bargaining Convention No. 98 of 1849 ↑
24. Freedom of Association and the Protection of the Right to Organise Convention No. 87 of 1948. ↑
25. ILO Committee on Freedom of Association https://www.ilo.org/global/standards/applying-and-promoting-international/ accessed 18^th March 2024. ↑
26. Amadi, K.I ‘Reflections on the Status of the National Industrial Court under the Constitution (Third Alteration) Act 2010’ 8(3) (2011) Labour Law Review 1-15 at 4. ↑
27. [2015] 58 NLLR (Pt. 199) 92 at P. 134, Paras. A-F, G-B ↑
28. See section 45 of the 1999 CFRN Cap. C23 LFN 2004 ↑
29. See Section 3 of the Trade Union (Amendment) Act, Cap T14 LFN, 2004 ↑
30. Ibid ↑
31. Okongwu, Moronkeji & Kwubosu, “The Imperative of Recalibrating the Right of Freedom of Association in Nigeria’s Employment Relation” (2023) Vol 7 (1) African Journal of Law and Human Rights (AJLHR) Pp. 9-17 ↑
32. Ibid ↑
33. Ibid ↑
34. [2004] 1 N.L.L.R. (Pt. 6) 326. ↑
35. Ibid ↑
36. G. O. S. Amadi, Jurisprudence of Trade Union Status, Nsuka, Afro0Orbis Publications Ltd., 2002 ↑