Report in which the committee requests to be kept informed of development - Report No 343, November 2006

Case No 2432 (Nigeria) - Complaint date: 06-JUN-05 - Closed

Allegations: The complainant organization alleges that the Government’s 2005 amendments to the Trade Union Act, adopted without proper tripartite consultation, violates established freedom of association principles on strikes, essential services and the right to organize

1011. The complaint is contained in a communication dated 6 June 2005 from the Academic Staff Union of Universities (ASUU).

1. 1012. The Committee has been obliged to postpone its examination of the case on two occasions [see 338th and 340th Reports, paras. 5 and 6, respectively]. At its meeting in May-June 2006 [see 342nd Report, para. 10], the Committee issued an urgent appeal to the Government, indicating that, in accordance with the procedural rules set out in paragraph 17 of its 127th Report, approved by the Governing Body, it could present a report on the substance of the case at its next meeting even if the information or observations requested had not been received in due time. No reply from the Government has been received so far.
2. 1013. Nigeria has ratified the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87), and the Right to Organise and Collective Bargaining Convention, 1949 (No. 98).

A. The complainant’s allegations

1. 1014. In its communication of 6 June 2005, the Academic Staff Union of Universities (ASUU) alleges that the Trade Union (Amendment) Act, passed in 2005 without proper tripartite consultation, violates workers’ freedom of association and collective bargaining rights. Specifically, the complainant draws the Committee’s attention to sections (6)(a) and (b) and 9 of the new Act, all regarding the right to strike. The complainant further alleges that the new Act denies to workers in the army, navy, air force, police force, customs and excise, immigration, prisons and preventive services the right to form trade unions.
2. 1015. According to the complainant, section (6)(a) of the Amendment Act bans strikes in essential services, which include services not constituting essential services in the strict sense of the term. More specifically, the complainant submits that the following services are considered essential under the Trade Dispute Act of 1990 (Cap 432, Laws of the Federation), to which the new Act refers: radio and television; postal services; ports; services involving “fuel of any kind”; transport of persons, goods or livestock by road, rail, sea, river or air; aircraft repairs, the Mint, banking and metropolitan transport.
3. 1016. The complainant further draws the Committee’s attention to section 6(b) of the new Act, which limits strikes to concerns constituting a “dispute of right”. The amended Act defines “dispute of right” as “any 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”. According to the complainant, the new Act deprives workers of their right to promote their interests and to protest against social and labour consequences of the Government’s economic policy such as poverty, malnutrition and huge-scale unemployment.
4. 1017. The ASUU adds that section 9 of the Act amending section 42(1)(B) 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” and therefore grants the Government broad discretion to widely define otherwise legal strike activity within the vague and over-broad language of the law. The complainant infers from the above that any group of workers on strike who have gathered on the premises or on the streets, however peaceful, may be accused of obstructing premises and highways just for grouping themselves there.
5. 1018. The complainant further alleges that the new Act denies to workers in the army, navy, air force, police force, customs and excise, immigration, prisons and preventive services the right to form trade unions.
6. 1019. The complainant believes that the motive behind the new amendment was to weaken the united workers of Nigeria and continue to allow the Government to impose the same economic and social policies that have caused Nigerian workers to suffer in the past. Furthermore, the complainant considers that this new Act amounts to an abortion of the process of comprehensive review of Nigeria’s labour laws backed up by the ILO.

B. The Committee’s conclusions

1. 1020. The Committee deeply regrets that, despite the time that has elapsed since the complaint was first presented, the Government has not replied to the complainant’s allegations, although it has been invited on several occasions, including by means of an urgent appeal, to present its comments and observations on the case. The Committee strongly urges the Government to be more cooperative in the future.
2. 1021. Under these circumstances, and in accordance with the applicable rules of procedure [see 127th Report, para. 17, approved by the Governing Body at its 184th Session], the Committee finds itself obliged to present a report on the substance of the case without the benefit of the information which it had hoped to receive from the Government.
3. 1022. The Committee recalls that the purpose of the whole procedure established by the International Labour Organization for the examination of allegations of violations of freedom of association is to promote respect for this freedom in law and in fact. The Committee remains confident that, if the procedure protects governments from unreasonable accusations, governments on their side will recognize the importance of formulating for objective examination detailed replies concerning allegations made against them [see the First Report of the Committee, para. 31].
4. 1023. The Committee notes that the allegations in this case concern restrictions imposed by the Trade Union (Amendment) Act, 2005, upon the workers’ right to form and join the organization of their own choosing as well as their right to strike. The Committee also notes the complainant’s allegation that this legislation was adopted without prior tripartite consultations. In this respect, the Committee must emphasize the value of consulting organizations of workers and employers during the preparation and application of legislation, which affects their interests [see Digest of decisions and principles of the Freedom of Association Committee, 4th edition, 1996, paras. 929 and 930]. It requests the Government to take note of this principle in the future.
5. 1024. Regarding the definition of essential services, the Committee emphasizes that any law banning strikes in essential services should limit the definition of such services to its strict sense, i.e. to services the interruption of which would endanger the life, personal safety or health of the whole or part of the population. The principle regarding the prohibition of strikes in essential services might lose its meaning if a strike were declared illegal in one or more undertakings which were not performing an essential service in the strict sense of the term [see Digest, op. cit., para. 542]. While the Committee has previously noted that what is meant by essential services depended to a large extent on the particular circumstances prevailing in a country and that a non-essential service could become essential if a strike lasted beyond a certain time or extended beyond a certain scope, thus endangering the life, personal safety of the whole or part of the population [see Digest, op. cit., para. 541], it has considered that the following services are not essential services in the strict sense of the term: radio and television, the petroleum sector, ports (loading and unloading), banking, transport generally, postal services, the Mint, metropolitan transport and aircraft repairs. Therefore, the Committee requests the Government to amend the definition of “essential services” so as to limit them to situations where there is a clear and imminent threat to the life, personal safety or health of the whole or part of the population. The Committee recalls in this respect that the Government could, following full and frank consultations with the social partners, establish a system of minimum service in 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. It further recalls that the establishment of minimum services in the case of strike action should only be possible in: (1) services the interruption of which would endanger the life, personal safety or health of the whole or part of the population (essential services in the strict sense of the term); (2) services which are not essential in the strict sense of the term but where the extent and duration of a strike might be such as to result in an acute national crisis endangering the normal living conditions of the population; and (3) in public services of fundamental importance [see Digest, op. cit., para. 556].
6. 1025. With regard to the allegation of restrictions relating to the objective of strikes, the Committee notes that section 6 of the new Act limits 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 from this definition that the legislation would therefore 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 be able to use strike action not only to support their position regarding better working conditions or collective claims of an occupational nature, but also in the search for solutions posed by major social and economic policy trends that have a direct impact on their members and on workers in general, in particular as regards employment, social protection and standards of living [see Digest, op. cit., para. 480]. Therefore, the Committee requests the Government to amend section 6 of the new Act so as to ensure that workers’ organizations may have recourse to protest strikes aimed at criticizing the Government’s economic and social policies without sanctions, as well as in disputes of interest.
7. 1026. As concerns amended section 42(1)(B), requiring 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 aircraft from flying or obstruct public highways, institutions or premises of any kind for the purpose of giving effect to the strike”, the Committee notes that, according to the complainant, such a wording could potentially restrict the exercise of an otherwise legal strike or any peaceful meeting. The Committee notes that this section provides 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 considers that taking part in picketing and firmly but peacefully inciting other workers to keep away from their workplace cannot be considered unlawful. The case is different, however, when picketing is accompanied by violence or coercion of non-strikers in an attempt to interfere with their freedom to work [see Digest, op. cit., para. 586]. As to the second prohibition, the Committee considers that the broad wording of this section could potentially outlaw any gathering or strike picket and 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 a substantial limitation on the means of action open to trade union organizations [see Digest, op. cit., para. 498]. 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 requests the Government to amend its legislation so as to bring it into conformity with 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.
8. 1027. As regards the allegation that workers employed in the army, navy, air force, police force, customs and excise, immigration and prisons, preventive services are denied the right to establishing their organizations, the Committee notes that, in fact, section 11 of the Trade Union Act (1973) denies the right to organize to employees in the abovementioned services, as well as to those employed in the Nigerian Security Printing and Minting Company, the Central Bank of Nigeria, Nigerian External Telecommunications and other establishments as the minister may from time to time specify. The Committee emphasizes that workers, without distinction whatsoever, shall have the right to establish and to join organizations of their choosing. It recalls that the only exceptions authorized by Convention No. 87 are the 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 [see Digest, op. cit., para. 222]. Furthermore, the Committee is of the opinion that 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. The Committee therefore requests the Government to amend section 11 of the Trade Union Act (1973) so that these categories of workers are granted the right to organize and to bargain collectively.
9. 1028. The Committee asks the Government to keep it informed of measures taken or envisaged in respect of the above-requested legislative amendments. It reminds the Government that it may avail itself of the technical assistance of the Office if it so desires. It draws the legislative aspects of the case to the Committee of Experts on the Application of Conventions and Recommendations.

The Committee’s recommendations

1. 1029. In the light of its foregoing conclusions, the Committee invites the Governing Body to approve the following recommendations:
2. (a) The Committee deeply regrets that, despite the time that has elapsed since the complaint was first presented, the Government has not replied to any of the complainant’s allegations. The Committee strongly urges the Government to be more cooperative in the future.
3. (b) The Committee expects the Government to ensure in the future that full and frank consultations with workers’ and employers’ organizations are held before the adoption of any legislation affecting their interests.
4. (c) The Committee requests the Government to amend its legislation in line with the provisions of Conventions Nos. 87 and 98 so as to:
5. – limit the definition of “essential services” to the strict sense of the term, i.e. to services the interruption of which would endanger the life, personal safety or health of the whole or part of the population;
6. – ensure that workers’ organizations may have recourse to protest strikes aimed at criticizing the Government’s economic and social policies that have a direct impact on their members and on workers in general, in particular as regards employment, social protection and standards of living, as well as in disputes of interest, without sanction;
7. – ensure that peaceful incitement of workers to participate in a strike action is not forbidden;
8. – ensure that the wording of section 42(1)(B) is not used to declare illegal peaceful strike actions, including picketing, workplace occupations and gathering and 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; and
9. – amend section 11 of the Trade Union Act (1973) so that 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 External Telecommunications, are ensured the right to organize and to bargain collectively.
10. It requests the Government to keep it informed of the measures taken in this respect.
11. (d) The Committee reminds the Government that it may avail itself of the technical assistance of the Office, if it so desires.
12. (e) The Committee draws the legislative aspects of this case to the Committee of Experts on the Application of Conventions and Recommendations.