Individual Case (CAS) - Discussion: 2011, Publication: 100th ILC session (2011)

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

A Government representative stated that the Government had encountered difficulties in submitting the reports on the application of ratified Conventions and deeply regretted the non-submission of some of the 25 reports due. Emphasizing that the Government remained committed to the international community as a whole, his Government pledged to submit all due reports before the end of the Committee’s work. In light of the existing limitations in Nigeria in terms of the number and skills of reporting officers, the Government would appreciate the technical assistance of the ILO in this regard. Furthermore, the Committee of Experts’ comments focused on alleged violations of the Convention by the Nigerian export processing zone (EPZ) authorities. Noting the request to amend the law establishing the EPZs in Nigeria, the speaker indicated that the Government had recently issued a guideline for the interpretation of that law, so as to ensure that the fundamental right to organize and bargain collectively would not be restricted. The outstanding labour bills mentioned by the Committee of Experts, were before the newly elected National Assembly. The Ministry of Labour had recently set up a new lobby team to co-opt the social partners and to seek ILO assistance in liaising with the legislature in order to achieve results. The speaker reiterated the commitment of his Government to providing up-to-date information, submitting the reports due and cooperating with the Office and the social partners to remedy the situation.

The Worker members indicated that the case had been examined several times during the 1980s and that the conclusions had been included in a special paragraph of the Committee’s report in 1991, 1995, 1996 and 1997, since the Government had repeatedly failed to put an end to the serious violations of the Convention. The Committee of Experts had expressed its profound regret at the Government’s failure to provide either a report or a reply to the requests made to it, thus demonstrating a total lack of cooperation. However, the matters raised by the Committee of Experts concerned important provisions of the Convention and, on account of the violations of those provisions, the situation of the workers, especially of workers in the administration, continued to deteriorate. First, the Committee of Experts had previously noted that section 11 of the Trade Union Act, which denied the right to organize to employees in the Customs and Excise Department, the Immigration Department, the Prison Service, the Nigerian Security Printing and Minting Company Limited, the Central Bank of Nigeria and Nigeria Telecommunications, had not been amended by the Trade Union (Amendment) Act. In the EPZs, the situation was particularly serious and evidence of serious violations of the Convention had been collected. Section 13(1) of the Nigeria Export Processing Zones Authority Decree (1992), made it impossible for workers to form or join trade unions, to the extent that access to the EPZs was prohibited for worker representatives. The Committee of Experts had recorded numerous violations of the Convention, especially the broad powers of the registrar to inspect union accounts at any time, under sections 39 and 40 of the Trade Union Act. It was therefore essential that the Government amend those provisions. Moreover, even though the Act recognized the right to collective bargaining, each wage agreement concluded in the private sector had to be registered with the Ministry of Labour, which decided whether or not it would be binding, and there were restrictions on the right to strike owing to the imposition of compulsory arbitration leading to a final award. The EPZ authorities were both judge and judged in disputes under their jurisdiction, since section 4 of the above Decree prevented the trade unions from settling disputes between employers and workers. Finally, arbitration imposed by the authorities at the request of one party to the dispute restricted the autonomy of the bargaining partners.

Any issues relating to strikes were covered by legislation which imposed procedures that rendered the right to strike meaningless. Since the workers were obliged under the law to take a vote before holding a strike, the legislator should ensure that only the votes cast were taken into account. The list of essential services had been extended to include, in particular, the Central Bank of Nigeria, the postal service and port maintenance, but essential services should only be those the interruption of which would endanger the life, personal safety or health of the whole or part of the population. Consequently, it was absolutely necessary to redefine which services were deemed to be essential. In addition, all strikes relating to conflicts of interest or economic issues were prohibited. The Worker members also indicated that the Petroleum and Natural Gas Senior Staff Association of Nigeria (PENGASSAN) and the National Union of Petroleum and Natural Gas Workers (NUPENG) had indicated that the major companies in the sector had constantly opposed attempts by the respective unions to be recognized with a view to negotiating collective agreements. The powers conferred on the minister enabling the administrative dissolution of trade unions formed part of a clear intent to tame the trade unions and keep a sword of Damocles hanging over them. The comments made by the International Trade Union Confederation (ITUC) made an already gloomy situation appear even darker. Many restrictions remained in force and violence, culminating in the murder of a trade unionist, continued to be perpetrated on trade union leaders. The Government needed to give answers to crucial questions, especially with regard to the amendment of section 9 of the Trade Union Act, and to undertake to repeal the provisions conferring extensive powers on a minister and thus enabling him to dissolve trade unions through an administrative procedure. The Government also needed to put an end to EPZs being areas beyond the law and take steps to remove the immunity enjoyed by the EPZ authorities so that the workers would not be at the mercy of the employers.

The Employer members highlighted that Nigeria had become a member of the ILO in 1960 and had ratified the Convention in the same year. In their view, it was of much concern that no report had been received from the Government, although the Conference Committee was examining this case for the fifth time and had included thrice its conclusions in special paragraphs, and the Committee of Experts had issued five observations since the adoption in 2005 of legislation amending trade union laws. This failure to report had obliged the Committee of Experts to repeat its previous observation. The Employer members considered that the most serious instances of non-compliance included: (i) violence against trade union members and leaders; (ii) trade union monopoly; (iii) restricted access for trade union representatives in EPZs; (iv) exclusion of a wide range of government departments and services from the right to organize; (v) interference from public authorities resulting in the ability to supervise union accounts at any time; (vi) minimum union membership requirement; (vii) broad definition of essential services; (viii) sanctions against strikes; (ix) dissolution of workers’ and employers’ organizations; and (x) restriction of the right of unions to form federations or confederations. These long-standing comments of the Committee of Experts remained relevant despite the amendment of trade union laws in 2005. Considering that the lack of information about the situation on the ground was regrettable, the Employer members urged the Government to respond to the observations made by the Committee of Experts.

As regards the remaining issues raised by the Committee of Experts, they wished to make two comments. First, noting that the Committee of Experts construed the compulsory arbitration prior to strike action currently in place as a restriction on the “right to strike” in violation of Article 3 of the Convention, the Employer members wished to express caution and pointed out that they had consistently asserted in this Committee that there was no right to strike under Article 3. In this regard, they referred to comments made at the 31st Session of the International Labour Conference (ILC) in 1948, according to which the Convention was not intended to be a “code of regulations” for the right to organize, but rather a concise statement of certain fundamental principles. The Employer members noted this was not a case of restricting the right to strike – a right not enshrined in the Convention – but rather that it violated Article 3 in terms of the right of workers’ organizations to organize activities and formulate their programmes. While arbitration could be helpful in resolving workplace disputes and hence avoiding recourse to industrial action, it should be entered voluntarily by the parties that would be bound by the outcome. Second, the Committee of Experts further suggested that, pursuant to Article 3, legislation concerning the strike vote should require the majority of the votes cast, not the majority of the workers. The Employer members were concerned that the Committee of Experts was going beyond what the Convention stipulated and felt that observations on compliance with Article 3 should not extend beyond the four basic rights guaranteed in this provision. Finally, they noted the ITUC’s comments on violations of the right to strike, arrest and detention of strikers, police repression during demonstrations and the refusal to recognize a trade union. As regards the Collective Labour Relations Bill pending before Parliament, the Employer members were unaware of its status, content, or plans for implementation. The Government had missed five times the opportunity to comment on the Committee of Experts’ observations since the adoption of the most recent trade union legislation. The Employer members again urged the Government to remedy its apparent current lack of collaboration with the Committee of Experts, and to report in detail not only on legislative aspects but also on the current practice at the national level. The Employer members noted the Government representative’s comments that future legislation or guidance would address many of the issues highlighted, however they viewed this with caution given the past failure of legislation to address such issues.

The Worker member of Nigeria indicated that the crux of the violations of trade union rights in his country was that it had been under military dictatorship for 29 years out of its first 39 years of independence. Thus, the law that had deprived, for ten years, workers in EPZs of the right to organize was a fall-out of military mentality, according to which the right to unionize was an impediment to productivity or good business. He welcomed the fact that the Constitution had repealed that legislative act. Furthermore, the military had banned categories of purely civilian workers from unionization, including staff in the Central Bank, Prison Service and the Mint. The subsequent democratic governments had continued in this vein. Those workers were defenceless even when subjected to subhuman treatment. With reference to the Customs and Excise Department and the Immigration Department, which had been unionized in 1979, the speaker indicated that, after the union had accused, in 1986, the relevant minister of unethical practices, the secretary, Bernard Odulana, had been detained without trial, and the union had been decreed out of existence. Henceforth, all efforts to lift the ban on that union had been turned down. Since 2000, a series of labour disputes over the continuous increase in the price of petroleum products had resulted in mass strikes in which the Government had used excessive force. During the general strike of June 2003, armed policemen deployed to stop the strike had shot dead 16 Nigerians. In 2005, new legislation had been adopted criminalizing workers who called a strike on “disputes of interest”, i.e. disputes that did not concern issues arising from the workers’ conditions of service or the existing collective agreement. Thus, unions were effectively banned from protesting against the Government’s socio-economic policies. The law also prohibited strikes that could affect the highways or the aviation industry, and prescribed prison terms for workers taking part in strikes contrary to the law. Finally, the speaker stressed that State authorities should not exercise the power to dissolve unions or pronounce on collective agreements freely entered into between employers and workers. Noting that the Government had been unable or reluctant to respond to these issues in a meaningful manner, he considered that it was imperative that decisive steps be taken which would assist the Government in tackling these matters with the seriousness they deserved. As regards the draft labour legislation, the speaker indicated that the labour bills mentioned by the Government were no longer before the National Assembly, since, according to the procedure, they lapsed if they were not considered within a certain period of time.

The Worker member of the United States expressed deep concern regarding the severe restrictions to freedom of association that applied in the EPZs due to the continuing failure of the Government to both amend the relevant law and sanction anti-union discrimination in practice. This Committee had repeatedly called upon the Government to amend the Export Processing Zones Authority Decree, which provided, inter alia, that “no person shall enter, remain in or reside in a Zone without the prior permission of the Authority”. This provision was used to deny trade union representatives’ access to workers employed within the EPZs. He stressed that governments should guarantee access of trade union representatives to workplaces, with due respect for the rights of property and management, so that trade unions could communicate with workers, in order to apprise them of potential advantages of unionization. The same Decree banned strikes for a period of ten years from the commencement of a company’s operations within a Zone, which was contrary to the Convention. Furthermore, the Export Processing Zone Authority (EPZA) was empowered to resolve disputes between workers and employers. The EPZA had rebuffed prior efforts by the Ministry of Labour to establish an office in the EPZ to enhance labour inspection. In practice, freedom of association was routinely frustrated by the deployment of armed security guards to prevent trade union representatives from speaking with EPZ workers. Workers suspected of being pro-union were often subject to disciplinary sanctions or dismissed. It had also been reported that newly recruited workers in the EPZs were required to sign individual employment contracts in which they committed not to join a union. In this climate of fear and reprisals, the right of workers inEPZs to freely associate was severely limited. He finally noted that the Government continued to fail to submit reports on the application of the Convention, which signalled deep disregard for the fundamental rights of workers and tacit support for the ongoing violations occurring in the EPZs.

The Worker member of Swaziland pointed out that the situation of workers in the Customs and Excise Department, the Immigration Services, the prison services, the Security Printing and Minting Company Limited, the Central Bank and Telecommunications had not changed with respect to the enjoyment of their rights to organize and freely associate. Government actions continued to treat these workers as essential services workers. This Committee had, however, previously noted with concern that the definition of essential services provided for in the relevant legislation was overly broad. Since workers in these establishments were deprived of their right to freely form and join trade unions, they organized in socio-cultural leanings thereby reinforcing tribal and ethnic divisions. It had to be noted in this regard that ethnicity and tribalism were some of the issues threatening the cohesion, peace and stability of Nigeria. Furthermore, within these government departments and services, there were industrial discontents that could be effectively channelled and addressed through trade union organizations and the instrumentality of the collective bargaining mechanism. Employees were, however, left with no other option than to resort to petition writing and other self-help initiatives. Workers at the Security Printing and Minting Company Limited had repeatedly indicated their willingness to form and join trade unions of their choice, but the company management continued to deny their rights, including through the contracting of casual workers. It was particularly disturbing to note that the Government had not made any tangible progress nor had it taken visible and commensurate actions to give account to the comments of the Committee of Experts.

The Government representative expressed appreciation for the views of the social partners and laid out the three avenues of action that the Government should take for the proper implementation of the Convention. Firstly, the amendments to certain provisions of the current Trade Unions Act were urgent. Five pieces of legislation were awaiting adoption and the Government would intensify its actions to secure the passage of the bills. In this respect, a lobby group had been created recently to speak to legislators regarding these bills. The support of the social partners was essential to achieve the speedy enactment of this legislation. It needed to be recognized that such bills might require certain amendments, due to their prolonged stay at the legislative level. The Government would, through the Federal Ministry of Labour and Productivity, address any lapses or new areas of concern that were not covered by such bills, in collaboration with the social partners and with ILO technical assistance. Secondly, regarding the EPZs, it needed to be recognized that the legislation in this regard had been enacted during the military era. The speaker expressed the desire to see this legislation amended, to allow for the right to organize within the EPZ. He underlined that interim measures had been taken, in the form of Ministerial Guidelines, which had been negotiated in cooperation with stakeholders. The Government would fully implement these Ministerial Guidelines, to ensure the effective implementation of the Convention. Thirdly, regarding the alleged restrictions regarding the right to organize for persons who were essential services workers, these inequities had their root in the military era, and these concerns would be addressed through the abovementioned bills. With respect to issues not covered by this forthcoming legislation, the speaker indicated an openness to further negotiations, and that the assistance of the social partners was essential in achieving proper compliance. The speaker also rejected the view that unions in some sectors were organized along tribal lines, emphasizing that unions in Nigeria were issue-based organizations. He concluded by stating that bold steps would be taken, in collaboration with the social partners and the Office, to achieve the aims of the Convention.

The Employer members expressed regret that an examination by this Committee was required to see a response from the Government, citing its failure to submit reports in reply to the Government to the Committee of Experts for several years. They noted that a new National Assembly had been formed, and that a lobby team had been created by the Ministry of Labour and Productivity. In addition, the Government had confirmed that a draft bill was still before the Assembly, which would address the Employer members’ concerns regarding the EPZ. However, the suggestion that such pending legislation would address the current breaches should be taken with much caution. The Government had had years to make such changes, and regretfully, had not, even in the course of the previous amendments in 2005. The conclusions should record the Government’s agreement to avail itself of ILO technical assistance, and to work with the Office to address the concerns with regard to the Convention. The conclusions should also reflect the Government’s commitment to working with the international community, in addition to the Government’s commitment to making a full report in time for examination by the Committee of Experts at its forthcoming session.

The Worker members, replying to the statement made by the Employer members concerning the right to strike, reaffirmed their full support for the practice of the Committee of Experts on the issue, which coincided, furthermore, with that of the Committee on Freedom of Association, which was a tripartite body. They also noted with great concern that the Government was voluntarily shirking its obligations and undermining the Convention by its attitude, even though the Government representative had talked of change in referring to the draft legislation under consideration. The Government should take the following measures to: bring its legislation fully into line with the Convention without delay; repeal those provisions in its domestic legislation that gave the Ministry of Labour and Productivity the power to dissolve workers’ and employers’ organizations by administrative means; shed light on the circumstances surrounding the murders of trade union leaders and attacks resulting in serious injury; prosecute those responsible for criminal acts; stop depriving workers employed in public administration of the right to form trade unions; rid the petroleum industry of persistent anti-union attitudes; stop interference in internal trade union affairs; restore the right to organize to employees of the Central Bank, the prison services, the Immigration Department, the Security Printing and Minting Company Limited and the Customs and Excise Department; and establish, under ILO supervision, a timeline for bringing legislation on those various issues into conformity with the Convention, in close cooperation with the social partners. The Government should also submit a report on measures taken before the next session of the Committee of Experts.

Conclusions

The Committee took note of the statement made by the Government representative and the discussion that followed.

The Committee took note of the Government representative’s statement in relation to the difficulties encountered in supplying reports to the Committee of Experts. He further referred to the issuance of a recent Ministerial Guideline to prevent anti-union discrimination against any worker in the export processing zones (EPZs), which would remain in force until the EPZ law was amended. In addition, five Labour Bills had been drafted with the technical assistance of the ILO. He requested ILO training of newly elected legislators to raise their awareness of the obligations of the Government towards the ILO and expressed the hope that this would facilitate the said Bills being rapidly passed into law. He added that their passage should assist the necessary alignment of the Collective Labour Relations Bill with Convention No. 87.

The Committee noted with concern that there were a number of serious and wide-ranging issues raised by the Committee of Experts. These included reports of the murder of a trade union leader and violence against trade unionists, trade union monopoly and restrictions on the right to organize of certain categories of workers covered by the Convention, restrictions on unionizing rights of EPZ workers as well as on the access of trade union representatives to the EPZs and interference by the public authorities in trade union activities and functioning.

The Committee, as the Committee of Experts had done in its 2011 observation, recalled that freedom of association could only be exercised in conditions in which fundamental rights and in particular those relating to human life and personal safety were fully respected and guaranteed. It requested the Government to provide detailed information on the results of the investigations being carried out with respect to the serious allegations of violence against trade unionists and on the results of any judicial proceedings in this regard and to ensure that any perpetrators were punished. The Committee requested the Government to indicate the steps taken to amend the provision permitting administrative dissolution of workers’ or employers’ organizations and to refrain in practice and amend legislation permitting interference in the right of public sector workers to organize freely, which contravened Articles 2 and 3 of the Convention. More generally, it requested the Government to refrain from interference in trade union activities, particularly as regards the petrol sector, which contravened the Convention, and to restore the right to organize in the government services and departments mentioned in the observation of the Committee of Experts.

Noting the request for ILO technical assistance made by the Government representative, the Committee expressed the hope that such assistance could occur in the near future so as to enable the Government to take appropriate measures, in full consultation with the social partners, for the rapid adoption of the necessary legislation to bring the law and practice – including as regards EPZs – into conformity with the Convention and expected that the Government would provide in a timely manner full details of the steps taken in this regard and the legislation adopted to the Committee of Experts for examination at its session this year.