Observation (CEACR) - adopted 2002, published 91st ILC session (2003)

The Committee notes the information provided in the Government’s report. The Committee recalls that its previous comments concerned the following points.

Article 2 of the Convention (the right of workers to form and join organizations of their own choosing)

  (a)  Legislatively imposed trade union monopoly under Decree No. 4 of 1996

In its previous comments, the Committee had requested the Government to indicate the measures envisaged to amend section 3(2) of the Trade Unions Act, which provides that no trade union shall be registered to represent workers or employers in a place where a trade union already exists. In this regard, the Government indicates that an amendment to section 3(2) might give rise to a crisis in the trade union movement and that, within the framework of the actual law, workers can still enjoy freedom to associate. While noting that the listing of the 29 industrial unions set forth in the Trade Unions (Amendment) Decree No. 1 of 1999 provides for the registration of other unions, the Committee considers that the maintenance of the restriction in section 3(2) contradicts such a possibility. The Committee recalls that for the right of workers to establish and join organizations of their own choosing to exist, such freedom has to be fully established and respected in law and in fact. Although it was clearly not the purpose of the Convention to make trade union diversity an obligation, it does at the very least require this diversity to remain possible in all cases (see General Survey on freedom of association and collective bargaining, 1994, paragraph 91). The Committee therefore once again requests the Government to take the necessary measures to rectify the abovementioned contradiction, so as to ensure that workers have the right to form and join the organization of their own choosing even if another organization already exists.

With regard to section 33(2) of the Trade Unions Act, which deems all registered trade unions to be affiliated to the Central Labour Organization, which is named in the law (section 33(1)), the Committee notes the Government’s indication to the effect that it will amend section 33(1) during the ongoing review of labour laws, subject to the concurrence of the social partners. The Committee trusts that the necessary amendments will be adopted in the near future and requests the Government to transmit a copy of the relevant text.

  (b)  Organizing in export processing zones

In its previous comments, the Committee noted section 4(e) of the Export Processing Zones Decree, 1992, which sets forth the functions and responsibilities of the Export Processing Zones Authority to include the resolution of disputes between "employers and employees" (rather than workers’ organizations or unions) in the zone and section 13(1), which states that no person shall enter, remain in or reside in a zone without the prior permission of the Authority. In this regard, the Government indicates that it will review this issue with the Ministry of Commerce. The Committee takes note of this information and once again requests the Government to indicate the measures taken to ensure that zone workers may form and join the organization of their own choosing in the furtherance and defence of their occupational interests and, in particular, the measures taken to ensure that representatives of workers’ organizations may have reasonable access to the zones so that trade unions can communicate with workers in order to apprise them of the potential advantages of unionization.

  (c)  Organizing in various government departments and services

In its previous comments, the Committee had requested the Government to amend section 11 of the Trade Unions Act, which denies 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 External Telecommunications. In this regard, the Government indicates that, for security purposes, section 11 has been retained but in practice, provisions have been made for joint consultative committees in the establishments mentioned in section 11(2) of the Act, and these committees perform similar functions to those of trade unions. The Committee recalls that, under Article 9 of the Convention, the right to organize may only be restricted in respect of the police and armed forces. The Committee has already considered that prison staff do not fall within the exclusion permitted by this Article, and equally considers that the employees of the other abovementioned departments and services must also be ensured the right to organize (see General Survey, op. cit., paragraph 56). Furthermore, the Committee is of the opinion that the establishment of joint consultative committees cannot be considered as a substitute for this fundamental right. The Committee does consider, however, that restrictions may be imposed on employees in the Customs and Excise Department, the Immigration Department, the Prison Services and Nigerian External Telecommunications, in respect of their right to take industrial action either due to their classification as public servants exercising authority in the name of the State or due to the essential nature of their services. The Committee therefore once again requests the Government to amend its legislation so that these categories of workers are granted the right to organize, and to keep it informed of the measures taken or envisaged in this respect.

  (d)  Further obstacles

The Committee notes the Government’s indication that it will amend section 3(1) of the Trade Unions Act, which sets the excessively high requirement of 50 workers to form a trade union. The Committee considers that such a requirement severely restricts the right of workers to form organizations of their own choosing, and recalls that the number should be fixed in a reasonable manner so that the establishment of organizations is not hindered. The Committee requests the Government to transmit a copy of the relevant amendment once adopted.

Article 3 (the right to elect officers in full freedom, to organize administration and activities and to formulate programmes without government interference)

  (a)  The right to strike

1. Export processing zones. With regard to section 18(5) of the Export Processing Zones Act, which forbids strikes for a period of ten years following the commencement of operations within a zone, the Committee recalled in its previous comments that the prohibition was incompatible with the provisions of the Convention (see General Survey, op. cit., paragraph 169) and had requested the Government to indicate the measures taken or envisaged to ensure that workers, including those in export processing zones, had the right to establish organizations of their own choosing and that such organizations had the right to organize their activities and to formulate their programmes without interference by the public authorities. The Committee takes note of the Government’s statement to the effect that it will examine the necessary follow-up actions with the Nigeria Export Processing Zones Authority. The Committee expresses the firm hope that the above provision will be brought into conformity with Article 3 of the Convention in the near future and requests the Government to provide information in this respect in its next report.

2. Conditional check-off facilities. In its previous comments, the Committee had recalled that section 5(b) of the Trade Unions (Amendment) Decree No. 1 of 1999, conditioned check-off facilities on the inclusion of "no-strike" clauses in relevant collective bargaining agreements, which amounted to undue influence by the authorities in the right of workers’ organizations to formulate their programmes and organize their activities without interference by the Government, in violation of Article 3 of the Convention. It therefore had requested the Government to indicate the measures taken or envisaged to allow workers’ and employers’ organizations to bargain freely on this matter. While noting the Government’s indication that this section will be abrogated during the next review of labour laws, the Committee requests the Government to transmit a copy of the relevant amendment once adopted.

3. Compulsory arbitration. The Committee continues to note that the legislative provisions allowing for the imposition of compulsory arbitration (other than in cases of essential services in the strict sense of the term and for public servants exercising authority in the name of the State or in the case of acute national crisis) under penalty of a fine or six months’ imprisonment for any person failing to comply with a final award issued by the National Industrial Court (section 7 of Decree No. 7 of 1976 amending the Trade Disputes Act) have not been amended. The Committee points out that restrictions on strike action, in particular through the imposition of a compulsory arbitration procedure leading to a final award, 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, and is not compatible with Article 3 of the Convention (see General Survey, op. cit., paragraph 153). Moreover, the Committee considers that sanctions for strike action should be possible only where the prohibitions in question are in conformity with the Convention. Even in such cases, both excessive recourse to the courts in labour relations and the existence of heavy sanctions for strike action may well create more problems than they resolve. The Committee recalls that the application of disproportionate penal sanctions does not favour the development of harmonious and stable industrial relations, and 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 must once again request the Government to indicate the measures taken or envisaged to amend this provision in order to ensure that workers’ organizations may formulate their programmes and organize their activities free from interference by the public authorities.

  (b)  Further obstacles

As to the need 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, the Committee takes note of the Government’s indication that these legislative provisions will be amended. The Committee therefore requests the Government to keep it informed and, in this regard, to transmit a copy of the amendment as soon as it has been adopted.

Article 4 (cancellation of registration by administrative authority)

In its previous comments, the Committee referred to the need 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. The Committee notes the Government’s indication according to which it will submit the issue to the National Labour Advisory Council for consideration during the review of labour laws. Recalling that the possibility of administrative dissolution as set out in this provision involves a serious risk of interference by the authority in the very existence of organizations, the Committee once again requests the Government to take the necessary measures to bring the legislation into full conformity with Article 4 of the Convention and to indicate, in its next report, the progress made in this regard.

Articles 5 and 6 (international affiliation)

The Committee notes once again that no amendments have been made to the Trade Unions (International Affiliation) (Amendment) Decree No. 2 of 1999, which provides that an application for affiliation must be submitted with details to the Minister for approval. The Committee strongly emphasizes that a provision which requires ministerial approval for international affiliation on the basis of a detailed application infringes on the right of workers’ organizations to affiliate with international workers’ organizations freely. It therefore requests the Government to indicate, in its next report, the measures taken or envisaged to amend Decree No. 2 of 1999, so as to ensure full conformity with Articles 5 and 6 of the Convention.

The Committee expresses the firm hope that appropriate measures will be taken in the very near future to amend these legislative provisions in order to bring them into full conformity with the Convention and reminds the Government of the availability of ILO technical assistance in this regard.