Observación (CEACR) - Adopción: 2011, Publicación: 101ª reunión CIT (2012)

Convenio sobre la libertad sindical y la protección del derecho de sindicación, 1948 (núm. 87) - Nigeria (Ratificación : 1960)

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Observación

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Follow-up to the conclusions of the Committee on the Application of Standards (International Labour Conference, 100th Session, June 2011)

The Committee notes the comments of the International Trade Union Confederation (ITUC) dated 4 August 2011 on the application of the Convention, referring in particular to violence against and arrest of union members in the oil and health sectors, as well as police repression of workers participating in meetings and dismissals of strikers. The Committee recalls that the arrest, even if only briefly, of trade union leaders and trade unionists, and of the leaders of employers’ organizations, for exercising legitimate activities in relation with their right of association constitutes a violation of the principles of freedom of association. The Committee requests the Government to provide its observations in this respect, as well as on the 2008 and 2009 ITUC comments.

The Committee further notes the Government’s reply to the 2010 comments made by the ITUC, in particular that eight suspects were arrested in connection with the assassination of the Lagos Zonal Chairman of the National Union of Road Transport Workers, that the Government concludes from the police report that the assassination has been carried out as a result of internal squabbles within the trade union leadership and that update on the case will be provided as soon as possible. The Committee requests the Government to provide the updated information referred to as well as 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, in case of conviction, to ensure that any sentence imposed on the perpetrators is implemented.

The Committee notes the debate which took place within the Conference Committee in June 2011, in particular the request for ILO technical assistance made by the Government representative, and expresses the hope that such assistance will 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 export processing zones (EPZs) – into conformity with the Convention. The Committee notes with regret that the Government has failed to provide the information requested by the Conference Committee on the steps taken in this regard and the legislation adopted.

Article 2 of the Convention. Legislatively imposed trade union monopoly. In its previous comments, the Committee had raised its concern over the legislatively imposed trade union monopoly and in this respect, it requested the Government to amend section 3(2) of the Trade Union Act, which restricts the possibility of other trade unions from being registered where a trade union already exists. The Committee notes that the Government states in its report that the Trade Union (Amendment) Act 2005 has addressed this concern by, inter alia, stating in section 2 that “... membership of a trade union by employees shall be voluntary and no employee shall be forced to join any trade union or be victimized for refusing to join or remain a member”, and that union membership is therefore voluntary including in national practice backed by jurisprudence. Observing that section 3(2) of the Trade Union Act has not been amended by the language of the 2005 Trade Union (Amendment) Act, the Committee considers that the maintenance of the restriction in section 3(2) contradicts the voluntary union membership stipulated in section 12(4) of that 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 General Survey of 1994 on freedom of association and collective bargaining, paragraph 45), and that it is important for workers to be able to establish a new trade union for reasons of independence, effectiveness or ideological choice. It therefore once again requests the Government to amend section 3(2) of the principal Trade Union Act taking into account the aforementioned principles.

Organizing in export processing zones (EPZs). In its previous comments, the Committee had noted 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 EPZs. The Committee had also noted the ITUC’s comments, according to which section 13(1) of the EPZ Authority Decree 1992 makes it difficult for workers to form or join trade unions as it is almost impossible for worker representatives to gain free access to the EPZs. The Committee notes the Government’s indication that: (i) the Export Processing Zone Act does not preclude unionization and all workers in the EPZs are free to join trade unions and to bargain collectively; (ii) the Government has been in discussion with the EPZs on the issue of accessibility of EPZs to trade union leadership, inter alia at the Oil and Gas Sector Stakeholders Forum held in March 2010 where the EPZs affirmed the intention not to impede trade unionism in the EPZs; and (iii) the Government’s desire to eventually nullify the negative impression of an unprotected workforce in the EPZs is captured in Part 111 of the Guidelines on Labour Administration Issues in Contract Staffing/Outsourcing in the Oil and Gas Sector recently published by the Federal Ministry of Labour and Productivity. In this regard, the Committee notes with interest the Government representative’s statement before the Conference Committee that the recently issued Ministerial Guidelines seeks to prevent anti-union discrimination against any worker in the EPZs and will remain in force until the Export Processing Zone Law is amended. Taking due note of the efforts made and the commitment of the Government to tackle the issue, the Committee requests the Government to transmit a copy of the abovementioned Ministerial Guidelines and to continue taking the necessary steps, including by amending relevant EPZ legislation, to ensure in the near future that EPZ workers enjoy the right to establish and join organizations of their own choosing, as provided by the Convention. It further requests the Government to indicate the measures taken or envisaged to ensure that representatives of workers’ organizations are granted reasonable access to EPZs.

Organizing in various government departments and services. In its previous comments, the Committee requested the Government to amend 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 Services, the Nigerian Security Printing and Minting Company Limited, the Central Bank of Nigeria, and Nigeria Telecommunications. The Committee noted that this section was not amended by the Trade Union (Amendment) Act. The Committee had noted that according to the Government’s statement, the Collective Labour Relations Bill, pending before the lower chamber of Parliament would address this issue. The Committee notes that, according to the Government’s Report, section 11 is retained in the interest of the nation, but there currently exist Joint Consultative Committees functioning in similar and correlative capacities as trade unions, and, in a further effort to address the issue, the Collective Labour Relations Bill which is in its final stage of being passed into law would concisely proffer local remedy for the concern. The Committee cannot but regret the Government’s intention to retain section 11 of the Trade Union Act “in the interest of the nation”. The Committee once again 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 the Convention 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 the Convention (see General Survey, op. cit., paragraphs 55 and 56). The Committee therefore urges the Government to reconsider its position and take the necessary measures to amend section 11 of the Trade Union Act, so as to ensure conformity with the Convention. The Committee also requests the Government to send a copy of the Collective Labour Relations Act, once it is adopted.

Minimum membership requirement. The Committee had previously expressed its concern over section 3(1) of the Trade Union Act requiring 50 workers to establish a trade union. The Committee considered 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. The Committee notes the Government’s indication that section 3(1)(a) applies to the registration of national unions, and that at the enterprise level, there is no limit to the number of people to establish a trade union. Taking note of this information, the Committee requests the Government, for the purpose of clarification, to take measures to amend section 3(1) to ensure that this requirement does not apply to the establishment of trade unions at the enterprise level.

Article 3. Right of organizations to organize their administration and activities and to formulate programmes without interference from the public authorities. Export processing zones (EPZs). 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. The Committee notes that the Government confines itself to restating its earlier position 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 is therefore bound to reiterate 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.

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 Union 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 the Government’s statement that the provisions of the new labour legislation on this issue will be made available when passed into law. The Committee expresses the firm hope that the Collective Labour Relations Act will fully take into account its comments and will be adopted without delay.

Right to strike. Compulsory arbitration. The Committee had noted that section 30, as amended by subsection (6)(d) of the Trade Union (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. Furthermore, the Committee noted the ITUC comments, according to which section 4(e) of the EPZ Authority Decree 1992 impedes trade unions from handling the resolution of disputes between employers and employees by granting this responsibility to the authorities managing these zones. The Committee notes that, according to the Government’s report: (i) the right to strike is not inhibited as arbitration is only one of the steps in the dispute resolution machinery; (ii) the award by the Industrial Arbitration Panel is not absolute but can be appealed according to the law by any party to the dispute and thus subjected to further adjudication by referral to the National Industrial Court; and (iii) that there is currently a widespread national interest in alternative dispute resolution. The Committee recalls that arbitration imposed by the authorities at the request of one party is generally contrary to the principle of the voluntary negotiation of collective agreements, and thus the autonomy of bargaining partners (see General Survey, op. cit., paragraph 257). The Committee points out that compulsory arbitration leading to a binding award amounts, even if the award is appealable, to a prohibition to exercise the right to strike, which seriously limits the means available to trade unions to further and defend the interests of their members. 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 or local crisis. Also, the Committee requests the Government to amend section 4(e) of the EPZ Authority Decree 1992 in order to guarantee the autonomy of the bargaining partners without giving the right to the authorities to impose compulsory arbitration.

Majority required to declare a strike. The Committee had noted 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 simple majority of all registered trade union members for the calling of a strike. The Committee notes that the Government indicates that section 30(6)(e) is an effort to ensure the democratization of trade union activities. 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 the new section 30(6)(e) accordingly, so as to bring it into conformity with the Convention.

Restrictions relating to essential services. The Committee had noted with concern that section 6 of the Trade Union (Amendment) 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 services” in an overly broad manner so as to include, among others, services for or in connection with: the Central Bank of Nigeria, the Nigerian Security Printing and Minting Company Limited, any corporate body licensed to carry out 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 cleaning, and refuse collection. The Committee notes the Government’s statement that it has taken note of the Committee’s comment especially concerning the need to establish minimum services in such services considered as providing public utilities in the event of industrial action. 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 in the near future to amend the Trade Disputes Act’s definition of “essential services”, without prejudice to the possibility of establishing a system of minimum service in services which are of public utility.

Restrictions relating to the objectives of a strike. The Committee had noted with concern section 30 of the Trade Union Act as amended by section 6(d) of the Trade Union (Amendment) Act, limiting legal strikes to disputes constituting a “dispute of rights”, defined as “a labour dispute arising from the negotiation, application, interpretation of a contract of employment or collective agreement under the Act or any other enactment or law governing matters relating to terms and conditions of employment”, as well as to a dispute arising from a collective and fundamental breach of contract of employment or collective agreement on the part of the employee, trade union or employer. The Committee notes the Government’s indication that although a distinction is made between a dispute of right and a dispute of interest in national practice, trade unions have been known to embark on industrial actions on issues considered as dispute of interests without Government taking any action against them. The Committee considers that the practice described by the Government conflicts with the legislation, which excludes any possibility of a legitimate strike action to secure collective bargaining agreements or 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 to support their position in the search for solutions to problems posed by major social and economic policy trends which have a direct impact on their members and on workers in general, in particular as regards employment, social protection, and the standard of living (see General Survey, op. cit., paragraph 165). Therefore, the Committee requests the Government to take the necessary measures to align section 6(d) of the Trade Union (Amendment) Act with national practice, so as to ensure that workers enjoy the full right to strike and, in particular, that workers’ organizations may have recourse to protest strikes aimed at securing collective bargaining agreements or criticizing the Government’s economic and social policies without sanctions.

Other restrictions. The Committee had noted that section 42(1)(B) of the Trade Union 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 aircraft from flying or obstruct public highways, institutions or premises of any kind for the purpose of giving effect to the strike”. The Committee observed that 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 notes from the Government’s report that the Government has nothing against peaceful picketing which is lawful under section 42 of the Trade Union Act but cannot accept attempts to coerce non-willing workers and the general public because of the possible negative implications of such acts (e.g. breakdown of law and order). The Committee takes note of the information supplied concerning the first prohibition. The Committee considers however, with regard to the second prohibition, that 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 in the strict sense of the term, 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, 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 in the strict sense of the term.

Sanctions against strikes. The Committee had noted that section 30 of the Trade Union Act, as amended by section 6(d) of the Trade Union (Amendment) Act 2005, makes strikers liable to the possibility of both paying a fine and being imprisoned up to six months, which might lead to a penalty which is disproportionate to the seriousness of the violation. The Committee notes the Government’s indication that the sanctions imposed by section 6(d) are not targeted at the strike action or any other form of industrial action per se; that the section was enacted to ensure that due processes are followed before a strike is declared and to provide for opportunities and time for the exhaustion of other optional trade dispute resolution machinery before calling a strike; and that in practice, the Government has often safeguarded the interest of the workers after industrial actions by incorporating in the terms of settlement that no workers shall be victimized for any reason connected with acts or omissions committed during the course of industrial action. While taking note of the information supplied by the Government concerning the intention of the provision and normal practice, the Committee considers that, under section 6(d), participants in a peaceful but illegal strike could still be sentenced to a prison term. In this regard, the Committee recalls that no penal sanction should be imposed against a worker for having carried out a peaceful strike and therefore measures of imprisonment should not be imposed on any account. Such sanctions could be envisaged only where during a strike, violence against persons or property or other serious infringements of rights have been committed, and can be imposed pursuant to legislation punishing such acts. Nevertheless, even in the absence of violence, if the strike modalities had the effect of making the strike illegitimate, proportionate disciplinary sanctions may be imposed against strikers. The Committee therefore requests the Government to take the necessary measures in order to amend its legislation so as to bring it into conformity with the principle above.

Article 4. Dissolution by administrative authority. In its previous comments, the Committee had requested the Government to amend section 7(9) of the Trade Union 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 this provision involved a serious risk of interference by the public authority in the very existence of organizations. The Committee notes that the Government confines itself to reiterating its earlier position that the issue has been addressed by the Collective Labour Relations Bill which is currently before the National Assembly. The Committee expresses the firm hope that the Collective Labour Relations Act will be enacted without further delay and adequately address the issue.

Articles 5 and 6. Right of organizations to establish federations and confederations and to affiliate with international organizations. The Committee had noted that section 8(a)(1)(b) and (g) of the Trade Unions (Amendment) Act 2005 requires federations to consist of 12 or more trade unions in order to be registered and had requested practical information. The Committee notes from the Government’s report that there are currently, two national-level federations of trade unions, namely the Trade Union Congress and the Nigeria Labour Congress (NLC) with certificates issued by the Government accordingly. The Committee requests the Government to provide information on the practical application of the provisions of Articles 2, 3 and 4 of the Convention to federations and confederations of employers’ and workers’ organizations.

Noting the Government representative’s statement before the Conference Committee that five Labour Bills had been drafted with the technical assistance of the ILO, the Committee expresses the firm hope that appropriate measures will be taken to ensure that the necessary amendments to the laws referred to above are adopted in the very near future in order to bring them into full conformity with the Convention. It requests the Government to indicate the measures taken or envisaged in this respect.

Lastly, the Committee requests the Government to accept an ILO mission in order to tackle the pending issues. In the meantime, the Committee urges the Government to conduct an independent investigation into the allegations made by the ITUC in the previous years and to provide information on its outcome.