| MEMORANDUM SUBMITTED BY THE ACADEMIC STAFF UNION OF UNIVERSITIES (A.S.U.U.) TO THE NATIONAL ASSEMBLY ON A BILL FOR AN ACT TO AMEND THE TRADE UNIONS ACT AS AMENDED AND FOR MATTERS CONNECTED THEREWITH AUGUST 25, 2004 MEMORANDUM 1.0 PREAMBLE An Executive Bill ostensibly aimed at offering some fundamental "labour reforms" was recently submitted to the National Assembly. The Executive Bill was titled `AN ACT TO AMEND THE TRADE UNIONS ACT, AS AMENDED AND FOR MATTERS CONNECTED THEREWITH, hereafter referred to as "The Trade Union Amendment Bill". The Explanatory Memorandum which accompanies the first Executive Bill, that is, the Trade Unions (Amendment) Bill, claims that the Bill seeks to amend the Trade Unions Act, as amended, to provide, among other things for: "(a) The expanded registration of federation of trade unions. (b) Voluntary, rather than mandatory contribution of check off dues to trade union." The covering letter, from the President of the Federal Republic of Nigeria, also claims that the Bill is being forwarded, "in order to promote the democratization of labour, further strengthen it, enhance choice for all Nigerian workers in the true spirit of the Constitution, comply with I.L.O. requirements concerning democratization in the organization of Labour Unions and Centres and consolidate the values of accountability and participation". Nothing can be farther from the truth. As we intend to show, the Trade Unions (Amendment) Bill is selectively vindictive, vitiated by bad faith, unduly hasty, discriminatory in intention, ad horninem in substance, subversive of labour rights, anti-democratic in character, and a clear negation of the spirit, letter and principles of the Nigerian Constitution, and of the I.L.O. Conventions which it purports to uphold. It constitutes the final stage in an ill-conceived, but dogged and hardly concealed determination to neutralize all perceived voices of dissent and opposition in the polity. In Nigeria, military dictatorship created a political culture, morality, and a social and political psychology all of which have, since 1999, turned out to present serious impediments to our aspirations to construct successfully a democratic, free and just society. An essential ingredient of military dictatorship was the use of repressive labour laws to cow the trade union movement. When, in 1999, the present civilian administration was sworn in, Nigerian people expected that the days of repressive labour laws were over. They expected the emergence of institutions that would defend democracy by protecting and expanding the scope of the rights of Nigerians, including and especially workers. It is, therefore, amazing that a civilian Administration that is supposed to uphold democratic principles finds it convenient to resort to undemocratic tactics and machinations instead of responding in an imaginative manner to the sources of people disenchantment with its policies. The National Assembly as the genuine and most representative voice of the people should not only reject the Trade Unions Amendment Bill in its entirety, but also distance itself from the obnoxious attempts to muzzle all dissent in the polity being pursued by the present Administration contrary to all democratic norms. 2.0 CRITERIA FOR DEMOCRATIC LAWS In a society that is aspiring to democracy through erecting democratic institutions and values, the laws must; Respect the country Constitution; Protect the rights of citizens and expand them; Embody with International norms; Be just and fair; Must not be ad hoc, i.e must not be made in order to deal with, incapacitate or promote some specific individual or group interests in some specific situation; On a scale of rationality, be at least as satisfactory in its working and must not defeat values that are among the deepest democratic aspirations. Must not be self defeating, e.g., a law to be aimed at promoting democracy will be self-defeating if its implementation will derogate from, reduce or destroy democratic values and rights. Must not be superfluous. It is our view that the Trade Union Amendment Bill is in its provisions unconstitutional, violates the labour and other rights of Nigerians, fails to respect some Conventions of International Labour Organisation (ILO) which Nigeria has ratified, falls short of justice and fairness, is both ad-hoc and ad-hominem, defeats our aspiration to democracy, is self defeating and in many respects, superfluous. Below we substantiate our claims. 2.1 THE TRADE UNIONS (AMENDMENT) BILL IS UNCONSTITUTIONAL The Trade Union (Amendment) Bill is essentially a Bill to kill the Nigeria Labour Congress (NLC) and weaken other Trade Unions. It deletes the entire Part III of the Trade Unions Act which provides, inter alia for the formation, powers, and admission of further bodies to membership of the Central Labour Organisation (See Section 6). Specifically, it provides: "(a) wherever the words "Central Labour Organisation" appears in the Principal Act, they shall be deleted forthwith; (b) the Registrar shall remove from the register the Nigeria Labour Congress as the only Central Labour Organisation in Nigeria; (c) the existing Part IV and V of the Principal Act shall be renumbered as Parts III and IV respectively." It is clear from the foregoing that the Bill seeks to de-register the N.L.C. This is unconstitutional. The 1999 Nigerian Constitution provides in Section 40 that: "Every person shall be entitled to assemble freely and associate with other persons, and in particular he may form or belong to any political party, trade Union or any other association for the protection of his interests." The freedom to form a trade union has been singled out for express mention by the constitution because of the great importance of this form of association relative to the other forms of associations. Organised labour or workers associations, otherwise called trade unions are a potent force in modern industrial society. Trade Unions also serve as a pillar on which industrial democracy, peace and progress are anchored. The constitutional guarantee reproduced above, therefore, secures for the individual the right to form with others a trade union, to join a trade union or workers association already formed, to remain a member; to participate in the affairs of the union or association, to contest offices and to share in other benefits of membership. At the level of the union, the constitutional guarantee gives rise to the right to adopt a constitution and the right, in accordance with such a constitution, to take whatever appropriate and lawful measures may be necessary to maintain itself in existence. These, of course, include the right to organize itself to elect officers, to establish other organizational support such as setting up a secretariat or headquarters and branch offices, to assemble in order to choose its officers, to take subscriptions and manage the funds of the union and its affairs generally; the right to federate or amalgamate with other associations, and the right to continued existence and not to be dissolved. Any interference with these rights is also an interference with the rights of the individual members of the unions. Consequently, Section 6(2) of the Bill which provides that the Registrar shall remove from the register the Nigeria Labour Congress is an unwarranted interference with the rights of the trade unions who collectively form the Nigeria Labour Congress. Although the constitutional guarantee of freedom of association is subject to any law that is reasonably justifiable in a democratic society in the interest of defence, public safety, public order, public morality or public health, or for the purpose of protecting the rights and freedom of other persons (S.40(1), it is our submission that the validity of the restrictions envisaged by the Constitution depends on whether a restriction has a rational connection with defence, public safety, public order, public morality or public health, or with the protection of the rights and freedom of other persons. The constitution does not authorize the restriction of a guaranteed right in the interest of economic well-being, or economic development, national unity or any other public interest outside those already mentioned. Clearly, the proposed proscription of the NLC has no rational connection with defence, public safety, public order, public morality or public health and is not reasonably close or proximate to the protection of the rights and freedom of other persons. It is indeed remote to the recognized interests which may arguably form the basis of restriction of the constitutional guarantee of the right to freedom of association. It is important to note that the ILO does not prohibit and is not opposed to the existence of a Central Labour Organisation. Its position is that whether or not there should be a Central Organisation is entirely up to workers themselves. Thus: Workers should be free to choose the Union which, in their opinion, would best promote their occupational interests without interference by the authorities. It may be to the advantage of the workers to avoid a multiplicity of trade unions but, this choice should be made freely and voluntarily. By including the words "Organisations of their own choosing" in Convention No 87, the International Labour Organisation recognized that individuals may choose between several workers or employers organizations for occupational, denominational or political reasons. It did not pronounce as to whether, in the interests of workers and employers, a united trade union movement is preferable to trade union pluralism. (See Report No. 275 Committee of Freedom of Association Case No. 1505 paragraph 164). The covering letter from the President of the Federal Republic of Nigeria claims that: "one institution that was born under the military and in a situation of East-West division, and where the institution at that time was divided was Labour. Even the democracy that the International Labour Organisation (I.L.O.) has mandated all Labour Organisations to practice and enjoy was ignored in the case of our present Labour Law. The reasons for this were: 1. it was at that time a military regime. 2. The government at that time wanted to strengthen Labour though along undemocratic lines and we thus breached the rules and values of democracy. 3. The government was trying to save Labour from the divided world of East and West that had precipitated division, suspicion, corruption, waste, even violence in the Labour movement." The letter has told a half-truth which is worse than total falsehood. The N.L.C. was voluntarily formed in December 1975 after the APENA DECLARATION when the then existing four Labour centers; namely, the United Labour Congress (ULC), the Nigeria Trade Union Congress (NTUC), the Nigeria Workers Council (NWC), and the Labour Unity Front (LUF) voluntarily dissolved themselves to form the NLC. The first elected President of the NLC was Wahab Goodluck. The General Secretary was Ezekiel Odeyemi. It is remarkable that it was the Murtala-Obasanjo military regime that banned not only this NLC but its new leaders including Wahab Goodluck and Pa Michael Imoudu for life from trade union activities. But in 1978, the General Obasanjo regime unbanned the NLC obviously in the hope to "unite and control" the trade unions. It is, therefore, incorrect and a distortion of historical truth to claim that the NLC was a creation of the military regime. Labour had already demonstrated its inclination towards unity and solidarity by voluntarily forming the NLC, which was banned and only later “unbanned by the Obasanjo military regime. The NLC cannot now particularly under our present constitution, be validly dissolved or proscribed as the Bill aims to do. It is also not true, as the Bill claims, that NLC is the only central labour organization. There are two other federations of trade unions, namely the Trade Union Congress (T.U.C.) and the confederation of Free Trade Unions (C.F.T.U.) which were formed pursuant to the right to freedom of associations under the constitution and cannot also be validly dissolved. And it shall a classical example of bad logic to claim that the best way to respect the constitution is to violate it. 3.0 THE BILL VIOLATES I.L.O. CONVENTION NO. 87 The Bill provides in Section 5(1) as follows: "(IA) Notwithstanding the provisions of sub-section(1)(a) of this section, the Minister in his discretion may approve that members of two or more trade unions whose members are not employed in the same trade, occupation, or industry, or in substantially similar trades, occupations or industries form a registration (sic) of Federation of trade unions if it is in the public interest so to do." We have already stated that under our constitution restriction of the right to freedom of association is valid only in the interest of defence, public safety, public order, public morality or public health or for the purpose of protecting the rights and freedom of other persons. It follows that the constitution does not authorize the restriction of a guaranteed right on the basis of any other public interest outside those mentioned in the constitution. Besides, the I.L.O. convention provides in Article 2: "workers and employers without distinction whatsoever, shall have the right to establish and, subject only to the rules of the organization concerned, to join organizations of their own choosing without previous authorization" (emphasis supplied). Article 3 thereof also provides, in part: "2. The public authorities shall refrain from any interference which would restrict this right or impede the lawful exercise thereof." Specifically, Article 5 provides that: "Workers and employers organizations shall have the right to establish and join federations and confederations and any such organization, federation or confederation shall have the right to affiliate with international organizations of workers and employers." Article 6 indeed makes the provisions of Articles 2, 3, and 4 of the ILO Convention No. 87 apply to federations and confederations of workers and employers organizations. The power given to the Minister with responsibility for Labour to register in his absolute discretion a Federation of Trade Unions is inconsistent with Article 2 of the ILO Convention No. 87 and therefore, invalid. Specifically, (1) the ILO position is that: "a provision whereby a Minister may, at his discretion, approve or reject an application for the creation of a general confederation is not in conformity a Freedom of Association. (Freedom of Association Digest of 1985 para. 509). (2) A workers organization should have the right to join a federation or Confederation of his own choosing, subject to the rules of the organization concern, and without any previous authorization. It is for the federation or confederation themselves to decides whether or not to accept the affiliation of a trade union, in accordance with their own constitution and rules.(Freedom of Association Digest, 1985, para. 508). The provision of Section 6(2), to wit, "that the Registrar shall remove from the register the Nigeria Labour Congress" is also a violation of Article 4 of the ILO Convention No. 87 which provides: "Workers and employers organizations shall not be liable to be dissolved or suspended by administrative authority" (emphasis supplied). It is remarkable that Nigeria has ratified this convention and is bound by it. She has also undertaken under Article 11 thereof to "take all necessary and appropriate measures to ensure that workers and employers ¢â¬¦ exercise freely the right to organize". We have earlier on highlighted some of the elements of the right to associate and organize. The major provisions of the Bill violate these rights in fundamental respects in the result. The Bill should be rejected in its entirety. 4.0 THE BILLS VIOLATE THE WORKERS RIGHT TO WORK OR REFUSE TO WORK AND IS SELF-DEFEATING While the Trade Unions (Amendment) Bill provides in one breadth (See S. 6) that: "No trade Union or registered federation of trade unions by whatever name called shall embark on a strike action unless upon a resolution passed by at least two thirds majority of the members of the trade union or registered federation of trade union as the case may be approving the strike action". Section 6 clearly recognizes the right to strike. But in another breadth, the Bill also seeks (See Section.3b) to prohibit strikes by insisting on the insertion of "A No Strike" clause in Collective Bargaining Agreements between the workers and their employers. This is internally contradictory. Specific ILO positions on the right to strike are at variance with Section 6 as demonstrated by the followings: The observance of a quorum of two-thirds of the members may be difficult to reach, in particular where trade unions have large numbers of members covering a large area. (See Digest of the Committee of Freedom of Association 1985 para 383). The requirement of a decision by over half of all the workers involved in order to declare a strike is excessive and could excessively hinder the possibility of carrying out a strike, particularly in large enterprises. (See 291st Report of the Committee of Freedom of Association, Cases Nos 1648 and 1650, para 468). The requirement that an absolute majority of workers should be obtained for the calling of a strike may be difficult, especially in the case of unions which group together a large number of members. A provision requiring an absolute majority may, therefore, involve the risk of seriously limiting the right to strike. (See Digest of the Committee of Freedom of Association1985 para 380). The "No Strike clause " in Section 3b conflicts with the following ILO principle of collective bargaining: The right to bargain freely with employers with respect to conditions of work constitutes an essential element in freedom of association, and trade unions should have the right, through collective bargaining or other lawful means, to seek to improve the living and working conditions of those whom the trade union represents. The public authorities should refrain from any interference which would restrict this right or impede the lawful exercise thereof. Any such interference would appear to infringe the principle that workers and employers organizations should have the right to organize their activities and to formulate their programmes. (See Committee of Freedom of Digest of 1985, para.583). The right to work or refuse to work as a form of expression is a fundamental human right, backed by the country constitution, the ILO and the United Nations. It should not be taken away from workers at the pleasure and on the wishful behest of dictators. 5.0 THE TRADE UNIONS (AMENDMENT) BILL IS SUPERFLOUS IN CERTAIN RESPECTS The Bill provides in Section 2 that: "(4) Notwithstanding anything to the contrary in this Act, 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 be a member of any trade union." This provision is superfluous. Membership of trade unions has always been voluntary in Nigeria. The Labour Act has indeed preserved the right of the individual worker to join or to refuse to join a Trade Union by providing that a contract of employment can be concluded by an individual regardless of membership or non-membership of a Trade Union (See S.9(6). This is in contrast to what obtains in some countries such as Britain where the system of "closed-shop", that is, making employment dependent on membership of a trade union is operated. The truth of the matter is that Nigerian workers have always expressed and cherished a desire to associate in their trade unions. It is this Bill that is now seeking to upturn and render asunder the solidarity and unity which have been existing among workers. Section 3 of the Bill provides, in part, that: "16A. Upon the registration and recognition of any of the trade unions, specified in the Third Schedule to this Act, an employer may (a) subject to the express consent of a worker who is eligible and willing to be a member of any trade union, make deduction from the wages of such worker for the purpose of paying contributions to the trade union so registered." Again, this provision is superfluous. First membership of a trade union is already voluntary. Second, workers have willingly given their consent to deductions from their wages for the purpose of paying contributions to their trade unions. The check-off system has been working well under an arrangement that respects the wish of a worker who does not want any deduction from his/her wages. What the Bill really seeks to do in this regard is to terminate an arrangement that has worked well and satisfactorily and introduce unnecessary complications with a view to dividing the ranks of labour. A similar intention is clear from Section 4 which provides: "(1) Trade Unions may with the express authority of members pay to the appropriate registered federation of trade union out of the contribution received from their members a sum equivalent to 10 per centum of the total sum received or such sum as may from time to time be specified in the constitution of the registered federation of trade union concerned." This a matter that the trade unions have already taken care under arrangements that are working well and satisfactorily and which do not call for any legislative intervention in the terms stated above. The provision violates the following ILO principle: A legal restriction on the amount which a federation may receive from the Unions affiliated to it would appear contrary to the generally accepted principle that workers organizations shall have the right to organize their administration and activities and those of the federation which they form. (Freedom of Association Digest 437, 1996). (4a) The Bills Are Ad Hoc The pronouncements of the President before and after the submission of the Executive Bills clearly show that the Bills are in bad faith. In the wake of the patriotic resistance of the N.L.C. to the illegal introduction of the ill-fated fuel tax in 2003, the President openly declared that he would break the "back bone" of Labour just as he had done to A.S.U.U. He has since then consistently and openly declared an unbridled hostility towards the N.L.C. The Trade Union (Amendment) Bill in particular, is the final stage of this Administrations unhidden determination to get rid of the Congress in the hope that it can now ride rough-shod on Nigeria and Nigerians. Sections 6.1b is particularly discriminatory and unjust, and violates ILO principles on Aviation workers: The prohibition of Trade Union activities in international Airlines constitutes a serious violation of freedom of association (Freedom of Association Committee. (Case 1175 Report No.238 p. 190a). Section 6.1 violates the right of Aviation workers to organize their activities and defend their interests. It is also a covert way of prohibiting lawful picketing. It is a license for government to use the Police to attack workers on lawful and peaceful strikes. Legislative power is, however, not supposed to be exercised to settle personal scores which is what the Administration obviously wants to use the National Assembly for. It will be great disservice to this country should the National Assembly, under any guise, acquiesce in such act 6.0 THE INTENTION OF THE BILL IS TO NEUTRALISE THE VOICE OF DISSENT FREEDOM OF EXPRESSION AND DEMOCRACY It follows from the immediately preceding premise that the Bill is intended to weaken labour by dividing its ranks, and to neutralize a credible voice of dissent in the polity. This is dangerous to everybody. The National Assembly should not acquiesce in such a blatant attempt to subvert extant checks on absolute or unlimited power and despotism. The National Assembly may become a victim of its failure to curb despotic tendencies if it passes this and other anti-labour bills into law. As we know only too well, a government of absolute or unlimited power is intrinsically bad. Its inherent effect is to create indifference, apathy and passivity in the people. An absolute government neither desires nor asks for the people assistance in governing the state. Its desire is that the people should not aspire to govern the state themselves. It thus divides, rather than unite, the people. "Divide and rule" is indeed a familiar technique by which absolute governments everywhere seek to maintain themselves in power. It was the technique of British Colonialism in our country. We are still struggling to overcome the ill effects of that technique on our efforts to build a united country. Various barriers, like the Bills under consideration, are invariably erected by a growing despotism to keep the people divided. As has been said, a despot "easily forgives his subjects for not loving him, provided they do not love each other". This should not be allowed in a democratic setting. Freedom of expression is generally understood to include the freedom to express a different view or opinion. Exchange of ideas tends to promote harmony and societal development. On the other hand, the suppression of the freedom to express even the most unorthodox ideas or view may, and often does lead to conflicts, which may promote instability. The plain truth is that the human beings, as rational and social beings, have always had the need and the capacity to express themselves. The act of expression belongs to the essence of the human species. Whatever forms such act takes, it provides each human being with the vehicle by which, in organized and (even) not so organized societies, he/she can by his/her ideas influence and shape societal values, norms of conduct, as well as the essence and content of the rights and obligations of individuals and various segments of society in their onward evolution and development. The National Assembly owes it a duty to Nigeria and Nigerians to preserve the freedom of expression and not to collaborate with the Administration in frustrating it. A leadership or society that is intolerant of opposing ideas, denies itself of alternatives and will remain stunted in its vision and perception of the genuine vision and aspirations of society. It may also be trapped in a vicious circle by denying itself the possibility of making a qualitative leap forward. 7.0 THE BILL IS UNDULY HASTY LEGISLATIVE MEASURE The trade Union Amendment Bill is unduly hasty. They are attempts by their initiators to by-pass and frustrate the comprehensive review of Nigerian Collective Labour Law which is being done to overhaul this aspect of our Law. This initiative is anchored on a tripartism under ILO technical cooperation programme. Any proposed amendment to labour laws should be done on the basis of tripartite consultation. This is not the case here. Instead the initiators of the Bills have unilaterally taken measures to undermine Labour hiding under the cloak of a desire to promote democratic norms and uphold International Labour standards. This is unacceptable. GHANA EXPERIENCE In 1971, in Ghana, the Parliament, giving exactly the same reason being cited by the Federal Government of Nigeria, i.e. that it was democratizing trade union membership, dissolved the TUC through the Industrial Relations Amendment Act (1971) (Act 383). The primary motivation for the Act was to destabilize, disorganize and weaken labour. Barely a year after, in 1972, a new set of rulers repealed the 1971 Act and restored the TUC. Are we about to re-create Ghana history? Why make a vindictive law that cannot stand political changes, and cannot solve any problems? The existence of TUC has not prevented the establishment of the Ghana Federation of Labour, just as in Nigeria, the existence of NLC has not prevented the existence of TUC and CFTU. It is clear that no one needs to kill NLC in order to allow workers to form other associations and federations. But this is precisely what government wants to do. It is unconstitutional, unjust and vindictive. 8.0 CONCLUSION The National Assembly as the genuine voice of the Nigerian people should reject the Trade Union Amendment Bill in its entirety. It is vindictive, Ad-hoc, Ad-hominem, unjust and unfair, unconstitutional, violates ILO standards, repressive of the voice of dissent contrary to democratic norms, superfluous in some respects, self defeating in others, unduly hasty, and anti-democratic, in essence. This should not be. The Trade Union (Amendment) Bill vindictiveness and bad faith are evidenced by the reckless pronouncements of functionaries of the Administration. The National Assembly, as the bulwark against tyranny and despotism, fully conscious of its responsibilities to the Nigerian people, should nip in the bud the descent to absolutism which the Bill signifies. To do otherwise, is to consign itself to the bad waters of history. New Labour centers can exist, and at present do exist (T.U.C. and C.F.T.U.) without emasculating existing trade unions as the Bill seeks to do. The real intention of the Trade Unions (Amendment) Bill is to kill the N.L.C, which has been in the vanguard of patriotic opposition and resistance to the present Administration anti-people policies. The Bill is dangerous to the attainment of a good life for the majority of Nigerians. Castrating organs that defend the poor and underprivileged will not serve Nigeria interests either in the long or short-run. It will ensure that workers rights are respected only in breach, allow IMF/|World Bank prescriptions to be forced on the Nigerian people without resistance (this is the essence of the new amendment) and ensure that the wealth that should provide jobs, education, health care, houses, roads, etc. for the Nigeria people is used to service debt to the Paris and London Clubs. PRAYERS The National Assembly should advise the Executive to withdraw the Trade Union Acts Amendment Bill and allow the comprehensive review of Nigeria Labour Laws which has already been put in place with the ILO and the Federal Government cooperating to be completed In case the Bill is not withdrawn, the National Assembly should reject it and refuse to enact it into law. The issue at stake is so important that our Legislators must think beyond Party affiliation and specific disagreements with Nigerian Labour Congress and act in the larger interest of our country and its people. The real issue is the future of Nigeria, and the aspirations of her people for a free and just society. The Federal Government has the option of addressing, reviewing and revising economic and other policies that cause disaffection and labour unrest. This is a better way to build democracy. The government should not, as in the cases of some historical disasters, see workers en-masse to their premature graves under the supervision of IMF and the World Bank. We thank you for listening. Dr. Abdullahi Sule Kano President 25th August, 2004 |
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MEMO TO NASS ON A BILL FOR AN ACT TO AMEND THE TRADE UNIONS ACT
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