28 July 2005
The new "Guidelines" released on July 19, 2005 by the Ministry of Employment, Labour and Productivity "to aid the implementation of the existing labour law" as reported by The Punch Newspaper of July 27, 2005 is inimical and antithetical to section 40 of 1999 constitution of the Federal Republic of Nigeria and International Labour Organisation (ILO) standards and conventions. The constitution and ILO allow workers to freely form and/or belong to Trade Unions of their choice without any condition attached.
One of the new "Guidelines", for instance, states "The existing formation of Trade Unions along industrial/occupational lines should be maintained". This implies that workers could not freely move from one union which is not in anyway protecting or defending their interest to another that they feel could defend and protect their rights. In particular, workers are not free to form any new trade union organisation for the protection of their own interest as provided by section 40 of the 1999 constitution of the Federal Republic of Nigeria. These "Guidelines" are the exact opposite and subversion of section 2 of the Trade Unions (Amendment) Act 2005 which states "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 join or remain a member"
Notwithstanding this express provision of the Act, the "Guidelines" in issue still seek to deny workers their constitutional and legal right to join any trade union of their choice on the spurious basis of "occupational line". This line of reasoning is totally untenable in that it is both unconstitutional and illegal. For avoidance of doubt, section 40 of the 1999 constitution states, "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".
Under the current civil-rule dispensation, the 1999 constitution of Nigeria is the supreme law and as such, no any other legislation or law can take or abridge the right of Nigerian workers to belong to any trade union of their choice, whether they belong to the same "industrial union/ occupational line" or not.
Under the old Trade Unions Act, only workers that belong to the same "occupational line" can belong to same industrial union. However, in order to give effect to section 2 of the Trade Unions (Amendment) Act, 2005 which gives absolute right to employees to join any trade union of their choice, section 6 of this Act amends section 30 of the old Trade Unions Act which forbids employees from belonging to same union "unless" they belong to the same occupational line by the phrase, "whether or not members of the trade union wishing to join the registered federation are employed in trades, occupations or industries which are similar to the trades, occupations or industries of the trade unions which formed the registered federation which the trade union seeks to join".
In order to ensure that employees' right to join any union of their choice is not frustrated or thwarted under any guise, section 5 of the Trade Unions (Amendment) Act, 2005 which amends section 24(1) of the old Trade Union Act states, "for the purpose of collective bargaining, all registered Unions in the employment of an employer shall constitute an electoral college to elect members who will represent them in negotiations with the employer". In plain language, this shows that the new Trade Unions Act recognises a situation where employees will have right to join any union of their choice as there may be more than one "unions in the employment of an employer"!
Against the above expositions, the so-called "Guidelines" meant "to aid the implementation of the existing law" are nothing but brazen assaults designed to prevent workers from taking benefits of the little constitutional and democratic aspects of the Trade Unions (Amendment) Act 2005.
This crude, militaristic hangover must be stoutly resisted by labour activists and the entire labour movement. Genuine labour activists must not allow themselves to be intimidated by this undemocratic and unconstitutional "Guidelines".
Suffice to stress, this is not the first time "guidelines" will be manufactured to abridge the rights of the poor working people. Similar "guidelines" were used by INEC to suppress the rights of Nigerians to form and belong to political parties of their choice until it was fought and eventually defeated at the Supreme Court in a ruling delivered in November 2002 which resulted in the registration of additional 24 political parties as against the regimented existing 6 political parties then. It was affirmed that if any law, act or guideline clashes with the constitution, the latter prevails.
The Nigeria Labour Congress (NLC) Trade Union Congress (TUC) Congress of Free Trade Unions (CFTU), Trade Unionists and Activists, Pro-democracy groups, etc, should collectively reject these guidelines. It is high time we stopped one government parastatal or the other from taking us for a ride and consequently pushing us back.
We of the Campaign for Democratic and Workers' Rights (CDWR) consequently demand the immediate and total withdrawal of these provocative, unconstitutional and illegal "Guidelines".