• Thursday, April 18, 2024
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Employers are not and cannot act as the policeman of labour practices in the workplace in Nigeria

Employers are not and cannot act as the policeman of labour practices in the workplace in Nigeria

Employees in Nigeria are bound by their contract of employment and conditions of service. Also, employers have the right to implement and sanction employees for infringement as contained in the contract of employment and conditions of service. Also, employees are free to form and join staff unions in line with provisions of the Nigerian Labour Act, Trade Unions Act, and Right to Organise and Collective Bargaining Convention, 1948 (No. 98). Many employers’ staff policies reflect this and excitingly accommodate union activities. Some of them do so grudgingly. This is a topic for consideration some other time.

Employees have dual contracts when they belong to a union—one with the employer and another with the union. These contracts are distinct, independent, and cannot substitute for each other. Employers must refrain from interfering in union activities, and similarly, unions must avoid involvement in the employer-employee relationship. This mutual non-interference preserves the integrity of both contracts, fostering a balanced and respectful workplace environment.

Employers and employees often face confusion regarding employers’ rights to penalise contract violations. Employers assert the authority to sanction employees for breaches, even if committed within a union. They also claim the right to monitor and regulate unions, members, and activities, adding complexity to the interpretation of employment contracts and conditions.

In the case of Amalgamated Union of Public Corporations, Civil Service Technical and Recreational Services Employees (AUPCTRE) vs Corporate Affairs Commission (CAC) & The Registrar General Corporate Affairs Commission Suit No. NICN/ABJ/62/2021 the court highlighted what could amount to interference by an employer in trade union activities of the union(s) in its workplace.

In the case, the defendants had called to order the claimant, who is a union for junior staff and some senior staff of the 1st defendant, who parade themselves as members of the association acting in flagrant disobedience of the court judgement to order.

The court kicked against the above action of the defendant. Calling to order of the claimant by the defendant implies that they have some kind of policing duty over the trade unionism of the claimant.

In reference to Errand Express Limited v. Maritime Workers Union of Nigeria, the court emphasised that unions lack the authority to police the world of work, highlighting their non-interference role. Similarly, employers cannot act as trade unionism police within the workplace, as it would constitute interference. The court underscored the need to avoid such overreach by both unions and employers.

The court stressed the prohibition of employer interference in trade union activities within the workplace. It emphasised that the defendants were wrong to intervene in the claimant’s affairs and reprimand senior staff for disobedience to court judgments, as the defendants were not appointed as policemen for enforcing the court’s orders.

The defendant was also selecting who the members of the claimant should be. The court addressed this and said that it is not open to the defendants to say who the members of the claimant should be and that the defendants cannot even rely on Section 287(3) of the 1999 Constitution as justification for assuming the said role of a policeman. Also, it is not open to the defendants to say who the members of the claimant should be. That is the function of the court.

On the defendants setting up a forensic audit committee to audit the accounts of the claimant’s project, the court held that it was tantamount to interference with the legitimate activities of the union. The function of checking the accounts of a trade union is that of the Registrar of Trade Unions, not the defendants, as cited in sections 38 and 39 of the Trade Unions Act (TUA) 2004.

The court also considered the three queries bordering on the recusant or failure to cooperate with the Forensic Committee, the allegation of fraud, etc issued to the three officers of the claimant union as depicting the interference of the defendants in the affairs of the claimant union.

The court kicked against this action and explained that ‘’what can we glean from all of this? First, the actions for which the three queries were issued were acts done for and on behalf of the claimant union by its officers. Secondly, the money in issue is trade union money, not the defendants’. Thirdly, the project in issue is a trade union project, not the defendants’. Fourthly, when the defendants asserted in the queries that what the three officers did amounted to “gross misconduct under the Commission’s Conditions of Service”,

The court, after scrutinising each interference by the defendants, observed that the queries lacked information on the queried staff’s ranks, making it unclear if they were senior or junior employees. Additionally, the defendants failed to specify the breached provisions of the conditions of service, emphasising that sanctions must align with the service terms before implementation.

Lastly, the court noted that ‘‘all of these amounts to a simple truth: a blatant interference in the affairs of the claimant union by the defendants. Nothing more, nothing less! Pure and simple! The defendants have no business whatsoever to do all they did.’’

It is important to also add that the said interference in the activities of the claimant referred above were not only considered wrong but an infringement of the right of the claimant, for which the claimant is entitled to recompense assessed at one million Naira only representing the general damages suffered by the claimant.

 

Adebayo Adekola; Team Lead/Founder, Taitum Legal Practitioners

[email protected] +2348165299774