Industrial Court of Nigeria, Aero Contractors Co. of Nigeria Limited v. the National Association of Aircrafts Pilots and Engineers, the Air Transport Senior Staff Association of Nigeria and the National Union of Air Transport Employees, 4 February 2014, Case No. NICN/LA/120/2013
Constitution of the Federal Republic of Nigeria
Article 12, paragraph 1
No treaty between the Federation and any other country shall have the force of law to the extent to which any such treaty has been enacted into law by the National Assembly.
Constitution of the Federal Republic of Nigeria (Third Alteration) Act 2010
254 C - (1) Notwithstanding the provisions of sections 251, 257, 272 and anything contained in this Constitution and in addition to such other jurisdiction as may be conferred upon it by an Act of the National Assembly, the National Industrial Court shall have and exercise jurisdiction to the exclusion of any other court in civil causes and matters-
(h) relating to, connected with or pertaining to the application or interpretation of international labour standards;
(2) Notwithstanding anything to the contrary in this Constitution, the National Industrial Court shall have the jurisdiction and power to deal with any matter connected with or pertaining to the application of any international convention, treaty or protocol of which Nigeria has ratified relating to labour, employment, workplace, industrial relations or matters connected therewith.
Right to strike
Direct resolution of a dispute on the basis of international law
Work of international supervisory bodies1
Right to strike/ Essential services/ Air transport/ Direct resolution of a dispute on the basis of international law
The enterprise Aero Contractors Co. of Nigeria Limited, dedicated to the air transport of people and goods, called on the Industrial Court of Nigeria to decide whether members of the trade unions the National Association of Aircrafts Pilots and Engineers, the Air Transport Senior Staff Association of Nigeria and the National Union of Air Transport Employees had the right to call and embark on strike action. The enterprise argued that, according to the provisions of the Trade Unions Act of 2004, the transport of passengers and goods was an essential service; on these grounds, the law restricted the right to strike of the members of the trade unions subject to the legal action.
The trade unions argued that, according to the ILO Committee on Freedom of Association, the prohibition of strike action in the case of essential services was solely acceptable when there was a clear and imminent threat to the life, personal safety or health of the whole or part of the population, and that these requisites were not fulfilled in this case.
The unions also considered that the prohibition of strike action constituted a breach of the rights to freedom of association and collective bargaining, contradicting the provisions of ILO Conventions Nos. 87 and 98. The enterprise objected to the application of these Conventions, considering that since there was no law that had introduced the Conventions into the country’s legal system, they did not have the force of law.
In its analysis the Court concluded that, contrary to the standpoint expressed by the enterprise, Section 245C of the Constitution did grant the Court the jurisdiction and power to apply any international convention ratified by Nigeria.
The Court then referred to the pronouncements of the ILO Committee on Freedom of Association recalling that:
“[…] by the ILO publication, Freedom of Association: Digest of decisions and principles of the Freedom of Association Committee of the Governing Body of the ILO (1996), Fourth (revised) edition at paragraph 131 at page 29, “the right to strike and to organize union meetings are essential aspects of trade union rights”.2
With the aim of deciding whether air transport was an essential service, the Court referred to the work of the ILO Committee of Experts on the Application of Conventions and Recommendations, pointing out that:
“ … the Committee of Experts defined such services as those “the interruption of which would endanger life, personal safety or health of the whole or part of the population”.
Thus, the Committee has considered to be essential services in the strict sense, where the right to strike may be subject to major restrictions or even prohibitions, to be: the hospital sector; electricity services; water supply services; the telephone service; air traffic control. In contrast, the Committee has considered that, in general, the following do not constitute essential services in the strict sense of the term, and therefore the prohibition to strike does not pertain: [...] aircraft repairs [...] transport generally […]”.3
Making use of the work of the ILO Committee of Experts and the Committee on Freedom of Association to interpret the Trade Unions Act of 2004, the Court concluded that the trade union members defendants in the case did have the right to embark on strike action since the services they provided were not essential; however, if any union member provided air traffic control services then the prohibition of strikes would apply to that member.