National Industrial Court of Nigeria in the Lagos Judicial Division, Nestoil ltd v. National Union of Petroleum and Natural Gas Workers, 8 March 2012, NIC/LA/08/2010
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.
Freedom of association
Reference to international law to strengthen a decision based on domestic law
Interference of an employer in union issues/ Freedom of association/ Reference to international law to strengthen a decision based on domestic law
With respect to a case involving the employer Nestoil and the National Union of Petroleum and Natural Gas Workers (NUPENG), in which the employer argued that the union was not competent to represent the interests of Nestoil workers, the Court found that the employer did not have the capacity to act in this matter and could not question its workers’ membership of the union since an employer cannot and must not interfere in the union activity of its employees.
In fact, according to the Court, the employer had neither a right nor an interest in the matter as to whether its workers join a specific union; neither did the employer have the right to interfere in union issues in any way. The Court referred to its case law2 to underline that the right to freedom of association is a fundamental right enshrined in the country’s constitution. An employer cannot establish a union, and cannot force workers to join a union that the employer has created or determine how a union is run or administered. The obligation imposed on workers to become members of the Nigerian Union of Seamen and Water Transport Workers rather than the NUPENG was a clear violation of the constitution. The dismissal of workers for refusing to join that union aggravated a situation that was already bad and in need of redress.
The Court reiterated that this statement of principles is in accordance with article 40 of the Constitution, as amended, and ILO Convention No. 87, which establishes the right of workers’ and employers’ organizations to “organise their administration and activities and to formulate their programmes” (Article 3) and recognizes these organizations’ aim of “furthering and defending the interests of workers or of employers” (Article 10). This freedom involves a certain number of principles that have been established over time and are as follows: workers and employers, without distinction whatsoever, shall have the right to establish organizations of their own choosing without previous authorization; to draw up their constitutions and rules; to elect their representatives in full freedom; to organize their administration and activities and to formulate their programmes. Workers and employers’ organizations shall have the right to establish and join federations and confederations; and shall not be liable to be dissolved or suspended by administrative authority except by legal proceedings; they shall enjoy adequate protection against acts of anti-union discrimination and adequate protection against any acts of interference.3
On the basis of these arguments, the Court ruled that the employer did not have locus standing regarding whether the defendant was the appropriate union to organise its staff. In fact, the Court ruled that the capacity to act pertained solely to the workers or to a competing union.
Thus, the Court based its decision on domestic law, strengthened by international labour law, ruling that the employers should not interfere in the union activity of its workers and did not have the capacity to act in relation to the present issues.
3 The Court cited B. Gernigon, A. Odero and H. Guido: “Freedom of association” in International labour standards: A global approach, 75th anniversary of the Committee of Experts on the Application of Conventions and Recommendations, ILO, Geneva, 2002.