Can a trade union approach the courts to enforce the terms of a collective agreement?

Question: What is a collective agreement?

Answer: According to the ILO, Collective agreements mean “all agreements in writing regarding working conditions and terms of employment concluded between an employer, a group of employers or one or more employers’ organisations, on the one hand, and one or more representative workers’ organisations, or, in the absence of such organisations, the representatives of the workers duly elected and authorised by them in accordance with national laws and regulations, on the other.” In Nigeria, the Labour Act (Cap 198 Laws of the Federation of Nigeria 1990) defined “Collective agreement” as an agreement in writing regarding working conditions and terms of employment concluded between-

(a) an organization of workers or an organization representing workers (or association of such organizations) of the one part; and

(b) an organization of employers or an organization representing employers (or an association of such organizations) of the other part.

Question: How can employee Unions enforce the terms of the collective agreements?

Answer: Many still believe Collective agreements are gentlemen’s agreements and generally presume that they are legally unenforceable and that parties obey the terms “in honour only”.

However, we have several decided cases about the enforceability of a collective agreement. These cases have shown a departure from the old and wrong perception that The courts cannot enforce collective agreements.

The terms of the collective agreement can be enforced by the courts in the following cases.

1. Employee Unions can sue for enforcement of collective agreement terms when terms of the collective agreement were incorporated into the employment contracts.

2. Employees can sue for the enforcement of terms of Collective agreements where the terms are based on existing legislation.

3. Employees can sue for the enforcement of the collective agreement in its entirety. In the case of Stephen Ayaogu and 16 Others v. Mobil Producing Nigeria Unlimited and Blue Chip Services Limited, the Court held:

“The 2nd defendant had argued that the claimants cannot rely on Exhibits C1 and C2, the Collective Bargaining Agreements (CBA) because they are not signatories to the collective agreements, the collective agreements were not incorporated into the employment contracts of the claimants, and collective agreements are gentleman’s agreements binding in honor only. This Court has held severally that given its power and jurisdiction to interpret and apply collective agreements under section 254C of the 1999 Constitution presuppose that collective agreements are now binding “( Bold mine)

Hon. Justice Oluwakayode Ojo Arowosegbe, the Presiding Judge of the Enugu Division of the National Industrial Court of Nigeria (2022), held as follows:

“In virtue of the above, collective agreements are no longer gentlemen agreements, as in the past but now, enforceable agreements, which give impetus for the right of workers to press for their implementations. Nigeria is now fully bound by the law in ILO C98. When the doctrine of dispute of right was invented, collective agreement was not enforceable in Nigeria, but now that it has become enforceable, the situation cannot remain the same, particularly that, the Constitution made it enforceable. For inability to enforce them in courts, workers had had no alternative then, than to proceed on strikes to compel employers to honour their gentlemen pacts. Now that they are enforceable, it would appear that, strikes ought no longer be the preferred option but the courts, which have been added as additional option hitherto lacking. Since workers can now approach this Court for interpretation and application/enforcement of collective agreements, they have an option in this Court. Strike ought be a last resort, but definitely, strike/industrial actions remain an option and, it may be for the unions to determine which suits them better in the peculiar circumstances of the cases. “

Question: If Collective agreements are enforceable, why won’t trade Unions approach the Courts to enforce the terms?

Answer:

1. Many trade Union leaders believe that strikes are the most effective means of enforcement.

2. Many trade Union leaders believe the court case may take longer than strike action.

3. Trade Union leaders know that once they approach the courts, they must call off any strike or other action pending the issue’s determination.

4. Calling for a strike makes the Union leaders look ‘stronger” and may enhance their popularity. Strikes boost the egos of Union Leaders

5. There is no consequence for strikes. For example, a Union might be on strike and the employees still receive their salaries. I know a University that promoted staff while they were on strike.

Question: How can a trade Union get faster results using the courts to enforce a Collective agreement?

Answer: A trade Union can approach the Alternative Dispute Resolution Centre of the National Industrial Court. This centre uses the process of mediation and/or conciliation to resolve their dispute and arrive at a mutually acceptable agreement. Therefore, this centre is less costly, speedier and more efficient than the regular courts.

The arbitration may take a more extended period because it is like a trial, but Mediation is faster because it’s a negotiation facilitated by a neutral third party. The parties can also determine the duration of the mediation.

Even if a trade union desires to proceed with litigation, section 19(a) of the NIC Act 2006 grants the court the power to make urgent interim reliefs where necessary. So some relief can be gotten while the case is ongoing.

Question: Is the Minister of Labour and Employment, Sen. Chris Ngige, the sole authority on Labour matters in Nigeria?

Answer: No.

Before the passage of the NICA, 2006, and the Constitution of the Federal Republic of Nigeria (Third Alteration) Amendment Act, 2010, the Minister of Labor had a great deal of authority on Labour issues. For example, the Trade Dispute Act (sections 14, 15, 16, 17, 18 and 20) vested a lot of powers on the Minister of labour and productivity.

However, this has changed with Section 7 of the NICA, 2006, which conferred on the NIC exclusive jurisdiction to adjudicate civil causes and matters relating to labour, industrial trade union and industrial relations and environment and conditions of work, health, safety and welfare of labour and matter incidental to it amongst others. These provisions were reinforced and strengthened by section 254C (1) of the Constitution.

Question: Are Strikes a last resort?

Answer: Yes, and they should be used after other alternatives have failed.

Hon. Justice Oluwakayode Ojo Arowosegbe, the Presiding Judge of the Enugu Division of the National Industrial Court of Nigeria (2022), held as follows:

“Since workers can now approach this Court for interpretation and application/enforcement of collective agreements, they have an option in this Court. Strike ought be a last resort, but definitely, strike/industrial actions remain an option and, it may be for the unions to determine which suits them better in the peculiar circumstances of the cases. “

An International Review of European countries shows the situation in different Countries. In Turkey, strikes can only be initiated after negotiations have been exhausted. Also, some countries specify that strikes must be a last resort. In Serbia, for example, strikes can be called only after a mandatory conciliation procedure. In Poland, strike action must not be declared without having previously exhausted all possibility of settlement through negotiation, and if negotiations fail, through mediation. In Luxembourg, the law provides that before any strike action, the parties to a collective dispute must submit to a compulsory conciliation and mediation procedure. In Latvia, there is a requirement to resolve a dispute through conciliation, mediation, and arbitration before moving to strike action.

In Austria, most employees are covered by collective bargaining agreements and almost all collective agreements contain a no-strike clause.

In Benin, Sect. 264. The Labour Code (1998) states that:

“ A strike may only be called in the event of the failure of negotiations in the presence of the labour inspector or director. The failure of negotiations shall be recorded forthwith in the report of the labour inspector or director and signed by the parties and endorsed by the labour inspector or director.”

While In Poland ( ct on Trade Unions, 1982, as amended in 1983, 1984, 1985, 1988, and 1989 (amended by the Law of May 23, 1991, on Trade Unions) states that “(b) a strike is a last resort, and may not be proclaimed until all the procedures for settling the dispute, referred to in Article [] have been exhausted. This is not applicable to strikes proclaimed in response to a refusal to comply with the verdict of an arbitration board”.

In the end, negotiated labour agreements can be adjudicated in the courts. The expectations is that an employer will obey all the terms of the agreement, but where they fail, the employee union can approach the courts. In the same way, where the employee Union fails to abide by the terms of the agreement, the employer can seek for enforcement in the courts. The recourse to strikes as the first and only means to enforce collective bargaining agreements isn’t sustainable for quality industrial relations, business continuity and reliability and economic development.

Fawehinmi is a human resources professional and member of the Council of the Chartered Institute of Personnel Management of Nigeria (CIPM).