By Folabi Kuti, SAN
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In light of the public debate surrounding the National Union of Petroleum and natural Gas Workers (NUPENG) and Dangote Refinery dispute, this intervention is directed at the constitutional safeguard of ‘Freedom of Association’ woven around the publicly stated facts. Emphasis on the facts- as publicly stated. With the varying accounts from the two competing sides of this divide, much of this remains at the level of public commentary, and is therefore unverified. Nonetheless, we will proceed with the widely circulated narrative, simply to provide context to the issues and the law as it stands.
The Truth About Freedom of Association and the Structure of Union Membership
The 1999 Constitution of the Federal Republic of Nigeria (as amended) (the Constitution), guarantees in section 40 that:
“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.”
At first glance, this appears to give an unfettered right to join (or not join, as the case may be) any union. But case law citations have clarified that this freedom has to be understood within the specific framework of the Trade Unions (Amendment) Act, 2005 (TUA). For contextual clarity, the much-vaunted constitutional safeguard of freedom of association must be interpreted comprehensively, alongside the provisions of other relevant, and, more subject-specific laws dealing with right to associate with a political party (Electoral Act/laws), trade union/s (Trade Unions Act) and the other associations (such as those regulated under the Companies and Allied Matters Act).
To be sure, even the letters of the self-same Constitution did not confer absolutism in freedom of association in labour relations, or indeed any other gathering/fellowship explicitly indicated in Section 40. Section 45(1) of the Constitution provides that:
“Nothing in sections 37, 38, 39, 40 and 41 of this Constitution shall invalidate any law that is reasonably justifiable in a democratic society
(a) in the interest of defence, public safety, public order, public morality or public health; or
(b) for the purpose of protecting the rights and freedom or other persons”
Section 12(4) of the TUA makes membership voluntary in emphatic terms:
“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 victimised for refusing to join or remain a member.”
On its face, this reinforces the constitutional guarantee. Yet in practice, the law distinguishes between categories of workers. In Bethel Ezego & Ors v. NUFBTE & Anor (Unreported Suit No. NICN/LA/221/2017, judgment delivered on 16 July 2018; per Hon. Justice B. B. Kanyip, PHD, PNICN), the National Industrial Court explained that:
“For junior staff, the rule was that membership was deemed with a right to “opt out”, while for senior staff they were not deemed to be members and so had to voluntarily “opt in”. In other words, junior staff could only “contract out” of trade union membership, while senior staff could only “contract into” to be members.”
The rationale is simple: junior employees are considered more vulnerable, and so the law provides automatic protection through union membership, subject only to their individual right to contract out. The Court of Appeal, per Affen, JCA in Executive Chairman & Management of Benue State Universal Basic Education Board v. Non-Academic Staff Union of Educational & Associated Institutions [2021] LPELR-55724(CA) gave a plausible rationale “…the law assumes a paternalism towards junior staff by making eligibility the yardstick for trade union membership but donates to him the right to opt out in writing if he finds that his interest is not being served.”
Senior staff, by contrast, must positively contract in.
This is, contrary to popular belief, not a paradox, or contravention of the much-vaunted constitutional right to freedom of association, but a deliberate balancing act. The constitutional provision is preserved, but expressed differently for different categories of workers. Automatic membership for juniors is designed as a shield, not a shackle, and their freedom lies in the right to withdraw if they so choose.
It is in this light that the TUA does exactly this by prescribing a scope for each union in its Third Schedule, and by forbidding unnecessary duplication. The Ezego’s judgment put the matter starkly:
“Voluntarism and the freedom to choose which union to belong to is limited to the unions empowered to operate within a clearly defined jurisdictional scope. Voluntarism must exist within and not outside all existing relevant laws and regulations.”
This reflects a longstanding policy, dating back to the 1978 restructuring of trade unions and reinforced by Decrees 4 and 26 of 1996, to streamline industrial relations and avoid a chaotic multiplicity of unions. The 2005 amendments to the TUA did not come to abolish these jurisdictional boundaries, but to fulfill them! As the court held, “The argument…that the 2005 amendment gives unfettered freedom to workers to join any union of their choice is an erroneous interpretation.”
The Prohibition of Employer Interference
As clarified above, the generally understood position that automatic membership for junior workers seems to limit freedom, is quite far from the truth. However, in line with that brand of thinking, a far greater violation of said freedoms occurs when employers seek to interfere in union membership. Thus, if the facts, as publicly stated, can be believed (that is, that Dangote is resisting NUPENG’s attempt to unionise its tanker drivers), then there is a clear problem. The courts have consistently denounced such interference. See CAC v. AUPCTRE [2004] 1 NLLR (Pt. 1) 1; Amalgamated Union of Public Corporations, Civil Service Technical and Recreational Services Employees (AUPCTRE) v. Corporate Affairs Commission (CAC) & anor (Unreported Suit No. NICN/ABJ/62/2021, the judgment of which was delivered on 7 October 2021); Beloxxi Industries Limited v. National Union of Food, Beverage and Tobacco Employees (NUFBTE) & 2 ors (Unreported Suit No. NICN/LA/437/2016, the ruling of which was delivered on 30 March 2017).
In the case of Nestoil Plc v. NUPENG [2012] 29 NLLR (Pt. 82) 90, Nestoil, the employer, sought to deny NUPENG’s competence to represent its workers. The court firmly rejected this, holding that 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 principle, grounded in both domestic law and the International Labour Organization (ILO) Convention No. 87, is clear: employers cannot obstruct unionisation, cannot dictate the choice of union, and cannot set up alternative ‘house unions’ to rival existing ones.
This line of authority dovetails with the Ezego’s case where the court insisted that automatic membership was the starting point for junior staff, subject only to individual opt-outs. Consequently, if – as has been alleged in public reports – Dangote seeks to prevent its tanker drivers from belonging to NUPENG, such a stance would be legally untenable.
Union monopoly or Union pluralism: the workers’ call !
There is another interesting dimension to the discourse, which the Industrial Court addressed in the case of Yusuf Abdullahi Abdulkadir, Esq & Ors v. Minister of Labour & Employment & Ors., where the question – amongst others – was whether the Registrar of Trade Unions could refuse the registration of the Law Officers Association of Nigeria (LOAN) simply because there were other trade unions that members of LOAN could join to achieve their desired purpose.
In that case, the NICN answered in the negative. Applying the resolutions from the ILO’s Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87), and the ILO’s jurisprudence the Court held thus:
“…the generally accepted principle by ILO is trade union plurality. But if the workers or employers so wish, the decision being theirs, they can settle for trade union monopoly… And so statutory (including constitutional) provisions prohibiting the creation of more than one trade union for a given occupation or economic category…or a law which does not authorise the establishment of a second union in an enterprise…or require a single union for each enterprise, trade or occupation…, the prevention of two enterprise trade unions coexisting…, all fail to comply with Article 2 of Convention No. 87.”
This marks a radical departure from the pre-Third Alteration thinking championed in Osawe V the Registered Trustees of Trade Unions (1985) 1 NWLR (Pt.4) 755 on non-proliferation of unions.
What this means for the Dangote dispute is that, under the earlier regime, the tanker drivers could not have created a rival union covering the same field simply because they disliked NUPENG. However, drawing on the ILO’s push for freedom/plurality of trade unions, the recent position is that the drivers may not only just opt out (as is their constitutional right), but may also go further to form a rival union altogether. That said, this creation is entirely dependent on the wishes of the workers alone. Employers (Dangote) are not permitted to either suggest or compel workers to make this jump to union independence. It must be wholly driven by the tanker drivers’ desire to separate themselves from NUPENG. Now there is another issue concerning how ‘regulators’ are expected to verify the veracity of this claimed ‘independence’ from their employer’s clutches, however, this is discourse for another forum.
Conclusion
The present debate is clouded by competing narratives: NUPENG alleging exclusion, allegations of Dangote’s interference and drivers’ supposed discontent. As stated elsewhere, much of this remains at the level of public commentary, accordingly unverified. Nonetheless, the principles are settled. Junior workers are deemed members of the appropriate unions, subject to an individual right to opt out and employers have no role in obstructing or dictating that membership.
In this light, neither NUPENG/the drivers’ overreach nor Dangote’s obstruction, as their employer, can be sustained. The proper balance lies in recognising automatic membership of junior workers while maintaining the statutory bar against union proliferation. Even where the workers decide to enjoy or proceed with the ILO’s backing of trade union pluralism, or just simply trade union monopoly, the choice should be that of the workers, without the employer’s interference. To depart from this balance would be to unsettle a carefully wrought labour law regime, and to jeopardise the very industrial harmony and stability that freedom of association (in overall labour relations) is meant to secure.
Folabi Kuti, SAN is Lead Partner, Union Attorneys. unionattorneys@kutilegal.com, folabikuti@kutilegal.com
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