The Nigeria Union of Petroleum and Natural Gas Workers(NUPENG)and the Petroleum and Natural Gas Senior Staff Association of Nigeria(PENGASSAN) have called for their immediate recognition as the sole statutory unions in the country’s oil and gas industry.
NUPENG conveyed the request in a memorandum presented to the House of Representatives Committee on Petroleum Resources(Downstream).
It maintained that union recognition by the employer should be a condition precedent to allowing any company to continue to operate, stressing that the development is the position of both domestic and international instruments, particularly International Labour Organization standards, which are the minimum standards on a global scale.
It said:”The case of Nigeria should not an exception. By extension, the case of Dangote Refinery should not be an exception. Where all other IOCs (International Oil Companies) accommodate trade unions, the Dangote Refinery should not be above the law.”
According to the memorandum, recognizing the union is the first step toward building a sustainable, inclusive downstream petroleum sector where workers are respected and businesses can thrive.
It explained that the demand is in line with 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.
It also mentioned that the National Industrial Court of Nigeria (NICN) has put the position of the law pungently in Nestoil PLC v. National Union of Petroleum and Natural Gas Workers (NUPENG) (2012) 29 NLLR (Pt. 82) 90 at 155, paragraphs C-F, saying junior staff are deemed to be members of a union until they individually and in writing opt not to be; while senior staff are deemed not to be members until they individually and in writing opt to be.
According to the union, the development means that if in truth the defendant is the proper union to unionize junior staff of the defendant, the question of them having to agree and express their interest before they can join the defendant’s union will not arise.
All that will be required of them is that if they do not want to be members, they can opt out, it added.
“In the same authority of Nestoil PLC v. NUPENG (supra) at 155, paragraph G, it was held that “… the law is that registration is deemed, recognition automatic and deduction of check-off dues compulsory, being based on mere eligibility to be a member of the union in question”
“In Executive Chairman & Management of Benue State Universal Basic Education Board v. Non-Academic Staff Union of Educational & Associated Institutions [2021] LPELR-55724(CA), the Court of Appeal, per Affen, JCA, held that “…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”.
“The Court has judicially interpreted Section 5(3) of the Labour Act and Section 17 of the Trade Unions Act to determine the obligation of the employer and the entitlement of the trade union statutorily authorized to unionize a set of workers in an industrial unionism regime.
” In EZE & Ors v. UDEH & Ors (2017) LPELR-42716(CA), the Court of Appeal held that by virtue of Section 5(3) of the Labour Act and Section 17 of the Trade Unions Act, an employer shall automatically deduct check-off dues or contributions from the wages of members of a trade union recognized and registered under the Trade Unions Act and remit same to the union.
In paragraph 64 of the Judgment in BETHEL EZEGO & 4 ORS. V. NUFBTE & BELOXXI (SUIT NO: NICN/LA/221/2017 JUDGMENT DELIVERED ON 16/07/2018 BY HIS LORDSHIP, HON. JUSTICE B.B. KANYIP, PhD, the Court held that “earlier, [in] CAC v. AUPCTRE [2004] 1 NLLR (Pt. 1) 1 had considered and held as constitutional the automatic deduction of check-off dues, holding in the process that although recognition of trade unions is mandatory and deduction of check-off dues automatic, each worker has the freedom and liberty to opt out of trade unionism; that this freedom exists certainly cancels out whatever compulsion can be said to exist and so would have rendered the law unconstitutional.
“This Court went on to hold that freedom to associate under section 40 of the 1999 Constitution certainly includes the freedom to disassociate or not to associate; and sections 5(3) of the Labour Act and 16A of the TUA, now section 17(a) and (b), certainly accommodate this and so are also constitutional”.
“Indeed, in NUSDE v. SEWUN [supra], judgment of which was delivered by a panel consisting Hon. Justice B. B. Kanyip (Presiding Judge), Hon. Justice O. A. Obaseki-Osaghae and Hon. Justice J. T. Agbadu-Fishim, this Court held that though the positive right to associate also includes the negative right not to associate, the positive right to associate can only be exercised within the framework of the organizational jurisdiction of trade unions under the Trade Unions Act, CAP T9, Laws of the Federation of Nigeria, 2004, as amended. That workers who decide not to join the statutorily recognized unions listed under the Trade Unions Act have the right so to do but such workers “may have to remain union-less”.
“In NUPENG v. MWUN [2012] 28 NLLR (Pt.80) 309 NIC, it was explained, inter alia that: “We must state that the dire need to streamline trade unions as a result of proliferation and a chaotic labour regime led to the restructuring of trade unions beginning with the restructuring exercise as contained in the legal notice No. 92 Re-structuring of Trade Unions, official Gazette of the Federal Republic of Nigeria No. 6 of 8th February 1978.
“This culminated in the restructuring exercise under Decree 4 and 26 of 1996 where trade unions were restructured into named unions listed out and their respective jurisdictional scope provided for, all in Third Schedule Parts A,B and C to the Trade Unions Act, as amended….”
The union also commented on the assertions made by the Nigeria Export Processing Zones Authority (NEPZA) regarding Section 18(5) of the NEPZA Act, which states there shall be no strikes or lock outs for a period of ten years following the commencement of operations within a zone and any trade dispute arising within a Zone shall be resolved by the Authority.
It buttressed that the NEPZA Act’s provisions are subordinate to the fundamental conventions of the International Labour Organization (ILO)—specifically Conventions 87 and 98, which guarantee the right to freedom of association and collective bargaining. T
These conventions, ratified by Nigeria, are recognized as constitutional rights under Section 254C(2) of the 1999 Constitution (as amended), it said.
According to the memorandum, the ILO Committee of Experts has consistently affirmed that recognition strikes are lawful, adding that any statutory provision that attempts to prohibit such rights is inconsistent with constitutional guarantees.
It said:”Furthermore, Section 4(e) of the NEPZA Act, which deals with the resolution of trade disputes, does not prohibit the existence of trade unions. Its scope is limited to resolving employment-related issues affecting individual employees and does not extend to collective labour disputes, which are governed by the Trade Disputes Act (TDA).”
It urged the National Assembly not to retain laws that threaten the exercise of fundamental rights.
