The General Unenforceability of Collective Agreements under Nigerian Labour Jurisprudence: The Paradox of Agreement without Agreement
Keywords:
Contract of employment, Nigerian labour law, employer, employee, jurisprudenceAbstract
This study considers the status of collective agreements under Nigerian labour law, examining the extent of their enforceability under the extant laws. It considers the emerging trends in some more advanced jurisdictions of the world in that regard and comparatively portrays the anachronisms of the Nigerian law on the point. It takes the position that the current legal climate as regards the legal status of collective agreements under Nigerian law is potentially disruptive of industrial peace and harmony and is bound to occasion serious hardship on employees. The work suggestes among others a jurisprudential shift in paradigm if the Nigerian labour jurisprudence must meet and be reflective of modern socioeconomic realities.
References
O Kahn-Freund, “Collective Agreements,” Modern Law Review, (1940) p. 225; B. Simpson, “British Labour Relations in the 1980s: Learning to Alive with the Law” 49 Modern Law Review, (1986) pp.798– 799.
See art. 2 of the Collective Bargaining Convention, 1981 (No. 154); V A Odunaiya, Law and Practice of Industrial Relations in Nigeria, Lagos: Passfield Publishers, 2006, p. 325. See generally also Bernard Gernigon, Alberto Oderoy and Horacio Guido, COLLECTIVE BARGAINING: ILO standards and the principles of the supervisory bodies, Geneva: International Labour Office, 2000.
ILO Recommendation 91, Para. 2
Ibid
Ibid
See Report of the Commission on the Review of Wages, Salaries and Conditions of Service of the Junior Employees of the Government of the Federation and Private Establishments, 1963 – 1964, Paragraph 8; T MYusuf, “Legal Aspects of Labour Relations in Nigeria (2)”, 1965 International Comparative Law Quarterly, Supplementary Publication, p. 94. See also Emeka Chianu, Employment Law. Akure: Bemicov Publishers, 2004, p. 73.
Dalrymble v. Dalrymble (1811) 2 Hag. Con. 5 at 105.
(1969) 1 WLR 339
Ibid at p. 335
(1915) A. C. 847
Ibid at 853
The exceptions to the doctrine include agency, assignment of contractual obligations, novation, contracts running with the land, contracts of insurance, charter parties and trust. See G. H. Treitel, Law of Contract (9th edn. London, Sweet & Maxwell, 1995) at 576- 587; Itse Sagay, Nigerian Law of Contract, Ibadan: Spectrum Books, 1993, p. 489
(2011) 7 NWLR (Pt. 711) 1; Union Bank of Nigeria Limited v. Edet (1993) 4 NWLR 288
See Chukwurah v. Shell Petroleum Nigeria Limited (1993) 4 NWLR (pt. 289) 512; Abalogu v. Shell Petroleum Nigeria Limited (1999) 8 NWLR (pt. 613) 12; New Nigeria Bank Plc v. Osoh (2001) 133 NWLR (pt. 729) 232.
(2013) 9 NWLR (Pt. 1358) 1
Ibid at p. 29
Cap T8, Revised Edition, Laws of the Federation, 2004
(1993) 4 NWLR (pt. 287) 288
Ibid at p. 291
(2001) 6 NWLR (pt. 708) 224
(2001) 15 NWLR (Pt. 735) 114. Cf: African Continental Bank Plc v. Nbisike (1995) 15 NWLR (Pt. 416) 725 where both parties relied on the same collective agreement and the Court of Appeal, per Edozie J.C.A. held that the contract was not enforceable. Also African Nigeria Plc v. Osisanya (2001) 1 NWLR (pt. 642) 598 where both the employer and the employee relied on the collective agreement but the court held that the dismissal procedure contained in the collective agreement was not binding on the employee as the collective agreement was not justiceable.
(1996) 4 NWLR (Pt. 443) 470
Ibid, at pp. 473-474
(1977) 3 CCHCJ 497
Halsall v. Brizell (1957) Ch. 197
Cap T8, Laws of the Federation (Revised Edition) 2004
Ibid, section 3 (1)
Ibid
Section 1 Contracts (Right of Third Parties) Act 1999
See section 179(1) and (2) of the Act. In England, it is not enough to stipulate the collective agreement shall be binding since this could mean that it shall be binding in honour. It must stipulate that the agreement shall be legaIlly binding. See N. C. B. v. N. U. M (1984) I. C. R. 192, 195.
See C. O. Gregory, “The Enforcement of Collective Agreements in the United States” Current Legal Problems, (1968) p. 160; C. W., Summers, “Collective Agreements and the Law of Contracts” 78 Yale Law Journal, (1969) p. 525
See National Report Presented by Judge Arnold Zack at the XIVth Meeting of European Labour Court Judges, Paris, 4 September, 2006.
Section 17 (2) Industrial Relations Act, 1967
Ibid section 17 (1)
Jorn Anderson, “COLLECTIVE AGREEMENTS” paper presented at the xivth meeting of European Labour Court Judges, Paris, September 4, 2006, p. 6.Cf: the provisions of section 3(3) of the Nigerian Trade Disputes Act under which a collective agreement is enforceable only if it is declared by the Minister as binding.
Ibid.
Ibid, p. 6
Section 4 (3) of the Collective Agreements Act, 1946 (as amended). See further the Finnish Report on Collective Cgreements presented by Judge Jorma Saloheimo at the XIVTH MEETING OF EUROPEAN LABOUR COURT JUDGES, Paris, September 4, 2006. 39 See section 6 of the Finish Collective Agreements Act, 1946.
Ibid.
Ibid section 7
Ibid
Section 2of the Israeli Collective Agreements Law, 1957
Ibid section 2(1)
Ibid section 2(3)
Ibid section 19
Ibid
Ibid section 22.
Ibid. This provision is in conformity with Recommendation 3(3) of the ILO Recommendations Concerning Collective Agreements, 1951.
Ibid section 21
Ibid section 34
Section 1 Contracts (Right of Third Parties) Act, 1999
Contracts (Privity) Act, 1982
Property Law Act, 1974
Property Law Act, 1969
Contracts (General Parts) Law, 1973
(1969) 1 WLR 339
Chianu (n 6) at p. 75
Dalrymble v. Dalrymble, supra
See Recommendation 3(1) of the ILO Recommendations Concerning Collective Agreements, 1951 (Recommendation 91)
Under the severance rule, where a contract has parts which are void and others which are not, the court could excise the void part and enforce the other parts: Hopkins v Prescott (1847) 4 C. B. 578; Goodinson v. Goodinson (1954) 2 Q. B. 118; Adesanya v. Otuewu (1993) 1 NWLR (Pt. 270) 414.
