THE SHIFT IN THE POSITION OF THE NATIONAL INDUSTRIAL COURT ON THE ENFORCEABILITY OF COLLECTIVE AGREEMENTS

Black’s Law dictionary defines Collective Agreement as a contract between an employer and a labour union regulating employment conditions, wages, benefits and grievances.

The general position of the law is that a Collective agreement cannot be enforced by an employee (even if same was made for his benefit) if he is not a direct party or signatory to the Collective Agreement. This position of the Law is based on the doctrine of privity of contract which stipulates that the proper parties to sue for enforcement or breach of a contract are parties or signatories thereto.

The law however recognises the right of an employee to sue for the enforceability of a collective agreement where the collective agreement has been expressly or impliedly incorporated in the contract of employment/conditions of service of employment or subsequently adopted by an employer as part of the Conditions of service.

Where a collective agreement is not expressly incorporated into a Contract of employment, a crucial determinant of the fact that same has been adopted by an employer is where salaries have been paid based on the salary structure contained in the Collective Agreement.

The National Industrial Court (the Court) in determining if a collective agreement has been incorporated into a Contract of employment will consider a number of factors such as their incorporation into the contract of service if one exists, the state of the pleadings, the evidence before the court, and the conduct of the parties.

In the case of ACB v. Nwodika (1996) 4 NWLR (PT 443) 470, it was held that:

“The position in law as regards "Collective Agreements" a fortiori Exh.E is that whether they are binding on the individual employee and employer depends on a number of factors such as their incorporation into the contract of service if one exists, the state of the pleadings, the evidence before the court, and perhaps the conduct of the parties”

Also, in the case of Rector Kwara State Polytechnic v. Adefila (2007) 15 NWLR (PT 1056) 42, in determining the enforceability of a Collective Agreement it was held that:

“If parties follow a certain course of action plainly because of a collective agreement, such as payment of wages at new rates, that provision of the collective agreement will be considered as incorporated in the contract of employment.”

The Current position of the Court with respect to applicability of Collective Agreement has been succinctly stated in the following cases: Aghata N. Onuorah v. Access Bank Plc (2015) 55 NLLR (Pt. 186) 17; Mr. Valentine Ikechukwu Chiazor v. Union Bank of Nigeria Plc Unreported Suit No. NICN/LA/122/2014 delivered on 12th July 2016 and in Stephen Ayaogu and 16 Others v. Mobil Producing Nigeria Unlimited and Blue Chip Services Limited (NIC/LA/38/2010) [2017] NGNIC 10 (27 October 2017).

In the case of Mr. Valentine Ikechukwu Chiazor v. Union Bank of Nigeria Plc (Supra), the Court relying on the case of Aghata N. Onuorah v. Access Bank Plc (Supra) held:

“The law regarding the applicability of a collective agreement to an employee, and indeed the extent to which an employee can rely on one have been declared by this Court in Aghata N. Onuorah v. Access Bank Plc [2015] 55 NLLR (Pt. 186) 17 and Samson Kehinde Akindoyin v. Union Bank of Nigeria Plc unreported Suit No. NICN/LA/308/2013, the judgment of which was delivered on 15th April 2015.

In both Aghata N. Onuorah v. Access Bank Plc and Samson Kehinde Akindoyin v. Union Bank of Nigeria Plc, this court stated the position of the law as to the applicability of a collective agreement to an employee, and indeed the extent to which an employee can rely on one. For instance, actual proof of membership is the key to recovery under a collective agreement. Proof of that membership of a trade union has to be by direct documentary evidence.”

In the case of Stephen Ayaogu and 16 Others v. Mobil Producing Nigeria Unlimited and Blue Chip Services Limited (Supra), 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 as against those they relate to. In the instant case, the evidence before the Court shows that the claimants were drivers and technicians; as such they were junior employees in which event, they were eligible to be members of the trade union in question. Since eligibility is the yardstick for being members of a trade union for junior staff, the claimants automatically are presumed to be members of the trade union unless they specifically and in writing opt out. There is no evidence before the Court that they opted out. See Aghata N. Onuorah v. Access Bank Plc [2015] 55 NLLR (Pt. 186) 17, Samson Kehinde Akindoyin v. Union Bank of Nigeria Plc unreported Suit No. NICN/LA/308/2013 the judgment of which was delivered on 15th April 2015 and Mr. Valentine Ikechukwu Chiazor v. Union Bank of Nigeria Plc unreported Suit No. NICN/LA/122/2014, the judgment of which was delivered on 12th July 2016. This being the case, the claimants are entitled to rely on Exhibits C1 and C2 in proving their entitlements to the claims for redundancy in this case. I so find and hold.”

In light of the Court’s power and jurisdiction to interpret and apply collective agreements under section 254C of the 1999 Constitution, it appears that the position of the Court on enforceability of collective agreements has evolved to include actual proof of membership of a trade union evidenced by direct documentary evidence in cases where the Collective Agreement was not expressly incorporated in the Contract of employment.

DISCLAIMER:

This article is only intended to provide general information on the subject matter and does not by itself create a client/attorney relationship between readers and the writer and/or the Law Firm of Argyle & Clover Attorneys at Law. Specialist legal advice should be sought about the readers’ specific circumstance when they arise.