Tiwalade Aderoju
Olympus Solicitors and Advocates
January 2023
At the international level, the tripartite United Nations agency – the International Labour Organisation (“ILO”) – brings together representatives of workers, employers, and governments of its member States in common action to set International Labour
Standards (“ILS”). ILS are the main constitutional tools employed by the ILO for reaching its objective of promoting social justice by means of safeguarding decent work for all. 1 ILS consist of conventions, which are legally binding on the ILO member States
that have ratified them, and recommendations, which serve as non-binding guidelines. 2 The fact that ILS are deliberated and agreed upon by representatives of the tripartite of ILO member States, makes them all-encompassing, setting international labour
standards and best practices. Created in 1919, ILO currently has a membership of 187 countries. The ILO, also, currently has 190 conventions. 3 Nigeria is an ILO member since her independence and has only ratified 40 international labour conventions. 4
Application of ILS in Resolving Labour Disputes in Nigeria
Prior to an amendment to the Constitution of the Federal Republic of Nigeria (Third
Alteration) Act 2010 (“Constitution”), which established the National Industrial Court of
Nigeria (“NICN”) as a superior court of record, the Supreme Court of Nigeria, in the
case of ABACHA V. FAWEHINMI, 5 and by interpreting the provisions of Section 12 (1)
of the Constitution, held that: “An international treaty entered into by the Government of Nigeria does not
become binding until enacted into law by the National Assembly. Before its
1 ILO. “Transforming our world: The 2030 Agenda for Sustainable Development.” The ILO DW for SDGs Notes Series
2 Ibid.
3 https://www.ilo.org/global/standards/introduction-to-international-labour-standards/international-labour- standards-creation/lang–en/index.htm “How International Labour Standards are Created” Accessed on October 10, 2022.
4 “ILO in Nigeria.” https://www.ilo.org/africa/countries-covered/nigeria/lang en/index.htm#:~:text=Nigeria%20is%20an%20ILO%20member,ratified%2040%20international%20labour %20Conventions. Accessed on October 11, 2022.
5 (2000) 6 NWLR (Pt. 660) 228 SC
enactment into law by the National Assembly, it has no such force of law as to make its provisions justiciable in our courts. This was the tenor of section
12(1) of the 1979 Constitution now re-enacted in section 12(1) of the 1999 Constitution.”
The amendment to the Constitution, however, empowers the NICN, in effectively carrying out its responsibilities of resolving labour disputes, to rely on international best practices and international labour conventions, treaties or protocols. 6 In particular,
Section 254C (2) provides that:
“Notwithstanding anything to the contrary in this Constitution, the National Industrial Court shall have the jurisdiction and power to deal with any matter connected with or pertaining 10 the application of any international convention, treaty or protocol of which Nigeria has ratified relating to labour, employment, workplace, industrial relations or matters connected
therewith.” (Underlined mine.)
The amendment to the Constitution, therefore, allows the NICN to interpret, apply and enforce non-domesticated but ratified ILO Conventions. 7 The NICN also noted this provision in the case of ENUGU STATE GOVERNMENT V. J.I. UGWUOKE AND
ANOR. 8 that, “By S.254C (2) of the Constitution of the Federal Republic of Nigeria, 1999 (As Amended), this Court is empowered to apply such ratified Conventions constituting best practice of labour relations.”
Further, the amendment of the Constitution, particularly Section 254 (1) (f) and (g) seems to have paved the way for an unhindered application of ILS and international best practices in employment-related matters. 9 The NICN held in a 2022 decision, in the
case of SOPEYIN OLASUPO ARIF & 3 ORS -VS- GREENWICH REGISTRARS & DATA SOLUTIONS LIMITED, 10 that the Court is empowered not only to interpret but also to apply ILS. The Court held as follows:
This Court is authorised in Section 254C[1][f] of the Constitution of the Federal Republic of Nigeria, 1999, as amended, to exercise jurisdiction over matters relating to or connected with unfair labour practice or international best practices in labour, employment and industrial relations. Paragraph [h] thereof empowers the Court not only to interpret but to apply international labour standards.”
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6 See S. 254C (2) of the 1999 Constitution of the Federal Republic of Nigeria, as amended.
7 Ekereobong Essien and Ekokoi Solomon (2020). “The Application of International Organisation Standards on Unfair Termination of Employment in Nigeria.” Vol. 5 (Issue 3). pp. 39-63. Miyetti Quarterly Law Review.
8 Suit No: NICN/EN/33/2020 Judgment delivered on December 16, 2020.
9 Adeyinka A. Adejugbe. “A Comparison Between Unfair Dismissal Law in Nigeria and the International Labour Organisation’s Legal Regime.” Available at: https://ssrn.com/abstract=3697717
10 Suit No: NICN/LA/209/2020 Judgment delivered on September 26, 2022
Termination of Employment
Nigeria has only ratified 40 out of the 190 ILO conventions, as stated earlier. A notable ILO convention that Nigeria is yet to ratify is Convention 158 – Termination of Employment Convention, 1982 (No. 158). The Convention 158 and ILO Termination of
Employment Recommendation (No. 166) provide for ILS in respect of the termination of employment. Both international instruments are founded and aimed at promoting the principle of natural justice and fair hearing where incidences of unfair dismissal or
termination of employment exist, namely termination of employment without reason, termination of employment as a result of involvement in trade union activities, termination of employment without notice, and absence of valid reason for termination
of employment. 11
Employment contracts can be terminated at will, under the law and principle of common law, in Nigeria. All that an employer is required to do is to act within the contract of employment and other rules governing an employment relationship. 12 The common law principle creates a master-servant relationship, which entitles a master to dismiss his or her worker from the master’s employment for any reason or no reason at all. 13 Under Article 4 of the ILO Convention C158, however, a worker’s employment cannot
be terminated unless there is a valid reason for such termination connected with the capacity or conduct of the employee or based on the operational requirement of the undertaking. Article 7 of the Convention further provides that an employment cannot be
determined before an employee is afforded the opportunity to defend himself against the allegations made, except the employer cannot reasonably be expected to provide this opportunity. Accordingly, the Nigeria position – the legislation and the common law
principle – on termination of employment can be opined not to reflect ILS and international best practices.
A review of recent decisions by the NICN, however, indicates that the court considers the above Nigeria position anachronistic and not in sync with international labour practices. 14 The NICN, acting under the authority of Section 254C (1) (f) and (h) of the
Constitution, in the SOPEYIN OLASUPO ARIF case, applied the ILO Convention C158 and held that the termination of the Claimant’s employment less than 2 months of her assumption of duty without any valid reason connect to her capacity or conduct or
based on the operational requirements of the Defendant constituted an unfair labour
11 Ekereobong Essien and Ekokoi Solomon (2020). “The Application of International Organisation Standards on Unfair Termination of Employment in Nigeria.” Vol. 5 (Issue 3). pp. 39-63. Miyetti Quarterly Law Review.
12 See MOHAMMED V. NIGERIAN ARMY COUNCIL (2021) 13 NWLR (Pt. 1793) 259; Section 11 of the Labour Act Cap. L1, Laws of the Federation of Nigeria, 2004.
13 See OSISANYA V AFRIBANK PLC [2007] 4 MJSC 128 @140-141
14 Edafe Ugbeta and Morris Odeh (2021). “Labour Outsourcing And Contract Staffing: Analysing The Liabilities Of Labour Contractors And End Users Under Nigerian Law.” SSRN Electronic Journal. Available at: https://www.researchgate.net/publication/348415009
practice, and rendered the termination of her employment wrongful. The court held specifically that: “So, notwithstanding the prescription in the contract of employment, it is no longer fashionable in employment relationship for an employer to determine
the employment of its employee without a valid reason connected with the employee’s capacity, conduct or based on the operational requirements of the company. Consequently, the practice of terminating employment for “services no longer required”, as was done in this case is no longer tenable in law.” 15
Collective Labour Rights by Trade Unions
The ILO Convention 87 – Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87) – makes provisions for the rights of workers and employers to establish or join organisations of their own choice without previous
authorisation. 16 Nigeria has adopted this Convention 87. While labour laws in Nigeria recognise the right to organise and bargain collectively, however, several restrictions limit collective agreements’ coverage and union membership under the Nigerian labour
law.
The Nigeria Export Processing Zones Act (NEPZA), 17 for instance, makes provisions providing for a number of “incentives” for employers which betray the workers organising intents. 18 Among others, these provisions include a prohibition on strikes and
lockouts; and fenced walls around the zones purposely for security but which were also used to harass trade Unionists that have tried to unionise in some EPZs. 19
The Trade Union Act 1990 as amended by the Trade Unions (Amendment) Act 2005, also, makes provision for the general prohibition of strikes, including strikes called for special economic issues and governmental policies, with few exemptions detailed in the
law. 20 The Act also gives the Minister of Labour the powers to supervise trade union accounts, and register or decline the registration of new labour unions, including the power to deregister a union and order its administrative dissolution. 21
15 See also ALOYSIUS V. DIAMOND BANK PLC [2015] 58 NLLR (Pt. 199) 92, 134
16 See Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87), Art. 2
17 Cap. N107, Laws of the Federation of Nigeria, 2004.
18 Genty Ishola (2013). “ILO and the International Labour Standards Setting: A Case of Nigeria Labour Acts.” Vol. 1, No. 1, pp. 15-20. Journal of Human Resource Management.
19 Ibid.
20 Comrade Hyginus Chika Onuegbu JP, FCA (2014). “ILO Conventions And The Nigeria Labour Laws.” Available at:https://www.academia.edu/12477814/ILO_CONVENTIONS_AND_THE_NIGERIA_LABOUR_LAWS Accessed on October 11, 2022.
21 Ibid.
These provisions in the Trade Unions (Amendment) Act 2015 and NEPZA contradicts the ILS contained in the ILO Conventions 87, which provides for the right of workers to form and join a trade union of their own choice without previous authorisation. There is,
therefore, the need to amend the laws regulating trade unionism in Nigeria to reflect international labour practices.
Women in Workplace
ILO Convention 183 – Maternity Protection Convention, 2000 (No. 183) – which expressly targets working mothers, aims to promote the equality of all employed women who are pregnant, nursing and returning to work, including those in a typical form of
dependent work (these includes home workers, part-time, temporary and casual workers). 22 It provides for maternal protection against work that presents risks to the mother or child’s health. Nigeria is yet to ratify this Convention. Although there are laws that provide for maternity protection in Nigeria, the Nigerian government needs to ratify and domesticate Convention 183, being the most recent convention in this regard. 23
Nigerian labour laws, from the colonial period, seem to have been designed to facilitatethe commercial and economic objectives and interests of the employers against that of the employees. 24 The ILS, on the other hand, are agreed on a tripartite basis, factoring
in the interests of the workers, employers and of governments, in reaching international best practices in labour matters. It is therefore recommended that Nigerian labour laws should be amended, where necessary, to reflect the ILS. The country should also
endeavour to ratify more ILO conventions, and domesticate the already ratified ILO conventions. Accordingly, these actions of ratification and domestication will help in creating awareness of the ILS among the various stakeholders in relation to labour
matters in Nigeria.
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22 See the ILO Convention 183, art. 2 (1).
23 Eghrefuvwoma O. Grace and Folarin Philip (Ph.D) (2020). “An Empirical Study Of Women In The Workplace: International Human Rights And Implications On The Nigerian Labour Law.” Volume 3, Issue
2, (pp. 19-41). African Journal of Law, Political Research and Administration.
24 Comrade Hyginus Chika Onuegbu JP, FCA (2014). “ILO Conventions And The Nigeria Labour Laws.” Available at:
https://www.academia.edu/12477814/ILO_CONVENTIONS_AND_THE_NIGERIA_LABOUR_LAWS
Accessed on October 11, 2022.
