UNIVERSITY OF LAGOS

SCHOOL OF POSTGRADUATE STUDIES

FACULTY OF LAW

HUMAN RIGHTS LAW 1 (JIL 811)

2023/2024 ACADEMIC SESSION (FIRST SEMESTER)

BEING A SEMINAR PAPER PRESENTED IN PARTIAL

FULFILLMENT OF THEREQUIREMENTS FOR THE AWARD OF
MASTERS OF LAW (L.L.M) DEGREE

PRESENTED BY

LAZARUS CHINWOKWU
070601071

SEMINAR TOPIC 16:

RIGHT TO COLLECTIVE BARGAINING

COURSE LECTURERS:
PROF. R.A KARIBI-WHYTE
DR. S.A IGBINEDION
DR. E.E OJOMO
CONTENTS

Contents…………………………………………………………………………………...i

List of Authorities Cited…………………………………………………………………ii

Abstract…………………………………………………………………………………..iv
Part One: Introduction…………………………………………………………………..1
1.0 Background……………………………………………………………………………1
1.1 What is Collective Bargaining?......................................................................................2
1.2 Why is Collective Bargaining a Human Right?.............................................................4
1.3 Objectives of Collective Bargaining…………………………………………………..5
Part Two: International Perspective……………………………………………………7
2.0 Exploring the International Landscape of Collective Bargaining……………………..7
2.1 Evolution of International Labour Rights and the Role of the International Labour
Organisation…………………………………………………………………………...7
2.2 International Provisions on Collective Bargaining: The Foundation and Framework of
Workers' Rights………………………………………………………………………..9
2.3 Enforcement Mechanisms for Collective Bargaining at the Global Level: The Role of
the Committee on Freedom of Association…………………………………………..11
2.4 Challenges to Collective Bargaining Rights on the Global Stage……………………12
Part Three: Regional Perspective……………………………………………………...15
3.0 Collective Bargaining Rights in Africa………………………………………………15
3.1 Legal Framework for Collective Bargaining in Africa……………………………....15
3.2 Enforcement Mechanism: African Commission on Human and Peoples' Rights
Jurisprudence…………………………………………………………………………17
3.3 Challenges in Enforcing Collective Bargaining in Africa……………………………18
Part Four: Right to Collective Bargaining in Nigeria………………………………...19
4.0 Collective Bargaining in Nigeria……………………………………………………..19
4.1 The Legal Framework for Collective Bargaining sin Nigeria………………………..19
4.2 Enforcement Mechanism of Collective Bargaining in Nigeria………………………21
4.3 Challenges to Right to Collective Bargaining in Nigeria…………………………….23
Part Five: Conclusion and Recommendations………………………………………...25
5.0 Summary of Findings………………………………………………………………...25
5.1 Lessons for Nigeria…………………………………………………………………..25
5.2 Conclusion……………………………………………………………………………26
5.4 Recommendations……………………………………………………………………27

i
References………………………………………………………………………………..29

LIST OF AUTHORITIES CITED

STATUTES

Constitution of the Federal Republic of Nigeria, 1999 (as amended), Cap C23 L.F.N 2004.

Ghanaian Labour Act No. 651 of 2003.

Kenyan Labour Relations Act No. 14 of 2007.

Labour Act 1974, Cap L1 L.F.N 2004.

South African Labour Relations Act No. 66 of 1995.

Trade Disputes (Emergency Provisions) Act 1968.

Trade Disputes Act 1976, Cap T8 L.F.N 2004.

Trade Union (Amendment) Act 2005

Trade Unions Act 1973, Cap T8 L.F.N 2004.

Wages Board and Industrial Councils Act 2004, Cap W1 L.F.N 2004

Zambian Industrial and Labour Relations Act No. 27 of 1993, Cap 269 of the Laws of
Zambia.

INTERNATIONAL AND REGIONAL INSTRUMENTS

Declaration Concerning the Aims and Purposes of the International Labour Organisation
(Declaration of Philadelphia), 1994.
Economic Community of West African States' Supplementary Act on the Harmonisation
of Social Policies.
International Convention for the Protection of All Persons from Enforced Disappearance,
2006.
International Convention on the Protection of the Rights of All Migrant Workers and
Members of Their Families, 1990.
International Convention on the Rights of Persons with Disabilities, 2006.
International Convention on the Rights of the Child, 1989.
International Covenant on Civil and Political Rights, 1966.
International Covenant on Economic, Social and Cultural Rights, 1966.International
Labour Organisation Constitution, 1919.

ii
International Labour Organisation's Declaration on Fundamental Principles and Rights at
Work, 1998.
International Labour Organisation's Freedom of Association and Protection of the Right to
Organize (Convention No. 87), 1948.
International Labour Organisation's Right to Organize and Collective Bargaining
(Convention No. 98), 1949.
Southern African Development Community's Declaration on Social and Economic
Development and its Protocol on Employment and Labour.
Treaty for the Establishment of the East African Community, 1999.
The Convention Relating to the Status of Refugees, 1951.
The Convention on the Elimination of All Forms of Discrimination Against Women, 1979.
Universal Declaration of Human Rights, 1948.

CASES

ACB Plc v Nwodika (1996) 4 NWLR (Pt. 443) 470, 485.

Afribank (Nig) Plc v Osisanya [2000] 1NWLR (Pt. 642) 598.

Civil Liberties Organization v. Nigeria Communication No. 045/1990 [1990] ACHPR 9 (4

October 1990).

Collymore v Attorney General of Trinidad and Tobago (1970) AC 538, 547.

Committee on Freedom of Association Cases (hereafter ‘CFA Cases’), 1758 Vol. LXXVII,
1995, Series B, No. 1, para. 230.

CFA Cases, 1800 Vol. LXXVIII, 1995, Series B, No. 2, para. 182.

CFA Cases, 1859 Vol. LXXX, 1997, Series B, No. 1, para. 242.

CFA Cases, 1900 Vol. LXXX, 1997, Series B, No. 3, at paras. 145-46 and 187.

CFA Cases, 1900 Vol. LXXX, 1997, Series B, No. 3 at para.189.

CFA Cases, 2166, 2173, 2180 vol. LXXXVI, 2003, Series B, No.1.

Social and Economic Rights Action Center and the Center for Economic and Social Rights
(SERAC) v. Nigeria Communication No. 155/96 [2001] ACHPR 35 (27 October 2001).

Udoh v Orthopaedic Hospitals Management Board (1990) 4 NWLR (Pt 142) 53.

Union Bank of Nigeria v Edet (1993) 4 NWLR (Pt. 287), 288.

Zimbabwe Human Rights NGO Forum v. Zimbabwe Merits, Communication No 245/2002

(ACmHPR, May. 15, 2006).

iii
 ABSTRACT

This paper explores the concept of collective bargaining as a fundamental human right,
examining it from international, regional (Africa), and national perspectives (Nigeria). The
aim is to analyse the legal framework, challenges, and enforcement mechanisms
surrounding collective bargaining rights in these contexts. Findings reveal that while
international instruments like International Labour Organisation conventions and regional
frameworks provide a basis for collective bargaining rights, challenges persist,
particularly in Nigeria, where judicial precedents have hindered the enforceability of
collective agreements. However, constitutional amendments offer potential avenues for
enforcement in Nigeria through the National Industrial Court, aligning with international
standards. Based on these findings, the paper offers six key recommendations. Firstly, it
suggests strengthening legislative frameworks to ensure the enforceability of collective
agreements. Secondly, there is a need for judicial interpretation that aligns with
international standards. Thirdly, stakeholders should engage in dialogue to address
challenges and promote collective bargaining rights. Fourthly, capacity-building
initiatives can enhance understanding and implementation. Fifthly, mechanisms for dispute
resolution should be strengthened. Lastly, awareness campaigns can empower workers to
assert their rights effectively. In conclusion, this paper contributes to scholarship by
providing a comprehensive analysis of collective bargaining rights across different levels
of governance. By highlighting challenges and offering recommendations, it seeks to inform
policy-making and advocacy efforts aimed at promoting social justice and economic
development through effective collective bargaining mechanisms.

Key Words: Collective Bargaining, Human Rights, Legal Framework Enforcement

Mechanisms.

iv
 PART ONE

INTRODUCTION

1.0 Background

The right to collective bargaining stands as a cornerstone of labour rights within the
framework of human rights. It encompasses the fundamental principle that workers,
through their chosen representatives, have the right to negotiate with employers for better
wages, working conditions, and other aspects of their employment. Rooted in the
recognition of the inherent dignity and worth of every human being, the right to collective
bargaining is enshrined in various international instruments and conventions, emphasising
its significance in ensuring fairness, equity, and social justice in the workplace. 1

Collective bargaining, as a human right, finds its basis in numerous international

instruments and declarations, such as the Universal Declaration of Human Rights
(UDHR),2 the International Covenant on Economic, Social and Cultural Rights (ICESCR), 3
and conventions of the International Labour Organisation (ILO) conventions. 4 These
instruments recognise the importance of collective bargaining in promoting social and
economic justice, empowering workers, and fostering harmonious labor relations. The right
to collective bargaining is not only a legal entitlement but also a moral imperative grounded
in principles of equality, solidarity, and human dignity.

Historically, the recognition of collective bargaining as a human right has been intertwined
with the struggles of workers for fair treatment and decent working conditions. From the
labour movements of the 19th century to the present-day advocacy for workers' rights,
collective bargaining has been a central tenet in advancing the interests of workers

1
Adams J. Roy. "From Statutory Right to Human Right: The Evolution and Current Status of Collective
Bargaining." (2008) 12 Just Labour, pp. 48-67.
2
See Article 23(1) and (4). Also, see Article 8(1) which although not directly related to collective
bargaining, it emphasizes the right to effective remedy by competent national tribunals for acts violating
fundamental rights granted by the constitution or by law. In the context of labour rights, this can include
the right to seek legal recourse in cases where employers violate agreements reached through collective
bargaining.
3
See Article 8 which provides for the right of workers to form and join trade unions and to engage in
collective bargaining.
4
Freedom of Association and Protection of the Right to Organize (Convention No. 87) adopted in 1948,
Right to Organize and Collective Bargaining (Convention No. 98) adopted in 1949 and the ILO
Declaration on Fundamental Principles and Rights at Work 1998.

1
worldwide. The right to collective bargaining has been instrumental in addressing labour
exploitation, discrimination, and unequal power dynamics in employment relationships. 5

Despite its importance, the right to collective bargaining faces various challenges and
obstacles in its implementation. These challenges include legal restrictions, anti-union
practices, power imbalances between employers and workers, and inadequate enforcement
mechanisms. Moreover, economic globalisation, technological advancements, and
changing labor market dynamics have posed new challenges to collective bargaining rights,
necessitating innovative approaches and strategies to protect and promote workers' rights
effectively. 6

Accordingly, in this paper, the right to collective bargaining will be examined

comprehensively from both legal and human rights perspectives. The analysis will
encompass an exploration of international standards and principles governing collective
bargaining, followed by an examination of regional perspectives, with a specific focus on
Africa. Subsequently, the paper will delve into the Nigerian context, evaluating the legal
framework, enforcement mechanisms, and challenges related to collective bargaining
rights within the country. By taking a multi-dimensional approach, this paper aims to
provide an in-depth understanding of collective bargaining as a human right, shedding light
on its significance, challenges, and implications at the international, regional, and national
levels. Through this comprehensive analysis, the paper seeks to contribute to scholarly
discourse on labour rights, human rights, and social justice, with a particular emphasis on
the role of collective bargaining in advancing workers' rights and promoting fair and
equitable labour practices.

1.1 What is Collective Bargaining?

Collective bargaining refers to the collaborative negotiation process through which terms
of employment and wages are mutually agreed upon by representatives of employees or
employers and the workforce within an organisation.7 This dynamic involves a sharing of

5
Adams J. Roy. Op Cit. Note 1.
6
Hayter Susan, Tayo Fashoyin and Thomas A. Kochan. "Review Essay: Collective Bargaining for the
21st Century." (2011) 53(2) Journal of Industrial Relations, pp. 225-247.
7
Akume T. Albert and Yahaya M. Abdullahi. "Challenges and Prospects of Effective Industrial Conflict
Resolution in Nigeria." (2013) 36(2) Journal of Social Sciences, pp. 199-208.

2
power between the trade union and management, albeit in Nigeria, the balance of power
often leans towards management's favor.

Accordingly, collective bargaining encompasses a consultative and negotiation process

between employers and workers or their representatives, aimed at improving employment
conditions and terms. It entails discussions between unions or worker representatives and
employers or their representatives, conducted in an atmosphere of cooperation and respect.
For collective bargaining to be effective, certain conditions such as freedom of association,
recognition of trade unions, willingness to compromise, and avoidance of unfair labor
practices must be met. Moreover, extensive issues like job grading, wages, promotions, and
working hours are subject to negotiation within the collective bargaining process.8

Collective bargaining encompasses diverse approaches tailored to address varying

negotiable issues. Distributive bargaining, identified by Chamberlain and Kuhn, 9 revolves
around the allocation of fixed resources, often leading to conflict as concessions by one
party result in losses for the other. Integrative bargaining, on the other hand, seeks mutually
beneficial solutions by expanding the resource pool through creative problem-solving and
collaboration.10 Cooperative bargaining emphasises maintaining positive relationships and
fostering trust between parties, prioritising long-term mutual gains over short-term
victories. 11 Concessionary bargaining involves one party conceding to the demands of the
other, often driven by external pressures or power imbalances, with concessions made to
avoid further conflict or maintain stability in labor relations. 12 Each type of collective
bargaining offers distinct strategies for navigating negotiations and resolving disputes
within the workplace.

8
Solomon O. Toyin, Ajibola K. Sunday and Ajakaye A.Theresa. "The Practise of Collective Bargaining
In Nigeria: Issues, Challenges and Prospects." (2021) 1(1) Bells University of Technology Journal of
Management Sciences, pp. 159-170.
9
Chamberlain W. Neil and Kuhn W. James. Collective Bargaining, (New York: McGraw Hill Book
Company, 2014) p. 20.
10
Park Jinsoo, Hamirahanim Abdul Rahman, Jihae Suh and Hazami Hussin. "A Study of Integrative
Bargaining Model with Argumentation-Based Negotiation." (2019) 11(23) Sustainability, p. 6832.
11
Thomson, William. "Cooperative Models of Bargaining" in Robert Aumann and Sergiu Hart, Handbook
of Game Theory with Economic Applications (Vol 2. Amsterdam: Mathematical Publisher, 1994) pp.
1237-1284.
12
Becker E. Brian. "Concession Bargaining: The Impact on Shareholders' Equity." (1987) 40(2) Industrial
& Labor Relations Review, pp. 268-279.

3
1.2 Why is Collective Bargaining a Human Right?

Collective bargaining is widely recognised as a fundamental human right integral to the

promotion of social justice and the protection of workers' interests.13 At its core, collective
bargaining empowers workers to negotiate with employers or their representatives on terms
and conditions of employment, wages, and other workplace matters. This right is enshrined
in numerous international instruments, including the UDHR,14 the ICESCR15 and the ILO
conventions.16

One of the key reasons why collective bargaining is regarded as a human right is its intrinsic
link to the principle of freedom of association. The right to form and join trade unions or
other associations of workers is explicitly protected under international human rights law,
emphasising individuals' autonomy to organise collectively to advance their economic and
social interests. Collective bargaining serves as a practical manifestation of this right,
providing workers with a platform to collectively voice their concerns, negotiate with
employers on an equal footing, and participate in decision-making processes that affect
their livelihoods.17

Moreover, collective bargaining contributes to the realisation of broader human rights

principles, including the right to fair and just working conditions, the right to an adequate
standard of living, and the right to non-discrimination.18 By enabling workers to
collectively negotiate for better wages, benefits, and working conditions, collective
bargaining helps to alleviate poverty, reduce inequality, and promote social cohesion within
society. It empowers marginalised and vulnerable groups, such as women, minorities, and
migrant workers, by providing them with a mechanism to advocate for their rights and
challenge systemic injustices in the workplace.

Furthermore, collective bargaining fosters democratic principles and participatory

decision-making, aligning with the principles of democracy and governance. 19 It promotes

13
Adams J. Roy. Op Cit. Note 1.
14
Op Cit. Note 2.
15
Op Cit. Note 3.
16
Op Cit. Note 4.
17
Adams J. Roy. Op Cit. Note 1.
18
Hunt Jo. "Fair and Just Working Conditions" in Tamara Hervey, Jeff Kenner (eds). Economic and Social
Rights under the EU Charter of Fundamental Rights: A Legal Perspective (Oxfordshire, United
Kingdom: Hart Publishing, 2003), pp. 45-65.
19
Bernstein Paul. "Necessary Elements for Effective Worker Participation in Decision Making." (1976)
10(2) Journal of Economic Issues, pp. 490-522.

4
dialogue, cooperation, and consensus-building between labor and management, fostering a
harmonious and productive work environment conducive to sustainable economic
development. As such, collective bargaining is not merely a contractual mechanism but a
cornerstone of social justice, democracy, and human dignity, essential for realising the full
spectrum of human rights for all individuals within society.

1.3 Objectives of Collective Bargaining.

Collective bargaining serves as a pivotal mechanism for negotiating and reaching

agreements on terms and conditions of employment between employers and workers'
representatives. It is fundamentally aimed at enhancing the welfare and rights of workers
through the collaborative negotiation and conclusion of collective agreements.20

Workers' unions utilise collective bargaining as a strategic tool to ensure that the conditions
of employment offered to their members are fair and acceptable. 21 By engaging in
collective bargaining, workers aim to realise their legitimate expectations for stable and
adequate living standards, which are compatible with their dignity and physical well-being.
This process is vital in addressing the inherent power imbalance between employees and
employers, as it provides workers with a platform to collectively negotiate terms that
safeguard their interests.

Additionally, collective bargaining fosters workplace democracy by enabling workers to

participate in decisions affecting their working lives, thereby reducing inequality and
empowering employees. 22

Moreover, it facilitates the redistribution of power and resources by improving workers'

conditions through higher wages and equitable terms of employment.23

20
See, Collymore v Attorney General of Trinidad and Tobago (1970) AC 538, 547 Per Lord Donovan;
Udoh v Orthopaedic Hospitals Management Board (1990) 4 NWLR (Pt 142) 53.
21
Manchur Oslon. The Logic of Collective Action (Harvard: Harvard Press, 1905) p. 20.
22
Aina A. Adeogun. “The Legal Framework of Collective Bargaining in Nigeri”’ in Dafe Otobo and
Morakinyo Omole (eds), Readings in Industrial Relations in Nigeria (Lagos: Malthouse Press Limited,
1987), p. 91.
23
Dau-Schmidt G. Kenneth. “A Bargaining Analysis of American Labour Law and the Search for
Bargaining Equity and Industrial Peace.” (1992) 91 Michigan Law Review, p. 419

5
Furthermore, collective bargaining plays a crucial role in settling trade disputes, providing
procedural rules for dispute resolution, and promoting industrial peace. 24

Ultimately, collective bargaining promotes economic efficiency by minimising industrial

conflicts, fostering communication, enhancing productivity, and ensuring the enforcement
of labor contracts, thereby benefiting both workers and employers alike.

24
Francis C. Nwoke. “Rethinking the Enforceability of Collective Agreements in Nigeria” (2002) 4(4)
Modern Practice Journal of Finance and Investment Law, p. 372.

6
 PART TWO

INTERNATIONAL PERSPECTIVE

2.0 Exploring the International Landscape of Collective Bargaining

The right to collective bargaining holds a paramount position within the realm of
international human rights and international labour law, serving as a cornerstone for the
protection of workers' rights and the advancement of social justice on a global scale.
Nations strive to uphold fundamental principles of labour rights and ensure equitable
working conditions for all individuals, necessitating a thorough understanding of the
international framework surrounding collective bargaining.

In this part, the paper embarks on a comprehensive exploration of the international

landscape, delving into key treaties, conventions, and jurisprudence that underpin the
recognition and protection of the right to collective bargaining. Through an examination of
the evolution of international standards and the mechanisms established to enforce these
principles, the analysis aims to illuminate the significance of collective bargaining as a
fundamental human right and its pivotal role in shaping labor relations worldwide.

From the foundational principles enshrined in international instruments to the practical

implications for member states, the analysis seeks to provide insights into the breadth and
depth of the international commitment to promoting and safeguarding the right to collective
bargaining. Through this examination, the paper endeavours to uncover the challenges,
opportunities, and enduring significance of collective bargaining within the broader
framework of human rights and social justice.

2.1 Evolution of International Labour Rights and the Role of the International
Labour Organisation

The inception of the international human rights movement is often traced back to the
establishment of the ILO in 1919 and the subsequent adoption of the first international labor
conventions.25 Initially, the regulation of terms and conditions of work at the global level

25
Virginia A. Leary, “The Paradox of Workers’ Rights as Human Rights” in Compa A. Lance and Stephen
F. Diamond, (eds), Human Rights, Labor Rights and International Trade (USA: University of
Pennsylvania Press, 1996) pp. 22-47, at 25.

7
was grounded in the perception of labor rights as fundamental rights of workers. 26 The
establishment of the ILO was primarily motivated by concerns among states regarding the
potential impact of domestic labor market regulations on production costs and competitive
disadvantages vis-à-vis states that did not prioritise the protection of workers' interests
through legislation. 27

Acknowledging, albeit reluctantly in some cases, the principles of social justice underlying
domestic labour standards and collective bargaining laws, states turned to international
labour law to mitigate the risk of international competitive imbalances stemming from
varying levels of worker protection. International labour law was envisaged to serve as a
mechanism to establish a level playing field, or what could be termed as a "code of fair
competition," among employers and countries. 28

The original normative significance of international labour rights lay in their ability to
safeguard the domestic rights of workers from being undermined by international
competition.29 Since its establishment in 1919, the ILO has emerged as the principal
international institution dedicated to the advancement and enforcement of international
labour rights and standards. 30 With over 175 member states participating in the ILO's
annual International Labour Conference, the organisation serves as a platform for
governments, employers, and employee representatives to engage in discussions and
negotiations on labor-related matters.

Membership in the ILO entails obligations for states to ratify treaties by submitting them
to the appropriate domestic authorities and to provide reports on the implementation of
ratified treaties upon request. Furthermore, both employers and workers' groups have the
ability to lodge complaints against governments that fail to fulfill their obligations under
ratified conventions, thereby contributing to the enforcement mechanism of international
labor standards.

26
Ernest B. Haas, Beyond the Nation-State: Functionalism and International Organization (Colchester:
ECPR Press, 2008), p. 142.
27
Ibid.
28
Nicolas Valticos and Geraldo von Potobsky, International Labour Law (2d rev. ed. Deventer, Boston:
Kluwer Law and Taxation Publishers, 1995), p. 10.
29
Ibid.
30
Hughes Steve. "The International Labour Organisation." (2005) 10(3) New Political Economy, pp. 413-
425.

8
2.2 International Provisions on Collective Bargaining: The Foundation and
Framework of Workers' Rights

The ILO’s Constitution, established in the aftermath of the First World War and enshrined
in the Treaty of Versailles, prioritises the freedom of expression and association as
important ingredients to sustain progress.31 This commitment was reaffirmed in the 1944
ILO Declaration of Philadelphia, which emphasised the effective recognition of the right
to collective bargaining, cooperation between management and labour for improved
productivity, and collaboration between workers and authorities in social and economic
initiatives. 32

In 1948, just before the adoption of the UDHR, the ILO further solidified its stance by
adopting the Freedom of Association and Protection of the Right to Organise Convention
(No. 87).33 Article 2 of Convention No. 87 guarantees workers and employers the right to
establish organisations of their choice without prior authorisation, protecting this right
without any discrimination.

While Article 9 of Convention No. 87 presents a potential exception for members of the
armed forces and the police, the convention applies to both public and private sector
employees. Subsequently, in 1949, the ILO ratified the Right to Organise and Bargain
Collectively Convention (No. 98),34 emphasising the importance of encouraging voluntary
negotiations between employers or employer organisations and workers' organisations for
the regulation of terms and conditions of employment through collective agreements.

31
See the Preamble of the ILO’s Constitution. The right to freedom of association is also guaranteed under
Article 20 of the Universal Declaration of Human Rights, Article 22 of the International Covenant on
Civil and Political Rights, Article 15 of the International Convention on the Rights of the Child, Article
7(c) of the Convention on the Elimination of All Forms of Discrimination Against Women, Article 26
and 40 of the International Convention on the Protection of the Rights of All Migrants Workers and
Members of Their Families, Article 15 of the 1951 Convention Relating to the Status of Refugees, Article
24(7) of the International Convention for the Protection of All Persons from Enforced Disappearance,
and Article 29 of the Convention on the Rights of Persons with Disabilities.
32
See Part I, Declaration Concerning the Aims and Purposes of the International Labour Organisation
(Declaration of Philadelphia).
33
International Labour Organization. (1948). Freedom of Association and Protection of the Right to
Organise Convention, 1948 (No. 87).
<https://www.ilo.org/dyn/normlex/en/f?p=NORMLEXPUB:12100:0::NO::p12100_instrument_id:3122
32> accessed 8 February 2024.
34
International Labour Organization. (1949). Right to Organise and Bargain Collectively Convention, 1949
(No. 98).
<https://www.ilo.org/dyn/normlex/en/f?p=NORMLEXPUB:12100:0::NO::P12100_INSTRUMENT_I
D:31224> accessed 8 February 2024.

9
Article 4 of Convention No. 98 underscores the necessity for national measures to promote
the full utilisation of mechanisms for voluntary negotiation, tailored to national conditions.
However, Article 5 acknowledges a possible exemption for the armed forces and the police,
while Article 6 specifies that the Convention does not address the position of public
servants engaged in state administration, ensuring their rights and status remain unaffected.

The ILO considers the voluntary negotiation of collective agreements as fundamental to

the principles of freedom of association, implicitly recognised in its Constitution and
Convention No. 87, and explicitly stated in the Declaration of Philadelphia and Convention
No. 98. The Committee on Freedom of Association (CFA), tasked with monitoring
compliance with the Constitution, mandates member states to uphold collective
bargaining's voluntary nature, refraining from any measures of compulsion that may
undermine its voluntary essence.

Arguably, one of the most notable indications of a shift towards enhanced safeguarding of
the collective bargaining right in international labor law is reflected in the 1998 ILO
Declaration on Fundamental Principles and Rights at Work. This declaration signifies the
culmination of extensive endeavours by both the ILO and its member states to address the
growing demands for employer flexibility and regulatory innovation amidst economic
globalisation and technological advancements. In response to these dynamics, the ILO,
alongside various international and regional institutions, has distilled international labour
law into a core set of rights that serve as universal constraints on employer flexibility and
regulatory experimentation.

Embedded within the 1998 Declaration is the recognition that core labour rights constitute
fundamental entitlements applicable as a minimum standard under international law,
irrespective of a state's developmental stage or its position in the global economy.
Specifically, the declaration underscores seven fundamental Conventions, including those
governing freedom of association and collective bargaining, forced labour, non-
discrimination, and minimum age. These Conventions delineate the basic principles
essential for labour rights, notably freedom of association and the effective recognition of
collective bargaining.35

35
ILO, ‘Declaration on Fundamental Principles and Rights at Work and its Follow-up’ (1998) International
Labour Conference, 86th Session (hereafter ‘1998 Declaration’).

10
The significance of the 1998 Declaration lies in its establishment of an international
consensus regarding the core tenets of labour law to be upheld universally. Crucially, it
aligns directly with the principles enshrined in the ILO Constitution, thereby implicating
all ILO member states in its commitments. Even nations that have not ratified the relevant
Conventions are bound by the declaration's principles by virtue of their membership in the
ILO.36

However, the approach adopted by the 1998 Declaration has not been without criticism.
Some scholars argue that its promotional nature and ambiguous scope may not sufficiently
influence global and domestic legal frameworks, particularly amidst processes of economic
globalisation. 37 Moreover, concerns have been raised regarding the potential dilution of the
ILO's traditional methods of safeguarding labour standards, potentially leading to a less
effective system of oversight and compliance. 38

Despite these critiques, the significance of the 1998 Declaration lies in its contribution to
the evolving trend within international law, wherein greater emphasis is placed on the right
to engage in collective bargaining, distinguishing it from domestic legal frameworks.

2.3 Enforcement Mechanisms for Collective Bargaining at the Global Level: The
Role of the Committee on Freedom of Association

At the global stage, the CFA serves as the primary organ responsible for enforcing the ILO
provisions on collective bargaining. The CFA emphasises the importance of
comprehensive consultations with relevant workers' and employers' organisations before
the introduction of draft legislation affecting collective bargaining or employment
conditions. 39

36
Ibid, para. A.2(a).
37
Guy Mundlak, “The Transformative Weakness of Core Labour Rights in Changing Welfare Regimes”
in Benvenisti Eyal and Georg Nolte (eds), The Welfare State, Globalization, and International Law
(Springer, 2004) pp. 231-269.
38
Kerry Rittich, ‘Core Labor Rights and Labor Market Flexibility: Two Paths Entwined?’ in International
Bureau of the Permanent Court of Arbitration (eds) Labor Law Beyond Borders: ADR and the
Internationalization of Labor Dispute Settlement (2003), pp. 157- 208.
39
International Labour Organisation’s Committee on Freedom Association Digest. "Freedom of
association - Digest of decisions and principles of the Freedom of Association Committee of the
Governing Body of the ILO. Fifth (revised) edition, 2006." (hereafter ‘CFA Digest’), para. 931.
<https://www.ilo.org/global/standards/applying-and-promoting-international-labour-
standards/committee-on-freedom-of-association/WCMS_090632/lang--en/index.htm> accessed 8
February 2024.

11
The CFA maintains that a state should not impose compulsory arbitration procedures in
cases where negotiations break down, except in situations involving essential services
where the interruption of services could endanger public safety or health. 40 Additionally, it
prohibits a state from unilaterally modifying the content of signed collective agreements or
requiring their renegotiation without mutual consent.41

Moreover, the CFA criticises any suspension or derogation of freely negotiated collective
agreements by decree, stressing that such actions violate the principle of free and voluntary
collective bargaining. 42 This enforcement extends to the public sector, where the CFA
emphasises the need for governments to respect collective bargaining as a mechanism for
determining employment terms and conditions.

The CFA further holds governments accountable for infringing the freedom of association
and the right to bargain collectively of public sector employees. Actions such as imposing
unilateral pay freezes,43 extending legislated conditions of employment unreasonably, 44 or
restricting the scope of collective bargaining beyond management-related issues45 are
deemed detrimental to labor relations.

In cases where governments propose legislative interventions in collective bargaining

processes, the CFA insists on adequate consultations with trade unions and employers. It
stresses that any legislated changes should be temporary, protect the affected workers'
standard of living, and provide mechanisms for meaningful consultations and dispute
resolution.46

2.4 Challenges to Collective Bargaining Rights on the Global Stage

Collective bargaining rights face various challenges on the global stage, stemming from
diverse economic, social, and political factors. One significant obstacle is the uneven
implementation and enforcement of labour laws across different countries. While some

40
Ibid. 848.
41
Committee on Freedom of Association Cases (hereafter ‘CFA Cases’), 1900 Vol. LXXX, 1997, Series
B, No. 3 at para.189.
42
In CFA Cases, 1900 vol. LXXX, 1997, Series B, No. 3, at paras. 145-46 and 187 for instance, the CFA
condemned Canada's actions, particularly the province of Ontario's choice to terminate existing collective
agreements concerning agricultural workers and professional employees.
43
CFA Cases, 1758 Vol. LXXVII, 1995, Series B, No. 1, para. 230.
44
CFA Cases, 1800 Vol. LXXVIII, 1995, Series B, No. 2, para. 182
45
CFA Cases, 1859 Vol. LXXX, 1997, Series B, No. 1, para. 242.
46
CFA Cases, 2166, 2173, 2180 vol. LXXXVI, 2003, Series B, No.1.

12
nations have robust legal frameworks protecting workers' right to bargain collectively,
others lack adequate legislation or fail to enforce existing laws effectively. 47 This
inconsistency creates a disparity in bargaining power between employers and workers,
particularly in regions where labor rights are not adequately safeguarded.

Moreover, globalisation has introduced complexities to the collective bargaining

landscape. Transnational corporations often operate across multiple jurisdictions, making
it difficult for workers to negotiate collectively across borders. The mobility of capital and
the outsourcing of labour further exacerbate this challenge, as companies may relocate
operations to jurisdictions with lower labour standards or more favourable regulatory
environments, undermining workers' bargaining power.48

Technological advancements and automation also pose challenges to collective bargaining.

The rise of the gig economy and platform-based employment models disrupt traditional
labour relations, blurring the lines between employees and independent contractors.49
Workers in these sectors often lack collective bargaining rights and face precarious working
conditions, making it challenging to organise and negotiate for better terms of employment.

Additionally, economic recessions and austerity measures implemented in response to

financial crises can weaken collective bargaining rights. 50 Governments may enact policies
that prioritise fiscal consolidation over labor rights, leading to wage freezes, cuts in social
spending, and labor market deregulation. These measures not only erode workers'
bargaining power but also exacerbate income inequality and social unrest.

Furthermore, political factors, including anti-union sentiment and restrictive labour laws,
present significant challenges to collective bargaining. In some countries, governments
actively undermine trade unions and impose legal barriers to collective action, hindering
workers' ability to organize and negotiate collectively. 51

47
Rojot Jacques. "International Collective Bargaining" in Michael J. Morley, Patrick Gunnigle and David
Collings, (eds), Global Industrial Relations, (United Kingdom: Routlege, 2006) pp. 254-72.
48
Ibid.
49
Meyer Brett and Thomas Biegert. "The Conditional Effect of Technological Change on Collective
Bargaining Coverage." (2019) 6(1) Research & Politics, pp. 112-145.
50
Visser Jelle. "What happened to Collective Bargaining during the Great Recession?." (2016) 5(1) IZA
Journal of Labor Policy, pp. 1-35.
51
Leonardi Salvo. "Trade Unions and Collective Bargaining in Italy during the Crisis" in Steffen
Lehndorff, Heiner Dribbusch and Thorsten Schulten Rough Waters European Trade Unions in a Time
of Crises (European Trade Union Institute, 2018), p. 83.

13
Overall, addressing the challenges facing collective bargaining rights on the global stage
requires concerted efforts from governments, employers, trade unions, and international
organizations. Strengthening labour laws, promoting cross-border solidarity among
workers, and fostering dialogue and cooperation between stakeholders are essential steps
towards advancing workers' rights and ensuring fair and inclusive labor practices
worldwide.

14
 PART THREE

REGIONAL PERSPECTIVE

3.0 Collective Bargaining Rights in Africa

Throughout history, Africa has witnessed the evolution of collective bargaining from pre-
colonial communal systems to modern-day trade union movements. However, persistent
challenges such as weak enforcement mechanisms, anti-union policies, informal
employment, and political instability continue to undermine the effective exercise of
collective bargaining rights across the continent. Despite the existence of legal frameworks
at national, regional, and international levels, the implementation and enforcement of
collective bargaining laws remain uneven, leaving many workers vulnerable to exploitation
and marginalisation. Against this backdrop, this part seeks to analyse the legal, practical,
and socio-economic factors influencing collective bargaining in Africa.

3.1 Legal Framework for Collective Bargaining in Africa

The promotion and protection of collective bargaining rights in Africa are deeply
intertwined with regional and international legal frameworks, aimed at upholding
fundamental human rights and labor standards. Among these, the African Charter on
Human and Peoples' Rights (ACHPR) serves as a pivotal instrument, providing a
foundation for the recognition and enforcement of collective bargaining rights across the
continent.

The ACHPR is a crucial regional instrument that aims to safeguard the rights and dignit y
of individuals and communities across the African continent. While the charter enshrines a
wide range of human rights, including civil, political, economic, social, and cultural rights,
its provisions concerning labor rights, freedom of association, and collective bargaining are
particularly significant.

Article 10 of the ACHPR guarantees the right to free association, emphasising that every
individual has the freedom to associate, provided they adhere to the law. This provision
underscores the importance of ensuring that individuals can form and join associations of
their choosing without undue interference. Moreover, Article 10(2) reaffirms the principle
of voluntary association, prohibiting any form of compulsion to join an association.

15
However, the effectiveness of this right is contingent upon national legislation and its
enforcement, which may vary across African countries, leading to disparities in the
protection of labor rights and freedom of association.

Similarly, Article 22 of the ACHPR recognises the right to economic, social, and cultural
development for all peoples, emphasising the importance of ensuring freedom and identity
while enjoying the common heritage of mankind. This provision underscores the
fundamental link between economic development and the realisation of human rights,
including the right to decent work and fair wages. States are tasked with the duty to promote
and protect the right to development, ensuring that individuals and communities have equal
opportunities to participate in and benefit from economic growth.

Additional regional instruments and mechanisms addressing collective bargaining rights

include those established by the East African Community (EAC), Economic Community
of West African States (ECOWAS), and Southern African Development Community
(SADC). The EAC's Treaty and its Annex on the Common Market emphasise the
promotion of social justice and the protection of workers' rights, including the right to
collective bargaining. 52 Similarly, ECOWAS has adopted the Supplementary Act on the
Harmonisation of Social Policies, which aims to ensure social protection and promote
decent work in the West African region, including provisions on collective bargaining. 53
SADC's Declaration on Social and Economic Development and its Protocol on
Employment and Labour reaffirm the commitment to promoting collective bargaining and
ensuring the rights of workers in the Southern African region. 54 While these regional bodies
have taken steps to address collective bargaining rights, challenges remain in harmonising
labour laws, enhancing enforcement mechanisms, and fostering cross-border cooperation
to effectively promote and protect workers' rights throughout their respective regions.

52
See Article 76, Treaty for the Establishment of the East African Community. <https://www.eacj.org//wp-
content/uploads/2012/08/EACJ-Treaty.pdf> accessed 8 February 2024.
53
ECOWAS Supplementary Act on the Harmonisation of Social Policies.
<https://tit.comm.ecowas.int/?page_id=7481> access 8 February 2024.
54
SADC's Declaration on Social and Economic Development and its Protocol on Employment and Labour.
<https://www.tralac.org/documents/resources/sadc/1198-sadc-protocol-on-employment-and-labour-5-
august-2014/file.html> accessed 8 February 2024.

16
3.2 Enforcement Mechanism: African Commission on Human and Peoples' Rights
Jurisprudence

The enforcement mechanism for collective bargaining in Africa involves the jurisprudence
of the African Commission on Human and Peoples' Rights (the Commission), which
adjudicates cases related to collective bargaining and labor rights. The Commission has
played a crucial role in interpreting and applying the provisions of the ACHPR concerning
labor rights, freedom of association, and collective bargaining.

Through its jurisprudence, the Commission has addressed cases involving violations of
workers' rights to organise, bargain collectively, and engage in trade union activities. For
example, in the case of Social and Economic Rights Action Center and the Center for
Economic and Social Rights (SERAC) v. Nigeria,55 the Commission held that the Nigerian
government violated the rights of oil workers by unlawfully suppressing their peaceful
protests and denying them the right to collective bargaining. Similarly, in the case of Civil
Liberties Organization v. Nigeria,56 the ACHPR found that the Nigerian government
violated the rights of public sector workers by prohibiting them from forming trade unions
and engaging in collective bargaining.

Furthermore, the ACHPR has emphasised the duty of African states to respect, protect, and
promote workers' rights to freedom of association and collective bargaining. In Zimbabwe
Human Rights NGO Forum v. Zimbabwe,57 the Commission reaffirmed the importance of
collective bargaining as a fundamental human right and called on states to adopt legislative
and policy measures to ensure its effective realisation.

Overall, the enforcement mechanism for collective bargaining in Africa relies on the
jurisprudence of the ACHPR to hold states accountable for violations of workers' rights and
to promote the effective implementation of collective bargaining mechanisms across the
continent.

55
Communication No. 155/96 [2001] ACHPR 35 (27 October 2001).
56
Communication No. 045/1990 [1990] ACHPR 9 (4 October 1990).
57
Merits, Communication No 245/2002 (ACmHPR, May. 15, 2006).

17
3.3 Challenges in Enforcing Collective Bargaining in Africa

Enforcing collective bargaining in Africa faces several challenges. One significant obstacle
is the weak legal framework and enforcement mechanisms in many African countries,
which hinders the effective protection of workers' rights.58

Anti-union practices and restrictions on freedom of association greatly hinder workers'

ability to engage in collective bargaining. These practices, including intimidation and
harassment, along with legal constraints, create significant barriers to unionization and
collective negotiation for improved working conditions. 59

Additionally, informal employment sectors and precarious work arrangements further

complicate collective bargaining efforts. Workers in these sectors often lack legal
protections and face unstable employment conditions, limiting their participation in formal
bargaining processes and the effectiveness of negotiated agreements. 60

Moreover, Political instability and corruption in some African countries add another layer
of challenge to enforcing labour laws and collective bargaining rights. Governments may
prioritize maintaining power over protecting labor rights, leading to weak enforcement and
exacerbating the vulnerability of workers. Corruption within regulatory bodies undermines
efforts to ensure fair labor practices and erodes trust in the bargaining process. 61

Furthermore, disparities in economic development and resource allocation among African

nations contribute to unequal bargaining power between employers and workers.

Addressing these challenges requires concerted efforts from governments, trade unions,
civil society organisations, and international bodies to strengthen legal frameworks,
enhance enforcement mechanisms, and promote dialogue and cooperation among
stakeholders to advance collective bargaining and protect workers' rights across the
continent.

58
Beverly M. Musili, Challenges in Implementing and Enforcing Collective Bargaining Agreements
(Kenya Institute for Public Policy Research and Analysis Paper No. 208, 2008) pp. 1-41.
59
Ibid.
60
Ibid.
61
Lewis S. Jacob. "Corruption Perceptions and Contentious Politics in Africa: How Different Types of
Corruption have Shaped Africa’s Third Wave of Protest." (2021) 19(2) Political Studies Review, pp. 227-
244.

18
 PART FOUR

RIGHT TO COLLECTIVE BARGAINING IN NIGERIA

4.0 Collective Bargaining in Nigeria

This Part delves into the foundational principles that govern collective bargaining in
Nigeria. It explores the legal framework, challenges, and enforcement mechanisms
surrounding collective bargaining agreements within the Nigerian context. By examining
the intersection of national laws, international standards, and practical realities, it aims to
provide a comprehensive understanding of how collective bargaining operates in Nigeria
and the factors influencing its effectiveness. Through this exploration, readers will gain
insights into the principles guiding collective bargaining processes and the broader
implications for labor relations in Nigeria.

4.1 The Legal Framework for Collective Bargaining sin Nigeria

The legal framework for the right to collective bargaining in Nigeria is primarily governed
by several legislative instruments and judicial decisions. These include the Constitution of
the Federal Republic of Nigeria, 1999 (as amended),62 the Labour Act 1974,63 the Trade
Unions Act 1973,64 the Trade Disputes (Emergency Provisions) Act 1968, the Trade
Disputes Act 1976,65 the Trade Union (Amendment) Act 2005, and the Wages Board and
Industrial Councils Act 2004.66

While the Nigerian constitution does not explicitly mention the right to collective
bargaining, it does provide for freedom of association and assembly, 67 which are
fundamental rights that underpin the collective bargaining process. The Labour Act, on the
other hand, defines collective bargaining as the process of reaching or attempting to reach
a collective agreement between employers and workers' representatives. 68

62
Cap C23 L.F.N 2004.
63
Cap L1 L.F.N 2004, Section 9(6).
64
Cap T14 L.F.N 2004, Section 12.
65
Cap T8 L.F.N 2004, Section 3.
66
Cap W1 L.F.N 2004, Sections 8(1) and 9(1).
67
Constitution of the Federal Republic of Nigeria 1999, Supra Note 62, Section 40,
68
Labour Act, Supra Note 63, Section 91.

19
The Trade Disputes Act 1976 outlines the procedures for resolving trade disputes, including
both voluntary grievance procedures and statutory procedures. Disputing parties are
required to first seek resolution through negotiation channels, known as the internal
machinery procedure, before resorting to statutory procedures or in the absence of internal
mechanisms. It's noteworthy that during dispute resolution or negotiations, parties are
prohibited from engaging in industrial action, as this would contravene the law. 69

In practice, collective agreements often establish internal dispute resolution procedures.

However, there are instances where management unilaterally prescribes these procedures
as part of work rules.70

Additionally, Nigeria is a signatory to various international and regional instruments that

recognise the right to collective bargaining as a human right. These include conventions by
the ILO, such as Convention No. 87 on Freedom of Association and Protection of the Right
to Organize 1948, and Convention No. 98 on the Right to Organise and Collective
Bargaining 1949.

Evidently, there is a lack of systematic organisation of the various laws concerning

collective bargaining in Nigeria. This has diminished the impact of the right to collective
bargaining mechanisms in industrial labour relations. It is important to note that all the
aforementioned laws grant primary authority to the Minister of Labour, who holds sway
over and influences the negotiation and approval of collective agreements. A notable
instance is the agreement between the Academic Staff Union of Universities (ASUU) and
the Federal Government of Nigeria in 2009, the implementation of which remains pending.
The stipulation that all collective agreements must be submitted to and sanctioned by the
Minister of Labour, Employment, and Productivity, who possesses the authority to mandate
the enforceability of certain provisions, has undermined the effectiveness of collective
bargaining as a means of resolving issues in industrial relations. 71

69
Trade Dispute Act, Supra Note 64, Section 4(1) and (2).
70
Isreal Worudji, “Settlement of Trade Disputes under the Nigerian Labour Law: The Missing Links.”
(2003) 6 University of Maiduguri Law Journal, p. 14.
71
Syvester A.F. Udeorah. "The Principle of Collective Bargaining in Nigeria and the International Labour
Organization (ILO) Standards." (2018) 2(4) International Journal of Research and Innovation in Social
Science, pp. 63-67.

20
4.2 Enforcement Mechanism of Collective Bargaining in Nigeria

The enforcement mechanism for enforcing the right of collective bargaining in Nigeria is
primarily governed by the legal framework established in various legislative instruments.
One of the primary mechanisms for enforcing collective bargaining agreements is through
the legal system. If a party fails to adhere to the terms of a collective agreement, the
aggrieved party can seek redress through the courts. The courts have the authority to
interpret collective agreements and enforce their provisions, ensuring that both parties
uphold their obligations.

Indeed, courts in Nigeria Courts have played a crucial role in interpreting and enforcing
collective bargaining agreements, ensuring compliance with labour laws and the protection
of workers' rights. For example, in Udoh v Orthopaedic Hospitals Management Board,72
the Court affirmed the importance of collective bargaining agreements and upheld the
rights of workers to negotiate and enter into such agreements with their employers.

Despite recognising the strategic importance of workers' right to collective bargaining in

Nigeria, the courts have consistently ruled that collective agreements resulting from such
negotiations are not legally enforceable. For instance, Union Bank of Nigeria v Edet,73 the
court dismissed the employee's claim that her termination violated a collective agreement.
It ruled that collective agreements, unless expressly incorporated into the terms of
employment, do not grant individual employees the right to sue for breach or supplement
their employment contracts. Similarly, in Afribank (Nig) Plc v Osisanya, 74 the Court of
Appeal held that the dismissal procedure outlined in a collective agreement was not binding
on the employer, as the agreement lacked enforceable legal status. Additionally, in ACB
Plc v Nwodika,75 Court of Appeal outlined factors determining the enforceability of a
collective agreement, including its incorporation into employment contracts, the pleadings
and evidence presented in court, or the parties' conduct.

These cases underscore the limited legal standing of collective agreements in Nigeria and
highlight the challenges faced by workers in enforcing the terms negotiated through
collective bargaining. While collective bargaining remains an essential aspect of industrial

72
Supra, Note 20.
73
(1993) 4 NWLR (Pt. 287), 288.
74
[2000] 1NWLR (Pt. 642) 598.
75
(1996) 4 NWLR (Pt. 443) 470, 485.

21
relations, the lack of enforceability of resulting agreements underscores the need for
legislative reforms to strengthen workers' rights and ensure the effectiveness of collective
bargaining processes.

However, the introduction of section 254C(2) into the Nigerian Constitution in 2010
presents a potential avenue for the enforcement of collective agreements in the country.
This provision grants exclusive jurisdiction to the National Industrial Court of Nigeria
(NICN) to apply any treaty ratified by Nigeria concerning employment, labour industrial
relations, workplace, and related matters, regardless of the requirement for domestication
of treaties before enforcement. Notably, Nigeria has ratified the ILO Convention 98, which
specifically addresses collective bargaining. Consequently, the NICN could enforce
collective agreements under section 254C(2) without the need for domestication, marking
a departure from the common law position that rendered such agreements non-binding.76
By leveraging this constitutional provision and the principles outlined in ILO Convention
98, the NICN has the potential to deviate from traditional legal interpretations and enforce
collective agreements in Nigeria. This development signifies a shift towards recognising
and upholding the rights of workers to engage in collective bargaining and have their
agreements enforced through legal channels.

Further, the Ministry of Labour and Employment plays a crucial role in enforcing collective
bargaining agreements. The Minister of Labour has the authority to receive and approve
collective agreements, as well as to order the enforceability of certain provisions. This
ensures that collective agreements comply with legal requirements and are binding on both
parties.

Also, trade unions play a vital role in enforcing collective bargaining agreements. They
represent the interests of workers and ensure that employers adhere to the terms of
collective agreements. Trade unions can use various tactics, such as negotiation, mediation,
and industrial action, to enforce collective bargaining agreements and protect the rights of
workers.

Overall, the enforcement mechanism of collective bargaining in Nigeria relies on a

combination of legal frameworks, government oversight, and the active involvement of

76
Rogoff A. Martin. "The International Legal Obligations of Signatories to an Unratified Treaty" in Scott
Davidson. The Law of Treaties, (United Kingdom: Routledge, 2017) pp. 191-227.

22
trade unions. By ensuring compliance with collective agreements, these mechanisms
contribute to the stability of industrial relations and the protection of workers' rights.

4.3 Challenges to Right to Collective Bargaining in Nigeria

The right to collective bargaining in Nigeria faces various challenges that hinder its
effective implementation in line with international standards. Despite being a principle of
international law, the application of collective bargaining in Nigeria is limited by national
laws and regulations, which diverge from the tenets advocated by international bodies such
as the ILO.

Firstly, the Trade Union Act in Nigeria mandates compulsory arbitration between
employers and workers, rather than emphasising negotiation as preferred by international
standards. Moreover, non-compliance with arbitration rulings from the National Industrial
Court carries penalties of fines or imprisonment, undermining the voluntary nature of
collective bargaining.77

Secondly, the requirement to register every wage agreement with the Ministry of Labour
and Productivity as binding further restricts the autonomy of parties involved in collective
bargaining, contrary to the principles of free negotiation.

Thirdly, acts of anti-unionism, including regulatory obstacles, state interference in labor

matters, and shutdowns, are prevalent in Nigeria, inhibiting the ability of unions to engage
in collective bargaining freely. 78

Fourthly, employers frequently interfere with and discriminate against employees and
unions, undermining the collective bargaining process and workers' rights.

Lastly, restrictions on the right to strike, as outlined in the Trade Unions (Amendment) Act
2004, impose conditions such as non-strike clauses during the lifespan of collective
bargaining agreements, limiting the effectiveness of unions in advocating for workers'
interests.

These challenges collectively hinder the proper functioning of collective bargaining in

Nigeria, perpetuating disparities between national legislation and international labor

77
Syvester A.F. Udeorah. Op Cit. Note 71.
78
Ibid.

23
standards. Addressing these issues requires legislative reforms and greater adherence to
international principles of labor rights and collective bargaining.

24
 PART FIVE

CONCLUSION AND RECOMMENDATIONS

5.0 Summary of Findings

In summary, the examination of the right to collective bargaining from legal and human
rights perspectives reveals several key findings. Firstly, at the international level,
instruments such as the UDHR and the ICESCR recognise the right of workers to form
trade unions, engage in collective bargaining, and strike. Additionally, the ILO
conventions, particularly Convention No. 87 on Freedom of Association and Protection of
the Right to Organise and Convention No. 98 on the Right to Organise and Collective
Bargaining, provide further guidance and standards for the protection and promotion of
collective bargaining rights globally.

Secondly, within the African regional context, instruments such as the ACHPR
acknowledge the importance of collective bargaining as a human right, albeit with
variations in implementation across different countries. Regional economic communities
like the ECOWAS also play a role in promoting collective bargaining rights through
protocols and declarations.

Thirdly, at the national level in Nigeria, the legal framework for collective bargaining
encompasses various statutes and regulations, including the Labour Act and the Trade
Unions Act. However, challenges such as limitations on enforceability and restrictions on
the right to strike persist, affecting the efficacy of collective bargaining in the country.

Overall, the findings underscore the significance of collective bargaining as a fundamental

human right essential for protecting workers' interests, ensuring fair labour practices, and
fostering industrial peace and stability. Despite progress at the international and regional
levels, there remains a need for enhanced implementation and enforcement mechanisms at
the national level to fully realize the right to collective bargaining in practice.

5.1 Lessons for Nigeria

In Nigeria, a significant challenge in the realm of collective bargaining has been the issue
of unenforceability of collective agreements reached through the bargaining process, as

25
evidenced in notable court cases such as Union Bank of Nigeria v Edet79 and Afribank (Nig)
Plc v Osisanya.80 However, as discussed in this paper, there is a potential avenue for change
with the introduction of section 254C(2) into the Constitution in 2010, empowering the
NICN to enforce ratified treaties related to employment and labor, including collective
bargaining agreements. While this constitutional amendment represents progress, there
remains a need for legislative intervention to definitively mandate courts to enforce such
agreements.

Drawing lessons from other jurisdictions, such as Zambia, 81 South Africa, 82 Kenya83 and
Ghana84 where labour statutes expressly mandate the enforceability of collective
agreements, Nigeria can benefit from adopting similar legislative provisions. These
countries, despite being of common law jurisdiction like Nigeria, prioritise the enforcement
of collective agreements through statutory provisions, thereby superseding any common
law limitations. By following suit and enacting legislation that unequivocally mandates the
enforcement of collective agreements, Nigeria can enhance the effectiveness of collective
bargaining mechanisms and ensure the protection of workers' rights in line with
international standards.

5.2 Conclusion

Throughout this paper, an in-depth exploration of the right to collective bargaining within
the context of human rights has been undertaken. It commenced by elucidating the
international legal framework, emphasising key instruments such as the UDHR, ICESCR

79
Supra, Note 73.
80
Supra, Note 74.
81
According to Section 71(3)(c) of the Zambian Industrial and Labour Relations Act (No. 27 of 1993, Cap
269 of the Laws of Zambia), once the Minister accepts a collective agreement, it gains legal force and
becomes obligatory for both the employer and employees or the concerned parties involved.
82
By virtue of Section 23 of the South African Labour Relations Act (No. 66 of 1995) any collective
agreement concerning employment and labor is binding not only on the parties involved but also on any
other individuals covered by the agreement. Additionally, according to section 199 of the Act, any
employment contract, whether entered into before or after a collective agreement, cannot permit an
employer to pay their employees less than the remuneration outlined in the collective agreement.
Moreover, the section invalidates any contract that seeks to waive or override the terms of a collective
agreement.
83
In Kenya, according to section 59(1) of the Labour Relations Act (No. 14 of 2007), each collective
agreement concerning employment and labor holds authority over all employees and their employers.
Additionally, section 59(3) mandates the inclusion of every collective agreement into the employment
contract of each employee. Moreover, as per section 59(5), once a collective agreement is registered, it
gains enforceability.
84
According to section 105 (2) of the Ghanaian Labour Act (No. 651 of 2003), a collective agreement
between employees and an employer is considered part of the employment contract between each
individual employee and their employer.

26
and the ILO conventions. The regional perspective, particularly in Africa, was then
examined, highlighting relevant provisions in regional instruments like the ACHPR. This
analysis revealed both the recognition of collective bargaining as a fundamental human
right and the challenges posed by varying enforcement mechanisms across different
regions. Moving to Nigeria, the paper delved into the legal framework governing collective
bargaining, shedding light on relevant laws and court decisions. Challenges hindering the
enforcement of collective agreements in Nigeria were identified, including judicial
precedents that deemed such agreements unenforceable. However, the paper posited a
potential solution through the 2010 amendment to the Nigerian Constitution, which
empowers the NICN to enforce ratified international treaties related to labor rights.
Drawing lessons from other jurisdictions like Ghana, Kenya, Zambia, and South Africa,
where statutory provisions ensure the enforceability of collective agreements, the paper
underscored the need for legislative intervention in Nigeria. By tracing this trajectory, the
paper has aimed to provide a comprehensive understanding of the complexities surrounding
the right to collective bargaining and offer insights for enhancing its protection and
enforcement in Nigeria, both at the domestic and international levels.

5.4 Recommendations

In light of the examination of collective bargaining rights at the international, regional, and
national levels, it is evident that while significant strides have been made, challenges persist
in ensuring the effective enforcement and protection of these rights. Building upon the
findings elucidated in this paper, the following recommendations are proposed to address
these challenges and promote the realisation of collective bargaining rights in Nigeria and
beyond:

1. Harmonisation of International Standards: This paper advocates for the

alignment of national labour laws with international standards, particularly the
ratification and implementation of ILO conventions on collective bargaining to
ensure consistency and enforceability across borders.
2. Enhanced Regional Cooperation: This paper encourages collaboration among
African countries to develop regional mechanisms and protocols that strengthen
collective bargaining rights, ensuring uniformity in enforcement mechanisms and
promoting solidarity among member states.

27
3. Legislative Reform in Nigeria: This paper proposes legislative amendments in
Nigeria to explicitly mandate the enforceability of collective agreements, aligning
domestic laws with international standards and ensuring the protection of workers'
rights through mechanisms like the NINC.
4. Judicial Sensitisation and Training: This paper also advocates for judicial
sensitization programs to educate judges and legal practitioners in Nigeria on the
importance of collective bargaining rights and the enforceability of collective
agreements, fostering a conducive legal environment for their protection.
5. Stakeholder Engagement and Awareness: There is also a need to promote
awareness campaigns targeting employers, trade unions, workers, and civil society
organizations to highlight the significance of collective bargaining in safeguarding
workers' rights and fostering harmonious industrial relations.
6. Monitoring and Reporting Mechanisms: Finally, this paper advocates for the
establishment of robust monitoring and reporting mechanisms at both national and
international levels to track compliance with collective bargaining obligations,
facilitate accountability, and address any violations promptly, thereby safeguarding
workers' rights effectively.

28
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