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NATIONAL INDUSTRIAL COURT HOLDEN AT LAGOS BEFORE THEIR LORDSHIPS Hon. Justice B.A. Adejumo - President Hon. Justice B.B. Kanyip - Judge Hon. Justice M.B. Dadda - Judge DATE: JANUARY 22, 2008 SUIT NO. NIC/3/2006 BETWEEN United Geophysical Nigeria Ltd/Integrated Data Services Ltd (UGNL/IDSL) Joint Venture JV 165………………………………………………Appellant AND National Union of Petroleum And Natural gas workers (NUPENG)……………………………………………Respondent REPRESENTATION Miss M.O. Akpoyoware and with her Mr. O. Enemosah, for the appellant Comrade Christopher Akpede, Principal Organizing secretary responsible for Lagos Zone of NUPENG represents the respondent. JUDGMENT The Minister of Employment, Labour and Productivity acting pursuant to section 13(1) of the Trade Disputes Act (TDA) Cap . 432 LFN 1990 referred this matter to this court vide a letter dated 31st March, 2006 with Ref. No. ML.HE/871/CON/I/48 and a referral instrument simply dated March 2006. By the referral, this court is asked- To inquire into the trade dispute existing between National Union of Petroleum and Natural Gas Workers (NUPENG) and United Geophysical Nigeria Ltd/Integrated Data Services Ltd. (UGNL/IDSL) Joint Ventures JV 165, over the following points:- (i) Management's refusal to accord recognition to workers to join trade union of their choice; (ii) Unilateral measures adopted to intimidate workers, hence the illegal detention of two union members, namely: Elemuwa Mitchell and Anthony lcheji ; and iii) Wrongful termination of members for union activities. The IAP had entertained the matter and made an award, which was objected to by the appellant - hence [he present referral. At the hearing or the mutter, the respondent filed an undated 3paged memorandum signed by its General Secretary, Elijah Okougbo even before this court formally ordered the panics to exchange memoranda. The appellant on the other hand, and in response to the order or this court that parties should exchange memoranda, filed an 8-paged memorandum dated 27th July 2006 signed by counsel, Miss M.O. Akpoyoware. Aside from the undated and indeed scanty memorandum filed, the respondent did not appear keen on defending this matter as throughout the hearing of the matter, the respondent was not represented by counsel; and only twice was the respondent represented by one of its officers in court. In fact, all the legal issues raised by the appellant in its memorandum remained unchallenged by the respondent as the respondent did not heed to all the hearing notices sent by tile court to it to appear and answer to the issues raised by the appellant. The court is, therefore, constrained to treat the: matter based on the record before it By the undated memorandum of the respondent, the respondent prefaced its case with a preamble reiterating the terms of reference of the matter at hand and the fact that the IAP could not resolve same. The respondent then went all to argue its case under three distinct headings: unionization; victimization; and UGNL/IDSL Joint Venture 165. On unionization, the respondent simply stated that the workers exercising their rights based on ILO Conventions 87 on freedom of association and 98 on the right to organize and collective bargaining, and the provision of section 9(6) of the Labour act and under the aegis of NUPENG, unionized and became members of the union on 29th March 2002 at Omaralu Town or Rivers State with the election of the officers in the reorganization process of the branch union. On victimization, the respondent simply stated that the appellant caused Messrs Mitchell Elemuwa and Anthony lcheji to be unlawfully arrested and detained immediately after the unionization of the workers. That this was to drive fear into the workers to stop them from being unionized. That all the union , officers were terminated. On UGNL/IDSL Joint Venture 165, the respondent simply stated that there are seismic companies carrying our jobs on behalf of the NNPC operating in the oil and gas industry. That due to the nature of their jobs, the companies simply employ a large number of workforce. AIso that their jobs are of a nomadic nature as they go from one area to another. That by virtue of their operation in the oil and gas industry, the workers of these companies are automatically members or NUPENG in accordance with the Trade Union Act 1970. That the companies have tried on many occasion to dissuade the workers from joining the union by arm-twisting and using security agents against the workers. That the UGNL/IDSL Joint Venture 165 has been noted to always violate the rights of the workers to organize and freely bargain collectively. That they are exploiters of labour that do not see anything good in the union. The respondent then continued that the Trade Unions (Amendment) Act 2005 has given workers the prerogative right to join a trade union. That this is in consonance with 'S,24 of the Constitution of the Federal Republic of Nigeria’. That employers are compelled to recognize the union as the umbrella body of the workers. That any contrary view is null and void. That the management and union are expected to work together for industrial peace and harmony as on the tenets of industrial relation practice. However, that this is not the case with UGNL/ISDL, as they always go against the rule of the game. The respondent then prayed the court for the following reliefs - 1. That the appellant should grant recognition to the union in conformity with 'Trade Unions Act 1978' as further amended in 1999 and also refrain from all anti-union posture against the union 2. That the appellant contravenes ILO Conventions 87 and respectively on Freedom of Association and the Right to Collectively in consonance with 's.24 of the Constitution'. 3. That all terminated union executive officers and other members should be reinstated and paid all their wages and entitlements. 4. That tile appellant should stop all forms of victimization and intimidation against union members. 5. The appellant should comply with the provisions of 'Trade Unions (Amendment) Act 1978' by remitting union check-off dues to NUPENG. 6. That the court should approve the award of the IAP. The appellant on the other hand raised four issues in its memorandum for the determination of the court. They are- 1. Whether the operators of the UGNL/IDSL Joint Venture JV 165 have failed to accord recognition to NUPENG as a representative union for its workforce. 2. Whether the operators of the UGNL/lDSL Joint Venture have adopted a systematic policy to intimidate its workers into refusing to join NUPENG or terminate their employment when they insist on joining NUPENG. 3. Whether the policy of the operators of the UGNL/IDSL Joint Venture JV 165 to engage local people on a temporary basis and to disengage them as soon as operations in their locality are conducted is contrary to public policy and amounts to wrongful termination of employment. 4. Whether NUPENG could insist that workers in the oil sector must join NUPENG without any option. The appellant then went on to give a profile of the parties to the dispute. To the appellant, there is no legal person by the name UGNL/IDSL Joint Venture JV 165. That it is neither a natural person nor a corporation. That it is the code name of a Joint Venture Agreement between United Geophysical Nigeria Limited and Integrated Data Services Limited both of which are companies incorporated under the laws of Nigeria. That both companies are seismic survey contractors. That sometime in the past, the two companies entered into an agreement to source for jobs and execute such jobs together. In furtherance of that agreement, that the two companies operated together a Joint Venture in Rivers State acquiring seismic data for Shell Petroleum Development Company(SDPC) with the code name UGNL/IDSL Joint Venture JY 165. The appellant then explained that the respondent (0 the dispute is the representative body of workers in oil and gas operators including prospecting, drilling, crude oil and natural gas pipelines, refining, distribution and marketing of natural gas and petroleum products including petroleum tanker drivers. The appellant thereafter went on to raise a preliminary objection as to the jurisdiction of the IAP over the appellant on the ground that UGNL/IDSL Joint Venture JV 165 is not an entity known to law as it is not a legal person. The appellant then urged the court to hold that the IAP lacked the necessary powers to exercise jurisdiction in this matter. The appellant continued that if the respondent so desires, it may proceed appropriately against either of the Joint Venture Partners or both of them. In the event that this court over-rules this objection, the appellant went on to canvass arguments regarding the matter at hand under four issues: refusal to accord recognition to NUPENG; opposition of the Joint Venture Partners to unionization of the contract workers; whether there is a systematic intimidation or insistence on a wry sound policy; and freedom of association. Regarding issue I, the appellant argued that it is not true that either or both of the Joint Venture Partners refused to accord recognition to the respondent. On the contrary, that the staff employed in permanent locations and offices of the Joint Venture Partners are and have been for many years represented by the respondent. That the real dispute between the parties arose when the respondent insisted that in addition to permanent staff of the Joint Venture Partners, temporary workers engaged on a job-by-job basis and strictly on contract must join NUPENG irrespective of the nature of their engagement with the Joint Venture Partners not as employees but as independent contractors. The appellant prefaced issue 2 with an explanation of the nature of Joint Venture operations. To the appellant seismic surveys conducted by the Joint Venture Partners pass through hundreds of small towns and villages and are, therefore, nomadic in nature. That the field workers required for some of these surveys are menial workers, of which the Joint Venture Partners have the option of engaging some of them as permanent employees and move them from location to location as the survey progresses. That such employees like other permanent staff of the Joint Venture Partners could belong to the respondent and their check-off dues remitted to the respondent to deal with as it may wish. The appellant went on to explain that it is the policy of government and the Joint Venture Partners that as much employment and commercial opportunity as possible should be given to the communities on whose lands' the Joint Venture Partners temporarily operate. As a result of this policy, that all the low skilled jobs which do not require specialization are given to the indigenes of such communities. That these workers are then disengaged on the completion of the survey in their locality. That what this means is that the workers are engaged on contract to complete certain tasks for a fee, and for which they get paid irrespective of whether the job is completed within a day, a month or a year. That as soon as a survey is completed, the workers are paid off and the Joint Venture Partners leave the community for another. The appellant continued that much of the Joint Venture operations are conducted by independent contractors whose workers the Joint Venture Partners have no control over other than insisting that the independent contractors workforce shall consist substantially of employees from the local communities in which the Joint Ventures Partners are operating. To the appellant, it is these workers that the respondent wants to unionize ignoring the fact that the Joint Venture Partners' contract with the client is limited in time scale and as such it is necessary that the size of the workforce is adjusted as often as possible depending on what jobs are available. Furthermore, to the appellant the respondent has consequently placed the Joint Venture Partners on a collision course with these contract workers given that because the workers know that their job is temporary, they are more interested in making the most of it. That the workers are not willing to join any union including the respondent as they cannot afford to have monies deducted from their fees as check-off dues to the unions. That the workers have on their own refused to join the respondent. Instead, that the respondent insists on unionizing them. To the appellant, the position of the Joint Venture Partners is that these workers being engaged on temporary basis and for a fixed fee are akin to independent contractors; and that the Joint Venture Partners will be breaking their contract with them by deducting any money due to them as check-off fees to the respondent or any other union. That to do so will result in friction between the Joint Venture Partners and the communities with the attendant disruption of operations. The appellant then concluded argument on this issue by stating that the respondent is most unreasonable with its demand. On issue 3, the appellant argued that contrary to the allegation of the respondent, the Joint Venture Partners do not have a policy to intimidate or terminate the employment of anybody for reason only of such person joining the respondent union. That the true position is that as the survey moves from community to community, workers engaged from one community will be disengaged, while workers from the next community are engaged. That this process is independent of whether such an employee is a member of any union. That it is to ferment mischief that the very false accusation of intimidation is leveled. On issue 4, the appellant argued that the respondent is insisting on unionizing the Joint Venture workforce irrespective of whether or not the workers freely desire to join the respondent. That this has brought the Joint Venture Partners on a collision course with its workers who do not intend to join the respondent. In any event, that presently, there no longer exists a UGNL/IDSL Joint Venture as the contract has been concluded and so there is no entity to enforce the findings of the IAP. In conclusion, the appellant urged the court to hold that the IAP has no power to adjudicate on this matter and over a non-juristic person. In the alternative, the appellant urged the court to hold that United Geophysical Nigeria Limited and Integrated Data Services Limited a) have not refused to recognize NUPENG as a trade union in the oil sector; b) acknowledges and respects the freedom of its workers to elect to join whatever or not to join a trade union they may wish as well as their right to associate freely; c) does not operate a policy of systematic intimidation of workers who wish to join NUPENG; and d) did not wrongfully terminate the employment of any worker. We have carefully considered the written submissions of the parties in this matter and have not seen any reason why the award of the IAP should be disturbed. Despite the carefree attitude of the respondent in its defence, the appellant’s submissions were more like the tendering of evidence from the Bar than really the prosecution of an appeal or even the review of the award of an arbitral tribunal. The appellant raised issues without substantiating arguments in that regard with legal authorities. Indeed, the main legal issue the appellant raised was that there is no legal entity known by the name of the appellant in this matter. But the appellant went on to agree that United Geophysical Nigeria Limited and Integrated Data Services Limited are two separate companies registered as such; and that they are involved in a joint venture known as Joint Venture JV 165. What we gathered from the processes before us is that the appellant was sued in relation to the joint venture carried on by the two companies. We do not see anything wrong with this. The appellant wants us to sacrifice the issue on the altar of technicality. This we cannot do. The mutter at hand is against the two companies in relation to the joint venture both companies carried on, Even though that joint venture has been concluded, that does not in any way suggest that accrued liabilities against the two companies cannot be pressed against them if the justice of a case so requires. In this regard, we do not agree with the appellant that the IAP lacked the jurisdiction to entertain this matter. This said, we must proceed to state that it is wrong for an employer to raise in its defence, in a recognition and/or check-off dues dispute, the fact that employees do not want to join or remain as members of a union without attaching the individually signed letters by the employees to that effect. The right to join a union or having joined, to cease to continue as a member of a union, belongs to the individual employee, not to the employer. So, only the employee can raise that issue before us, not the employer. The appellant raised issues which seem to suggest that the employees in question are contract staff or more appropriately (to use the language of the appellant) independent contractors. In all the processes before us, however, this remained an unsubstantiated assertion on the part of the appellant. The appellant went further to adduce evidence or even legal arguments to substantiate this claim. We, therefore, cannot make any holding in that regard favourable to the appellant. In the circumstance, therefore, and as we indicated earlier, there is no reason to disturb the findings and award of the IAP based on the evidence adduced before it. We hereby confirm the award of the IAP in this matter. Judgment is entered accordingly. Hon. Justice B.A. Adejumo President Hon. Justice B.B. Kanyip Hon. Justice M.B. Dadda Judge judge