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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.A.B Atilola - Judge DATE: JANUARY 23, 2008 SUIT NO. NIC/13/2006 BETWEEN Bemil Group Limited, Ikeja, Lagos - Appellant AND National Union of Hotels and Personal Services Workers- Respondent REPRESENTATION O.B.J Omeogu Esq., with him are Ojo Ehinlaye, State Manager of the Appellant, Miss Olufunke Loko, E.A Afolabi and M.S. Senbanjo, for the Appellant. B.C. Anyanwu (Mrs.), for the Respondent In attendance and representing the respondent is Comrade Johnson Emihia, the Deputy-General Secretary of the Union in-charge of Legal Education. JUDGMENT This matter was referred to this court pursuant to Section 13(1) of the Trade Disputes Act (TDA) Cap. 432 LFN 1990 by the Honourable Minister of Labour and Productivity vide a letter dated 19th September, 2006 with Ref. No. HE/846/CON.l/30 and a Referral Instrument dated 10th August 2006. Also enclosed are a copy of the letter of objection to the award of the Industrial Arbitration Panel (IAP) raised by the appellant and a copy of the said award. By the Honourable Minister's letter and Referral Instrument, this court is asked - To inquire into the trade dispute between the National Union of Hotels and Personal Services Workers and Bemil Group Limited, lkeja, Lagos over the following point: Management refusal to recognize the Union and allow its workers to belong to the union in accordance with Decree 22 of 1978. The matter had earlier been arbitrated upon by the IAP and an award was made which was objected to by the Appellant. Tile objection raised by the appellant regarding the unionization of its junior workforce is two-fold and is as follows: (a) We object to the unionization of the junior employees of the American Embassy, because of the diplomatic status of the embassy and (b) We object to the deduction or check-off dues from the salary of any employee who has not signified in writing that he is a member of the union. Both parties joined issues by exchanging their respective memorandum with accompanying exhibits after withdrawal and substitution of their respective memorandum on both sides. The memoranda were respectively adopted and the matter was considered on record. Tile Appellant's memorandum dated 30/3/07and filed on 17th April, 2007 was accornpanied with lour (4) exhibits marked --BN1 ", "BN2", "BN3", and "BN4", In the Appellant’s memorandum, the background information of the circumstances that led to the reference of the dispute In this court was given. The matter was earlier referred to the IAP over the same point referred to this court. At the hearing before tile IAP, the parties decided on their own volition to meet and settle the dispute amicably. Several meetings were held to enable parties reach a consensus on the terms of settlement. The terms of settlement were drafted vide Exhibit "BN4" but unfortunately parties could not agree on one of the clauses therein. Owing the inability of the parties to reach an agreement, the matter was left with the IAP to decide. After due consideration, the IAP gave the summary of its awards vide pages 8 and 9 as follows: (a) Refusal or the management of Bemil Nigeria Limited to recognize the Union and allow its guards attached to the American Embassy to belong to the Union along with other junior workers of the company in line with the diplomatic status or the work environment. Bemil Nigeria Limited has to recognize the Union as representing its junior employees. The union must be sensitive to the diplomatic premises or the American Embassy and ensure its members are not engaged in Union activities while on embassy grounds in line with the undertaking it has given to Bemil Nigeria Ltd. The Appellant gave some statement on the points in dispute. (a) How it gave necessary support in respect of the unionization of its junior staff employees. However, this move suffered some set-backs and the matter was referred to the Federal Ministry of Employment, Labour and Productivity, Lagos State and the appellant was invited to a conciliatory meeting on June 11, 2001. A copy of the said letter elated 6th June 2000 is attached and marked Exhibit "BNI". (b) Parties were unable to reach a definite conclusion, especially, in respect of unionization of the appellant's workforce at the American Embassy in view of the sensitive nature or the Embassy environment. Since no definite agreement or conclusion was reached or an agreement signed by all the parties, no judicial notice will be taken of the said Exhibit "BN2" and "BN3", (c) The appellant submitted that their objection to the IAP award is to unionization of its junior employees at the American Embassy because of the diplomatic status of the embassy. The Appellant argued that “the Embassy is an extension of the independence of the home country in the host country and must be accorded its full immunity and the benefits of independence in accordance with the provision of the Diplomatic Immunities and Priviledges Act Cap. 99 LFN 1990. Section 1 of the said Act provides “immunity from inviolability of residence and official archives”. They further submitted that the union would stimulate activities that would likely breach the embassy immunity and by extension the reciprocal agreement on immunity between Nigeria and the American Government. In this regard, they submitted that “no union activity is permitted within the confine of the embassy”. (d) The appellant claimed that at no time was it averse to the recognition of a union and the unionization of its workforce; only that in view o the sensitive nature of the work environment of the American Embassy, its guards attached thereto should be excluded from the union. (e) The appellant went on to state that generally embassies enjoy diplomatic immunity and are not always subject to certain rules and and regulations of the country of abode in view of their status and the foreign policy of the host country. The court is urged to apply the same principle on international immunity on this issue. (f) The appellant stated the type of services provided which is purely a private enterprise providing personal security services to selected organizations. The basis of the contract, they claimed is the ability of the appellant to provide the services in a continuous and peaceful manner without fear of a strike action by its workforce or the union making direct contact with the appellant’s client on industrial matters. (g) The appellant expressed fear that in a situation where the said guards are unionized there are bound to be some form of disruption of services, as their actions in certain situations would affect the services provided to the embassy. This, according to the appellant, "may result in loss or contract, termination of the workforce, loss or the revenue to the company and ultimately increase in the level of unemployment in the country". (h) The appellant submitted that "it is erroneous to state in the award that it has refused to recognise the union in view of what it had done and what it is still doing to see to the unionization of its workforce albeit with the exclusion of the guards at the American Embassy. (i) The readiness of the appellant to accept the Terms or Settlement attached and marked as exhibit "BN4". They submitted that their position in respect of the 4th clause in the Terms of Settlement is confirmed by the provisions of Section 40 of the Constitution of the Federal Republic of Nigeria, 1999 which is to tile effect that every person shall be entitled to assemble freely and belong to any trade union for the protection of his/her interests. The court has earlier observed that the Terms or Settlement vide Exhibit "BN4" was not conclusive and it was not signed by the parties, hence, we will not take judicial notice of it. (j) As regards automatic recognition, the appellant submitted that the categorization of all workers as being automatic members of the union is clearly contrary to the provisions or the constitution, which is supreme over all other laws, referring the court to section 40 of the Constitution. They further contended that the Trade Unions (Amendment) Act 2005 recognised the right to assemble freely and associate with other persons by making it voluntary for a person to join a trade union. Reference was made to section 2 of the Trade Union (Amendment) Act which provides as follows: "Notwithstanding anything to the contrary in this Act, membership of a trade union by employees shall be voluntary and no employee shall be victimized for refusing to join or remain a member", We observe that this was not pleaded before the IAP because the Act was not enacted by then. We, therefore decline to accept the thrust of this submission, It was further contented by the appellant that the membership of the union must be voluntary and this would of necessity require some form of indication from the prospective member of his/her willingness to become a member of the union. They finally submitted that "there should be a consent letter from each staff member confirming his/her intention to join the union and authorizing the management to deduct 3% of their salaries in respect of the union dues." The appellant claimed, with no documentary evidence tendered, to have "had several indications from various members of staff of their unwillingness to have deductions from their salaries without their consent coupled with a veiled threat of litigation in the event that the deductions are made”. Provision or documentary evidence by the appellant of such unwillingness and threat would have strengthened this argument. As for reliefs sought, the appellant prayed the court as follows: (a) To set aside the award by the IAP dated 10th August, 2006. (b) To order that there shall be a duly signed consent letter from each staff member of Bemil Nigeria Ltd confirming intention to join the union and authorizing the management to deduct 3% of their salaries in respect of the union dues, in accordance with the enabling law. (c) To lend its weight to the efforts of the appellant by entering the Terms or Settlement attached and marked Exhibit "BN4" as judgment of the court. The respondent’s memorandum dated 8th June 2007 was filed on 14th November, 2007 after the court granted extension of time and it was accompanied with one (1) exhibit marked as Exhibit 1 and also attached thereto are letters marked as Annexure 1 (a) and 1 (b). The Respondent in its memorandum gave description of the parties. There is no dispute as to the parties involved in the dispute. Suffice it to say, according, to the respondent that "all workers of the appellant being providers o f personal security services are members of the respondent". The respondent, gave the facts giving rise to the appeal before the court as follows: (i) The appellant's refusal and prevention of the respondent and its officials from organizing their members in the appellant's employment particularly those posted to the American Embassy (ii) Correspondences addressed to the appellant on the issue of unionization are attached as Annexure 1 (a) and 1 (b). (iii) That the appellant agreed at a meeting to allow the respondent unionize its junior workers with the exception of its junior workers posted as security guards to the American Embassy owing in the diplomatic status of the embassy. The respondent declared a trade dispute which was duly referred to the IAP after many conciliatory meetings initiated by the Minister of Labour between the parties yielded no result. (iv) The point in dispute and the effort made to meet and settle the matter amicably enunciated by the respondent were as stated by the appellant in its memorandum, so, there is no need to repeat them here. However, the respondent stated that the following terms of settlement among others were proposed by the parties to wit: (a) That the union shall undertake to exempt Bemil workers from all union declared action, picketing or any other union embarked action that may have the effect of keeping the Bemil Union members out of their schedule of duty while the management undertakes to enter into dialogue with the union for honest negotiation of the workers grievance. (b) That there shall be a duly signed consent letter from each staff member of Bemil confirming intention to join the union and authorizing the management to deduct 3% of their salaries in respect of tile union". The respondent then stated that the parties could not agree on the second proposed term, consequently the settlement proceeding was deadlocked and the matter was left to the IAP to decide. Regarding the award or the IAP, the respondent stated that the IAP "directed the appellant to recognize the respondent union as representing its junior employees and that the union must be sensitive to the diplomatic premises of the American Embassy and ensure that its members are not engaged in union activities while on embassy grounds in line with the undertaking it has given to Bemil Nig. Ltd" (see pages 8-9 of the IAP award). The respondent went on to observe that the appellant did not formulate any issue for determination by this court but have argued extensively on a number or points. Therefore, based on the term of reference and the contention of the appellant, the respondent formulated four (4) issues for consideration of this court, namely: (I) Whether the respondent is entitled to recognition by the appellant. (2) Whether the categorization of workers as automatic members of a trade union is unconstitutional. (3) Whether the appellant was right in preventing the respondent union From organizing its workers, particularly, those posted as security guards of the American Embassy who are members of the respondent. (4) Whether a proposed terms of settlement which was not accepted by the parties can bind the parties as opposed to the final decision of IAP. The respondent then went on to proffer arguments ill respect of the four (4) issues it formulated for determination. On the first issue, that is, whether the respondent is entitled to recognition by the appellant, the respondent cited section 24 of Trade Unions Act Cap 437 LFN 1900 which provides for automatic recognition of workers properly identified with a particular trade union without further assurance. The respondent then submitted that by the combined effect of section 5(7) and 24 of the Trade Unions Act, membership and recognition or a trade union duly registered and specified under Part A and Part B of the 3rd Schedule of the Trade To the Trade Union Act (such us the respondent) is compulsory, referring the court to its decisions in Corporate Affairs Commission v. Amalgamated Union of Public Service Technical and Recreational Services Employees [2004j 1 NLLR (Pt. 1) 1 at 9 Ratios 12 and 13, and Trans-International Bank PIc. v. NUBIFIE (Unreported) Suit No. NIC/17/2000. The respondent further submitted that by virtue of section 8 of Trade Unions (Amendment) Act No. 1 of 1999, employees or the appellant including those posted to the American embassy are eligible and deemed automatic members of the respondent union. The respondent contended that a worker is it member of a trade union given the jurisdiction to unionize his or her trade or industry until and unless he or she renounces the union. To the respondent, the appellant’s contention that there should be a consent letter from each worker confirming intention to join the appellant union offends section 24 of Trade Unions Act 1990 which prohibits the requirement of further assurance before the respondent in this instance can be recognized. The respondent then urged the court to uphold the findings of the IAP at pages 8 and 9 of its award and hold that recognition of the respondent by the appellant as representing its workers is obligatory without further assurance. The second issue formulated for determination by the respondent is "whether the categorization of workers as automatic members of the trade union is unconstitutional". Still arguing on automatic recognition, tile respondent further contended that "the onus shifts to the appellant to show that any of the workers has exercised his or her right to renounce membership of the respondent. The respondent then argued that this is not unconstitutional as the workers can contract out in writing vide section 5(3) of the Labour Act, citing the case of Osawe v. Registrar of Trade Unions [1985] 1 NWLR (Pt. 4) 755 where the Supreme Court held that the statutory prohibition of the creation of a new union where there already exists a union in an industry was not unconstitutional as the aim of the law is to prevent the proliferation or unions. Furthermore, that in Ekong v. Oside [2004] All FWLR (Pt. 216) 559, the Court of Appeal upheld the constitutionality of the Trade Disputes Act on the basis or its lofty aim. Arising from this, the respondent submitted that the contention of the appellant in paragraph 4.15 of its memorandum that the "categorization of all workers as being automatic members of the union is clearly contrary to the provisions of the constitution" is misconceived. The respondent then urged the court to hold that this cannot be held to be unconstitutional. Additionally, that section 2 of the Trade Unions (Amendment) Act quoted in Paragraph 4.16 of the appellant's memorandum does not support the appellant's case as the element or voluntarism still prevails in workers membership of trade unions by virtue of the fact that they can contract out of the union in writing vide section 5 of the Trade Unions Act. On the third issue, the respondent submitted that the appellant in paragraph 4.6 or its memorandum argued that its objection is to the unionization of its junior employees posted to the American Embassy owing to the diplomatic status of the embassy. The respondent contended that this argument is not tenable and it cannot be used to deprive workers or their right to belong to a trade union for the protection or their interest. The respondent argued that the appellant was given an undertaking that it will exempt members or the appellant from union declared strike action, picketing or any other union embarked action that may keep them out of their schedule of duty. The respondent did not supply any evidence regarding this undertaking except for paragraph 1 of the draft copy of the inconclusive Terms of Settlement attached as Exhibit "BN4". The respondent contended that it is not violating the residence and official archives of the embassy. In consequence, that section 1 of the Diplomatic Immunities and Privileges Act Cap. 99 LFN 1990 cited by the appellant does not apply in this case. The respondent finally submitted on this issue that the recognition of the respondent cannot by any stretch of imagination violate the immunity given to the residence and official archive of the embassy and then urged the court to hold and affirm the decision of the IAP as contained at pages 8 and 9 of the award. On the 4th issue for determination, the respondent observed the willingness of the appellant to be bound by the terms of settlement as proposed in the award of the IAP. The court was referred to paragraph 4.13 of its memorandum. This, according to the respondent, cannot be binding since the parties have not accepted and agreed them. The respondent then submitted that clause 4 of the proposed terms of settlement was not accepted by the respondent and so does not form, part of the decision of the IAP. That the proposed terms of settlement cannot, therefore, overrule the final decision of the IAP. The respondent then urged the court to so hold and dismiss this appeal with substantial cost as same is lacking in merit and affirm the decision of the IAP. We have carefully considered and analyzed the memoranda and submissions of both parties in this matter. The background information, as well as, the statement of facts on points in dispute by both the appellant and the respondent are similar in all ramifications, even though the appellant stated in its letter of objection that its objection is two-fold which in fact actually encapsulated the lour (4) reliefs sought in paragraph 5(1) of its memorandum. 1 The Respondent had observed the appellant did not formulate any issue for determination by this court. That the appellant only argued extensively on a number of points. We do not share this view as the appellants objection is two-fold and in respect or which it sought for' four reliefs in its memorandum vide paragraph 5 (1). The four reliefs sought by the appellant are subsumed in the earlier reproduced four (4) issues formulated by the respondent for determination by this court. The review of the processes before this court will he along the two-fold objections raised by the Appellant to the IAP award. The objection to the IAP award is said is said to be against the unionization of members of the appellant who are employees attached to the American Embassy given the diplomatic status of the embassy. Other reasons for the exclusion or the Embassy employees were given by the appellant as earlier stated. The appellant went on to state that it was not averse to the recognition and the unionization of its junior workers. The appellant submitted that the Embassy enjoys diplomatic immunity and so is not always subject to certain rules and regulations of the country of abode. The court is urged to apply the same privileges or immunity on this issue. We take cognizance of this submission that embassies all over the world enjoy certain diplomatic immunities. The respondents argument on this subject is based on the automatic recognition of trade unions as enshrined in sections 5(7) and 24 of the Trade Unions Act 1990. Recognition, the respondent argued, is compulsory/obligatory. It was further submitted that by virtue of section 8 of Trade Unions (Amendment) Act No. 1 of 1999, employees of the appellant including those posted to the American Embassy are eligible and deemed automatic members of the respondent union. At this juncture, there is need to determine the status of the employees of Bemil Group Limited posted to American Embassy. Are they bona fide workers of the embassy? From the information gathered from the memorandum, Bemil Group got a contract from the American Embassy to provide security guards for the protection of the embassy. These guards are merely posted to the embassy and so are susceptible to be recalled or changed. They remain employees of Beil Group. They are not employees of the American Embassy. Their right to be unionized arises by virtue of being employees of Bemil, not the American Embbasy. In this regard the labour law of the country which compartmentalizes trade unions and their membership (as upheld by the Supreme Court in Osawe 's case) and then grants compulsory recognition as the respondent argued must apply to the employees of Bemil without any exception. Incidentally, only recently, the Supreme Court in The Registered 'Trustees of National Association of Community Health Practitioners of Nigeria and 2 ors v. Medical and Health Workers Union of Nigeria and ors unreported Suit No. SC.20 1/2005 delivered on January 11, 2008 affirmed Osawe 's case. But because of the sensitive nature of the job the security guards posted to the Embassy may he doing at the Embassy, there must be limitation as to their right to embark on union activities while on duty. This is what the IAP sought to capture in its award. In order words, the IAP recognized the need to give effect to the laws of the country while respecting the diplomatic status of the American Embassy. To deny the respondent the membership of those posted to the American embassy is to deny them of a veritable source of their income which comes through the check-off dues system. The laws as argued by the respondent arc very clear on recognition and the deduction of check-off dues from eligible members of a union. The argument of the appellant that there was no individual authorization as to the membership of the respondent union is not only wrong but shows a gross misunderstanding of the laws relating to recognition of trade unions and the deduction of check-off dues in the country. Eligible members of the respondent union who are posted to work at the American Embassy have the right to be treated as members of the respondent union subject only to the limitation that they will not engage in any union activity while at their duty post at the Embassy. Check-off dues in respect of them must be deducted and paid over to the respondent union except where a member, in writing, notifies the employer that he no longer wishes to have check-off dues deducted from his salary. For all these reasons, we find no reason whatsoever to disturb the award of the IAP. The IAP award is hereby confirmed. Judgment is entered accordingly. Hon. Justice B.A Adejumo President Hon. Justice B.B. Kanyip Hon. Justice M.A.B Atilola Judge Judge