ABSTRACT.
The closed shop practice is one of the earliest acts of unionism in Britain. The Nigerian legal system imported several common law principles into its own legal system. This is due to the colonial ties it shares with Great Britain, however not all practices were incorporated.
The closed shop practice is one of the practices that were not incorporated. Albeit, the closed shop practice has been made illegal in Britain and several other countries. The closed shop practice is an agreement between trade unions and the workplace to only employ members who are a part of the union. This paper examines the concept of closed shop, its pros and cons and its applicability under the Nigerian legal system.
ESSAY
A closed shop is used to refer to businesses and organizations that only employ and retain members of a labor union/trade union. Gary James in his work ethics of closed shops described it as a workplace in which all new hires are required to join the union (usually after a short period of time), and the company is required to fire any employee who refuses to pay dues (though not employees kicked out of the union for other reasons.
Basically, the term “Closed Shop” is used to refer to collective agreement between trade unions and employers, where “employees may only get and keep a particular job if they become and remain members of a specified trade union.
Though the practice is still in use in several countries, it has been made illegal in most countries. The Taft-Hartley Act of 1947 outlawed “closed shops,” in USA, The Employment Act 1990 and (section 137(1)(a) of) the Trade Union and Labor Relations (Consolidation) Act 1992 (c. 52) outlawed the practice in Britain. The decision of the European court of human rights on August 13 1981 in the landmark case of young, James and webster, that the closed shop agreement was a violation of the applicants’ right to freedom of association also illegalized this practice.
In Nigeria, The Trade union act 2004 is the primary legislation on trade unions. section 1(1) of the Trade Unions Act defines, a trade union to mean:
Any combination of workers or employers, whether temporary or permanent, the purpose of which is to regulate the terms and conditions of employment of workers, whether the combination in question would or would not, apart from this Act, be an unlawful combination by reason of any of its purposes being in restraint of trade, and whether it is a contract personally to execute any work or labor or a contract of apprenticeship.
Section 1(2) of the trade union act discusses the purpose and principal object for which trade unions may be formed. The purpose or the principal object of the combination should be to regulate the terms and conditions of employment of workers. It appears this is the predominant purpose but it need not be the only purpose of the union since section 1(2) of the Act permits a trade union to apply its funds for any lawful purpose authorized by its rules.
Section 1(3) of the act deals with some unlawful purposes trade unions shouldn’t be formed for:
Agreement between an employer and persons employed by him as to the terms and conditions of that employment
An agreement for the instruction of any person in a profession, trade or handcraft (Apprenticeship)
Agreement between partners as to their own business or any trading agreement between employers
Agreement imposing restrictions in connection with the sale of goodwill of a business (undue restraint of trade).
It is also worthy to note that there are legal limitations on membership of trade unions in Nigeria.
Section 20 (1) of the trade union act provides expressly that a person below the age of sixteen shall not be capable of being a member of a trade union and a person below the age of 21 shall not be capable of being an official of a trade union. However, the act in section 20(2) allows for a person who is 16 years and above but below the age of 21 to be precluded from being a member of a trade union where the union rules so provide.
Section 3(3) of the act also precludes Any staff recognized as a projection of management from being a member of a trade union or holding office in a trade union if such membership or holding of office in the trade union will lead to a conflict of loyalties to either the union or to management.
This was further endorsed by the court in Basil Mbanefo & Ors v Judicial Service Commission of Anambra State [2011] 26 NLLR (Pt. 73) 122 at 155, Where the court held that Deputy Directors in the Judicial service of Anambra State were projections of management for purpose of S 3(3) & (4) of Trade Uninon Act 2004.
Junior staffs are deemed to be members of trade unions unless they opt out (individually and in writing. The National Industrial Court in Nest Oil Plc v NUPENG [2012] 29 NLLR (Pt .82) 90 held that:
…. As far as our law is concerned, junior staff are deemed to be members of a union until they individually and in writing opt not to be… This means that if in truth the defendant is the proper union to unionize junior staff of the defendant, the question of them having to agree and express their interest before they can join the defendant’s union will not arise. All that will be required of them is that if they do not want to be members, they can opt out.
The law is that registration is deemed, recognition automatic and deduction of check off dues’ compulsory, being based on mere eligibility to be a member of the union in question…And senior members have to opt in to be a member of trade union, (individually and in writing).
This was judicially endorsed by the court in Aghata Onuorah v Access Bank Plc (Unreported Suit No NICN/ABJ/30/2011 judgment of which was delivered on 15th December, 2014) where the court held that: As a senior staff, the law is that the employee is not assumed to be a member of the trade union. He/she has to ‘opt in’ individually and in writing.
The reason for deeming junior staff as members unless they opt out and having senior members required to opt in was succinctly captured by Kanyip, J (as he then was) in Eyiaromi Oladele v Attorney General, Lagos State (Unreported Suit No NICN/LA/102/2013 Judgment of which was delivered on 6th June, 2017 para 43 B). Kanyip J held that:
“The orthodox view is that labor law itself is meant to protect workers who are more vulnerable. Even at this, some workers are certainly more vulnerable than others (the reason why the law has been couched in this way – presuming membership of trade unions for junior staff to enable them to be protected by the union thereby allowing them to ‘opt out’ for those who do not want to be members and senior employees/staff who the law does not deem to be members of any trade union unless they specifically opt to be members thereby allowing them to ‘opt in’)”.
However, the law is settled by the provisions of section 12(4) of the trade unions act which provides that:
‘notwithstanding anything to the contrary in this act, membership of a trade union shall be voluntary and no employee shall be forced to join any trade union or be victimized for refusing to join or remain a member’.
This provision illegalizes the closed shop principle in Nigeria and as such the practice is also illegal in Nigeria. This is in accordance with the provisions of section 40 Constitution of the Federal Republic of Nigeria 1999. Section 40 CFRN provides that Every person shall be entitled to assemble freely and associate with other persons, and he may form or belong to any political party, trade union or any other association for the protection of his interests.
GARY JAMES JASON also likened this principle to the principle found in the common law on contracts, where common law held that contracts to compel someone to perform some job cannot be enforced; this smack too much of slavery. Suppose an opera singer agrees to sing on a given night, signing a contract to do so and accepting partial payment and then refuses to perform. The managers of the opera house cannot sue to compel the singer to sing.
They can sue the singer to get their advance back, to get compensatory damages for lost revenues, and perhaps even to get punitive damages—but they cannot compel the singer to perform. This is also described as the court not forcing an unwilling person on another.
There are arguments in support of this practice. Desjardins in his work ethics of … described employees who were unwilling to join the trade unions but reaped the benefit of the collective bargaining process as free riders. There’s also the unequal power argument that management typically has the upper hand and is in in a position to say “take it or leave it” to the individual worker, and the worker will have to take the unfavorable offer, only if there is a union to represent the workers will they have a equal chance in negotiation, and unions can exist only when there is solidarity among the members especially since there is strength in Numbers. but this argument is flawed as a union that has majority of the workforce is strong enough and having 100 percent membership is not necessary.
The freedom to contract is another argument in support of the closed shop practice. The argument holds that employers and trade unions should be free to enter into any form of contract they want and potential employees have the liberty to accept or reject the offer, however this argument is also flawed as it would be an opportunity for parties to introduce obnoxious terms under the guise of freedom to contract and the potential employees who really need jobs may be forced to subject themselves to these terms.
People cannot also be allowed to sell themselves into slavery or sign off their fundamental rights. moreover, unions often use strikes and sometimes harassments to make the employers acquiesce their requests.
The arguments against closed shop comes from the natural rights consideration. People naturally have the right to choose whether they want to be a part of something or not so far this organization falls within the scope of law. Closed shops manifestly violate the right of the employee to freedom of association and in the absence of strong compelling ethical reasons, a person should be able to join or not to join, support or not to support, a trade union.
In Conclusion;
The closed shop practice is an agreement between the trade unions and employers to only employ members of their union and as such, the employment of all employees is tied to their membership of the union. There are arguments for and against this practice however it has been made illegal in several countries including Nigeria. The essay examine the concept, its pros and cons and its applicability under the Nigerian legal system, making recourse to sections of the Trade union act on membership.
