ADVANCING THE RIGHTS OF DOMESTIC WORKERS TO COLLECTIVE REPRESENTATION
INTRODUCTION
Just as there are debates about how best to safeguard and protect the rights of citizenship as they apply in the political arena, so also are there debates about how best to protect the rights of citizens as they apply in the workplace, especially their right to be recognized collectively and most especially, as pertains to domestic servants. The State exists in order that its citizens may realize in their lives the best of which they are capable; hence, citizens where provided with work (as right to work has not well being defined by the courts) have in accordance "rights in work".
The socio-economic conditions of the capitalist economy, particularly those of the developing nations are such that the individual employee commences work under conditions which ordinarily are not really acceptable to him, but which he accepts often because he has no better options in the circumstance. Hence, it is only through collective efforts of the employees after they have commenced work that they enhance or press the employer for better working conditions - collective efforts being universally acknowledged to enhance strength and as reached through compromise, is seen as fair and equitable, despite the merits or otherwise of the demands.
Domestic worker rights is a sensitive subject and numbers regarding its magnitude play an important role in global policy-making and advocacy efforts. Employing a person to undertake domestic household chores is an integral part of societal tradition from time immemorial. They undertake all sorts of work in the household like child-minders, maids, cooks, cleaners, gardeners and general house-helps. Some domestic workers work on a daily basis (coming and going to the employer's house everyday while living at their own home) while others are so called "live-in workers" and live with the family that employs them. Among domestic workers it is widespread to find young children working as child domestic workers (CDW), a practice that, due to economic and social changes as well as cultural factors, is becoming increasingly common in many countries.
The concept that domestic workers have 'independent rights' of their own is an unfamiliar one. Instead, it is often common for employers of domestic workers to be seen as looking after them and providing them with a place to live. As such, the circumstances of exploitation or even servitude (in the case of ruthless employers) is perceived as natural, or at least acceptable, both by employers and domestic workers, and by the society in general.
This perspective has only begun to be challenged recently, mainly as the outcome of the emerging response to the domestic worker problem worldwide. In the last decade, the issue of domestic worker rights has gradually become more visible on the international platforms where general labour issues are discussed. Now there is a far higher level of awareness, mainly due to the pioneering work of some country-based non-governmental organizations (NGOs), researchers, renowned social workers. International organizations have also played an important role in the advocacy for the recognition of domestic worker rights. They have given an international profile to the issue through publications, lobbying, helping the development of networks and bringing those organizations that are active on the ground together in order to share experiences and develop a common agenda.
As a result of the above, in many jurisdictions, domestic workers have recently come to enjoy some of the rights which inure to the ordinary worker. In Nigeria for instance, the mechanism of the fundamental rights provisions as contained in the Constitution have continued to play a vital role, to an extent in safeguarding the rights of domestic workers, who like other citizens, are entitled to judicial redress in cases of violation or anticipated violation of their fundamental rights.
Inspite of these laudable achievements, it is pertinent to note that the rights of domestic workers to collective representation and bargaining is yet to be recognized both socially and legally. Infact, the principal labour legislation in most jurisdictions, Nigeria inclusive, creates a dichotomy between domestic workers and other workers, and their provisions do not apply to domestic workers. Several factors are responsible for this ugly situation, and the aim of this work therefore, is to explore the propriety of recognizing the right of domestic workers to collective representation cum collective bargaining, generally, using the Nigerian situation as a reference point.
THE CONCEPT OF RIGHT
The word "right" has its origin in the Latin word "rectus" which in the noun form means that which a person has a just and valid claim to. A right may be legal or moral. Where such rights are recognized and protected by law, it is termed a legal right.
The Osborn's Concise Law Dictionary, quoting Salmond defined right from a positive perspective as, "An interest recognized and protected by the law, respect of which is a duty and disregard of which is a wrong." Hence, such legal rights are protected by the positive law (lex lata), while moral rights are claims which are not protected by the positive law (lex feranda).
The concept of right from the legal point of view can also be justified in the famous Latin maxim, "ubi jus ibi remedium"
which translates to "for every right, there is a remedy". This principle of law was applied in the ancient case of Ashby v White
as far back as 1703. This principle explains why certain rights are not enforceable at law no matter the magnitude of the damage or harm done, and such person to whom such harm was caused cannot in law be said to have suffered any damage known to law. This is the jurisprudence behind the two legal maxims: "damnum sine injuria" and "injuria sine damno"
which literally translate as "damage without legal injury" and "legal injury without damage" respectively. For the former, there is no remedy at law, no matter the degree, while for the latter, there is a remedy.
There are some rights which belong to the society or community, and which the individual enjoys as a member or otherwise citizen, and there are some other province of rights which are within the sphere of the individual. Such rights within the sphere of the individual are better regarded as "human rights". Human rights are rights inherent in one by virtue of being a human being. They are not the product of a particular juridical system, but are external to it. They are hence, not created by any law but rather are guaranteed or protected by the law which explains the reason why they are couched in the negative.
Human rights guaranteed by a positive law are the enforceable rights, while those not yet guaranteed are still on the moral planes and remain aspirations to be attained The above proposition is supported in the definition of human right by Prof. Eze Osita in his work "Human Rights in Africa: Some Selected Problems"
wherein he defined right as representing demands or claims which individuals or groups make on society of which are protected by law and have become part of lex lata while others remain aspirations to be attained in future.
It has been suggested that human rights, where entrenched in a written constitution, are called "fundamental rights".
This proposition has received judicial approval in the case of Ransome Kuti & Ors v A.G - Federation
wherein the apex court, per Oputa, JSC said: "Not every civil or legal right is a fundamental right. The idea and concept of fundamental rights both derive from the premise of the inalienable rights of man- life, liberty, and the pursuit of happiness. Emergent nations with written constitutions have enshrined in such constitutions some of these basic rights or fundamental human rights. Each right that is thus fundamental is clearly spelt out."
Contrary to what the "Positivists" would believe, human rights are derivatives of natural law and hence universal. This view is supported in the definition of human right by the Osborn's Concise Law Dictionary (10th edition)
and by the dissenting opinion of Justice Tanaka in the South West African cases (2nd phase) wherein the learned Justice opined that "A State or States are not capable of creating human rights by law or by convention; they can only confirm their existence and give them protection. The role of the State is no more than declaratory… human rights always existed with human being. They existed independently of, and before the State. Alien and even stateless persons must not be deprived of them… if a law exists independently of the will of the State and accordingly, cannot be abolished or modified even by its constitution, because it is deeply rooted in the conscience of mankind and of any reasonable man, it may be called natural law in contrast to positive law."
Provisions of the constitution of some countries characterize fundamental rights and freedom as "inalienable", "sacred", "eternal", "inviolate" etc. Therefore, the guarantee of fundamental human rights and freedom possesses a super-constitutional significance. This view is further supported by the decision of the Supreme Court in Ransome Kuti v A.G - Federation (supra)
wherein the erudite Justice of the Supreme Court, Esho Kayode stated that, "It is a right which stands above the ordinary laws of the land and is antecedent to the political society itself. It is a primary condition for civilized existence."
It follows from the above, that every civilized-democratic human society should without more, guarantee and safeguard such rights.
The importance of human rights vis-à-vis the society and other human beings in the society has led the international communities to enter into different agreements in form of charter, conventions, treaties etc for the protection of such rights, some of which are: Universal Declaration of Human Right (UDHR), The International Covenant on Civil and Political Rights (ICCPR), The International Covenant on Economic, Social and Cultural Rights (ICESCR), African Charter on Human and Peoples' Rights (ACHPR), OAU Charter on the Rights and Welfare of the Child, United Nations Conventions on the Rights of the Child etc; the first three are together referred to as the "International Bill of Right".
These local and international concerns are evidence of its importance both within and without each sovereign entity and such rights should be jealously guided by every member State and any law which tends unjustifiably to erode them should not be allowed to see the light of the day because when such rights are removed from human beings, they become less human. They are part of the very nature of a human being and attach to all human beings everywhere, just as much as do his arms and legs.
COLLECTIVE REPRESENTATION/BARGAINING
Collective representation/bargaining is a secondary aspect of industrial relations. It is supposed to supplement the primary aspect evinced in the individual contract of employment. It emerged as a result of the inequality between the bargaining power of the individual employee and the employer. Thus, the main purpose of collective representation is to provide a forum for employees in a combine, to collectively wield such influence as is necessary in a collective bargaining process towards obtaining better conditions of employment from their employers. Collective bargaining applies to those arrangements under which wages and conditions of employment are settled by bargaining in the form of an agreement made between employers or associations of employers and workers or workers organization
The origin of the word "collective bargaining" is credited to Beatrice Webb or to both Sydney and Beatrice Webb. The word "collective" presupposes more than one. Hence, collective representation is an assembly and association of more than one person with same interest pursuing one cause. Since collectivity involves elements of association and assembly, it can be rightly argued that it is an offshoot of the right in Sec. 40, CFRN 1999.
Often times, collective representation involves a bargaining process especially in the field of labour, the end product of which is usually collective agreement. The process is called bargaining because each side is able to apply pressure during the course of negotiation. It is in this framework that the workers' combine, otherwise known as trade unions, are most relevant. There, the collective efforts of a combination of workers are used to enhance their bargaining powers that seemed initially non-existent at the individual level.
Hence, collective bargaining means "the process of arriving or attempting to arrive at a collective agreement" and collective agreement means "an agreement in writing regarding working conditions and terms of employment concluded between-
(a) an organization of workers or an organization representing workers (or an association of such organizations) of the one part; and
(b) an organization of employers or an organization representing employers (or an association of such organizations) of the other part."
Also, an employer may be defined as, "any person who has entered into a contract of employment to employ any other person as a worker either for himself or for the service of any other person…"
It follows therefore, from the above definitions that the parties to collective bargaining/agreement are workers represented by an organization or an association of such organization, usually trade union and organization of employers or association representing such organization; the subject matter from the above definition must be the working conditions and terms of employment.
Since the essence of collective bargaining is reaching a collective agreement, the above definitions presuppose that there must be a subsisting contract of employment between the parties to the agreement. The definitions of an employer and employee/worker is virtually the same in all the laws relating to labour and industrial relations, and such employers and workers that are excluded from such definitions cannot enter into collective agreement.
Generally, collective representation/bargaining provides a forum for balancing the interests of workers in industrial relations which usually are represented by trade unions and which representation is possible and lawful. Collective representation being a "fallout" of the right to freedom of assembly and association can properly be said to be those rights of an employee referred to as "rights in work" by H.J. Laski in his work "A Grammar of Politics (4th ed.)."
He postulates that such rights are of two types, namely:
- Right of a material kind, such as the right to be paid an adequate wage and the right to reasonable hours of work.
- Rights of non-material kind, such as right to be concerned with the government of the industrial unit.
He argues that employees as an industrial unit must somehow be given the power to share in the making of those decisions which affect them.
However, inasmuch as Laski's concept of material and non-material rights in work have its shortfalls, it is helpful in expounding the rights of employees, and it is therefore, herein argued that such rights also extend to embrace the right to be protected from the arbitrary and unfair treatment from the employer which in effect is the essence of collective representation in industrial relations.
It is herein important to note that collective representation is done at different levels. In Nigeria for instance, the four major levels are: enterprise collective bargaining, industrial collective bargaining, State collective bargaining and national collective bargaining. However, herein, we are concerned with industrial bargaining.
DOMESTIC WORKERS UNDER THE LAW
The Blacks Law Dictionary
simply defines a domestic servantas, "a household servant." It also defines a household as,
"belonging to the house and family; a family living together; a group of people who dwell under the same roof." It follows, inter alia, that a domestic worker is any servant who belongs to the particular house and family, and is employed to perform one form of household chores or the other. This view is supported by the definition offered by the Oxford Advanced Learners Dictionary of Current Englishthat a domestic worker is, "a servant who works in somebody's house, doing the cleaning and other jobs.
Similarly, the Labour Act
defines a domestic worker as, "any house, stable or garden servant employed in or in connection with the domestic services of any private dwelling house, and includes a servant employed as the driver of a privately owned or privately used motor car."
The definition given by the Act is all encompassing. It follows that once a person is employed in connection with the domestic services of a household, he is rightly a domestic worker.
Domestic workers perform a variety of household services for an individual or a family, from providing care for children and elderly dependants to cleaning and household maintenance, known as housekeeping. Responsibilities may also include cooking, doing laundry and ironing, food shopping and other household errands. They may thus, be considered a "helping hand" in the household or be entirely responsible for the running of various activities related to the household.
Generally, contract of employment can be divided into contract of service and contract for service.
In the former, the employee is regarded as "servant" and an "independent contractor" in the latter. The distinction between the two is aptly stated by Denning L.J in the case of Stevenson, Jordan and Harrison Ltd. v Macdonald and Evans Ltd.
The contract of service is further divided into simple contractual relationship of master and servant under the common law (to which domestic workers belong) and contract of employment with statutory flavor. See the case of The Registered Trustees of the Planned Parenthood Federation of Nigeria v Shogbola.
The contract of service under the common law is guided by the terms of contract of the parties which may be express or implied; and where there is none, is guided by the customs and usages of the type of work in which the servant is employed. Hence, at common law, the employer has the right to hire and fire at will and is under no obligation to give reasons for the determination thereof; the only remedy being an action in damages where the determination is wrongful. An order for reinstatement cannot be made, since dismissal under the law is an accomplished act, (fait accompli). This based on the principle that a willing servant cannot be imposed on an unwilling master- see NEPA v Adesaji.
Therefore, under the common law, it does not matter whether adequate notice was given or not; once done (i.e. determination), it is accomplished. Where the contract provides no period of notice, a reasonable notice should be given. However, this common law principle has been qualified in this aspect by the Labour Act (Supra)
in its sec. 11(2)
to the effect that such reasonable notice cannot be less than that in the Act.
It is pertinent to note that since the Act does not apply to domestic workers, there contract is still guided by the principles of common law. As such, it has been held under the common law, that the employment of a domestic worker is determinable under a one month notice - see
Mandrides v Tangalakis.
The type of unchecked power wielded by the employer under a contract of service is better illustrated in facts of the case of Turner v Mason.
However, though domestic workers are subsumed under the division of contract of service, the undue distinction maintained by the laws which are meant to douse the effects of the common law is worrisome. Hence, the distinction under the contract of service is divided into two, namely "domestic workers and others".
Even at risk of repetition, it is pertinent to point out that our Law-makers have not deemed it conceivable, let alone practicable to include domestic workers in the definitions of some laws meant to protect workers and their rights in the field of labour. Such exclusion is evident in the definition of the type of employment to which the law is meant to apply. The Labour Act (Supra), for example, excluded domestic workers in its territory by its paragraph a of section 91
by the use of the words "any person otherwise employed than for the purpose of the employer's business".
Furthermore, the Workmen's Compensation Act (Supra)
is on the same trail by adopting the same exclusion clause in the Labour Act
in its sec. 1(2) (b),
and on its footsteps is the Trade Dispute Act (Supra) which in its sec. 48 defined trade dispute to mean "… any dispute between employers and workers or between workers and workers…"
(emphasis mine).
Consequent of the above is the arbitrary power wielded by the masters of domestic workers. In most cases, domestic workers routinely work 16-18 hours a day, every day of the week; are denied holidays; are underpaid or not paid at all for long periods; are abused, harassed, confined in the house, restricted from contact with family members and friends, and contract is terminated without notice. Migrant domestic workers are particularly vulnerable to exploitation and abuse, with threats of deportation, discriminatory labour laws, language barriers, withholding of documents by employers, and predatory recruitment agencies. Furthermore, the type of work which the employment covers is not well defined such that the servants will be reduced to a mere slave in the name of employment and most regrettably is the fact that security of employment is not guaranteed.
The oversight of these "third class citizens" by the legislature is manifested in the combined effects of Sections 65 & 88 of the Labour Act
which delegated the power to make regulations guiding the "engagement, repatriation or suspension of domestic servants…"
where such should ordinarily be handled by the legislature themselves and not delegating such important matter to the minister who probably is a professional and not an expert in the art of law-making, and to cap it all, no such regulations have being made till date.Cannot such gross negligence be treated as the violation of the fundamental right of dignity to human person in our Sec. 34 CFRN 1999 by the "almighty legislature" and the minister concerned in view of the indignity of work and human person suffered by domestic workers and in the imperative of their negligence of duty?
TRADE UNIONISM
AND DOMESTIC WORKERS VIS-A-VIS THE RIGHT TO FREEDOM OF ASSOCIATIONIn every democratic political setting, the validity of any law is tested by a certain superior law termed the "grundnorm" or by a certain superior body. Countries like Britain practice "parliamentary supremacy" which is the principal feature of an unwritten constitution. The notion of parliamentary supremacy is that the parliament can use ordinary law-making process to repeal or amend the constitution or any other law without recourse to any other body, institution or instrument. In other words, the parliament is superior over the law and its action cannot be questioned by anybody. In the words of Hood Philips,
"positively this means that parliament can legally pass any kind of law whatsoever; negatively, it means that there is no person or body whose legislative power competes with it or overrides it."
The notion of parliamentary supremacy precludes judicial review with the result that no court or tribunal has the effrontery to pry into legislative action and no parliamentary act can be voided. In the words of Prof. A.V. Dicey, "parliament has the right to make and unmake any law whatever, and no person or body is recognized by the law of England as having the right to override or set aside the legislation of parliament."
However, the only limitation being that the parliament cannot pass any law which has the effect of binding itself or its successors - see Ellen Street Estate Ltd. v Minister of Health.
However, in most countries like Canada, South Africa, Ghana and America in the fore-front unlike England practice constitutional supremacy. In the American jurisdiction, it has been held that a law violating a constitution established by the people could be nullified by the judges - See Marbury v Madison.
Also, Nigeria as a State practice constitutional supremacy and this has being enshrined in Sec. 1, CFRN 1999
and hence, the constitution as made by the people is supreme and thus the "grundnorm".
It then follows that, in Nigeria, the validity or otherwise of any law or act is tested against the background of the constitution; and any law inconsistent with it is void to the extent of the inconsistency.
Consequent therefore, any right created or guaranteed by the constitution cannot be derogated from by any act of any person, law, or body except by the constitution itself. It is noteworthy that two set of rights have being provided in the constitution, namely "Fundamental Objectives and Directive Principles of State Policy"
otherwise called socio-economic rights in Chapter II of the constitution
though regrettably is not justicible by virtue of Sec. 6(6)(c) 1999 CFRN;
and "Fundamental Rights"
otherwise called political and civil rights in Chapter IV of the Constitution.
Since such rights are protected and guaranteed by the constitution, and whereas the constitution of a country has effect within the confines of the country, it follows that as an issue of law, these rights provisions as contained in the Constitution generally apply to all citizens of Nigeria, irrespective of age, sex, ethnicity, etc. It inures to them by virtue of the fact that they are human beings. Any derogation from the rights therein contained must be allowed by the Constitution itself, otherwise any law permitting such "inconsistent derogation" is null and void to the extent of the inconsistency. Thus, these aforementioned fundamental rights are inalienable and inviolate, which implies that they are not to be tampered with except in circumstances allowed by the Constitution.
Thus, the incidence of citizenship is that it confers on a citizen (no matter the status) the highest right capable of being acquired in the community in return for his absolute allegiance. The concept of such rights is that all men are equal in respect of their rights and none shall be given undue advantage over the other – see Article 1 UDHR; Article 3 ACHPR.
One of such rights is the right to organize, to collectively bargain, to form and join unions and to select representatives of one's own choosing are fundamental human rights. These 'freedom of association' rights allow workers to realize other rights including; decent work, health and safety, fair wages, fair working hours, fair conditions and freedom from abuse and intimidation. Without that right, all others are unachievable.
As a general rule, any group of workers have the right to establish and join trade unions. Indeed, by virtue of Sec. 40, CFRN 1999, "Every person shall be entitled to assemble freely and associate with other persons, and in particular he may form or belong to any political party, trade union or any other association for the protection of his interests." No doubt that this is a guarantee of a fundamental right to form or belong to a trade union of one's choice. Any person who alleges that his right to form, join or belong to a trade union of his choice has been, is being or is likely to be breached may apply to a High Court in the State in which the infringement is threatened or has occurred for redress.
However, it is pertinent to note that the constitutional right to form or belong to a trade union of one's choice is not an absolute one. The Constitution provides for circumstances in which there may be derogation from it. The proviso to
Sec. 45, CFRN 1999
provides that nothing in Sec. 40
shall invalidate any law that is reasonably justifiable in a democratic society – (a) in the interest of defence, public safety, public order, public morality or public health; or (b) for the purpose of protecting the rights and freedom of others. The effect of the foregoing proviso has being interpreted by the Supreme Court in the case of INEC v Balareba Musa & Ors.
It follows therefore, that any derogation from the constitutional right to freedom to form or join a trade union, otherwise known as the right to collective representation, must be prescribed by law and that such law must meet the criterion stipulated in Sec. 45 (supra). Clearly, any attempt to prohibit an employee from joining or forming a trade union which is not based on any law that meets the criterion above stated is an infringement of the employee's fundamental right.
There are a number of statutory provisions which derogate from the constitutionally guaranteed right to collective representation. Sec. 11
of the Trade Unions Act (supra) provides that it is not lawful for persons employed in certain establishments to combine, organize themselves or be members of a trade union for purposes of employment but that they may set up joint consultative committees in their establishments. These establishments are the Nigerian Army, Navy or Air Force, the Nigerian Police Force, The Custom and Excise Department, The Immigration Department and the Prison Services, the Customs Preventive Service, the Nigerian Security, Printing and Minting Company Ltd., the Central Bank of Nigeria, the Nigerian External Telecommunications Ltd., the Federal Fire Service, every Federal or State government establishment the employees of which are authorized to bear arms, and any other such establishment as the Minister may from time to time by order specify.
Also by Sec. 3(3), Trade Unions (Amendment) Decree No. 86 of 1979, no staff recognized as a projection of management structure of any organization shall be a member of or hold office in a trade union (whether or not the members of that trade union are workers of a rank junior, equal or higher than his own) if such membership of or holding of such office in the trade union will lead to a conflict of his loyalties to either the union or the management. By Sec. 3(4),
a person may be recognized as a projection of management within a management structure if his status, authority, powers, duties and accountability which are reflected in his conditions of service are such as normally inhere in a person exercising executive authority (whether delegated or not) within the organization concerned. It is pertinent to note that there is no blanket prohibition of membership of trade unions for all management staff. Clearly, the essence of the provision is to prohibit such membership where it will lead to a conflict of loyalty either to the union or employer. See the case of National Union of Petroleum and Natural Gas Workers v. NNPC.
Again, by Sec. 19, Trade Unions Act (supra),
a person under the age of 16 years is prohibited from being a member of a trade union but a person 16 years old or above but below 21 years may be a member of a trade union unless the rules of the union provide otherwise.
Note that outside the purview of these statutory derogations, the constitutional right to collective representation remains valid and enforceable in favour of any worker.
It can rightly be argued that the essence of the provisions of Sec. 40, CFRN 1999 is to guarantee the assembly and association of some combined unit through the means of collective representation, who ordinarily as individuals on their own will no make substantive effect in their pursuance of their interests. As aforesaid, this right being a fundamental human right is universal and most importantly as has being guaranteed by the constitution applies with all equal force to every Nigeria citizen. It is important to note that the opening words of the provision is "every person" and hence, applies as well to domestic workers by virtue of their being included in the word "person" and citizens to which the constitution applies and more so, by virtue of their beingness.
Hence, it is without more unarguable that this constitutional provision guarantees the right of domestic workers to a collective representation and such cannot be taken away by any law, agreement or institution since it is guaranteed by the constitution being the "grundnorm" and such right being inalienable. Therefore, any attempt to its removal by any act, agreement or law is inconsistent with the constitution and hence null and void to the extent of the inconsistency – See Sec. 1 (3) 1999 CFRN.
Trade unionism as a means of collective representation is a "fallout" of the right to freedom of association as it concerns labour. Hence, trade unionism is regulated by the Trade Unions Act (Supra).
It is fundamental to point out that the constitution though the "grundnorm" is just a frame-work on which other laws can be built. That is to say that the constitution does not in its entirety provides for the complete regulation in every sphere of life. It merely sets a mark which other laws cannot cross and confers such powers to make laws to the legislature not inconsistent with it, which power the legislature may delegate to body or person to make regulations in event of the technicality of the area involved.
Hence, such other laws as are exist help to amplify the provisions of the constitution to the extent that they are not inconsistent with the constitution. And on this premise, the Trade Unions Act
(Supra)
was enacted to regulate the right to freedom of association as it concerns labour.
More so, it is important to point out that the constitution in guaranteeing the right in Sec. 40
made use of the word "trade union". The specific mention of the right to form or belong to a political party and trade union is important because these institutions play indispensable roles in a democratic society; while political party provides the apparatus for succession in government, trade union constitutes a counterpoise to the overwhelming strength and advantage of the employer in relation to the employee - a balancing force in the power disequilibrium.
This proposition is supported by definition of trade union and worker in the Trade Unions Act (Supra)
which defined 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 its purposes do or do not include the provision of benefits for its members"
and Worker means, "any employee, that is to say, any member of the public service of the federation or a state or any individual (other than a member of any public service) who has entered into or work under a contract with an employer, whether the contract is for manual labour, clerical work or otherwise, expressed or implied, oral or in writing, and whether it is a contract personal to execute any work or labour or a contract of apprenticeship."
It follows from the above definition of trade union that the essential elements are combination of workers or employers. It is a trite law that a law is exclusive in itself unless it is a subsidiary legislation.
Hence, whatever term that is defined by a particular law is meant only to apply to that law and not any other (except where expressly stated to have such extra-territorial effect); and it is also trite that no law can purport to legislate for another. Therefore, since the definition of a worker in the Act is meant to apply to the Act only, it follows that other definitions in other laws excluding some types of employment cannot apply to the Trade Unions Act
and since the definition embraces a wide range of employments, namely domestic service, it follows that domestic servants are included in the definition. It is important to note that the use of the words "or otherwise" in the definition, where interpreted in the ejusdem generic sense should include domestic service.
However, though the opening words of the interpretation section is "In this Act, unless the content otherwise requires…" it should be noted that nothing in the Act can otherwise be required to assign different meaning to the word "worker" than that given to it in the Act.
However, it is unfortunate that "employer" is not defined in the Act. However, whatever definition that is to be assigned to "employer" under the Act should not be inconsistent with the meaning assigned to "worker". Hence, other definitions of an "employer" in other Acts should not indiscriminately be assigned to "employer" under the Act where it will be inconsistent with the meaning of a "worker" in the Act. This is on the premise that such definitions are meant to apply to such Act only and such employment regulated by it, and if brought into the Trade Unions Act
will be absurd because the Act is meant to apply to different employments in pursuance of the right to freedom to lawful assembly and association in Sec. 40, 1999 CFRN.
Furthermore, even assuming that the definition excludes domestic service, it will be inconsistent with the constitution in the view of the right of domestic workers to combine in the protection of their interests since the Act is an Act made in order to amplify and give effect to the constitutional right to freedom of association in the field of labour and since if no such union is registered under the Act, it lacks legality and cannot be recognized by the employer; hence, no such discrimination/exemption can be said to be reasonably justifiable in a democratic society like ours where everyone has the right to assemble and associate.
CONCLUSION/RECOMMENDATION
Human beings are born in a community and organize themselves in communities. This element of communion in man has led to formation of different bodies both at local and international levels for the enhancement of a better environment. This spirit of communion led to the formation of different unions and associations by different persons with the same interests in the protection and pursuit of such interests. This concept of spirit of communion unarguably is innate in man and its recognition by the local and international communities is either an evidence of its popularity or unpopularity; and this spirit has led to the preservation/guarantee of such rights inherent in man as human rights.
The combined effects of Sec. 40 1999 CFRN and Articles 10 & 11 ACHPR
guarantee the right of domestic workers to collective representation and in the form of trade union. The freedom to associate is very essential to collective representation/bargaining because it is prerequisite to the formation of unions. It is only through such unions and associations that workers can present a common and united front to the employers. The articulation required by the workers to be organized for an effective collective representation can be provided by unionization which in turn is predicated on the right to freedom of association.
Where such right is denied, collective representation is impracticable. The constitution having provided for such right to collective representation in the form of trade unions, every citizen therefore has such right inclusive of domestic workers. Hence, it is our contention that domestic workers not only have the right to collective representation but can also do so in form of a trade union duly recognized by the law.
Our contention is predicated on the fact that there is nothing, both in the Constitution and in the statutory provisions permitting derogation prohibiting a domestic worker from forming and/or joining a trade union. Indeed, any such provision in any law cannot possibly be said to have met the criterion for derogation as prescribed by the Constitution, and thus, is null and void. It follows there fore that under the present Constitutional framework operational in Nigeria, any person (domestic worker inclusive) has a right to trade unionism and collective representation. This is without prejudice to the fact that any person (domestic workers inclusive) below 16 years of age lacks the capacity to form and/or join trade unions.
As a matter of public policy, it is also desirable that domestic workers be allowed to form and/or join trade unions, after all, public policy dictates that the rule of law should prevail over and above the whims and caprices of the regime of the rule of force or terror. It is also a cardinal principle of the rule of law that all men be subjected to the ordinary laws of the land as administered by the ordinary law courts.
A voyage of discovery into the society will reveal that the most abused, most deprived, most dehumanized and most degraded members of the labour force are those employed in domestic services, even though their services more or less provide for an efficient working of the overall labour force, since by relieving their employers of what would ordinarily have been their duty, their employers have enough time to contribute to the general performance of the societal system. Thus, it is no gainsaying the fact that domestic workers constitute a vibrant and essential force in the overall human resource capital of every society. They are exposed to all sorts of dehumanizing treatments like sexual abuse, poor conditions of work, infringement of their fundamental rights, etc. All this is made possible by the fact that most people in that class are illiterates and from poor backgrounds. Even where they are aware of their rights, they lack the will and resources to enforce same, and like sheep led to the slaughter, they must accept whatever comes their way in silence. Most times, their employers feel that they do these workers a favour by employing them.
It is trite that a right is worthless if the person entitled to it cannot enforce it. The case of the domestic workers is no exception. Most of these actions by their employers amount to an infringement of their rights, but on individual basis, enforcement of these rights seem somehow difficult. If the bargaining power of the employer is recognized by law to be higher over and above that of his workers (most of whom are educated and enlightened) hence the need for trade unionism, how much more the discrepancy in bargaining power between the usually illiterate, naïve and unenlightened domestic worker on one hand, and his usually literate, enlightened and callous employer on the other. The only way by which this gap can be breached is for the right of these domestic workers to collective representation to be recognized. In that event, they can be able to pull their individual resources together, both in terms of knowledge and finance, towards fighting to enforce their rights like other workers. Until this is done, these people will continue in their present state which is best described in these words, "a workman unworthy of his hire".
However, it is important to point out that the guarantee of the right to freedom of association in the form of collective representation does not in itself confer any positive right that the parties must enter into collective agreement, and even if where entered into, it is not binding at law. In view of this fact therefore, we recommend that a law should properly be made to regulate the employment of domestic workers as in other areas of employment. To this wise, the Labour Act
should be amended to include domestic workers; and in view of the importance the matter, such power delegated to the minister to make regulations guiding the employment should be revoked. It should rather be dealt with in the Act itself. This is because such treatment, insecurity of employment and the type of jobs undertaken by domestic workers amount to subjection to degrading treatment and servitude by the master, in breach of the right to dignity of human person.
As much as it can be argued that domestic workers are doing ordinarily what they undertook under the contract to do and that in as much as they undertook that voluntarily it debars them from complaining. It rather should be appreciated that the right to dignity of human person is not only a human right, but also fundamental and inalienable, hence, it cannot be contracted out of. No matter what the terms of the contract may be, this right overrides, and any unchecked acts of the master by way of collective representation and laws regulating the employment will definitely lead to the violation of these inherent rights of man.
No comments:
Post a Comment