Labour law: Trade union agreements
Employment law in Nigeria
Although a contract of employment is a personal contract between the employer and his employee, situations arise where trade unions might intercede on behalf of the employee or employer to discuss the terms of employment. The discussion of the terms of employment between the trade union and the employer/employee is called collective bargaining, while the agreement they reach is called collective agreement. What they have collectively agreed goes on to affect the individual contract of employment of the worker. The next question to ask is, are collective agreements enforceable?
The issue is not yet settled as there are conflicting arguments. Some have argued that collective agreements are not binding on the parties, while some others have proposed arguments to the contrary. Professor Kelvin Freund is of the opinion that collective agreements should not be binding on the parties because at the time of negotiation, the parties did not have the intention to create legal relations. Therefore, collective agreements should only be binding in honour. He also argued that there is no privity of contract between the employer and the trade union, as the trade union is not a party to the contract between the employer and the workers, and the workers are not privy to the agreement between the employers and the trade union. This view was applied in the case of Ford Motors Co. Ltd V. AUEW (1969) 2QB, 303.
On the other hand, professor Wedderburn is of the opinion that collective agreement should be binding on the parties. This opinion was applied in National Coal Board > Galley (1958) 1 All ER, 91, where the court held that once a collective agreement has been incorporated into the contract of employment of the individual worker, it should be binding on the parties. This argument which is supported by professor Emiola has its basis on the incorporation of the collective agreement into the individual contract of employment. The various ways in which collective agreements can be incorporated into the contract of employment are:
- By express incorporated: this occurs where the parties expressly include the terms of the collective agreements to form part of the terms of the contract of employment.
- By implication: this has to do with looking at the intention of the parties in order to see whether a collective agreement has been incorporated into the contract. It has to do with whether the parties have knowledge of such collective agreement and did not object to it. If they had knowledge and did not object to it, then there is a presumption of an intention to create legal relations.
Trade usages and customs is also another way of impliedly incorporating a collective agreement. In implying an incorporation of a collective agreement based on customs and trade usages, such customs must be very clear and must not contradict the express terms of the contract of employment.
The principle of agency is also another way a collective agreement can be incorporated. This is because under the law of agency the principal is basically liable for the actions of his agent, especially if the act of the agent is within the scope of his authority. Therefore, whatever the trade union does as an agent of the worker/employer is binding on the worker/employer.
Incorporation of collective agreements can also be implied from the conduct of the parties.