Only Industrial Court can recall sacked workers
Are the banks alleged to be laying off their workers members of the Nigeria Employers’ Consultative Association?
Not all the banks are members of NECA. The reason we have risen up to defend all the banks is not on account of their membership of NECA. It is because what is at stake is a right that is crosscutting and global to employers in Nigeria. It may be the banks today; we don’t know the sector that will be affected tomorrow. And we want the Ministry of Labour and Employment to understand clearly the fact that an employer has the right to determine whom to hire and fire. An employer has the right to determine the manning level of its operation and an employer has cause to declare its staff redundant. The law protects such rights. What the law has equally done is to spell out the processes that the employer should respect in pruning down its staff strength. An employer will respect that anytime it is found in situations to rationalise their members of staff.
The National Union of Banks, Insurance and Financial Institutions’ Employees has claimed that due process was not followed in the retrenchment of workers in the banks. What are the procedures involved in retrenchment
The union is being economical with the truth. The law states that in the event of retrenchment the union has the right to be informed. Where the union has succeeded in organising the employees of a particular bank to be part of its membership, the union indeed has the right to be informed and discussed with before the employer carries out retrenchment.
Although, NUBIFIE said one of the banks initiated discussion with the union, it claimed it was not concluded before the bank carried out the retrenchment. What do you have to say on this?
We have to make a distinction between negotiation and discussion. What does the law state? I think that is the starting point. The law says the union has the right to be informed. There are various ways by which we can inform a second party. I can do a letter to you and say I am going to downsize by 20 per cent in a month time. That is what the law expects me to do. I may choose not to write a letter but invite you to my office to inform you and give reasons for the downsizing. The law does not expect an agreement. The law identifies the right to inform but I must also caution that even though the law says right to inform, over the years we have preached the doctrine of enlightened industrialisation practice in which case it goes beyond the minimal level that the law stipulated. Even though the law says right to inform, we have encouraged our members to invite the union for discussion and let them know the details of retrenchment exercise, when it is going to be conducted, the scope of it, listen to the union because they may have suggestions on how the scope can be programmed. But such a discussion cannot be endless and does not require an agreement before the employer moves on with the exercise. By inviting the union for discussion, the employer must have gone beyond the minimal level expected of it by the law. The discussion in respect of retrenchment does not require an agreement before the employer could go ahead with the exercise.
The claim of the union is that it has to discuss the benefits that would be paid to the workers….(cuts in)
Again to some extent, we can say the union is right but if an agreement is already on ground, what will be the basis of negotiating that benefit again? The issue of discussing or negotiating benefits will only come up if there isn’t existing agreement on redundancy benefits. The union’s position will be true to the extent that the company does not have a redundancy agreement on ground.
If the company has a redundancy agreement, there may not be any basis to open up discussion on it again. The union’s position in that instance could probably be an appeal to the employer to do much better than what the current agreement states in terms of benefits due to workers that will be affected by redundancy.
Is it within the power of the Minister of Labour and Employment to ask the banks to recall workers affected by the retrenchment?
Absolutely not; it is not within the power of the minister. There is no law of the land that gives such power to the minister. The only body in Nigeria that can make such a pronouncement is the National Industrial Court which will be simply a fallout of a judicial judgement. And we know such a pronouncement will not be made by that body. That will only happen where the aggrieved party has gone to the court.
The minister simply appropriated to himself the exclusive power and authority that is vested on the NIC. The minister is not empowered by the law to do that. Again, we got to realise the fact that whatever action the minister might want to undertake in the contest of employer-employee relationship, must be guided by the Trade Dispute Act, anything beyond that the minister will be acting outside the law.
In what way can the minister intervene in this issue then?
He can only intervene within the context of the Trade Dispute Act because all the power and responsibility of the minister as a mediator are encapsulated within the Act. We will not begrudge the minister if he decides to act within his power as contained in the Act.
What does the Trade Dispute Act says concerning this issue?
First, the right to conciliate over trade dispute is vested in the Ministry of Labour and Employment and the minster in this instance might want to act as a conciliator on the issue of dispute between the union and the employers in the banking industry. If the minster is acting from that perspective, the minister even has limited power. The outcome of the conciliation is not binding on any of the two parties. If for any reason, any of the two parties are not satisfied with the outcome of the conciliation, the minister is also vested with the right to refer the matter to the Industrial Arbitration Panel.
The Industrial Arbitration Panel can look at the issue in dispute and adjudicate on it and make its own pronouncement. And again the trade dispute act is clear that the outcome of the IAP is not completely binding on the two parties. If for any reason any of the two parties does not agree with the outcome of the IAP, they can step it up to the NIC. The NIC has the final say on it except if the issue borders on constitutional right of the other party. That is the only ground at which the any of the two parties can now decide to go to the Supreme Court. That is simply the procedure and all we are asking is that let all parties respect the Trade Dispute Act procedure.
What is your view on the threat issued by the minister to withdraw licences of the banks if they do not reverse the retrenchments?
Initially, when I read the news I thought the minister was misquoted and having waited for a rebuttal which was not forthcoming, and what I saw was a reinforcement not a rebuttal. We then felt that maybe the minster should have been a little bit more thoughtful before he made that kind of statement. We take it that we are human and we do err when we make certain pronouncements. He shouldn’t have made that comment in the first instance.
Your association was expected to appear before the Senate.
The meeting was supposed to be today (June 16) but the senate postponed it to next Thursday (this week). We want to commend the Senate for the maturity it has displayed by calling all the stakeholders for an interaction. We will go there with an open mind. I must say that the interest we are pursuing is not personal interest, it is way beyond that. It is quite easy for people to say, ‘yes, you are employers, what do you expect them to say?’ That is not our battle. That is not our objective. Our focus and objective is that whatever we want to do, let us be guided by the laws of the land. That is what we are pursuing. It is not an employer’s interest. There are moments that some issues may not even favour the employers but if that is the law of the land the employer will have to bite the bullets. All we are saying is that all parties to industrial relations must allow their acts and actions to be guided by the rules of the game. That is simply our take on this issue.
Correspondent: Ife Ogunfuwa.