By Olatunde Olayinka Damilola
INTRODUCTION
A trade union is defined according to the Trade Union Act 1973[1] as a combination of workers or employees, whose purpose is to regulate the terms and conditions of employment of workers. It is the coming together of a group of persons, whether workers or employees, with the sole aim of representing a collective interest on employment, terms of employment and condition of work.[2]
Platform workers on the other hand, are individuals who provide labor or services through digital platforms such as online marketplaces, gig economy platforms, and app-based businesses[3]. These workers use technology to connect with customers and clients, and often use their personal equipment, such as a smartphone or laptop, to perform work tasks[4]. Often times, platform workers are in form of freelancers, and independent contractors hosted on internet spaces such as Upwork, Fiverr, Uber, etc., encompassing diverse range of jobs, such as delivery, cleaning, personal shopping, and more[5].
Over the years, due to the quest of making the delivery of services accessible beyond the constraint of distance, especially at the dawn and aftermath of the COVID-19, the concept of platform work has continued to gain prominence, leading to a sharp rise of the gig economy and an increasing use of digital technology to connect service providers of different kind with potential users across the world (Nigeria inclusive).[6] However, it is left to be seen if these categories of workers possess the right to form a Trade Union under the Nigerian law, one to represent their interest like other Trade Unions in collective bargaining under the Trade Union Act, especially in the face of the notorious distinction of Independent contractors and employed workers in the Nigerian Labour law system.
More also, since the Nigerian Labor law, inferred from the jurisdiction of the National Industrial Court[7], strive to be up to standard with International best practices, it is desired to evaluate the conclusion on this subject from the point of view of the Nigeria law, with International best practices obtainable in other countries, and also under the conventions and recommendations of the International Labour Organization Conventions.
Thence, this work will be making an in-depth vis-à-vis inference based analysis from the point of law on the right of platform workers to form a Trade Union. Also, conclusions reached on the provision of Nigerian law shall be brought in comparison with International best labor practices in recent times with an aim of proferring recommendations for the guarantee of platform worker’s right in Nigeria, as well as the development of the Nigerian Labour Law.
TRADE UNION
A trade union is a combination of workers or employers with the principal purpose of regulating the terms and conditions of employment of workers[8]. This means that for a group of persons to be qualified to form a Trade Union, flowing from the definition in the aforecited section, such persons must either be a worker or an employer. More also, such persons must come together for the principal interest of regulating terms and conditions of employment, or to represent their members in this aspect of trade relations.[9]
Going by the exposition in this definition, it is trite to examine who a “worker” is in the context of the above law.
WORKERS
The Trade Union Act 1973 defines a worker, as any employee, that is to say any member of the public service of the Federation or of a State or any individual (other than a member of any such public service) who has entered into or works 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 personally to execute any work or labour or a contract of apprenticeship.[10]
More also, in similar definition, the Labour Act further interprets a “worker” to be any person who has entered into or works under a contract with an employer, whether the contract is for manual labour or clerical work, expressed or implied, oral or written, and whether it is a contract of service or a contract personally to execute any work or labour.[11]
From the above definition, it is important to note that the form of workers who are permitted to form a Trade Union under the Nigerian Law, are those who are under a contract of employment either with an employer in discharge of labour, or persons under a contract of apprenticeship.[12]
Furthermore, of utmost importance is the noteworthy distinction of these persons from other form of service provider, wherein that for this forms of workers elucidated above, the contractual monopoly of services between the employer and the employee is a stand out feature, and this accentuates the principle of exclusivity of the service to the employer only, in return for the payment of wages or salary[13]. Hence, a carpenter contracted to roof a building, and a web designer contracted to design a website will not suffice as a worker under the Act.[14]
REGULATION OF TERMS OF EMPLOYMENT
Another salient criteria for the formation of a Trade Union is the objective of the group. It is a settled law, that for a group of persons to be qualified to act as a trade Union, it is important that the principal purpose for their formation should equally be to regulate the terms and conditions of employment of workers. Instances of terms and conditions of employment are provided in section 13-20 of the Labour Act 2004 to include hours of works and overtime, periodic payment of wages, provision of transport, et cetera.
Where the principal aim of a group of persons therefore is not for the regulation of these terms, then they can not qualify as a Trade Union or be registered as such under the Act.[15]
PLATFORM WORKERS
As earlier defined, platform workers, are individuals who provide labor or services through digital platforms such as online marketplaces, gig economy platforms, and app-based businesses. These workers use technology to connect with customers and clients, and often use their personal equipment to perform work tasks. Also, platform workers are freelancers, and independent contractors, charging their services at a piece rate, or per-job rate, not in anyway under a contract of employment with the platform from which they work. They are contracted by a client who needs their services on a one time-based contract, and after performance of their respective obligations, the contract is discharged and they get paid (with necessary deductions made by the hosting platform as an intermediary).
The forms of works that comes within the platform economy are quite diverse in nature, but can be largely classified into two categories: Online-Web Based Platform and Location Based Platforms[16]. Workers in the Online Based Platform economy includes online freelancers offering services such as website designing, software, while Location Based Platform workers include taxi, delivery and home services (such as plumbers and electricians); domestic work; and care work (such as childcare and caring for the ageing or people with disabilities.[17]
RIGHT OF PLATFORM WORKERS TO FORM A TRADE UNION
In examining the right of Platform workers in Nigeria, due reference must be made to s.1(1) of the Trade Union Act 1973 in this regard. According to the provision of this statute, an express condition of the statutes as discussed earlier is that “any group of person” or “persons” willing to form a trade Union should be a “worker” or “group of workers”, earlier interpreted in the context of the Act to mean persons under a contract of employment to offer services to an employee. This definition defeats the very nature of platform workers, and by applying the principles of the “contracting model” which is a yardstick in the express letter of the Trade Union Act examined above, Platform workers not being under a contract of employment, but rather an independent contractors/ freelancers, are not workers under the Act, thence, can not form a Trade Union[18].
In the light of this conclusion, which is that platform workers lacks the lawful capacity under the Trade Union Act to form a Trade Union, this work will proceed to examine this conclusion in relation to International Best Practices obtainable in modern day Industrial Relations.
THE MIRROR OF INTERNATIONAL BEST PRACTICES
To start with, determining what amounts to International Best Practices is quite ambiguous and requires a lot of peculiarity to the field of study. In some context, International Best Practice has been defined to mean standards, practices, methods and procedures conforming to applicable law and degree of care, diligence, prudence and foresight that would reasonably and ordinarily be expected of a skilled, and experienced person engaged in a similar type of undertaking under similar circumstances[19]. In the context of Labor law however, it could refer to labor standards, practices and methods which are in compliance with International labor law, and multi national standards on labor practices and contractual relations[20]. For the purpose of this work nevertheless, the second definition will be adopted, although it is pertinent to equally note that the express letters of the Nigerian Law provides for the subject of International best practices in labour law to be a matter to be decided on the face of the fact, at the discretion of the National Industrial Court.[21]
Without further ado, the highest labor regulating organization which embodies a multinational approach so far is the International Labour Organization[22]. ILO is an agency of the United Nations saddled with the responsibility of developing policies, setting standards, and devising programmes with the aim of providing decent work for all men and women.[23] As at the time of this work, the International Labour Organization ‘international labour Code’, comprises of 402 instruments, including 190 Conventions, six Protocols and 206 Recommendations, and Nigeria has ratified 42 out of this conventions in compliance with s.12 of the Constitution of the Federal Republic of Nigeria[24], 1999(as amended 2011)[25].
The ILO Convention Freedom of Association and Protection of the Right to Organize Convention, 1948 (No. 87), and Right to Organize and Collective Bargaining Convention, 1949 (No. 98) are one of the foremost and pivotal conventions of the organization in relation to the importance of Trade Unionism, both ratified by Nigeria[26]. These two conventions unequivocally, propagates the recognition of the Freedom of Association and Collective Bargaining in the creation of an healthy labour environment. Convention No.87 especially, guarantees workers and employers, without distinction whatsoever, the entitlement by right to establish and, subject only to the rules of the organization concerned, to join organizations of their own choosing without previous authorization, premised on the importance it attaches to collective bargaining[27]. Also, Convention No.98 requires states to implement measures appropriate to national conditions, where necessary, to encourage and promote the full development and utilization of machineries for voluntary negotiation between employers or employers’ organizations and workers’ organizations, with a view to the regulation of terms and conditions of employment by means of collective agreements.[28]
Furthermore, the broad principle of ILO on collective bargaining and Trade Association, have been attributed to be based, among other things, on the assumption of the existence of an imbalance in bargaining power between individuals and their employers, when negotiating pay and conditions of work, and a need for Umbrella bodies in negotiations to balance the scale favorably on the side of the former[29] It is further premised on the fact that aside from creating an avenue to augment the weak bargaining power of individual persons, the formation of Trade Associations is necessary to fashion easy resolution of labour disputes through collective bargaining, and to avoid proliferation of disputes with in Industrial relations.
Over the years, the constant desire for better working conditions, or favorable implementation of terms by platforms, has led to countless dispute between Platform workers and the Platform host in the gig economy[30]. In these disputes, one set back from the absence of a collective body is the minute impact of individual protest against unfair working condition and incentives, as well as the unfavorable imbalance in the bargaining power of platform owners and workers[31]. Combatting unfair policies by individuals is onerous, and many a time, platform worker either have to switch to other platforms, or hope that multiple feedbacks from other workers effects a change on these policies[32].
In other situations where there is an escalation of dispute or active protest, sometimes through the most popular means of algoactivism[33], the impact of these disputes brings devastating setback not only to the platforms, but also to users who are dependent on these platform workers in procuring services. For instance, in October 2019, Door Dash Drivers in the United States urged their peers to reject the platform rate of $3 for their service and insist for $7 instead via their algoactivism campaign, “#DeclineNow”, against the policy of the platform[34]. These often causes hardship to the platform’s credibility, as well as the users.
In fact, in certain situations, disputes between platform workers may be owing to multiple complaints, demands and concerns from various individuals and totally devoid of any collectivity[35]. This sort of disputes are considered the most difficult to resolve or address since collective bargaining is impossible with the absence of an umbrella body capable of collating and presenting the concerns in Unison.
According to ILO 2021[36] since the COVID-19, the number of platform workers have increased drastically through the accelerated digital transformation brought by the Pandemic, and likewise the dependence on services offered by these category of workers by members of the public, owing to the cost saving option of procuring services compared to visiting traditional service providers vis-a-vis the effectiveness it provides in beating distance as a barrier, has skyrocketed. Hence, the Committee of Experts on the Application of Conventions and Recommendations (CEACR)[37] (2020) deemed it necessary to consider the possibility of establishing a framework for the establishment of Trade Associations for platform workers and concluded in a ratified recommendation that the full range of fundamental principles and rights (Rights to Association and Collective Bargain) at work (including Convention No.87 and 98 above) are applicable to platform workers in the same way as to all other workers, irrespective of their employment classification[38]. This means that a proper implementation of both Convention No.87 and 98 by member state is required to extend these rights to Platform workers, just as it is with other forms of workers.
Consequentially, since the recommendation of the CEACR, many countries across the world including Chile, Ecuador, Brazil, Spain, United Kingdom and Uruguay among others have all began to recognize and establish framework for the formation of Trade Associations for Platform workers in their country.
Noteworthy is the landmark decision of the United Kingdom’s Supreme Court in 2021, which pronounced Uber Drivers as Workers, despite the contention of the respondent, Uber, that they were a mere agency to the Drivers, and that the drivers were self employed. These decision gave Uber Drivers the right to form a trade union, and also the right to collectively negotiate with Uber as a platform on its policies concerning their drivers[39]. This author without mincing words appraises this decision, as one which will radically shake the operation of the Platform economy, and guarantee some protection for platform workers against rife exploitation of gig platforms who hid under contractual trickery of agency.
RECOMMENDATIONS
The right of platform workers in guarantee of fair labour, especially in respect to the right of forming a trade union and collectively negotiating terms and policies with gig platforms in Nigeria, is something that should not be overlooked. Nigeria in the modern economy has more than five hundred thousand platform workers, with over two hundred thousand of this number being location based platform workers, especially drivers[40]. On March 2022, Nigeria experienced one of the first campaigns for platform workers right front lined by the Federation of Informal Workers of Nigeria (FIWON), the National Union of Professional APP-Based Transport Workers (NUPA-BW) and the Professional E-Hailing Drivers and Private Owners of Nigeria (PEDPA), and one of the pivotal grounds for the protest was the unfair treatment and policy of gig platforms on platform workers in Nigeria, and the need to register a collective body as Trade Union for the representation of these persons[41]. Therefore, while it is undoubtedly settled that a strict interpretation of the Trade Union Act in Nigeria makes it “unlawful” for platform workers to form a Trade Union, it is submitted that this will work severe hardship to workers in these category, and provide an unfettered avenue for gig platform to unfairly exploit them.
As a panacea to this undue hardship of law, this author advocates the following recommendations that:
- Since Nigeria has ratified the ILO Convention Freedom of Association and Protection of the Right to Organize Convention, 1948 (No. 87), and Right to Organize and Collective Bargaining Convention, 1949 (No. 98), giving them the force of a domestic law, the Trade Union Act should be amended appropriately by the National Assembly to incorporate the recommendation of ILO CEACR also, on the proper implementations of the convention. This amendment should appropriately revise the definition of workers in the Act to include Platform workers and enable them the right to form a Trade Union like other workers.
- The National Assembly should equally enact a Law for the Regulation of Platform Work, and Protection of Platform workers in Nigeria, in order to adequately develop our labour law.
- The National Industrial Court should cease the opportunity to ensure the development of our Labour law by exercising its jurisdiction under s.254C(1)(f) of the CFRN on grounds of International Best Practices, just as the Supreme Court of the United Kingdom in the Uber case above, to pronounce the right of Platform workers to form a Trade Union and involve in Collective Negotiation.
CONCLUSION
In conclusion, it is humbly submitted that providing for the right of platform workers for the formation of Trade Union in Nigeria will be a plausible development to our Labour Law which seem to have stopped evolving over the years and has become rather obsolete[42]. It will help prevent chaos in the Nigerian Labour Environment as a matter of fact, by giving room for the effectiveness of collective bargain, and other mechanisms pivotal for the resolution of Trade Dispute in Nigeria in relation to the growing gig-economy.
Moreover, since the increase in platform workers, especially location based platform workers in Nigeria, over the years has positively been on a rise, serving as an antidote to the sting of unemployment in the country[43], and thence, contributing to the countries Gross Domestic Product (GDP), it is desired in the interest of National Development, that this emerging branch of the economy is properly regulated, and the actors adequately protected under a unique industrial relation legal framework from the already existing ones.
Olatunde is Student of Adekunle Ajasin University, Akungba-Akoko. Email: teeclaziq@gmail.com; sgtolatunde@gmail.com. Phone No: +2349060557789.
Footnotes
[1] S.1(1)
[2] Uvieghara E.E, Labour Law in Nigeria, Malthouse Press Limited (2001), p. 315.
[3] Law Insider, “platform worker definition”. <https://www.lawinsider.com/dictionary/platform-worker> web-blog. Accessed February 7th, 2023.
[4] Uber will be taken as a case study in the latter part of this work.
[5] Ibid.
[6] Uma Rani & Rishabh Kumar, Platform Work and the COVID-19. The Indian Journal of Labour Economics (2020)63, 163-171. <https://link.springer.com/article/10.1007/s41027-020-00273-y> accessed February 7th, 2023.
[7] Section 254C(1)(f) of the Constitution of the Federal Republic of Nigeria 1999
[8] S.1(1) Trade Union Act, Cap.T14 Laws of Federation of Nigeria, 2004.
[9] Uvieghara Op.cit. 316.
[10] S.53 Trade Unions Act Cap.T14 Laws of Federation of Nigeria, 2004.
[11] S.91 Labour Act, Cap L-1 LFN 2004.
[12] National Association of Local Government Officers v Bolton Corporation [1943] AC 166.
[13] Ready Mixed Concrete (South East) Ltd. V Minister of Pensions and National Insurance [1968] 1 All ER 433.
[14] Ibid., 316.
[15] RE UNION OF IFELODUN TIMBERS AND ALLIED WORKERS (1964), 2 All NLR 63.
[16] De Stefano, Valerio, “The Rise of the Just-in-Time Workforce: On-Demand Work, Crowdwork, and Labor Protection in the Gig-Economy” (2016). Comparative Labor Law and Policy Journal Vol.37, at 471.
[17] Ibid.
[18] This conclusion on “contracting model” in relation to platform workers were also critically examined in: De Stefano, “Platform Work and the Employment Relationship–a Global Overview” (2021), Global Workplace Law and Policy; De Groen, William Peter, et al. 2021. Digital Labour Platforms in the EU: Mapping and Business Models. European Commission.
[19] Law Insider Online Dictionary. <http://www.lawinsider.com/dictionary/international-best-practice> accessed March 14th, 2023, 23:14GMT.
[20] Jean-Michel Servais, International Labour Law (2022). Wolter Kluwer, Seventh Edition, at 46.
[21] S.7(5), Nigeria Industrial Court of Nigeria Act, 2006.
[22] Hereinafter “ILO”
[23] ILO, “About ILO”. Retrieved from <https://www.ilo.org/global/about-the-ilo/lang–en/index.htm> March 14, 2023.
[24] Hereinafter “CFRN”
[25] According to ILO’s NORMLEX Information System on International Labour Standard as at the time of writing this work, Nigeria has ratified 42 ILO Conventions: 26 are in force, 5 of them have been denounced and 8 has been abrogated by the decision of ILO. <https://www.ilo.org/dyn/normlex/en/f?p=NORMLEXPUB:11200:0::NO::P11200_COUNTRY_ID:103259> accessed 14th March, 2023.
[26] Jean-Michel Servais Op.cit.
[27] Article 2
[28] Article 4.
[29] Freedland, Mark, and Paul Davies, Kahn-Freund’s Labour and the Law (1983) Stevens & Sons.
[30] Forsyth, Anthony, The Future of Unions and Worker Representation: The Digital Picket Line (2022), Hart Publishing.
[31] Ibid. See also Li Jin, Scott Duke, and Lilla Shrof, “A Labour Movement for the Platform Economy”. Havard Business Review, September 4, 2021. <https://hbr.org/2021/09/a-labor-movement-for-the-platform-economy> accessed 14th March, 2023.
[32] Ibid.
[33] Scott Duke et.al, Op.cit.- “A term coined by Stanford and MIT researchers, referring to a growing set of tactics used by workers to resist the managerial control increasingly exercised by algorithms.”
[34] Ibid.
[35] Hardy, Tess, and Shae McCrystal, Bargaining in a Vacuum? An Examination of the Proposed Class Exemption for Collective Bargaining for Small Businesses (2020). Sydney Law Review 42: 311.
[36] ILO, World Employment and Social Outlook 2021: The Role of Digital Labour Platforms in Transforming the World of Work (2021).<https://www.ilo.org/global/research/global-reports/weso/2021/WCMS_771749/lang–en/index.htm&ved=2ahUKEwiB44bfpt39AhW5VaQEHX9tA0QQFnoECA8QAQ&usg=AOvVaw3BHzgv3fV6WJ0UAp4tmfGX> accessed 14th March, 2023.
[37] The Committee of Experts on the Application of Conventions and Recommendations (CEACR) is an independent body composed of 20 high-level legal experts at the national and international levels, charged with examining the application of ILO Conventions and Recommendations by ILO member States.
[38] CEACR Annual Report, 2020. Retrieved from <https://www.ilo.org/wcmsp5/groups/public/—ed_norm/—relconf/documents/meetingdocument/wcms_736204.pdf> accessed 14th March, 2023.
[39] Ryan Browne, “Uber Loses a Major Employment Rights Case, as the UK’s Top Court rules its Drivers are Workers”, CNBC News Media, Febraury 19, 2021. <https://www.cnbc.com/2021/02/19/uk-supreme-court-rules-uber-drivers-are-workers-not-contractors.html> accessed 14th, March 2023.
[40] Katarzyna Celisk, Roland Banya, Bhaskar Vira, Offline Contexts of Online Job: Platform Drivers, Decent work, and Informality in Lagos, Nigeria(2021), Development Policy Review, John Wiley & Sons Ltd. Retrieved from University of Cambridge Online Repository < https://www.repository.cam.ac.uk › …PDF Platform drivers, decent work, and informality in Lagos, Nigeria> 14th March, 2023.
[41] Carolyn Butler, “Nigeria Launches Platform Worker Right Campaign”, Solodarity Centre Web-blog, March 2, 2022. <https://www.solidaritycenter.org/nigeria-launches-platform-worker-rights-campaign/> accessed 14th March, 2023.
[42] Fairwork Nigeria Rating, Working in the Nigeria Ride-Hailing Sector. Retrieved from <https://www.bmz-digital.global/wp-content/uploads/2023/02/Nigeria-Rating-2022.pdf> accessed 14th March, 2023.
[43] Chukwuemeka Agbata, “Can the gig economy rescue Nigeria’s chronic joblessness?”. Punch News Media, 17th April 2022. <https://punchng.com/can-the-gig-economy-rescue-nigerias-chronic-joblessness/?amp> accessed 14th March, 2023.