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RESOLVE LABOUR-RELATED DISPUTES FOR ENHANCED DEVELOPMENT IN 21ST CENTURY NIGERIA

Resolving Labour-related Disputes for enhanced Development in 21st Century Nigeria

By

Hon. Justice Benedict Bakwaph KANYIP, PhD

Presiding Judge, National Industrial Court

Lagos Division

(bbkanyip@yahoo.com)

Introduction
May I seize the opportunity to first thank the National Open University (NOU), the organizer of this public lecture for seeing me fit to present this paper. By the United Nations Development Programme (UNDP) Human Development Report Nigeria 2008 – 2009: Achieving Growth with Equity, Nigeria is said to have experienced sustained high growth rates between 2000 and 2007; yet employment responded rather sluggishly. The most remarkable employment development during the period occurred in the communications subsector in 2001 and finance in 2005. Sadly, the growth rate of employment experienced in especially the communications subsector has since then reverted to its uninspiring historic path. And with the current crisis engulfing the banks, the side-effect has been loss of jobs as many staff have been laid off. The truth of the matter is that the job crisis in Nigeria is worsening. According to the National Bureau of Statistics, the national unemployment rate has risen annually, from 11.9 per cent in 2005 to 19.7 per cent in 2009 . And to the World Bank , Nigeria is facing an urgent job challenge, in spite of the noticeable growth in the national economy for about a quarter of working-age citizens are not in the labour force at all. Only around 10 percent of the labour force is in formal waged employment, the rest are in low paid, unsecured informal sector. With youth unemployment at over 40 per cent, the country is certainly faced with the challenge/concern of youth restiveness.

At the global level, the current global meltdown with its attendant job losses makes it more than ever that labour/workplace issues must be brought to the fore and addressed. The rate of job losses around the globe is a source of concern to all especially policy makers and social partners. The International Labour Organisation (ILO) estimates that compared to 2007, by the end of 2009 there would be an increase in global unemployment of more than 50 million and that some 200 million workers could be pushed back into extreme poverty . The ILO notes that demographic projections suggest that nearly 90 million net new jobs would be needed over the period 2009 – 2010 to absorb new entrants in the labour market and avoid prolonged jobs gap. The ILO then called for a “Global Jobs Pact” to forestall a “prolonged and severe” jobs crisis that would lead to a massive increase in unemployment and working poverty; and so suggested the implementation of a coherent and coordinated job-oriented recovery strategy, based on sustainable enterprises. So far stimulus packages lean heavily toward financial bailouts and tax cuts instead of job creation and social protection. In any event, stimulus measures taken to curb the global meltdown involve only limited social dialogue with employers and unions and lack of coordination across countries. Involving social partners will no doubt help improve the design of the measures and help restore confidence.

One sad trend in the country is the fact that within the body polity, it seems that we have reached that point where nothing can be secured without some form of agitation. Demands that are rightfully one’s can only be gotten if forcefully agitated for. This fact gains prominence even in the political sphere as we daily see in political agitations as evident in the Niger Delta struggles. In the world of work in Nigeria, experience seems to suggest that industrial action is the only option available to workers and citizens of this country when agitating for improved working conditions. The tendency is to think that no meaningful development can be achieved without industrial actions. At the July 29, 2010 Roundtable on Strikes and Collective Bargaining organized by the Nigerian Institute of Advanced Legal Studies, Lagos, while addressing the issue of the cost of industrial actions, labour did not relent in reminding the audience to also consider the cost of the absence of industrial action.

The point must, however, still be made that industrial action does not bring any economic benefits in itself. A strike may damage the employer’s business and may have substantial indirect effects on other firms, consumers and the public. This means that industrial action has its negative impact on the country’s economy and development as loss of man-hours at the workplace, closure of offices and companies can only lead not only to loss of the much needed revenue for developing the country, but also to setback in manpower development. Regarding the loss of man-hours, for instance, in 2006, the then Minister of Labour reported to newsmen that the Federal Government lost 250,110 man-hours as a result of industrial actions in that year, an improvement over the 376,083 recorded in 2005 . And where the industrial action in question relates to the health sector, the effect may be fatal in terms of loss of lives.

In conducting the research for this paper, I had to look through the 321 labour dispute cases handled by the Federal Ministry of Labour from 2004 – 2009 through its mediation and conciliation functions. The recorded data regarding the loss of man-days as a result of industrial action is alarming. Man-days are calculated on the simple logic of multiplying the number of days a strike action lasted by the number of the strikers i.e. the workers embarking on the strike. In other words, each striking worker’s loss of a day is treated separately from that of a fellow worker. The following statistics as to loss of man-days is evident from the inquiry –
2004 – 539,809 man-days lost.
2005 – 708,659 man-days lost.
2006 – 111,310 man-days lost.
2007 – 2,329,946 man-days lost.
2008 – 495,860 man-days lost.
2009 – 564,607 man-days lost.
All of these man-days were lost in respect of industry-wide strikes and industry specific strikes such as those related to education, health service, public/civil service, construction and civil engineering, welding, agriculture, oil and gas, steel, food, communications, transport, chemical, printing and publishing, shipping, etc sectors.

The truth of the matter is that there is no sector in Nigeria that is not bedeviled with industrial disputes, the implication of which, according to Peter Anosike, is that “the wheel that is turning the nation’s economy is gradually grinding to a halt” . To him the spate of strikes in the country is an indication that all is not well with country. And this is irrespective of the fact that strike is acknowledged as a tool for collective bargaining meant to secure welfare rights . To Okene , Nigeria is witnessing a huge increase in the number of industrial actions in so much so that no day passes without strikes or the threats of strikes in one form or the other. He continued that strikes have become so endemic that even our courts would be prepared to take judicial notice of them. Indeed of late, we have agitations, pressure and strikes in sectors that hitherto were unheard of. I am here talking of the agitations we have witnessed within the security forces like the police and the army over issues relating to wages or allowances arising out of work and the strikes continually undertaken by workers in the judiciary.

Conceptually, the talk of resolving labour-related disputes seems to preclude the question of preventing them in the first place. Yet labour dispute resolution and labour dispute prevention are but two sides of the same coin. They are often addressed together as the attempt must first be to prevent disputes from arising; and where they arise, given their inevitability, to resolve or settle them using appropriate measures sanctioned by the legal system. Whether it is labour dispute resolution that we talk of or labour dispute prevention, the central concept within the context of ILO jurisprudence and indeed the labour laws of the country is social dialogue.

Social Dialogue
By social dialogue, I mean the engagement/consultations amongst the social partners (government, employers and employees) in the world of work and as the case may be in the search for the appropriate equilibrium regarding issues that may arise. The dialogue may be tripartite (tripartism) where it involves the three social partners or it may involve any two of the social partners. The effectiveness of labour policy in the quest to prevent or resolve labour disputes, therefore, depends on the nature of social dialogue that goes on in particularly the workplace. The social partners possess unique experience and specialised knowledge of the realities of the workplace and so are vital to modernizing work organisation, achieving higher growth and employment. The ILO has long recognised the central role of social dialogue, which is a key element of the Declaration on Fundamental Principles and Rights at Work adopted in 1998. Social dialogue is, therefore, a gospel preached by the ILO and recommended to all its members. In countries where the ILO has been invited to assist in labour law reform, the entrenchment of social dialogue has always been central to such reform. This is the case in Nigeria where on the inception of democratic rule in 1999, the ILO assisted the country under the auspices of the DECLARATION PROJECT – NIGERIA not only to initiate the reform of labour laws of the country, but to instill social dialogue as part of the capacity building measures required for the labour regime in the country.

The demands of freedom of association and collective bargaining as enjoined by the Freedom of Association and Protection of the Right to Organize Convention No. 87 (C.87) and the Right to Organize and Collective Bargaining Convention No. 98 (C.98) presuppose that social dialogue can yield to strong levels of social partner involvement in workplace issues in the areas of wage determination, working time, modernising employment relations and work organisation, continuing training, health and safety, better integration of disadvantaged groups, active ageing, and reconciliation between work and family life. Involving social partners through consultation in drawing up labour policies will certainly improve governance. Areas where the social partners can contribute meaningfully include the search for concrete initiatives in the promotion of adaptability and new forms of work organization especially in the light of globalisation, the search for the right balance in issues of flexicurity (a word coined from the words ‘flexibility’ and ‘security’ and  is meant to denote a form of labour market organisation combining a flexible labour force able to adapt to new markets and technologies with security that guarantees workers’ living and working standards; in other words, it is used to denote the need to have the twin ideals of flexibility of working conditions and employment in terms of the right of the employer to hire and fire at will, and security of employment and jobs that workers generally demand) in addition to issues of restructuring, ageing workforce, labour market integration of the young, investment in lifelong learning and life-cycle approach to work.

In content, social dialogue incorporates the three fundamental issues of freedom of association, collective bargaining and dispute resolution and prevention. Freedom of association is principally governed by C.87, which applies to workers and employers and their organisations . This freedom entails a number of principles, which have been laid down over time and which include the following : right of workers and employers, without distinction whatsoever, to establish and join organisations of their own choosing; right to establish organisations without previous authorization; right of workers and employers to establish and join organisations of their own choosing; free functioning of organisations in terms of right to draw up their constitutions and rules; right to elect representatives in full freedom; right of trade unions to organize their administration; right of organisations to organize their activities in full freedom and to formulate their programmes; right of workers’ and employers’ organisations to establish federations and confederations and to affiliate with international organisations of workers and employers; right against dissolution and suspension of organisations except through judicial procedure; protection against acts of anti-union discrimination; and adequate protection against acts of interference.

Collective bargaining is principally governed by C.98 and entails the following principles : the right to collective bargaining is a fundamental right; it is a right of employers and their organisations, on the one hand, and organisations of workers, on the other hand (in the absence of workers’ organisations, representatives of workers may assume this right); it is a right that should be recognised throughout the private and public sectors with only the armed forces, the police and public servants engaged in the administration of the State being the exceptions; the purpose of collective bargaining is the regulation of terms and conditions of work, in a broad sense, and the relations between the parties; collective agreements (the product of collective bargaining) are binding on the parties and are intended to determine terms and conditions of employment which are more favourable than those established by law (and individual contracts are only to be preferred if their provisions are more favourable than those in collective agreements); to be effective, workers’ organisations  must be independent from the control of employers or employers’ organisations when undertaking collective bargaining; a trade union which represents the majority or a high percentage of workers in a bargaining unit may enjoy preferential or exclusive bargaining rights; collective bargaining requires good faith i.e. genuine and persistent efforts by both parties; collective bargaining may not be imposed upon the parties and procedures to support bargaining should take into account its voluntary nature; conciliation and mediation, but not compulsory arbitration, may be imposed by law in the framework of the process of collective bargaining so long as reasonable time limits are established (compulsory arbitration may be imposed in cases of essential services in the strict sense of the term, with regard to public servants engaged in the administration of the State, in the event of an acute national crisis, and in the event of a deadlock that cannot be cleared except through the intervention by the authorities); interventions by legislative or administrative authorities which have the effect of annulling or modifying the content of freely concluded agreements are contrary to the principle of voluntary collective bargaining; and restrictions on the content of future collective agreements are admissible only if, among other conditions, the restrictions are preceded by consultations with the organisations of workers and employers.

Implicit in the jurisprudence of collective bargaining, are the principles relating to dispute resolution. For instance, the Collective Agreements Recommendation No. 91 of 1951 (R.91) provides that disputes arising out of the interpretation of a collective agreement should be submitted to an appropriate procedure for settlement established either by agreement between the parties or by laws or regulations as may be appropriate under national conditions. The Labour Relations (Public Service) Convention No. 151 of 1978 (C.151) then provides for negotiation, mediation, conciliation and arbitration as acceptable means of settling disputes as to the terms and conditions of employment. The Collective Bargaining Convention No. 154 of 1981 (C.154), which is general in scope goes on to provide that bodies and procedures for the settlement of labour disputes should be so conceived as to contribute to the promotion of collective bargaining. The framework of the Trade Disputes Act (TDA) 2004 , for instance, accommodates the processes of negotiation, mediation, conciliation, arbitration and adjudication of only trade disputes, inter and intra-union disputes. Other forms of labour disputes are outside the pane.

Regarding the application of C.87 and C.98 in Nigeria, the principles enunciated by the ILO have generally been accommodated within the structure of the labour laws although there are aberrations here and there as where the courts in a line of cases (Nwajagu v. BAI Co. (Nig.) Ltd , Rector, Kwara Poly v. Adefila , UBN Ltd v. Edet , Makwe v. Nwukor , NAB Ltd v. Shuaibu , NNB Plc v. Egun , and NNB Plc v. Osoh ) following in the strict common law tradition have held that collective agreements  are gentlemen’s agreement and so are binding in honour only i.e. they are extra-legal documents totally devoid of sanctions; or the statutorily imposed/compulsory arbitration under the TDA, which the ILO is critical of. The Committee of Experts on the Application of Conventions and Recommendations (CEACR) of the ILO have generally complained on Nigeria . These complaints include restrictions on the right to strike, widening of the scope of essential services beyond the conception of the term as laid down by the ILO, legal restrictions on freedom of association and the right to organize in all ramifications, and compulsory arbitration.

One noticeable impact of the breakdown of social dialogue is the prevalence of strikes and other forms of industrial actions. The response to this is the imposition of restrictions on the right to strike, a fact adversely commented on by the CEACR. The right to strike is not specifically provided for by C.87 and C.98, but ILO jurisprudence on the issue permits strikes where the dispute in issue is especially a dispute of interest as distinct from disputes of rights. And while disputes of interest can only be conciliated or arbitrated upon, disputes of rights may proceed to the adjudicative processes of the courts. Through the process of collective bargaining, disputes of interest may crystallise into rights if the issues involved are agreed upon and endorsed in a collective agreement. All of this is not necessarily the norm. In Nigeria, for instance, the Trade Unions (Amendment) Act 2005 permits strikes in respect of disputes of rights as distinct from disputes of interest; and even at that, only upon the satisfaction of other stringent conditions which in effect makes the right difficult to exercise. The reversal of principle here by allowing strikes only when the dispute is a dispute of right means that the permissibility by the ILO of strikes in cases of disputes of interest has been legislated out.  

Labour Dispute Prevention and Resolution
I indicated earlier that it is foolhardy to talk of labour dispute resolution without also addressing the related concept of labour dispute prevention. In 2003, under the auspices of the DECLARATION PROJECT in Nigeria, one of the working papers for consideration in the review of the labour laws of Nigeria related to the issue of dispute prevention and resolution and was intended to assist in the design of an effective system of dispute prevention and resolution for Nigeria . This Working Paper 1 (WP1) drew experience from South Africa, Namibia, Lesotho, Swaziland, Botswana and Malawi, where the experience showed that there is a shared interest in an effective dispute prevention and resolution system. Against the orthodoxy, where the approach has been to concentrate on dispute resolution, much emphasis was given to dispute prevention since difficulty of enforcement may be an issue regarding the question of dispute resolution. In all of this, the key objective was the optimal combination of process and procedure that effectively prevents and resolves disputes – a system that is legitimate, independent and efficient. Effectiveness of dispute resolution was not sufficient. Experience especially in South Africa showed that dispute prevention measures such as the development of codes of good practice and model agreements to guide employer and workers’ conduct, and enterprise level capacity building to transform a pervasive culture of adversarial labour relations, was equally important.

The DECLARATION PROJECT then resolved that the instruments and methodology to be used must indicate that good process will produce good outcomes. The process must be inclusive in order to generate legitimate outcomes. The architecture of the national mechanism for dispute prevention and resolution must be designed by those who will utilise and be affected by it, namely, the social partners. The DECLARATION PROJECT noted that the development of an effective system depends in large measure on the social partners’ participation in the development and running of the system. The dispute prevention and resolution system must be their system. The establishment of a Tripartite Task Force, with assistance from the ILO, to develop the appropriate legal frameworks and institutional machinery that would constitute such a system was seen as one step in ensuring the legitimacy of the system; for the very process of developing a dispute prevention and resolution system in a tripartite forum is the best example of how social partners can prevent and resolve the substantive disputes that will arise between them.

In general, DECLARATION PROJECT found the system of dispute prevention and resolution applicable within the country to suffer from the following shortcomings –
1. Dispute prevention measures are virtually non-existent.
2. The dispute resolution procedures are cumbersome and slow, with the institutions grossly overburdened and experiencing huge backlogs.
3. Options to address disputes are limited in the main to administrative and adjudicative processes, which may not even be specialised.
4. Many of the dispute resolvers are poorly paid, inexperienced and poorly qualified.
5. The dispute resolution systems have tended to promote forum shopping affording disputants the opportunity to select forums which they believe give them the best strategic advantage, impervious to issues of cost and delay.

In consequence, the DECLARATION PROJECT recommended a new system under the Draft Collective Labour Relations Act hinged on the following benchmarks of best practice –
1. Speed in dispute processing. Disputes are to be dealt with as early and as quickly as possible.
2. The dispute resolvers (mediators/conciliators, arbitrators and judges) are to enjoy legitimacy, be independent and professional.
3. The processes and procedures are to be simple, user friendly and fair.
4. The system is to be accessible, especially to the weak, the marginalised and those who live in rural areas.
5. The system should promote the prospect of agreed outcomes at first such as being conciliated before resort to industrial action or arbitration or adjudication.
6. The system is to be underpinned by fairness and outcomes should be predictable, just and final.
7. The system must be effective and cost effective.
8. The system should incorporate measures which promote dispute prevention.
9. The system is to be transparent.
10. The users are to be informed and equipped to use the system.
11. Decisions are to be easily enforceable. Enforcement provisions should, therefore, not be bureaucratic and cumbersome.

On the need to give more prominence to the issue of dispute prevention, the DECLARATION PROJECT noted and recommended the following as essential in the new labour regime to be operated in the country –
1. Pre-emptive interventions by conciliators in sectors where there is a high incidence of disputes, to encourage self regulation through the voluntary adoption of measures to reduce the number of disputes.
2. Ministerial intervention to invoke conciliation where disputes that may impact upon the national interest appear likely.
3. The development of ‘soft law’ in the form of codes of best practice, guidelines and model agreements to influence and promote fair conduct in the workplace.
4. Empowering the institutions for settling and preventing disputes to facilitate relationship building and giving advice.

Whether the issue is one of dispute resolution or prevention, it is useful to understand the different types of disputes that labour jurisprudence envisages given that they often command different kinds of processes and procedures for especially their resolution.

Types of Disputes
On a preliminary note, it needs to be pointed out that industrial harmony in the workplace does not imply the absence of conflict; for according to Olowu, conflict in the dynamic relationship between management and labour is inevitable, as the voice of dissent is the hallmark of industrial democracy. As a matter of fact, the legitimate expectations of the employer and labour are inevitably in conflict, translating in practice to a power game between the two blocs. For instance, while the employer expects that labour will be available at a price, which permits a reasonable margin of profit for investment, labour expects that the level of real wages must be reasonable and steadily increased; the employer has an interest in obtaining the most qualified worker for each job, labour is interested in each worker who is unemployed obtaining a job or those employed in retaining the same; the employer expects that arrangements of society, through law or otherwise, should ensure labour mobility in a geographical and occupational sense, labour on the other hand expects reasonable job, or at least employment, security to enable workers plan their own and their families’ lives; the employer expects to plan production and distribution on the basis of calculated costs and risks and a guarantee against interruption of these processes, labour on its part realises that without the power to stop work collectively, it is impotent, and so it expects to be able to interrupt the economic process if this is necessary to exercise the requisite pressure . These conflicting interests generate different kinds of disputes and indeed different responses from legal policy, the hallmark of the mediatory, conciliatory, arbitral and adjudicative processes of the TDA 2004 and the National Industrial Court (NIC) Act 2006.

A survey of the 321 cases that went through mediation and conciliation at the Federal Ministry of Labour between 2004 and 2009 reveals varying types of disputes such as: recognition disputes; refusal to remit or pay check-off dues; victimization/intimidation of union officials and workers; refusal to pay salaries and allowances and non-implementation and payment of monetization benefits; redundancy/retrenchment as to workforce; unjust or wrongful lock-out and demotion/termination/dismissal of workers; hike in the pump price of petroleum; refusal to embark or continue with i.e. breakdown of collective bargaining; breach/non-observance of collective agreement; casualisation and outsourcing of workforce; pension disputes; university funding, university autonomy and academic freedom; arbitrary and high tax; privatization disputes and unfair/anti-labour practices. While some of these disputes such as the disputes relating to taxation, privatization and the pump price of petroleum may not qualify as trade disputes under the TDA 2004 , they may sufficiently relate to socio-economic interests of workers as to justify any strike action on them within the context of ILO jurisprudence. One noticeable fact from this survey, however, is that none of the disputes relate to inter or intra-union disputes.

These respective factual disputes can be variously categorized; and it is useful to understand the categories into which they fall. This is because, as envisaged in labour jurisprudence, they often command different kinds of processes and procedures for their resolution. The common distinction noticeable is the individual and collective disputes distinction. It is an approach used under the TDA given the definition of the term ‘trade dispute’ under section 48(1) of the TDA. In Chemical and Non-Metallic Products Senior Staff Association v. BCC , the NIC reiterated the individual/collective dispute distinction, which distinction is, however, difficult to draw in practice. One reason for this is that an individual dispute can develop into a collective dispute, particularly where a point of principle is involved and if it is taken up by a trade union. In general, however, a dispute is individual if it involves a single worker, or a number of workers as individuals (or the application of their individual employment contracts). In the case of CCB (Nig.) Plc v. Rose , as well as Ossa v. Julius Berger Plc , for instance, the Court of Appeal held that in the realm of master and servant relationship, although ten or one hundred persons are given employment the same day under the same conditions of service, the contract of employment is personal or domestic to each of the persons. That in the event of breach, the persons do not have a collective right to sue or be represented in a suit. A dispute becomes a collective dispute if it involves a number of workers collectively. But even in this regard, a dispute which has the appearance of being a collective dispute because it involves several workers may be no more than a series of individual disputes e.g. the dismissal of several workers involved in a fight in the workplace. Before June 14, 2006 when the NIC Act 2006 became operative, the NIC could only deal with trade disputes, which by definition referred to only collective labour disputes. Today, however, the manner in which section 7 of the NIC Act is couched has taken the NIC out of the purview of the individual/collective dispute divide. This is because under section 7 of the NIC Act, jurisdiction of the court is subject based, not person based . What all of this means is that while individuals may not be able to ventilate their grievances under Part I of the TDA, they may nevertheless directly approach the NIC to have those grievances redressed .

It is because of the difficulty of drawing the individual/collective dispute distinction that modern systems of dispute resolution adopt the dispute of right/interest distinction with particular procedures for special types of disputes such as retrenchment, recognition and strikes. The Trade Unions (Amendment) Act of 2005 has, for instance, introduced the dispute of right/interest distinction in our legal system but only within the limited context of the right to strike. By definition, a rights dispute is a dispute concerning the violation of or interpretation of an existing right (or obligation) embodied in a law, an award, a collective agreement (and this is without prejudice to the orthodoxy that collective agreements are binding in honour only) or an individual contract of employment. At its core is an allegation that a worker, or group of workers, has not been afforded their proper entitlement(s). An interests dispute is one which arises from differences over the determination of future rights and obligations (e.g. what the next wage should be), and is usually the result of a failure of collective bargaining. It does not have its origins in an existing right, but in the interest of one of the parties to create such a right through its embodiment in a collective agreement, and the opposition of the other party to doing so. Here, parties would have an interest in securing a particular outcome but no right to it. Disputes of interest, if settled, invariably create rights and obligations, although traditional thinking in law may hold those rights/obligations as unenforceable. The procedures for resolving these kinds of disputes are different, although both kinds of dispute are in the first instance referred to mediation/conciliation. Where this fails, disputes of rights are referable to arbitration and adjudication by a specialist court, while disputes of interests are resolved through pressure in the form of industrial action requiring a procedure quite different from one involving a reference to arbitration or to adjudication. In three recent cases, the NIC had cause to reiterate the fact that disputes of interest are ill-suited for adjudication where no rights have crystallized .

There are certain types of disputes that are often dealt with procedurally different because they tend to be more sensitive or complex or because their outcome tends to affect many people, or because they involve considerations of principle which have policy implications for the society at large. These disputes, if not susceptible to settlement by mediation/conciliation, tend to be dealt with by adjudication in the courts (given that courts, not arbitration, create precedent) and not by the less formal process of arbitration, unless the parties agree otherwise. These disputes are: discrimination and sexual harassment, retrenchment, organisational rights, core labour rights and standards, and recognition disputes. Within the structure of the TDA, these species of dispute are generally treated as collective disputes and so treated as such, except for discrimination and sexual harassment complaints which are hardly pressed by victims under our labour jurisprudence.

There are two tension points in the Nigerian industrial relations scene that deserve special mention here. The first tension point is the demand for parity in terms and conditions of work especially as to salaries and allowances, an issue bedeviling the States and the health and education sectors. The second is the no work, no pay rule. The NIC has been called upon on a number of occasions to deal with these issues. Regarding the question of parity, we have had cases where workers in some States of the Federation had demanded higher wages simply because sister States have increased the salaries of their workers. And in the health and education sectors, we have equally had demands for parity of treatment as between other health workers and doctors, and between non-academic staff (both junior and senior) and academic staff. These respective demands for parity are essentially hinged on principles as to right against discrimination. But the problem is that the right against discrimination even in labour law is not sacrosanct; discrimination is permitted if by the inherent nature of the job discrimination is inevitable. Secondly, for State employees, there is the wider constitutional principle of federalism to contend with. By the principle of federalism, each tier of government is deemed separate and distinct from the other, enjoined to do all that the Constitution stipulates without reference to the other. Under the Exclusive Legislative List of the 1999 Constitution, all that the National Assembly can do, for instance, is fix minimum wages. So long as an employer does not go below the minimum permitted by law, he is in the right. So when State workers demand for higher wages on the sole ground that other States also pay higher wages, there is certainly a problem. Of course, if by the process of collective bargaining and agreement is reached as to parity, this is perfectly valid. The problem is when the adjudicative processes are used to compel the application of parity. I indicated earlier that disputes of interest are ill-suited for adjudication where no rights have crystallized. In other words, the courts are not the proper forum to ventilate grievances as to disputes of interest. Unless there is an entitlement, the court can do nothing. All of these issues were appropriately addressed by the NIC in Senior Staff Association of University Teaching Hospitals, Research Institutions and Associated Institutions (SSAUTHRIAI) and ors v. Federal Ministry of Health and anor, supra, Senior Staff Association of Nigerian Universities v. Federal Government of Nigeria, supra, and Ondo State Government v. National Association of Nigeria Nurses and Midwives and anor, supra.

The next concern relates to the no work, no pay rule. The incidence of industrial actions in Nigeria is pretty high and cuts across all sectors of the body polity. One noticeable fact is that at the resolution of an industrial action the problem arises as to whether the striking workers are entitled to strike pay i.e. wages for the period they embarked on strike. By section 43(1)(a) of the TDA 2004, any worker who takes part in a strike is ‘not entitled to any wages or other remuneration for the period of the strike…’ This rule has, however, been watered down in application. The NIC in Senior Staff Association of Nigerian Universities v. Federal Government of Nigeria, supra, had this to say on the application of the no work, no pay rule –
In our opinion, the case of the appellant centres on two issues: whether the respondent breached the August 2001 Agreement and whether the appellant is entitled to wages for the period of the strike that it embarked on. We shall address the issue of the strike first. The appellant contended that the issue is not whether the appellant should be paid wages for the period of strike but who ought to determine the liability of the strikers. In this contention, the appellant seems to overlook the fact that section 42(1)(a) of the TDA [1990] is self-executory. Its implementation, without more, does not depend on a further enquiry in the manner that the appellant canvasses. A strike, whether legal or not, falls squarely within the ambit of the said section and for which the strikers are disentitled from wages and other benefits envisaged by the section. This statement of principle accords with the International Labour Organisation (ILO) jurisprudence on the matter where at para. 588 of the Freedom of Association: Digest of decisions and principles of the Freedom of Association Committee of the Governing Body of the ILO, Fourth (revised) edition, Geneva, the norm is that ‘salary deductions for days of strike give rise to no objection from the point of view of freedom of association principles’. And to the learned authors, Bernard Gernigon, Alberto Odero and Horacio Guido – ‘ILO principles concerning the right to strike’ [1998] International Labour review Vol. 137 No. 4 at p. 471, the Committee of Experts on the Application of Conventions and Recommendations (CEACR) of the ILO ‘has refrained from criticizing the legislation of member States which provide for wage deductions in the event of strike action and has indicated that, as regards strike pay, “in general the parties should be free to determine the scope of negotiable issues”’. It is in this light and given the self-executory nature of the said section 42(1)(a) that it is perfectly lawful for an employer to choose to dispense with the ‘no work, no pay’ rule. In other words, strike pay is lawful if an employer chooses to pay same and not to penalize the strikers in any other way for the strike. In the same vein, it is lawful for workers to agree with their employer that wages will be paid and no other detriment suffered even when strike actions are embarked on. All of this will not be possible if the argument of the appellant, that before section 42(1)(a) of the TDA [1990] comes to play, a court order is required, is accepted. It will defeat the principle of harmonious labour relations upon which the ILO jurisprudence on the matter is hinged. We do not, therefore, agree with the submissions of the appellant regarding section 42(1)(a) of the TDA [1990].
This statement of principle was quoted and applied by the NIC in Oyo State Government v. Alhaji Bashir Apapa & ors, unreported Suit No. NIC/36/2007 delivered on July 15, 2008.

The TDA specifically deals with trade disputes. It is, therefore, essential that we explore the concept of ‘trade dispute’ at this point. The term ‘trade dispute’ is defined under section 48(1) of the TDA as –
Any dispute between employers and workers or between workers and workers, which is connected with the employment or non-employment, or the terms of employment and physical conditions of work of any person.
In the case of Chemical & Non-Metallic Products Senior Staff Association v. Benue Cement Co. Plc , decided before the enactment of the NIC Act 2006, the NIC held that a complaint by workers that legal deductions from their salaries, which are not remitted to the appropriate organs of government, qualifies as a trade dispute under section 48 of the TDA 2004. The NIC then proceeded to make the distinction between individual and group or collective employment disputes in that while the regular courts (the phrase ‘regular courts’ is used to denote the High Courts as distinct from the special character of the NIC regarding the resolution of labour disputes) are the proper forum for the resolution of individual employment disputes, the NIC (and by extension, the processes of Part I of the TDA) is the proper forum for group or collective employment disputes. The reasoning by this court was hinged on the fact that the jurisdiction conferred on this court was principally in respect of settling ‘trade disputes’, which term was defined as employment disputes between employees and employer(s) or between workers and workers. The court reasoned that because the definition of ‘trade disputes’ refers to workers in the plural, it must be read as excluding an individual worker. Prof. Uvieghara has never, however, shared this view. To him, because the Interpretation Act Cap. I23 LFN 2004 in section 14(b) provides that words in the singular include the plural and words in the plural include the singular, individual employment disputes necessarily come within the purview of the jurisdiction of the NIC. Like I pointed out earlier, given the fact that the jurisdiction of the NIC under section 7 of the NIC Act 2006 is now subject based, the debate here may now be purely academic as the NIC can entertain any dispute falling within any of the items listed under the said section and whether the dispute is individual or collective.

I must, however, note here the recent Supreme Court decision in Oloruntoba-Oju v. Dopamu . In that case, the Supreme Court, while considering section 47 of the TDA Cap. 432 LFN 1990, presently section 48 of the TDA 2004, held that to construe the interpretative clause in the said section 47 as conferring on the NIC the jurisdiction to adjudicate on all manner of disputes concerning employment matters, would do a great violence to the provisions of section 251(1)(q), (r) and (s) of the 1999 Constitution. That it would ‘take a more specific provision of Cap. 432 and not just an interpretation clause to have such a far reaching effect which overrides the clear provisions of section 251(1)(q), (r) and (s) of the Constitution’ . The Supreme Court reasoned that it will overburden the NIC designed to be a special purpose court if the court is given jurisdiction in all matters relating to disputes in employment matters .

I crave the indulgence to think aloud here; but first, a quick clarification. The Supreme Court was perfectly correct in holding, as it did in Oloruntoba-Oju, that in so far as the main cause of action relates to issues under section 251(1)(q), (r) and (s) of the 1999 Constitution, jurisdiction would lie in the Federal High Court; and it will not matter if there are employment issues incidental to the main cause of action. The problem that arises, however, is where the main cause of action relates to employment matters. The Supreme Court, from the holding in Oloruntoba-Oju, appears to say that even here, the NIC would have no jurisdiction. But we must note what appears to be a qualification by the Supreme Court itself, namely, that it would take a more specific provision of Cap. 432 and not just an interpretation clause to have such a far reaching effect (my emphasis). Now, Oloruntoba-Oju was decided in respect of a cause of action that arose prior to the passing of the NIC Act 2006. Can section 7(1)(a) of the NIC Act 2006, for instance, which grants specific jurisdiction to the NIC regarding matters relating to –
(i) labour, including trade unions and industrial relations; and
(ii) environment and conditions of work, health, safety and welfare of labour,
and matters incidental thereto;
qualify as the specific provision the Supreme Court talked of? In the second place, the jurisdiction of the Federal High Court under section 251 of the 1999 Constitution generally follows the items in the Exclusive Legislative List in the Second Schedule to the 1999 Constitution except for item 34 (dealing with labour and industrial relations and matters incidental thereto), which is conspicuously absent. Section 7(1)(a) of the NIC Act 2006, on the other hand, is a reproduction of the said item 34 of the Exclusive Legislative List. With this scenario in mind, does it suggest that the legislature intends any court other than the NIC to entertain employment matters given that they are subsumed within the purview of labour, or at worse are matters incidental thereto? Even when the Supreme Court noted that an existing law under section 315 of the 1999 Constitution cannot override section 251 of the Constitution, the point remains that section 7 of the NIC Act 2006 makes provision in respect of matters that are not provided for in section 251 of the Constitution. What all of this means is that we must await another pronouncement from the Supreme Court especially if it is noted that what is in issue is the interpretation of legislative provisions. 

Given the dual jurisprudence that existed and still exists in the resolution of labour disputes in the country, there is a good deal beclouding the concept of ‘trade disputes’. The intervention of the regular courts has not cleared the clouds either. I must point out that most of the disputes which gave rise to the consideration of the concept did not go through the processes of Part I of the TDA before getting to the appellate courts; and so, there was no opportunity to have the opinion of the dispute resolution institutions of Part I of the TDA for purposes of the appellate review. Cases such as NURTW v. Ogbodo, Attorney-General of Oyo State v.  Nigeria Labour Congress, Oyo State Chapter , and Bureau for Public Enterprises (BPE) v. National Union of Electricity Employees (NUEE) , in seeking to clarify the term ‘trade dispute’, simply broke it into ingredients (as where ‘trade’ was defined separately from ‘dispute’); and in the process, not stressing the fact that the term ‘trade dispute’ is a term of art in labour/industrial relations law . Another problem was that ‘trade dispute’ was lumped with the terms ‘inter-union dispute’ and ‘intra-union dispute’ with the courts, as was the case in Kalango v Dokubo and NURTW FCT, Abuja v. RTEAN, FCT, Abuja and 7 ors , insisting that the NIC did not have jurisdiction in respect of inter and intra-union disputes unless they also qualified as trade disputes. What this meant was that the processes of Part I of the TDA could not be used to resolve inter and intra-union disputes unless these species of disputes also qualified as trade disputes under section 48(1) of the TDA.

The point to note is that, as far as I can hazard, only in one respect can an intra-union dispute also qualify as a trade dispute within the meaning of section 48 of the TDA. This is the case where an intra-union dispute involves the workers of a union and the point of dispute/difference relates to or is connected with the terms of employment as where the workers themselves are not agreed on certain terms and conditions of employment offered by management. I am not unmindful of the 1996 case of Nigeria Union of Journalists v. Olufunke and anor , where the NIC held that an action calling for an account by union officials is an intra-union dispute involving a trade dispute. The court reasoned that check-off dues and hence its account is a term of employment under section 3 of the Labour Act Cap. 198 LFN 1990 (now section 5 of the Labour Act Cap. L1 LFN 2004), which requires the employer to make deductions from wages of workers and pay same to the relevant union; and so any dispute on an account of the check-off dues is a trade dispute between workers and workers under the present section 48(1) of the TDA. The court may have reached this conclusion because of the need to have intra-union disputes go through the processes of Part I of the TDA before being adjudicated upon at the NIC; and also the manner in which the now repealed section 25 of the TDA is couched, where the section talks of ‘inter-union trade dispute’ – the counterpart to ‘intra-union dispute’. The NIC would, however, in 1997 make what appears to be a somersault in Ojo and ors v. Odujobi and ors where the court held that it has exclusive jurisdiction to hear intra and inter-union disputes under Decree 47 of 1992 and that no condition precedent is prescribed in the law before the court can invoke its jurisdiction. The court went on to hold that the procedure stated in Part I of the TDA is only applicable to the settlement of trade disputes as defined in the present section 48 of the TDA, and not to intra-union disputes arising from the running of a trade union as laid down in the union constitution. To the court, there is no corresponding provision for the settlement of intra-union disputes in the Trade Unions Act. The court then ruled that it has the jurisdiction to hear a suit between two factions of a registered trade union and other applications pertaining thereto. But in Enelamah and anor v. Anokwuru and ors , the court held that an intra-union dispute about the organization of a trade union should first go to the Industrial Arbitration Panel (IAP). Yet the court went on to hold that the steps laid out in the present sections 4, 6, 8, 9 and 14 of Part I of the TDA are not appropriate or applicable in an inter or intra-union dispute; that the sections relate to a trade dispute simpliciter and not to inter or intra-union dispute which does not fall within section 48 of the TDA. My rationalization of these cases is that only in the limited cases of inter and intra-union disputes as strictly defined in the repealed section 25 of the TDA would the dispute resolution processes of Part I of the TDA be applicable. For other kinds of inter and intra-union disputes, the disputants may approach the NIC directly to ventilate their grievances without the necessity of going through the processes of Part I of the TDA.

In the case of NUT v. COSST , the Court of Appeal held that an intra-union dispute is none other than a dispute between members of a trade union inter se. That on the facts before the trial court, intra-union dispute between the 2nd – 4th respondents would only arise if the 2nd – 4th respondents were members of the 1st appellant, the Nigeria Union of Teachers (NUT), at the material time i.e. at the time of commencement of the originating summons. If I may be permitted to be critical, there is something worrisome about this holding. The problem is that by law (item 26 of Part B of the Third Schedule to the Trade Unions Act 2004 ), the jurisdictional scope of the NUT, that is those who are statutorily members of the NUT are “teachers employed in educational institutions of all types but excluding Universities, Polytechnics, Colleges of Education and other tertiary institutions”. Now, secondary school teachers broke away from the NUT to form the Conference of Secondary School Tutors (COSST) and the issue was whether this was appropriate. Is the dispute in issue, therefore, not one that is an intra-union dispute? We must not forget that the Supreme Court in Osawe v. Registrar of Trade Unions , affirmed the constitutionality of the structured unions and their jurisdictional scopes under the Trade Unions Act, which fact was reiterated when a breakaway faction of the Medical and Health Workers Union of Nigeria forming the Registered Trustees of National Association of Community Health Practitioners of Nigeria were denied recognition by the Supreme Court in the case of The Registered Trustees of National Association of Community Health Practitioners of Nigeria and 2 ors v. Medical and Health Workers Union of Nigeria . So the guise of registering COSST under Part C of the Companies and Allied Matters Act (CAMA) should not take the dispute out of the realm of an intra-union dispute.

It is for the confusion of thought surrounding the term ‘trade dispute’, therefore, that during the review of the labour laws of the country under the DECLARATION PROJECT, it was agreed that the term ‘trade dispute’ be replaced with ‘labour dispute’ and ‘inter and intra-union dispute’ with ‘organisational dispute’ so that each of these terms would represent a separate species of dispute. To an extent, this fact is reflected in the NIC Act 2006 although the terms ‘trade dispute’, ‘inter-union dispute’ and ‘intra-union dispute’ are retained and given extended meanings under section 54(1). For instance, under section 54(1), ‘trade dispute’ means – 
… any dispute between employers and employees, including disputes between their respective organizations and federations which is connected with –
            (a)    the employment or non-employment of any person,
(b)   terms of employment and physical conditions of work of any person,
(c)    the conclusion or variation of a collective agreement, and
(d)   an alleged dispute.
Section 54(1) goes on to define ‘inter-union dispute’ as a “dispute between trade unions or employers’ association” and ‘intra-union dispute’ as a “dispute within a trade union or an employer’s association”. A related concept introduced by the NIC Act is ‘organisational dispute’ used in sections 7(1)(c)(ii) and (iii) and 19(c) of the NIC Act. Section 7(1)(c)(ii) provides that the NIC has exclusive jurisdiction to entertain matters relating to the determination of any question as to the interpretation of ‘any award made by an arbitral tribunal in respect of a labour dispute or an organizational dispute’. Regarding the ambit of this concept, the NIC in the case of ASSBIFI v. Union Bank & ors had this to say –
…section 54 of the NIC Act defines the word organization to include a trade union or an employers’ association. By extension, therefore, organizational dispute would mean a dispute between organizations or within an organization as the case may be. In other words, organizational dispute is none other than another name for inter and intra-union dispute.
This means that organizational dispute is an alternative concept to inter and intra-union dispute in their expanded meaning.

Disputes relating to the conclusion or variation of a collective agreement and an alleged dispute did not feature under section 48(1) of the TDA in the definition of the term ‘trade dispute’. Neither did disputes in relation to federations of employers’ or employees’ organizations. And inter and intra-union disputes have expansive definitions well beyond that given to the terms under the now repealed section 25 of the TDA 2004.

With this insight into the concept and types of labour disputes envisaged under our labour regime, it remains to consider the labour dispute resolution processes enjoined under the law in the country.

Dispute Resolution Processes under the TDA.
Globally, the resolution of labour disputes is guided, among others, by this principle: it is better to have a bad decision quickly than a good decision too late. This is a variant of the adage, ‘justice delayed is justice denied’. In other words, speed is a major guiding principle in the resolution of labour disputes even if this is at the risk of an unfair decision . A situation where a worker challenged his suspension and subsequent dismissal from work and it took 13 years to resolve the question of jurisdiction with the Supreme Court ordering that the case be remitted to the High Court and tried all over by another judge, as was the case in Amadi v. NNPC , should certainly be unacceptable and frowned on.

Prior to the passing of the NIC Act, and despite some rulings of the Court of Appeal, the general thinking especially within the world of employment was that the TDA 2004 envisaged three main forms of disputes: trade disputes, intra-union disputes and inter-union disputes. Part I of the TDA, which is headed, “Procedure for Settling Trade Disputes” and which consists of sections 1 – 19, was originally thought to regulate only trade disputes and not intra or inter-union disputes. This was because section 1(1) of the TDA provides that “where a trade dispute exists or is apprehended, the provisions of this Part of this Act shall apply in relation to the dispute”.  However, when section 2 of the TDA 2004 was inserted by Decree 47 of 1992 it became, arguably, that inter and intra-union disputes were brought within the purview of Part I especially given the definition of the phrase ‘the dispute’ under section 1(2) of the TDA.  By section 1(2), “unless the context otherwise requires”, “the dispute” means the trade dispute in question; and “party” means a party to the dispute.  In practice, therefore, the three forms of disputes were treated alike and subjected to the same processes under Part I of the TDA.  In fact, the NIC, in a line of cases, declined to hear intra-and inter-union disputes as a court of first instance, insisting that they be subjected to the dispute resolution processes of Part I of the TDA.  The legality of having to subject intra and inter-union disputes to the procedure set out in Part I of the TDA was then tested in the case of National Union of Hotel and Personal Service Workers v. National Union of Food, Beverage and Tobacco Employees and anor . The court, however, held it to be valid and legal.

One of the reasons for so holding was section 24 of the 1990 TDA which provided that a right of appeal shall lie from the IAP to the NIC in cases of intra-union disputes arising from the organisation and running of a trade union as laid down in the union constitution or in cases of inter-union disputes arising from the restructuring of trade unions established under the Trade Unions Act (TUA) 1990 . The reasoning was that there could be no right of appeal from a body unless that body has some jurisdiction to hear the matter in the first place. And coupled with the provision of section 1A(1) of the 1990 TDA, which bars the commencement of an action in respect of ‘a trade dispute or any inter or intra-union dispute in a court of law’ (my emphasis), the NIC reasoned that since it is also a court of law, it could not assume original jurisdiction in cases of trade disputes, and inter and intra union disputes .

With the passing of the NIC Act and the repeal of section 24 of the 1990 TDA, the issue whether the NIC has original jurisdiction in cases of inter and intra-union disputes came up for determination in the case of Association of Senior Staff of Banks, Insurance and Financial Institutions (ASSBIFI) v. Union Bank of Nigeria Plc and ors . In that case, the NIC had cause to review the authorities and antecedents pertaining to the issue. The holding of the court deserves to be reproduced in full. In the words of the court –
Before the enactment of the NIC Act 2006, this court held in several cases that in intra and inter-union disputes, the jurisdiction of this court to entertain same was appellate not original. See for instance, Senior Staff Association of Statutory Corporations and Government Owned Companies, Nigerian Port Authority Branch & others v. Senior Staff Association of Statutory Corporations and Government Owned Companies, unreported Suit No. NIC/8A/2001 decided on July 3, 2001; Maritime Workers Union of Nigeria & ors v. NLC & ors [2005] 4 NLLR (Pt. 10) 270; Performing Musicians Employers’ Association of Nigeria and ors v. Femi Lasode and ors, unreported Suit No. NIC/16M/2003 decided on July 8, 2005; and National Union of Hotels and Personal Services Workers v. National Union of Food, Beverage and Tobacco Employees and anor [2004] 1 NLLR (Pt. 2) 286. Specifically, the legality of having to subject intra and inter-union disputes to the procedure set out in Part I of the TDA was tested in the case of National Union of Hotel and Personal Service Workers v. National Union of Food, Beverage and Tobacco Employees and anor, supra. The court, however, held it to be valid and legal. One of the reasons for so holding was the provision of section 24 of the TDA which provided that a right of appeal shall lie from the IAP to the NIC in cases of intra-union disputes arising from the organisation and running of a trade union as laid down in the union constitution or in cases of inter-union disputes arising from the restructuring of trade unions established under the TUA 1990. The reasoning was that there could be no right of appeal from a body unless that body has some jurisdiction to hear the matter in the first place. And coupled with the provision of section 1A(1) of the TDA, which bars the commencement of an action in respect of a trade dispute or any inter or intra dispute in a court of law, the NIC reasoned that since it is also a court of law, it could not assume original jurisdiction in cases of trade disputes, and inter and intra union disputes.

Section 24, forming part of Part II of the TDA, has now been repealed by section 53(1) of the NIC Act 2006; and the other provisions of the TDA by sections 53(2) and (3), and 54(4) are subject to the overriding provisions of the NIC Act and are to be read with such modification as to bring them into conformity with the provisions of the NIC Act. The question, therefore, remains whether under the NIC Act an intra-union dispute falls within the original jurisdiction of the NIC. Section 7(1)(a) of the NIC Act, in giving jurisdiction to this court in matters relating to labour, trade unions, industrial relations and matters incidental thereto, among other matters, can be said to have given a wide jurisdiction in respect of the enumerated matters. But section 7(1)(a) must be read subject to section 7(3), which provides as follows –
Notwithstanding anything to the contrary in this Act or any other enactment or law, the National Assembly may by an Act prescribe that any matter under subsection (1) (a) of this section may go through the process of conciliation or arbitration before such matter is heard by the Court.
It is in relation to the interpretation of the phrase ‘notwithstanding’ in this section 7(3) that the claimant referred the court to the Supreme Court case of Peter Obi v. INEC and ors [reported in vol. 3 of Constitutional Law Classicus, page 750 and first delivered on 14th June, 2007], where the Supreme Court interpreted the same phrase as used in section 251(1) of the 1999 Constitution. In that case, the Supreme Court at p. 788 cited with approval its previous decision on the same phrase in NDIC v. Okem Ltd and anor [2004] 10 NWLR (Pt. 880) 10; [2004] 4 SCM 109 where it held as follows –
When the term “notwithstanding” is used in a section of a statute it is meant to exclude an impending effect of any other provision of the statute or other subordinate legislation so that the said section may fulfill itself.
Contrary to the submissions of the claimant that this Supreme Court decision supports its claim in this matter, we beg to disagree. If anything, the decision reinforces the supremacy of section 7(3) of the NIC Act over all others. In other words, going by the holding of the Supreme Court itself, we can proceed to rephrase the Supreme Court decision in these words: ‘… the term “notwithstanding” used in section 7(3) is meant to exclude the impending effect of any other provision of the NIC Act so that the said section 7(3) may fulfill itself’. Section 7(3) cannot fulfill itself if section 7(1)(a) is made to override it.

Quite rightly, therefore, this court in interpreting section 7(3) in AUPCTRE v. FCDA and ors unreported Suit No. NIC/17/2006 delivered on 23rd May, 2007, had this to say –
…the word, “Notwithstanding”, in section 7(3) is meant to qualify the jurisdiction granted the NIC until conciliation and arbitration, if provided for, have been done. It is to reinforce this stance of the law that section 7(4) of the NIC Act provides that an appeal shall lie from the decision of an arbitral tribunal to this court as of right in matters of disputes specified in section 7(1)(a) of the NIC Act. In appropriate cases such as the one before us, the original jurisdiction of this court may, by an Act of the National Assembly, be made contingent upon exhausting the processes of conciliation and arbitration. Where this is the case, the position is not that the jurisdiction of the court has been ousted; only that it is contingent upon those processes being exhausted.
The import of this subsection is that matters within the purview of section 7(1)(a), that is, matters in respect of ‘labour, including trade unions and industrial relations; and environment and conditions of work, health, safety and welfare of labour, and matters incidental thereto’, which had to go through the processes of Part I of the TDA will continue to go through those processes even after the passing of the NIC Act. In other words, those issues which, for instance, the IAP entertained before the passing of the NIC Act will continue to be entertained by that body in the spirit of section 7(3) of the NIC Act. It is not that the jurisdiction of this court has been ousted; only that it is contingent upon the processes of Part I of the TDA being exhausted.  This means, therefore, that, like trade disputes, intra-union (and by extension, inter-union) disputes are contemplated under section 7(1)(a) of the NIC Act for the purpose of section 7(3) and so would not come under the purview of the original jurisdiction of this court. An insight to this fact can only be gleaned when the NIC Act itself is given a holistic consideration.

A look at the NIC Act will reveal a clear intention, despite the repeal of section 24 of the TDA, that intra and inter-union disputes are intended by the legislature to go through the processes of Part I of the TDA before they can be entertained by this court. In the first place, section 7(3) has been alluded to. Secondly, section 7(1)(c)(ii) provides that this court has exclusive jurisdiction to entertain matters relating to the determination of any question as to the interpretation of ‘any award made by an arbitral tribunal in respect of a labour dispute or an organizational dispute’. Section 54 of the NIC Act defines the word organization to include a trade union or an employers’ association. By extension, therefore, organizational dispute would mean a dispute between organizations or within an organization as the case may be. In other words, organizational dispute is none other than another name for inter and intra-union dispute. In this regard, the NIC cannot have the jurisdiction to interpret the award of an arbitral tribunal in respect of an organizational dispute going by section 7(1)(c)(ii) unless the arbitral tribunal has the jurisdiction to entertain that matter in the first place. If it is added the fact that sections 1A and 50 of the TDA have not been repealed by the NIC Act, then the conclusion must be that the legislature clearly intended that intra and inter-union disputes should go through the processes of Part I of the TDA.

The ratio in this case has been applied in a number of subsequent cases such as Association of Senior Staff of Banks, Insurance and Financial Institutions (ASSBIFI) v United Bank for Africa Plc and ors ; Peter Okafor and ors v. Anthony C. Ugozor and ors ; and Comrade Udeagalanya Anthony and ors v. Comrade Francis Iloduba and ors  

Given the holdings in these cases then, the rule is that, in addition to trade disputes , a litigant must go through the processes of Part I of the TDA in cases of intra and inter-union disputes. Two caveats must, however, be made here. In the first place, given the special nature of election disputes amongst trade unions, which often require urgent intervention by the court; and the nature of declaratory and injunctive reliefs often sought by litigants, which the mediatory, conciliatory and arbitral institutions of Part I of the TDA may not be able to grant, the NIC now recognizes that they fall under a species in intra-union disputes that can be adjudicated upon at the NIC as a court of first instance . Secondly, regarding trade disputes, it would appear that only in respect of those trade disputes that before the passing of the NIC Act traditionally were referred to the said processes of Part I of the TDA would continue to be so referred. For instance, only collective labour disputes went through the processes of Part I of the TDA. Individual labour disputes did not . And given that causes and matters relating to ‘environment and conditions of work, health, safety and welfare of labour, and matters incidental thereto’ (section 7(1)(a)(ii) of the NIC Act) are not matters covered by  Part I of the TDA unless they qualify as trade disputes, this may mean that the said matters may not go through the processes of Part I of the TDA; in which event, the NIC will assume original jurisdiction in respect of such matters.  But can this be so when section 7(4) of the NIC Act provides that an appeal shall lie from the decision of an arbitral tribunal to the NIC as of right in matters of disputes specified in section 7(1)(a) without distinguishing between paragraphs (i) and (ii)?

For those matters that went through the processes of Part I before now, and which in virtue of section 7(3) of the NIC Act must still go through the processes of the said Part I of the TDA, the first step towards activating the said dispute resolution processes is the formal declaration of the existence of a trade dispute except where the Minister of Labour apprehends it under section 5 of the TDA 2004, in which case he is permitted to apply any of the fast track measures allowed by the TDA.  For instance where the Minister apprehends a trade dispute under section 5 of the TDA 2004, he may appoint a conciliator to look into it or refer the dispute to the IAP or refer to it to a board of inquiry.  And under section 17 of the TDA 2004, the Minister may by-pass all other processes and refer the dispute directly to the NIC, that is, if the dispute involves workers in any essential service or the circumstances of the case make reference of the dispute to an arbitration tribunal inappropriate. Since I joined the court in 2000, only in one case, Ondo State Government v. National Association of Nigeria Nurses and Midwives and anor , has the Minister of Labour used his power under section 17 of the TDA 2004. The Minister not only apprehended the dispute, but chose to by-pass the processes of mediation, conciliation and arbitration, which ordinarily Part I of the TDA would have enjoined, in order to refer the matter directly to the NIC.

As to who can declare a trade dispute, the TDA permits an employer(s), or a union, or a group of workers, or the Minister under his power to apprehend a trade dispute, to so declare the dispute when one exists. By declaration of a dispute is meant a formal notification in writing to an opposing party of the existence of a trade dispute between the parties. In the case of the Minister, it is a formal notification to the disputants of his fear (apprehension) that a trade dispute exists between them, although the Minister reserves the right not to do this and simply apprehend the dispute and refer it to an appropriate body. In Corporate Affairs Commission (CAC) v. Amalgamated Union of Public Corporations, Civil Service Technical and Recreational Service Employees (AUPCTRE) and Association of Senior Civil Servants of Nigeria (ASCSN) v. Independent National Electoral Commission (INEC) and 2 ors , it was canvassed that only the Minister can declare a trade dispute under the TDA. The NIC, however, rejected this contention. I understand this question, and others, are currently before the Court of Appeal.  It should, however, be noted that nowhere in the TDA is the word “declare” or “declaration” used.  The words used are “report” or reported” or “notice”.  Consequently, the declaration of a trade dispute can be said to have evolved as a convention or custom in industrial relations practice in Nigeria, which the courts have judicially noticed as can be seen in the concurring judgment of His Lordship Oputa, JSC in Western Steel Works v. Iron & Steel Workers Union .

In resolving the dispute in question, section 4 of the TDA 2004 enjoins the disputants to first explore agreed methods of resolving the dispute among themselves, and if this fails or there is no prior agreement as to how disputes are to be resolved, then within 7 days, to involve a mediator.  When this fails to settle the dispute, the dispute shall be reported to the Minister under section 6 of the TDA 2004 by or on behalf of either of the parties within 3 days of the end of the 7 days.  The Minister is here permitted to refer the matter to a conciliator under section 8 or to the IAP under section 9 or to the NIC under section 17 or to a board of inquiry under section 33, of the TDA 2004. Where the matter is referred to a conciliator under section 8, the conciliator is expected to inquire into the causes and circumstances of the dispute and by negotiation with the parties endeavour to bring about a settlement.  All this must be done within 7 days of the conciliator’s appointment.  Where a settlement is reached, the conciliator shall report that fact to the Minister and forward to the Minister the memorandum of the terms of settlement signed by the representatives of the parties. Where no settlement is reached, the conciliator shall report that fact to the Minister.

The Minister is then expected under section 9 and within 14 days to refer the matter to the IAP whose Chairman must then constitute an  arbitration tribunal consisting of either a single arbitrator (with or without assessors) or more than one arbitrator to hear and determine the matter.  The arbitration tribunal under section 13 has 21 days, or such longer days as the Minister may allow, to make its award. This award is, however, not communicated directly to the disputants, but sent to the Minister. The Minister may then communicate the award to the parties with a stipulation that within not more than 7 days, either party to the dispute may object to the award.  If there is no objection within the 7 days given, the Minister may then confirm the award by publishing in the Federal gazette a notice to that effect.  It should be noted that only when the award is confirmed by the Minister is it binding on the parties. And the power of the NIC to interpret IAP awards under sections 15 of the TDA 2004 and 7(1)(c)(ii) of the NIC Act applies only to confirmed IAP awards.

Issues have been raised by counsel on the proper construction of sections 9 and 12 of the TDA. This was essentially the case in Mix and Bake Flour Mill Industries Ltd v. NUFBTE . In that case, counsel had sought to set aside an IAP award on the basis that the parties to the matter were not given the opportunity to nominate the arbitrators who heard the matter. The NIC held that although generally in arbitration, parties are at liberty to choose the arbitrator(s), by virtue of section 9(4) of the TDA 2004, this principle applies only where the number of arbitrators will be more than one. However, the non-compliance with section 9(4) on the nomination of arbitrators by the parties is not fatal to the exercise of jurisdiction by the IAP because section 12(4) of the TDA operates to cure whatever defect may arise due to the non-observance of section 9(4).

The Minister is permitted under section 13(3) if he thinks it desirable not to notify the parties of an IAP award but to refer it back to the IAP for reconsideration. To Prof. Agomo, therefore, section 13 of the TDA 2004 has succeeded in making the IAP award a mere recommendation and the IAP itself a mere arm of a government ministry. At the moment, how this provision will play out given section 7(5) of the NIC Act 2006 can only be hazarded. Section 7(5) of the NIC Act provides that for the purpose of exercising the right of appeal, ‘a party to an arbitral award shall be entitled to obtain a copy of the records of the arbitral proceedings and the award from the arbitral tribunal’. This provision is then reinforced by Order 3 Rule 5 of the NIC Rules 2007, which provides as follows –
Where the claimant complains against an award or decision by an arbitral tribunal, board of inquiry, decision of the Registrar of Trade Unions or any other authority in respect of matters within the jurisdiction of the Court, the complaint shall be accompanied by a Record of Appeal, which shall comprise:

  • Certified true copies of all the processes exchanged by the parties at, or the representations made to the lower tribunal;
  • Certified true copies of the record of proceedings before the lower tribunal (where applicable);
  • Certified true copy of the Award or decision of the lower tribunal; and
  •  Appellant’s Brief of Argument                                                                                           

A number of questions may be raised here. In the first place, is it now valid that the Minister can sit on an award, refuse to disclose its content, and instead send it back to the IAP for reconsideration? Secondly, where this happens, can a litigant actually exercise his right of appeal (but an appeal is functional only if the content of the award is known) or of judicial review over the arbitral award that may not even be known to him given that under section 13(1)(b) of the TDA 2004 the IAP is enjoined not to disclose its award directly to the litigants but only to the Minister of Labour? And lastly, where the Minister refuses to act, can an order of mandamus under section 17 of the NIC Act be issued against him? It must be noted, however, that by sections 53 and 54(4) of the NIC Act, the TDA is now subjected to the NIC Act. What this means is that section 7(5) would take precedence over any other provision of the TDA including of course section 13. what all this means is that litigants can as of right now demand for the record of proceedings and other necessary arbitration processes from the IAP in order to prosecute appeals against an IAP award at the NIC. In other words, the prerogative writs of judicial review may issue compelling the observance of section 7(5) of the NIC Act.

Where any of the parties objects to the IAP award, the Minister, under section 14 of the TDA 2004 is expected to refer the dispute to the NIC, whose decision shall be binding except, by section 9 of the NIC Act, on questions of fundamental rights as contained in Chapter IV of the Constitution where appeals lie as of right to the Court of Appeal. Only the parties to an IAP award should have the right to object to it in order to activate the power of the Minister of Labour to exercise his duty of referral of the matter to the NIC under section 14 of the TDA 2004. It is, therefore, wrong for the Minister of Labour to refer a matter to the NIC when it is objected to by a person or body that was not a party to the matter. This was exactly the case in CAC v. AUPCTRE, where a body calling itself Joint Consultative Council (JCC) of the appellant company, a body that was not a party to the matter in dispute and is not even a registered trade union, objected to the IAP award in issue. The Minister of Labour acted on this objection and referred the matter to the NIC. We had cause in that case to point out the error of the Minister of Labour in referring the matter to the NIC. The court was, however, constrained to hear and determine the matter given that none of the parties before it raised the issue as an objection to the referral. What the Minister of Labour ought to have done was to discountenance the JCC objection, and after the permitted grace period of 7 days, in which parties to an IAP award may object, proceed to confirm the said award. In this event, all the parties would be left with is their right to have the award interpreted by the NIC in the event of any dispute arising out of its application or implementation.

A related principle laid down by the NIC in National Union of Textile, Garment and Tailoring Workers of Nigeria v. Atlantic Textile Manufacturing Co. Ltd is that the Minister of Labour has no power to refer a dispute to the NIC where he has not received any objection to the award of the IAP from either party. The court reasoned that the objection by either of the parties to the award is a prerequisite if the Minister is to exercise the power of referral. The NIC went further to hold that it constitutes a flagrant disregard of the provisions of the TDA by the IAP to constitute two different tribunals to deal with the same dispute; and that where this happens, the whole IAP award would become null and void.

Given the continued centrality of the Minister in the dispute resolution processes of Part I of the TDA 2004, the Minister (or any of the parties involved) is permitted under sections 15 and 16 respectively to apply to the NIC for the interpretation of an IAP or NIC award or a collective agreement.  In exercising its power of interpretation, the NIC may either hear the parties or, with their prior consent, not hear them in determining the question(s) as to interpretation.

So long as the processes under sections 4, 6, 9, 14 or 17, or the IAP award is binding or the NIC has issued an award, strikes and lockouts are prohibited under pains of criminal sanctions. And by section 18(3) of the TDA 2004, where a dispute is settled either by agreement or acceptance of the IAP award, that dispute is deemed to have ended. Any further dispute involving the same matters (including questions as to the interpretation of an award made by which the original dispute was settled) is, for purposes of the said section 18 of the TDA, to be treated as a different trade dispute.

Another mechanism for resolving trade disputes is the power of the Minister to constitute a board of inquiry under sections 33 and 34 of the TDA 2004.  This mechanism is rarely used most probably because of the statutory limitation implicit in its constitution.  For instance, under section 33(1) of the TDA 2004, the board of inquiry set up by the Minister is statutorily expected to only inquire into the causes and circumstances of the trade dispute in question and report thereon to the Minister. The statute is silent as to what should be made of the report by either the Minister or any other authority.  If such a report is simply filed away, this will be perfectly lawful and valid. A point needs to be noted at here. From the discussion earlier made, it can be gleaned that the TDA envisaged three kinds of disputes: trade disputes, inter-union disputes and intra-union disputes. If this theory is accepted, then it does not look as if the Minister can constitute a board of inquiry where it is an inter or intra-union dispute that is in issue since section 33(1) only provides for the constitution of a board of inquiry where a trade dispute exists or is apprehended by the Minister.

The point to note with these dispute resolution processes of Part I of the TDA is the high emphasis placed on ministerial discretion. The role of the Minister is profound.  For instance, disputants cannot go directly to the IAP except through the instrumentality of the Minister.  Even under the new dispensation, the Minister reserves the right to refer matters to the NIC. Even the other processes of mediation and conciliation have the input of the Minister as he either appoints the conciliator or must have the outcome reported to him. The point must be noted, however, that given the powers of judicial review which the NIC now has under especially sections 16 – 19 of the NIC Act, the Minister can be made accountable for the exercise of his ministerial discretion under the TDA.

Before now, the high incidence of ministerial discretion under the TDA had given rise to the question whether the TDA could stand the constitutional test of section 36 of the 1999 Constitution dealing with the right to fair hearing. Firstly, as I have shown, disputants could not go to the IAP or, in some cases, the NIC directly except through the Minister . Secondly, the IAP statutorily could not disclose its award to the disputants except through the Minister who may even ask for a reconsideration of the award. Was all of this contrary to section 36 of the 1999 Constitution?  The answer depended on how section 36(2) of the 1999 Constitution was to be interpreted.  That subsection provides –
Without prejudice to the foregoing provisions of this section, a law shall not be invalidated by reason only that it confers on any government or authority power to determine questions arising in the administration of a law that affects or may affect the civil rights and obligations of any person if such law –

  • provides for an opportunity for the person whose rights and obligations may be affected to make representations  to the administering authority before the authority makes the decision affecting that person; and
  • contains no provision making the determination of the administering authority final and conclusive.

If the dispute resolution processes of the TDA come firmly within the provisions of section 36(2) of the 1999 Constitution, then they are not offensive to the right to fair hearing under section 36(1) of the 1999 Constitution. Here, it was noted that the dispute resolution processes are not final as such and section 38 of the TDA 2004 allows for the appearance by legal practitioner on behalf of disputants . These issues were canvassed in the case of National Union of Hotels and Personal Services Workers v. National Union of Food, Beverage and Tobacco Employees and anor. The court held that the dispute resolution processes of the TDA did not offend section 36 of the 1999 Constitution although the arguments in that regard were essentially academic, theoretical and only relevant for law reform.

Despite the holding by the NIC that the TDA processes are constitutional, there is no taking the fact that the Minister had an “overbearing influence… on the process”, which according to Nojim Tairu Esq. is “so great as to becloud the fact that government itself is often a party in industrial dispute and as such should not arrogate to itself the role of an arbiter in its own [cause]”. To the commentator, “this unfortunate situation has to a large extent robbed the existing structures the trust and confidence which is the hallmark of any dispute resolution system”.            

Whether the new NIC Act has restored trust and confidence in the labour dispute resolution processes of the country is an issue that remains to be seen. All one can say at this point is that the relationship between the TDA and the NIC Act has attendant complications that may have to be resolved as they arise and on a case by case basis. I have alluded to some of these complications. But one stands out for present purposes, which relates to the enforcement provision of section 10 of the NIC Act. This section empowers the NIC to enforce its award and may commit for contempt any person or a representative of a trade union or employers’ organisation who commits any act or an omission which in the opinion of the court constitutes contempt of the court. The problem here is that because of section 10 of the NIC Act, section 23 of the TDA 2004 has been repealed. Now, section 23 of the TDA provided the authority for both the NIC and the IAP to enforce their respective awards. With the repeal of section 23 of the TDA, therefore, the question arises whether the IAP can today enforce its award since there is no mandating provision to that effect. If it cannot, can the NIC enforce the IAP award? The answer seems to be in the negative because nowhere in the NIC Act is the NIC directly empowered to enforce IAP awards. The nearest provision is section 8 of the NIC Act. But this provision deals with appeals from the IAP and other relevant bodies to the NIC, with the NIC empowered to hear the appeal. For purposes of the appeal, the NIC has the power to confirm, vary or set aside the IAP award, or order a rehearing of the matter, or order judgment to be entered for any party, or make a final order as it thinks fit. The legal problem here is that this provision deals with an appeal from the IAP, meaning that circumstance where one of the disputants objects to an IAP award. It does not seem to cater for that scenario where both disputants do not object to the IAP award (i.e. they accept the award as binding) and the Minister of Labour has confirmed the said award under section 13(4) of the TDA 2004, and yet one of the parties to the award refuses to keep to the terms of the award. It does not appear that, since the IAP cannot now enforce this confirmed award, the aggrieved party can ask the NIC for an order of enforcement given that the aggrieved party is actually not appealing against the award in order to activate the powers of the NIC under section 8 of the NIC Act. This legal problem may, however, be cured in any of two ways. The first is the threat of criminal sanction under section 14(4) of the TDA, a provision that is subsisting. Section 14(4) provides that any person who fails to comply with a confirmed award shall be guilty of an offence and shall be liable on conviction to a fine or imprisonment. Failure still to comply with the award after conviction is a further criminal offence punishable with a fine for each day on which the offence continues. The second expedient is to activate the interpretation jurisdiction of the NIC under sections 15 of the TDA 2004 and 7 of the NIC Act 2006 and in the process ask for the enforcement of the award in issue. The snag with both expedients is the circuitry involved in both of them just to get a party to enforce an award he did not object to.

Conclusion
The TDA is pretty detailed in elaborating on the mechanisms for resolving labour disputes in the country. The point must be made though in addition to all the mechanisms elaborated on in the TDA the processes of collective bargaining and strikes are additional mechanisms most often side-tracked in that discourse. The general impact of strikes on the body polity has been alluded to earlier in this paper. The concluding remarks must, therefore, address the issue whether given all that has been so far said the mechanisms for resolving labour disputes in the country are effective enough as to ensure enhanced development in the 21st Century Nigeria. In the first place, the plethora of industrial actions alluded earlier with the attendant loss in man-days does not say well of our labour dispute resolution regime. It evinces the fact that little emphasis is placed on dispute prevention for if this were not so, we would not have registered the high incidence of industrial actions that we have today. This is not just a problem of the labour scene alone. In the wider body polity, force/pressure seems to be the only effective way of drawing attention to perceived injustices. Little wonder that the world of work has its fair share in the nature of industrial actions.

One additional problem with our labour dispute resolution system is that it presently admits of a dual jurisprudence. The framers of the TDA had envisaged that labour disputes would be resolved via the special processes provided for in that legislation. Yet the reality is that disputants have found it convenient to forum-shop in terms of where to litigate their labour grievances, either through the processes of the TDA or through the common law processes of the High Court. Now, the common law processes are fixated in their principles that in appropriate circumstances much injustice has been the outcome. I have had cause at the All Nigeria Judges Conference which held last year to raise some concerns on the orthodoxy of the common law principles . In that paper, I addressed issues bordering on the applicability of international labour standards in the resolution of labour disputes; the applicability or otherwise of a theory/doctrine of unfair labour practices especially when juxtaposed against the backdrop of such problem areas as outsourcing, contracting out, etc, which yields to the  question of how to treat the issue of economically dependent work otherwise called quasi-subordinate work; the continued applicability of the doctrine which permits the employer to terminate an employment for no reason at all; the issue whether reinstatement can be founded on grounds beyond statutory employment e.g. trade unionism; the applicability or otherwise of collective agreements; etc. I concluded that discourse by urging that we may need to reappraise our traditional thinking in labour law if we are to keep the pace with global challenges regarding the application of labour law in the resolution of disputes.

One issue we easily overlook when it comes to resolving labour disputes is that if there is a discipline where the influence and participation of non-lawyers, and disciplines other than law, is higher than that of lawyers, it is industrial relations law and practice. As the slogan goes, ‘keep the law out of industrial relations’ . It is in this sense that the prevention of labour disputes through social dialogue comes to the fore. I indicated earlier that one noticeable impact of the breakdown of social dialogue is the prevalence of strikes and other forms of industrial actions. What we must do then is to evolve dispute prevention measures such as the development of codes of good practice and model agreements to guide employer and workers’ conduct, and enterprise level capacity building so as to minimize the pervasive culture of adversarial labour relations.


* A public lecture presented at the National Open University in Lagos on September 16, 2010.

§ Formerly, Associate Research Professor of Law, the Nigerian Institute of Advanced Legal Studies, Lagos.

See the Vanguard Newspaper of August 20, 2010.

Ibid.

International Labour Office, Geneva – Tackling the global jobs crisis: Recovery through decent work policies, Report of the Director-General, International Labour Conference, 98th Session 2009, Report I(A).

See O. V. C. Okene – “Collective Bargaining, Strikes and the Quest for Industrial Peace in Nigeria” [2008] Nigerian Journal of Labour Law & Industrial Relations, Vol. 2 No. 2 at pp. 39 – 66.

Peter Anosike – “Strikes and their high cost to the economy” available at http://ndn.nigeriadailtnews.com/template/?a=19355 as accessed on August 14, 2010.

Ibid.

See C. Osim Ndifon – “Strike under the Nigerian Labour Law: An Overview” [2008]Nigerian Journal of Labour Law & Industrial Relations, Vol. 2 No. 1 at pp. 35 – 46.

Okene (2008), op. cit. at p. 39.

A project to promote democracy through fundamental principles and rights at work and tripartism (NIDEC – NIR/00/M50/USA) undertaken under the auspices of the International Labour Organisation (ILO). I served as a member, representing government, in the Technical Committee of this project. The Technical Committee was charged with the responsibility of reviewing and reforming all the labour laws applicable in the country. The outcome of this exercise is currently before the National Assembly where the House of Representatives has already conducted a public hearing on the proposed new labour laws.

See B. Gernigon, A. Odero and H. Guido – ‘Freedom of Association’ in International Labour Standards: A Global Approach, 75th Anniversary of the Committee of Experts on the Application of Conventions and Recommendations, First Edition 2002 at pp. 27 – 40. The Preliminary version of this text is also available in a CD entitled, International Labour Standards Electronic Library (ILSE) 2005 under the heading, Global Approach in the section on Publications.

Ibid, as amplified at pp. 36 – 40.

See B. Gernigon, A. Odero and H. Guido – ‘Collective Bargaining’ in International Labour Standards: A Global Approach (2002), op. cit. at pp. 41 – 51 especially at pp. 49 – 50.

Cap. T8 LFN 2004.

[2000] 14 NWLR (Pt. 687) 356.

[2007] 15 NWLR (Pt. 1056) 42.

[1993] 4 NWLR (Pt. 287) 288.

[2001] 14 NWLR (Pt. 733) 356.

[1991] 4 NWLR (Pt. 186) 450.

[2001] 7 NWLR (Pt. 711) 1.

[2001] 13 NWLR (Pt. 729) 232.

See the Report of the Committee of Experts on the Application of Conventions and Recommendations (CEACR) of the ILO to the International Labour Conference, 99th Session, 2010, which held in Geneva.

Charles Nupen and Halton Cheadle – “Dispute Prevention and Resolution”, Working Paper 1, Nigerian Labour Law Reform, 2003.

E. O. Olowu – “Dispute Settlement Law and Practice in Industrial/Labour Practice,” a paper presented at a workshop on Industrial Relations and the Law organised by the Nigerian Institute of Advanced Legal Studies (NIALS), Lagos and held from April 8 – 10, 1997.

T. A. T. Yagba – “Labour Law and Industrial Relations in a Liberalised Economy,” a paper presented at a workshop on Industrial Relations and the Law organised by NIALS, Lagos and held from April 8 – 10, 1997.

See, for instance, Federal Government of Nigeria v. Adams Oshiomhole [2004] 1 NLLR (Pt. 3) 541 and National Union of Electricity Employees v. Bureau of Public Enterprises unreported Suit No. SC.62/2004 delivered on 25th February, 2010.

[2005] 2 NLLR (Pt. 6) 446.

[1998] 4 NWLR (Pt. 544) 37.

[2005] 15 NWLR (Pt. 948) 409 at 430 CA.

Nigerian Union of Pharmacists, Medical Technologists and Professions Allied to Medicine v. Obafemi Awolowo University Teaching Hospital Complex Management Board, In re: Medical and Dental Council of Nigeria and Nigerian Medical Association, unreported Suit No. NIC/8/2006 delivered on May 22, 2007.

Godwin Tosanwumi v. Gulf Agency and Shipping Nigeria Limited unreported Suit No. NIC/18/2006, the ruling of which was delivered on June 14, 2007 and Mrs. Oyeleke and ors v. NICON Insurance Plc and anor unreported Suit No. NIC/14/2006, the ruling of which was delivered on November 14, 2007.

Senior Staff Association of University Teaching Hospitals, Research Institutions and Associated Institutions (SSAUTHRIAI) and ors v. Federal Ministry of Health and anor, unreported Suit No. NIC/12/2000 delivered on March 30, 2006, Senior Staff Association of Nigerian Universities v. Federal Government of Nigeria unreported Suit No. NIC/8/2004 delivered on May 8, 2007 and Ondo State Government v. National Association of Nigeria Nurses and Midwives and anor unreported Suit No. NIC/1/2007 delivered on July 4, 2007.

Supra, at especially pp. 470 – 475.

See E. E. Uvieghara – Labour law in Nigeria (Malthouse Law Books:  Lagos) 2001 at pp. 431 – 432.

[2008] 7 NWLR (Pt. 1085) 1.

Ibid, per His Lordship Oguntade, JSC at p. 30.

Ibid.

[1998] 2 NWLR (Pt. 537) 189.

[2003] 8 NWLR 1.

[2003] 13 NWLR (Pt. 837) 382, and excerpted and commented upon in Bamidele Aturu – Nigerian Labour Laws: Principles, Cases, Commentaries and Materials (Friedrich Ebert Stiftung), 2005 at pp. 118 – 124.

See, for instance, R. C. Simpson – ‘“Trade Dispute” and “Industrial Dispute” in British Labour Law’ [1977] 40 The Modern Law Review 16; Bob Simpson – ‘A Not So Golden Formula: In Contemplation or Furtherance of a Trade Dispute After 1982’ [1983] 46 The Modern Law Review 463; and Smith (1996) op. cit. at pp. 587 - 594.

[2003]15 WRN 32.

[2001] 14 NWLR (Pt. 733) 313.

Oluwole Kehinde (ed.) – Digest of Judgments of National Industrial Court (1978 – 2006), hereinafter referred to simply as Digest, at pp. 374 – 376. See also National Union of Hotels and Personal Services Workers v. National Union of Petroleum and Natural Gas Workers at pp. 381 – 383 of the Digest, where the NIC held that by section 16A of Decree 4 of 1996, the institution of check-off dues is a term of employment of a worker.

Oluwole Kehinde (ed.) – Digest at pp. 388 – 389.

Oluwole Kehinde (ed.) – Digest at pp. 390 – 393.

[2006] 5 NWLR (Pt. 974) 590.

Cap T14 LFN 2004.

[1985] 1 NWLR (Pt. 4) 755.

[2008] 2 NWLR (Pt. 1072) 575.

Unreported Suit No. NIC/11/2007 the ruling of which was delivered on January 24, 2008.

For a critique of these processes especially under the old dispensation, see B. B. Kanyip – “National Industrial Court: Jurisdiction, Practice and Procedure” in Epiphany Azinge (ed.) – Jurisprudence of Jurisdiction (Sambak Print: Lagos), 2005 pp. 514 – 546; B. B. Kanyip –  “The National Industrial Court: Jurisdiction, Powers and Challenges” in Enobong Etteh (ed.) – Rocheba’s Labour Law Manual, vol. 1 2007 at pp. 52 – 103; B. B. Kanyip – “Trade Unions and Industrial Harmony:  The Role of the National Industrial Court and the Industrial Arbitration Panel”, a paper presented at the 2001 Annual Conference of the Nigerian Bar Association held at the Cultural Centre, Calabar from August 27 – 31, 2001 and published in [2003] Nigerian Bar Journal Vol.1 No. 2 at pp. 218 – 235; B. B. Kanyip and C. K. Agomo – Analysis of Current Nigerian Labour Laws (Assessment Report), submitted to the DECLARATION PROJECT – NIGERIA, a project to promote democracy through fundamental principles and rights at work and tripartism  (NIDEC – NIR/00/M50/USA), April 2002; and C. K. Agomo – The Report on the Evaluation of the Industrial Arbitration Panel and the National Industrial Court, October 1992.

See B. B. Kanyip – “Labour Law” in Niki Tobi – Uwais Through The Cases (Snaap Press Ltd: Enugu), 2006 459 at p. 462.

[2000] CLR 6 (q)(SC) or [2000] 5 WRN 47.

See, for instance, Senior Staff Association of Statutory Corporations and Government Owned Companies, Nigerian Port Authority Branch & others v. Senior Staff Association of Statutory Corporations and Government Owned Companies, unreported Suit No. NIC/8A/2001 decided on July 3, 2001; Maritime Workers Union of Nigeria & ors v. NLC & ors [2005] 4 NLLR (Pt. 10) 270; Performing Musicians Employers’ Association of Nigeria and ors v. Femi Lasode and ors, unreported Suit No. NIC/16M/2003 decided on July 8, 2005; and National Union of Hotels and Personal Services Workers v. National Union of Food, Beverage and Tobacco Employees and anor. [2004] 1 NLLR (Pt. 2) 286.

Ibid.

Cap. 437 LFN 1990.

See Senior Staff Association of Statutory Corporations and Government Owned Companies, Nigerian Port Authority Branch & others v. Senior Staff Association of Statutory Corporations and Government Owned Companies, supra; Maritime Workers Union of Nigeria & others v. NLC & others, supra; and National Union of Hotels and Personal Services Workers v. National Union of Food, Beverage and Tobacco Employees and anor, supra.

Unreported Suit No. NIC/11/2007 delivered on January 24, 2008.

Unreported Suit No. NIC/12/2007 delivered on January 24, 2008.

Unreported Suit No. NIC/6/2007 delivered on March 11, 2008.

Unreported Suit No. NIC/36/2008 delivered on January 20, 2009.

AUPCTRE v. FCDA and ors unreported Suit No. NIC/17/2006 delivered on 23rd May, 2007.

See, for instance, Engr. F. N. Ugwu v. Bob Sose Eke & 8 ors unreported Suit No. NIC/E/76/2008 the ruling of which was delivered on 11th June 2009 and Patricia N. Ugwu & ors v. Ossy Rocke Feller Ogboso & ors unreported Suit No. NIC/EN/03/2009 the ruling of which was delivered on April 21, 2010.

See, for instance, the case of Chemical & Non-Metallic Products Senior Staff Association v. Benue Cement Co. Plc [2005] 2 NLLR (Pt. 6) 446 at especially pp. 470 – 475 which I alluded to earlier.

By section 48(1) of the TDA 2004, essential service means any service mentioned in the First Schedule to the TDA.

Suit No. NIC/1/2007. The matter has been disposed of by the court.

[2004] 1 NLLR (Pt. 1) 1.

[2006] 5 NLLR (Pt. 11) 75.

[1987] 1 NWLR (Pt. 49) 284.

An interesting case is National Headquarters of Nigeria Union of Civil Typist, Stenographic and Allied Staff v. Federal Brach of Nigerian Union of Civil Typist, Stenographic and Allied Staff Suit No. NIC/8/2005. In that case, the appellant had objected to an IAP award for which the Minister of Labour referred the matter to us. The act of objecting to the IAP award meant that the award could not be confirmed by the Minister of Labour. At the hearing of the matter, the appellant applied to withdraw the matter from court. This application was not opposed by counsel to the respondent and so the NIC granted it. It dawned on the respondent’s counsel that the effect of the withdrawal of the appeal is to have a non-binding award since it was neither confirmed by the Minister of Labour nor sanctioned by the court. The respondent subsequently applied for a consequential order of the court to either enter the IAP award as judgment of the court or order the Minister of Labour to confirm it given that the appeal in respect of it has been withdrawn. The court made the former order.

[2004] 1 NLLR (Pt. 2) 247

Agomo (1992) op cit at p. 18.

Oluwole Kehinde (ed.) – Digest at pp. 79 – 80. The case was decided on 1st June, 1981.

An interesting scenario presented itself at the NIC some years back where the constitutionality of some of the TDA provisions could have been tested against the backdrop of section 36 of the 1999 Constitution.  An intra-union dispute was filed directly before the NIC without going through the Ministry of Labour.  The argument was raised that in such a case, the NIC cannot hear the matter as a court of first instance. The NIC did uphold the argument that we can only entertain the matter in our appellate jurisdiction, which can only be activated by a referral from the Minister of Labour.  The interesting thing about the case, however, was that the dispute related to questions as to which of two factions was properly in charge of the union.  In the processes filed in court was a copy of a newspaper publication wherein the Minister of Labour had congratulated one of the factions as the authentic group elected to run the affairs of the union.  When the matter came to the NIC as a court of first instance and the question as to jurisdiction was raised, it was unfortunate that throughout arguments, counsel did not even make the case that having to come directly to the NIC was precipitated by the fear of a lack of fair hearing if they had gone first to the Minister who had already taken sides by congratulating the other faction.  In line with the principle that a judge should not descend into the arena, we had to decide the matter by declining jurisdiction without the benefit of arguments as to whether thereby the right to fair hearing will not be infringed.

An appeal often lies from one process to a higher one:  From mediation to conciliation to the IAP and then to the NIC. Even in regards to the NIC, appeals lie as of right to the Court of Appeal in respect of fundamental rights as provided by the repealed section 21(3) of the TDA 2004, which is now section 9 of the NIC Act.

Under section 46 of the NIC Act, legal practitioners have right of audience in the NIC to represent their clients although a party to a dispute before the court may represent himself or be represented by the organisation (trade union, senior staff association, employers’ association or federation of trade unions) to which he belongs.

Nojim Tairu Esq. – “Liberalising the Industrial Disputes Resolution Processes in Nigeria: Option and Recommendations”, a paper presentation at a Two Day Advocacy Workshop on the Review of Trade Disputes Resolution Mechanism in Nigeria organized by the National Association of Democratic Lawyers (NADL) from June 20 – 21, 2001 at Circular Hotel, Ilorin, Kwara State.

Ibid.

See the case of Nigeria Merchant Navy Officers and Water Transport Senior Staff Association v. Ocean Fisheries (Nigeria) Ltd and anor [2005] 2 NLLR (Pt. 6) 490 where in an application for the NIC to order the 1st respondent to implement the judgment of the NIC made on 9th June, 1994 in Suit No. NIC/8/93, the NIC acceded and made the order.

See B. B. Kanyip – “Current Issues in Labour Dispute Resolution in Nigeria”, a paper presented at the 2009 All Nigeria Judges’ Conference, which held at Andrews Otutu Obaseki Auditorium, National Judicial Institute, Abuja from 23 – 27 November, 2009 under theme, Law, Justice and Good Governance in a Democracy.

I. T. Smith – Industrial Law (Butterworths: London), 1996, 6th ed. at p. 21.

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