ABSTRACT
The major problem in the Nigeria Labour System has been and still remains the incessant strikes by workers. Strike as distasteful as it is, performs various useful functions, for example when it is properly used, it can force management to concede to the demands of the workers. In spite of its usefulness in the employer-employee’s relationship, it imposes costs on the two sides and on the economy as a whole.
How has the government responded to the problem of industrial action which has adversely affected the economy of the country? In 1976, the Trade Dispute Act was promulgated to manage and regulate trade dispute matters in Nigeria. The aim of the Act was to promote industrial peace and harmony in the country. Unfortunately, the incidence of trade disputes in Nigeria is still alarming. This problem brings to fore the question whether the Trade Dispute Act has been able to meet up to expectations.
This work therefore desires to find out the positive law relating to trade disputes and settlement processes. The paper examines the Trade Dispute Act, 1976 and its provisions for trade dispute settlement. It also finds out whether the Trade Dispute (Amendment) Decree No 47 of 1992, has made things easier.
It also examines the jurisdiction of the National Industrial Court and the new provision under the National Industrial Court Act, 2006.
All these are the issues that are pertinent and are discussed in the course of this work.
TABLE OF CONTENTS
COVER PAGE…………………………………………………………………..I
CERTIFICATION
PAGE………………………………………..……………………………………..II
ABSTRACT………………………………..…………………………………………….III
TABLE OF
CONTENTS……………………………………………………………………..IV
DEDICATION………………………………….………………………………………V
ACKNOWLEDGEMENT………………………………………………….…VI
TABLE OF
CASES………………………………………….……………………………..VII
TABLE OF
STATUTES…………………………………………………………………VIII
LISTOFABBRREVIATIONS…………………………………………………………….. xiv
CHAPTER 1
GENERAL INTRODUCTION
1.0.0: INTRODUCTION 1
1.1.0: BACKGROUND TO THE STUDY 4
1.2.0: OBJECTIVE OF THE STUDY 5
| 1.3.0: | DEFINITION OF TERM | 6 | |
| 1.4.0: SCOPE OF THE STUDY | 10 | ||
| 1.5.0 | LITERATURE REVIEW | 10 | |
| 1.6.0: | METHODOLOGY | 13 | |
| 1.7.0: CONCLUSION | 13 | ||
CHAPTER 2
NATURE, DEFINATION AND HISTORY OF TRADE DISPUTES IN NIGERIA
| 2.0.0: INTRODUCTION | 15 |
| 2.1.0: MEANING AND NATURE OF TRADE DISPUTE | 15 |
| 2.1.1: SUBJECT MATTER OF TRADE DISPUTE | 17 |
| 2.1.2: PARTIES TO A TRADE DISPUTE | 19 |
| 2.1.3: PURPOSE OF TRADE DISPUTE | 20 |
| 2.2.0: HISTORY OF TRADE DISPUTE | 21 |
| 2.3.0: THE RIGHTS AND OBLIGATIONS OF EMPLOYERS AND | |
| EMPLOYEES UNDER THE TRADE DISPUTE ACT, CAP 432 | |
| LFN 1990 | 25 |
| 2.3.1: RIGHTS AND OBLIGATIONS OF THE PARTIES | 27 |
| 2.4.0: INHERENT DEFECTS IN THE TRADE DISPUTE LAWS | 29 |
| 2.4.1: DEFECTS IN THE 1941-1969 LAWS | 29 |
| 2.4.2: DEFECTS IN THE PROCEDURES FOR TRADE DISPUTE | |
| REDOLUTION UNDER THE TRADE DISPUTE ACT 1990 | 32 |
| 2.5.0: CONCLUSION | 35 |
| CHAPTER 3 | |
| MECHANISM FOR TRADE DISPUTE RESOLUTION | |
| 3.0.0: INTRODUCTION | 36 |
| 3.1.0: SELF HELP | 37 |
| 3.2.0: | MEDIATION | 39 |
| 3.3.0: | CONCILIATION | 42 |
| 3.4.0: | INDUSTRIAL ARBITRATION PANEL | 44 |
| 3.5.0: | NATIONAL INDUSTRIAL COURT | 51 |
| 3.6.0: | BOARD OF INQUIRY | 56 |
| 3.7.0: | CONCLUSION | 58 |
CHAPTER 4
AN APPRAISAL OF NEW LEGISLATION AND ROLE OF COURTS
| 4.0.0: INTRODUCTION | 59 |
| 4.1.0: THE TRADE DISPUTE (AMENDMENT) DECREE OF 1992 | 60 |
| 4.2.0: THE EFFECT OF 1999 CONSTITUTION | 63 |
| 4.3.0: THE POSITIONS OF THE COURT | 68 |
| 4.3.1: THE JURISDICTION OF THE NATIONAL INDUSTRIAL COURT | |
| ON LABOUR MATTERS – WHETHER EXCLUSIVE | 68 |
| 4.3.2: THE TRADE DISPUTE ACT, CAP 432 LFN, 1990 | 69 |
| 4.3.3: THE TRADE DISPUTE (AMENDMENT) | |
| DECREE, NO 47, 1992 | 70 |
4.3.4: WHAT IS THE CONSTITUTIONALITY OF THE EXCLUSIVE JURISDICTION GIVEN TO THE NATIONAL INDUSTRIAL COURT UNDER THE TRADE DISPUTE ACT AS AMENDED BY
| DECREE 47 OF 1992? | 72 | |
| 4.3.5: THE NATIONAL INDUSTRIAL COURT ACT, 2006 | 74 | |
| 4.4.0: | COURT JURISDICTION, POWERS AND LIMITATIONS | 78 |
| 4.4.1: | ORIGINAL JURISDICTION | 82 |
| 4.4.2: APPELLATE JURISDICTION OF THE COURT | 85 |
| 4.3.0: CONCLUSION | 88 |
| CHAPTER 5 | |
| CONCLUSION AND RECOMMENDATION | |
| 5.0.0: CONCLUSION | 90 |
| 5.1.0: RECOMMENDATION | 91 |
| BIBLOGRAPHY | 96 |
TABLE OF CASES
NIGERIA
- G. Of Abia State v A. G. Of Federation (2002) 6 NWLR (PT.763) 264
- Adisa v Oyinwola (2000) 10 NWLR (PT.674) 116
- Association of Senior Civil Servants of the Federal of Nigeria v Management of Federal Audit Department IAP/L304/90
- Attorney General, Oyo State, v National Labour Congress (2003) 8NWLR pg. 1
- Iron and steel Senior Staff Association v Management of critical Hope Nigeria Limited (1978) NICLR 192
- Isaac Jeje v Kasumu Kadiri (1987) 4 NWLR (65) 460
- kalango v Dokubo (2003) 15 NWLR pg. 32
- Labiyi v Anretiola (1992) 8 NWLR (PT.258) 139 at page 160
- Madu v N.U.P (2001) 16, NWLR (pt 737) 346
- Military Governor Of Ondo State v Adewumi (1988) 3 NWLR (PT.82) 280
- N.B v Oshoh (2001) 3 NWLR (729) 232
- U.R.T.W. v R.T.E.A.N. (2001) 14 NWLR (733) 313
- National Union of Chemical and Non-Metallic products workers v Management of Glaxo (Nig) Ltd IAP/L201/87
- National Union of Road Transport Workers v Ogbodo (1998) 2 NWLR(537) 189 CA
- Nwosu v Imo State Environmental Sanitation Authority (1990) 2 NWLR(PT. 135) 688
- Okulate v Awosanya (2000) 2 NWLR (PT.646) 530
- Onumalobi v NNPC (1999) 12 NWLR (633) 628
- Panya v Sea Trucks (Nig) Ltd (1995) NWLR (pt 399) 35
- Petro Jessica Enterprise Ltd. V. Leventis Technical Co. Ltd. (1992) 5NWLR (pt. 244) 675 at 693
- Savannah Bank v Pan Atlantic Shipping and Transport Agency (1992) 5NWLR (pt. 244) 675 at 693
- Sea Trucks (Nig) Ltd v Payne (2002) 12, SC (pt11) 119
- Udoh v O.H.M.B (1993) 7, NWLR (pt 304) 139
- Udoh v Orthopaedic Hospitals Management Board (1993) 7 NWLR(PT.304) 139
- Western Steel Workers Ltd v Iron and Steel Workers of Nigeria (1987) 2,SCNJ 1
UNITED KINGDOM
- Conway v Wade (1909) AC 506
- A.L.G.O. v Bolton Corporation (1943) AC 166 at 169
- Larkin V. Long (1915) AC, 814
- Allen V Flood (1989) AC 1
TABLE OF STATUTES
NIGERIA
- Constitution of the Federal Republic of Nigeria 1979.
- Constitution of the Federal Republic of Nigeria 1999.
- Federal High Court Act, 1973.
- Labour Act 1990.
- National Industrial Court Act 2006.
- The Trade Dispute (Essential Services) Act, Cap 433, LFN 1990.
- The Trade Disputes (Emergency Provisions) Decree of 1968, Decree No. 21, 1968.
- Trade Dispute (Arbitration and Inquiry) (Federal Applicant)
Ordinance, 1957, Cap 202 LFN 1958.
- Trade Dispute (Arbitration and Inquiry), (Lagos) Ordinance, 1947, Cap 201 LFN 1958.
- Trade Dispute (Emergency provisions) Decree 1969, Decree No. 53, 1969.
- Trade Dispute Act 1976, Cap. 432, LFN 2004.
- Trade Disputes (Amendment) Decree No 47 of 1992.
- Trade Union Act, 1973.
LIST OF ABBREVIATIONS
| · | A.C | Appeal Cases |
| · | IAP | Industrial Arbitration Panel |
| · | NICLR | Nigeria Industrial Court Law Report |
| · | NWLR | Nigeria Weekly Law Report |
| · | SC | Supreme Court |
| · | SCNJ | Supreme Court of Nigeria Judgement |
BIBLOGRAPHY
ARTICLES IN JOURNALS
- Adeogun A.A, ‘Towards a Better System of Trade Dispute’ (1972) Nigeria Law Journal
- Akanbi M.M.O, ‘An Appraisal of The Machinery for The Settlement of Trade Dispute in Nigeria: Problems and Challenges’ (2001) Journal of Law and Social Sciences
ARTICLES ON THE INTERNET
- Uche Obiorah, Esq, ‘Jurisdiction of the National Industrial Court’ http://iolalaw.com/jurisdictionbody.html accessed on 15 February2011
- Terence Terfa VEMBE Esq, ‘The National Industrial Court As a Tool For the Enhancement of the Nigerian Industrial Dispute Resolution System’ http://searchwarp.com/swa335159.html accessed on 15 February 2011
BOOKS
- Emiola A, Nigeria Labour Law (Ibadan University Press 1982)
- Okene O.V.C, The Legal Regulation of Strikes in Nigeria (Finance and Investment Law 2001)
- Uvieghara E.E, Trade Unions Law in Nigeria (University of Lagos Press)
- Okene O.V.C, The Status of the Right to Strike in Nigeria: APerspectivefrom International and Comparative Law (Finance andInvestment Law 2007)
NEWSPAPER REPORTS ON THE INTERNET
- Wahab Shittu, ‘National Industrial Court and 1999 Constitution’, Punch Newspaper (Nigeria 14 June 2010) http://www.punchng.com/Articl.aspx?theartic=Art20100614205867 accessed on 23 January 2011
- Kayode Ketefe, ‘NIC: The changing face of labour justice in Nigeria’, National Mirror Newspaper (Nigeria 14 March 2011)
http://nationalmirroronline.net/features/7632.html accessed on 25
March 2011
- Lillian Okenwa, ‘Legal Limits of Labour’, ThisDay Newspaper (Nigeria 22 May 2004) http://thisdayonline.info/archive/2004/05/22/20040522dis01.html accessed on 18 January 2011.
- Abayomi Apata, ‘Industrial Court and challenges of legal backing’, Punch Newspaper (Nigeria 4 April 2011) http://punchng.com/Articl.aspx?theartic=Art201104043122256 accessed on 20 April 2011.
PAPERS PRESENTED AT CONFERENCES, WOKSHOPS AND
SEMINARS
Kanyib B.B, ‘Trade Unions and Industrial Harmony: The Role of the National Industrial Court and the Industrial Arbitration Panel’ (Paper presented at the Annual Conference of the Nigerian Bar Association, 2001).
- Justice Babatude Adeniran Adejumo, ‘The Role of the Judiciary in Industrial Harmony’ (Paper presented at the Annual Conference of All Nigeria Judges’, Abuja 2007).
xvii
CHAPTER 1
GENERAL INTRODUCTION
1.0.0: INTRODUCTION TO STUDY
Industrial harmony is very important both at the public and private sectors because of the negative impact of disputes in the labour sector. Trade dispute, when it occurs could be a very serious issue especially when it is allowed to degenerate into an industrial action. Few trade disputes get reported but the ones that are recorded help the government to get a proper analysis for the evaluation and policy purposes. Though quite a large number of disputes occur without resort to strike, however they are equally as disruptive as cessation of work.
Since government is the largest employer of labour, it has from time to time enacted different laws curb to the incidence of trade disputes between employers and their workers in Nigeria.
Trade dispute has been defined by the Act as any disagreement between employers and workers, workers and workers which is connected to the employment, non employment or terms of employment or physical
1
condition of work of any person1. It must be noted that before any dispute can be termed a trade dispute, there must be in existence proper parties and the subject matter must be related to the employment, non employment or terms of employment or physical condition of work of any person2.
This shows that the parties and subject of a trade dispute must be clearly defined in order to fully understand what kind of dispute constitutes a trade dispute. The first attempt made by the government to regulate trade dispute was the Trade Disputes (Arbitration and Inquiry) (Lagos) Ordinance, 19413 and Trade Dispute (Arbitration and Inquiry) (Federal Application) Ordinance, 19574. However, these attempts turned out to be unsuccessful because of some defects in them which eventually shorten their life span and new legislation were enacted, these are the Trade Dispute (Emergency Provisions) Decree of 19685 and the Trade Dispute (Emergency Provisions) (Amendment) (Decree No 2) of 19696.
These two Decrees were enacted to correct the defects in the first two ordinances they were effective in some aspect but they were designated to
- Trade Dispute Act 1978 S.47 (1)
- NNB V. Osoh (2001) 3 NWLR (729)
- Ordinance No. 32 of 1942 Cap 201 LFN !958
- Ordinance No. 46 of 1957
- Decree No. 21 of 1968
- Decree No. 53 of 1969
2
last for a short time7. The Decree had some inherent defects which were to be regulated by the Trade Dispute Act, 1976 which till today remains the major machinery for the settlement of trade disputes and its amendment the Trade Dispute (Amendment) Decree No. 47 of 19928.
The Trade Dispute Act, 1976 has provided different procedures for setting trade disputes when they occur, the Act provides for ways in which the parties may attempt the settlement themselves and ways in which a 3rd party may be appointed to help in the settlement processes. It also provides for ways in which the parties may take the dispute to the court for proper adjudication.
Examination of the laws and procedures for the regulation of trade disputes is the focus of this study and recommendations made where necessary for a better way of resolving trade disputes.
1.1.0: BACKGROUND TO THE STUDY
- Because they were a temporary war time measures which outlived its usefulness with the cessation of hostilities
- M.O Akanbi (2001) JLSS Vol.1 No.1, pg 69
3
In any ideal industrial relations, great emphasis is placed on the attainment of industrial harmony in order to create a conducive environment for the realization of individual and organization goals and objectives. However, it would appear that conflict is a common phenomenon in any human setting and when it exists, it creates human and industrial problems, which adversely affect the attainment of industrial peace.
Since conflict in any work situation is almost inevitable because as labour and management relates, there are bound to be frictions which results from differences in interest and aspirations as both the employer and employee most times have divergent interest on issues touching on wages, conditions of work, terms of employment e.t.c and resolving these dispute requires compromise, concession and a game of give and take between disputing parties.
4
1.2.0: AIMS AND OBJECTIVES
This work is intended to make an analysis of the Trade dispute resolution Mechanism of the Trade Dispute Act 1990 as well as a comparative study of Trade Dispute Decree 1992 alongside the constitution. Subsequently, an examination into the defects that has rendered the law ineffective will be made and thereafter to profer solution with a view to improving the machinery for Trade dispute resolution.
The study looks into the issue of whether National Industrial Court is a superior Court of Record or not.
It looks at the new position of law concerning the jurisdiction of the National Industrial Court on Trade dispute matters.
The main aim of the study is to undertake an assessment of the law as it related to the settlement of trade disputes in Nigeria and proffer solutions where necessary for a more effective means of settling trade dispute.
1.3.0: DEFINATION OF TERMS
5
“Trade Dispute” is any disagreement between employers and workers,worker and workers which is connected to the employment, non employment or terms of employment or physical condition of work of any
person9.
“Strike” has been defined by the Act as the cessation of work by a bodyof employed persons acting in combination, or by concerted refusal under a common understanding of any number of employed persons to continue to work for an employer in consequence of a dispute, done as means of competing with their employers or any person or body of persons employed, to aid other workers in compelling their employer or any person or body of employed persons to accept or not to accept terms of employment and physical condition of work10.
In Tramp shipping corporation V. Greewich Marine Inc.11 “The Court of Appeal in United Kingdom adopted the following definition of strike:
‘ a concerted stoppage of work by men done…. With a view to improve their wages or condition of employment, or giving vent to a grievance or making a protest about something or others supporting or sympathizing with other workmen in such endeavour’
- Op cit Note 1
- ibid
- (1975) 2 All E.R 989
6
This definition accords with the definition under the Trade Dispute Act, 197612.
Refusal to continue to work includes a refusal to work at usual speed and efficiency.
“Lockout” is an action in which employees physically “takeover” thecompany premises either by locking out the management staff, thus denying them access to a exit from the premises13.
It is also defined by the Act as ‘the closing of a place of work or, the suspension of
work, or the refusal by an employer to continue to employ any number of persons employed by him, in consequence of a dispute with a view to compelling the workers to
accept terms of employment’14.
“Collective Bargaining” has been defined as the process of arriving orattempting to arrive at a collective agreement15.
Collective Agreement ‘is any agreement in writing, relating to the terms of
employment and physical condition of work, between an employer, group of employers
- ibid S. 37
- My Industrial Law Lecture note (2008)
- Op cit note 1 S.37 (1)
- Labour Act, 1974 S. 90 (1)
7
or one or more organization representing the employers on one part and one or more
organization representing the workers, on the other hand’.16
In this work, unless the context requires otherwise, the following expression have the meaning assigned to them here under:-
“Party” means any of the parties to trade dispute or any of the parties to atrade matter lying before a court of N.I.C.
“N.I.C” means the National Industrial Court
“I.A.P.” Means Industrial Arbitration panel
“The Tribunal” Means the Industrial Arbitration Tribunal
“Court” Means the conventional court listed in section 6 (5) 1999
constitution.
“The Decree” Means the Trade Dispute (Amendment) Decree No 47 of 1992
“Laws” means the laws regulating trade dispute in Nigeria as covered in this book.
“The Act” Means the Trade Dispute Act, Cap 432, LFN 1990
“Dispute” Means trade Dispute
16 ibid S. 37 (1)
8
“Minister” Means the Minister for employment labour and productivityof the Federation.
“Condition of Work” Means the physical condition under which aworkman, works such as appertain to matters of Safety and physical comfort at the place of work.
“Terms of Employment” Means all matters covered by the contract of
employment
9
1.4.0: SCOPE OF STUDY
Conceptually, this work also covers, although in passing and on restricted discussion the other alternative resorts to the settlement of trade dispute i.e. strikes and lock-outs as effects of trade disputes.
This essay will cover the provisions of the Trade Dispute Act, 1990, particularly its trade dispute resolution machinery. The Trade Dispute Decree, 1992 and the constitution of the Federal Republic of Nigeria 1999 are also covered in this work, principally these are the laws regulating trade dispute resolution in Nigeria. The Labour Act, 199017 and the Trade Union Act, 199018 are also covered only to the extent of their reference to trade dispute.
1.5.0: LITERATURE REVIEW
There are few Nigeria text books on labour law. Besides that most of the available texts were published before the current trade dispute issues evolved, hence, this particular area of study did not lay reliance on the knowledge contained in those books.
- Cap 198, LFN, 1990
- Cap 437, LFN, 1990
10
However, the few scholars whose books touched on this topic will have
their books referred to and examined in this book. These scholars include:
- AKANBI M. M. O: In his book “An Appraisal of the machineryfor the settlement of trade dispute in Nigeria: problems and challenges” where he explained in details the basic mechanism for the settlement of trade dispute and the problems and challenges the mechanisms are facing. The book is comprehensive on trade dispute settlement and it is of great importance to this essay.
- EMIOLA A: In his book “Nigeria Labour Law” laid emphasis onthe law regulating trade dispute in Nigeria and how industrial harmony can be achieved. The book covers extensively the Trade dispute Act of 1976.
- UNIEGHARA E.E: In his book “Trade Union Law in Nigeria”discussed the relationship between employers and employees, and the laws and procedures guiding trade union. It also states various Alternative Dispute Resolution that can be employed to resolve industrial dispute.
- OLADOSU : “Nigeria Labour and Employment Law in
Perspective” provides a comprehensive analysis of the laws
11
regulating Nigeria labour law by focusing more on the Trade
Disputes (Amendment) Decree No 47 of 1992.
- OKENE O.V.C.: “The Legal Resolution of strikes in Nigeria: Acritical Appraisal” discussed extensively the effect of strike, ways of resolving industrial dispute and the various legal methods of resolving strikes in Nigeria.
- FASOYIN T: In his book “Industrial Relation in Nigeria” also laidmore emphasis on industrial harmony which will help immensely in the treatment of this study.
- OLORUNFUNMI A. SONUBI: “Labour Aspect of NationalDevelopment. A study of Government Labour Policy in Nigeria” laid emphasis on the effect of industrial harmony to national development and the detrimental effect of strike on the economy.
Importantly, the hand-out and lecture note on Industrial Law prepared by Barrister (Mrs) Akanbi Esq. for law students of the University of Ilorin.
Journals, case law and Nigerian statutes are also available for reference in this work.
12
1.6.0: METHODOLOGY
In this study, extensive research, analytical study, discussions and wide range of intellectual material will be employed in order that an accurate and conclusive paper will be presented at the end of this work.
In view of this both primary and secondary sources of law which includes the constitution, Laws of the Federation, Decrees, Articles, Lecture notes and other relevant materials like Judicial precedents by reviewing cases from law reports in relation to statutory provisions.
1.7.0: CONCLUSION
In every legal system there exist an avenue for recognizing what law have lost validity or have become inadequate or have lost consonance with the contemporary life of that particular system, and as such certain bodies or agencies are established and saddled with the task of reforming the system’s laws.
The significance of this study therefore is, to examine the laws and procedure regulation trade dispute in relation to the current labour issues in Nigeria, to make proposition for reform on how the trade dispute system can be improved upon where it is found at the end of this study that
13
defects exist in these laws. The target being a harmonization of these laws such that a new effective law will evolve for the management of trade disputes in Nigeria.
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