An Examination Of Laws And Procedures Regulating Trade Dispute In Nigeria

An Examination Of Laws And Procedures Regulating Trade Dispute In Nigeria

Abstract

The aim of this paper is to examine the laws and procedures for the regulation of trade disputes in Nigeria. This work also covers the other alternative resorts to resolving trade disputes i.e. strikes and lock-out as effects of trade dispute resolution. The commentator has also endeavoured to state or espouse the role of the judiciary in ensuring industrial harmony in Nigeria through judicious appraisal of the relevant laws, rules of court in the consideration of various labour matters before the Court. This comment on the National Industrial Court Act particularly has brought out the relevance, importance and sensitive impact of the Act on the Nigerian economy through judicial pronouncements that ensure industrial harmony. This will place the court on a better footing to impact more positively in the administration of justice in a developing economy like ours. If the above can be seriously looked into, there will be a promising future for the law practice of industrial relations in the country.

Chapter One

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 occurs 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 to curb the incidents 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 condition of work of any person. 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 person23 .

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, 1941 and Trade Dispute (Arbitration and Inquiry) (Federal Application) Ordinance, 1957. However, these attempts turned out to be unsuccessful because of some defects in them which eventually shortened their life span and new legislation were enacted, These are the Trade Dispute (Emergency Provision) Decree of 1968 and the Trade Dispute (Emergency Provision) (Amendment) (Decree No 2) of 1969.

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 last for a short time. The Decree had some inherent defects which were to be regulated by the Trade Disputes 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 1992.

The Trade Disputes Act, 1976 has provided different procedures for settling 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.3 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 recommendation made where necessary for a better way of resolving trade disputes.

Background to the Study

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 organizational goals and objective. 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 result 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 etc and resolving these dispute receives compromise, concession and a game of give and take between disputing parties.

Definition of Terms

“Trade Dispute” is any disagreement between employers and workers or worker and workers which is connected to the employment, non employment or terms of employment or physical condition of work of any person.4
“Strike” has been defined by the Act as the cessation of work by a body of 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 work

In Tramp shipping corporation v. Greewish marine Inc. “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. This definition accords with the definition under the Trade Dispute Act, 1976. Refusal to continue to work include a refusal to work at usual speed and efficiency.

“Lockout” is an action in which employees physically “takeover” the company premises either by locking out the management staff, thus denying them access to exit from the premises.

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”.

“Collective bargaining” has been defined as the process of arriving or attempting to arrive at a collective agreement.
Collective Agreement is any agreement in writing relating to the terms of employment and physical condition of work, between an employer group of employers or one or more organization representing the employers on one part and one or more organization representing the workers on the other hand.

In this work, unless the context requires otherwise, the following expression have the meaning assigned to them here under:-

• “Party” mean any parties to trade dispute or any of the parties to a trade matter lying before a court or 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 disputes in Nigeria as covered in this book.
• “The Act” Means the Trade Dispute Act, Cap 432, LFN 1990.
• “Dispute” means Trade Dispute
• “Minister” mean the minister for employment labout and productivity of the federation.
• “Condition of work” means the physical condition under which a workman, 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.

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-out 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 book; principally these are the laws regulating trade dispute resolution in Nigeria. The Labour Act, 1990 and the Trade Union Act, 1990 are also covered only to the extent of their reference to trade dispute.

Literature Review

There are few Nigerian text books on labour law. Besides that most of the available texts were published before the current trade dispute issues revolved, hence, this particular area of study did not lay reliance on the knowledge contained in these books. However, the few scholars whose books touched on this topic will have their books referred to and examined in this book

These scholars include:

1. Akanbi M. M. O.:

In his book “An Appraisal of the Machinery for 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.

2. Emiola A.:

In his book “Nigeria Labour Law’ laid emphasis on the law regulating trade dispute in Nigeria and how industrial harmony can be achieved. The book covers extensively the Trade Dispute Act of 1976.

3. Dnieghara E. E.:

In his book “Trade Union Law in Nigeria” discussed the relationship between employers and employees, and the law and procedures guiding trade union. It also states various Alternative Dispute Resolution that can be employed to resolve industrial dispute

4. Oladosu. O.:

“Nigeria Labour and Employment Law in perspective” provides a comprehensive analysis of the laws regulating Nigeria Labour law by focusing more on the Trade Dispute (Amendment) Decree No. 47 of 1992

5. Okene O. V. C.:

“The Legal Resolution of strikes in Nigeria: A Critical Appraisal” discussed extensively the effect of strike, ways of resolving industrial dispute and the various legal methods of resolving strikes in Nigeria

6. Fasoyin T.:

In his book “Industrial Relation in Nigeria: also laid more emphasis on industrial harmony which will help immensely in the treatment of this study.

7. Olorunfuami A Sunubi:

“Labour Aspect of National Development. A study of Government Labour Policy in Nigeria” development and the detrimental effect of strike on the economy.

Importantly, the lecture note on industrial law, journals, case law and Nigerian statutes are also available for reference in this work

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

Chapter Five

Conclusion and Recommendation

5.0 Conclusion

In recap, the commentator of this paper has attempted to state the trade disputes resolution mechanisms put in place in Nigeria by the TDA (as amended by the TDA of 1992) and the National Industrial Court Act. The commentator has also endeavoured to state or espouse the role of the judiciary in ensuring industrial harmony in Nigeria through judicious appraisal of the relevant laws, rules of court in the consideration of various labour matters before the Court. This comment on the National Industrial Court Act particularly has brought out the relevance, importance and sensitive impact of the Act on the Nigerian economy through judicial pronouncements that ensure industrial harmony.

Trade disputes will always occur, hence, there is a need for a functional dispute resolution mechanism which is acceptable and just to all disputants. In the absence of such a mechanism there is breakdown of law
and order and the macro-economy of the nation suffers and security also breaks down. The National Industrial Court of Nigeria has been put in place to effectively enhance the Nigerian Dispute Resolution Mechanism and it is so far doing fine. A correction of the errors in the Act setting up the Court will further aid its work thereby bringing about the much needed stability of the country’s economy.

5.1 Recommendations

The full integration of the National Industrial Court into the structure of the judiciary by entrenching it in the 1999 Constitution. This will entail the following constitutional amendments –

1. Section 6(5) of the 1999 Constitution to include National Industrial Court as a Court of Superior Record;
2. Section 84 of the 1999 Constitution to include the President and Judges of the National Industrial Court as Constitutional Office holders for purposes of salaries, emoluments and other allowances;
3. Part IV (Supplemental) of the 1999 Constitution to appropriately include the National Industrial Court in Sections 289, 290, 291 and 292;
4. To include the President of the National Industrial Court in Paragraph (E), Section (12) of the Third Schedule as members of the Federal Judicial Service Commission (FJSC);
5. To include the President of the National Industrial Court in Section 13
6. vii (f) To include the Judges of the National Industrial Court in Section 13 (a) viii; To streamline the appointment of the President and Judges of the National Industrial Court under one single process unlike the current dual processes where the President and Judges are separately appointed by two different processes as rightly stated by His Lordship, the Chief Justice of Nigeria 77 .

I further recommend that if the office of the President of the court is vacant or if the person holding the office is disabled to perform the functions of the office, then, until a person is appointed to and assumes the functions of that office or until the person holding the office has resumed those functions, the President may appoint the most senior legally qualified Judge of the National Industrial Court to perform those functions.

In my view, the prospects of industrial relations are very prominent in Nigeria. However, there are challenges ahead for the National Industrial Court to impact more in the administration of Justice in a developing economy like ours.

The following must be carefully and more seriously attended to;

1. There is the need to have updated works on labour/ employment / industrial relations, law and practice. Now that the National Industrial Court Act 2006 is on ground, it is left to the academicians to rise up to the occasion by writing books that will be explicit on the various laws relating to labour, employment and industrial relations and by examining various pronouncements on same with a view to making their intellectual input.
2. Law lecturers will do the profession a great deal of good if law students could be encouraged the more to appreciate the importance of labour/employment/Industrial relations law in the development and growth of any nation like ours.
3. Members of the Bar, that is the Legal practitioners who have decided to practice labour/employment/Industrial relations law should always endeavour to contribute more to the system as ministers in the temple of justice. This could be done through their well researched and erudite presentation of their cases and qualitative submissions made before the court.
4. There are few faculties of Law in our universities that actually teach labour/employment/Industrial relations Law. The Senate of our universities in Nigeria should ensure the inclusion of these subjects into the curricula. Students should be encouraged to offer these subjects as core courses rather than as mere elective courses.
5. Trade Unionists should show more interest in educating their members about all most recent laws that are relevant to industrial relations, labour and conditions of work generally.
6. Employers of labour should be interested in the development and growth of Labour/employment/Industrial relations law procedure in Nigeria.
7. All role players in Industrial relations should be involved in serious research into the best way in resolving trade disputes without necessarily going through the rigours of litigation.
8. The Council of Legal Education is called upon to include practice and procedure in the National Industrial Court in their syllabus. The Council should ensure that the courses are taught in all their campuses and questions set for students to answer as it is the case in all other subjects.
9. Members of the public should be properly sensitized and educated on the need to have cordial and conducive atmosphere for industrial relations to exist so that at the end of the day we will have economic prosperity.

If the above can be seriously looked into, there will be a promising future for the law practice of industrial relations in the country. This will place the court on a better footing to impact more positively in the administration of justice in a developing economy like Nigeria.

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