Current Issues in Labour Dispute Resolution in Nigeria
Hon. Justice Benedict Bakwaph Kanyip, PhD
Presiding Judge, National Industrial Court of Nigeria
I must thank the organizers of this conference, especially the Board of Governors and the Administrator of the National Judicial Institute, for the opportunity and privilege to address this august body of the crème of the Nigerian judiciary on a topical issue such as the one I am saddled with. To talk on current issues in labour disputes resolution in Nigeria can be a daunting task given that it is impossible to do so without going against established orthodoxy. Of late, there has been much development of the law in the area of labour/industrial relations law, which calls to question established norms as we know them and as espoused by especially the superior courts in Nigeria. Knowing the task I am faced with, I wish to post the caveat, as I do in fora such as this, that it may be the academic in me that is writing, not necessarily the judge. I may be critical of some of the principles of law as espoused and understood; but I must point out that if faced with a case that require their application, and on the principle of stare decisis, I will have to obey and indeed not complain.
I am mindful and so take special note of the theme of this conference, which is, Law, Justice and Good Governance in a Democracy. In that regard then, I wish to note a preliminary point which in years to come may define how we treat and interpret rules relating to labour and industrial relations in the country. Industrial harmony, industrial democracy, etc are recurring ideologies in the world of work, which application or lack of application have impacts one way or the other on the question of dispute resolution. Labour movements around the globe can and do impact on the process of democracy. In South Africa , for instance, given the apartheid system of governance, labour movements had to democratize in order to fight the apartheid government. The transition there was, therefore, from industrial democracy to political democracy. The converse appears to be the case back home in Nigeria. Ours is a transition from political democracy to industrial democracy. The years of military rule did not help matters. This ideological underpinning influenced recent attempts at reforming the laws of Nigeria via the DECLARATION PROJECT – NIGERIA .
Issues on especially the National Industrial Court (NIC) have been previously addressed at different fora organized by the National Judicial Institute such as the induction and refresher courses for judges , and the biennial all judges conference. Indeed, at the last All Nigeria Judges’ Conference, which held in 2007, the President of the NIC had cause to do a presentation to the body of eminent judges that participated. Issues were thrown up at all those previous presentations – some controversial, others not so controversial. The point to note for present purposes is that the validity of a statute must be presumed until it is set aside by a court of competent jurisdiction. Consequently, whatever reservations that may be entertained regarding the NIC Act 2006, its validity must be presumed. As His Lordship Iguh, JSC puts it in Attorney-General of the Federation v. Attorney-General of Abia State & ors (No. 2) –
Until an enactment by the National Assembly or indeed, by a State House of Assembly is repealed in clear terms or duly avoided by a court of law, it has the full force of law as an enactment duly and validly made by the appropriate legislature and in respect of which the courts of law are entitled to take judicial notice thereof as a validly enacted law of the National Assembly or House of Assembly.
Consequently, in this write-up, I assume the validity of the NIC Act 2006; and so, to avoid repetition, I shall dwell on only those issues that challenge established thinking in the realm of labour law since the passing of the NIC Act 2006. It is my hope that the principles of law we are accustomed to will be appreciated in new light especially within the context of a globalised and inter-related labour relations regime. The perspective I adopt in this analysis simply challenges us to be open-minded and not be dogmatic about the orthodoxy in labour law that we are used to. In doing this, a good deal of reliance would be placed on case law especially as espoused by the NIC even when that is not binding on any of the judges participating in this conference.
Recent developments and challenges have the capacity to impact on legal thinking in the world of work in the not too distant future. Of late, we now have agitations, pressure and strikes in certain sectors of the world of work that hitherto were unheard of. I am here talking of the agitations we have witnessed of late within the security forces like the police and the army over issues relating to wages or allowances arising out of work and the strikes undertaken by workers in the judiciary. Globalisation has thrust on us the emergence of new forms of work organisation, such as outsourcing and contracting out, which has contributed to the emergence of economically dependent work, otherwise called quasi-subordinate work. Sooner or later, the courts will be called upon, if the legislature does not act timely, to determine the rights, privileges and obligations of this category of work organization, a category of work that inherently challenges some of the basic assumptions of labour law. In this regard, it brings to the fore a fundamental question: how protective of workers is our labour law? We can rephrase this question in alternative terms as follows: given the fixated opinions generally shared regarding some fundamental principles of labour, is injustice not too high a price to pay for consistency? In other words, if traditional principles in labour law are apt to cause injustice, is it not high time that such principles are done away with?
To appreciate the point being presently made, a preliminary point may be necessary. A fundamental right of workers, for instance, is the right against discrimination. Yet other than in relation to the right to join a trade union where a worker’s right against discrimination is provided for under section 12(1) of the Trade Unions Act (TUA) 2004 , no where in our labour law is the right against discrimination specifically provided for. The tendency is to subsume the right within the broader context of the constitutional right to freedom from discrimination under section 42 of the 1999 Constitution and then treat it as a constitutional, not a workplace issue. The drawback with this approach is that discrimination as a workplace issue is more peculiar (and takes account of more issues such as HIV/AIDS, equality of pay and treatment, gender mainstreaming, sexual harassment, etc) than discrimination as a constitutional issue. The protective nuances that the right against discrimination gains when it is specifically provided for in the labour statutes is lost if it is left to the general realm of constitutional law. And in this context, experience shows that the worker’s right in that regard becomes diluted and tends to be inconsequential at the end of the day. The assumption, therefore, that labour law is meant to be protective of workers given the imbalance in power relations between employers and workers, becomes questionable and hence the question remains whether our labour law is actually protective of workers.
Only recently, I concluded a study for the formulation of the Economic Community of West African States (ECOWAS) Labour Policy and Strategic Plan of Action . This study was considered and a draft labour policy adopted by the ECOWAS Council of Ministers of Labour and Employment which held in Cote d’Ivoire in April 2009. The draft labour policy is awaiting its adoption by the Authority of the ECOWAS Heads of State and Government. Nigeria’s membership of the ECOWAS means that it will be bound by the guiding principles enunciated in the labour policy; and these guiding principles may impact on the cases that come before the National Industrial Court given the provision of section 7(6) of the NIC Act 2006, which permits the NIC to consider and apply best international labour practice when adjudicating on matters within its jurisdictional competence. The point to note then, for present purposes, is that both the ECOWAS Labour Policy and the reforms proposed under the DECLARATION PROJECT – NIGERIA contain proposals that challenge traditional thinking in labour law; and the courts will no doubt be called upon to reconsider this orthodoxy.
An aside may be useful here as a preface to the issues I intend to address. 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 could be an increase in global unemployment of more than 50 million and that some 200 million workers could be pushed back into extreme poverty . For developing economies, aside from job losses at home, there is the added concern of the possibility of repatriation back home of citizens who migrated abroad, got jobs but have now lost same due to the global crunch. At the global level, 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.
These background issues in place, I intend to consider, not in any particular order, 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 common law doctrine which permits the employer to terminate an employment for no reason at all; the applicability or otherwise of collective agreements; etc. In all of this, I urge that we note 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’ . To be able to embark on the present discourse, I will need to clarify the types of disputes envisaged under our dispute resolution processes.
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 Trade Disputes Act (TDA) 2004 and the NIC Act.
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 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, an issue I shall address shortly) 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 crystallize .
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.
The TDA specifically deals with trade disputes. It is, therefore, essential that we explore the concept of ‘trade dispute’ at this point. The term 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’ referred 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 separate 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 – NIGERIA , 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.
With this clarification in place, I will now turn to those critical issues wherein the traditional thinking in labour law is called to question.
Applicability of International Labour Standards
The start-off of any discussion here, and this will have a bearing on the other issues to be addressed in due course, must be the Supreme Court decision in The Registered Trustees of National Association of Community Health Practitioners of Nigeria and 2 ors v. Medical and Health Workers Union of Nigeria , which is to the effect that, in so far as an ILO Convention has not been enacted into law by the National Assembly, it has no force of law in Nigeria and so it cannot possibly apply , relying on section 12(1) of the 1999 Constitution and the case of Abacha v. Fawehinmi . The cause of action against which the appeal was made arose in 2003 and so the case can be said to have been decided before the coming into effect of section 7(6) of the NIC Act, a provision that only became effective on 14th June 2006. Now in conception and tenor, the NIC is established and expected in discharging its mandate to have regard to international best practice in labour or industrial relations. Specifically, section 7(6) of the NIC Act provides as follows –
The Court shall, in exercising its jurisdiction or any of the powers conferred upon it by this Act or any other enactment or law, have due regard to good or international best practice in labour or industrial relations and what amounts to good or international best practice in labour or industrial relations shall be a question of fact.
This provision is novel and was actually borrowed from a similar provision in the Industrial Relations Law of Trinidad and Tobago . The chief advantage of section 7(6) is that it permits the NIC to be part of the global world of industrial relations law and practice where the experience of other jurisdictions can be brought to bear in the adjudication of labour disputes. The ILO and its Member States, of which Nigeria is one, have been able to build up a body of labour jurisprudence that Member States are often enjoined to apply in their respective domestic settings. What section 7(6) has done is to permit the consideration of this labour jurisprudence when the need arises. And because issues of international best practice are questions of fact, they have to be established on a case-by-case basis. What this would mean, therefore, is that what the NIC decides is an international best practice, being a question of fact, may not be appealed against since only questions of law (indeed by section 9 of the NIC Act, only issues of fundamental rights) can be appealed against to the Court of Appeal. In Oyo State Government v. Alhaji Bashir Apapa and ors , therefore, the NIC had this to say regarding section 7(6) –
We cannot conclude this judgment without a remark or two on the application of section 7(6) of the NIC Act 2006. The respondents had argued that it is not good international practice to brand all public servants, and teachers specifically, as being on essential services and so cannot embark on strike. Section 7(6) cannot be applied in this general and sweeping form. A litigant that seeks to rely on best international practice must be prepared to establish or prove same as what is best international practice in industrial relations is a question of fact.
The problem, however, for present purposes is, where the international best practice is the product of an ILO Convention (including Recommendations or Codes of Practice), can the NIC take account of it even if there is evidence that Nigeria did not ratify the Convention? Or, even where the Convention has been ratified, where it has not been domesticated by legislation, as section 12 of the 1999 Constitution would enjoin, can the NIC have regard of same when adjudicating? In other words, does section 7(6) of the NIC Act meet the domestication requirement of section 12(1) of the 1999 Constitution and the Supreme Court decisions in The Registered Trustees of National Association of Community Health Practitioners of Nigeria and 2 ors v. Medical and Health Workers Union of Nigeria and Abacha v. Fawehinmi? While we await specific appellate statement on this issue, I crave the liberty to hazard the opinion that section 7(6) meets the said domestication requirement. To hold otherwise means that the very basis of the NIC and all that the dispute resolution structure under Part I of the TDA represents will collapse. We can now proceed to consider the other issues in the light of what has been said so far.
Adoption of the Doctrine of Unfair Termination
The common law rule is that an employer can terminate an employment relationship with reason or for no reason at all. The employer need not show any motive or give any reason for the termination as this is irrelevant. This much had been affirmed as applicable in Nigeria in a number of cases such as WR & OC Ltd v. Onwo , Angel Spinning & Dyeing Ltd v. Ajah , Arinze v. First Bank (Nig.) Ltd , Taiwo v. Kingsway Stores Ltd , Obe v. Nigeria Construction Co. Ltd , Chukwumah v. Shell Pet. Dev. Co. (Nig.) Ltd , Edet v. Chief of Air Staff , Nwangwu v. Nzekwu , Amodu v. Amode , LCRI v. Mohammed , and Jombo v. PEFMB . The problem with this rule is that it works injustice in the majority of cases. In modern discourse, the issue is addressed under the rubric of job/employment security relative to the flexibility required by employers to hire and fire at will. In addressing this issue, the ILO came up with the Termination of Employment Convention 1982 No. 158 (C.158) and its accompanying Recommendation No. 166 (R.166), which have been ratified by 32 ILO member States . Nigeria is yet to ratify the said convention. The Committee of Experts on the Application of Conventions and Recommendations (CEACR) of the ILO has repeatedly stressed that C.158 is not incompatible with the promotion of employment through measures such as increasing labour market flexibility and training . The CEACR has, therefore, harped on the need to ensure fairness regarding basic security of employment of workers as a precondition for good industrial relations, which can contribute to increased productivity . To Sims, therefore, C.158 ‘clearly demonstrates awareness of the need to balance the protection of workers from unjustified termination with the need to ensure labour market flexibility. Consequently, the Convention does no more than to require that terminations be based on a valid reason related to the conduct or capacity of the worker, or the operational needs of the enterprise, and sets out basic standards of procedural fairness’ . C.158 leaves considerable discretion to governments, in consultation with workers’ and employers’ organisations, to determine the specific forms of safeguards which are most appropriate for the economic and social conditions of each country. It is this flexibility that can make employment policy more progressive and efficient as globalisation of markets generally intensifies competition and has the effect of reducing security of employment. The social disruption that unemployment causes ought to enable the realization of the importance of ensuring that terminations are substantially and procedurally fair.
Despite all of this, there are quarters that believe in the unfettered power of the employer to terminate an employment at will at any time and for any or no reason at all as is the case in jurisdictions like Nigeria. The argument is that this policy option has three attractions for employers: it motivates employees to work harder to avoid dismissal at will; it is flexible for it enables employers to respond to changes in product markets; and it is cheap to administer as no one can challenge the decision of the employer . All of these are, of course, debatable . For instance, the assumption that a hard working productive employee may avoid termination at will holds no water since his employment may nevertheless be terminated where he misconducts himself. In any event, the absence of job security may itself be counter productive in that employees may do the minimum required of them and seize opportunities to shirk. ILO studies undertaken in 13 European countries between 1992 and 2002 revealed that employment stability of the workforce is beneficial to productivity levels, human capital investment and worker motivation .
The non-application of C.158 is the product of a number of misconceptions all of which have been debunked by Sims . In the first place, there is the assumption that job/employment security means a job for life; in which event, requiring a valid reason and fair procedures for termination of employment will lead to labour market rigidities. To Sims, empirical evidence has shown that employment security legislation is in the increase around the globe especially in countries that are keen about increasing labour and market flexibility, because setting some limits on when and how a termination may be made provides a necessary counterweight to the increasing uncertainties to which workers are exposed as a result of globalisation. Secondly, it is assumed that employment security will discourage employers from hiring and will, therefore, lead to higher unemployment. Yet, according to Sims, C.158 and R.166 were actually adopted at a period of heightened concern for the promotion of employment. It was for this reason that the necessary flexibility safeguards were built into both instruments. Thirdly, many employers are still reluctant to consult with workers, on the assumption that workers will not be flexible. But experience has shown workers to be quite understanding and cooperative once the health of an enterprise is in issue. Lastly, there is no gainsaying that some workers’ organisations push for very tight restrictions on the ability to terminate employment, without appreciating the risks employers face when hiring new workers especially the long-term unemployed. In this regard, there would be justification if a longer probation period were to be imposed for the long-term unemployed in order to encourage employers hire them.
There is, therefore, ample justification for legal policy in Nigeria to insist on the ratification and application of C.158. Elsewhere, as in the European Union (EU), this has been done but where the only challenge is how to strike the proper balance between flexibility and security . Within the EU, enhanced flexibility is seen as a necessary condition for the economy to survive globalisation, while security is considered indispensable for preserving social cohesion and human dignity in the society. The need to balance these two ideals has led to the coinage of the catchy concept of ‘flexicurity’, a concept that seems to suggest that the cake indeed can be had and eaten too . To Sonia Cortes , flexicurity is the name given to 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. It implies greater flexibility of working time, enabling people to reconcile employment with family and other responsibilities. It is derived from successful models in the Netherlands and in Nordic countries. Flexicurity, as a concept then, is ‘a model for employment adaptation in which the formal constraints on employers to [terminate employment] are relatively modest but other measures ensure that any unemployment is of short duration’ . In this regard, consultation with unions and public authorities, backed up by the social security and training system, are enjoined to ensure that workers experience little income loss for a short period of job search and are further assisted by active support of occupational or geographical mobility . The 2001 European Employment Guideline 13, under the adaptability pillar, for instance, invites the social partners ‘to negotiate and implement at all appropriate levels agreements to modernize the organisation of work, including flexible working arrangements, with the aim of making the undertakings productive and competitive, achieving the required balance between flexibility and security, and increasing the quality of jobs’ . To Wilthagen, flexicurity as a concept dictates that ‘in modern labour markets flexibility should (also) be defined in terms of security as well as that security should (also) be defined in terms of flexibility. Put differently, flexibility and security are not incompatible but should rather be seen as two sides of the same coin and as mutual preconditions . In the long run, the expectation is that flexibility in all its facets including wage flexibility must be able to accommodate security in all its ramifications including job security, employment security, income security and work-life balance where a worker can combine his or her job with other (notably private) responsibilities and commitments than paid work . In other words, no labour/employment regime should have a monopoly on either flexibility or security. In all of this, trust among the social partners is absolutely necessary; for according to Wilthagen, ‘if trust is low, flexicurity will appear a remote or even unattainable goal; if flexicurity remains under-developed trust will not grow in modern labour markets .
The point to note for present purposes is that the rule that permits an employer to terminate for no reason at all is a common law rule which has worked grave injustice in most circumstances. This has necessitated the international labour community, relying on equitable principles, to relax the said rule. The issue for consideration in Nigeria, therefore, is that given the global relaxation of the said rule, should Nigeria not also tow the line especially given the fact that empirical studies have shown that such relaxation increases productivity? This point becomes more pungent when we note that section 7(6) of the NIC Act 2006, for instance, permits the NIC to take account of best international practice in labour/industrial relations when adjudicating. In any event, section 13 of the NIC Act 2006 mandates the court to administer law and equity concurrently; however, section 15 of same Act goes on to assert that where there is conflict between the two, the rules of equity shall prevail. On the strength of section 7(6) of the NIC Act, can we then assume that the death knell can be sounded on the rule that permits an employer to terminate for no reason at all? In other words, should the rule not now be that termination of an employment relationship by an employer should only be for a reason as is now being globally made the case? My take on the issue is that injustice is too high a price to pay for the kind of consistency that the said rule represents.
Enforceability of Collective Agreements
The rule, as laid down 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 ), is that collective agreements are gentlemen’s agreements and so are binding in honour only. That they are extra-legal documents totally devoid of sanctions, a product of trade unionists’ pressure. They are not intended to or capable of giving individual employees a right to litigate over an alleged breach of their terms as may be conceived by them to have affected their interest; nor are they meant to supplant or even supplement the employees’ contract of service. In other words, the failure to act in strict compliance with a collective agreement is not justiciable. This presupposes that no privity of contract arises between an individual employee and his employer; and where such an employer ignores or breaches a term of that agreement, resort could only be had, if at all, to negotiation between the union and the employer, and alternatively to a strike action, should the need arise and where it is appropriate. The courts continue that a collective agreement is only binding when incorporated or embodied into the conditions of service .
If I can once again be permitted to be critical here, the problem is whether these cases will still be decided in the same way if account is taken of the NIC Act 2006. In the first place, section 7(1)(c)(i) of the NIC Act grants the NIC the jurisdiction to interpret collective agreements amongst other documents. Section 54(1) of the same Act then goes on to define a trade dispute to include any dispute between employers and employees, including disputes between their respective organizations and federations which is connected with the conclusion or variation of a collective agreement. The question to be asked is why the law would go to this length if the desire is not that collective agreements should be binding and enforceable. Of what use is the power of the court to interpret or enquire into matters relating to the conclusion and variation of collective agreements if the desire is not that they should thereby be binding? The reforms proposed under the DECLARATION PROJECT – NIGERIA contain specific provisions to the effect that collective agreements shall be binding and enforceable as normal contracts are. But even aside from this, given that the courts are merely giving effect to the common law when they hold that collective agreements are binding in honour only, can this common law principle actually withstand sections 7(1)(c)(1), 13, 15 and 54(1) of the NIC Act as highlighted so far? The world of industrial relations relies heavily on the collective bargaining process through which collective agreements are negotiated and agreed upon. It is often a process that entails financial costs, not to talk of the time expended on it. To throw all of this overboard on the simple common law expedient that the outcome (collective agreement) is binding in honour only, or only when specifically incorporated into the employment contract, portends great danger to industrial peace and harmony at the workplace, not with the growing awareness and restiveness that permeates our world of work. In all of this, we may find guidance in the instructive and incisive holding of the Supreme Court of India, to the effect that –
The Industrial Courts are to adjudicate on the disputes between employers and their workmen, etc and in the course of such adjudication they must determine the ‘rights’ and ‘wrong’ of the claim made, and in so doing they are undoubtedly free to apply the principles of justice, equity and good conscience, keeping in view the further principle that their jurisdiction is invoked not for the enforcement of mere contractual rights but for preventing labour practices regarded as unfair and for restoring industrial peace on the basis of collective bargaining. The process does not cease to be judicial by reason of that elasticity or by reason of the application of the principles of justice, equity and good conscience .
The Remedy of Reinstatement
The traditional thinking supported by a plethora of cases is that reinstatement of an employee is possible only where the contract of employment has statutory flavour . The logic of this proposition, therefore, is that once the employment contract is not one with a statutory flavour, then reinstatement is not possible even if the termination is unfair or wrongful . The only remedy available here is damages . In fact, the courts are emphatic that an employee wrongfully dismissed or whose employment is wrongfully terminated cannot get both damages and reinstatement . While all of this may not be faulted, the question that arises is whether the door for reinstatement is actually closed once the issue in contention does not relate to an employment with statutory flavour. In other words, is there any category of cases where reinstatement can be ordered even when the employment is not necessarily one with statutory flavour? Once more, I crave the indulgence to think aloud. In this regard, section 9(6)(b)(i) and (ii) of the Labour Act and section43(1)(b) of the TDA 2004 come to mind. Section 9(6)(i) and (ii) of the Labour Act provides that no contract shall cause the dismissal of, or otherwise prejudice, a worker by reason of trade union membership, or because of trade union activities outside working hours or, with the consent of the employer, within working hours. And by section 43(1)(b) of the TDA 2004, where any employer locks out his workers, the workers shall be entitled to wages and any other applicable remuneration for the period of lock-out and the period of the lock-out shall not prejudicially affect any rights of the workers being rights dependent on the continuity of period of employment. Is the combined effect of these provisions not such as to admit the remedy of reinstatement where an employee’s employment is terminated on the basis of union activities? It should be noted that in all the cases cited so far, neither the Court of Appeal nor the Supreme Court has been called upon to decide the effect of section 9(6)(i) and (ii) of the Labour Act and section 43(1)(b) of the TDA on the question of reinstatement. The NIC generally accepts the termination of an employment on the grounds of union activities as an additional ground for ordering reinstatement given the cumulative effect of section 9(6)(i) and (ii) of the Labour Act and section 43(1)(b) of the TDA .
It may be worthwhile to note that elsewhere reinstatement is treated liberally as is the case in India. For instance, the Federal Court of India in the case of Western Indian Automobile Association v. The Industrial Tribunal, Bombay & ors , held that –
…although the employer may be unwilling to do so, there will be jurisdiction in the tribunal to direct the employment or non-employment by the employer. This is the same thing as making a contract of employment when the employer is unwilling to enter into such a contract with a particular person. Conversely, if a workman is unwilling to work under a particular employer, a trade union may insist on his doing so and the dispute will be about the employment of the workman by the employer and thus become an industrial dispute subject to the award of the Tribunal. Therefore, if the bringing about of such a relationship is within the jurisdiction of the industrial tribunal because such disputes are covered by the definition of the expression ‘industrial dispute’ there appears no logical ground to exclude an award of reinstatement from its jurisdiction. It can equally direct in the case of dismissal that an employee shall have the relationship of employment with the other party, although one of them is unwilling to have the relationship.
And in JK Iron & Steel Co. v. Mazdoor Union , the Supreme Court of India held that the industrial tribunals are not unfettered by the limitations of a court bound by the ordinary law of master and servant and that the adjudicator had the jurisdiction to investigate disputes about any discharge and/or dismissal and, where necessary, to direct reinstatement. It may be that in Nigeria, the time is ripe for this sort of liberalism.
Treatment of Economically Dependent Workers
The effect of globalization has given rise to the emergence of new forms of work organisation, such as outsourcing and contracting out , which has contributed to the emergence of economically dependent work (otherwise called quasi-subordinate work). Legal policy must, therefore, be put in place to determine the rights, privileges and obligations of this category of work organisation. Most legal systems are quite at home with the distinction between work under an employment contract and self-employment given that they are structured on the binary model of subordinate employment and self-employment with the basic distinguishing factor being that while the protective stance of labour law applies to subordinate work, self-employment is generally left to the dictates of contracting parties to determine the allocation of risks in the relationship. The interposition of economically dependent work (the third option, which incidentally is not legally recognised as such) has, however, blurred the distinction given that the legal framework in this regard is scant and fragmented . The policy choices available here are four: whether to maintain the status quo; or recognise a third type of work between subordinate work and self-employment (in which event the classification model becomes ternary); or expand the concept of work under an employment contract to cover economically dependent work; or create a minimum threshold of rights that make no reference to the designation of the relationship because they are common to all forms of work.
Adalberto Perulli, a leading commentator on the subject, in reviewing these four options, concluded that the fourth option is preferable . To him, the first option, maintaining the status quo, must be rejected as some form of regulation is essential and the decisions cannot be left to the marketplace; otherwise, there is the risk of creating or intensifying social inequalities and discrimination. He also ruled out the second option, which is creating a new category of employment relationship given that this would lead to legal problems (especially as to classification of the relationship) and social risks. As for the third option, that is, expanding the concept of work, he reasons that it will not be very realistic for it follows a “maximalistic” rationale in advocating for almost a full extension of labour laws to cover economically dependent workers who would become, basically, workers. It is the fourth option, creating a minimum threshold of rights applicable to all forms of employment – subordinate, independent and quasi-subordinate – that he supports on the basis that it is more realistic. To him, this is the approach currently proposed in Italy where a three prone circle of rights have been identified. In his words –
A similar proposal is currently being debated in political and trade union circles in Italy. It is in the form of a bill entitled the “Workers’ Rights Charter”, based on a minimum of general principles, universally applicable to every employment contract (rights include freedom, dignity and confidentiality, equal rights and the right not to be discriminated against; health and safety in the workplace; protection against sexual harassment in the workplace; fair pay for work; protection in the event of unfair dismissal; the right of mothers and fathers to protection and support; the right to family care and to a fair division of working time and leisure time; the right to life-long learning; free access to employment services; the right to types of social security appropriate to each individual’s career path; the right to freedom and the right to join a union, including freedom to negotiate and to collective self-protection). More specific rules, applicable to self-employed persons, follow (health and safety at work, fair pay and mothers’ rights), the right to receive a pension, the right to be given notice in permanent contracts; and the right to join an occupational union. For economically dependent workers, defined as persons having an “employment relationship the purpose of which is to perform mainly personal coordinated and continuous work”, the rules governing contract terms apply (such contracts must contain information about payment times). Also included is the right to protection against sexual harassment and mobbing, the right to equal treatment and to protection from discrimination, the right to fair pay, protection in the event of the relationship being suspended for reasons of illness, pregnancy, maternity, parental leave or training, the right to information, social security, dismissal, the right to join a trade union and the right to strike.
He, however, acknowledges that it is not easy to provide an unambiguous solution to the problem of regulating independent (non-subordinate), but economically dependent work, and then proposes the intervention of the EU in prescribing flexible rules with member States given the freedom to adapt them to their national contexts .
We may learn a thing or two here. I am not unmindful of the fact that much may depend on legislative intervention. But where this is not forthcoming, as it seems to be the case at the moment, the courts must brace up and provide a lead on how to grapple with the problem. In this regard, it may be worthwhile to note that the ILO in dealing with this issue encourages that emphasis be placed on employment relationships as against whether what is in issue is simply a contract of employment. For instance, a 2002 decision of the Labour Court of Israel in the case of Tzadka v. Gallai Izahal, the Army Radio Station held that certain freelancers are into contracts of service (and not independent contractors), thus entitling them to rights under the protection of labour law.
A Theory of Unfair Labour Practice?
I choose to preface this last bit of the discussion with a story or two. The first is the one I heard at a seminar in Lagos some few years back. A young lady told the story of how she was employed as a marketing officer by a new generation bank. She was given a loan to buy a car, rent a house and furnish same. She was told to always dress well and look good. She was then given a target of deposits she must bring into the bank within a given time frame. As collateral for the loan advanced to her, her certificates were seized by the bank. The catch in all of this was that if she defaulted in the deposits drive, she was liable to be relieved of her job i.e. her employment will be terminated; and because she will not have paid up the loan advanced to her, it meant she will not be entitled to get her certificates back. And if she cannot get her certificates back, she cannot then get another job. A classic case of the devil’s alternative. The scenario that this story represents today comes in varying ways, the most notorious being the encouragement of ladies by financial institutions to source for funds at all cost and by any means thus encouraging what is now aptly described as corporate prostitution. Salaries in banks are now being tied to how much an employee brings into the bank. Promotion is also being tied to the amount of funds brought into the bank. The more money one brings in, the more rapid the promotion.
The second story is that told by Mrs. Ayo Atsenuwa of the Faculty of Law, University of Lagos at the last Jurisprudence of Equality Workshop organized by the National Judicial Institute in Abuja. Her client applied for job and was interviewed for it. She did well at the interview and was asked to start work while undergoing a medical check-up. She was found to be HIV positive and so was relieved of her job.
There are many similar and other stories representing varying experiences in our labour regime. In all of the scenarios represented by these stories, the common denominator is the poor state of our labour laws to grapple with them and provide remedies. This yields to the question whether the time is not ripe to evolve a doctrine of unfair labour practice applicable in the country. In this regard, the statement of the Indian Supreme Court quoted earlier comes to mind, namely, that the jurisdiction of the Industrial Court “is invoked not for the enforcement of mere contractual rights but for preventing labour practices regarded as unfair….”
According to D du Toit, et al , the notion of an unfair labour practice, which could include any conduct by employers, employees or their organizations which the Industrial Court believed fell within the definition of the term, led to the emergence of an equity-based labour jurisprudence. To the learned authors, ‘equity’ in this context meant going beyond merely asking whether the employer had acted lawfully to an enquiry into the ‘fairness’ of the action. A ‘fair’ practice meant one that was not capricious, arbitrary or inconsistent. ‘Practice’ was interpreted as including both habitual action and a single act or omission, and ‘labour’ as encompassing both mental and physical labour. My take here is that the time has come to develop a general theory of unfair labour practice in Nigeria. The chief advantage of this general doctrine is that it becomes available where existing legal doctrines do not cover given circumstances.
What I have tried to do is to consider established principles of law in the world of work and introduce reflections on them that call for reconsideration of some of the bases upon which they rest. I am not lost on the fact that a good deal may be needed in terms of a change in the status quo, which change must come from the legislature; even within the current structure, much can be done by the courts given that many of the rules in issue are common law rules that can simply be reinterpreted by the courts along the lines suggested in this paper. In any event, the NIC Act 2006 in particular contains provisions that can be used to advance the cause of justice, fairness, equity and a harmonious industrial relations climate in the country. It permits the introduction and utilization of an equity jurisprudence regarding the issues that continually plague the world of work. To my mind, therefore, the NIC Act represents a new and refreshing chapter in the resolution of labour disputes in the country. If appropriately used, it has salutary provisions such as section 7(6) that come in handy even in very knotty cases.
See, for instance, D du Toit, et al
– Labour Relations Law: A Comprehensive Guide
(LexixNexis Butterworths: Durban), 4th Ed. at pp. 13 – 14.
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, for instance, B. B. Kanyip – “The National Industrial Court: Jurisdiction, Powers and Challenges”, a paper presented at the Induction Course for Newly Appointed Judges and Kadis, organized by the National Judicial Institute (NJI) and which held at Nigerian Merit Award Centre, Aguiyi Ironsi Street, Maitama District, Abuja from 5 – 9 June, 2006. This paper has also been presented at the Refresher Course for Judges and Kadis of 3 – 6 Years Post Appointment, organized by the NJI and which held at Nigerian Merit Award Centre, Aguiyi Ironsi Street, Maitama District, Abuja from 13 – 17 March, 2006. At the 2007 Refresher Course for Judges and Kadis organized by the National Judicial Institute (NJI), which held from 12 – 16 March, 2007 at Abuja, this paper was presented under the title, “The National Industrial Court: Current Dispensation in the Resolution of Labour Disputes”.
 6 NWLR (Pt. 764) 542 at pp. 889 – 890.
I borrowed this phrase from the House of Lords decision in K  3 All ER 897 where Lord Millet chided Parliament for failing to discharge its responsibility for keeping the criminal law in touch with the needs of society. The House of Lords in this case as well as that of B (A Minor) v. DPP  2 AC 428 lost patience with Parliament and so held that reasonableness should no longer be part of the law relating to sexual offences. Lord Millet’s justification for this stance of the House of Lords is that “injustice is too high a price to pay for consistency”. See generally Mike Molan, Duncan Bloy and Denis Lanser – Modern Criminal Law (Cavendish Publishing Limited: London) 5th Edition at pp. 5 – 7.
See B. B. Kanyip – A Study for the Formulation of the ECOWAS Labour Policy and Strategic Plan of Action, July 2008, a study commissioned by the ECOWAS.
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).
I. T. Smith – Industrial Law (Butterworths: London), 1996, 6th ed. at p. 21.
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.
 2 NLLR (Pt. 6) 446.
 4 NWLR (Pt. 544) 37.
 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.
 7 NWLR (Pt. 1085) 1.
Ibid, per His Lordship Oguntade, JSC at p. 30.
 2 NWLR (Pt. 537) 189.
 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’  40 The Modern Law Review 16; Bob Simpson – ‘A Not So Golden Formula: In Contemplation or Furtherance of a Trade Dispute After 1982’  46 The Modern Law Review 463; and Smith (1996) op. cit. at pp. 587 - 594.
 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.
 5 NWLR (Pt. 974) 590.
 1 NWLR (Pt. 4) 755.
 2 NWLR (Pt. 1072) 575.
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.
Unreported Suit No. NIC/11/2007 the ruling of which was delivered on January 24, 2008.
Ibid, at pp. 615 – 616 and 631 – 632 per their Lordships Mukhtar, JSC and Onu, JSC respectively.
 6 NWLR (Pt. 660) 228 at pp. 288 – 289.
See section 10 of the Industrial Relations Act Chap. 88:01 Laws of Trinidad and Tobago.
Unreported Suit No. NIC/36/2007 delivered on July 18, 2008.
 12 NWLR (Pt. 630) 312
 13 NWLR (Pt. 685) 532.
1 NWLR (Pt. 639) 78.
 2 UILR (Pt. 62) 577.
 4 NWLR (Pt. 289) 512.
 2 NWLR (Pt. 324) 41.
 5 NWLR (Pt. 150) 356.
 11 NWLR (Pt. 935) 1 at pp. 26 and 27.
 14 NWLR (Pt. 945) 443.
E. Sims – ‘Employment Security’ 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 p. 252. 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.
See, for instance, R. A. Epstein – ‘In Defense of the Contract at Will’ (1984) 51 University of Chicago Law Review 947.
See A. C. L. Davies – Perspectives on Labour Law (Cambridge University Press: Cambridge), 2004 at pp. 156 – 158 for a review of the arguments for and against.
E. Sims – ‘Employment Security’ in International Labour Standards: A Global Approach (2002), op. cit. at pp. 252 – 253.
See Ton Wilthagen – ‘Striking a Balance? Flexibility and Security in European Labour Markets’ in Thomas Bredgaard & Flemming Larsen (eds.) – Employment Policy From Different Angles (DJOF Publishing: Copenhagen), 2005 at p. 253. See also Changing Patterns in the World of Work (2006) op. cit. at pp. 33 – 37.
Ton Wilthagen (2005) op.cit. at p. 253.
Sonia Cortes – “The Responses of trade Unions to Globalization (in Europe)”, a paper presented at the International Bar Association Labour, Employment and Discrimination Conference, which held from April 10 – 11, 2008 at the Renaissance Chancery Court, London, England.
See Changing Patterns in the World of Work (2006) op. cit. at p. 55.
Ton Wilthagen (2005) op.cit. at pp. 253 – 254.
 14 NWLR (Pt. 687) 356.
 15 NWLR (Pt. 1056) 42.
 4 NWLR (Pt. 287) 288.
 14 NWLR (Pt. 733) 356.
 4 NWLR (Pt. 186) 450.
 7 NWLR (Pt. 711) 1.
 13 NWLR (Pt. 729) 232.
See, for instance, Texaco (Nig.) Plc v. Kehinde  6 NWLR (Pt. 708) 224.
NTF Mills Ltd v. The 2nd Punjab Tribunal, AIR 1957 SC 329 and as quoted by Richard Idubor – “Rethinking the Legal Framework for Trade Disputes Settlement in Nigeria”, unpublished article. The author is a Senior Lecturer in the Department of Business Law, Faculty of Law, University of Benin, Benin City.
See, for instance, Shitta-Bey v. FPSC  1 SC 40; Olaniyan v. University of Lagos  All NLR 363; FCSC v. Laoye  2 NWLR (Pt. 106) 652; Fakaude v. OAUTH  5 NWLR (Pt. 291) 47; Ndili v. Akinsumade  8 NWLR (Pt. 668) 293; University of Nigeria Teaching Hospital Management Board v. Nnoli  8 NWLR (Pt. 363) 376; Ulegede v. Military Administrator of Benue State  2 NWLR (Pt. 696) 73; Bamgboye v. University of Ilorin  10 NWLR (Pt. 622) 290; Busari v. Edo State Civil Service Commission  4 NWLR (Pt. 599) 365; Udo v. Cross River State Newspaper Corporation  14 NWLR (Pt. 732) 116; Okocha v. CSC, Edo State  3 NWLR (Pt. 861) 494; Iderima v. Rivers State CSC  16 NWLR (Pt. 957) 378; Abdul-Raheem v. Olufeagba  17 NWLR (Pt. 1008) 280; Governor, Kwara State v. Ojibara  18 NWLR (Pt. 1012) 645; Omedipra v. FCSC  14 NWLR (Pt. 1053) 17; Ujam v. IMT  2 NWLR (Pt. 1019) 470; Omidiora v. FCSC  14 NWLR (Pt. 1053) 17; and Raji v. University of Ilorin  15 NWLR (Pt. 1057) 259.
See, for instance, Afribank (Nig.) Plc v. Osisanya  1 NWLR (Pt. 642) 598; Osakwe v. Nigerian Paper Mill Ltd  10 NWLR (Pt. 568) 1 SC.
See, for instance, Katto v. CBN  7 NWLR (Pt. 607) 390; Western Nigeria Development Corporation v. Abimbola  4 NSCC 172; and Nigeria Produce Marketing Board v. Adewunmi  7 NSCC 662.
See, for instance, Kabelmetal (Nig.) Ltd v. Ativie  10 NWLR (Pt. 775) 250 CA and Gabriel Ativie v. Kablemental Nig. Limited  10 NWLR (Pt. 1095) 399 SC.
See, for instance, National Union of Food, Beverages and Tobacco Employees v. Coca Industries Limited, Ikeja  3 NLLR (Pt. 8) 206 at 218 D; Mix and Bake Flour Mill Industries Ltd v. National Union of Food, Beverages and Tobacco Employees  1 NLLR (Pt. 2) 247; Chemical and Non-Metallic Products Senior Staff Association v. Benue Cement Co. Plc  2 NLLR (Pt. 6) 446, Hotel & Personnel Services Senior Staff Association v. Owena Hotels Ltd, Akure  3 NLLR (Pt. 7) 163 and Management of Dangote Industries Ltd, Pasta Plant, Ebute Ikorodu, Lagos v. National Union of Food, Beverage and Tobacco Employees unreported Suit No. NIC/2/2008 delivered on 28th January 2009; Trans International Bank Plc v. National Union of Banks Insurance and Financial Institutions Employees unreported Suit No. NIC/17/2000 delivered on May 3, 2007; and The Management of Nestle Nigeria Plc v. NUFBTE unreported Suit No. NIC/25/2008 delivered on April 2, 2009.
 FCR 321 as quoted by Richard Idubor, op. cit.
AIR 1956 SC 231 as discussed by Richard Idubor, op. cit.
See, for instance, Robert Botha – “Outsourcing of Services and Second Generation Outsourcing: A South African Perspective”, a paper presented at the International Bar Association Labour, Employment and Discrimination Conference, which held from April 10 – 11, 2008 at the Renaissance Chancery Court, London, England.
See, for instance, A. Bhasin – “Contracting out from an Indian Perspective: Watch your step”, a paper presented at the International Bar Association Labour, Employment and Discrimination Conference, which held from April 10 – 11, 2008 at the Renaissance Chancery Court, London, England.
Ibid, especially at pp. 112 – 116.
Unreported but excerpted in Richard Idubor, op. cit.
NTF Mills Ltd v. The 2nd Punjab Tribunal, supra.
D du Toit, et al – Labour Relations Law: A Comprehensive Guide, op. cit Chapter IX.