The National Industrial Court of Nigeria: The Future of Employment/Labour Disputes Resolution
Hon. Justice Benedict Bakwaph KANYIP, PhD
Presiding Judge, National Industrial Court
I sincerely thank the Nigeria Institute of Advanced Legal Studies (NIALS) for inviting me to share my thoughts on pertinent issues regarding the resolution of employment/labour disputes in Nigeria. The invitation to me is to talk on "Industrial Courts and Industrial Arbitration Panel in Nigeria: A Comparative Analysis"; and the talk is within the broad framework of the mandate of the Nigeria Institute of Advanced Legal Studies (NIALS) to provide continuing legal education regarding key issues in labour and industrial relations where the academia, legal practitioners, labour union officers, human resources personnel, Judges and staff of the National Industrial Court of Nigeria (NICN) are those billed for retraining. Taking the general objective of the workshop in terms of what it seeks to achieve, I wondered whether the topic assigned to me is appropriate. I am, for instance, lost at the use of the term 'Industrial Courts' in the topic. There is only one Industrial Court in the country. So, how am I to interpret the use of that term in the plural? Am I to understand it as referring to Industrial Courts around the globe; in which event, is it appropriate that the comparison will is to the Industrial Arbitration Panel (IAP) of Nigeria? If the idea is to simply compare the Industrial Court of Nigeria with the IAP of Nigeria then even at this I do not think much will be achieved given that the NICN is the appellate court to the IAP. It conjures up the image of a comparison between say the High Courts and the NICN on the one hand with the Court of Appeal on the other. Not much in terms of retraining and capacity building will be achieved with that sort of discourse.
What I have, therefore, done is to alter the topic so that I can address a more pertinent issue, namely, the future of employment/labour disputes resolution in the country given especially the Third Alteration to the 1999 Constitution. In the process, I hope to bring out the interrelationship between the IAP and the NICN.
At the 2009 All Nigeria Judges' Conference, I delivered a paper titled, "Current Issues in Labour Dispute Resolution in Nigeria". I crave your indulgence to reiterate some of the issues I addressed in that paper. Incidentally, some of the fears I expressed in that paper have been taken care of by the Third Alteration to the 1999 Constitution. In that paper I made the point that 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, such as the promulgation of the National Industrial Court (NIC) Act 2006 and the amendment of the Constitution vide the Third Alteration, 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 forums 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.
We are currently 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.
I have had cause previously to address issues on especially the National Industrial Court. What I intend to do here is to dwell on only those issues that challenge established thinking in the realm of labour law since the passing of the NIC Act 2006 and the Third Alteration to the 1999 Constitution. 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.
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 or atypical work. Sooner or later, the courts will be called upon, as indeed is the case in some matters currently pending before the NICN where the legality of atypical work is questioned, 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 those 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, nowhere 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. Luckily, under the Third Alteration to the 1999 Constitution, section 254C(1)(d) of the 1999 Constitution, as amended, confers jurisdiction on the NICN regarding any matter relating to any dispute over the interpretation and application of the provisions of Chapter IV of the Constitution as it relates to any employment, labour, industrial relations, trade unionism, employer's association or any other matter which the Court has jurisdiction to hear and determine. What this means is that the fear I just expressed would ordinarily be taken care of by the NICN when adjudicating on matters in that regard.
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. I really cannot say whether the draft labour policy has been adopted 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 when it is adopted by the Authority of the ECOWAS Heads of State and Government; and these guiding principles may impact on the cases that come before the National Industrial Court given the provisions of section 7(6) of the NIC Act 2006 and section 254C(1)(f) and (2) of the 1999 Constitution, as amended. Section 7(6) of the NIC Act permits the court to consider and apply best international labour practice when adjudicating on matters within its jurisdictional competence. Section 254(C)(1)(f) of the Constitution confers on the NIC jurisdiction over matters relating to or connected with unfair labour practice or international best practices in labour, employment and industrial relation matters; and under subsection (2), notwithstanding anything to the contrary in the Constitution, the NIC shall have the jurisdiction and power to deal with any matter connected with or pertaining to the application of any international convention, treaty or protocol of which Nigeria has ratified to labour, employment, workplace, industrial relations or matters connected therewith. The point to note then, for present purposes, is that the ECOWAS Labour Policy, when adopted and ratified by Nigeria, and all the International Labour Organisation (ILO) Conventions ratified by Nigeria are applicable in matters before the NIC. It must be noted, however, that 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.
These points made, in this paper, what I intend to do is address, 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 or atypical 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; in that process the position of the IAP would become evident.
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; and
- 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, the NIC Act and now the 1999 Constitution, as amended.
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. Given section 14 of the NIC Act, which mandates the NIC to all that is necessary to avoid multiplicity of suits when adjudicating labour/employment disputes, are these Court of Appeal decisions not qualified in that regard?
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. What all of this means is that, while individuals may not be able to ventilate their grievances under Part I of the TDA, and so cannot ventilate their grievances at say the IAP, they may nevertheless directly approach the NIC to have those grievances redressed, a fact now reinforced by the jurisdiction conferred on the NICN by the Third Alteration to the 1999 Constitution.
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 can be referred 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 the one involving a reference to arbitration or to adjudication. In three recent cases, the NIC had cause to reiterate the fact that disputes of interest are ill-suited for adjudication where no rights have crystallized.
There are certain types of disputes that are often dealt with procedurally different because they tend to be more sensitive or complex or because their outcome tends to affect many people, or because they involve considerations of principle which have policy implications for the society at large. These disputes, if not susceptible to settlement by mediation/conciliation, tend to be dealt with by adjudication in the courts (given that courts, not arbitration, create precedent) and not by the less formal process of arbitration, unless the parties agree otherwise. These disputes are: discrimination and sexual harassment, retrenchment, organizational (i.e. trade union) 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, which given the Third Alteration to the 1999 Constitution would now be essentially academic except that in relation to the dispute resolution processes of Part I of the TDA, it remains important in delimiting the jurisdiction of the IAP to purely collective or group disputes. Prof. Uvieghara has never, however, shared the view as to the restriction of the jurisdictional mandate of the labour dispute resolution institutions under Part I of the TDA to only collective disputes. 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 especially the NIC. Like I pointed out earlier, given the fact that the jurisdiction of especially the NIC under section 7 of the NIC Act 2006 and the 1999 Constitution, as amended 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 laws 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. With section 245C(1) of the 1999 Constitution, as amended, which section must now be read as the 'more specific provision' the Supreme Court talked about, Oloruntoba-Oju can be said to have been overruled in that regard.
If existing case law on the subject is anything to go by, there is a good deal beclouding the concept of 'trade disputes'. The intervention of the regular courts did not clear 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 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) is "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 respective jurisdictional scope 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.
I now turn to the processes for resolving trade disputes under the TDA given that both the IAP and the NICN are central to those processes.
Dispute Resolution Processes under the TDA
Globally, the resolution of labour disputes today is guided by this principle: it is better to have a bad decision quickly than a good decision too late. This is a variant of the adage, 'justice delayed is justice denied'. In other words, speed is a major guiding principle in the resolution of labour disputes even if this is at the risk of an unfair decision. A situation where a worker challenged his suspension and subsequent dismissal from work and it took 13 years to resolve the question of jurisdiction with an order by the Supreme Court that the case be remitted to the High Court and tried all over by another judge, as was the case in Amadi v. NNPC, should certainly be unacceptable and frowned on.
Prior to the passing of the NIC Act, and despite some rulings of the Court of Appeal, the general thinking especially within the world of employment was that the TDA envisaged three main forms of disputes: trade disputes, intra-union disputes and inter-union disputes. Part I of the TDA, which is headed, "Procedure for Settling Trade Disputes" and which consists of sections 1 – 18, was originally thought to regulate only trade disputes and not intra or inter-union disputes. This was because section 1(1) of the TDA provides that "where a trade dispute exists or is apprehended, the provisions of this Part of this Act shall apply in relation to the dispute". However, when section 1A (now section 2) of the TDA was inserted by Decree 47 of 1992 it became, arguably, that intra and inter-union disputes were brought within the purview of Part I especially given the definition of the phrase 'the dispute' under section 1(2) of the TDA. By section 1(2), "unless the context otherwise requires", "the dispute" means the trade dispute in question; and "party" means a party to the dispute. In practice, therefore, the three forms of disputes were treated alike and subjected to the same processes under Part I of the TDA. In fact, the NIC, in a line of cases, declined to hear intra and inter-union disputes as a court of first instance, insisting that they be subjected to the dispute resolution processes of Part I of the TDA. The legality of having to subject intra and inter-union disputes to the procedure set out in Part I of the TDA was then tested in the case of National Union of Hotel and Personal Service Workers v. National Union of Food, Beverage and Tobacco Employees and anor. The court, however, held it to be valid and legal.
One of the reasons for so holding was the provision of section 25 of the TDA (now repealed) which provided that a right of appeal shall lie from the IAP to the NIC in cases of intra-union disputes arising from the organisation and running of a trade union as laid down in the union constitution or in cases of inter-union disputes arising from the restructuring of trade unions established under the Trade Unions Act (TUA) 2004. The reasoning was that there could be no right of appeal from a body unless that body has some jurisdiction to hear the matter in the first place. And coupled with the provision of section 2 of the TDA, which bars the commencement of an action in respect of 'a trade dispute or any inter or intra dispute in a court of law', the NIC reasoned that since it is also a court of law, it could not assume original jurisdiction in cases of trade disputes, and inter and intra union disputes.
With the passing of the NIC Act and the repeal of section 25 of the TDA, the issue whether the NIC has original jurisdiction in cases of inter and intra union disputes came up for determination in the case of Association of Senior Staff of Banks, Insurance and Financial Institutions (ASSBIFI) v. Union Bank of Nigeria Plc. and ors. In that case, the NIC had cause to review the authorities and antecedents pertaining to the issue holding in the process that the jurisdiction of the court is appellate, not original. The ratio in this case has been applied in a number of subsequent cases such as Association of Senior Staff of Banks, Insurance and Financial Institutions (ASSBIFI) v United Bank for Africa Plc. and ors; Peter Okafor and ors v. Anthony C. Ugozor and ors; and Comrade Udeagalanya Anthony and ors v. Comrade Francis Iloduba and ors.
Given the holdings in these cases then, the rule is that, in addition to trade disputes, a litigant must go through the processes of Part I of the TDA in cases of intra and inter-union disputes. The only exception recognized by the court so far is where the dispute relates to elections into union offices and the reliefs sought are declaratory and/or injunctive in nature. In such a dispute, the court will assume original jurisdiction in entertaining the matter. With the Third Alteration to the 1999 Constitution, it remains to be seen how the NICN will grapple with this issue.
However, regarding trade disputes, it would appear to be only in respect of those trade disputes that before the passing of the NIC Act traditionally were referred to the said processes of Part I of the TDA. For instance, only collective labour disputes went through the processes of Part I of the TDA. Individual labour disputes did not. And given that causes and matters relating to 'environment and conditions of work, health, safety and welfare of labour, and matters incidental thereto' (section 7(1)(a)(ii) of the NIC Act) are not matters covered by Part I of the TDA unless they qualify as trade disputes, this may mean that the said matters may not go through the processes of Part I of the TDA; in which event, the NIC will assume original jurisdiction in respect of such matters. But can this be so when section 7(4) of the NIC Act provides that an appeal shall lie from the decision of an arbitral tribunal to the NIC as of right in matters of disputes specified in section 7(1)(a) without distinguishing between paragraphs (i) and (ii)?
For those matters that went through the processes of Part I before now, and which in virtue of section 7(3) of the NIC Act must still go through the processes of the said Part I of the TDA, the first step towards activating the said dispute resolution processes is the formal declaration of the existence of a trade dispute except where the Minister of Labour apprehends it under section 4 of the TDA, in which case he is permitted to apply any of the fast track measures allowed by the TDA. For instance where the Minster apprehends a trade dispute under section 4 of the TDA, he may appoint a conciliator to look into it or refer the dispute to the IAP or refer to it to a board of inquiry. And under section 17 of the TDA, the Minister may by-pass all other processes and refer the dispute directly to the NIC, that is, if the dispute involves workers in any essential service or the circumstances of the case make reference of the dispute to an arbitration tribunal inappropriate. This was the case, for instance, in the matter of Ondo State Government v. National Association of Nigeria Nurses and Midwives and anor. The Minister not only apprehended the dispute, but chose to by-pass the processes of mediation, conciliation and arbitration, which ordinarily Part I of the TDA would have enjoined, in order to refer the matter directly to the NIC.
As to who can declare a trade dispute, the TDA permits an employer(s), or a union, or a group of workers, or the Minister under his power to apprehend a trade dispute, to so declare the dispute when one exists. By declaration of a dispute is meant a formal notification in writing to an opposing party of the existence of a trade dispute between the parties. In the case of the Minister, it is a formal notification to the disputants of his fear (apprehension) that a trade dispute exists between them, although the Minister reserves the right not to do this and simply apprehend the dispute and refer it to an appropriate body. In Corporate Affairs Commission (CAC) v Amalgamated Union of Public Corporations, Civil Service Technical and Recreational Service Employees (AUPCSTRE) and Association of Senior Civil Servants of Nigeria (ASCON) v. Independent National Electoral Commission (INEC) and 2 ors, it was canvassed that only the Minister can declare a trade dispute under the TDA. The NIC, however, rejected this contention. It should, however, be noted that nowhere in the TDA is the word "declare" or "declaration" used. The words used are "report" or "reported" or "notice". Consequently, the declaration of a trade dispute can be said to have evolved as a convention or custom in industrial relations practice in Nigeria, which the courts have judicially noticed as can be seen in the concurring judgment of His Lordship Oputa, JSC in Western Steel Works v. Iron & Steel Workers Union.
In resolving the dispute in question, section 4 of the TDA enjoins the disputants to first explore agreed methods of resolving the dispute among themselves, and if this fails or there is no prior agreement as to how disputes are to be resolved, then within 7 days, to involve a mediator. When this fails to settle the dispute, the dispute shall be reported to the Minister under section 6 of the TDA by or on behalf of either of the parties within 3 days of the end of the 7 days. The Minister is here permitted to refer the matter to a conciliator under section 8 or to the IAP under section 9 or to the NIC under section 16 or to a board of inquiry under section 32, of the TDA. Where the matter is referred to a conciliator under section 8, the conciliator is expected to inquire into the causes and circumstances of the dispute and by negotiation with the parties endeavour to bring about a settlement. All this must be done within 7 days of the conciliator's appointment. Where a settlement is reached, the conciliator shall report that fact to the Minister and forward to the Minister the memorandum of the terms of settlement signed by the representatives of the parties. Where no settlement is reached, the conciliator shall report that fact to the Minister.
The Minister is then expected under section 9 and within 14 days to refer the matter to the IAP whose Chairman must then constitute an arbitration tribunal consisting of either a single arbitrator (with or without assessors) or more than one arbitrator to hear and determine the matter. The arbitration tribunal under section 13 has 21 days, or such longer days as the Minister may allow, to make its award. This award is, however, not communicated directly to the disputants, but sent to the Minister. The Minister may then communicate the award to the parties with a stipulation that within not more than 7 days, either party to the dispute may object to the award. If there is no objection within the 7 days given, the Minister may then confirm the award by publishing in the Federal gazette a notice to that effect. It should be noted that only when the award is confirmed by the Minister is it binding on the parties. And the power of the NIC to interpret IAP awards under sections 15 of the TDA, 7(1)(c)(ii) of the NIC Act and now 254C(j) of the 1999 Constitution, as amended, applies only to confirmed IAP awards.
Issues have been raised by counsel on the proper construction of sections 9 and 12 of the TDA. This was essentially the case in Mix and Bake Flour Mill Industries Ltd v. NUFBTE. In that case, counsel had sought to set aside an IAP award on the basis that the parties to the matter were not given the opportunity to nominate the arbitrators who heard the matter. The NIC held that although generally in arbitration, parties are at liberty to choose the arbitrator(s), by virtue of section 9(4) of the TDA, this principle applies only where the number of arbitrators will be more than one. However, the non-compliance with section 9(4) on the nomination of arbitrators by the parties is not fatal to the exercise of jurisdiction by the IAP because section 12(4) of the TDA operates to cure whatever defect may arise due to the non-observance of section 9(4).
The Minister is permitted, however, under section 13(3) if he thinks it desirable not to notify the parties of the award but to refer it back to the IAP for reconsideration. To Prof. Agomo, therefore, section 13 of the TDA has succeeded in making the IAP award a mere recommendation and the IAP itself a mere arm of a government ministry. At the moment, how this provision will play out given section 7(5) of the NIC Act and the provisions of the Third Alteration to the 1999 Constitution is unclear. Section 7(5) of the NIC Act provides that for the purpose of exercising the right of appeal, 'a party to an arbitral award shall be entitled to obtain a copy of the records of the arbitral proceedings and the award from the arbitral tribunal'. This provision is then reinforced by Order 3 Rule 5 of the NIC Rules 2007, which provides that where the claimant complains against an award or decision by an arbitral tribunal, board of inquiry, decision of the Registrar of Trade Unions or any other authority in respect of matters within the jurisdiction of the Court, the complaint shall be accompanied by a Record of Appeal.
A number of questions may be raised here. In the first place, is it now valid that the Minister can sit on an award, refuse to disclose its content, and instead send it back to the IAP for reconsideration? Secondly, where this happens, can a litigant actually exercise his right of appeal (since an appeal is functional only if the content of the award is known) or of judicial review over the arbitral award that may not even be known to him given that under section 13(1)(b) of the TDA the IAP is enjoined not to disclose its award directly to the litigants but only to the Minister of Labour? And lastly, where the Minister refuses to act, can an order of mandamus under section 17 of the NIC Act be issued against him? It must be noted, however, that by sections 53 and 54(4) of the NIC Act, the TDA is now subjected to the NIC Act. What this means is that section 7(5) would take precedence over any other provision of the TDA including of course section 13. What all this means is that litigants can as of right now demand for the record of proceedings and other necessary arbitration processes from the IAP in order to prosecute appeals against an IAP award at the NIC. In other words, the prerogative writs of judicial review may issue compelling the observance of section 7(5) of the NIC Act.
Where any of the parties objects to the IAP award, the Minister, under section 14 of the TDA is expected to refer the dispute to the NIC, whose decision shall be binding except, by section 9 of the NIC Act, on questions of fundamental rights as contained in Chapter IV of the Constitution where appeals lie as of right to the Court of Appeal. Only the parties to an IAP award should have the right to object to it in order to activate the power of the Minister of Labour to exercise his duty of referral of the matter to the NIC under section 14 of the TDA. It is, therefore, wrong for the Minister of Labour to refer a matter to the NIC when it is objected to by a person or body that was not a party to the matter. This was exactly the case in CAC v. AUPCTRE, where a body calling itself Joint Consultative Council (JCC) of the appellant company, a body that was not a party to the matter in dispute and is not even a registered trade union, objected to the IAP award in issue. The Minister of Labour acted on this objection and referred the matter to the NIC. We had cause in that case to point out the error of the Minister of Labour in referring the matter to the NIC. The court was, however, constrained to hear and determine the matter given that none of the parties before it raised the issue as an objection to the referral. What the Minister of Labour ought to have done was to discountenance the JCC objection, and after the permitted grace period of 7 days, in which parties to an IAP award may object, proceed to confirm the said award. In this event, all the parties would be left with is their right to have the award interpreted by the NIC in the event of any dispute arising out of its application or implementation.
A related principle laid down by the NIC in National Union of Textile, Garment and Tailoring Workers of Nigeria v. Atlantic Textile Manufacturing Co. Ltd is that the Minister of Labour has no power to refer a dispute to the NIC where he has not received any objection to the award of the IAP from either party. The court reasoned that the objection by either of the parties to the award is a prerequisite if the Minister is to exercise the power of referral. The NIC went further to hold that it constitutes a flagrant disregard of the provisions of the TDA by the IAP to constitute two different tribunals to deal with the same dispute; and that where this happens, the whole IAP award would become null and void. Only recently, the NIC, in the case of Steel and Engineering Workers Union of Nigeria v. Avon Crowncaps & Containers (Nigeria) Plc., reiterated this point when it held that an improper referral of a matter by the Minister of Labour, as where the referral was made when there was no objection against the award of the IAP in issue, cannot vest jurisdiction on the Court.
Given the continued centrality of the Minister in the dispute resolution processes of Part I of the TDA, the Minister (or any of the parties involved) is permitted under sections 15 and 16 respectively to apply to the NIC for the interpretation of an IAP or NIC award or a collective agreement. In exercising its power of interpretation, the NIC may either hear the parties or, with their prior consent, not hear them in determining the question(s) as to interpretation.
So long as the processes under sections 4, 6, 9, 14 or 17, or the IAP award is binding or the NIC has issued an award, strikes and lockouts are prohibited under pains of criminal sanctions. And by section 18(3) of the TDA, where a dispute is settled either by agreement or acceptance of the IAP award, that dispute is deemed to have ended. Any further dispute involving the same matters (including questions as to the interpretation of an award made by which the original dispute was settled) is, for purposes of the section 18 of the TDA, to be treated as a different trade dispute.
Another mechanism for resolving trade disputes is the power of the Minister to constitute a board of inquiry under sections 33 and 34 of the TDA. This mechanism is rarely used most probably because of the statutory limitation implicit in its constitution. For instance, under section 33(1) of the TDA, the board of inquiry set up by the Minister is statutorily expected to only inquire into the causes and circumstances of the trade dispute in question and report thereon to the Minister. The statute is silent as to what should be made of the report by either the Minister or any other authority. If such a report is simply filed away, this will be perfectly lawful and valid.
The point to note with these dispute resolution processes of Part I of the TDA is the high emphasis placed on ministerial discretion. The role of the Minister is profound. For instance, disputants cannot go directly to the IAP except through the instrumentality of the Minister. Even under the new dispensation, the Minister reserves the right to refer matters to the NIC in a manner that suggests that the jurisdiction of the NIC cannot be activated except upon such a referral from the Minister. Even the other processes of mediation and conciliation have the input of the Minister as he either appoints the conciliator or must have the outcome reported to him. The good news though is that given the powers of judicial review which the NIC now has under especially sections 16 – 19 of the NIC Act, the Minister can be made accountable for the exercise of his ministerial discretion under the TDA.
Before now, the high incidence of ministerial discretion under the TDA had given rise to the question whether the TDA could stand the constitutional test of section 36 of the 1999 Constitution dealing with the right to fair hearing. Firstly, as I have shown, disputants could not go to the IAP or, in some cases, the NIC directly except through the Minister. Secondly, the IAP statutorily could not disclose its award to the disputants except through the Minister who may even ask for a reconsideration of the award. Was all this contrary to section 36 of the 1999 Constitution? The answer depended on how section 36(2) of the 1999 Constitution was interpreted. If the dispute resolution processes of the TDA come firmly within the provisions of section 36(2) of the 1999 Constitution, then they are not offensive to the right to fair hearing under section 36(1) of the 1999 Constitution. Here, it was noted that the dispute resolution processes are not final as such and section 38 of the TDA allows for the appearance by legal practitioner on behalf of disputants. These issues were canvassed in the case of National Union of Hotels and Personal Services Workers v. National Union of Food, Beverage and Tobacco Employees and anor. The court held that the dispute resolution processes of the TDA did not offend section 36 of the 1999 Constitution although the arguments in that regard were essentially academic. With Third Alteration to the 1999 Constitution, the issue addressed here remains open.
Despite the holding by the NIC that the TDA processes are constitutional, there is no taking the fact that the Minister had an "overbearing influence… on the process", which according to Nojim Tairu Esq. is "so great as to becloud the fact that government itself is often a party in industrial dispute and as such should not arrogate to itself the role of an arbiter in its own [cause]". To the commentator, "this unfortunate situation has to a large extent robbed the existing structures the trust and confidence which is the hallmark of any dispute resolution system".
Whether the NIC Act and the Third Alteration to the 1999 Constitution would restore trust and confidence in the labour dispute resolution processes of the country remains to be seen. And central to this issue is the extent of the jurisdiction and powers of the NIC under the new dispensation, which requires a more elaborate analysis.
Jurisdiction and Powers of the NICN
Jurisdiction under the NIC Act 2006
It is trite learning that jurisdiction is the lifeline of all trials. A trial without jurisdiction is a nullity. The limits of the jurisdiction of any court of law can, therefore, be a knotty issue. The same is true of especially the NIC where in majority of the cases that come before the court, the issue of jurisdiction is often raised, sometimes by the court itself. The passing of the Third Alteration to the 1999 Constitution has not really changed things in this regard. The jurisdiction of the NIC under the NIC Act is provided for under section 7. The section provides that –
(1) The Court shall have and exercise exclusive jurisdiction in civil causes and matters –
(a) 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; and
(b) relating to the grant of any order to restrain any person or body from taking part in a strike, lock-out or any industrial action, or any conduct in contemplation or furtherance of a strike, lock-out or any industrial action;
(c) relating to the determination of any question as to the interpretation of –
(i) any collective agreement,
(ii) any award made by an arbitral tribunal in respect of a labour dispute or an organisational dispute,
(iii) the terms of settlement of any labour dispute, organisational dispute as may be recorded in any memorandum of settlement,
(iv) any trade union constitution, and
(v) any award or judgment of the Court.
(2) The National Assembly may by an act confer such additional jurisdiction on the court in respect of such other causes or matters incidental, supplementary or related to those set out in subsection(1) of this section.
(3) Notwithstanding anything to the contrary in this Act or any other enactment or law, the National Assembly may by an Act prescribe that any matter under subsection (1) (a) of this section may go through the process of conciliation or arbitration before such matter is heard by the Court.
(4) An appeal shall lie from the decisions of an arbitral tribunal to the Court as of right in matters of disputes specified in subsection (1) (a) of this section.
(5) For the purposes of subsection (4) of this section, a party to an arbitral award shall be entitled to obtain a copy of the records of the arbitral proceedings and the award from the arbitral tribunal.
(6) 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.
From the totality of these and other provisions of the NIC Act, and what has evolved as practice in the NIC, the jurisdiction of the NIC can be divided into two, namely, original (where litigants can directly come to the NIC) and appellate (where litigants may have to go through the processes of Part I of the TDA and ending up with a referral of the matter to the NIC by the Minister of Labour acting pursuant to the provision of section 14 of the TDA). It must be pointed out, however, that an improper referral of a matter by the Minister of Labour, as where the referral was made when there was no objection against the award of the Industrial Arbitration Panel (IAP) in issue, the NIC will decline jurisdiction to entertain the matter as was the case in Steel and Engineering Workers Union of Nigeria v. Avon Crowncaps & Containers (Nigeria) Plc. However, a referral to the NIC by the Minister pursuant to the provision of section 17 of the TDA approximates to the original jurisdiction of the NIC given that thereby the matter is coming for the first time before the court without the interposition of the processes of mediation, conciliation and arbitration. What all of this suggests is that the original/appellate categorisation of the jurisdiction of the NIC is not watertight and may depend on a case-by-case analysis. This fact is shown in the discourse that follows.
The interpretation jurisdiction of the NIC is one example of the original jurisdiction of the court. This interpretation jurisdiction relates to the interpretation of any collective agreement, terms of settlement of any labour or organisational dispute, any award made by an arbitral tribunal in respect of a labour or organisational dispute, any trade union constitution, and any award or judgment of the NIC. Under the old dispensation, a trade union constitution was not one of the documents that the NIC could interpret in its original jurisdiction. That this has been provided for under section 7 of the NIC Act makes it novel; and quite rightly litigants have approached the court to have trade union constitutions interpreted. This was the case in Nnorom v. NLC and ors where the NIC was called upon to interpret the constitutions of the Nigeria Union of Pensioners (NUP) and the NLC in terms of the nature of electoral rights of the applicant regarding the elective office of the President of the NLC.
The interpretation jurisdiction of the NIC is reinforced by sections 15 and 16 of the TDA, which permits either the Minister of Labour or any of the parties to an IAP or NIC award, or to a collective agreement to apply to the NIC to interpret the said IAP or NIC award or any term or provision of the collective agreement. And the decision of the NIC in that regard shall be final and conclusive. The interpretation jurisdiction of the NIC is exclusive to the NIC and it cannot be used to adjudicate substantive trial issues.
To activate the interpretation jurisdiction of the NIC for the purpose of interpreting a collective agreement, there must be a sufficient nexus between the applicant and the collective agreement in question. It is not enough that the applicant benefits from the collective agreement without more. To be so entitled, there has to be proof that the beneficiary is a member of the signatory trade union to the collective agreement. Where a trade union may not want to come to court on behalf of its aggrieved members regarding the interpretation of a collective agreement, the said members may apply directly to the NIC and will be accorded recognition upon proof of membership of the union that signed the collective agreement and the reluctance of the union to approach the court on their behalf. Because a collective agreement cannot be interpreted in vain, the party against whom the interpretation is sought must be shown to be bound by the collective agreement as by being a party to the collective agreement. This was one of the grounds upon which the NIC dismissed the claims of the applicants in the case of Joy Maskew & ors v. Tidex Nigeria Limited where an application for interpretation was brought under section 16 of the TDA.
The ploy, in practice, of using the interpretation jurisdiction to avoid or circumvent the processes of Part I of the TDA has often been frowned on by the NIC as the case of Hotel and Personal Services Senior Staff Association v. Tourist Company of Nigeria Plc. shows. In that case, the processes of sections 4 and 6 of the TDA had actually been activated before counsel filed the matter in the NIC under provisions of sections 16 and 21 of the TDA dealing with the interpretation jurisdiction of the court. What was even worrisome was the evasive strategy adopted by counsel in filing the suit. Section 16 of the TDA talks of the interpretation of a term or provision of the collective agreement in issue. Yet when counsel filed the action, the grouse was that the collective agreement did not have any provision allowing or authorizing the respondent to withhold the payment of the entitlement of a resigned staff based on an unsubstantiated allegation. In the case, the NIC held that the interpretation jurisdiction/power of the court is positive and direct, and a provision or term of the collective agreement in issue must be indicated for interpretation. In other words, interpretation cannot be in a vacuum. If the desire is that all the terms of the collective agreement are to be interpreted, this must be indicated with sufficient particularity to enable both the court and the opposing party to know what interpretation the applicant is seeking. There must be no ambush of any sort in the guise of interpretation.
The interpretation jurisdiction of the NIC does not relate to collective agreements alone. As indicated earlier, and by section 15 of the TDA, it extends to also the interpretation of the binding awards of the IAP or of the NIC itself. And here, the Minister of Labour or any of the parties to the award may apply to the NIC for a decision on any question as to its interpretation. Thus in the case of National Union of Railwaymen v. Nigerian Railway Corporation and anor, the Minister of Labour, by way of a referral (section 15 of the TDA talks of an application, not referral), asked the NIC to interpret a confirmed award of the IAP, the primary issue for interpretation being whether the junior staff union had the competence to enter into agreement with the management on issues that are appropriately within the competence of the senior staff association. The NIC answered the question in the negative. In the case of Paper and Paper Products Senior Staff Association of Nigeria v. Nigerian Paper Mill, Jebba, the IAP award in issue was actually not objected to but the appellant association contended that there were too many interpretations being given to it. It consequently impressed it on the Minister of Labour to refer the matter to the NIC. This the Minister did.
The case of Comrade Olu Solademi & ors v. Comrade E. C. Edeji & ors should be noted. In that case, the NIC held as follows –
although interpretation disputes are usually treated as fresh disputes (see section 17(3) of the TDA 1990 and the case of Amalgamated Union of Public Corporations, Civil Service Technical and Recreational Services Employees v. Agricultural and Allied Workers Union of Nigeria unreported Suit No. NIC/17M/1995 the ruling of which was delivered on April 8, 2009), they are not required to go through the dispute resolution processes of Part I of the TDA as argued by the respondents. This is because they are statutorily caught up under the original jurisdiction of this court as can be seen under sections 14 and 20 of the TDA 1990.
Ordinarily, the provision of section 7(1)(a)(ii) could squarely be said to fall under the original jurisdiction of the NIC given that the matters therein (matters dealing with occupational health and safety) are not matters that come within the purview of the processes of Part I of the TDA. However, the provision of section 7(4) of the NIC Act raises questions on this conclusion since it states that the matters therein can be appealed from an arbitral tribunal. Since no other law confers jurisdiction on the IAP for matters covered by section 7(1)(a)(ii), it cannot be that the IAP derives jurisdiction from the NIC Act. This is because the TDA does not have a jurisdiction section for the IAP, neither is there a corresponding provision therein that says that the IAP can do such other things as the National Assembly may by law permit it to do. It is in regards to matters under section 7(1)(a)(i) that the processes of Part I of the TDA are relevant; in which event, the jurisdiction of the NIC in their regard would be appellate, not original. But even here, as I argued earlier, some cases of inter and intra union disputes would be exceptions with the NIC exercising original jurisdiction in their regard.
Section 7(1)(a)(ii) grants the NIC exclusive jurisdiction on matters therein, which are matters relating to occupational health and safety. Before the Third Alteration to the 1999 Constitution, there were doubts whether the NIC could entertain claims in regards to occupational health and safety matters. With the Third Alteration to the Constitution, these doubts have been cleared.
The provision of section 7(1)(b) of the NIC Act is novel and is meant to guard against the circuitous nature in which the legality or otherwise of strike actions is often determined in the country. Not too long ago, it took the High Court of the Federal Capital Territory, the Court of Appeal and the Federal High Court to decide whether Comrade Adams Oshiomhole and the Nigeria Labour Congress can validly lead Nigerians on a strike action. In practice, section 7(1)(b) does not operate to allow a party claim the benefit of an ex parte order where there is already commenced a strike action. In such a case, the NIC insists that the other party must be put on notice. The rationale for this is that a strike is not per se illegal or unlawful. The NIC deems it manifestly unfair to grant ex parte orders behind striking workers where a strike action had already commenced. The proper thing to do in such a case is for the party seeking interim orders to simply file the complaint, a motion on notice for the interim orders and an affidavit of urgency. All parties would then be put on notice for the hearing of the motion for the interim orders.
One noticeable thing regarding the provisions of section 7 of the NIC Act is the absence of the phrase 'trade disputes', which was a prominent feature of the repealed section 20 of the TDA. What we now have is the phrase 'labour dispute'. This fact is deliberate (despite the fact that section 54(1) of the NIC Act defines 'trade dispute') given the diverse conception of the term 'trade dispute' by especially the courts who refused to recognise that 'trade dispute' is a term of art in industrial relations law and practice. In an earlier paper, I had cause to point this out more vividly.
One other issue stems from especially section 7(1)(a)(i) of the NIC Act. Here the NIC is given jurisdiction regarding matters relating to 'labour, including trade unions and industrial relations'. This provision is general in nature and raises issues especially when juxtaposed against the backdrop of what was the case before now. Prior to the enactment of the NIC Act, and especially given the definition of the term 'trade dispute' in section 48(1) of the TDA, the NIC generally ruled that only registered trade unions had the locus to come before it on behalf of workers. In this regard, associations that were not registered as trade unions but were nevertheless registered under some other law and so had the capacity to sue and be sued, were denied the right of audience at the NIC. During the hearing of Senior Staff Association of University Teaching Hospitals, Research Institutions and Associated Institutions (SSAUTHRIAI) and ors v. Federal Ministry of Health and anor, the NIC had cause to stop professional associations in the health sector that were not registered as trade unions from further participation in the matter before the court. The question is whether, given the general provision of section 7(1)(a)(i) of the NIC Act, bodies that are not registered as trade unions (but are nevertheless registered under some other law and so have the right to sue and be sued) can be denied access to the NIC even when the issue in dispute is a matter relating to labour. In other words, is the jurisdiction of the NIC now subject based (in which event such bodies must be accorded a right of hearing) or is it person based (in which event such bodies will not be accorded a right of hearing)? The new dispensation seems to suggest that the NIC jurisdiction is now subject based so that if the issue in dispute relates to labour, then the court would have jurisdiction to entertain and determine the matter. In a recent case, Nigerian Union of Pharmacists, Medical Technologists and Professions Allied to Medicine (NUMPTAM) v. Obafemi Awolowo University Teaching Hospital Complex Management Board (OAUTHCMB), the NIC held that under 'the NIC Act 2006, jurisdiction is subject based, which means that any legal entity that can sue and be sued can approach this court if the grievance in question falls within any of the subject matters stipulated in section 7 of the NIC Act'. In particular, and going by section 7(1)(b) of the NIC Act, the NIC would equally have jurisdiction to hear any matter relating to the grant of any order to restrain the professional association from taking part in any strike or industrial action. This is because section 7(1)(b), as a provision, relates to 'any person or body'. It is not restricted to trade unions or employers' organisations alone. So if the issue is a strike, lock-out or industrial action, the NIC would have jurisdiction. All of this is subject to the caveat that the professional association in issue, not being a registered trade union, cannot claim the privileges and immunity from action that trade unions enjoy when acting lawfully as trade unions.
In conferring jurisdiction on the NIC, section 7(1) needs to be read subject to section 7(3), which provides that –
Notwithstanding anything to the contrary in this Act or any other enactment or law, the National Assembly may by an Act prescribe that any matter under subsection (1) (a) of this section may go through the process of conciliation or arbitration before such matter is heard by the Court.
In AUPCTRE v. FCDA and ors, the NIC had this to say on section 7(3) –
… the word, "Notwithstanding", in section 7(3) is meant to qualify the jurisdiction granted the NIC until conciliation and arbitration, if provided for, have been done. It is to reinforce this stance of the law that section 7(4) of the NIC Act provides that an appeal shall lie from the decision of an arbitral tribunal to this court as of right in matters of disputes specified in section 7(1)(a) of the NIC Act. In appropriate cases…the original jurisdiction of this court may, by an Act of the National Assembly, be made contingent upon exhausting the processes of conciliation and arbitration. Where this is the case, the position is not that the jurisdiction of the court has been ousted; only that it is contingent upon those processes being exhausted.
The import of this subsection is that matters within the purview of section 7(1)(a), that is, matters in respect of 'labour, including trade unions and industrial relations; and environment and conditions of work, health, safety and welfare of labour, and matters incidental thereto', which had to go through the processes of Part I of the TDA will continue to go through those processes even after the passing of the NIC Act.
In National Union of Pharmacists, Medical Technologists and Professions Allied to Medicine v. Obafemi Awolowo University Teaching Hospital Complex Management Board and ors, the claimant, referring to Oseyemon v. Ojo affirmed on appeal to the Supreme Court in Benin Rubber Producers Co-operative Marketing Union Ltd v. Ojo; Olu of Warri v. Kperegbeyi; and AG, Oyo State v. NLC, contended that a law which requires parties to submit to arbitration before access to court is unconstitutional. In other words, that section 7(3) of the NIC Act is unconstitutional. The NIC rejected this contention.
The right of appeal in respect of decisions of an arbitral tribunal granted under section 7(4) of the NIC Act is strengthened by section 7(5) which provides that for the purposes of section 7(4), a party to an arbitral award shall be entitled to obtain a copy of the records of the arbitral proceedings and the award from the arbitral tribunal. Order 3 Rule 5 of the NIC Rules reinforces this provision in stating that where the claimant complains against an award or decision by an arbitral tribunal, board of inquiry, decision of the Registrar of Trade Unions or any other authority in respect of matters within the jurisdiction of the Court, the complaint shall be accompanied by a Record of Appeal.
The novelty in these provisions can only be understood if the antecedents of the dispute resolution processes under Part I of the TDA are appreciated. Under those processes, the IAP is not required to disclose to the disputants the award it makes at the conclusion of hearing. Disclosure can only be to the Minister of Labour who even has the discretion of sending the award back to the IAP for reconsideration. In all of this, the disputants have a limited right regarding the disclosure of the contents of the award. The contents of the award can only be disclosed to them by the Minister of Labour. It was felt that all of this did not accord with the norms of justice. Section 7(4) and (5) of the NIC Act was, therefore, enacted to qualify these obnoxious antecedents of the TDA; but whether, given the reality in practice, they will succeed in curbing these obnoxious antecedents remains to be seen.
Another novel provision is section 7(6) of the NIC Act, which permits the court to have regard to international best practice when exercising its jurisdiction or powers. And what amounts to international best practice is a question of fact. A similar provision can be found 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. Section 7(6) permits 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 proved 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 under the general law only questions of law can be appealed against. In Oyo State Government v. Alhaji Bashir Apapa and ors, the NIC held regarding section 7(6) as follows –
We cannot conclude this judgment without a remark or two on the application of section (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.
In practice, however, the NICN applies ILO jurisprudence regarding matters that come before the court, For instance, in The Hon. Attorney-General of Enugu State v. National Association of Government General Medical and Dental Practitioners (NAGGMDP) & anor, supra, the NIC referred to ILO jurisprudence regarding the conception of essential service and the category of services that fall in that regard. And in Basil Ositadinma Mbanefo & ors v. Judicial Service Commission of Anambra State unreported Suit No. NIC/EN/07/2009 delivered on June 30, 2011 once again referred to ILO jurisprudence in determining the meaning of 'projection of management' within the context of who can or cannot join a trade union.
With the Third Alteration to the 1999 Constitution, and as far as labour disputes adjudication is concerned, cases such as The Registered Trustees of National Association of Community Health Practitioners of Nigeria and 2 ors v. Medical and Health Workers Union of Nigeria 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 Abacha v. Fawehinmi, may be said to be no longer valid.
The jurisdiction of the NIC is not the product of only the NIC Act. Section 7(2) of the NIC Act permits the National Assembly to confer 'such additional jurisdiction on the court in respect of such other causes or matters incidental, supplementary or related to those set out in subsection (1) of this section'. It is in this respect that the additional jurisdiction conferred on the NIC by the Trade Unions Act (TUA), as amended, must be understood. Under this law, the NIC has the additional mandate of determining appeals against any refusal by the Registrar of Trade Unions to register any trade union, or refusal by the Minister of Labour to approve an application by a Trade Union or a 'Federation of Trade Unions' for International Affiliation. Although these aspects of the jurisdiction of the court are couched as appeals under the TUA, as amended, they actually approximate to matters of original jurisdiction of the court given that complaining parties are permitted to approach the court directly without the interposition of any intermediary. Regarding the power of the Registrar of Trade Unions to effect change in the name of a trade union, the NIC had the opportunity to make pronouncements on that question in PERESSA v. SSACGOC & ors. In that case, the NIC held that while the Registrar of Trade Unions has the statutory power to register a change in name of a union, this must not dovetail into the enlargement of jurisdictional scope of the said union. Accordingly, the NIC held that the 1st defendant's change in name, which in the process enlarged its jurisdictional scope, is wrong and goes against the provisions of the Trade Unions Act.
In the exercise of its jurisdiction, the NIC is seized with the general powers of the regular courts. For instance, by section 1(3) of the NIC Act, the Court shall be a superior court of record; and except as may be otherwise provided by any enactment or law, have all the powers of a High Court. In this regard, under section 8 of the NIC Act, the court, when hearing appeals under section 7(4), is permitted to draw any inference of fact and then confirm, vary or set aside the judgment, award or order of the court, tribunal or body to which section 7(4) relates. The court may order a rehearing and determination of the matter on such terms as the court may think just; or order judgment to be entered for any party; or make a final or other order on such terms as the court may think fit to ensure the determination on the merits of the matter in dispute between the parties. Can the NIC on a matter appealed against re-hear it i.e. call in fresh evidence that was not called at the IAP? There are cases currently before the NICN on this issue.
In the determination of matters before the NIC, section 13 of the NIC Act enjoins law and equity to be administered concurrently although by section 15, where there is conflict, equity will prevail. In other words, the NIC, like the High Court, is a court of law and equity.
The NIC Act then goes on to give certain special powers to the court. For instance, section 16 gives the court the power to grant injunctions in all cases in which it appears to be just or convenient so to do; section 17, the power to make an order of mandamus (requiring any act to be done), or an order of prohibition (prohibiting any proceedings, cause or matter) or an order of certiorari (removing any proceedings, cause or matter into the NIC); and section 18 permits the court to make an order of injunction in lieu of quo warranto by restraining a person who acts in an office in which he is not entitled to act from so acting, and if necessary declare the office to be vacant.
By section 19 of the NIC Act, the NIC may in all other cases and where necessary make any appropriate order, including –
(a) the grant of urgent interim reliefs;
(b) a declaratory order;
(c) the appointment of a public trustee for the management of the affairs and finances of a trade union or employers' organisation involved in any organisational dispute;
(d) an award of compensation or damages in any circumstance contemplated by the NIC Act or any Act of the National Assembly dealing with any matter that the NIC has jurisdiction to hear; and
(e) an order of compliance with any provision of any Act of the National Assembly dealing with any matter that the NIC has jurisdiction to hear.
To the extent that the NIC is now specifically empowered to make declaratory and injunctive orders, the debate as to whether the NIC could grant these reliefs is now history.
The NIC is further empowered under section 10 of the NIC Act and Rule 25(3) of the NIC Rules to enforce its award and may commit for contempt any person or a representative of a trade union or employers' organisation who commits any act or an omission which in the opinion of the court constitutes contempt of the court. In practice, when parties apply to the NIC for the enforcement of an existing judgment of the court, it often boils down to more of questions of interpretation of the judgment than those of enforcement simpliciter as the recent case of Nigeria Union of Seamen and Water Transport Workers v. Nigerian Shipping Federation comprising the Nigerian Shipping Line and Nigerian Green Line shows.
One point regarding the enforcement power of the NIC must be made. The point relates to the issue of the parties against whom an enforcement order can be made. It is often thought, as is generally the case, that an enforcement order can only be made against the actual parties to an action. In labour/industrial relations law and practice, this may not be the case. In ASCSN v. INEC and 2 ors, the NIC had the opportunity to state the position of the law as it applies in labour/industrial relations matters, which is that in questions of jurisdictional scope between unions and recognition disputes, an employer is often a passive party and so may not necessarily be a party to the suit; yet the outcome of the suit may be enforceable against the employer. This decision was appealed against and the Court of Appeal on 19th November 2007 affirmed it describing it as impeccable with nothing upon which the Court of Appeal can pick a quarrel against it. The ratio in ASCSN v. INEC and 2 ors was subsequently applied by the NIC in ACSN v. National Orientation Agency and ors.
Before the Third Alteration to the 1999 Constitution, one noticeable complication regarding the enforcement provision was that because of section 10 of the NIC Act, section 22 of the TDA was repealed. The problem was that section 22 of the TDA provided the authority for both the NIC and the IAP to enforce their respective awards. With the repeal of section 22 of the TDA, therefore, it meant that the IAP could no longer enforce its awards since there was no corresponding provision in any other law. Section 254C(4) of the 1999 Constitution, as amended, now cures the problem by conferring on the NICN the jurisdiction and power to enforce the awards of arbitral tribunals. Even if this were not the case, the problem may be solvable in any of two expedients. The first is the threat of criminal sanction under section 14(14) of the TDA, a provision that is subsisting. Section 14(4) provides that any person who fails to comply with a confirmed award shall be guilty of an offence and shall be liable on conviction to a fine or imprisonment. Failure still to comply with the award after conviction is a further criminal offence punishable with a fine for each day on which the offence continues. The second expedient is to activate the interpretation jurisdiction of the NIC under sections 15 of the TDA and 7 of the NIC Act and in the process ask for the enforcement of the award in issue. The snag with both expedients would be the circuitry involved in both of them just to get a party to enforce an award he did not object to.
In an organisational dispute, section 19(c) of the NIC Act empowers the NIC to make an order when necessary for the appointment of a public trustee for the management of the affairs and finances of a trade union or employers' organisation. This power, although existed since 1988, is rarely used. In recent times, the court had used it on only two occasions, the more recent being in the case of Alhaji Shamusideen Adelaja & ors v. Chief Sunday Ogunyade & ors. This case involved an intra-union dispute within the Road Transport Employers Association of Nigeria (RTEAN). The NIC ordered the Minister of Labour to appoint a suitable person as Acting National Secretary-General for the period pending the holding of the National Delegates Conference of the RTEAN. In general, the NICN can be said to be reluctant in using the said power.
The awards, which the NIC makes, can be diverse and novel. By section 14 of the NIC Act, the NIC is empowered when exercising its jurisdiction to grant, either absolutely or on such terms and conditions as it thinks just, all such remedies whatsoever as any of the parties thereto may appear entitled to in respect of any legal or equitable claim properly brought before the court so that as far as possible all matters in dispute between the parties may be completely and finally determined and all multiplicity of legal proceedings concerning any of those matters avoided. Writing under the TDA, Prof. Uvieghara argues that the diverse and novel powers of the NIC to make awards is due largely to the rather general way in which the jurisdiction of the court was expressed, that is, "to make awards for the purpose of settling trade disputes." This contention would still be valid today under the new dispensation of the NIC Act. Consequently, the type of award may be determined by the nature of the dispute. The most often sought after remedy is that of reinstatement of sacked workers. But because of inordinate delays in determining some of the matters before the court, it is often impracticable to order reinstatement given the time lag between the action and the award. However, where compensation (section 19(d) of the NIC Act permits the award of compensation or damages by the NIC) is ordered in lieu of reinstatement, experience has shown that relative to what the regular courts award, that of the NIC is often higher. For instance, in Industrial Cartons Ltd. v. National Union of Paper and Products Workers, the NIC awarded six months' salary as compensation even when the contract of employment provided for termination by either side if one month's notice or a month's salary in lieu is given. The diverse nature of the awards, which the NIC makes, can be seen in the cases of Establishments Department Office of the Head of Civil Service v. Nigerian Union of Civil Service Typists, Stenographic and Allied Staff and Nigerian Bottling Co. Ltd v. National Union of Food, Beverage and Tobacco Employers. In the Nigerian Union of Civil Service Typists case, the NIC granted a new grading structure for typists ranging from GL 03 (step 4) to GL 08 and then created a new terminal post of Principal Personal Secretary on GL 12 for Secretarial cadre. And in the Nigerian Bottling Co. case, the NIC permitted the 2.5% increase in the appellant's pension contribution, thereby bringing the total to 15%, which was what the IAP awarded in the first place.
The attempt to extend these cases to new ones has been avoided by the court. In the case of Senior Staff Association of University Teaching Hospitals, Research Institutions and Associated Institutions (SSAUTHRIAI) and ors v. Federal Ministry of Health and anor, the NIC was called upon to rule that there should be parity in allowances among all categories of health employees, employees that cut across different unions. The NIC held that this can only be possible if the appellant shows that parity of allowances is an entitlement or a right. The court reasoned that labour/industrial relations is a function of conflicting interests, which may remain mere interests or crystallize into rights depending on what can be agreed on through the process of collective bargaining. Consequently, so long as an interest has not crystallized into a right, the adjudicative process of the courts is hardly useful in the resolution of disputes that may arise in that regard. In the words of the court, 'adjudication deals with rights. And until an interest crystallizes into a right, the court is not the ideal forum to go to'. This reasoning was also recently applied in the case of Senior Staff Association of Nigerian Universities v. Federal Government of Nigeria where the attempt was to get the court to apply parity of salary within the University system as between administrative and academic staff.
At inception, the decisions of the NIC were meant to be final and binding given the interposition of the processes of mediation, conciliation and arbitration before adjudication at the NIC. The thinking was that having to go through all these processes presuppose that it would be requiring too much of the legal process if appeals were to be allowed beyond the NIC. This thinking predominated until 1992 when Decree 47 of that year introduced section 20(3) into the TDA permitting appeals as of right from the NIC to the Court of Appeal on questions of fundamental rights. To keep faith with this fact, section 9(1) of the NIC Act provides that '[s]ubject to the provisions of the Constitution … and subsection (2) of this section, no appeal shall lie from the decisions of the Court to the Court of Appeal or any other court except as may be prescribed by this Act or any other Act of the national Assembly'. Section 9(2) then goes on to provide that an appeal from the decision of the NIC 'shall lie only as of right to the Court of Appeal only on questions of fundamental rights as contained in Chapter IV of the Constitution….'
The limited right of appeal granted by section 9 of the NIC Act 2006 has been give judicial stamp of approval by the Court of Appeal in Schumberger Anadril Nig. Ltd v. PENGASSAN. So the talk of unconstitutionality of section 9 must be disregarded. Sections 240 – 246 of the 1999 Constitution are the sections providing for appeals to the Court of Appeal. In these sections, appeal, whether as of right or with leave, is provided for and the court from which the appeal can come is equally provided for. Nowhere in these sections is the NIC named as such. This means that the relevant provision that would govern the case of the NIC is the general provision of section 246(2) of the Constitution, which states that the National Assembly may confer jurisdiction upon the Court of Appeal to hear and determine appeals from any decision of any other court of law or tribunal established by the National Assembly. Section 9 of the NIC Act which grants limited right of appeal to the Court of Appeal comes squarely within the purview of section 246(2) of the 1999 Constitution and so nothing about it can be said to be unconstitutional. The current practice where litigants on virtually any ground including issues of stay rush on appeal to the Court of Appeal from the NIC should be frowned on.
Given the provision of section 9 of the NIC Act 2006 and sections 240 – 246 of the 1999 Constitution, the NIC held in the case of Joy Maskew & ors v. Tidex Nigeria Limited that it does not even have the power to grant leave to appeal against its decision.
Most probably to guard against indiscriminate appeals, section 47 of the NIC specifically provides that where permitted by the NIC Act or any other Act of the National Assembly, an appeal to the Court of Appeal from the decision of the NIC shall not operate as a stay of execution but the NIC may order a stay of execution either unconditionally or upon the performance of such conditions as may be imposed in accordance with the Rules of Court.
What remains is the consideration of the provisions of the Third Alteration to the 1999 Constitution as they affect the question of employment/labour dispute resolution in the country. The point to note, especially in terms of the jurisdiction of the NICN is that everything about the jurisdiction of the NICN under section 7 of the NIC Act 2006 is covered in addition to the new aspects of jurisdiction conferred on the court. It is to this that I now turn.
Jurisdiction under the Third Alteration to the 1999 Constitution
In looking to the future of employment/labour disputes resolution in the country, the most appropriate thing to do is to consider the provisions of the Third Alteration to the 1999 Constitution wherein the NICN was formalized into the Constitution. In general sections 6, 84(4), 240, 243, 287(3), 289, 292, 294(4), 316, 318, the Third Schedule, the Seventh Schedule to the Constitution have all been altered to include the NICN. In addition, new sections 254A – 254F have been added to the Constitution to accommodate the NICN. Not all of these provisions are useful for present purposes. Their general tenor, however, is that the NICN is now formalized in the Constitution and equates with the High Courts in terms of status, jurisdiction, powers and privileges. I shall highlight only the most pertinent in this paper.
To start with, therefore, section 6(5) of the 1999 Constitution has been altered by the insertion of the NIC under the new paragraph (cc), in effect including the NIC as one of the superior courts of record under the Constitution.
Section 243 of the Constitution is altered by inserting inter alia new subsections (2) – (4) in the following words –
(2) An appeal shall lie from the decision of the National Industrial Court as of right to the Court of Appeal on questions of fundamental rights as contained in Chapter IV of this Constitution as it relates to matters upon which the National Industrial Court has jurisdiction.
(3) An Appeal shall only lie from the decision of the National Industrial Court to the Court of Appeal as may be prescribed by an Act of the National Assembly: Provided that where an Act or Law prescribed that an appeal shall lie from the decisions of the National Industrial Court to the Court of Appeal, such appeal shall be with the leave of the Court of Appeal.
(4) Without prejudice to the provisions of section 254C(5) of this Constitution the decision of the Court of Appeal in respect of any appeal arising from any civil jurisdiction of the National Industrial Court shall be final.
Section 254A then goes on to establish the NICN in the standard form while section 254B makes provision for the appointment of the President and Judges of the Court, once again in the standard form as used for the High Courts. The only thing to note is that for the Judges of the NICN, it is not enough to be ten years at the Bar but one must also have considerable knowledge and experience in the law and practice of industrial relations and employment conditions in Nigeria.
Section 254C, which deals with the jurisdiction of the NICN, is the most pertinent for present purposes. It provides as follows –
(1) Notwithstanding the provisions of sections 251, 257, 272 and anything contained in this Constitution and in addition to such other jurisdiction as may be conferred upon it by an Act of the National Assembly, the National Industrial Court shall have and exercise jurisdiction to the exclusion of any other court in civil causes and matters –
(a) relating to or connected with any labour, employment, trade unions, industrial relations and matters arising from workplace, the conditions of service, including health, safety, welfare of labour, employee, worker and matter incidental thereto or connected therewith;
(b) relating to, connected with or arising from Factories Act, Trade Disputes Act, Trade Unions Act, Workmen's Compensation Act or any other Act or Law relating to labour, employment, industrial relations, workplace or any other enactment replacing the Acts or Laws;
(c) relating to or connected with the grant of any order restraining any person or body from taking part in any strike, lock-out or any industrial action, or any conduct in contemplation or in furtherance of a strike, lock-out or an industrial action and matter connected therewith or related thereto;
(d) relating to or connected with any dispute over the interpretation and application of the provisions of Chapter IV of the Constitution as it relates to any employment, labour, industrial relations, trade unionism, employer's association or any other matter which the Court has jurisdiction to hear and determine;
(e) relating to or connected with any dispute arising from national minimum wage for the Federation or any part thereof and matters connected therewith or arising therefrom;
(f) relating to or connected with unfair labour practice or international best practices in labour, employment and industrial relation matters;
(g) relating to or connected with any dispute arising from discrimination or sexual harassment at workplace;
(h) relating to connected with or pertaining to the application or interpretation of international labour standards;
(i) connected with or related to child labour, child abuse, human trafficking or any matter connected therewith or related thereto;
(j) relating to the determination of question as to the interpretation and application of any:
(i) collective agreement;
(ii) award or order made by an arbitral tribunal in respect of a trade dispute or a trade union dispute;
(iii) award or judgment of the Court;
(iv) terms of settlement of any trade dispute;
(v) trade union dispute or employment dispute as may be recorded in a memorandum of settlement;
(vi) trade union constitution, the constitution of an association of employers or any association relating to employment, labour, industrial relations or work place;
(vii) dispute relating to or connected with any personnel matter arising from any free trade zone in the Federation or any part thereof;
(k) relating to or connected with disputes arising from payment or non-payment of salaries, wages, pensions, gratuities, allowances, benefits and any other entitlement of any employee, worker, political or public office holder, a judicial officer or any civil or public servant in any part of the Federation and matters incidental thereto;
(l) relating to –
(i) appeals from the decisions of the Registrar of Trade Unions, or matters relating thereto or connected therewith;
(ii) appeals from the decisions or recommendations of any administrative body or commission of enquiry, arising from or connected with employment, labour, trade unions or industrial relations; and
(iii) such other jurisdiction, civil or criminal and whether to the exclusion of any other court or not, as may be conferred upon it by an Act of the National Assembly;
(m) relating to or connected with the registration of collective agreements.
(2) Notwithstanding anything to the contrary in this Constitution, the National Industrial Court shall have the jurisdiction and power to deal with any matter connected with or pertaining to the application of any international convention, treaty or protocol of which Nigeria has ratified to labour, employment, workplace, industrial relations or matters connected therewith.
(3) The National Industrial Court may establish an Alternative Dispute Resolution Centre within the Court premises on matters which jurisdiction is conferred on the court by this Constitution or any Act or Law:
Provided that nothing in this subsection shall preclude the National Industrial Court from entertaining and exercising appellate and supervisory jurisdiction over an arbitral tribunal or commission, administrative body, or board of inquiry in respect of any matter that the National Industrial Court has jurisdiction to entertain or any other matter as may be prescribed by an Act of the National Assembly or any Law in force in any part of the Federation.
(4) The National Industrial Court shall have and exercise jurisdiction and powers to entertain any application for the enforcement of the award, decision, ruling or order made by any arbitral tribunal or commission, administrative body, or board of inquiry relating to, connected with, arising from or pertaining to any matter of which the National Industrial Court has the jurisdiction to entertain.
(5) The National Industrial Court shall have and exercise jurisdiction and powers in criminal causes and matters arising from any cause or matter of which jurisdiction is conferred on the National Industrial Court by this section or any other Act of the National Assembly or by any other law.
(6) Notwithstanding anything to the contrary in the Constitution, appeal shall lie from the decision of the National Industrial Court from matters in sub-section 5 of this section to the Court of Appeal as of right.
By section 254D(1), for the purpose of exercising any jurisdiction conferred upon it by the Constitution or as may be conferred by an Act of the National Assembly, the NIC shall have all the powers of a High Court.
Section 254E then goes on to provide that –
(1) For the purpose of exercising any jurisdiction conferred upon it by this Constitution or any other law, the National Industrial Court shall be duly constituted if it consists of a single Judge or not more than three Judges as the President of the National Industrial Court may direct.
(2) For the purpose of exercising its criminal jurisdiction. The President of the Court may hear and determine or assign a single Judge of the Court to hear and determine such matter.
(3) For the purpose of exercising any jurisdiction conferred upon it by the Constitution or any other law, the Court may, if it thinks it expedient to do so or in a manner prescribed under any enactment, law or rules of court, call in the aid of one or more assessors specially qualified to try and hear the cause or matter wholly or partly with the assistance of such assessors.
(4) For the purpose of subsection (3) of this section, an assessor shall be a person who is qualified and experienced in his field of specialization and who has been so qualified for a period of not less than ten years.
In all, the things to note regarding these new provisions are –
(1) The current jurisdiction of the NICN is much wider than it used to be. Not only has jurisdiction in civil causes and matters been enlarged, the court now can entertain criminal causes and matters so long as they relate to issues pertaining to the civil causes and matters that the court has jurisdiction to hear and determine.
(2) The concept of unfair labour practice is now recognized under our labour laws.
(3) The right of appeal from the decisions of the NICN to the Court of Appeal remains circumscribed. Only in respect of issues of fundamental rights or criminal causes and matters is the appeal as of right. In all other cases, an Act of the National Assembly must first provide for an appeal; even then, the appeal is possible only upon the leave of the Court of Appeal. In essence the NICN cannot grant leave to appeal. This means that the old dispensation when the decision of the NIC was final and binding is almost now the norm.
(4) The NICN now has jurisdiction over all employment and labour issues including occupational health and safety, employees' compensation. The orthodox view of lawyers that master-servant issues are outside the jurisdictional mandate of the NICN is no longer tenable.
(5) There is greater latitude now for the court to apply international best practice when adjudicating labour/employment disputes.
(6) It does seem that the court can now apply without hindrance international conventions, treaties and protocols that relate to employment/labour issues which are ratified by Nigeria. In this regard, note that the jurisdiction section commences with the words, "Notwithstanding the provisions of sections 251, 257, 272 and anything contained in this Constitution…." Section 12 of the 1999 Constitution which requires domestication before a treaty or convention can become applicable in the country is certainly covered by the words "and anything contained in this Constitution" used in the opening paragraph of section 254C of the Constitution.
(7) Section 254C(1)(d) cannot be used as the basis of filing claims under the Fundamental Rights (Enforcement Procedure) Rules. See Comrade (Evang.) Olowo Preye Grace v. PENGASSAN & 3 ors unreported Suit No. NIC/EN/10/2011 delivered on July 5, 2011.
The NIC Act and now the Third alteration to the 1999 Constitution have made giant strides in shaping the way in which labour disputes would be resolved in the country. The limits of the law are yet to be known. But from what has been said so far, a good deal will be expected in terms of judicial interpretation of the respective provisions of the Act and the Constitution. The way for the resolution of labour disputes in the country has now been fully charted. What all the practitioners make of it remains the critical issue. A good deal of learning on the new dispensation is absolutely necessary if the desired results are to be achieved. The test for all practitioners is how to utilize the new provisions in advancing the cause of justice and fair play.
With this clarification in place, how would the new dispensation treat established orthodox thinking in the realm of labour law since it is in that regard that the future of labour disputes adjudication must be considered? I have at various points in this paper addressed the issue of the application of international labour standards and best practice that it will be needless to repeat. I shall, therefore, proceed to other issues.
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 follow suit especially given the fact that empirical studies have shown that such relaxation increases productivity? This point becomes more pungent when we note that sections 7(6) of the NIC Act 2006 and 254C of the 1999 Constitution, as amended, 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 sections 7(6) of the NIC Act and 254C of the 1999 Constitution, as amended, 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 may 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 and the Third Alteration to the 1999 Constitution. In the first place, sections 7(1)(c)(i) of the NIC Act and 254(C) of the 1999 Constitution grants the NIC the jurisdiction to interpret collective agreements amongst other documents. Section 54(1) of the NIC 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 apply (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 and 254C of the 1999 Constitution 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? Here, I crave your indulgence to think aloud. In this regard, section 9(6)(b)(i) and (ii) of the Labour Act and section 43(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). A recent report by the Campaign for Democratic and Workers' Rights, a non-governmental organization which specializes in labour issues, shows that over 45 % of Nigeria's labour force is made up of casual workers. According to Richard Miller, workers in this category fall within the broader category of the labour force that generally exists in a kind of economic and legal limbo. He continued that although employed, these workers often remain in the margin of the typical employer's workforce without job security, benefits or legal protection. They are variously referred to as contingent, flexible, atypical, secondary, 'just-in-time', marginal or disposable employees; and they come in a variety of guises of employment which include part-time, casual, temporary, leased, agency, subcontract, homework, fixed duration or project, on-call or pool workers. Howsoever they come, they are characterized by their intermittent, temporary nature where they lack job security of the core employees and are generally without access to the job ladders, training, fringe benefits and legal protections possessed by core employment.
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. It is because of scenarios such as these that section 254(C)(f) of the 1999 Constitution, as amended, now confers jurisdiction on the NICN over matters relating to or connected with unfair labour practice. Other jurisdictions like South Africa and India have long accepted that labour courts can assume jurisdiction over unfair labour practices. For instance, 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.
With section 254(C)(1)(f) of the 1999 Constitution, as amended, the time is now ripe to develop a comprehensive theory of unfair labour practice in Nigeria. Unlike the South African experience where the theory is restricted to only issues arising from employee-employer relationship, ours has the capacity to include inter and intra-union relationships. Here, the role of counsel in the development of the said theory cannot be overemphasized.
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. The legislature has done its bit. It is left to lawyers and the courts to do theirs. 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 and the 1999 Constitution, as amended, contain 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 and the 1999 Constitution, as amended, represent a new and refreshing vista in the resolution of labour disputes in the country. If appropriately used, they have salutary provisions that come in handy even in very knotty cases.