NIGERIA UNION OF CONSTRUCTION AND CIVIL ENGINEERING WORKERS AND COSTAIN (WESTAFRICA) LIMITED (NATIONAL INDUSTRIAL COURT) H ON. JUSTICE (CHIEF) P.A. ATILADE PRESIDENT DR O.I. ODUMOSU MEMBER S.O. KOKU,ESQ. MEMBER SUIT NO: NIC/15/78 DATE OF JUDGMENT FRIDAY, 6thFEBRUARY, 1981 LABOUR LAW Gratuity - Gratuity rates - Improvement thereon -How secured. LABOUR LAW National Industrial Court - Documents which would assist it in arriving at a just decision in a dispute -Power of to admit. LABOUR LAW Pension fund - Provident fund - Difference between -Right of employer to choose therefrom. LABOUR LAW National Industrial Court - Hearing thereby -Tendering of evidence therein - Evidence available at the Industrial Arbitration Panel but not tendered -Tendering of at hearing before National Industrial Court - Proper time to raise objection thereto 1. Whether the Appellant's demand for the payment of overtime arrears based on Udoji rates was made out. 2. Whether the Appellant's claim for payment of gratuity based on the Udoji rate was made out. FACTS: There was a dispute between the Appellant and the Respondent in respect of overtime on Udoji rates and gratuity based on Udoji recommendations, which was referred to the Industrial Arbitration Panel. The IAP made an Award to which the Appellant objected, and the dispute was referred to the National Industrial Court. The Appellant's case was that the Industrial Arbitration Panel (IAP) misled itself by stating in its Award that the dispute between the parties arose from divergent interpretations of this agreement dated 4th March, 1975. It was argued that the time lag of 10 months between the date of that agreement and the submission of its claims for overtime arrears was immaterial. On the Appellant's demand for payment of gratuity based on Udoji recommendation, the Appellant contended that the IAP used the same erroneous reasoning it applied to the overtime in making its award of gratuity. On the part of the Respondent, it was stated that as there was no mention of overtime and since only basic wages were mentioned in the agreement of 4th March 1975, the parties intended to exclude overtime arrears. On the issue of the time lag of 10 months, the Respondent contended that the IAP had to make decision on the totality of the facts before it and that it would have been wrong for it to close its eyes to the delay in considering the claim of the Appellants for arrears of overtime. On the issue of gratuity, the Respondent urged the court to uphold the award of the IAP on the issue. It argued that by so doing, the court would be upholding an agreement, which was! freely negotiated and entered into between the two parties at the National Joint Industrial Council level and confirmed by the President of the Appellant's Union in his letter of lst September, 1974. HELD: (Rejecting the Appellant s claims for overtime areas and gratuity based on Udoji rates): 1. On Right of employer to choose between provident fund and pension fund - An employer is free to opt for either a provident fund or a pension fund in the light of the realities and conditions prevailing in any particular industry or service. 2. On Difference between provident fund and pension fund- There is a difference between a provident fund and a pension fund. Although both schemes may or may not be financed on a contributory basis, the benefits conferred on employees are of different kinds, in that whereas a provident fund provides for a once-and-for-all-time payment of a lump sum on retirement, pension is computed as a percentage of terminal salary and paid periodically, usually monthly, for the rest of the life of a retired employee. I 3. On How improvement on existing gratuity rates can be secured - Any improvement on existing gratuity rates either at company level or at the National Joint Industrial Council can only be secured through consultation or negotiation as the case may be. Non-participation in the National Joint Industrial Council by a particular union cannot confer on it immunity from its decision. 4. On Power of the National Industrial Court to admit documents, which would assist it in arriving at a just decision in a dispute - The proper time to raise objection to the tendering of evidence which was available at the time of the hearing and final determination of a matter in the Industrial .Arbitration Panel is when the evidence is being tendered in the National Industrial Court. However, by section 27(2) of the Trade Disputes Act, 1976 the National Industrial Court is not precluded from admitting documents if it is convinced that such documents would assist it in arriving at a just decision in a dispute.