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IN THE NATIONAL INDUSTRIAL COURT HOLDEN AT ABUJA BEFORE THEIR LORDSHIPS: Hon. Justice B.A. Adejumo - President Prof. B.B. Kanyip - Judge Hon. Justice V.N. Okoni - Judge DATE: NOVEMBER 22, 2006 SUIT NO. NIC/2/2005 BETWEEN Steel Engineering Workers Union of Nigeria (SEWUN)………………...Applicant AND Aluminum Smelter Company of Nigeria Limited (ALSCON), Ikot Abasi, Akwa Ibom State………………………….………………..Respondent REPRESENTATION OF PARTIES Chief K.A. Akinyele, for the appellant Magaji Ibrahim, for the respondent JUDGMENT This is a matter referred to this court by the Honourable Minister of Labour and Productivity acting under the powers conferred on him by section 13 (1) of the Trade Disputes Act (TDA) Cap. 432 LFN 1990 vide a letter dated 11th January, 2005 with Ref. No. HE/849/CON.1/62. The referral instrument, simply dated December 2004, was attached. Under the referral instrument, this court is called upon – To inquire into the trade dispute existing between [the] Steel and Engineering Workers Union of Nigeria (SEWUN) and Aluminum Smelter Company of Nigeria (ALSCON) Ikot Abasi, Akwa Ibom over the following points: (a) Refusal to renegotiate the expired Collective Agreement in outright violation of Article 38 of Staff Collective Agreement. (b) Flagrant refusal to negotiate the severance benefit in the face of privatization of ALSCON Ltd. (c) Refusal to implement Committee’s Report on Staff Placement. (d) No Staff promotions as required. (e) Unfair Labour Practice. The present matter had earlier been heard by the Industrial Arbitration Panel (IAP) and an award made by the IAP. It is the award of the IAP that both parties objected to in two separate letters to the Honorable Minister of Labour – that of ALSCON (objecting to awards 1 and 2 of the IAP) vide a letter dated February 11, 2004 with Ref. No. ALS.MI.VT.356 and that of SEWUN vide two letters dated January 26, 2004 and October 28, 2004. In substance, and although SEWUN urged that this matter be referred to this court, its two letters were not objections as such but complaints on the failure of ALSCON to respect the award of the IAP in this matter. It is, therefore, the objection of ALSCON that can be said to have activated this matter. ALSCON, therefore, ought to appropriately be the appellant in this matter. Be that as it may, and given the fact that SEWUN’s memorandum reopens all the issues referred to this court in the referral instrument, this court will retain the order of the parties as contained in the referral instrument with SEWUN as the appellant. In any event, the cause of justice will not be affected by the order of the parties given the circumstances of the case. Parties were directed to join issues by submitting their respective memorandum. While SEWUN complied, ALSCON did not. In fact it must be pointed out that counsel to ALSCON appeared only once throughout the course of hearing of this matter. At a point, SEWUN had to apply to this court to dispense with the appearance of the counsel to ALSCON so that the matter can be heard and disposed of – a prayer this court granted. To say the least, this attitude exhibited by ALSCON is despicable considering that it is their objection to the IAP award, and hence refusal to adhere to the IAP award, that resulted in the referral of the matter to this court. In ALSCON not filing any memorandum, SEWUN prayed this court to grant it all its prayers, more or less arguing that thereby ALSCON is not opposed to its case by refusing to join issues with SEWUN. However, even in undefended cases, a court must look at the plaintiff’s case on its merit before taking a decision. This is what we intend to do in this matter. In complying with the directive of this court, SEWUN on 28th September 2005 filed their memorandum which is dated 22nd September 2005. And on 6th June 2006, SEWUN, with the leave of this court, filed an additional memorandum which is also dated 6th September 2006. Both memoranda, with accompanying annexures, recited the antecedents of the case and the facts that gave rise to it culminating in all the efforts made by the Ministry of Labour, the Bureau of Public Enterprises (BPE), the Akwa Ibom State House of Assembly, the IAP and the House of Representatives to resolve the matter. The case of SEWUN and invariably the reliefs sought against ALSCON is as follows: (i) That ALSCON refused to negotiate with SEWUN the expired Collective Agreement and so this court should direct that such negotiation should resume and be completed within a reasonably given period. (ii) That ALSCON has flagrantly refused to negotiate the ‘severance benefit’ of the workers of ALSCON who are likely to be retrenched in the event of privatization and so this court should direct that negotiation be resumed to conclude such agreement immediately. (iii) That ALSCON refused to implement the Report and Recommendation of the Committee appointed by the Management to look into staff apartment [placement?], which report and recommendation was submitted to the Management on or around 31st March 2002 and so this court should give the directive to implement the Report and Recommendation of the Committee unfailingly and with immediate effect. (iv) That promotions of deserving staff were withheld by ALSCON and so this court should give the necessary directive to the Management that promotion of deserving staff and workers be commenced with immediate effect as agreed. (v) That ALSCON engaged in unfair labour practices and so this court should direct that adequate housing scheme that will enhance peace, harmony and cordial relationship between the generality of the workers and staff be put in place and pursued, and that the resolution of the House Committee of the Akwa Ibo State House of Assembly be respected and compiled with. (vi) That this court should then make such further consequential awards as may be just and reasonable in the circumstances of the case. Reliefs (iii), (iv) and (v) must at once be disposed of as disclosing no cause of action. Nowhere in this arguments of SEWUN was it indicated that entitlement i.e. rights of its members in terms of the reliefs sought were infringed by ALSCON. The collective agreements exhibited by SEWUN in their original memorandum (Annexure 1B dated 1st February 2001 and Annexure 12B dated 22nd November 2001) do not contain clauses granting entitlements to members of SEWUN in terms of reliefs (iii), (iv) and (v) sought. Promotion is not indicated to be an entitlement in the said collective agreements (see Article 21 of the 1st February 2001 Collective Agreement – Annexure 12B). Neither is housing (what is provided for under the collective agreements are housing allowance and rent advance see Articles 10 and 33 of Annexure 1B, and Article 4 of Annexure 12B). If, therefore, housing is not an entitlement under the collective agreement, it is difficult to see how failure to make a provision in that regard is an unfair labour practice. And to ask this court to order that the resolution of the House Committee of the Akwa Ibom State House of Assembly should be respected and complied with is to be oblivious of the fact that generally resolutions of the legislature are only persuasive and hence not binding. To grant the prayer of SEWUN in that regard is to compel the exercise of what generally is only persuasive – something this court cannot do. The other instances of unfair labour practices listed at para.18 of the original memorandum of SEWUN were not substantiated or proved as to disclose the infringement of rights. The complaints of SEWUN as to the refusal of ALSCON ‘to pay Christmas Bonus to staff and workers for many years’ (an issue covered by Article 14 of Annexure 1B and Article 11 of Annexure 12B), the ‘non-remittance of pension and NSITF for upward 15-20 months’ (an issue that comes within the ambit of Article 17 of Annexure 1B), the ‘failure to pay 12.5% Salary Increase granted by the Federal Government’ (an issue that may be covered by Article 1 and 36 of Annexure 1B), and the non-implementation ‘of Monetization Policy despite the fact that the company is a Federal Government Parastatal’ (an issue that may be covered by Article 36 of Annexure 1B), all of which can qualify as entitlements or rights if proved, remain mere assertions as far as this case is concerned. No attempt was made by SEWUN to prove any of these issues and as such this court is at a loss as to how it is expected that orders can be made in regards to them. For lack of substantiation and hence proof of these issues, this court cannot make any order in their regards. Regarding the issue of proper placement of staff, Article 8 of Annexure 12B provides that genuine complaints from staff should be looked into with representation made by SEWUN. From the account of the facts of this matter as narrated in the original memorandum submitted by SEWUN, a committee was set up to look into the matter and a report submitted. This report was not exhibited throughout the hearing of this matter. Consequently, since we do not know that the report even exists, we cannot rule that the recommendations of the report should be implemented ‘with immediate effects’ as prayed by the counsel to SEWUN. This leaves out reliefs (i) and (iii) dealing with questions as to the interpretation of the 1st February 2001 Collective Agreement – Annexure 1B. Incidentally, the questions raised here are similar to those raised by the Senior Staff Association, Metal Products Senior Staff Association of Nigeria (MEPROSSAN), of ALSCON in a sister case, MEPROSSAN v. ALSCON Suit No. NIC/1/2005 – a matter in respect of which this court delivered judgment on May 11, 2006. The contention of SEWUN here is that ALSCON has refused to renegotiate Annexure 1B as stipulated for by Article 38 of the said Annexure 1B even when it drafted a ‘New Proposed Collective Agreement’ (Annexure 4B) and sent to ALSCON. However, it was not until 13th June – 2002 vide Annexure 2B that SEWUN notified ALSCON of the need to commence the negotiation of a new collective agreement. Whether SEWUN kept to the terms of Annexure 1B and so is right in its contention would depend on the construction of the said Article 38, which provides as follows: The duration of this agreement shall be for a period of Eighteen (18) months commencing from the 1st day of January, 2001 and terminating on the 31st day of June 2002. However, either party may one month, before the termination of the agreement give to the other notice in writing of its intention to resume negotiations with the object of drawing up a new agreement. Where such notice is not given, this agreement shall be deemed to continue in force and effect until such a time when a new one shall be drawn up. This provision (Article 38) is similar to that we interpreted in the sister case of MEPROSSAN v. ALSCON, supra, the only difference being that in the case (MEPROSSAN), the words ‘Eighteen (18) months’ is prefixed/qualified by the words ‘not less than’. Despite this difference in wording, both provisions depict the same meaning and so our interpretation of the MEPROSSAN provision would apply with equal force in this matter presently before us. To beging with, like with the MEPROSSAN provision, there is a bit of inelegance in drafting this provision when the terminal date for the collective agreement is said to be 31st June, 2002 if its noted that the month of June has 30 days and not 31. So, the reference to 31st day of June 2002 must be read to mean 30th day of June 2002. What construction then can be given to Article 38? In the first place, determining the limitation period of 18 months, Article 38 utilizes the calendar month. This presupposes that in determining the one month’s notice required as notice for the intention to resume negotiations for a new collective agreement, what is contemplated is the calendar month, not, say, four weeks. If this is the case, the letter of 13th June, 2002 from SEWUN to ALSCON (Annexure 2B) urging that negotiations of a new collective agreement should be commenced is out of time. This being so, the last sentence of Article 38 becomes applicable given that a vacuum should not be regarding the rights and obligations of the parties to the collective agreement. In this sense, Annexure 1B continues to be in force. ALSCON cannot therefore, be faulted for not being keen on renegotiating a new collective agreement as SEWUN was out of time in giving the notice of intention to renegotiate the collective agreement? We do not think so. Collective agreements usually have a limited application time. If a new agreement had been entered into in 2002 as ordinarily would have been the case given that Annexure 1B was earmarked to run for two years, we would have been talking of two separate collective agreements by now. It is our view, therefore, that the parties need to commence negotiations of a new collective agreement immediately. In negotiating a new collective agreement, the parties are at liberty to negotiate the terms and conditions of work including, of course, severance benefits – the main plank of relief (ii). It is our order, therefore, that the parties in this matter should immediately commence the negotiations of a new collective agreement. Judgment is entered accordingly. ………………………………… Hon. Justice B.A. Adejumo President ………………………….. ……………………….. Prof. B.B. Kanyip Barr. M.B. Dadda Member Member