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MIX AND BAKE FLOUR MILL INDUSTRIES LTD. AND NATIONAL UNION OF FOOD, BEVERAGE AND TOBACCO EMPLOYEES (NUFBTE) (NATIONAL INDUSTRIAL COURT) HON. JUSTICE B.A.ADEJUMO - PRESIDENT PROF. B.B. KANYIP - MEMBER MR. M.A.B.ATILOLA - MEMBER SUIT NO: NIC/4/2000 DATE OFJUDGMENT - APRIL 2, 2004. LABOUR LAW Industrial Arbitration Panel - Power of Minister to appoint members of- Power of chairman of the Industrial Arbitration Panel to constitute an arbitration tribunal - Distinction between - Sections 8 and 11, Trade Disputes Act - Need to read together. LABOUR LAW National Industrial Court - Nature of - Whether bound by rules of evidence and procedure. LABOUR LAW Redundancy - Meaning of- Employer laying off staff in cases of redundancy - Need to consult with workers’ union - Section 20, Labour Act. LABOUR LAW Reinstatement - Instances when it can be ordered - When it will not be ordered. LABOUR LAW Reinstatement - Particulars of terminated workers - Where absent - Whether reinstatement can be ordered. LABOUR LAW Trade dispute - Arbitrations - Right of parties thereto to choose their arbitrators - Non-observance of - Effect of -Sections 8(4) and 11 (4),Trade Disputes Act LABOUR LAW Trade dispute - Arbitrators - Appointment of - Power of chairman of Industrial Arbitration Panel to appoint a sole arbitrator - Scope of- Section 8(4) (a) (b), Trade Disputes Act. LABOUR LAW Trade dispute - Section 8(4), Trade Disputes Act - Non-compliance therewith – Curative effect of section 11(4) thereon. LABOUR LAW Trade union - Check-off dues -Duty on employer to deduct from wages of workers and pay same to recognized union. LABOUR LAW Trade union - Compulsory recognition of trade union and automatic deduction of check-off dues - Validity of LABOUR LAW Trade union - Registration and recognition of -Trade union mentioned in the Third Schedule of the trade unions Act – Automatic registration and recognition of- Section 5(7), Trade Unions Act - Consequences of LABOUR LAW Trade union - Right of to represent its members in a trade dispute. LABOUR LAW Trade union - System of restructured and highly compartmentalized trade union regime in Nigeria - Constitutionality of. LABOUR LAW Unfair labour practice - What constitutes -Incidents of NATIONAL INDUSTRIAL COURT Nature of National Industrial Court – Whether bound by rules of evidence and procedure. TRADE UNION LAW Check-off dues - Duty on employer to deduct and pay to recognized trade union – Section 5(3), Labour Act. TRADE UNION LAW Check-off dues - Duty on employer to deduct from wages of workers and pay same to recognized union. TRADE UNION LAW Trade union - Compulsory recognition of trade union and automatic deduction of check-off dues - Validity of. TRADE UNION LAW Trade union - Registration and recognition of - Trade union mentioned in the Third Schedule of the trade unions Act -Automatic registration and recognition of- Section 5(7), Trade Unions Act - Consequences of. TRADE UNION LAW Trade union - Right of to represent its members in a trade dispute. TRADE UNION LAW Trade union - System of restructured and highly compartmentalized trade union regime in Nigeria - Constitutionality of. ISSUES 1. Whether the Respondent did not have locus standi to institute the action, either at the Industrial Arbitration Panel or the National Industrial Court. 2. What is the effect of failure to comply with section 8(4) of the Trade Disputes Act in relation to the constitution of membership of the arbitration tribunal? 3. Whether a union had been formed by the Respondent in the premises of the Appellant, and whether an industrial dispute arose therefrom. 4. Whether the Industrial Arbitration Panel awards were made after a proper evaluation of the evidence before it. 5. Whether the Industrial Arbitration Panel awards are reasonable, enforceable, fair and equitable. FACTS The Respondent union sought to unionize the Appellant’s workers, which it claimed, were eligible to be its members. All efforts in that direction was rebuffed by the Appellant. In the course of the Respondent’s efforts at unionizing the Appellant’s workers, the Appellant laid off some of its workers. As a result of the dispute, the Respondent declared a trade dispute, which was referred to the Industrial Arbitration Panel. The Appellant was dissatisfied with the Panel’s award and appealed to the National Industrial Court. Held: (Allowing the appeal in part) 1. On Automatic registration and recognition of trade unions - By section 5(7) of the Trade Unions Act, notwithstanding anything contained in the Act (and this includes section 24(1)), all unions specified in the Third Schedule of the Act have automatic registration and recognition with full powers and duties of trade unions accorded to them. In the instant case, the Respondent union is listed as No.11 in both Parts A and B of the Third Schedule to the Trade Unions Act. That means it has automatic registration and recognition under the. Act with all the incidents of a trade union accorded it. 2. On Whether refusal of employer to accord recognition to trade union not a trade dispute - Once a trade union indicates its willingness to unionize workers who are eligible to be its members, an employer is obliged to accord recognition and not pose obstacles in the way of such unionization. In the instant case, in refusing to accord recognition to the Respondent to unionize eligible members in the Appellant company, an industrial dispute thereby arose which was properly brought before the Industrial Arbitration Panel and the National Industrial Court. Moreover, the complaint that a good number of such eligible members were unlawfully terminated is one that the Respondent could validly take as a trade dispute. 3. On Validity of compulsory recognition of trade unions and automatic deduction of check-off dues - Compulsory recognition and automatic deduction of check-off dues are the norms in the current labour law regime in the country. 4. On Right of trade union to represent its members in a trade dispute - A trade union has the right to represent its members before the National Industrial Court in matters of trade disputes. It was consequently wrong for the Appellant to argue that the Respondent had no locus standi to bring this action. 5. On Duties on employer to deduct check-off dues from wages of workers and pay same to a recognized union - Upon the registration and recognition of any of the trade unions specified in Part A of the Third Schedule to the Trade Unions Act, section 5(3) of the Labour Act enjoins an employer to deduct check-off dues from the wages of all workers eligible to be members of the union and pay same to the union so recognized. The provision is reinforced by section 1 6A of the Trade Unions Act as inserted by Decree4 of 1996, and amended by Decrees 26 of 1996 and 1 of 1999. 6. On Constitutionality of system of restructured and highly compartmentalized trade union regime in Nigeria - The system of restructured and highly compartmentalized trade union regime is constitutional [Osawe v. Registrar of Trade unions [1985] 1 NWLR (Pt.4) 755 referred to]. 7. On Rights of parties to arbitrations to choose their arbitrators - In arbitrations, parties are at liberty to choose their arbitrator(s). Section 8(4) of the Trade Disputes Act gives effect to this basic principle, but only if the number of arbitrators will be more than one. Where the arbitration tribunal consists of a single arbitrator, section 8(4) (a) and (b) gives the Chairman of the Industrial Arbitration Panel (IAP) absolute power to appoint the arbitrator to hear the matter in issue. 8. On Distinction between power of the minister to appoint Industrial Arbitration Panel members and power of the Industrial Arbitration Panel chairman to constitute an arbitration tribunal - The intendment of the Trade Disputes Act is that whereas the Minister of Labour “appoints members of the Panel” i.e. the Industrial Arbitration Panel, the TAP chairman “appoints” an arbitration tribunal, that is, determines who sits as an arbitrator over a matter referred to the Industrial Arbitration Panel. The Trade Disputes Act makes a fine distinction between the IAP as a panel, and the arbitrators when they sit as an arbitration tribunal to hear and determine disputes. It may have been inelegant for the drafter not to have used the word “constituted” instead of appointed in section 11(1) - (4) to clearly demarcate the power of the Minister to appoint TAP members and the power of the IAP chairman to constitute an arbitration tribunal, yet the intendment towards that effect is very clear and glaring, when all the provisions of sections 8 and 11 are read together and not in isolation. Moreover, section 11(1) - (4) is clearly out to remedy defects set therein and so has curative value. 9 On Effect of failure to comply with section 8(4) (c) of the Trade Disputes Act - Although it is ideal for parties before the Industrial Arbitration Panel to nominate arbitrator(s) where an arbitration tribunal consists of more than one arbitrator, and for the chairman or vice-chairman of the IAP to chair such arbitration tribunal as enjoined by section 8(4) (c) of the Trade Disputes Act, the failure to do this is not fatal to an action as section 11(4) operates to cure the defect. In other words, section 11(4) of the Trade Disputes Act operates to cure whatever defect that may arise as a result of the non-observance of the provision of section 8(4) of the Trade Disputes Act. 10. On Meaning of redundancy and need to consult with union with regard thereto - Section 20 of the Labour Act provides for consultation with a union on how staffs are to be laid off in cases of redundancy, which is defined as “an involuntary and permanent loss of employment caused by an excess of manpower”. In the instant case, the Appellant impliedly reduced its staff on account of global economic crisis. The IAP was therefore right to have held that in the termination of the workers ‘employment, section 20 of the Labour Act was not complied with. 11. On whether reinstatement will be ordered where there are no particulars of workers terminated Where no particulars of terminated workers were supplied to the Industrial Arbitration Panel, there would be no basis for ordering their reinstatement. In the instant case, however the Respondent cured the defect before the court by submitting a list of 141 names of workers said to be terminated by the Appellant. 12. On Instances when reinstatement can be ordered Reinstatement can be ordered under the labour laws of Nigeria in two cases. The first is where the employment has statutory flavour and the processes enjoined by the statute for terminating an employment were not followed. The second is where the termination is a product of union activities on the part of the employee. Section 9(6) of the Labour Act and section 42(1) (b) of the Trade Disputes Act all frown against that. 13. On Nature of the National Industrial Court and whether it is bound by rules of evidence and procedure The National Industrial Court is a specialized court and differs from the regular courts in a number of respects. It is not bound by rules of evidence or procedure, although it may be informed by them, neither is it bound by strict rules of legality or formalism. The concern of the court must always be justice and fairness. For the avoidance of doubt, the court can act as both a trial and an appellate court in matters referred to it by the Minister. The court can retry issues anew when a matter is referred to it by the Minister. 14. On what constitutes unfair labour practice An unfair labour practice is usually due to the employers’ dislike of trade unions or his opposition to the presence of a trade union in his plant. To be unfair, it must be established that the practice does not conform with best practice in labour circles, as may be enjoined by local and international experience.