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- Name: AN EXAMINATION OF LAWS AND PROCEDURES REGULATING TRADE DISPUTE IN NIGERIA
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The major problem in the Nigeria Labour System has been and still remains the incessant strikes by workers. Strike as distasteful as it is, performs various useful functions, for example when it is properly used, it can force management to concede to the demands of the workers. In spite of its usefulness in the employer-employee’s relationship, it imposes costs on the two sides and on the economy as a whole. How has the government responded to the problem of industrial action which has adversely affected the economy of the country? In 1976, the Trade Dispute Act was promulgated to manage and regulate trade dispute matters in Nigeria. The aim of the Act was to promote industrial peace and harmony in the country. Unfortunately, the incidence of trade disputes in Nigeria is still alarming. This problem brings to fore the question whether the Trade Dispute Act has been able to meet up to expectations.
This work therefore desires to find out the positive law relating to trade disputes and settlement processes. The paper examines the Trade Dispute Act, 1976 and its provisions for trade dispute settlement. It also finds out whether the Trade Dispute (Amendment) Decree No 47 of 1992, has made things easier. It also examines the jurisdiction of the National Industrial Court and the new provision under the National Industrial Court Act, 2006.
All these are the issues that are pertinent and are discussed in the course of this work.
TABLE OF CONTENTS
1.0.0: INTRODUCTION 1
1.1.0: BACKGROUND TO THE STUDY 4
1.2.0: OBJECTIVE OF THE STUDY 5
|1.3.0:||DEFINITION OF TERM||6|
|1.4.0: SCOPE OF THE STUDY||10|
NATURE, DEFINATION AND HISTORY OF TRADE DISPUTES IN NIGERIA
|2.1.0: MEANING AND NATURE OF TRADE DISPUTE||15|
|2.1.1: SUBJECT MATTER OF TRADE DISPUTE||17|
|2.1.2: PARTIES TO A TRADE DISPUTE||19|
|2.1.3: PURPOSE OF TRADE DISPUTE||20|
|2.2.0: HISTORY OF TRADE DISPUTE||21|
|2.3.0: THE RIGHTS AND OBLIGATIONS OF EMPLOYERS AND|
|EMPLOYEES UNDER THE TRADE DISPUTE ACT, CAP 432|
|2.3.1: RIGHTS AND OBLIGATIONS OF THE PARTIES||27|
|2.4.0: INHERENT DEFECTS IN THE TRADE DISPUTE LAWS||29|
|2.4.1: DEFECTS IN THE 1941-1969 LAWS||29|
|2.4.2: DEFECTS IN THE PROCEDURES FOR TRADE DISPUTE|
|REDOLUTION UNDER THE TRADE DISPUTE ACT 1990||32|
|MECHANISM FOR TRADE DISPUTE RESOLUTION|
|3.1.0: SELF HELP||37|
|3.4.0:||INDUSTRIAL ARBITRATION PANEL||44|
|3.5.0:||NATIONAL INDUSTRIAL COURT||51|
|3.6.0:||BOARD OF INQUIRY||56|
AN APPRAISAL OF NEW LEGISLATION AND ROLE OF COURTS
|4.1.0: THE TRADE DISPUTE (AMENDMENT) DECREE OF 1992||60|
|4.2.0: THE EFFECT OF 1999 CONSTITUTION||63|
|4.3.0: THE POSITIONS OF THE COURT||68|
|4.3.1: THE JURISDICTION OF THE NATIONAL INDUSTRIAL COURT|
|ON LABOUR MATTERS – WHETHER EXCLUSIVE||68|
|4.3.2: THE TRADE DISPUTE ACT, CAP 432 LFN, 1990||69|
|4.3.3: THE TRADE DISPUTE (AMENDMENT)|
|DECREE, NO 47, 1992||70|
4.3.4: WHAT IS THE CONSTITUTIONALITY OF THE EXCLUSIVE JURISDICTION GIVEN TO THE NATIONAL INDUSTRIAL COURT UNDER THE TRADE DISPUTE ACT AS AMENDED BY
|DECREE 47 OF 1992?||72|
|4.3.5: THE NATIONAL INDUSTRIAL COURT ACT, 2006||74|
|4.4.0:||COURT JURISDICTION, POWERS AND LIMITATIONS||78|
|4.4.2: APPELLATE JURISDICTION OF THE COURT||85|
|CONCLUSION AND RECOMMENDATION|
INTRODUCTION TO STUDY
Industrial harmony is very important both at the public and private sectors because of the negative impact of disputes in the labour sector. Trade dispute, when it occurs could be a very serious issue especially when it is allowed to degenerate into an industrial action. Few trade disputes get reported but the ones that are recorded help the government to get a proper analysis for the evaluation and policy purposes. Though quite a large number of disputes occur without resort to strike, however they are equally as disruptive as cessation of work.
Since government is the largest employer of labour, it has from time to time enacted different laws curb to the incidence of trade disputes between employers and their workers in Nigeria.
Trade dispute has been defined by the Act as any disagreement between employers and workers, workers and workers which is connected to the employment, non employment or terms of employment or physical
condition of work of any person1. It must be noted that before any dispute can be termed a trade dispute, there must be in existence proper parties and the subject matter must be related to the employment, non employment or terms of employment or physical condition of work of any person2
This shows that the parties and subject of a trade dispute must be clearly defined in order to fully understand what kind of dispute constitutes a trade dispute. The first attempt made by the government to regulate trade dispute was the Trade Disputes (Arbitration and Inquiry) (Lagos) Ordinance, 19413 and Trade Dispute (Arbitration and Inquiry) (Federal Application) Ordinance, 19574. However, these attempts turned out to be unsuccessful because of some defects in them which eventually shorten their life span and new legislation were enacted, these are the Trade Dispute (Emergency Provisions) Decree of 19685 and the Trade Dispute (Emergency Provisions) (Amendment) (Decree No 2) of 19696.
These two Decrees were enacted to correct the defects in the first two ordinances they were effective in some aspect but they were designated to
- Trade Dispute Act 1978 S.47 (1)
- NNB V. Osoh (2001) 3 NWLR (729)
- Ordinance No. 32 of 1942 Cap 201 LFN !958
- Ordinance No. 46 of 1957
- Decree No. 21 of 1968
- Decree No. 53 of 1969
last for a short time7. The Decree had some inherent defects which were to be regulated by the Trade Dispute Act, 1976 which till today remains the major machinery for the settlement of trade disputes and its amendment the Trade Dispute (Amendment) Decree No. 47 of 1992
The Trade Dispute Act, 1976 has provided different procedures for setting trade disputes when they occur, the Act provides for ways in which the parties may attempt the settlement themselves and ways in which a 3rd party may be appointed to help in the settlement processes. It also provides for ways in which the parties may take the dispute to the court for proper adjudication.
Examination of the laws and procedures for the regulation of trade disputes is the focus of this study and recommendations made where necessary for a better way of resolving trade disputes.
1.1.0: BACKGROUND TO THE STUDY
- Because they were a temporary war time measures which outlived its usefulness with the cessation of hostilities
- M.O Akanbi (2001) JLSS Vol.1 No.1, pg 69
In any ideal industrial relations, great emphasis is placed on the attainment of industrial harmony in order to create a conducive environment for the realization of individual and organization goals and objectives. However, it would appear that conflict is a common phenomenon in any human setting and when it exists, it creates human and industrial problems, which adversely affect the attainment of industrial peace.
Since conflict in any work situation is almost inevitable because as labour and management relates, there are bound to be frictions which results from differences in interest and aspirations as both the employer and employee most times have divergent interest on issues touching on wages, conditions of work, terms of employment e.t.c and resolving these dispute requires compromise, concession and a game of give and take between disputing parties
1.2.0: AIMS AND OBJECTIVES
This work is intended to make an analysis of the Trade dispute resolution Mechanism of the Trade Dispute Act 1990 as well as a comparative study of Trade Dispute Decree 1992 alongside the constitution. Subsequently, an examination into the defects that has rendered the law ineffective will be made and thereafter to profer solution with a view to improving the machinery for Trade dispute resolution.
The study looks into the issue of whether National Industrial Court is a superior Court of Record or not.
It looks at the new position of law concerning the jurisdiction of the National Industrial Court on Trade dispute matters.
The main aim of the study is to undertake an assessment of the law as it related to the settlement of trade disputes in Nigeria and proffer solutions where necessary for a more effective means of settling trade dispute
1.3.0: DEFINITION OF TERMS
“Trade Dispute” is any disagreement between employers and workers, worker and workers which is connected to the employment, non employment or terms of employment or physical condition of work of any person
“Strike” has been defined by the Act as the cessation of work by a body of employed persons acting in combination, or by concerted refusal under a common understanding of any number of employed persons to continue to work for an employer in consequence of a dispute, done as means of competing with their employers or any person or body of persons employed, to aid other workers in compelling their employer or any person or body of employed persons to accept or not to accept terms of employment and physical condition of work In Tramp shipping corporation V. Greewich Marine Inc.11 “The Court of Appeal in United Kingdom adopted the following definition of strike: a concerted stoppage of work by men done…. With a view to improve their wages or condition of employment, or giving vent to a grievance or making a protest about something or others supporting or sympathizing with other workmen in such endeavour’
- Op cit Note 1
- (1975) 2 All E.R 989
This definition accords with the definition under the Trade Dispute Act, 197612.
Refusal to continue to work includes a refusal to work at usual speed and efficiency.
“Lockout” is an action in which employees physically “takeover” the company premises either by locking out the management staff, thus denying them access to a exit from the premises13.
It is also defined by the Act as ‘the closing of a place of work or, the suspension of work, or the refusal by an employer to continue to employ any number of persons employed by him, in consequence of a dispute with a view to compelling the workers to accept terms of employment’14.
“Collective Bargaining” has been defined as the process of arriving or attempting to arrive at a collective agreement15.
Collective Agreement ‘is any agreement in writing, relating to the terms of employment and physical condition of work, between an employer, group of employers
- ibid S. 37
- My Industrial Law Lecture note (2008)
- Op cit note 1 S.37 (1)
- Labour Act, 1974 S. 90 (1)
or one or more organization representing the employers on one part and one or more organization representing the workers, on the other hand’.
In this work, unless the context requires otherwise, the following expression have the meaning assigned to them here under:-
“Party” means any of the parties to trade dispute or any of the parties to a trade matter lying before a court of N.I.C.
“N.I.C” means the National Industrial Court
“I.A.P.” Means Industrial Arbitration panel
“The Tribunal” Means the Industrial Arbitration Tribunal
“Court” Means the conventional court listed in section 6 (5) 1999 constitution.
“The Decree” Means the Trade Dispute (Amendment) Decree No 47 of 1992
“Laws” means the laws regulating trade dispute in Nigeria as covered in this book.
“The Act” Means the Trade Dispute Act, Cap 432, LFN 1990
“Dispute” Means trade Dispute
“Minister” Means the Minister for employment labour and productivity of the Federation.
“Condition of Work” Means the physical condition under which a workman, works such as appertain to matters of Safety and physical comfort at the place of work.
“Terms of Employment” Means all matters covered by the contract of employment
1.4.0: SCOPE OF STUDY
Conceptually, this work also covers, although in passing and on restricted discussion the other alternative resorts to the settlement of trade dispute i.e. strikes and lock-outs as effects of trade disputes.
This essay will cover the provisions of the Trade Dispute Act, 1990, particularly its trade dispute resolution machinery. The Trade Dispute Decree, 1992 and the constitution of the Federal Republic of Nigeria 1999 are also covered in this work, principally these are the laws regulating trade dispute resolution in Nigeria. The Labour Act, 199017 and the Trade Union Act, 199018 are also covered only to the extent of their reference to trade dispute
1.5.0: LITERATURE REVIEW
There are few Nigeria text books on labour law. Besides that most of the available texts were published before the current trade dispute issues evolved, hence, this particular area of study did not lay reliance on the knowledge contained in those books.
- Cap 198, LFN, 1990
- Cap 437, LFN, 1990 However, the few scholars whose books touched on this topic will have
their books referred to and examined in this book. These scholars include:
- AKANBI M. M. O: In his book “An Appraisal of the machinery for the settlement of trade dispute in Nigeria: problems and challenges” where he explained in details the basic mechanism for the settlement of trade dispute and the problems and challenges the mechanisms are facing. The book is comprehensive on trade dispute settlement and it is of great importance to this essay.
- EMIOLA A: In his book “Nigeria Labour Law” laid emphasis on the law regulating trade dispute in Nigeria and how industrial harmony can be achieved. The book covers extensively the Trade dispute Act of 1976.
- UNIEGHARA E.E: In his book “Trade Union Law in Nigeria” discussed the relationship between employers and employees, and the laws and procedures guiding trade union. It also states various Alternative Dispute Resolution that can be employed to resolve industrial dispute.
- OLADOSU : “Nigeria Labour and Employment Law in
Perspective” provides a comprehensive analysis of the lawsregulating Nigeria labour law by focusing more on the Trade Disputes (Amendment) Decree No 47 of 1992.
- OKENE O.V.C.: “The Legal Resolution of strikes in Nigeria: A critical Appraisal” discussed extensively the effect of strike, ways of resolving industrial dispute and the various legal methods of resolving strikes in Nigeria.
- FASOYIN T: In his book “Industrial Relation in Nigeria” also laid more emphasis on industrial harmony which will help immensely in the treatment of this study.
- OLORUNFUNMI A. SONUBI: “Labour Aspect of National A study of Government Labour Policy in Nigeria” laid emphasis on the effect of industrial harmony to national development and the detrimental effect of strike on the economy.
Importantly, the hand-out and lecture note on Industrial Law prepared by Barrister (Mrs) Akanbi Esq. for law students of the University of Ilorin. Journals, case law and Nigerian statutes are also available for reference in this work.
In this study, extensive research, analytical study, discussions and wide range of intellectual material will be employed in order that an accurate and conclusive paper will be presented at the end of this work. In view of this both primary and secondary sources of law which includes the constitution, Laws of the Federation, Decrees, Articles, Lecture notes and other relevant materials like Judicial precedents by reviewing cases from law reports in relation to statutory provisions.
In every legal system there exist an avenue for recognizing what law have lost validity or have become inadequate or have lost consonance with the contemporary life of that particular system, and as such certain bodies or agencies are established and saddled with the task of reforming the system’s laws. The significance of this study therefore is, to examine the laws and procedure regulation trade dispute in relation to the current labour issues in Nigeria, to make proposition for reform on how the trade dispute system can be improved upon where it is found at the end of this study that defects exist in these laws. The target being a harmonization of these laws such that a new effective law will evolve for the management of trade disputes in Nigeria.
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