ARBITRATION & NEGOTIATION IN TRADE AND INDUSTRIAL DISPUTES

Being a Paper Presented by Roseline Obiageli Nwosu (Mrs), LLB (HONS), BL, FCIARB (UK), FSCIARB, FICMC, CEDR(UK) Accredited Mediator on 27th June 2022 at the National Workshop for Judges on ADR 2022 held at the National Judicial Institute, Abuja.

WHY TRADE DISPUTES?
Disputes  are inevitable in human interactions. Like in every other Country, trade disputes are inevitable in both the formal and in formal sectors of Nigeria. According to Khan – Freund, “Conflicts of interest are inevitable in all societies. There are rules for their adjustments but there can be no rules for their elimination” The Trade Disputes Act 1976, now Cap T8, Laws of the Federation 2004 (TDA) as amended by the National Industrial Court Act no 38 of 2006 recognises the inevitability of conflicts between parties in the industrial relations system. It therefore provides both voluntary and compulsory mechanisms for the resolution of trade disputes wherever it arises.

WHAT ARE TRADE AND INDUSTRIAL DISPUTES?
Section 47 of Trade Dispute Act 1976 defines trade disputes as “any dispute between employer and workers or between workers and workers which is connected with the employment  or non-employment or the form of employment and physical condition of work of any person”. Also see Section  54(1) of National Industrial Court (NIC) Act 2006

Industrial dispute: Various definitions viz;
“Difference between labour and management on employment  matters” Babajide,  2001
“Disagreement between workers union and management on issues concerning the conditions of work” Okafor & Bode–Okunade, 2005
COMMON CAUSES OF TRADE DISPUTES
Wage demands
Failure of collective bargaining
Unfair labour practices
Refusal of Management to recognise a particular trade union
Dis-satisfactory compensation and work conditions
Break in communication
Victimisation or intimidation of workers or union officials
Refusal or delays in the payment of workers’ salaries and allowances
Union rivalry

On Government side, high handedness in labour matters, breach of and non-implementation of terms of collective agreements, insincerity in terms of policy implementation, nonchalant attitude to review of minimum wage and retrenchment

COSTS
It has consequences for the Nation, the organisations and the workers.
Affects negatively the economic development in Nigeria.
Low National productivity- disruption in essential services
Capacity under-utilization, scarcity,  inflation and high cost of living, unemployment and manpower contraction. It leads to loss of foreign direct investment and drop in GDP.
For the organisation, leads to loss of customers,  decrease in production, damage to machines and equipment and loss of profit.
For the individual, it constitutes a threat to his wellbeing. It is detrimental to his survival and leads to counter-productive negative behaviour such as low job moral, lateness to work, absenteeism, poor quality of work, poor labour turnover, sick leave abuse, job insecurity, unemployment, criminality, depression, fear and other mental health challenges.
It also leads to loss of prestige.
It is catastrophic  to the general development of the individual worker and his dependents.

PROCEDURE FOR SETTLEMENT OF TRADE DISPUTES IN NIGERIA
Under the TDA, the machinery for resolving trade disputes is founded on hierarchy which must be strictly  followed.
These steps are:
Negotiation by the parties –Section 4(1);
Mediation: negotiation with help of a Neutral 3rd party a Mediator (Section 4(2));
By Conciliation – Section 8;
By Arbitration by the Industrial Arbitration Panel (Section 9);
By reference to a board of inquiry (Section 33); and finally
By reference to the National Industrial Court (Sections 14 &17)
For purposes of this paper, I will focus on Negotiation and Arbitration.

NEGOTIATION
Section 4 (1) of TDA mandates parties where there exists agreed means for settlement of the dispute to first attempt to settle it by that means. Black’s Law dictionary defines Negotiation as ‘’the deliberate, discussion or conference upon the terms of a proposed agreement, the act of settling or arranging the terms and conditions of a bargain, sale or other business transaction’’. Characteristics of negotiation are: it is voluntary in nature, consensual, a joint decision making process and encourages co-operation between parties. Some advantages are: prevents escalation of conflicts, can open up new areas of interest for parties, saves time and money and improves communication between parties. The disadvantages are parties may not settle and imbalance of power is possible.

ARBITRATION
Where negotiation between parties fail, or where no agreed method of settlement exist, parties themselves or their representatives will move to Mediation, Conciliation and Arbitration where conciliation fails. Section 9 TDA gives the Minister of Labour power to refer the dispute to the Industrial Arbitration Panel. By Section 13(1)(a), the tribunal shall make its award within 21 days of its constitution or such longer period as the Minister may in any particular case allow and on making an award shall send a copy thereof to the Minister and shall not communicate the award  to the parties affected. Section 13(2) gives the Minister wide discretionary powers as he thinks fit to either issue a notice setting out the award, refer the award to the tribunal for reconsideration  or if no notice of objection to the award is received within the stipulated time frame, publish notice in Federal Gazette confirming the award. Where however, the Minister receives notice of objection within the specified time and manner, he will refer the dispute to the National Industrial Court under Section 14 of TDA. He can also make direct reference to the National  Industrial Court under certain special circumstances.

NATIONAL INDUSTRIAL COURT
Section 254A  of the 1999 Constitution of the Federal Republic of Nigeria as amended by the Third Alteration Act 2010 established the National Industrial Court. By Section 7 of the National Industrial Act 2006, the Court shall have exclusive jurisdiction in civil matters;
(a) Relating to (i) labour, including trade unions and industrial relations (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 strikes ,lock out or any industrial action, or any conduct in contemplation  or in 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) Terms of settlement of any labour or organisational dispute
(iv) Any trade union constitution and
(v) Any award or judgement of the Court.
In reaching its decisions, Court is enjoined in Section 7(6) to have due regard to good or International best practices in labour and industrial relations. The Court has power under Section 8 to hear Civil appeals and can confirm, set aside or vary the award of the tribunal, order a rehearing, order judgement to be entered for any party or make a final order on such terms as Court deems fit to ensure determination on the merits of matter in dispute between the parties. Under Sections 16, 17 and 19, the Court has the power to grant injunctions, orders of mandamus, prohibitions, certiorari, orders for interim reliefs, declaratory orders, interim reliefs and many orders.

CHALLENGES IN RESOLVING TRADE DISPUTES
Challenges exist both under the Trade Dispute Act and the National Industrial Court Act.
Under the TDA:
Machinery is time consuming, Even though certain time frames have been attached to processes, the Minister of Labour has the power to extend time and often does that.
The processes are too many. Why go for Conciliation when Mediation has failed? Why not shorten the process and go straight to Arbitration by the Industrial Arbitration Panel?
Ministerial control is excessive. The Minister of Labour activates the institutional process for settlement without parties consent. He decides when to refer to IAP, denies parties direct access to IAP and the system of communication of the award is a path of inbuilt bottlenecks in the process.
The system of Arbitration in the Act erodes the voluntary and independent nature of arbitration process under the Arbitration and Conciliation Act 1988 and the cardinal principle of party autonomy.
Government as we know is the greatest employer of labour. The excessive discretion and control given to the Minister especially his power of reference and review gives room for partiality, abuse and political considerations/interference.
Under the National Industrial Court Act, certain challenges also exist:
Some provisions of the Act are ambivalent and unclear viz;
Section 30(1) allows the Court to refer to an official or special referee for inquiry or report and by Section 30(2), that report may be adopted as judgement or order of Court. However, the Interpretation section, Section 54, doesn’t define who an official referee is or their eligibility for appointment. Section 36 empowers the President of the Court to make rules applicable to Federal, State and Local Government but is silent on Private sector and their employees. Section 254F(2) of the Constitution makes provisions of Evidence Act mandatory to use in criminal jurisdiction but says nothing about Civil jurisdiction. Section 12 (2)(b) of NIC Act said the Court should be bound by Evidence Act but may depart from it in the interest of justice. This provision is erroneous and groundless in law. It can result in arbitrariness and inconsistencies in scope and quality of evidence admitted in cases as it gives the Judge limitless discretion which is subject to abuse. Also Section 13 which states that law and equity will apply in every civil matter gives the Judge wide discretion to pick and choose. The last but not the least is the unresolved status of the NIC. Section 1(3) of the Act proclaims it a Superior Court of record and confers it with all the powers of the High Court but the Supreme Court in 2010 in the case of National Union of Electricity Employees v Bureau of Public Enterprises (2010) 4 NSCCR 6112@ 619 ratio 8, held that NIC is not a superior Court of record since it is not listed in Sections 6(3) and 6(5) of 1999 Constitution as such.

RECOMMENDATIONS
In order to achieve the objectives of ensuring harmony in the Industrial sector, certain steps have to be taken to remove bottlenecks in the existing laws. Also there is need to amend them to make them fit for purpose and effective.
Some are:
Replace compulsory reports and settlement of trade disputes with voluntary Conciliation and Arbitration procedures independent of the Minister of Labour.
Amend TDA to specify certain disputes which must be referred to binding arbitration and those individual labour disputes which must be subjected to adjudication by the National Industrial Court with right of appeal only on ground of law to Court of Appeal.
Ultimately to establish a Labour Appeal Court to replace CA as the apex Court in the Industrial Judicial system.
To set up an impartial and independent body responsible for conciliation and arbitration of trade disputes with power to accredit private agencies that qualify to provide conciliation and arbitration services.
Need to amend TDA to provide the legal framework for the accreditation of private professional arbitration bodies.
Arbitration award to be final subject only to review by NIC for defects in the proceedings or award or misconduct of arbitrator.
Amend Section 6 of the 1999 Nigerian Constitution to specify and add National Industrial Court to the list of superior courts
Amend some sections of NIC:
Sec 36 to apply the rules of court in labour relations to the private sector;
Sec 54 to define terms official of special referee and his appointment should not be at the discretion of the presiding Judge.
Sec 12(2)(b) of Act and Order1 r 9(2) and Order 5 r. 3 to specify when court may depart from Evidence Act.
Order 59 should be amended to revert authority to appoint public trustee to NIC and not on the President.
Finally, Government being the greatest employer of labour needs to start being faithful and responsible by being sincere in terms of policy implementation, fulfilment of pledges and promises, not being high handed in labour matters and not violating agreements reached through collective bargaining.
This will restore credibility to the process of dispute resolution in trade disputes and remove the feeling of frustration and erosion of confidence which is prevalent now.

CONCLUSION
To ensure harmony in the industrial sector for better output and economic growth in the Nation, the bottlenecks and gaps in the extant laws have to be removed to make the laws more effective. Also, Government’s insensitivity to the plight of labour has to change since we can’t achieve the objective of achieving harmony and stability in the labour sector without it. Achievement of more harmony and stability in the labour sector means a better educational system, a more skilled labour force, higher productivity, higher level of employment, more foreign direct investment and increase in GDP.

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