By Runsewe Solomon & Damilola Akinmolayan
Labour movements, the world over, aim at protecting the welfare of the working class, while employers of labour are primarily concerned with maximising profits. The existence of these two interest groups in an industrial establishment has often resulted in trade disputes. The Hope Classics speaks with some legal practitioners and some personalities on the matter. Excerpts:
The relevant laws governing labour disputes and trade unions in Nigeria are enactments of the Legislature, and in such, by the provisions of Section 4(8) of the 1999 Constitution as amended, are subjected to the jurisdiction of Court for judicial interpretations and conflict resolutions.
The right to associate freely is Fundamental Rights enshrined in Section 40 of the Constitution as amended, and also other relevant laws and international conventions. Labour/Trade Unions are therefore recognized under the law.
Strike Actions in itself is a weapon recognized under Section 48(1) of the Trade Dispute Act, and by International Labour Organization conventions.
But, to proceed on Strike, there are certain conditions and procedures to be met. For instance, Section 31(6e) of the Trade Unions Act laid some conditions to be met before any strike by unions.
Can the Court order Unions to Call-off strike?
By the provision of section 6(6b) of the 1999 constitution as amended, the court is empowered to determine rights and obligations between persons, government and all authorities in Nigeria.
Furthermore, the National Industrial Court is a superior court of record created under section 6(5cc) and its jurisdiction is captured under section 254c(1a-m).
Therefore, by the inherent powers of the court, particularly, the National Industrial Court of Nigeria, after examining all issues put before it by the parties, can direct Labour Unions to call off their strike.
Such directive or ruling of the court is enforceable against any person or authority, and in any part of the federation.
The court is the arbiter between the labour Union and its employers.
Going through the process and guiding rules or principles, Union can call out its members to proceed on strike.
The labour law and the labour arbitration court are always available to prove out the justification or otherwise of their embarking on strike action.
Until the act of going on strike is proved beyond any reasonable doubt; the court could therefore order the striking Union to call off the strike.
This very question in consideration is a very grave issue that affects all sectors in our polity; to some schools of thought, it appears that there is a serious form of abuse in the rate of incessant strikes in Nigeria, pertinently few of the sectors, while the other school of thought believes that strike actions appear not too frequent. Some are of the opinion that strike is the language the Nigerian government understands.
The main reason of having labour/trade unions is simply to see that the interests of their members are duly protected in their relationship with employers of labour, employers also form their own associations and unions for the purpose of safe – guarding their own interests under the various contracts of employment.
Section 20 of the Trade Disputes Act confers power and authority on the National Industrial Court to adjudicate on industrial and trade disputes while section 272(1) of the 1999 Constitution of the Federal Republic of Nigeria gives jurisdiction to the High Court of the very State because of the unlimited powers of the High Court. Section 54 of Trade Unions Act defines an “appropriate court” to mean the Industrial Arbitration Panel and the National Industrial Court as the case may be: “appropriate High Court”, in relation to trade means the High Court of the State in which the registered office of the union is situated. So in simpliciter, the two courts saddled with this special assignment on trade disputes are the National Industrial Court and the High Court of the very State.
Flowing from the background laid above, strike is a right of employees as long as their demand is a collective one, that is, it affects all workers in the sector and that the required notices are adhered to, this is lawful. The court may not be able to stop this type of strike. However, the court may encourage parties to embrace Alternative Dispute Resolution (ADR) through collective bargaining.
For a strike to be declared, strict compliance must be ensured. The court is vested with the power to suspend/ call off any strike action that fails to comply with the procedures laid down in the Trade Dispute Act.
The Act adds that if an issue arises as to the interpretation of the award, the minister or any party to the award may make an application to the National Industrial Court for a decision.
The Act states that the decision of the Court is final. NIC has Jurisdiction, Power or right of a legal or political agency to exercise its authority over a person, subject matter, or territory.
Jurisdiction over a person relates to the authority to try him or her as a defendant. Jurisdiction over a subject matter relates to authority derived from the country’s constitution or laws to consider a particular case.
Concurrent jurisdiction exists where two courts have simultaneous responsibility for the same case. The National Industrial Court of Nigeria also known as NIC is a court empowered to adjudicate trade disputes, labour practices, matters related to the Factories Act, Trade Disputes Act, Trade Unions Act, Workmen’s Compensations Act and appeals from the Industrial Arbitration Panel.
Jurisdiction is a fundamental and bedrock of any judicial proceedings. Accordingly, the Black’s Law Dictionary defines ‘jurisdiction’ as “government’s general power to exercise authority over all persons and things within its territory”.
Within the context of judicial proceedings, ‘jurisdiction’ has been defined to mean ‘a court’s power to decide a case or issue a decree’. It follows that before a court of law entertains any matter brought before it for adjudication, it must ensure that it possesses the jurisdiction to sit over the matter, failing which the proceedings no matter how well conducted amount to nullity. Procedurally, jurisdiction of court does not exist in vacuum. For this reason, court’s authority or jurisdiction is a product of constitution or other specific statutes. Of course, no court of law can assume
Jurisdiction without being statutorily empowered to do so. In Nigeria, the jurisdiction of the NIC is a product of several enactments. For instance, before the enactment of the NICA, 2006 and the Constitution of the Federal Republic of Nigeria (Third Alteration) Amendment Act, 2010, various sections of the Trade Dispute Act such as sections 14, 15, 16, 17, 18 and 20 vested power on the Minister of labour and productivity or any aggrieved party to refer labour disputes to the NIC either for outright adjudication or for the interpretation of arbitral award.
Similarly, by virtue of sections 7 and 8 of the Trade Union Act, where the Registrar of Trade cancels registration of a Trade Union, which registration is in existence on the date specified in the notice of cancellation, any official or member of the Trade Union may within thirty days thereof appeal to the appropriate court to make appropriate order on the purported cancellation. The phrase ‘appropriate court’ in the above sections is defined, in section 54 of the Trade Union Act, to mean ‘the Industrial Arbitration Panel or the National Industrial Court as the case may be’.
The above was the position in Nigeria before the enactment of the NICA, 2006 and the amendment to the Constitution of Nigeria in 2010. Section 7 of the NICA, 2006 conferred on the NIC exclusive jurisdiction to adjudicate civil causes and matters relating to labour, industrial trade union and industrial relations and environment and conditions of work, health, safety and welfare of labour and matter incidental thereto amongst others.
Undoubtedly, labour and industrial related disputes are serious issues in any nation. Labour dispute has Staggering effects on both the social and economy sectors of a country resulting in low productivity, unemployment, wastage of human resources and many other problems.
To avert this, countries, the word over, have advocated for expeditious resolution of labour dispute before it goes out of hand. Rising to the occasion, the Nigeria Government, in the year 2006, after several years of confusion and problems associated with the jurisdictions of the National Industrial Court of Nigeria came out with statutory regulation on the matter.
A treatment of the fundamental rights to freedom of expression and of movement and the rights to peaceful assembly and association cannot be exhaustive without a thorough insight into the right of organized labour to picket or mount pressure with a view to currying favours.
This is because the right to strike is perhaps next in importance to the right to life. The right to strike has great influence on the balance of relations, not only as between employers and employees and their organizations in the various sectors of the economy but also the capacity of the civil society, which includes trade unions, in acting as a counter power to likely excesses that the state may display in the governance process.
Despite the strategic nexus between the right to strike and the attainment of a just society, the right to strike tends to be restricted in labour laws and practically suppressed in the course of actual strike actions in Nigeria.
Labour movements, the world over, aim at addressing the needs of the working class, while employers of labour are primarily concerned with maximising profits. The existence of these two interest groups in an industrial establishment has often resulted in trade disputes.
Quite often, the disputes are resolved on the basis of compromise, while many others end in lock-outs, work-to-rule and strikes. The Nigeria Labour Congress (NLC) and the Trade Union Congress (TUC), the two main central labour organisations in the country, had in the past organised and led Nigerian workers on strikes over issues they claimed were of public interest.
But recent strikes by workers in some sectors of the economy have raised the question over the rationale of using strike as an instrument for settling industrial dispute.
The Minister is statutorily empowered to give time to the parties to the dispute within which they to in compliance with the provisions of sections of 4 and 6 take steps to resolve the dispute.
The law states that if the mediation fails, the issue should be taken to a Conciliator appointed by the Minister to resolve the dispute between the parties.
The Act further stipulates that if the dispute is not resolved, the Conciliator shall within seven forward his report to the Minister of the development.
The Minister shall therefore within fourteen days of the receipt of such report refer the dispute for settlement to the Industrial Arbitration Panel (IAP) where an award would be given.
The award, it notes, involves the signing of a communiqué after an agreement that must be binding on the employer and the workers. The Act adds that if an issue arises as to the interpretation of the award, the minister or any party to the award may make an application to the National Industrial Court for a decision.13 The Act states that the decision of the Court is final.
Most of the law on trade disputes and industrial action is contained in the Industrial Relations Act 1990. Under Section 8 of the Act a trade dispute “means any dispute between employers and workers which is connected with the employment or non-employment, or the terms or conditions of or affecting the employment, of any person”.
An industrial action is any action which may affect the terms of a contract which is taken by workers acting together to compel their employer “to accept or not to accept terms or conditions of or affecting employment.” Examples of industrial action include a work to rule, a picket, an overtime ban or a strike.
In employment law there is no right to take industrial action but there are protections for certain workers who do this by, for example, going on strike.
Part 2 of the Industrial Relations Act 1990 provides workers, who are taking part in peaceful industrial action, the following immunities from:
Criminal or civil proceedings for conspiracy to do a particular act if the action taken by a person acting alone would not be punishable as a crime. Even if you are not a member of a trade union, you benefit from this immunity.
Prosecution when taking part in peaceful picketing. Only members and officials of an authorized trade union get the benefit of this immunity.
Prosecution for inducements to break or threats to break contracts of employment. Again, only members and officials of an authorized trade union get the benefit of this immunity.
If the employers want to stop or prevent industrial action, you need to apply to a court for an injunction. Before doing this, you should think about getting legal advice.
If you apply to a court for an injunction, you will need to be able to show that the industrial action is likely to be unlawful and that either:
The supply of goods or services to you has been, or is likely to be, stopped or delayed by workers taking industrial action
The quality of goods or services supplied to you has been, or is likely to be, worse because of the industrial action.
Generally in the legal parlance, a competent court has the power to make any order either positive or negative; it has power of life and death, it can compel, direct, destroy, restore, give and receive. It has all-doing powers.
Specifically, the court, notwithstanding its enormous powers, will not make any order except where the facts before it and the justice of the case warrants. In other words, it is the fact before the court and the interest of justice that determines the order a court will make in a given circumstance.
Placing reliance on the above background, a competent court has the power to direct striking workers to suspend or call off strike. However, many factors must be considered. First the fact before it, second the stage at which the order was sought, third the way and manner in which the order is couched, fourth, the interest of justice, etc. For instance, it will not be too appropriate for a court, exparte, without hearing both parties to direct striking union to call off their strike. This is more so that a court has no power to issue injunctive order to restrain a concluded act.
Where however, after listening to both parties, it is established that the union fails to comply with conditions preceding for embarking on the strike, the court will be competent to direct the striking union to call off the strike. Above all, the court must consider the fact before it, the applicable laws and the interest of justice.
Trade disputes are bound to occur between employees and employers, the problem which then arises is as to the settlement of such disputes.
Failure of settlement efforts often aggravates the disputes, resulting in issues concerning strikes, lock-outs, termination and reinstatement of employment or other industrial or labour related issues, which sometimes further degenerate into chaos and anarchy.
When this happens, it does so at the expense of the socio-economic stability of the state. There is no gain saying that from history, none of the developed economics have been able to grow without a stable industrial relationship through settlement and resolution of labour disputes.
One of the best, if not the very best way of settling these disputes is the option of settlement through the adjudicatory process of the National Industrial Court.
The right to strike and the idea of reinstatement of employees sacked on the ground of union activities by the National Industrial Court is well made out but the court should be wary not to give union members license to evade their work schedules or violate collective agreements because of the thinking that they will be protected by the court at the end of the day.