See discussions, stats, and author profiles for this publication at: https://www.researchgate.

net/publication/353751859

ALTERNATIVE DISPUTE RESOLUTION PROCESSES FOR THE SETTLEMENT OF

TRADE DISPUTES IN NIGERIA: LESSONS FROM SOUTH AFRICA

Article · January 2021

CITATIONS READS

0 1,279

2 authors, including:

Felix Chukwuemeka Amadi

Rivers State University of Science and Technology
26 PUBLICATIONS 1 CITATION

SEE PROFILE

All content following this page was uploaded by Felix Chukwuemeka Amadi on 07 August 2021.

The user has requested enhancement of the downloaded file.

AFRICAN JOURNAL OF SOCIAL SCIENCES AJSS VOL. 11
African Journal of Social Sciences (AJSS)
Volume 11 (2021) 30 - 45
ISSN 2045-8452 (Print) ISSN 2045-8460 (Online)
Publishers: Century Publications, England, United Kingdom
Websites: www.centurypublications.com
Cumulative Impact Factor: 46.5
Received: January 2021 Peer Reviewed Accepted: March 2021

ALTERNATIVE DISPUTE RESOLUTION PROCESSES FOR THE SETTLEMENT OF

TRADE DISPUTES IN NIGERIA: LESSONS FROM SOUTH AFRICA

Felix C AMADI (PhD)

Department of Private and Property Law,
Faculty of Law,
Rivers State University, Port Harcourt, Nigeria.
&
Gogo G OTUTURU (PhD)
Faculty of Law, Niger Delta University,
Wilberforce Island, Bayelsa State. Nigeria.

Abstract
The Trade Disputes Act 2004 recognizes the inevitability of conflicts between
the parties in the industrial relations system. Apart from adjudication of trade
disputes by the National Industrial Court, the Act provides various alternative
dispute resolution processes for the resolution of trade disputes in Nigeria. The
processes fall into two complementary regimes beginning with voluntary
processes and culminating in compulsory processes. The compulsory processes
take over where the voluntary processes fail. This paper examines the various
alternative dispute resolution processes for the settlement of trade dispute in
Nigeria. The processes envisaged under the Trade Disputes Act 2004 as
amended by the National Industrial Court Act 2006 are negotiation, mediation,
conciliation, arbitration and inquiry. It also highlights the inbuilt bottlenecks in
the alternative dispute resolution processes under the Act as amended. It further
examines the position in South Africa to see what lessons Nigeria can learn from
developments in that country and offers suggestions for reform.

Keywords: Arbitration, Conciliation, Labour Disputes, Mediation, Negotiation.

INTRODUCTION
The Trade Disputes Act 2004 as amended by the National Industrial Court Act 2006 recognizes the
inevitability of conflicts between the parties in the industrial relations system. It therefore provides
both voluntary and compulsory mechanisms for the resolution of trade disputes whenever they
arise. As Khan-Freund succinctly puts it, “Conflicts of interest are inevitable in all societies. There
are rules for their adjustment; but there can be no rules for their elimination.”1 Accordingly, the
rules regulating trade disputes, whether common law or statutory rules, must be designed to
promote negotiation, to promote collective agreement and to promote the observance of it.

Apart from adjudication of trade disputes by the National Industrial Court, which is now governed
by the National Industrial Court Act 2006, the Trade Disputes Act 2004, as amended, provides
various alternative dispute resolution processes for the resolution of trade disputes in Nigeria. The
processes envisaged under the Act are negotiation, mediation, conciliation, arbitration and inquiry.

1
Otto Khan-Freund, Labour and the Law (2nd edn, Stevens and Sons 1977) 17
 Amadi & Otuturu AJSS 11(1) 2021 30-45

This paper examines the various alternative dispute resolution processes for the settlement of trade
dispute under the Trade Disputes Act 2004 as amended by the National Industrial Court Act 2006.
It also examines the legal framework for the resolution of trade disputes in Nigeria and points out
the inbuilt bottlenecks in the alternative dispute resolution processes under the Trade Disputes Act
as amended. It further examines the position in South Africa to see what lessons Nigeria can learn
from developments in that country and offers suggestions for reform of the alternative dispute
resolution processes under the Trade Disputes Act as amended.

CONCEPT OF TRADE DISPUTES

The term “trade dispute” is often used interchangeably with “labour dispute.” However, labour
dispute is a broader term, which refers to a dispute between workers and employers in a dependent
or subordinate labour relationship whether at the individual level or at the collective level.2Thus,
labour disputes may be classified into individual labour disputes and collective labour disputes.

Individual labour disputes comprise disputes concerning an individual over his rights, that is, what
he thinks he is entitled to as a workman in his workplace.3 They include disputes arising from or
connected with payment or nonpayment of salaries, wages, pensions, gratuities, allowances and
other entitlement of individual employees. They also include disputes arising from dismissal, unfair
labour practice, discrimination and sexual harassment at workplace4over which the National
Industrial Court now has exclusive jurisdiction.5

Collective labour disputes comprise disputes involving management and a group of workers or their
union in a dependent labour relationship.6 They are concerned mainly with economic matters,
except in cases where individual disputes develop into collective disputes. The economic matters
that cause collective disputes include wages and salaries, housing allowances and other fringe
benefits.7

Under the National Industrial Court Act 2006, collective labour disputes are known as trade
disputes and organizational disputes. The Act defines “trade dispute” as any dispute between
employers and employees, including disputes between their respective organizations and
federations which is connected with-
(a) The employment or non-employment of any person;
(b) Terms of employment and physical conditions of work of any person;
(c) The conclusion or variation of a collective agreement; and
(d) An alleged dispute.8

2
Roo Annie and Robb Jagtenberg, Settling Labour Disputes in Europe (Kluwer Law Publishers 1994)
11; INE Worugji, “Institutional Mechanisms for the Settlement of Labour Disputes in Nigeria: The
Prospects for Industrial Peace” (2008) 2(1) Nigerian Journal of Labour Law and Industrial Relations
47, 51-52.
3
Abel K. Ubeku, Industrial Relations in Developing Countries: The Case of Nigeria (London:
MacMillan Press, 1963)157; Tayo Fashoyin, Industrial Relations in Nigeria: Developing and Practice
(Ikeja, Longman Nigeria Ltd, 1992) 191.
4
Constitution of the Federal Republic of Nigeria 1999 as amended by the Constitution of the Federal
Republic of Nigeria (Third Alteration)Act 2010, s.254C (1)(f), (g) and (k).
5
National Industrial Court Act 2006(hereinafter simply referred to as NICA), s. 7(1) and Constitution of
the Federal Republic of Nigeria 1999 as amended by the Constitution (Third Alteration) Act 2010, s.
254C(1).
6
KW Wedderburn, “Conflicts of ‘Rights’ and Conflicts of ‘Interests’ in Labour Disputes” in Benjamin
Aaron (ed) Dispute Settlement Procedures in Five Western European Countries (Institute of Industrial
Relations 1969) 65, 66.
7
Ubeku (n 3) 159.
8
NICA, s, 54(1)
31
 Amadi & Otuturu AJSS 11(1) 2021 30-45

The Act also defines an organization as a trade union or an employer’s association.9 This means
that an organizational dispute has the same meaning as a trade union dispute10 or simply union
dispute11 and means any dispute within an organization of workers or employers or between
organizations of workers or employers including dispute between an organization of workers and
an organization of employers.Thus, an organizational dispute may be inter-union or intra-union
dispute.

The National Industrial Court Act 200612 defines an inter-union dispute as dispute between trade
unions or employers’ associations. It may be a dispute between one or more trade unions and
another trade union or a federation of trade unions. It normally arises from the restructuring of trade
unions as in amalgamation or federation of trade unions.

Many inter-union disputes concern the jurisdictional scope of rival trade unions each claiming
exclusive right to represent a particular group of employees. This class of inter-union disputes is
commonly referred to as jurisdictional disputes as they concern disputes as to which categories of
workers should belong to a particular trade union or, put in another way, which trade union should
have exclusive jurisdiction over a particular category or class of workers.

The National Industrial Court Act13 also defines an intra-union dispute as dispute within a trade
union or an employer’s association. It may be between one faction and another faction of a trade
union or employer’s association. It normally arises from the organization and running of a trade
union, for example, from leadership tussles which often lead to factions. It may also arise from the
interpretation of the constitution or rules of a trade union or employer’s association.

The jurisdiction of the National Industrial Court over trade disputes and organizational disputes is
mainly appellate jurisdiction.14 This is clear from section 7(3) of the National Industrial Court Act
2006 which provides that the National Assembly may by an Act prescribe that any matter under
subsection (l)(a) of this section may go through the process of conciliation or arbitration before
such matter is heard by the Court. Section 7(4) provides for appeals to lie from the decisions of an
arbitral tribunal to the court as of right in matters of disputes specified in subsection (1)(a) of the
section.

It is submitted that section 7(3) and (4) of National Industrial Court Act 2006 presupposes the
alternative dispute resolution processes under Part I of the trade Disputes Act 2004.15 This is
consistent with the decision of the National Industrial Court that collective labour disputes, that is
to say trade disputes and organizational disputes, must go through the dispute settlement processes
under Part 1 of the Trade Dispute Act.16

9
Ibid, s. 54(1).
10
Constitution (Third Alteration) Act 2010, s. 254 C (1)(j)(ii).
11
National Union of Road Transport Workers v. Ogbodo (1998) 2 NWLR (Pt. 537) 189, 204 A-B [Salami
JCA]
12
NICA, s. 54.
13
Ibid, s. 54.
14
Ibid, s. 7(3) and (4).
15
See NUHPSW v. NUFBTE (2004) 1 NLLR (Pt.2) 286; Olaleye v. Afribank Nig. Plc (2012) 27 NLLR
(Pt. 77) 277; National Union of Petroleum and Natural Gas Workers v. Maritime Workers’ Union of
Nigeria (2012) 28 NLLR (Pt. 80) 309.
16
See Nestoil Plc v. National Union of Petroleum and Natural Gas Workers (2012)29 NLLR (Pt. 82)90,
159; Eleme Petrochemicals v. Emmanuel (2009)17 NLLR (Pt. 46) 81, 106.
32
 Amadi & Otuturu AJSS 11(1) 2021 30-45

However, the National Industrial Court has original jurisdiction over collective agreements,17
strikes and lockouts18 and the grant of the prerogative orders of mandamus, prohibitions, certiorari
and injunction.19 It also has original jurisdiction over individual labour disputes within the purview
of section 7 of the Act.20

LEGAL FRAMEWORK FOR THE SETTLEMENT OF TRADE DISPUTES IN NIGERIA

The first legal framework for the settlement of trade disputes in Nigeria was contained in the Trade
Disputes (Arbitration and Inquiry) Act 1941.21 Under that regime, government intervention in trade
disputes was on invitation or with the consent of the parties. Under the Act, the stakeholders in the
industrial relations system bore the primary responsibility of resolving their disputes using the
mechanisms of negotiation, collective agreement and, where necessary, industrial action.22

However, this system of voluntarism was replaced with compulsory arbitration during the war
period with the promulgation of the Trade Disputes (Emergency Provisions) Decree 196823 banning
strikes and lockouts, which was reinforced by the Trade Unions (Emergency Provisions)
(Amendment) (No. 2) Decree 196924 which established the Industrial Arbitration Tribunal as the
first permanent institution for the settlement of trade disputes. These Decrees seriously eroded the
freedom of the parties to a trade dispute in the sense that the Minister of Labour was empowered to
set into motion the machinery for settlement of trade disputes without the consent of the parties.25

It has been argued, quite correctly, that the provisions are honoured in the breach rather than in
their observance.26 This was evident in the massive wave of strikes that followed the earlier decree
after an initial period of quiet.27 Thus, the institutionalization of trade dispute settlement and the ban
or restrictions on the right to strike are not capable of eradicating strikes.28

The current legal framework for the resolution of trade disputes is contained in the Trade Disputes
Act 197629 as amended, the Trade Disputes (Essential Services) Act 1976 as amended,30 the
National Industrial Court Act 200631 and the Constitution of the Federal Republic of Nigeria (Third
Alteration) Act 2010.32 The National Industrial Court Act 2006 repealed Part II of the TDA.
However, the trade dispute resolution processes in Part 1 of the TDA are saved under the National
Industrial Court Act 2006.

17
NICA, s. 7(1)(c).
18
Ibid, s. 7(1)(b).
19
Ibid, ss. 17-19.
20
Ibid, s. 7(1)(a); Moses & ors v. Bishop James Yisa Memorial School Ltd (2013) 31 NLLR (Pt. 88) 59,
81 (Justice Shogbola)
21
Cap 201, Laws of the Federation of Nigeria, 1958
22
CK Agomo, Nigerian Employment and Labour Relations Law and Practice (Concept Publication Ltd
2011) 310
23
Decree No. 21 of 1968
24
Decree No. 53 of 1969
25
AA Adeogun, “Towards a Better System for Settling Trade Disputes” (1976) 10 Nigerian Law Journal
1; see also OVC Okene, “Nigeria’s Labour and Industrial Relations Policy: From Voluntarism to
Interventionism – Some Reflections” (2012) 4(1) Port Harcourt Law Journal 240, 243.
26
Richard Idubor, “Trade Disputes Settlement Machinery in Nigeria: The Need for Review” (2005) 1(2)
Modern Practice Journal of Finance and Investment Law 257, 258.
27
EE Uvieghara, Labour Law in Nigeria (Malthouse Press Ltd 2001) 134.
28
Agomo (n22) 311
29
Cap T8 Laws of the Federation of Nigeria 2004 (hereinafter simply referred to as TDA).
30
Cap T9 Laws of the Federation of Nigeria 2004.
31
Act No. 38 of 2006.
32
Act No. 3 of 2010.
33
 Amadi & Otuturu AJSS 11(1) 2021 30-45

ADR APPROACHES UNDER THE TRADE DISPUTES ACT

There are two Alternative Dispute Resolution (ADR) approaches to the settlement of trade disputes
under the TDA.33 The first approach is found in section 4 of the TDA and two scenarios are
envisaged in the section as follows:
(a) Where agreement exists as to the means for the settlement of the dispute;
(b) Where no such agreed means of settlement of the dispute exists.34

In the first scenario, it is compulsory for the parties to the dispute first to attempt to settle it by that
means. Although the internal dispute settlement processes are traditionally established by
collective agreements, there are instances where some employers unilaterally lay down dispute
procedures as part of their company’s work rules.35

In the second scenario, the parties must within seven days of the dispute, or its apprehension,
appoint a mutually agreed mediator to preside over a meeting of the parties with a view to an
amicable settlement of the dispute. If the internal settlement processes are successful, the pending
industrial action would be forestalled and there would be no need for further steps to be taken.36 If
the dispute is not settled through the parties’ internal voluntary mechanisms such as negotiation
and mediation, by virtue of section 6, the parties must report the dispute in writing to the Minister
of Labour. The report shall record the points on which the parties disagree and describe the steps
already taken by the parties to reach a settlement. This is known as the formal declaration of trade
dispute.37 The declaration is usually accompanied by a threat of industrial action if the causes
leading to the dispute are not addressed within the given time.38

The second approach is contained in section 7, which empowers the Minister of Labour to
determine what other steps to take to resolve the dispute. If he is not satisfied with the steps
already taken by the parties under section 4 and 6, he may issue a notice referring the dispute back
to the parties specifying the time within which any particular steps must be taken to resolve the
dispute, or he may exercise any of his powers under the Act, viz.:
(a) he may refer the dispute to a conciliator for the purpose of effecting a settlement of the
dispute;39 or
(b) he may refer the dispute to an arbitration tribunal if conciliation fails;40 or
(c) he may refer the dispute to the National Industrial Court if a party objects to the tribunal’s
award,41 or he may refer the dispute directly to the National Industrial Court if it appears
to him that the dispute is one to which workers employed in any essential service are a
party or in the circumstances of the case reference of the dispute to an arbitration tribunal
would not be appropriate;42 or
(d) he may refer the dispute to a board of inquiry, if he thinks fit.43

33
OVC Okene, Labour Law in Nigeria: The Law of Work (3rd edn, Claxton and Derrick 2012) 295-296.
34
Akintola Jimoh, Nigerian Investment Laws and Business Regulations (Learned Publishments Ltd 2002)
339
35
Idubor (n 26) 260
36
Jimoh (n 34) 340
37
Idubor (n 26) 262
38
INE Worugji, “Settlement of Trade Disputes under the Nigerian Labour Law: The Missing Link”
(2003) 6 University of Maiduguri Law Journal 1-17, 5
39
TDA, s. 8
40
Ibid, s. 9
41
Ibid, s. 14
42
Ibid, s. 17
43
Ibid, s. 33
34
 Amadi & Otuturu AJSS 11(1) 2021 30-45

ADR PROCESSES UNDER THE TRADE DISPUTES ACT

It is considered necessary, at this juncture, to examine the alternative dispute resolution processes
under the TDA, as amended, for the settlement of trade disputes in Nigeria. The processes
envisaged under the TDA are negotiation, mediation, conciliation, arbitration and inquiry. Although
inquiry is rarely used, it is still in the statute books and would be examined as an aid to the
settlement of trade disputes. The jurisdiction and powers of the National Industrial Court in the
adjudication of labour disputes are examined in a separate treatise.44

Negotiation
Negotiation between the parties to a trade dispute, without the intervention of any third party, is the
first step in any genuine effort to settle the dispute. Thus, the TDA provides in effect that if a trade
dispute arises between employers and workers, if there exists agreed means for settlement of the
dispute, whether by virtue of the provisions of any agreement between organizations representing
the interests of employers and organization of workers or any other agreement, the parties to the
dispute shall first attempt to settle it by that means.45These provisions reaffirm the voluntary
negotiation principle in Nigeria’s industrial relations system.46

Negotiation is discussions between the parties with a view to reconciling their differences and
reaching a settlement which will be mutually beneficial to them.47 Unlike litigation which is based
on conflicting rights of the parties, negotiation is based on conflicting interests of the parties. The
parties essentially bargain or negotiate their interests with a view to reaching a collective agreement
on both substantive issues such as wages, housing allowances and other conditions of employment
and procedural issues such as grievance or dispute settlement procedure.

Collective agreements usually provide for dispute settlement clauses and other clauses for review of
the terms and conditions that may lead to disputes if not properly managed. However, such
agreements are completely wanting in the public sector because there is always resort to ad hoc
measures which in most cases had always been at the discretion of the Minister either when labour
has threatened to declare a strike or has actually declared a strike.48

Most employers in the organized private sector have a grievance procedure freely negotiated with
the workers for the settlement of disputes.49 A grievance is the dissatisfaction of any employee or
group of employees over a denial of a perceived right or interest to which the individual or the
group feels entitled. The purpose of the grievance procedure is to ensure that grievances are settled
through bilateral negotiation at the place of occurrence.50

It is clear from the definition that a grievance may be an individual grievance where it is raised by a
worker; or a collective grievance where it is raised by a group of workers or their union. In rare

44
OVC Okene and GG Otuturu, ‘The National Industrial Court and the Adjudication of Labour Disputes
in Nigeria: Agenda for Reform’(2017) 3(1) Delta State University Law Review; 205-239.
45
TDA, s. 4(1)
46
TM Yesufu The Dynamics of Industrial Relations: The Nigerian Experience (Oxford University Press
1984) 74
47
GG Otuturu, “The Multi-Door Courthouse Concept: A Revolution in Alternative Dispute Resolution
(2016) 6(40 The Gravitas Review of Business and Property Law 99; GG Otuturu, “Some Aspects of the
Law and Practice of Commercial Arbitration in Nigeria” (2014) 7(4) Journal of Law and Conflict
Resolution 67.
48
Worugji (n 38) 7
49
Fashoyin (n 3) 191
50
Ibid 192
35
 Amadi & Otuturu AJSS 11(1) 2021 30-45

cases, management may raise a grievance against a worker or a group of workers or their union.
Individual grievances emanate from what a worker considers as a violation of his rights in the
contract of employment, rule or statute. Such rights are usually connected with promotion, grading,
annual increments or termination of employment. Collective grievances, on the other hand, emanate
from the refusal of management to implement the terms of a collective agreement or to grant one or
more demands made by the union. Such demands are usually connected with wages and salaries,
housing allowances and other fringe benefits, and matters connected with the interpretation of
collective agreements.

Most of the disputes that end up as trade disputes start off as individual grievances (or rights
disputes) between one employee and the employer.51 This is true especially where the individual
grievance involves the termination of employment for reasons such as trade union activities and
redundancy. Thus in Rubber Research Institute of Nigeria v. Senior Staff Association of
Universities, Teaching Hospitals, Research Institutes and Associated Institutions,52 the National
Industrial Court held that the dismissal of an employee, where the fact of the dismissal is taken up
by employee’s trade union, is a trade dispute under the purview of section 48(1) of the TDA and the
Minister of Labour was consequently right to have treated the dispute as a trade dispute and
referred the matter to the Industrial Arbitration Panel.

There are several stages in a typical grievance or dispute procedure. In the case of an individual
grievance, the worker will raise his grievance directly with his supervisor. If there is no settlement,
the worker will take his grievance to the manager. If there is no settlement, the worker will be
accompanied by his local union secretary to take the grievance to the personnel manager. If there is
no settlement, the grievance will be taken up by the officials of the union with the management. In
the case of a collective grievance, the procedure commences from the third stage to the last stage.

The Act requires that if the parties have any collective agreement for the settlement of trade
disputes, copies of the agreement should be deposited with the Minister of Labour.53 If the parties
fail to reach a settlement of the dispute by negotiation, the Act requires that the parties should meet
together by themselves or their representatives under the presidency of a mediator mutually agreed
upon and appointed by them with a view to the amicable settlement of the dispute.54

Mediation
Based on the provisions of section 4(2) of the TDA, mediation is the intervention of a third party
called a mediator mutually agreed upon and appointed by or on behalf of the parties with a view to
the amicable settlement of the dispute. It is clear from the statutory provisions that the mediator is a
neutral third party who is considered by the parties to have knowledge and experience in labour and
industrial relations matters and who is mutually appointed by the parties to assist them to reach a
settlement of the dispute.

It follows that the mediator usually acts in the role of a neutral expert to aid the parties to the
dispute to resume or continue their bargaining efforts. The mediator usually meets with the parties
separately and brings them together to work out a settlement for themselves. The neutral third party

51
Agomo (n 22) 316
52
(2012) 28 NLLR (Pt. 81) 441, 477 C-H (Kanyip PJ)
53
TDA, s. 3(1)
54
Ibid, s. 4(2)
36
 Amadi & Otuturu AJSS 11(1) 2021 30-45

has no authority to make any decisions, which are binding on the parties,55 but uses certain
procedures, techniques and skills to help them to negotiate a resolution of their dispute by
agreement without adjudication.56

The mediator is expected to achieve an amicable settlement of the dispute within seven days from
the date of his appointment. If the dispute is not settled, the dispute is expected to be reported to the
Minister of Labour by or on behalf of either or the parties within three days of the end of the seven
days.57 The report shall be in writing and shall state the points on which the parties disagree. It shall
also describe the steps already taken by the parties to reach a settlement.58 The Minister may
appoint a fit person to act as a conciliator for the purpose of effecting a settlement of the dispute.59

Conciliation
By virtue of the provisions of section 8(1) of the TDA, conciliation is the intervention of a neutral
third party called a conciliator appointed by the Minister of Labour for the purpose of effecting a
settlement of a trade dispute. The conciliator so appointed is normally a senior labour officer and
hence knowledgeable in labour and industrial relations matters.

The Minister may refer a trade dispute to a conciliator for settlement in two instances. The first is
where the parties are unable to resolve the dispute by negotiation through the presidency of a
mediator and the second is where the Minister apprehends a trade dispute and, without waiting for
the outcome of any internal settlement processes, he appoints a conciliator for the purpose of
resolving the dispute.60 In the latter instance, all that the Minister is required to do is to inform the
parties or their representatives in writing of the apprehension of a trade dispute and the steps he
proposes to take for the purpose of resolving the dispute.61

The duties of the conciliator are to inquire into the causes and circumstances of the dispute and by
negotiation with the parties endeavour to bring about a settlement of the dispute.62 He is expected to
maintain an impartial and neutral attitude towards the parties to the dispute. That means that he
must not, for example, criticize a party in the presence of the other party. He is expected to
systematically guide the parties to reach a settlement of the dispute.

The conciliator has seven days within which to achieve a settlement of the dispute. In practice,
however, conciliation is expected to go on for a much longer time especially if there are prospects
for a settlement.

If the conciliator achieves a settlement of the dispute, he must forward to the Minister a
memorandum of the terms of settlement signed by the parties or their representatives. As from the
date on which the memorandum is signed, or such earlier or later date as may be specified therein,
the terms recorded therein shall be binding on the employers and the workers to whom those terms

55
Dele Peters, Dispute Resolution Mechanisms” (2005) 1(1) Fountain Law Journal 1-17, 14; see also
Dele Peters, Alternative Dispute Resolution (ADR) in Nigeria: Principles and Practice (Dee-Sage
Nigeria Ltd 2005) 101-102
56
Izuoma Egeruoh, “Mediating Workplace Dispute” in Epiphany Azinge and Chinyere Ani (eds)
Principles of Negotiation and Mediation (Nigerian Institute of Advanced Legal Studies 2012) 337-356,
338
57
TDA, s. 6(1)
58
Ibid, s. 6(2)
59
Ibid, s. 8(1)
60
Ibid, s. 7
61
Ibid, s. 5
62
Ibid, s. 8(2)
37
 Amadi & Otuturu AJSS 11(1) 2021 30-45

related.63 It is an offence for either party to act in breach of the terms of settlement contained in the
memorandum.64

Furthermore, the contract of employment between the employers and the workers in question shall
be deemed to include a provision that the rate of wages to be paid and the conditions of
employment to be observed under the contract shall be in accordance with the terms of settlement
until varied by a subsequent agreement, settlement or award. Accordingly, the provisions of the
contract of employment shall be read subject to the terms of settlement, and any failure to give
effect to the terms of settlement shall constitute a breach of contract.65

However, if a settlement of the dispute is not reached within seven days of the appointment of the
conciliator, or if after attempting negotiation with the parties, the conciliator is not able to bring
about a settlement of the dispute, the conciliator shall forthwith report the fact to the Minister of
Labour.66 Within fourteen days from the receipt of the report, the Minister of Labour shall refer the
dispute for settlement to the Industrial Arbitration Panel.67

Arbitration
By virtue of the provisions of section 9(1) of the TDA, arbitration is the reference of a trade dispute
by the Minister of Labour to the Industrial Arbitration Panel for settlement in accordance with the
provisions of the Act. The Minister may refer a dispute to the Industrial Arbitration Panel (IAP) for
settlement in two instances. The first is where a conciliator appointed for the purpose of resolving
the dispute is unable to resolve the dispute and the second is where the Minister apprehends a trade
dispute and intervenes by referring the dispute to the IAP for settlement. In the latter instance, the
Minister bypasses all the internal dispute settlement processes and the use of a conciliator to settle
the dispute and refers the dispute directly to the IAP for settlement.68

The IAP is a standing body established under the TDA, comprising a Chairman, a Vice-Chairman
and not less than 10 other members appointed by the Minister of Labour. Out of the 10 other
members, two shall be nominated by organizations representing the interests of employers and two
by organizations representing the interests of workers.69

For the purposes of settling any dispute referred to it by the Minister, the Chairman of the IAP shall
constitute an arbitration tribunal in accordance with the provisions of the Act. Under the Act, an
arbitration tribunal may consist of a sole arbitrator; or a single arbitrator assisted by assessors; or a
body of arbitrators70 consisting of one or more arbitrators nominated by the employers concerned
and an equal number of arbitrators nominated by the workers concerned and presided over by the
Chairman or Vice-Chairman of the IAP.71

It is clear from the statutory provisions that whereas the Minister of Labour appoints members of
the Industrial Arbitration Panel, it is the Chairman of the Industrial Arbitration Panel that appoints

63
Ibid, s. 8(3)
64
Ibid, s. 8(4)
65
Ibid, s. 48(2)
66
Ibid, s. 8(5)
67
Ibid, s. 9(1)
68
Ibid, s. 5
69
Ibid, s. 9(2)
70
The term “body of arbitrators” does not appear in the Trade Disputes Act 2004, as amended, but it aptly
depicts the third type of arbitration tribunal that may be constituted under the Act.
71
TDA, s. 9(4)
38
 Amadi & Otuturu AJSS 11(1) 2021 30-45

the arbitration tribunal. He alone determines who sits as an arbitrator over a matter referred to the
Panel.

Ideally, the parties are at liberty to choose who their arbitrators will be. The 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, the Act gives the Chairman of the Industrial Arbitration
Panel absolute power to appoint the arbitrator to hear the matter in issue.

A sole arbitrator sits alone without the assistance of any assessors, but a single arbitrator sits with
assessors nominated in equal number by the parties to the dispute from a panel of employers’ and
workers’ representatives drawn up by the Minister of Labour.72 In either case, the award shall be
signed by the sole arbitrator or the single arbitrator alone, as the case may be. In the case of a body
of arbitrators, the award shall be decided by a majority of the arbitrators.73

It must be noted that the Industrial Arbitration Panel has only 21 days within which to make an
award.74 However, the Act gives room for the Minister of Labour to grant an extension of the
twenty-one days period.75 It must also be noted that the Industrial Arbitration Panel is not bound to
act in any formal manner; neither is it bound by the rules of evidence.76 All that is required of the
Panel is to advance the cause of justice.77

The award of the arbitration tribunal is not made in public or communicated directly to the parties
affected. Rather, it is communicated to the Minister of Labour who will in turn communicate it to
the parties.78 This was challenged by the applicant union in National Union of Hotels and Personal
Services Workers v. National Union of Food, Beverage and Tobacco Employers79 as a violation of
section 36(1) and (3) of the Constitution.

The National Industrial Court held that the provisions of section 36(1) and (3) of the Constitution
apply to a court of law and not to a quasi-judicial administrative body like the Industrial Arbitration
Panel. In the case of the Industrial Arbitration Panel, the fact that its decisions are not given in
public, and are subject to the approval of the Minister of Labour, is in consonance with section
36(2) of the 1999 Constitution which provides that the decision of a quasi-judicial administrative
body other than a court of law, as to the rights of any person, shall not be invalidated if the decision
is not final and conclusive. Consequently, the Court stated that the procedure does not violate the
fundamental right of fair hearing as guaranteed under section 36(1) and (3) of the Constitution.80

Upon receipt of the award, the Minister may either notify the parties of the award specifying the
time within which the parties may object to the award in the absence of which the award may be
confirmed by the Minister81 or he may remit the award back to the tribunal for reconsideration in
which case he will withhold his power to confirm the award until it has been reconsidered by the

72
Ibid, s. 9(5)
73
Ibid, s. 9(6)
74
Ibid, s. 13(1)(a)
75
Ibid, s. 13(1)(b); see also The Provost, College of Legal Studies, Yola v. NASU (2012) 29 NLLR (Pt. 82)
34, 87 (Kanyip PJ)
76
Trade Disputes Act 2004, ss. 36 and 37
77
Rubber Research Institute of Nigeria v. Senior Staff Association of Universities, Teaching Hospitals,
Research Institutes and Associated Institutions (supra) 480 E-F (Kanyip PJ)
78
TDA, s. 13(1)(b)
79
(2004) 1 NLLR (Pt. 2) 286
80
Ibid 303
81
TDA, s. 13(2)
39
 Amadi & Otuturu AJSS 11(1) 2021 30-45

tribunal.82 However, the Minister cannot lawfully withdraw, set aside or nullify an award of the
Industrial Arbitration Panel.

In Abdul-Raheem & Ors v. Oloruntoba-Ojo83 the appellants contended that the trial court had no
jurisdiction to entertain the action, which is the termination of the appointment of the respondent,
lecturers in the University of Ilorin who were involved in ASUU strike, which disrupted
examinations, since the Industrial Arbitration Panel had considered the issue and delivered an
award in favour of the 3rd appellant, the University of Ilorin. The respondents did not dispute the
fact that an award was made by the IAP but contended that the Minister of Labour had put the
award in abeyance. The Court of Appeal held that the Minister of Labour can neither, lawfully,
withdraw, set aside nor nullify an award of the Industrial Arbitration Panel. The Minister can,
however, lawfully affirm an award or remit same to the arbitration tribunal under the TDA.84

Where the Minister notifies the parties of the award, the parties have seven days within which to
object to the award. In the absence of any objection, the Minister shall publish in the Federal
Gazette a notice confirming the award and. It is only when the award is confirmed by the Minister
that it shall be binding on the employers and the workers to whom it relates as from the date of the
award or such earlier or later date as may be specified in the award.85

However, if notice of objection to the award of an arbitration tribunal is given to the Minister
within the time stipulated and in the manner specified in the notice, the Minister is required to refer
the dispute to the National Industrial Court for adjudication.86

Inquiry
A board of inquiry is essentially a fact-finding body which does not directly resolve a dispute, but
its findings may aid the resolution of the dispute. Boards of inquiry are not meant to duplicate the
conciliation machinery or the arbitration tribunals.87 Rather, they are used in cases where both
conciliation and arbitration are considered unsuitable especially where public interest is involved.

Thus, a board of inquiry does not, in principle, serve as trade dispute settlement machinery and
unions typically do not have interest in its use.88 Especially in the public sector, where government
is the employer, the unions feel that the government would not see the need for any further
negotiation after an inquiry. It is because of these reasons that boards of inquiry are rarely used in
Nigeria.89

The TDA, as amended, provides that where any trade dispute exists or is apprehended, the Minister
of Labour may cause an inquiry to be made into the causes and circumstances of the dispute and, if
he thinks fit, he may refer any matter appearing to him to be connected with or relevant to the
dispute to a board of inquiry appointed for the purpose by the Minister, and the board shall inquire

82
Ibid, s. 13(3)
83
(2006) 15 NWLR (Pt. 1003) 581
84
Ibid 621 (Muntaka-Coomassie JCA)
85
TDA, s. 13(4)
86
Ibid, s. 14(1)
87
Ubeku (n 3) 183-184
88
Fashoyin (n 3) 194
89
Ibid 194
40
 Amadi & Otuturu AJSS 11(1) 2021 30-45

into the matter referred to it and report thereon to the Minister.90 The Minister may also refer any
other matter connected with industrial conditions in Nigeria to the board.91

A board of inquiry may consist of only one person or a chairman and such other persons as the
Minister may think fit to appoint.92 A board consisting of two or more persons may act
notwithstanding any vacancy in the number of members.93

The procedure is informal and the board may regulate its procedure and proceedings as it may deem
fit.94 Generally, the board calls for memoranda from the parties concerned and other interested
parties. At the hearing, the parties to the dispute may appear by themselves or they may be
represented by counsel. Generally, the report of a board of inquiry does not have any binding effect
on the parties. However, the Minister may cause a White Paper to be published on the report or any
part of it and thereby making it binding on the parties.95

Any information obtained by a board in the course of its inquiry with respect to any trade union or
any particular business or undertaking, being information which is not available to the public
otherwise than through evidence given at the inquiry, is protected. The consent of the trade union or
business undertaking is required before such information can be disclosed by the board or included
in its report.96 It is an offence for any member of a board of inquiry or any other person concerned
with the inquiry to disclose any such information without the required consent97

A CRITIQUE OF THE ADR APPROACHES

The exercise of the powers of the Minister of Labour under section 7 marks the beginning of the
compulsory mechanisms for the settlement of trade disputes. It also encapsulates the method of
activating the institutional mechanisms for the settlement of trade disputes in Nigeria. It is the
Minister of Labour that activates the institutional mechanisms by referral without the consent of the
parties.

The prerogative of the Minister to decide when to refer a trade dispute to the Industrial Arbitration
Panel denies the parties to the dispute direct access to the panel and that the system of
communication of the award of the panel to the Minister who in turn informs the parties is part of
the inbuilt bottlenecks in the process of settlement of trade disputes by arbitration.98 The system of
compulsory arbitration is an anathema to the system of free and voluntary collective bargaining and
constitutes a severe impediment to the exercise of the right to strike.99

The process of referring disputes to the Industrial Arbitration Panel and the communication of
arbitral awards by the Minister of Labour seriously erodes the independence of the arbitral process.
Ministerial control in these areas not only creates delays and bottlenecks but also gives room for
partiality and political interferences. Similarly, the power of the Minister to refer disputes is subject

90
TDA, s. 32(1)
91
Ibid, s. 33(2)
92
Ibid, s. 33(3)
93
Ibid, s. 33(4)
94
Ibid, s. 37(3)
95
Ibid, s. 34(3)
96
Ibid, s. 34(3) and (4)
97
Ibid, s. 34(6)
98
Agomo (n 22) 315.
99
OVC Okene, ‘Mechanisms for the Resolution of Labour Disputes in Nigeria: A Critique’ (2010) 3(2)
Kogi State University Bi-Annual Journal of Public Law 147-152.
41
 Amadi & Otuturu AJSS 11(1) 2021 30-45

to abuse and especially his power to review arbitration awards may also be subjected to political
considerations.100

The machinery for the settlement trade disputes is time consuming. It involves a systematic
recourse to arbitration after mediation and conciliation. It is needless referring a dispute which has
defied settlement by mediation to conciliation before arbitration.101

LESSONS FROM SOUTH AFRICA

In South Africa, under the Labour Relations Act,102 almost all labour disputes are referred to the
Commission for Conciliation, Mediation and Arbitration103 for conciliation and arbitration if the
dispute is not resolved by conciliation. However, the CCMA does not act as arbitrator of all
unresolved disputes. Certain unresolved disputes are referred to the Labour Court for
adjudication.104 Under the LRA, for example, if the following disputes are not resolved through
conciliation, the CCMA must act as arbitrator, that is to say:
a) The dismissal of an employee because of alleged misconduct, incapacity or
incompetence;105
b) The dismissal of an employee when the employee made continued employment
intolerable;106
c) The dismissal of an employee where the employee does not know the reason for the
dismissal;107
d) An alleged unfair labour practice which is not connected with alleged discrimination;108
e) The exercising of organizational rights109 provided for in the Act;110
f) The interpretation of a collective agreement,111 closed shop agreement112 and agency shop
agreement;113

100
Fashoyin (n 3) 199.
101
Adeogun (n 25) 12.
102
Labour Relations Act 1995 as amended by the Labour Relations Amendment Act 2014 (hereinafter
simply referred to as LRA).
103
The Commission for Conciliation, Mediation and Arbitration (hereinafter simply referred to as CCMA)
is an independent body established under section 112 of the LRA, whose members are approved by the
National Economic Development and Labour Council (NEDLAC) to mediate and arbitrate in industrial
disputes.
104
Ibid, s. 191(5).
105
Ibid, s. 191(5)(a)(i).
106
Ibid, s. 191(5)(a)(ii).
107
Ibid, s. 191(5)(a)(iii).
108
Ibid, s. 191(5)(a)(iv).
109
Under sections 12-16 and 25 of the LRA, a representative trade union acquires a number of
organizational rights including access to the workplace for trade union activities, deduction of trade
union dies from the wages of members, deduction of agency fee from the wages of non-members under
agency shop agreement and disclosure of information by the employer to a trade union.
110
LRA, s. 21(1)-(7).
111
Under section 24(1) of the LRA, every collective agreement should provide for a procedure to resolve
every dispute regarding its interpretation and application. In the absence of such a procedure, the
dispute must be referred to the CCMA for conciliation and arbitration by virtue of section 24(2) of the
LRA. Disputes regarding the interpretation and application of closed shop agreement and agency shop
agreement must also be referred to the CCMA for conciliation and arbitration by virtue of section 24(6)
of the LRA.
112
Under section 26(1) of the LRA, a closed shop agreement is defined as a collective agreement
concluded between a representative trade union and an employer or employers’ organization “requiring
all employees covered by the agreement to be members of the trade union. Under section 26(3) of the
LRA, such an agreement is binding only if a ballot has been held of the employees to be covered by the
agreement; two-thirds of the employees present voted in support of the agreement; there is no provision
in the agreement which requires membership of the representative trade union before the
commencement of employment; and no deductions in favour of the trade union shall be used for the
furtherance of any political objective.
42
 Amadi & Otuturu AJSS 11(1) 2021 30-45

g) Cases where the parties were not able to reach an agreement at a workplace forum114 on a
matter reserved for joint decision-making by the Act.115

Certain other disputes are referred to the Labour Court for adjudication. Such disputes include
disputes relating to dismissal which is automatically unfair,116 dismissal which is based on the
employer’s operational requirements117 and dismissal for participating in a strike which does not
comply with the requirements of the Act.118 However, if all the parties before the Labour Court
agree that the dispute should be referred to the CCMA, the CCMA will have jurisdiction to arbitrate
in such a dispute.119

In NUMSA v. Bader Bop (Pty) Ltd and Minister of Labour120 the union wrote to the employer (the
1st respondent) seeking to be granted organizational rights. The employer was willing to afford the
union access to its premises for trade union activities but it was not willing to recognize the union’s
shop stewards and was not willing to bargain collectedly with the union on the ground that it was
not representative of the majority of the workforce. The union declared a dispute which was
referred to the CCMA for conciliation. After 30 days, the dispute remained unresolved and the
union gave notice to go on strike. The employer applied to the Labour Court for an injunction on
the ground that the union was not entitled to go on strike to demand the recognition of its shop
steward. The Labour Court dismissed the application. The Labour Appeal Court allowed the appeal
by the employer and granted the injunction by a majority of two to one. On further appeal by the
union, the Constitutional Court set aside the judgement of the Labour Appeal Court and held that
NUMSA was entitled to seek organizational rights and to embark on strike in support of such
demands. The Court said: ‘Usually, in the overall scheme of the Act, unions and employers are
given a choice between arbitration and industrial action should conciliation fail.’121

Disputes involving persons in essential services are referred to the CCMA for conciliation or to a
bargaining council if the parties fall within the scope of such a council.122 If the dispute is not
resolved through conciliation, either party may request the CCMA or the council to resolve the

______________
113
Under section 25(1) of the LRA, a representative trade union may conclude an agency shop agreement
whereby an employer will deduct an agreed agency fee from the wages of employees who are not
members of the trade union but are eligible for membership of the union. By virtue of section 25(3) of
the LRA, an agency shop agreement is only valid especially if it provides that no person who is not a
member of the trade union would be compelled to join the trade union; the agency fee is either equal to
or less than the trade union subscription and the money so deducted shall be paid into a separate account
of the trade union and would not be applied for the furtherance of any political purpose.
114
Under section 81 of the LRA, any representative trade union may apply to the CCMA for the
establishment of a workplace forum if at least 100 employees are employed by the employer. By virtue
of section 79 of the LRA, the two main functions of a workplace forum are: (a) to promote the interests
of all the employees in the workplace, not just the interests of the union members; and (b) to enhance
efficiency in the workplace, which are achieved through consultation with the employer in order to
reach a consensus on a number of issues specified in section 84 of the LRA and participation in joint
decision-making with the employer on matters specified in section 86 of the LRA. See generally, Van
Niekerk, “Workplace Forums” (1995) Contemp. LL 32.
115
LRA, s. 86(7).
116
Ibid, s. 191(5)(b)(i).
117
Ibid, s. 191(5)(b)(ii).
118
Ibid, s. 191(5)(b)(iii).
119
Ibid, ss. 141(1) and 51(3).
120
Case No. CCT/12/02 (Constitutional Court).
121
Ibid paragraph 40 (O’Regan J).
122
Ibid, s. 74(1).
43
 Amadi & Otuturu AJSS 11(1) 2021 30-45

dispute through arbitration.123 What constitutes an essential service is to be determined by the

Essential Services Committee124 after conducting investigations.125

SUGGESTIONS FOR REFORM

It is suggested that the current system of compulsory reporting and settlement of trade disputes
should be replaced with voluntary conciliation and arbitration procedures, independent of the
Minister of Labour. There should be an impartial and independent body responsible for conciliation
and arbitration of trade disputes, with power to accredit private agencies that are qualified to
provide conciliation and arbitration services.

In order to facilitate the new dispute resolution regime, the TDA should be amended to provide the
legal framework for the accreditation of private arbitration bodies especially professional
arbitration bodies established by charter. It should also specify certain disputes which must be
referred to binding arbitration, especially disputes involving workers engaged in the provision of
essential services. It should further specify such other disputes, especially individual labour
disputes, which must be subjected to adjudication by the National Industrial Court with a right of
appeal to the Court of Appeal only on grounds of law. Ultimately, a Labour Appeal Court should be
established to replace the Court of Appeal as the apex court in the industrial judicial system.

If conciliation fails, the parties to a collective labour dispute, other than disputes involving workers
in essential services, should have a choice either to submit their disputes to binding arbitration or to
employ the weapon of strike or lockout after giving the requisite notice to the other party. In the
case of essential services, if conciliation fails, the parties should submit their disputes for settlement
by binding arbitration. In all cases, the arbitration award should be final subject only to review by
the National Industrial Court on grounds of defects in the proceedings or awards, or misconduct on
the part of the arbitrators, or breach of fundamental rights contained in Chapter IV of the CFRN
1999, as amended.

CONCLUSION
The exercise of the powers of the Minister of Labour under section 7 of the TDA as amended by
the National Industrial Court Act 2006marks the beginning of the compulsory mechanisms for the
settlement of trade disputes. It also encapsulates the method of activating the institutional
mechanisms for the settlement of trade disputes in Nigeria.

It is the Minister of Labour that still activates the jurisdiction of the Industrial Arbitration Panel by
referring disputes to it.126 In order to serve as a truly independent agency, the Industrial Arbitration
Panel must be independent of government, both with respect to the referral of cases and the
communication of arbitral awards. Except matters relating to its original jurisdiction over strikes
and lockouts as well as the grant of the prerogative orders of mandamus, prohibition, certiorari and

123
Ibid, s. 74(4).
124
The Essential Services Committee (hereinafter simply referred to as ESC) is established under section
70(1) of the LRA. It is appointed by the Minister in charge of labour in consultation with the NEDLAC
and the Minister for Public Services and Administration to determine what services are essential
services or maintenance services.
125
LRA, s. 70(2).
126
National Union of Petroleum and Natural Gas Workers v. Maritime Workers’ Union of Nigeria (2012)
28 NLLR (Pt. 80) 309, 344-345 (Kanyip J).
44
 Amadi & Otuturu AJSS 11(1) 2021 30-45

injunction,127 it is still the Minister of Labour that activates the appellate jurisdiction of the National
Industrial Court over trade disputes and organizational disputes.128

The machinery for the resolution trade disputes under the current statutory regime is very time
consuming. It is needless referring a dispute involving essential services which has defied
settlement by mediation to conciliation.129 Such disputes should go straight to the Industrial
Arbitration Panel for binding arbitration at the instance of the parties to the dispute subject only to
review by the National Industrial Court.

127
NICA 2006, ss. 7(1)(b) and 17-19.
128
Provost, College of Legal Studies, Yola v. Non-Academic Staff Union of Educational and Associated
Institutions (2012) 29 NLLR (Pt.82) 34
129
Adeogun (n 25) 12
45

View publication stats