Introduction. The Trade Disputes Mechanism under the TDA

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1 AN ANALYSIS OF THE ADR PRACTICE DIRECTIONS OF THE NATIONAL INDUSTRIAL COURT AND EXISTING LEGISLATION ON TRADE DISPUTE RESOLUTION AS CAPTURED IN THE TRADE DISPUTES ACT*** 1. Introduction The President of the National Industrial Court of Nigeria (NICN) in April 2015 established an Alternative Dispute Resolution Centre for the resolution of employment, trade and industrial disputes. However, the Trade Disputes Act (TDA) 2 which regulates the settlement of trade disputes already provides a mechanism for the resolution of trade disputes that involves the use of alternative dispute resolution methods. The purpose of this paper therefore is to compare the resolution mechanisms provided by the Trade Disputes Act 3 and the ADR instruments of the National Industrial Court to discover whether the action of the President of the NIC in establishing an ADR Centre amounts to unnecessary duplicity of procedure. It is helpful to note at this point that parties to a trade dispute, before going on to explore external resolution mechanisms provided by the law, usually have existing internal resolution mechanisms available for resolving disputes that may arise in the course of trade and other related matters. This is envisaged by the TDA and parties are encouraged to explore these internal mechanisms. 4 It is only upon failure or non-existence of these internal mechanisms, that parties resort to dispute resolution procedures provided by the law. The Trade Disputes Mechanism under the TDA The resolution mechanisms for settling trade disputes under the TDA are set out in Part I to IV of the Act. For a dispute to qualify for redress under the Act, it must satisfy the requirements enumerated in N.U.R.T.W. v. Ogbodo 5. In the instant case, it was held that: For a dispute to be declared a trade dispute within the meaning of Section 47 of the Trade Disputes Act, CAP 432, Laws of the Federation of Nigeria, 1990, the following ingredients must be present: a. there must be a dispute b. the dispute must involve a trade c. the dispute must be between 1 Majekodunmi Titilope LLB, B.L 2 CAP T8, LFN Ibid 4 Section 4(1), TDA. 5 (1998) 2 NWLR (PT. 537) 189.

2 i. employers and workers; or ii. workers and workers; d. the dispute must be connected with i. the employment or non-employment, or ii. the terms of employment iii. physical conditions of work of any person. The procedure for settling trade disputes under the TDA is as follows: 1. Mediation 6 Where no internal resolution mechanism exists between parties or where such internal resolution mechanism fails 7, the Act provides that parties should meet with a mediator to settle within 7 (seven) days of the dispute arising. 8 9 Section 4 (2), TDA provides thus; If the attempt to settle the dispute as provided in subsection (1) of this section fails, or if no such agreed means of settlement as are mentioned in that subsection exists, the parties shall within seven days of the failure of (or if no such means exists, within seven days of the date on which the dispute arises or is first apprehended) meet together by themselves or their representatives, under the presidency of a mediator mutually agreed upon and appointed by the parties, with a view to the amicable settlement of the dispute. The mediator has seven days to settle the dispute. If mediation fails, or if the dispute is not settled within time, the dispute should be reported 10 to the Minister within 3 days Conciliation 12 Upon receiving a report, the Minister appoints a fit person to act as a conciliator for the purpose of effecting a settlement of the dispute. 13 The Conciliator inquires into the 6 This is an alternative dispute resolution method where a third party known as the mediator assists parties to negotiate a settlement. 7 It is noted that where parties 8 This is provided for in Section 4(2), TDA. It is also helpful to note that this mediation process is before the dispute is reported to the Minister. Upon report to the Minister, the dispute is said to have been apprehended and the Minister takes steps which includes writing to the parties, setting a board of inquiry as provided in Section 33, TDA amongst others. 9 Where the internal mechanism or agreed means is mediation, the law does not provide for what parties should resort to. It is suggested that parties may go on to report the dispute to the Minister who may then appoint a conciliator. 10 This report is in writing and usually describes steps already taken by parties. 11 Section 6, TDA 12 Conciliation is similar to mediation in that a neutral third party seeks to resolve the dispute but the difference between the two is that unlike mediation where the third party cannot impose his will on the parties, all he does is facilitate settlement. In conciliation, the third party offers his.opinion and such opinion is binding temporarily

3 cause and circumstances of the dispute and by negotiating with parties tries to bring about settlement. Where the dispute is settled within 7 days, the conciliator reports to the Minister and forwards the terms of settlement signed by parties to him. Where however, the conciliator fails to achieve settlement of the dispute within 7 days and is also not satisfied that he can achieve settlement, the conciliator reports this fact to the Minister. 3. Industrial Arbitration Panel (IAP) Where parties are unable to settle during conciliation, the Minister refers the dispute to arbitration. 14 This is provided for in Section 9, TDA. It is important to note at this point that the TDA excludes the application of the Arbitration and Conciliation Act to proceedings and award of the IAP. The Arbitration Panel consists of a chairman, vicechairman and not less than 10 (ten) other members. 15 The Panel s activities are guided by Section 9 to 13 of the Trade Disputes Act National Industrial Court (NIC) Where the award made by the IAP is objected to 17 or where upon receipt of conciliator s report, it appears to the Minister that reference to an arbitration panel is not appropriate or workers involved in essential service are parties to the dispute, such dispute will be referred to the National Industrial Court. 18 Also, the NIC has the jurisdiction to hear appeals from the decisions of the IAP as of right. 19 The National Industrial Court The National Industrial Court was first created by the Trade Disputes Act as an industrial dispute resolution institution. However, the enactment of the National Industrial Court Act in 2006 repealed Part II of the TDA which establishes the NIC. The 2006 Act created the court, expanded its jurisdiction and sought to make it a superior court of record. 20 The National 13 Section 8(1), TDA 14 Arbitration is the settling of disputes between two parties by an impartial third party whose decision the contending parties agree to accept. The general rule is that an arbitral award cannot be appealed except on grounds of jurisdiction. 15 Section 9 (2), TDA 16 Supra. 17 Section 14, TDA 18 Section 17, TDA 19 Section 22, TDA 20 Section 1(3), NIC Act In the case of NUEE v. BPE (2010) 7 NWLR (PT. 1194) 538, it was held that the NIC could not claim any exclusive jurisdiction on any matter to the exclusion of any other superior court of record because it was not recognized as ranking in any co-ordinate jurisdiction with any of the constitutionally-created superior courts of the land.

4 Assembly further expanded the jurisdiction of the court and silenced any controversy relating to the status of the court in 2010 when it altered the Constitution 21 to include the National Industrial Court. Section 254C (3) of the Constitution gives the NIC power to establish an Alternative Dispute Resolution Centre within the court premises on matters which the court has jurisdiction to hear 22. Section 7 (2) of the NIC Act 2006 also gives the National Assembly power to prescribe that any matter within the jurisdiction of the NIC in the Act, goes through the process of conciliation or arbitration before such matter is heard by the Court. 23 The President of the NIC is also empowered to make rules to give effect to the provisions of the NIC Act From the foregoing, it can be seen that the NICN ADR Centre was established pursuant to the powers granted the NIC by the Constitution. The NICN ADR Centre The Centre was established by virtue of the National Industrial Court of Nigeria Alternative Dispute Resolution (ADR) Centre Instrument, 2015 and its activities are regulated by the National Industrial Court of Nigeria Alternative Dispute Resolution Rules The Centre, as earlier stated, was established pursuant to the powers granted the National Industrial Court in Section 254C (3) and 254F(1), CFRN 1999 (As Amended) 25. The instrument re-affirms the powers of the Industrial Arbitration Panel to resolve disputes related or connected with the TDA and further establishes the ADR Centre for the purposenof resolving disputes commenced at the NIC using the ADR methods of mediation or conciliation. A matter commenced at the NIC may be referred to the ADR Centre at any stage before judgment. The ADR Centre is for Mediation or Conciliation only. 26 By the rules, Order 3 Rule 2 of the NICN ADR Centre Rules, 2015, matters which qualify for ADR process shall only come to the Centre by referral from the President of the Court or a Judge of the Court after all interim or interlocutory applications on such matters have been heard by the Court. Where issues have been joined and such matter qualifies for ADR Consideration 27, the matter will also be referred to the ADR Centre. 28 In other words, disputes can be referred to the 21 Section 254A-F, CFRN 1999 (As amended) regulates the operation of the NIC in Nigeria. 22 This is reflected in Article 4 Order 5, NICN ADR Centre Instrument, Any matter heard by such arbitration or conciliation panel is appealable as of right to the NIC. 24 Section 36 (1), NIC Act, Constitution of the Federal Republic of Nigeria 26 Article 4,para 11, NICN ADR Instrument, The parameter by which this is determined is not provided by the Rules. 28 Order 3 Rule 3, NICN ADR Centre Rules, 2015

5 Centre at any stage before judgment. 29 Parties who wish to mediate or conciliate without filing an action may apply to the President of the NIC. 30 The time frame within which disputes referred to this Centre must be concluded is 21 (twenty-one) working days from the day settlement is commenced. 31 The Rules govern the practice and procedure of the ADR Centre. Where however, there is no adequate provision in the Rules 32, the ADR Centre shall with the approval of the President of The NIC, adopt such procedure as will do substantial justice between the Parties. 33 Upon resolution of a dispute, parties are enjoined by the rules to execute terms of settlement reached. 34 On conclusion of the mediation or conciliation, the panel of the ADR Centre is mandated to submit its final report on the dispute settlement and record of proceedings to the referring court. 35 Does the establishment of the ADR Centre amount to unnecessary duplicity? With regard to the question of whether the establishment of the ADR Centre, given the existing provisions of the TDA, amounts to unnecessary duplicity of procedure. Firstly, it should be noted that the jurisdiction of the ADR Centre is wider than that of the Trade Disputes Act. The jurisdiction of the Trade Disputes Act is restricted to trade disputes relating to employment or non-employment, the terms of employment, physical conditions of work of any person as stated in Section 47, TDA. 36 The jurisdiction of the ADR Centre stems from the jurisdiction granted the NIC by the Constitution 37 and it covers so much more. Section 254C of the Constitution stipulates that: In addition to such other jurisdiction as may be conferred upon it by the National Assembly, the National Industrial Court [the ADR Centre], shall have and exercise jurisdiction to the exclusion of any other court in civil causes and matters.. relating to or connected with any labour, employment, trade unions, industrial relations and matters arising from workplace, the conditions of service, including health or safety, welfare of 29 Article 4, para. 15 & 16, NICN ADR Centre Instrument, Article 4, para 17a, NICN ADR Centre Instrument, Article 4, para 26, NICN ADR Centre Instrument, The Instrument provides that where the dispute is not resolved within 21 days, the duration may be extended for 10 working days. 32 The rules referred to here is the NICN ADR Centre Rules, Order 1 Rule 3, NICN ADR Centre Rules, Order 5, NICN ADR Centre Rules, 2015 This is however after each party has perused and reflected on the terms agreed upon by the parties 35 Article 4, para 23 & 27 NICN ADR Centre Instrument, It is helpful to note that where parties don t settle amicably a memorandum to that effect will be sent to the court without the record of proceeding and the case will be set down for hearing on its merits 36 This was also the position of the court in NURTW v. OGBODO (1998) 2 NWLR (PT. 537) Section 254C (3), CFRN 1999 (As Amended)

6 labour, employee, worker and matters incidental thereto or connected with [emphasis mine] The National Industrial Court also exercises exclusive jurisdiction over matters arising from the Factories Act, Trade Disputes Act, Trade Unions Act, Labour Act, Employees Compensation Act or any other Act or Law relating to labour, employment, industrial relations, workplace or any other enactment replacing the Acts or Laws. 38 In addition, the Constitution retains exclusive jurisdiction over matters connected with the application of any international treaty, convention, protocol that Nigeria has ratified as well as in other subject matters listed in Section 254C. Therefore, what the TDA cannot achieve due to its limited jurisdiction can be achieved using the ADR Centre established by the NIC. Also, the enactment of the NIC Act 39 has a profound effect on the application of the Trade Disputes Act in the settlement of Trade Disputes. As earlier stated, by virtue of Sections 53 and 54 of the NIC Act 40, Part II of the TDA which deals with the NIC is now repealed and in the words of Hon Justice Benedict Bakwaph Kanyip in his paper 41, the TDA is now to be read with such modification so as to bring it into conformity with the NIC Act and where it is in conflict with the Act, the Act prevails. Also, section 254C (3) of the Constitution which allows the NIC to establish the ADR Centre takes into consideration arbitral tribunals or commissions, administrative bodies or boards of inquiry, all of which are resolution mechanisms provided by the TDA. This fact shows that the ADR Centre was not created to exist independent of these mechanisms. The NIC still exercises appellate and supervisory jurisdiction over their decisions and so even if a case before the NIC has gone through the resolution mechanisms provided by the TDA, nothing precludes the court or parties from referring or asking the case be referred to the ADR Centre. In addition, the benefits of Alternative Dispute Resolution, some of which include maintenance of existing business relationships, speedy dispensation of justice, cost effectiveness, realization of strength and weaknesses of one s case and so on, nothing stops any party or the court from attempting settlement again at any stage of the proceedings even if an earlier attempt at resolving has failed. Considering also, the original jurisdiction granted the NIC by the Constitution, that allows parties initiate actions without recourse to the resolution mechanisms provided by the TDA, the establishment of the NIC ADR Centre gives such parties an opportunity to explore alternative dispute resolution mechanisms. 38 Section 254C (2), 1999 Constitution (As Amended) 39 No. 1, Ibid. 41 Overview of the Trade Disputes Act and its application to Trade Disputes Settlement in Nigeria, Hon. Justice. Benedict Bakwaph Kanyip

7 Lastly, as stated earlier, the ADR Centre only provides for Mediation and Conciliation. Arbitration is not used in the centre. This may be to give way for the use of Arbitration in the Industrial Arbitration Panel (IAP) as provided under the Trade Disputes Act. Conclusion From the foregoing, it can be deduced that the establishment of the ADR Centre does not amount to unnecessary duplicity of procedure. Instead, it complements as well as supplements the provisions of the Trade Disputes Act on the resolution of trade disputes. The unique features of ADR Centre s Instruments and Rules show that the Centre is different from the regular Multi-Door Court House. There is therefore no doubt that with timely inauguration and overt support of the leadership of the Court, the ADR Centre is well positioned to discharge the mandate of the Court in contributing towards ensuring harmonious industrial relations for the Nation s socio-economic development and growth. 42 The establishment of the ADR Centre can therefore be said to be a step in the right direction towards the attainment of a just, efficient and speedy dispensation of justice in Nigeria. 42 Nelson Ogbuanya- Overview of National Industrial Court s ADR Centre Instrument and Rules 2015, Guardian Newspaper, 26 th January, 2016

8 Bibliography 1. Constitution of the Federal Republic of Nigeria, 1999 (As Amended) 2. National Industrial Court of Nigeria Alternative Dispute Resolution Centre Rules, National Industrial Court of Nigeria Alternative Dispute Resolution Centre Instrument, An Examination Of Laws And Procedures Regulating Trade Dipsutes In Nigeria, By Kannike Lukman Kale, National Industrial Court of Nigeria and the Proposed Alternative Dispute Resolution Centre: A Road Map, By Bimbo Atilola and Micheal Dugeri 6. Court Connected ADR and Industrial Conflict Ressolution: Lessons from South Africa and Guatamela 7. Law and Practice of the National Industrial Court, By Bamidele Aturu 8. Overview of National Industrial Court s ADR Centre Instrument and Rules 2015, By Nelson Ogbuanya 9. National Industrial Court of Nigeria Alternative Dispute Resolutions Centre Rules and Centre Instruments 2015, By Aluko Oyebode & Co. 10. Overview of the Trade Disputes Act and its application to Trade Disputes Settlement in Nigeria, Hon. Justice. Benedict Bakwaph Kanyip, PhD

OVERVIEW OF NATIONAL INDUSTRIAL COURT ADR CENTRE INSTRUMENT AND RULES 2015

OVERVIEW OF NATIONAL INDUSTRIAL COURT ADR CENTRE INSTRUMENT AND RULES 2015 By Nelson Ogbuanya The official inauguration of the National Industrial Court of Nigeria (NICN) s Alternative Dispute Resolution