Law 232

NATIONAL OPEN UNIVERSITY OF NIGERIA
SCHOOL OF LAW
COURSE CODE: LAW 232
COURSE TITLE: LABOUR LAW II
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SCHOOL OF LAW
NATIONAL OPEN UNIVERSITYOF NIGERIA
COURSE CODE: LAW 232
COURSE TITLE: LABOUR LAW II
Course Writer MRS. SOIBI GODWIN-CLARK

National Open University of Nigeria
14/16 Ahmadu Bello Way
Victoria Island
Lagos
COURSE EDITOR: Dr. (Mrs.) Erimma Gloria Orie

National Open University of Nigeria
14/16 Ahmadu Bello Way
Victoria Island
Lagos
DEAN: Prof. Justus. A. Sokefun

School of Law, NOUN
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Abuja Office:
No. 5 Dares Salaam Street
OffAminu Kano Crescent
Wuse II, Abuja
Nigeria.
e-mail: [email protected]
URL: www.nou.edu.ng
Published by: National Open University of Nigeria
Printed:
ISBN: 978-058-222-3
All Rights Reserved
Printed by:
2015
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COURSE GUIDE
CONTENTS PAGE
Introduction………...................……………………….……………………… 1
Course Aim………………......................………………………….…………. 1
Course Objectives…………........................………………………………….. 1
Working through this Course……………………...................………………. 2
Course Materials ………………………………...................…...……………. 2
Study Units……………………………………...................……..…………… 2
Text Books and References…………………...................……………………. 3
Assessment ………………………………….....................…………………… 4
Tutor-Marked Assignment………………....................………………………. 4
Final Examination and Grading…………....................………………………. 4
Course Score Distribution…………………...................………………….….. 4
Course Overview/Presentation…………….....................………………….…. 5
How to Get the Most from this Course…………………………..................... 5
Facilitators/Tutors and Tutorials…………………………………....................6
Summary………………………..................…………………………….…..... 7
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Introduction
Labour Law is concerned with the law regulating the affairs of an employee with that of the
employer. The Nigerian Labour Law, as will be seen in the historical aspect of it, was
adopted from the English Legal System based solely onthe fact that we inherited the English
LegalSystem by reason of our affiliation with Englandthrough the instrument of colonialism.
The practice of Labour Law is influenced by the general legal context that prevails in
England.
The major statute that regulates labour law activities in Nigeria is the Labour Act Cap 198,
Laws of the Federation of Nigeria, 2004, while others such as the Trade Disputes Act, the
Workmen’s Compensation Act, Trade Unions Act, and The Factories Act complement it.
The topics in this course are separated into units and generally border on
employee/employers relationship in Nigeria and ancillary issues. They most importantly,
touch upon the underlying features of the above relationship and deal with the practical issues
that may arise as fallout of the implementation of this relationship in reality, its legality and
workability in amodern democracy.
Course Aim
The primary aim of this course is to familiarize the student with the subject matter, deepen
legal understanding and information and assist the student to begin to use legal information
available to him to begin to analyse real life issues that may occur in the work place or within
this relationship.
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Course Objectives
The major objectives of this course is to enable students develop knowledge of the legal
issues guiding the relationship between employee and employer and more specifically to have
access to and knowledge of the following by the end of the course:
(i) All the relevant enactments and legislationsin relation to labour law in Nigeria;
(ii) Identify and understand what the collective bargaining process entails
(iii) Determine the meaning of Collective Agreements
(iv) Understand the nature, legal framework and principles involved in collective agreements.
(v) Analyse and understand the importance of the evolution of the collective bargaining
process in the age of Information Technology.
(vi) Know the basic operational structures of atrade union.
(vii) Know the consequences and advantages inembarking on an industrial action. E.g.
strike, picketing and lock-out.
(viii) Differentiate between TortuousLiability and Trade Dispute.
(ix) Know ways and manners in which disputesarising from employment and trade union
activities are settled.
(x) Know the basic ingredients andoperational effect of the Factories Act.
(xi) Know the implication of the Workmen’sCompensation Act on the contract of
employment, particularly on an employee.
(xii) Identify some agencies and their responsibilities with respect to labour relations
management.
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Working through this Course
To complete this course, you are advised to readthe study units, read recommended books
andother materials provided. Each unit contains Self Assessment Exercise, which you are
expected to attempt to enhance your knowledge. You may be required to submitassignments
for assessment purposes. At the endof the course there is a final examination. Thecourse
should take you about 17 weeks to complete, you will find all the components ofthe course
listed below. You are advised to judiciously allocateyour time to each unit in order to
complete thecourse successfully and on time.
Course Materials
The major components of the course are:
1. The Course guide
2. Study units
3. Textbooks
4. Referred Case Law
4. Assignment File
Study Units
The course is sub-divided into Modules. Each module has within it four study units as
follows:
MODULE 1: COLLECTIVE BARGAINING AND AGREEMENT.
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Unit 1 Collective Bargaining
Unit 2 Collective Agreement
Unit 3 Frame work & Nature
Unit 4 Recognition of Trade Unions & Duty of Disclosure
MODULE 2: TRADE UNIONS.
Unit 1 Formation
Unit 2 Rights & Obligations:
Tortuous Liability
Unit 3 Criminal Liability & Civil Liability (Tortuous Liability):
Unit 4 Settlement of Trade Dispute
MODULE 3: SAFETY AT WORK.
Unit 1 Employers Duty of Care: Protecting Health & Safety
Unit 2 Factories Act
Unit 3 Defences
Unit 4 Workmen’s Compensation Act
Unit 5 Employers Vicarious Liability
MODULE 4: AGENCIES.
Unit 1 Agencies: I.A.P
Unit 2.N.I.C
Unit 3 Industrial Training Fund
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All these Units are demanding. They also deal with basic principles and values, which you
are expected to study and come to terms with.
Tackle them in separate study periods. You may require several hours for each as well as
several references.
We suggest that the Modules be studied one after the other, since they are linked by a
common theme. You will gain more from them if you have first carried out work on the
scope of Labour Law generally. You will then have a clearer picture on which to paint these
topics.
Subsequent Courses are written on the assumption that you have completed these units.
Each study unit consists of one week’s work and includes specific objectives, directions for
study, reading materials and Self Assessment Exercises (SAE). Together with Tutor Marked
Assignments, these exercises will assist you inachieving the stated learning objectives of the
individual units and of the course.
Text Books and References
Certain books have been recommended in the course. You should read them where so
directedbefore attempting the exercise. You should also ensure you read the cases referred to
for a wider and clearer picture of how the law works and more detailed understanding. Also
note that the first class student may also read up on articles and criticisms to have a holistic
and critical understanding of issues !
Assessment
There are two aspects of the assessment of thiscourse, the Tutor Marked Assignments and a
written examination. In doing these assignmentsyou are expected to apply knowledge
acquiredduring the course. The assignments must be submitted to your tutor for formal
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assessment inaccordance with the deadlines stated in the presentation schedule. The tutor
marked assignment currently accounts for 30% of your total score.
Tutor-Marked Assignment
There is a Tutor Marked Assignment at the end ofevery unit. You are required to attempt all
the assignments. You will be assessed on all of them but the best three performances will be
used for assessment. The assignments carry 10% each.When you have completed each
assignment, send it for assessment. Make sure that each assignment reaches your tutor on or
before the deadline. If for any reason you cannot complete your work ontime, contact your
tutor before the assignmentis due to discuss the possibility of anextension.
Extensions will not be granted after the due date unless under exceptional circumstances.
Final Examination and Grading
The duration of the final examination for thiscourse is three hours and will carry 70% of the
total course grade. The examination will consist of questions, which reflect the kinds of self –
assessment exercises and the tutor marked problems you have previously encountered. All
aspects of the course will be assessed. You should use the time between completing the last
unit, and taking the examination to revise the entire course. You may find it useful to review
yourself assessment exercises and tutor markedassignments before the examination.
Course Score Distribution
The following description lays out how the actualcourse marking is broken down.
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Assessment Marks
Assignments 1-4 (thebest three of all the assignments submitted) will be used for your
assessment, as previously stated they account for 30% of the total coursemarks. There is a
written examination at the end of the course which accounts for 70% of your score. The total
course is scored at 100%.
How to Get the Most from this Course
In distance learning, the study units replace the lecturer. The advantage is that you can read
and work through the study materials at your pace, and at a time and place that suits you
best. Think of it as reading the lecture insteadof listening to a lecturer. Just as a lecturer
might give you in-class exercise, your study units provide exercises for you to do at
appropriate times.
Each of the study units follows the same format. The first item is an introduction to the
subjectmatter of the unit and how a particular unit isintegrated with other units and the course
as awhole. Next is a set of learning objectives.These objectives let you know what you should
beable to do by the time you have completed the unit. You should use these objectives to
guideyour study. When you have finished the unit, you should go back and check whether
you have achieved the objectives. If you make a habit of doing this, you will significantly
improve your chances of passing the course.
Self Assessment Exercises are placed throughout the units. Working through these
tests will help you to achieve the objectives ofthe unit and prepare you for the assignments
and the examination. You should do each Self Assessment Exercise as you come to it in the
study unit. There will be examples given in thestudy units. Work through these when you
havecome to them.
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Facilitator/Tutors and Tutorials
There are 15 hours of tutorials provide insupport of this course. You will be notified of
the dates, times and location of these tutorials, together with the name and phone
number of your tutor, as soon as you are allocated a tutorial group. Your tutor will access you
and comment on your assignments, keep a watch on your progress, and on any difficulties
you might encounter and provide assistance to you during the course. Where assignments are
given, you must send your completed work to your tutor well before the duedate. They will
be accessed by your tutor who will communicate with you and revert to you as soon as
possible.
Do not hesitate to contact your tutor by telephone or e-mail if you need help. Contact
your tutor if:
1) You do not understand any part of the studyunits or the assigned readings;
2) You have difficulty with the self assessment exercises;
3) You have a question or a problem with an assignment, with your tutor’s comments on an
assignment or with the grading of an assignment. You should try your best to attend the
tutorials. This is the only chance to have face-to-face contact with your tutor and ask
questions which are answered instantly. You can raise any problem encountered in the course
of your study. To gain the maximum benefit from course tutorials, prepare a question list
before attending them. You will gain a lot from participating actively.
Summary
This course deals with Labour Law which is concerned with the law regulating the affairs of
an employee with that of the employer. The course is separated into modules and further
separated into study units for easy assimilation. The totality of the course revolves around the
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employee/employers relationship in Nigeria, what may influence its form and content as well
as how real life situations are possibly tackled.
We wish you success with the course and believe that it will be not only interesting but
ultimately useful in the pursuit of your career or life’s endeavours.
CONTENTS PAGE
Module 1: Collective Bargaining and Collective Agreement......................………….…. 1
Unit 1 Collective Bargaining.....................................………………………….........……. 13
Unit 2 Collective Agreement…………….................................................………………… 19
Unit 3 Framework and Nature…......................................…………………….........……….27
Unit 4 Recognition of Trade Unions & Duty of Disclosure.....................……...……….......32
Module 2: Trade Unions.........................................................................………………… 34
Unit 1 Formation …………….......................................……………....................... …….. 34
Unit 2 Rights and Obligations……….........................................………………………...... 39
Unit 3 Criminal Liabilityand Civil liability……………...............................…....……….. 47
Unit 4 Settlement of Trade Dispute ……….....................................…..………….........… 55
Unit 5 Conciliation and Arbitration....................................................................................62
Module 3: Safety and the workplace…...................................………………… … 67
Unit 1 Protecting Health and Safety.........……….........................................…………….. 67
Unit 2 Liability.................................................……………...................................……… 73
Unit 3 Defences &Factories Act..................................………………….........................…80
Unit 4 Workmen’s Compensation Act & Reforms.............................................................85
Unit 5 Employers Vicarious Liability.................................. ….……………............ …….. 97
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Module 4: Agencies:………………………...................................……………….......……
104
Unit 1 I.A.P .................................……….........................................……………. ............104
Unit 2 N.I.C….………………….…......................................……………………..............108
Unit 3 I.T.F ......................................................................................................................116
MODULE 1 COLLECTIVE BARGAINING AND COLLECTIVE AGREEMENT.
Unit 1 Collective Bargaining Collective Agreement
Unit 2 Collective Agreement
Unit 3 Frame work & Nature
Unit 4 Recognition of Trade Unions and duty of disclosure
UNIT 1 COLLECTIVE BARGAINING
CONTENTS
1.0 Introduction
2.0 Objective
3.0 Main Content
3.1 Properties of Collective Bargaining
3.2 Legal Status of Collective Bargaining
3.3 Legal Effect of a Collective Bargain on a Contract of Employment
4.0 Conclusion
5.0 Summary
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6.0 Tutor-Marked Assignment
7.0 References/Further Readings
1.0 INTRODUCTION
Collective Bargaining is defined as any agreement made in whateverway and in whatever
form by and on behalf of trade unions and employers. It is also the process through which the
antithetical interests of employers and employees are harmonized through discussions and
negotiations.
2.0 OBJECTIVES
The purpose of this unit is to show the importance of collective bargaining. Understand the
legal implication of a collective bargain and the legal effect of a collective bargain on an
employment agreement.
3.0 MAIN CONTENT
3.1: Properties of Collective bargaining
Consists of negotiations between an employer and a group of employees so as to determine
conditions of service.1 Employees are often represented in bargaining by an elected group or
body, called a union or other labour organisation. Collective bargaining is usually regulated
by federal laws and by administrative agency regulations and judicial decisions.2 Employees
generally have a right to collectively bargain and join trade unions and this is generally
applicable to both public and private sector. It may be defined as the process of working out a
modus operandi between two parties - employer and trade union organizations in matters
1
See the following for further information: Cornell law dictionary, legal dictionary (thefreedictionary.com). See
also Essentials of Employment Law by David Lewis and Malcolm Sargeant.
2
Cornell law dictionary
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relating to both parties.3 Or it may be seen as the process through which a Labour Union and
an employer negotiate the scope of the employment relationship. Its ultimate goal is entering
into a collective bargaining agreement. This will typically contain but not be limited to the
following: wages, work hours, benefits, handling of disputes, other employment terms and
employment centred issues. The agreement, in and of itself cannot be completely exhaustive,
thus, it may be and oftentimes is usually read in conjunction with established customs and
practices (written and unwritten) and informal agreements. It is however noteworthy that it is
limited in scope and authority by enactments, thus it would be limited by the act and also in
scope, to the extent that it cannot accomplish what the law would ordinarily prohibit by
agreement or deny for instance employees of rights they would otherwise enjoy under law. It
cannot also be used to waive rights or obligations imposed by law on other parties. For
example, an employer cannot use collective bargaining to reduce the level of safety standards
it must follow with regards to a particular profession.
Professor Egerton E. Uvieghara however notes that the basic aim of collective bargaining is
to encourage negotiation and eventual enforcement among parties.
One very important major aspect of this concept is that the terms ofemployment are usually
contained in those rules which regulate suchmatters as wages, hours of work, holidays,
holiday pay, sick pay, overtime and redundancy. However, the procedural function of this
concept has been subdivided into the various heads that form the main body of this unity.
3.2 Legal Status of a Collective Bargain
In an early study on the concept of collective bargaining in England4,collective bargaining
was described as the main instrument used by employees and government institutions in
3
Cornell law dictionary
4
‘Collective Bargaining: A case study’ Sydney & Beatrice 1891
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industry to sort out their differences through negotiations which ultimately enabled them to
achieve a compromise between the claims of employers and their perceived right to exercise
unilateral control over the employment environment and employees during and after work
hours.
Under Nigerian law, the Labour Act describes collective bargaining as the process of arriving
at collection agreements. Collective bargaining represents the backbone of the employer-
employee relationship. It is widely accepted as the most important instrument for the
determination of wages, employment conditions and the regulations of the employer
-employee relations. In practice, collective bargaining is a process of obtaining concessions
and reaching compromises on employment and working conditions. As a tool for the practice
of Industrial Relations, collective bargaining may be interpreted as a process of interest
accommodation through direct or indirect bipartite and tripartite negotiations.
In its narrow sense, it may be viewed as a process of negotiation between employers
individually or as a group, and trade unions. The outcome of such negotiations is an
obligatory document, a collective agreement that determines wages and other conditions of
work. Importantly, the concept of collective bargaining has expanded considerably in recent
years to encompass more than just the negotiation of collective agreements. It involves a
continuous process of discussion, consultation and bargaining between employers and
workers on a wide framework of economic policies globally.
Though Collective bargaining constitutes an important means by which workers seek to
satisfy their economic and social interests and is seemingly crucial to the attainment of
industrial peace in Nigeria. A collective bargain in and of itself though highly persuasive in
reaching future agreements and interpreting the terms of a collective agreement is not legally
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enforceable. It may at best be submitted as evidence to support proof of the intention of the
parties to the bargain.
Nigeria Labour Law provides for automatic recognition of trade unions for collective
bargaining purposes (see the Labour Act). This means that the employer must recognize
registered trade unions in his establishment and bargaining with such unions in their bid to
safeguard their economic interests in employment. The duty to recognise a trade union is
conterminous with the duty to negotiate with it and conclude agreements.
Thus, a refusal by an employer to recognise and bargain with a union or adhere to the
agreement arrived at could lead to strikes by workers to realize such improvements in
working conditions.
SELF ASSESSMENT EXERCISE 3
Are collective bargains legally enforceable? Give reasons and authorities for your answer.
3.3 Legal Effect of a Collective Bargain on a Contract of Employment
The collective bargain often defines the frame work for a collective agreement. It is the basis
on which a collective agreement is reached and entered into between the parties to the
negotiations. Though the process itself maybe sometimes involuntary5 it is the forum by
which parties to the negotiation ‘voluntarily’ reach agreement on a wide range of ‘employee-
employer’ issues which most probably will not be accomplished by one-on –one bargaining.
Members of a union or a profession who are not parties to the collective bargaining process
can ordinarily benefit from and enjoy the duties, responsibilities and benefits accruing from a
collective bargaining process once an agreement has been reached by incorporation of the
provisions into their contracts of employment. It is noteworthy that incorporation maybe
5
One party's failure to reach agreement entitles the other to resort to certain legal tactics, such as strikes and
lockouts, to apply economic pressure and force agreement.
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express, implied or bystatute. See: In U.B.N. LTD v. EDET [1993] 4. N.W.L.R {part 287}
288.
4.0 CONCLUSION
The basis of collective bargaining as a concept in labour law has beengiven an expository
approach in this unit and students are well equipped, going by the various discussions offered
so far.
5.0 SUMMARY
This unit has dealt with the following points:
1. Various definitions of a collective bargain.
2. Its importance.
3. The legal position and effect of a collective bargain.
4. The effect of a collective bargain on an employment contract.
5. required elements to the recognition of an agreement
6.0 TUTOR-MARKED ASSIGNMENT
1. What do you understand by the concept of collective Bargaining?
2. Who are the likely parties of a collective Bargain?
3. What is the likely content of a collective bargain?
4. What are the possible legal limits of collective bargains?
4. Collective bargains are instruments of influence and have no legal implication, discuss this
statement.
7.0. REFERENCES/FURTHER READINGS
David Lewis & Malcolm Sargeant: Essentials of Employment Law.
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OGUNNIYI O., (2004). Nigeria Labour and Employment Law inPerspective, 2nd ed, Folio
Publishers, Lagos.
AtoyebiKehinde .O,Ogundeji, Musibau .O,Adekunjo Felix .O, KadiriKayode
Ibrahim,Taofiq Omotayo .O: IOSR Journal of Humanities and Social sciences. ISSN: 227-
0837, ISBN: 2279-0845 vol 13, Issue 6 (Nov-Dec.2013), pp 18-23.
ADEOGUN A. A. (1969) “The Legal Framework of IndustrialRelations in Nigeria” Nigeria.
Law Journal, Vol. 3.
The 1999 Constitution of the Federal Republic of Nigeria.
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UNIT 2:COLLECTIVE AGREEMENT:
CONTENTS
1.0 Introduction
2.0 Objectives
3.0 Main Content
3.1 What is a Collective Agreement?
3.2 Recognition Agreement
3.3 Procedural Agreement
3.4 Parties to a Collective Agreement
3.5 Legal Status of a Collective Agreement
3.6 The Impact of Statute on enforcement of Collective Agreement
3.7 Collective Agreement and Contracts of Employment.
4.0 Conclusion
5.0 Summary
1.0 INTRODUCTION
Collective Agreement: The practise of collective bargaining resulting in collective agreement
has been in existence from as far back as employer and employee relationship existed. It is
generally regarded as an agreement between an employer and a union usually reached
through collective bargaining which establishes wage rates, hours of labour and working
conditions. It has also been defined as6 a written, legally enforceable contract for a specified
period (usually one year), between the management of an organization and its
6
www.businessdictionary .com
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employeesrepresented by an independenttrade union. It sets down and definesconditions of
employment (wages, working hours and conditions, overtimepayments, holidays, vacations,
benefits, etc.) and procedures for dispute resolution. It is also referred to as a
labouragreement, union agreement, or union contract.
2.0 OBJECTIVES
The major aim and objective of this unit is to acquaint the student with a collective
agreement, the parties to the agreement, its legal status, the impact of statute on the
enforcement of collective agreements and the relationship between collective agreements and
the employment contract.
3.0 MAIN CONTENT
3.1 What are Collective Agreements?
They may be regarded as oral or written contracts entered into between an employer or group
of employers and a union that is negotiatingon behalf of all of the employees that the
unionrepresents. In a business context, a collective agreement typically includes any wages,
hours, benefits, rules or working conditions that have been mutually agreed upon. A
collective agreement is statutorily defined as7 any agreement or arrangement made by or on
behalf of one or more trade unions and one or more employers, or employers’ associations,
which relates to one or more of the matters mentioned in S178(2) TULRCA 1992.8
7
Edinburgh Council V Brown (1999) IRLR 208: where an agreement between the employer and the joint
consultative committee constituted a collective agreement.
8
Trade Union and Labour Relations (consolidation) Act 1992.
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3.2 Recognition Agreement:
The fundamental basis of collective agreement is the Recognition Agreement, which deals
first and foremost with the recognition by an employer or association of employers of a
specific trade union or a group of trade unions, as the sole bargaining agent for the employees
within the bargaining unit in relation to terms and conditions of employment.Conversely,
where recognition is not given or is withdrawn, the union will not be able, on behalf of its
members, to bargain with an employee or employers association. In Nigeria, the recognition
of registered trade union is a matter of statutory obligation for employers, provided that a
trade union has more than one of its members in the employment of anemployer.
See. NATIONAL UNION OF GOLD, SILVER AND ALLIED TRADE vALBURY BROTHERS
LTD [1929] I.C.R. 84.
In that case, Eveleish, L.J. held, inter alia, that recognition entailed not merely a willingness
to discuss but also to negotiate, that is, negotiate with a view to striking a bargain.Dispute
may arise in the absence of any clear stipulations in the recognition agreement of matters for
negotiation and for consultation.
See; NIGERIAN BREWERIES LTD v NIGERIAN BREWERIESMANAGEMENT
ASSOCIATION [1978-9] N.I.C.R. [H.I] 35
Explain the basis of Recognition Agreement and its shortfalls, if any.
3.3 Procedural Agreement
Collective agreement includes the machinery for consultation regarding the settlement of
terms, conditions of employment, procedures or stages which the collective parties to the
bargaining must or ought to exhaust before embarking on an industrial action and dismissal
procedures.The procedural agreements otherwise called the Disputes procedures are usually
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worded as follows;“It is agreed that in the event of any difference arising which cannot be
immediately disposed of then whatever practice or agreement existed prior to the difference
shall continue to operate pending a settlement or until the agreed procedure has been
exhausted”A clue from the foregoing example points to the fact that the bane of most
industrial actions embarked upon by labour leaders in Nigeria through the Nigerian Labour
Congress has been as a result of inability of negotiating parties to strike a bargain.
Examine the effect of procedural agreement and the means available before Industrial action
is embarked upon both by the employer’s association and trade union.
3.4 Parties to a Collective Agreement
For an agreement to be valid it requires a minimum of two parties, the issue of collective
agreement is no way different from the doctrine. It is clear that parties to a collective
agreement are the trade union ofemployees and either an employer or an association of
employers.
See; D.C & Co. Ltd v. Deakin (1952) 2 All ER361.
BURTON GROUP LTD v. SMITH {1977] I.R.L.R. 351.
The parties on the employers side would constitute and the following: a union represented by
a trade union, union chambers and on the employee side employee unions e.t.c.
3.5 Legal Status of Collective Agreement
The legal significance of a collective agreement has alwaysbeen uncertain. Some courts have
called it a mere gentlemen's agreement, unenforceable at law; it has been likened to a treaty
between parties that becomes enforceable by the parties themselves taking steps to execute it
and give it the characteristics of a legally enforceable document. It has been viewed rather, as
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a mere schedule of terms andcommitments, which become part of the individual workers'
contracts of employment, whether or not they belong to the union.
Insofar as the collective agreement is a contract at all, it has to be one between the employer
and the union. This has led to confusion, since most unions are not incorporated and
thuscannot be legal parties to contracts. And if they are not legally recognized parties, they
cannot act as plaintiffs in law suits to enforce these so-called contracts; nor can they be sued
on them.
In recent years, however, collective agreements are beginning to be recognized
as legally binding contracts.
This development means that unions may secure rights for themselves in contracts, over and
above the rights secured for their constituents, with the legal power to sue for the
enforcement ofthese rights. This recognition of unions as legal persons, capableof acting as
parties to contracts and lawsuits, has largely beenthe result of legislation.
A collective agreement is presumed not to be a legally enforceable contract by the parties,
unless the agreement is in writing and contains a provision that the parties intend for it to be
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legally enforceable. The parties may declare that only one or more parts of the agreement
are intended to be legally enforceable.10 It should not be assumed that a collective agreement
is legally binding simply because it declares the parties intention to create legal relations due
to the existence of vague or uncertain contracts.
The fundamental question to be asked under this head is “Are collectiveagreements legally
enforceable contracts or are they only binding inhonour?” In other words, can a trade union
or either an employer or an employers’ association legally enforce a collective agreement to
9
S179(1) TULRCA 1992.
10
S179(3) ‘’
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which it is a party? It is submitted that in the absence of statutory imposition of enforceability
of collective agreement or where such intention cannot be discerned by the court, such an
agreement will not be enforced.
Several judicial pronouncements have been made on this issue but the locus classicus is
FORD MOTOR CO.LTD v. AMALGAMATED UNIONOF ENGINEERING AND FOUNDRY
WORKERS {1968] 2.Q.B.303,were it was held, inter alia, that collective agreements
themselves cannotbe termed as contracts in law as the parties do not intend to be legally
bound by it.
Are collective agreements legally enforceable?
What is the legal relationship between a collective agreement and a contract of employment?
3.6 The Impact of Statute on the Enforcement of CollectiveAgreement
The primary law governing trade disputes in Nigeria is the Trade Unions Act, Cap 437, Law
of the Federation of Nigeria, 1990. Students are enjoined to read and digest the provision of
section 22(1),(2) and (3) of the Trade Union Act, 1990.
However, the general purpose of this provision of the law is that any collective agreement
between two trade unions may constitute a valid contract where the parties so intend.
Therefore, the basic element to be considered in circumstances where the question of the
ability to bind and the enforceability of agreement between two trade unions arises is that of
intention of the parties and the statute books.
3.7 Collective Agreements and Contracts of Employment
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The question most frequently asked is; can an employee directly enforce the terms of a
collective agreement, though he was not a party to it?In U.B.N. LTD v. EDET [1993]
4.N.W.L.R {part 287} 288, the plaintiff contended that her dismissal was wrongful because it
was in breach of a collective agreement between her employer and her trade union. It was
held, inter alia, that it is not for an individual employee to found acourse of action on the
agreement to which she was not a party.
However, the court, in that same case, propounded the three methods of effecting such
agreement provided it was incorporated into the contract of employment between the
employee and the employers as follows:
1. Express Incorporation.
2. Implied Incorporation.
3. Incorporation by statutes.
The above exceptions are easily discernible and understandable in viewof the facts that these
concepts have been discussed earlier.
SELF ASSESSMENTS EXERCISE 4
Discuss the rule in U.B.N LTD v. EDET (Supra)
4.0 CONCLUSION
The basis of collective agreement has been explained in detail and the student is expected to
have come to grasps with the rudiments there of.
5.0 SUMMARY
This unit has dealt with the following points:
1. The meaning of a collective agreement.
27
2. The required elements to the recognition of an agreement
3. The procedural effects of an agreement
4. The recognized parties to a collective agreement
5. The legal Status of collective agreement
6. The impact of status on the enforcement of collective agreement
7. The distinguishing factors and exceptions in collective agreementsand contracts of
employment.
1. What do you understand by the concept of Collective Agreement
2. Who are the recognized parties to a Collective Agreement.
3. Are Collective Agreements legally enforceable.
4. State and examine the Impact of that on the enforcement ofcollective agreement.
5. Discuss the exceptions to the enforceability of collective agreementsby an employee under
a contract of employment.
7.0. REFERENCES/FURTHER READINGS
OGUNNIYI O., (2004). Nigeria Labour and Employment Law in Perspective, 2nd ed, Folio
Publishers, Lagos
ADEOGUN A. A. (1969) “The Legal Framework of Industrial
Relations in Nigeria” Nigeria. Law Journal, Vol. 3.
The Labour Act of Nigeria
The 1999 Constitution of the Federal Republic of Nigeria.
Unit 3 FRAME WORK AND NATURE:
28
CONTENTS
1.0 Introduction
2.0 Objectives
3.0 Main Content
3.1 Legal Framework of Collective Agreements
3.2 Employers Associations
3.3 Trade Unions
3.4 Recognition of Unions
3.5 Employers duty to disclose.
4.0 Conclusion
5.0 Summary
1.0 INTRODUCTION
Collective bargaining, in reality forms the substitution of bilateral for unilateral decisions in
the field of management of labour relations. It normally leads to a collective labour
agreement between the negotiating parties. The entire process, from the union's demands to
enforcement of the contract, occurs in acomplicated cocktail of law versus reality and
practicality.
Many are impatient with the law, saying that it defeats the purpose of true collective
bargaining especially in Nigeria where government institutions have found a way to
circumvent the formation of trade unions by their workers! But allconflicts of interest must be
governed by laws of some kind.This is especially true of the struggle for power going on
within the labour relations arena. The law must set a limit on the manner in which this
29
struggle is conducted. Then it must define the proper objectives of this conflict for power.
Most people probably do not think of collective bargaining as recourse to economic
pressures. But the union's best bargaining tools are the strike, the boycott and the picket line
all with resultant and clear economic repercussions. It is this process that is defined as the
legal framework of collective bargaining and its resultant collective agreement.
2.0 OBJECTIVES
The major aim and objective of this unit is to familiarise the students with the nature, scope
and the legal frame work of a collective agreement.
3.0 MAIN CONTENT
3.1 The legal framework of the collective agreements:The ideology seems to be that
management has it to give and the employees have it to get; and thatthe unions are there to
see that they get it. This implies thatthe recognised parties to the agreement are
i. management and
ii. the unions and that anything they agree upon is all right.
The bargaining process is seen as a compromise between management willingness, based on
the ownership and control of property and the union’s monopoly of labour on the other. The
agreement represents the whittling down of management's rights due to collective bargaining.
Most of these concessions are made on behalf of the employees, to govern the terms of their
personal contracts of employment, andare not promises of benefits to the union in reality. The
only advantage to the unions perhaps is recognition, some form of union security and the
right to initiation fees and union dues, with possible controls over apprenticeship. For
30
breaches of these commitments, unions have been permitted to maintain actions against
employers, including suits.The employees themselves have to sue for the enforcement of the
other terms of these agreements, concerning wages, seniority e.t.c.
3.2 Management
Management is the group responsible for the profitable operation of production and
distribution systems within the economy. Thus it represents all those who live by wages and
salaries earned from employment in production and distribution enterprises. Thus the
relationship of trust fostered on ‘management’ involves them in a very high level of
responsibility towards the entire economy including employees, employers and all ancillary
stakeholders and in the discharge of this responsibility, ‘management’ cannot insist on the
freedom to do what it finds most convenient thus the need for a legal regulatory framework.
This includes aspects such as:
i. The protection of individual workers from arbitrary treatment
ii. Bargaining within the laws and rules that guide development of employers
associations, administered prices, labour monopolies, industry wide bargaining
and wage pattern setting.
iii. The protection offered by ‘amici curiae’.
iv. Application of good faith in bargaining by both parties.
v. The duty of disclosure.
vi. Enforceability or otherwise of parts of the agreement.
1. Who is management?
2. Why is it necessary that their responsibility be regulated by legal framework?
3.3 Employers Associations.
31
An Employers association is an organisation that consists wholly or mainly of employers of
individual proprietors whose primary purposes include regulation of relationships between
employers and workers. Or organisations and representative wholly or mainly of constituent
or affiliated with the above purposes.
3.4 Trade Unions
Trade Unions have been denied as organisations whether permanent or temporary which
consist of workers whose primary purpose includes but is not necessarily limited to the
regulation of relationships between workers and employers or employers’ associations or
constituent or affiliated organisations with those purposes or representatives of such
organisations. See the Labour Act.
A trade union cannot take any step for the purposes of which it has beenformed unless it has
been registered. Although the Trade Union Actdoes not expressly vest corporate personality
on a trade union, thequestion, nonetheless is whether a trade union is, by indications a legal
entity.
One of the fundamental attributes of a legal entity is the ability to sueand be sued. The
English House of Lords held in TAFF VALE RAKWAYCO. v. AMALGAMATED SOCIETY
OF RAILWAY SERVANTS {1901}AC.426 that:
If the legislature has created a thing which can own property, which canemploy servants, and
which can inflict injury, it must be taken to haveimpliedly given the power to make it suitable
in a court of law forinjuries purposely there by its authority and procurement “There has not
been any dissenting view or opinion on this subjectinvolving trade unions both in England
and in Nigeria since the decisionin the case cited above and this is indicative of the fact that
given theright and adorations of a registered trade union, a refusal to call it a
“legal entity” may be the result of a mere dislike of a terminology.
32
4.0 CONCLUSION
This unit has educated the student about the nature and scope of a collective agreement as
well as the legal framework within which it is set. It has also introduced the student to
Employers associations and Trade Unions.
5.0 SUMMARY
This unit has dealt with the following;
1. The legal framework of collective agreements.
2. The importance of the Legal framework with respect to management/employers and
the need for regulatory frame work.
3. Employers associations
4. Trade Unions
1.Discuss the importance of the existence of a legal framework in the regulation of collective
agreements.
2. What are trade unions?
7.0 REFERENCES/FURTHER READINGS
Essentials of Employment Law David Lewis and Malcolm Sargeant
The Nigeria Labour Act.
Ogunniyi O, (2004). Nigerian Labour and Employment Law inPerspective, 2nd ed., Folio
Publishers: Lagos.
UNIT 4: RECOGNITION OF TRADE UNIONS & DUTY OF DISCLOSURE.
CONTENTS
33
1.0 Introduction
2.0 Objectives
3.0 Main Content
3.1 Recognition of Trade Unions
3.2 Employers duty to disclose
4.0 Conclusion
5.0 Summary
6.0 Tutor-Marked Assessment
1.0 INTRODUCTION
An independent trade union must be recognised by the employer to benefit from union rights.
Recognition in relation to trade union means the recognition by an employer or two or more
associated employers for the purpose of collective bargaining. 11“
2.0 OBJECTIVES
This unit will discuss the meaning of recognition a few of its implications and the duty of the
employer to disclose.
3.0 MAIN CONTENT
It means the acknowledgement of the Union by an employer or two or more associated
employers to any extent for the purposes of collective bargaining. The question of recognition
is one for the employment tribunal or courts to decide. It may be inferred from consultations
on discipline and or facilitation for union representatives despite the absence of a formal
agreement.
See: NUGSAT V ALBURY BROS (1978) IRLR 504.
11
NUGSAT V ALBURY BROS (1978) IRLR 504
34
See: J WILSON AND ALBURY BROS V USDAW (1978) IRLR 20. See Essentials of
Employment Law David Lewis and Malcolm Sargent. 9th Ed. 265, 266& 270statutory
recognition procedures, request for recognition and when negotiation fails, de-recognition.
Examine the case of NUGSAT V ALBURY BROS.
3.2 Employers Duty to disclose.
Both parties have a duty to disclose to their various representatives on request, all such
information relating to their undertakings as is in their procession or that of any employee or
employer. Any undertakings without which the union representative would be to a material
extent impeded in carrying out such collective bargaining and any information which it
would be in accordance with good industry relationship practise to disclose ought to be
disclosed by the parties.
The Union has a right to information on matters not directly connected with the bargain but it
must relate to matters in respect of which the Union is recognised.
In R v CAC ex parte BTP Tioxide (1982) IRLR 61, the High Court held that the CAC had
misdirected itself in concluding that the union was entitled to information relating to a job,
evaluation scheme in respect of which it had no bargaining rights but only the right to
represent itself and its members. Information to be disclosed must be relevant and important.
See: Essentials of Employment Law David Lewis and Malcolm Sargent. 9th Ed. Good
practise, where disclosure may lead to substantial injury, redress to unions for failure to
disclose.
35
1. Discuss the implications of non disclosure by the employer.
4.0 CONCLUSION
There are various duties and regulations that guide the acts of the employer and the trade
union’s relationship. The purpose is to achieve an aim to that is beneficial to boththe
employee and the employer.It is important comes to grasps with not only the terms and their
meanings but is able to analyse their implications for addressing legal challenges.
5.0 SUMMARY
2. Recognition and its implications
3. Employer’s duty to disclose.
1. Explain the term recognition.
2. What is the significance of an employer’s breach of his duty to disclose?
Essentials of Employment Law David Lewis and Malcolm Sargent
Ogunniyi O, Nigerian Labour and Employment Law in Perspective, 2nded., Folio Publishers,
Lagos (2004).
MODULE 2 TRADE UNIONS
UNIT 1: FORMATION
CONTENTS
1.0 Introduction
2.0 Objectives
3.0 Main Content
3.1 Definitions
36
3.2 What are Trade Unions?
3.3 Formation and Registration of Trade Union
4.0 Conclusion
5.0 Summary
UNIT 1
1.0 INTRODUCTION
The doctrine of unionism has been in existence from time immemorial.It has been
functioning in various fields of human endeavour, includingprofessional bodies, artisans and
others. The aim of the association orunion in most cases often include (but not limited to) the
regulation ofconduct and affairs of its members. In the same vein, employers oflabour do
form associations and unions for the purpose of protectingtheir various interests’ in their
relationship with their employees whousually, like their employers; do form associations and
unions for thepurpose of protecting their interests under their various contracts of
employment. This is the basis of the establishment and formation ofTrade Unions.
2.0 OBJECTIVES
The major aim and objective of this unit is exposing to the student thereal reasons why we
have Trade Unions as a concept in labour law in Nigeria. It will further state the major
particulars in relation to the law that provide for the formation of Trade Union in Nigeria.
Attempt will also be made at going to the rest of the formation and registration of trade Union
with a view to establish their legal status and so much more.
3.0 MAIN CONTENT
3.1 Definitions:The parent law for the establishment of Trade Unions in Nigeria is the
37
Trade Unions Act, cap.432, laws of the federation of Nigeria, 1990.Trade union is defined by
the act in section 1 (1) as“Any combination of worker or employer, whethertemporary or
permanent, the purpose of which is toregulate the terms and conditions of employment of
workers, whether the combination in question would orwould not, apart from this Act, be an
unlawfulcombination by reason of any of its purposes being inrestraint of trade, and whether
its purposes do or do notinclude provision of benefits for its members.”From the foregoing
definition two conditions must exist for the purposeof determining whether an association,
for purposes of registration, qualifies to be treated as a trade union. These are that the:
1. Association must comprise workers or employers; and
2. Main or principal purpose of the association must be to regulate the terms and conditions
of workers.
1. Association of Workers
From the above definition only an association of workers or employers is registerable as a
trade union. By the provisions of Section 52 of theTrade Unions Act, of a worker means,
“Any employee, that is to say any member of the publicservice of the federation or of a state
or any individual (other than a member of any such public service) who hasentered into or
works under a contract with an employee,whether the contract is for manual labour, clerical
workor otherwise, expressed or implied, oral or in writing andwhether it is a contract
personally to execute any work orlabour or a contract of apprenticeship.”
2. The Principal Purpose
The general principle of law in this regard is that whatever other lawful purposes a trade
union allows itself under its rules book or constitution, its principal or overriding purpose
must be the regulation of terms and conditions of employment of worker. In line with the
general law and by the provisions of section 7(1) (d) ofthe Trade Union Act, where the
principal purpose for which a trade union is being carried on has ceased to be that of
38
regulating the terms and conditions of the employment of worker, the registrar of trade
unions is empowered to cancel the registration of such a union.
The court, in order to determine what the principal purpose of an association is, always
peruse the rulebook or constitution of the association in its totality, especially its objects or
purposes clauses See RE: UNION OF IFELODUN TIMBERS DEALERS AND ALLIED
WORKMEN {1964} 2 ALL N.L.R. 63.
It is also important to point out that the regulation of terms and conditions of employment of
workers may be affected by a trade union through
a) Collective bargaining
b) Industrial actions
1. Define what are trade unions in line with the relevant provision ofthe Trade Union Act,
1990.
2. Examine the two criteria for the registration of a Trade Union.
4.0 CONCLUSION
This unit has exposed the student to the way and manner Trade Unions operate in Nigeria vis-
à-vis the Nigeria Labour Law. Further study ofthe provisions of the law as stated above will
improve the knowledge of the student in respect of Labour Law matters.
5.0 SUMMARY
1. Statutory definition of Trade Unions.
2. Distinguishing factors between association of workers or employees and the principal
purpose.
3. General and statutory requirements for the formation and registration of Trade Union.
39
1. Define Trade Unions.
2. What is Trade Unionism
3. What are the statutory requirements for the formation of a trade union?
Ogunniyi O, (2004). Nigerian Labour and Employment Law in
Perspective, 2nd ed., Folio Publishers: Lagos.
UNIT 2 RIGHTS AND OBLIGATIONS
CONTENT
1.0 Introduction
2.0 Objectives
3.0 Main Content
3.1 Union Membership and Office
3.2 Union Rules Book
3.3 Suspension and Expulsion of Members
3.4 Union Membership and the Rules in FOSS VHARBOTTLE
3.5 Union Membership and Closed Shop
3.6 Exhaustion of Internal Remedies
3.7 Re-Organisation of Trade Unions
4.0 Conclusion
5.0 Summary
40
1.0 INTRODUCTION
Trade unions and occupational associations have a joint responsibility with the employer to
create a workplace free from discrimination.12
i. Unions assist with human rights issues within the employment context.
By:
 guiding a member who has a human rights issue through the employer's internal
complaint resolution process;
 informally assisting members to resolve a complaint;
 advocating with the employer on behalf of the member;
 helping a member file a grievance based on a human rights issue;
 helping a member make a human rights complaint with the Human Rights
Commission; and
 making a policy grievance against the employer on behalf of the union's members.
ii. The union must provide services to all members. A member who has an issue has a
right to full service from the union regardless of what the issue involves. For
instance, the union has a responsibility to help a member who has a mental health
issue access the employer's internal complaint resolution processes and grievance
procedures in addition to making a human rights complaint. Also, a member who
has made a complaint against the union still has the right to the services normally
offered by the union.
12
Note: For ease of reference, the term "union" will be used to encompass trade unions or occupational. The term "member" will be used to
describe a person who is a member of a union or occupational association.
41
iii. Resolution of members complaints. The union can assist with this process by:
 outlining the employer's procedures for resolving a complaint;
 referring the member to the employer’s policy;
 going to any informal meetings with the member;
 advocating with the employer on behalf of the member;
 helping the member to clarify how the alleged discrimination has affected them; and
 assisting the member in identifying potential resolutions.
iv. Dealing with issues between members: Even though a complaint may be initiated by
one union member against another union member, the union still has a
responsibility to ensure that both members are fairly represented. The union may
assist a member who has been terminated based on allegations of sexually
harassing behaviour, while at the same time assisting the person who has alleged
harassment. In some cases the union has decided to represent a member in one
aspect of their grievance, while refusing to grieve another aspect, such as the
harassment issue. The union should consult its legal counsel on the duty to fairly
represent members before making a decision on how to handle a case involving
conflicting interests. The union, along with the employer, must remember its duty
to create a discrimination-free work environment.
v. A union can assist a member who has potentially been discriminated against by:
 keeping an open dialogue;
 making sure the member is aware of meetings and decisions that affect their interests;
 consulting with the member about their needs; and
 referring the member immediately for a consultation with the Commission.
vi. Advocacy: In another situation, a member might need certain accommodations for a
disability. The union can help the member clearly express their accommodationneeds.
42
Other union members and co-workers may need education and information about the duty
to accommodate to understand why a member is being accommodated. An open line of
communication between affected individuals will help the union get the necessary
information to resolve the issue.
vii.Retaliation
A union may not retaliate against a member for making a complaint
2.0 OBJECTIVES
The major aim and objective of this unit is exposing to the student the real reasons why we
have Trade Unions as a concept in labour law in Nigeria and explain the rules, duties and
obligations of trade unions as permitted under the Nigerian Law. The formation and
registration of trade Union within the Nigerian Law will also be discussed.
3.0 MAIN CONTENT
3.1 Union Membership and Office
See – Sec. 37&40 of the 1999 constitution of Nigerian
See. OSAWE v. REGISTRAR OF TRADE UNION {1985} I.N.W.L.R{PT.4}755.
3.2 Union Rule Book
See Section 4(2) of Trade Union Act, 1990.generally.
The general rule is that a registered trade union has a statutory duty to deliver or send a copy
of its rule to any person on request and on paying of the prescribed fee. However, it is an
offence for any person, with the intent to mislead or defraud, to supply or lend to any member
or prospective member of a registered union a fake copy of it rules. The rules of a registered
trade union constitute a contract between the union and its members. The contract is
exhaustive as to the purposes of the union and the rights and obligations of its members.
43
Therefore, it will be ultra vires the union to do a thing not provided for in its rules, that is, by
the terms of the contract. However, there is a limit as to the kind of contract which a trade
union can by its rules make with its member.
What is the significance of the Union Rule Book?
3.3 Suspension and Expulsion of Members
The authority of a trade union to act on behalf of its members is derivedfrom its rulebook. A
trade union can exercise only those disciplinary measures over its members that are stipulated
in its rules. The following are the criteria required by the courts to hold any of the
disciplinary measures taken by a union against its members;
1. The rules should expressly grant to the Union the power to take thedisciplinary measure in
question.
2. The union must in taking disciplinary measures comply with therules of natural justice, and
with such other procedures stipulated inits rules.
3. Even where there is a power to discipline, the union can only imposethe specific section
stipulated in the rules.
Enumerate and explain the criteria required by the court before disciplinary measures taken
by a union against its members can be upheld.
3.4 Union Membership and the Rule in Foss v. Harbottle
The common law principle settled in FOSS v. HARBOTTLE {1843} 2.Hare 461 states that
where a wrong is done to a company or where thereis an irregularity in its internal
management which is capable of being ratified by a simple majority of the members, the
court will not interfere at the suit of a minority of the members to rectify the wrong or to
44
regularize the irregularity.
This rule has given rise to two other rules which regulate the institutionof actions in respect
of wrong done to a body corporate and otherincorporated associations. These rules are;
1. Actions in respect of wrongs done to a company must be brought bythe company and in its
name.
2. The court will not interfere in respect of actions if the wrong done orthe irregularity
complained of is within the power of the majority torectify.
The exceptions to these rules are the following;
Where the action is brought to restrain the union from ultra vires act.
Where the action is to restrain the union from doing by a simplemajority that which ought
to be done by a special majority the rulewill be excluded.
Where the action is to prevent a fraud on the minority.
Where the action is brought to restrain the invasion or violations ofmembership rights.
Discuss the exceptions to the rule in FOSS v. HARBOTTLE.
3.5 Union Membership and the Closed Shop
The term “Closed Shop” is a colloquialism for “Union ManagementAgreements”, that is,
collective agreement between trade unions andemployers, whereby “employees come to
realise that a particular job is only to be obtained or retained if they become and remain
members ofone of a specified number of trade unions.In pre-entry closed shop, the
prospective employee must first join aparticular union before he could be employed. Further
to this, the employee must join the required union within a short time after acquiring
employment. It is however important to note that in any trade or industry in which the closed
shop operates, the consequences of an employee losing his union membership may be
disastrous to his capacity to earn a living. The concept of closed shop is an aspect of the
45
English Labour Law, which was not incorporated into Nigeria Labour Law. By virtue of
section 40 of the 1999 Constitution of the Federal Republic of Nigeria, the closed shop
concept does not operate in Nigeria.
Discuss the concept of closed shop in relation to Labour Law and TradeUnion.
3.6 Exhaustion of Internal Remedies
Usually, the rules of the union may expressly provide that a “member cannot sue the union
until he has exhausted all internal remediesprovided by the rules”. This provision is
available, to a union member who has a right of action against the union.Where the rules
provide for internal reliefs, an aggrieved member maybe required by the court to exhaust
such domestic relief before he couldbe heard.
There are four exceptions to this rule as follows;
1. If the member can show cause why the court should interfere with the contracted
relationship between him and his union. The court will interfere where a member has been
disciplined in breach of therules of natural Justice.
2. Where non-intervention will result in the deprivation of some special membership right,
e.g. the right to union office.
3. Where the decision of the union is ultra-vires, in which case, there isno decision in law
from which the member would be obliged to appeal against.
4. Where there is no express provision, the courts can readily grant relief without prior
recourse to the domestic remedies.
State the general rule and discuss the exceptions to the exhaustion ofinternal remedies rule in
Trade Unionism.
3.7 Re-organisation of Trade Unions
46
See the following enactments.
1) Time Union Ordinance of 1938.
2) Trade Union {Amendment} Ordinance caps 200 of1958.
3) Trade Union {Amendment} Act of 1978-1978.
4) Trade Union Act, cap. 437, LFN, 1990
5) Trade Unions {Amendment} Decree No. 4 of 1996.
4.0 CONCLUSION
This unit has exposed the student to the way and manner Trade Unions operate in Nigeria vis-
à-vis the Nigeria Labour Law. Further study of the provisions of the law as stated above will
improve the knowledge of the student in respect of Labour Law matters.
5.0 SUMMARY
1. Legal position of Union membership and the office.
2. Purpose and significance of the Union Rule Book.
3. Legal requirements for the suspension and expulsion of members of a trade union.
4. Union Membership and the rule in FOSS v. HARBOTTLE.
5. Union membership and the concept of the closed shop.
6. General rule and exceptions in Trade Unionism.
7. Relevant statutes in recantation to the re-organization of Trade Unions.
Discuss the exceptions to the rule in FOSS v. HARBOTTLE.
Ogunniyi O, (2004). Nigerian Labour and Employment Law in
Perspective, 2nd ed., Folio Publishers: Lagos.
47
UNIT 3 CRIMINAL AND CIVIL LIABILITY
CONTENTS
1.0 Introduction
2.0 Objectives
3.0 Main Content
3.1 The Torts
3.1.1 Conspiracy
3.1.2 Inducing Breach of Contract
3.2 Section 23 of Cap 437
4.0 Conclusion
5.0 Summary
1.0 INTRODUCTION
At common law it is impossible for a trade union to engage in anyeffective industrial
relations activity without falling foul of someestablished legal rule. This unit is meant to deal
with, those areas ofcontracts of employment that may result in tortuous liability either by the
employee solely or on behalf of the employee as distinguishedfrom various liabilities. This
examination will be in relation to tradedisputes as governed and protected by the relevant
statutes.
2.0 OBJECTIVES
This unit deals, first with those common law torts which a trade union,its officials and
members are prone to commit in the cause of anindustrial action.
48
Secondly, it examines the extent of statutory protection afforded to tradeunions and unionists
from those torts, in the prosecution of tradedispute.
3.0 MAIN CONTENT
The main body of this unit has been divided into several segments, forease of reference.
Three basic segments are easily noticeable.
3.1 The Torts
Torts could either be criminal or civil. In this unit therefore, the twotypes shall be discussed
with a view to determining how they relate totrade dispute.
3.1.1 Conspiracy
A. Criminal Conspiracy
In CROFTER HAND – WOVEN HARRIS TWEED CO. LTD v.VELTCH (1942) A.C.435,
Viscount Simon, L. C. stated that;
“Conspiracy, when regarded as a crime, is the agreementof two or more persons to effect
any unlawful purpose,whether as their ultimate aim, or only as a means to it,and the crime is
complete if there is such agreement, even though nothing is done in pursuance of it”.
While at common law, the agreement of two or more persons to do anyunlawful act by an
unlawful means is in itself a crime; in Nigeria, forsuch an agreement to constitute criminal
conspiracy the act done, or themeans adopted by the conspirators must be an offence, defined
and thepenalty for it prescribed, in a written law.
See section 36 (12) of the 1999 Constitution See also AOKO V FAGBEMI {1961} 1 ALL
C.L.R. 400.
See also section 518 A (1) of the criminal code cap 77,L.F.N.1990.
However, it is important to state that offence, under section 518A (1)C.C. does not include an
offence punishable only by a fine. Thus theagreement of two or more members or officials of
a trade union to do anact prohibited by sections 516-518 Criminal Code. “In contemplation
49
orin furtherance of a trade dispute” will not amount to criminalconspiracy if the act is not an
offence punishable with imprisonment.
B. Civil Conspiracy
Conspiracy as a tort has two forms, viz; conspiracy to effect an unlawfulact and conspiracy to
injure. The difference between the civil conspiracy to effect an unlawful act and criminal
conspiracy is that, in the former, the agreement does not constitute conspiracy for the
conspirators to beliable. The conspirators must have done some act in pursuance of their
agreement to the damage of the plaintiff.
On the other hand, criminal conspiracy is constituted by the agreement itself. There is no
defence, at common law, to civil conspiracy to effect an unlawful act. Conspiracy to injure
does not involve the use of any unlawful means, such as crime or tort, in effecting the
purpose of the conspirators; otherwise, it will cease to be conspiracy to injure and might
become criminal conspiracy or other form of civil conspiracy.
Therefore, the conspirators will be liable for the tort of conspiracy to injure if their real or
predominant purpose is to inflict damage on another person in his trade.
3.1.2 Inducing Breach of Contract
There are two major forms of inducement, which may result into breach of contract. There
are direct and indirect inducements.
In direct inducement, the defendant personally intervenes in a contractual relationship by
persuading any of the contracting parties to break his contract with the other party.
In indirect inducement, the defendant does not use personal persuasion on one of the
contracting parties, but either does a wrongful act e.g.commits a breach of contract himself,
or procures a third party e.g. an employee of one of the contracting parties, to commit a
breach of his contract of employment as a result of which one of the contracting
parties are rendered incapable of performing his contractual obligations.
50
The high point of this rule is that in indirect inducement, to make the defendant liable, the
plaintiff must prove inter alia, the unlawful means employed by the defendant while in
indirect inducement; is the personal intervention that is wrongful act.
Elements of the Tort
Three elements must be proved by the plaintiff against the defendant inorder to succeed in an
action for inducing breach of contract.
I. Knowledge and Intention
The plaintiff must prove that the defendant knew of the existences of the contract between the
plaintiff and the third party and intended to induceor procure its breach. It is not mandatory
for the plaintiff to prove thatthe defendant knew the exact terms of the contract.
II. Interference
The plaintiff must also prove that the action of the defendant which constitutes the undue
interference which induces the other contracting party was responsible for his action which
caused the breach of thecontract between them. A mere call for help would not be sufficient
inducement while the offer of a higher pay by the defendant will be inducement or
interference which may procure the breach.
III. Breach and Damage
The plaintiff must also prove that the inducement or interference causeda breach of contract
and that he has suffered damage consequently.
Defences
Some of the defences available to a defendant in tortuous liability in respect of trade dispute
is as discussed hereunder;
I. Justification
At common law justification is a defence to the tort of inducing breachof contract. The
defence consists in the admission of the act complainedof but with the plea that the defendant
51
was justified in action as he didand ought reasonably to be exercised having regard to the
surrounding circumstances.
Justification is a defence to the tort of conspiracy to injure, if the predominant purpose of the
conspirators, (who are usually officials and members of a trade union) is not to injure the
plaintiff but to forwardand protect their legitimate interests. However, trade union’s interests
have not been accepted by the courts as a justification for the tort ofinducing breach of
contract.
II. Statutory Defences
See generally section 43(1) of the Trade Union Act, cap 437.
Note: that for this defence to be negated it must be proved that;
a) The tort was committed in contemplation or in furtherance of a trade dispute.
b) The contract breached by the inducement was a contract of employment. Breach of any
other form of contract will not be protected.
III. Intimidation
The general position of the law in respect of this defence is that it iswhat the defendant has
threatened to do that determines whether the tortof intimidation has been committed or not. If
what the defendant hasthreatened to do is unlawful, he would be liable to the party who has
suffered damage as a result of the person threatened complying with the threat. However, if
what the defendant has threatened to do is what he has aright to do, that is, when no unlawful
means is involved, he would not have committed the tort of intimidation even though a party
has suffered damage as a result of the person threatened complying with the threat.
1) Define conspiracy in relation to trade dispute.
2) Differentiate between civil and criminal conspiracy with respect to trade dispute.
3) Examine the features of inducing a breach of contract.
52
4) Examine the elements of the tort and available defence to adefendant.
3.2 Section 23 of Cap 437
The Trade Union Act, cap 437, LFN, 1990 provides a variety ofprotection to unionists in the
exercise of their rights and protection oftheir members. Of particular importance is the
protection granted by section 43(1) of the Trade Union Act. In the same vein, section 23 of
the Act provides the union absolute immunity from tortuous liabilities provided, the liabilities
arose from torts committed in contemplation or in furtherance to a trade dispute.
Sec. 23(1) of the Trade Union Act reads;“An action against a trade union {whether of
workers oremployers} in respect of any tortuous act alleged to havebeen committed by or on
behalf of the trade union incontemplating or in furtherance to a trade dispute shallnot be
entertained by any court in Nigeria.”
The following points are deducible from the foregoing provision:
I. It is the trade union as a registered association under the tradeunions Act that is protected-
agents of the union whether officialsor members are not protected.
II. The section protects the union whether it is being sued in itsregistered name or in a
representative capacity.
III. The section does not debar a trade union from suing for tortscommitted against it.
IV. The section affords protection only when a trade dispute iscontemplated or being
furthered.
SELF ASSESMENT EXERCISE 2
What is the legal effect of the provision of section 23(1) & (2) of the
Trade Union Act, cap 437, LFN, 1990 with respect to protection grantedto unionists?
53
4.0 CONCLUSION
In this unit, we have been able to see what usually constitutes tortuous liability. We have also
been able to know what trade dispute is vis-a-vis the relevant defence to such disputes
asprovided by the enabling statute.
5.0 SUMMARY
Through this unit, efforts have been made to expand the knowledge of the student with a
view of problems when it comes to the point of implementation of the terms. By this unit,
student should understand:
1) Basic concept of torts in relation to trade dispute and trade unionism
2) Differences between criminal and civil conspiracy
3) Elements of the torts of conspiracy
4) Available choices for the defendant
5) Meaning of trade dispute
1) Define conspiracy in relation to trade dispute.
2) What is trade dispute?
3) Examine the elements of the tort of conspiracy and the available
Differences to a defendant.
Ogunniyi O. (2004). Nigeria Labour and Employment in Perspective,
2nd Ed, Folio Publishes Ltd, Ikeja, Lagos.
Workmen’s Compensation Act, Cap 70 LFN 1990.
Trade Dispute Act, Cap 432 LFN 1990.
54
UNIT 4 SETTLEMENT OF TRADE DISPUTES
CONTENTS
1.0 Introduction
2.0 Objectives
3.0 Main Content
3.1 The Parties
3.2 Arbitration
3.3 The National Industrial Court
3.4 The Jurisdiction of the Court
3.5 Enforcement of the Award
4.0. Conclusion
5.0. Summary
6.0. Tutor-Marked Assignment
7.0. References/Further Readings
1.0 INTRODUCTION
The purpose of this unit is to examine the various modes or means bywhich disputes arising
from industrial relations are settled. This is aimed at reviewing the enabling laws connected
thereto.
2.0 OBJECTIVES
The relevant and most prevailing statute in relation to trade disputes isthe Trade Disputes
Act, cap 432, LFN, 1990. The statute has by itsrelevant provisions laid down the rules to be
followed in case of anindustrial dispute and the likely consequences in the event of
nonconformity with these rules. This unit is meant to discuss the various modes or means of
settlementof industrial disputes, their advantages, disadvantages and suggestions for
improvement.
55
3.0 MAIN CONTENT
The basic law in relation to settlement of industrial or trade dispute isthe provision of section
17(1) of the Trade Disputes Act, cap 432, LFN,1990. This section provides that;
“An employee shall not declare or take part in a lock –out and a worker shall not take part in
a strike inconnection with a trade dispute where.”
a) The procedure specified in section 3 or 5 of this Act has not been complied with in relation
to the dispute; or
b) A conciliator has been appointed under section 7 of this Act for the purpose of effecting a
settlement of the dispute; or
c) The dispute has been referred for settlement to the industrial panel under section 8 of this
act, or
d) An award by an arbitration tribunal has become binding undersection 12 (3) of this act; or
e) The dispute has subsequently been referred to the National Industrial
Court under section 13(1) or 16 of this act; or
f) The National Industrial court has issued an award on the reference.
Section 17 (2) provides for the punishment of anyone who contravenes
the provision of section 17 (1) of the act.
3.1 The Parties
The existence of a dispute or disagreement necessarily means that thereare parties to the
dispute or disagreement. Normally, it requires a minimum of two parties to a dispute. In the
case of industrial disputes, itcould arise between employer and worker or workers inter se.
Section 52 of the trade Union Acts defines a “worker” and a similar definition is contained in
Section 1 of the Workmen’s CompensationAct.
Section 43 (1) (c) of Trade Union Act is to the effect that a worker inrespect of whom a
dispute arises need not be in the employer’s business.
56
Naturally, human interaction, especially in an industrial setting must of necessity produce
conflicts or disputes, despite the virtual prohibition of strikes and lock outs by Section 17 (1)
of the Trade Disputes Act. The implication of the foregoing exposition is that for there to be
anindustrial conflict or trade dispute there must be an employer and an employee making up
the parties to the dispute.
What are the distinctive features of section 17(1) of the Trade DisputesAct?
3.2 Arbitration
Despite this virtual prohibition of strike and lock outs, there have been strikes and lock outs.
There is no doubt that the intervention of a third party will be inevitable where the machinery
of collective bargaining process is inadequate. The government has often intervened by
providing the required machinery as exemplified by the enactment in 1941 of the Trade
Disputes{Arbitration and Inquiry} Act which vested the power for the resolution
of industrial disputes in the government.
The Act contains some limitation in that the powers of the government could be exercised
only where the collective parties consented to their use. In effect, the Minister of Labour
could neither appoint a conciliatornor set up an arbitration tribunal for the dispute unless the
parties so requested.
Once a dispute has been referred to the Arbitration Panel, the chairman constitutes an
arbitration tribunal from among the members of the panel.
The tribunal may consist of;
a) A sole arbitrator; or
b) A sole arbitrator assisted by assessors; or
c) One or more arbitrators under the presidency of the chairman orVice-chairman.
57
An arbitration tribunal has twenty-one days, or such longer period asmay be allowed by the
minister, to make an award. The award it not communicated to the parties but to the minister,
who notifies the partiesof the award.
The parties have seven days from the date of the notification to object to the award. In the
absence of any objection, the minister is bound to confirm the award by a notice of
confirmation of the award published inthe Federal Gazette. With the confirmation of the
award, it becomesbinding on the parties concerned.See sections 8, 12 and 13 of the Trade
Disputes Act in relation toArbitration.
In order to facilitate the speedy settlement of trade disputes, and to free the panel from
suspicion, the disputants should and are usually allowed direct access to the panel and
thereafter to the National Industrial Court.
Explain the mode of settlement of Trade Disputes through Arbitration Tribunal.
3.3 The National Industrial Court
Section 19 of the Trade Disputes Act established the National Industrial Court. The court has
a president and four other members. The members are appointees of the President of the
Federal Republic Nigeria after consultation with the Federal Judicial Service Commission.
One of the requirements of a candidate for the post of the President of the court is that such
person must either have been a High Court Judge or a person qualified to practice as a
Solicitor and Advocate in Nigeria and has been so qualified for not less than ten years. The
President of the court deals with matters referred to it with the assistance of assessors who
shall consist of two nominees of the employer(s) concerned. These are chosen from a panel of
employers representative by the minister under section 43 of the Act, and twonominees of the
workers concerned, chosen from a panel of workers representatives.
58
1) What are the roles of assessors appointed to assist the President of the National Industrial
Court?
2) The appointment of the President of the National Industrial Court is political. Discuss.
3.4 The Jurisdiction of the Court
The power and authority to adjudicate on industrial and trade disputes is conferred on the
National Industrial Court by the provision of section 20 of Trade Disputes Act. This section
confers exclusive jurisdiction on the court to make award for the purpose of settling trade
disputes and determining questions as to the interpretation of any collective agreement, any
award made by an arbitration tribunal or by the court itself under part 1 of the Act. It also
includes the terms of settlement of any trade dispute as recorded in any memorandum under
section 7 of the Act. By the provisions of section 20 (3) of the Act, no appeal should lie to
any other court or person from any determination of the National Industrial Court. In the
same vein, in spite of the unlimited powers of state high courts, it has no jurisdiction in
industrial or trade dispute matter. This appears as being inconsistent with the provisions of
section 272 (1) of the 1999 constitution which confers unlimited civil and criminal
jurisdiction on state High Courts and has been said to be void to the extent of that
inconsistence. This was confirmed by the Supreme Court in W.S.W. LTD v. IRON and
STEEL WORKERS UNION OF NIGERIA {1987} L.N.S.C.C.133.
Compare the jurisdiction conferred on the National Industrial Court bysection 20 of the Trade
Disputes Act and the provisions of Section 272(1) of the 1999 Constitution of the Federal
republic of Nigeria.
3.5 Enforcement of Award
59
The National Industrial Court, under section 20(1) of the Act, has thirtyworking days within
which to determine any dispute referred to it. Theaward of the court becomes binding on the
employers and workerconcerned either from the date of the award or from such date as may
bespecified in the order.The Court, as well as the Industrial Arbitration panel, is not only
empowered to enforce their awards but also to commits for contemptany person or a
representative of a trade union who does any act orcommits any omission which in the
opinion of the court or the panelconstitutes contempt of the court or panel.
The National Industrial Court and the Industrial Arbitration Panel havepower as of right to
enforce awards granted by them. Discuss.
4.0 CONCLUSION
The rate at which the law in relation to industrial trade disputessettlement developed in
Nigeria is not comparable with what obtains inother climes of similar jurisdiction. However,
what obtains now is stillcomparable with other countries of the world.
5.0 SUMMARY
The student has been shown the relevant provisions of the law inrelation to settlement of
industrial and trade disputes in Nigeria withparticular reference to the arbitration panel, the
National IndustrialCourt, the jurisdiction of the court, the modes of enforcing the awardand
primarily the parties’ necessary in a settlement of trade disputematters.
1) What do you understand by the term “settlement of industrial ortrade dispute?
2) Examine the effect of section 17(1) of the Trade Dispute Act; cap432, LFN.1990.
3) Who are the necessary parties to an industrial or trade dispute?
60
4) What are the roles of an arbitration panel in trade dispute settlement?
5) The jurisdiction of the National Industrial Court under section 20 ofthe Trade Dispute Act
is unfettered. Discuss?
6) The enforcement of awards is as of right. Discuss.
Ogunniyi O., (2004). Nigerian Labour and Employment Law in
Perspective, 2nd ed., Lagos.
Munkman, Employer’s Liability 9th ed.
UNIT 5 CONCILLIATION AND ARBITRATION
CONTENTS
1.0 Introduction
2.0 Objective
3.0 Main Content
3.1 Conciliation
3.2 Arbitration
3.3 Emergency Procedures
4.0 Conclusion
5.0 Summary
1.0 INTRODUCTION
Much has been said about the settlement of disputes in the last unit.This unit explains better
and broadens our understanding of the concept of dispute resolution. There have been
statutory attempts to improve and provide ways ofsettling disputes when they arise.
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Much could be done in the settlement of dispute by arbitrators andconciliators. There are also
emergency procedures to avoid the breakingdown of disputes.
2.0 OBJECTIVE
This unit is to discuss other means of resolving industrial disputes.
3.0 MAIN CONTENT
This unit dwells on dispute resolution. Discussions will also be onconciliation down to the
doctrine of arbitration and to that of emergencyprocedure available when needed.
3.1 Conciliator
It is the first type of mechanism bearing upon the settlement of disputesin industrial
relations.The idea is aimed at the prevention and settlement of trade disputes where a
difference arises between employers and workmen or between different classes of workmen.
The purpose of this aspect of law is to enquire into the circumstances ofthe dispute and to
take such steps as may be expedient to bring the parties together under the presidency of a
conciliator mutually agreedupon or nominated by some other persons or body with a view to
settling the dispute amicably. On the application of the interested employers or the employees
andafter taking into account existing means of conciliation, a conciliator or a board of
conciliators is appointed.
The aggrieved party can proceed to the board of conciliators for properand efficient
conciliation on the dispute.The power to appoint a conciliator can be by either of the party
whilethat of the arbitrator can be exercised on the application of both parties.The main
purpose of the use of conciliator is confined to the effort to bring the parties together in the
hope that a common discussion willreveal a means of settlement acceptable to both parties.
The issue of conciliation dates back to the history of Labour Law worldover.
Define the word conciliator and explain its usefulness to the doctrine of dispute resolution.
62
3.2 Arbitration
The arbitrator generally fulfils a judicial role. He is concerned withlaws and facts and the
parties before the submission to arbitrationnormally agree, in advance, to accept and act upon
his findings.Despite the virtual prohibition of strike and lock outs, there have been strikes and
lock outs. There is no doubt that the intervention of a third party will be inevitable
Where the machinery of collective bargaining process is inadequate. The government has
often intervened by providing the required machinery as exemplified by the enactment of the
Trade Disputes {Arbitration andInquiry} Act which vests the power for the resolution of
industrialdisputes in the government.
However, the Act contains some limitation in that the powers of thegovernment could be
exercised only where the collective parties consent to their use. In effect, the Minister of
Labour could neither appoint a conciliator nor set up an arbitration tribunal for the disputes
unless theparties so requested.Once a dispute has been referred to the Arbitration Panel, the
chairman constitutes an arbitration tribunal from among the members of the panel.
The tribunal may consist of;
(a) A sole arbitrator; or
(b) A sole arbitrator assisted by assessors; or
(c) One or more arbitrators under the presidency of the chairman orvice-chairman.
An arbitration tribunal has twenty-one days, or such longer period asmay be allowed by the
minister, to make an award. The award is notcommunicated to the parties but to the minister,
who notifies the partiesof the award. The parties have seven days from the date of the
notification to object tothe award. In the absence of any objection, the minister is bound to
confirm the award by a notice of confirmation of the award published inthe Federal Gazette.
With the confirmation of the award, it becomesbinding on the parties concern.
63
The result is that in normal circumstances the decision of an arbitratormay, by the leave of
the court or a judge, be enforced in the samemanner as a judgement.See the provision of
sections 8, 12 and 13 of the trade Disputes Act inrelation to Arbitration.In order to facilitate
the speedy settlement of trade disputes, and to freethe panel from suspicions, the disputants
should and are usually allowed direct access to the panel and thereafter to the National
Industrial Court. It is further suggested that an industrial tribunal should give its award inthe
open and the award should be binding from the day it was made orsuch other date as may be
specified in the order.
Explain the mode of settlement of Trade Disputes through Arbitration Tribunal.
3.3 Emergency Procedure
This is the procedure necessary in times of urgency in a situation ofstrikes or lock out which
may cause an interruption in the supply of goods or foods, provisions of services of such a
nature or on such a scalethat it is likely to be gravely injurious to national security, create a
serious risk of disorder, endanger lives of a substantial number ofpersons or expose a
substantial number of persons to serious risk of disease orpersonal injury.This is done where
the state is of the opinion that such conditions existas a result of a strike or irregular industrial
action short of a strike or of alock out having begun or being likely to begin and that it would
beconducive to settlement by negotiation, conciliation or arbitration if thisaction were
discontinued or differed. In this instance an application maybe sent to the Industrial Court,
which must specify the persons apparently responsible for the action or threatened action.
These becomeparties to the proceedings.The process of emergency procedure is referred to
the Industrial Courtand the court has to satisfy itself that there is indeed an
emergencysituation that requires the attention of the court. It could make an order specifying
the area of employment to which it shall apply, the parties tobe bound, the effective date and
64
the period it is to last. The term of the order must only be made to parties with
responsibilities, prohibit the calling, organising, procuring or financing of a strike, or
anyirregular industrial action short of a strike or threatening to do so.
Explain briefly the necessity for emergency procedure.
4.0 CONCLUSION
It is important to note that in an industrial relations environment, the idea of industrial actions
is used by workers to drive home their point to their employees who are out to mete injustice
at them. Conciliation among other means is a way of remedying the injustice.
5.0 SUMMARY
1. We have discussed the idea of conciliator who is appointed withthe consent of either of the
parties aggrieved in other for us to achieve a good purpose.
2. Also discussed further is the arbitrator which has been discussedin the last unit, but more
extensively it has been dealt with withinthis unit as it relates to the labour law world over.
1. Briefly explain the purpose of a conciliator.
2. The Arbitrator in a Process of Arbitrating in trade dispute is asimportant as a conciliator
Explain.
3. Briefly explain the Emergency Procedure.
Munkman, Employer’s Liability 9th ed.1.0 Introduction
65
MODULE 3 HEALTH AND SAFETY
Unit 1 Protecting Health and Safety
Unit 2 Liability
Unit 3 Defences
Unit 4 Workmen’s Compensation Act
UNIT 1 PROTECTING HEALTH AND SAFETY
CONTENTS
1.0 Introduction
2.0 Objectives
3.0 Main Content
3.1 The Factories Act
3.2 Nature of Fencing
3.3 General Provisions as to Health
4.0 Conclusion
5.0 Summary
1.0 INTRODUCTION
In common law, there are certain duties, which an employer owes theemployees. The point
however must be made that apart from this common law duties, growing industrialization has
brought into existence a number of statutes designed to govern, order and regulate industrial
activities generally. The purpose of this unit is to examine these various statutes as they
concern the relationship between the employer andemployee.
2.0 OBJECTIVES
66
In this unit we will review and examine the relevance of those statutesdesigned to govern,
order and regulate industrial activities generally. Some of these statutes can be viewed first as
instruments designed topromote the health, safety, welfare and security of the worker and
second, as instruments for providing compensation for the employees incase of injury.
3.0 MAIN CONTENT
3.1 The Factories Act
The Factories Act, cap 126 laws of the Federation of Nigeria {LFN}1990 is primarily
designed to govern order and regulate industrial activities generally. In essence, its main duty
is to prevent occupational accidents and diseases in factories. In PULLEN v. PRISON
COMMISSIONERS {1957]3 ALL E.R.470, Lord Goddard, C.J. commenting on the object of
theEnglish Factories Act of 1937 said;
“The factories Act, 1937 is an Act which is designed for the protectionof persons working in
factories, that is to say, it is an Act which isintended to put obligations on employers of
labour in factories, to takevarious precautions for the protection of their work-people…”
Section 89(1) of the Factories Act, 1990 which is in pari-materia with section 175 of the
English Factories Act, 1961, which replaced section151 of the 1937 Act defines what a
factory is.Students are hereby directed to see the full text of that section. It is also important
to state at this point that it has earlier been said that Nigerian Labour Law principally derived
from English Labour Law and as such the Factories Act, LFN 1990 is the Nigerian version of
the English Factories Act of 1961 albeit with little modification to fit into our own local
circumstances. Essentially, it is an off-shoot of the English common law, most of which
are now codified. A thorough understanding of the provisions of section 37(1) of the Act
will reveal the following points;
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1) The premises must be used for trade or gain in order to qualify as a factory. The phrase
trade or gain commutes an intention to make profit. Thus, the kitchen of a manual hospital
had been held not to be a factory because the mincing of meat by electrical means carried on
in it is not carried on by way of trade or gain.
2) The employer must have access to, or control over the promises if the place is to be a
factory.
3) Generally, the person or persons who work in a factory must be employed. Thus it has
been held that a prison workshop is not afactory under the definition of factory in the Act
since there is no relationship of master and servant or employment for wages. Part II of the
Act, which is on general health provisions, imposes on the occupiers of factories duties
designed to protect the health of those employed in such places. Particularly, sections 7-12
deal with cleanliness, overcrowding, ventilation, lighting, damage of floors and sanitary
conveniences.
The principal provisions of part III of the Act are those dealing with general safety provisions
with particular emphasis on the provision for fencing of machinery. Machinery under the Act
is divided into threeclasses;
a) Prime movers see section 14; these are engines, motor and otherenhancement which
provide mechanical energy derived from steam, water, wind, electricity, the combustion of
fuel and other sources.
b) Transmission machinery; see section 15. This consists of everyshaft, wheel, drum, pulley,
and system of fast and loose pulleys, coupling, clutch, driving-belt or other devices by which
the motionof a prime mover is transmitted to or received by any machine orappliances.
c) Other dangerous parts of machinery. The combined effect of theprovision of sections
14(1), 15(1) and 17(1) of the Act is that it isobligatory on the occupier of a factory to securely
fence these partsof a machinery unless they are in such position or of suchconstruction as to
68
be safe to every person employed or working onthe premises as it would be if it was securely
fenced.
1. Examine the major purpose of the Factories Act, 1990.
2. Examine generally the provision of section 87(1) of the Factories Act
LFN, 1990.
3.2 The Nature of Fencing
The primary purpose of the provision of section 17 of the Act is that ifimposes a duty to fence
every dangerous part of machinery on the ownerof the factory. Unlike prime movers and
transmission machinery whichare dangerous, and must be securely fenced; the duty to fence
any otherpart of machinery arises only if that part is dangerous.In determining whether a part
of machinery is dangerous, the rest to be applied is “forseeability”. In other words, a part of a
machinery isdangerous if it is a reasonably foreseeable as a cause of harm.
Section 19 of the Act, which specifically provides for fencing ofdangerous machineries
provides as follows;
“All fencing or other safeguards provided in pursuance ofthe foregoing provisions of the Act
shall be of substantialconstruction, and constantly maintained and kept inposition while the
parts required to be fenced orsafeguarded are in motion or in use, except when anysuch parts
are necessarily exposed for examination and for any lubrication or adjustment shown by
suchexamination to be immediately necessary, and all theconditions specified in section 18(2)
of this Act arecomplied with.”
From the above provision of the Act, machinery means, for purpose offencing, machinery
used in the course of the factory’s processes of production as distinct from machinery which
is merely a product of thefactory.
69
The fencing requirement therefore, “extends to allmachinery forming part of the equipment
of a factory, whether in a fixed position or capable of moving fromplace to place, thus they
apply to a mobile crane and also vehicles used in a factory…but not visiting vehicles…”
It is therefore submitted that the duty to fence imposed by the Act isabsolute and strict in the
sense that it is neither qualified by such wordsas “as far as reasonably practicable” nor does
it impose on the occupiera duty to take “all practicable measures.” The duty to fence applies
irrespective of practicability. An occupier of a factory cannot therefore excuse his failure to
securely fence machinery by saying that fencing would make the machinery unusable.
In essence, strict or absolute obligation to fence does not mean that the fence must be so
constructed that it cannot be climbed over, or brokendown, by an employee who is
determined to get out the machinery. That would be demanding the impossible from the
employers.
What are the essential requirements of section 14, 15, 17 and 19 of the Factories Act, 2004?
4.0 CONCLUSION
The submission made in this unit is not exhaustive and students areadvised to embark on
further readings to broaden their knowledge of the topic containing the basic and essential
requirement which serves as areference point for the unit.
5.0 SUMMARY
At the end of this unit you should have been able to know the following:
the importance of fencing of industrial and factory machineries.
the basis of the entitlement of the Factories Act
the various element of a civil liability at the suit of an injured
employee who seeks redress against the occupier or employer
the various defences recognized by the law and available to the
70
employee or owner
1. What is the relevance of fencing an industrial of factory machinery?
2. Explain the basic concept behind the enactment of the Factories Act.
Ogunniyi O. (2004). Nigeria Labour and Employment in Perspective 2nd Ed, Folio Publishes
Ltd, Ikeja, Lagos.
Workmen’s Compensation Act, Cap 70 LFN 1990
Trade Dispute Act, Cap 432 LFN 1990
UNIT 2 LIABILITY
CONTENTS
1.0 Introduction
2.0 Objectives
3.0 Main Content
3.1 Element of Civil Liability
3.2 Proof of Liability
3.3 The Principle of Res ipsa Loquitur
3.4 Foresight
3.5 Duty of Care
3.6 Balancing the Risk Against Precautious
3.7 Attributes of the Employees
3.8 Causation
4.0 Conclusion
5.0 Summary
71
1.0 INTRODUCTION
The purpose of this unit is to examine those areas of contract ofemployment that may result
in tortuous liability either by the employeesolely or on behalf of the employee as
distinguished from various liabilities. This examination will be in relation to trade dispute as
governed and professed by relevant statue.
2.0 OBJECTIVES
This unit deals with common law torts which a trade union, its officialsand members are
proved to have committed in the case of industrial action.
Secondly, it examines the extent of statutory protection afforded to tradeunions and unionist
from those torts, in the prosecution of trade dispute.
3.0 MAIN CONTENT
3.1 Elements of Civil Liability
The duty to fence imposed by the Factories Act is a duty of absoluteliability. It is therefore
not open to the defendant to say that he had done all that was reasonable to prevent or avoid
the danger complained about. It should not however be imagined that because of the absolute
liabilityimposed by the Act, every failure to fence automatically results in the
employer’s liability.Whether the employers liability is absolute or dependent on reasonable
care or foresight, it is quite clear that there is a duty on the employer to keep his machines in
proper state of repair and maintenance and to takeall reasonable care to maintain his plant and
machinery and equipmentin such condition as to be safe for those working in the factory.
See. John Summers & Sons Ltd v Frost {1955} M.C. 740.
72
However, before an employer will be held liable for injuries sustainedby his employees as a
result of unfenced machineries, the followingissues hereunder discussed must be established.
3.2 Proof of Liability
It is part of the general principles of law of evidence that he who alleges must prove. In this
case,it is the plaintiff (i.e. the employee in case of anaction for breach of duty) who has the
evidential burden of proof.The English House of Lords in Boyle v Kodak Ltd. (1969)2 ALL
E.R.437, it was held that before the plaintiff can be said to have dischargedthe burden, the
following four conditions must be satisfied.
a) He must show that the Act imposes a duty on the defendant – thefactory owner or
occupier.
b) He must satisfy the court that the duty is owed to him or to a class ofpeople to which he
{the plaintiff} belongs.
c) He must show that the defendant was in breach of the duty owed tohim.
d) Finally, he must show that in consequence of that breach, he hassuffered injury or that the
breach has caused him injury.
3.3 The Principle of Res ipsa loquitur as a Basis of Liability
While proof usually involves the establishment of acts or omissionswhich can be regarded as
negligence, in certain case the courts will beprepared to infer from the immediate
circumstances of facts leading to the conclusion. Res lpsa loquitur is a rule of practice or
evidence not a rule of Law. It isto assert the right of party claiming injury and damages due to
thenegligence of the other party. There must however be evidence ofnegligence in a
reasonable way before the rule, which is a convenientway to explain how an unusual accident
can apply.See Akanmu v Adigun [1993} 7 NWLR (pt.204) 218.Once ‘res ipsa loquitur’ is
raised, the defendant can only counter, thepresumption by positively disproving the case
established. Although it issufficient enough merely for the defendant to explain how the
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injurycould have occurred without negligence, the presumption can berebutted other than by
positive disproof.The potency of this rule was demonstrated in the case of Odebumi v
AbdullahI {1997) 2 NWLR {pt 489} 526, an action under the Fatal Accident Act where a
trailer tanker ran into a Volkswagen car whichwas stationery and killed the driver/owner.In
view of the strict liability imposed on employees {factory owners andoccupiers} by the
Factories Act, it would appear that an employee doesnot really need to raise this presumption
nor does he have to rely on themaxim in order to succeed in an action for damages for breach
ofstatutory duty. There is so far a paucity of Nigeria cases in regard toliability under the
Factories Act.
In spite of this, one may fairly confidently assume that in view of thelanguages of the Act and
the strict liability imposed on the employee, anemployee injured at work will almost certainly
get a favourabletreatment under the law. As most of the sections of the Act confirm therules
of common law, reference cannot but be made to the provision andrequirements of common
law as to liability arising from the duty of care.
3.34 Foresight
The well recognized basis of the test of duty of care laid down in thepopular dictum of Lord
Atkin in Donoghue v Stevenson [1932] A.C. 562at 580 is still very relevant in this case. The
learned lord Justice said;“You must take reasonable care to avoid acts oromissions which you
can reasonably foresee would belikely to injure your neighbour. Who then, in law is
myneighbour? The answer seems to be persons who are soclosely and directly affected by my
act that I oughtreasonably to have them in contemplation as being soaffected when I am
directing my mind to the acts oromissions which are called in question”
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The foregoing statement has generally been regarded as the “ForcibilityTest”. How then can
foresight be measured? It is to be measured in thelight of knowledge and experience
possessed or reasonably expected atthe time of the alleged negligence.
3.5 Duty of Care
The duty expected of the employer is that of a reasonable man and areasonable man does not
hold himself out as possessing specializedskills without expecting to be judged by the
standards of eachrepresentation.The standard of care required is judged by the state of
knowledge at thetime in question. If the danger is unknown at the time, them it will notbe
foreseeable.
3.6 Balancing the Risk against Precautions
As earlier noted, many of the statutory provisions of the Factories Actare a confirmation of
the common law duties imposed on the employee. A typical example is that, under common
law an employer has a duty to take care of the health, safety and welfare of his employees.
An identicalprovision is contained in section 48 of the Factories Act. In essence, anemployee
may bring his action at common law with the need to provenegligence or lack of care under
the provision of the Act.
See: Western Nigeria Trading Co. Ltd v Busari Ajao {1965} NMLR 178.
In the same vein, the degree to which care must be taken depends on abalancing at the risk
against the precautions necessary to affect it. Therisk is measured not only in terms of
frequency, but also of seriousness.All the facts of the care are taken into account not least the
particularsensibility of the plaintiff.The balancing act is done mainly in regard to the duties
imposed bycommon law. As balancing exercise is often discarded as demonstratedby the
various reports of the cares in favour of absolute liability.
3.7 Attributes of the Employee
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The law in this respect is that the employer must take the worker as hefinds him. What this
simply means is that if the employee is susceptibleto a particular type of injury to which other
employees may not besusceptible, and the employee owing to his peculiar susceptibility to
such a risk, the employer will not be excused from the resulting liabilitysimply because of the
plaintiff {employee’s} peculiar susceptibility.On the other hand, the employer is entitled to
rely on the particularemployee’s stuff, experience and knowledge. As regards statutory
duties, it may be necessary to give instructions to an experienced man. Experience is not of
course general and must relate to the work in hand,although a job may be so straight forward
that it is reasonable to leave itto an unskilled man, without instruction.
See section73 of the Factories Act.
In the law of negligence, the duty to ward off danger depends upon whatis considered
reasonable, rather than what is practicable. It therefore appears that there is a heavier
statutory responsibility placed on the employer in this respect. Whilst the duty of common
law depends onwhat is reasonable, the duty under statute depends on what is practicable
and here lies the heavy burden.
3.8 Causation
The general rule in respect of this fact is that the courts must, from allthe causes which have
led to the injury, establish whether the negligenceof the defendant can be said to be the
cooperatives cause.Industrial injury could be the result of negligence of a number ofpersons
often bound together by contract. In such a case, the injuredemployee can bring an action
against any or all of them, leaving thedefendant to seek contribution from his other tort
feasors. In some other cases however, the injured employee may havecontributed to his own
injury. This is often covered by the doctrine of contributory negligence.
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Examine the various elements of civil liability in cases of injurysustained by an employee in
the factory.
4.0 CONCLUSION
It is pertinent to note that the doctrine of safety and health at work isimportant and paramount
to labour law. The essence of the duty of careis that you owe to yourself what you owe to
your neighbour in thisinstance; your colleague is your neighbour.However, the doctrine of res
ipsa loquitur that is the fact speaks foritself, is also of paramount importance in the doctrine
of duty of care.
5.0 SUMMARY
In this unit, students have been able to know the following:
1) The various elements at civil liability at the suit of an injuredplaintiff {employee} who
seeks redress against the dependant {employer, occupiers or owners of the factory].
2) The duty of care and the Rule in it is important in the Latin maxim of Res Ipsa loquitur.
6.0 TUTOR MARKED ASSIGNMENT
4) Enumerate and discuss the various element of civil liability in anindustrial relation suit.
5) Briefly explain the doctrine of Res ipsa loquitur.
Ogunniyi O., (2004). Nigerian Labour And Employment Law (2nd ed.)Lagos.
Factories Act.
UNIT 3 DEFENCES
CONTENTS
1.0 Introduction
2.0 Objective
3.0 Main Content
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3.1 Defences
3.2 Remoteness of Damages
3.3 Volenti Non Fit Injuria
3.4 Contributory Negligence
3.5 Limitation of Actions
4.0 Conclusion
5.0 Summary
7.0 References/Further Reading
1.0 INTRODUCTION
The doctrine of defence under protective health and safety is important to the company
generally because once there is a negligent act done withno evil intent then the party is able
to put forward defences in his favourfor purpose of reducing the awarded damages to the
aggrieved party in which ever case.
2.0 OBJECTIVE
The main objective in this unit is the doctrine of defence in manner which is related to the
award of damages.
3.0 MAIN CONTENT
3.1 Defences
The word defence is paramount to law generally.
3.2 Remoteness of Damage
The question of remoteness of damage is closely allied to the issue ofcausation. Remoteness
of damage is a general defence to all torts. If theemployer’s default is not proximate or
predominant cause of the injury, he will escape liability. This in Thomas Rerewi v Bisiriyu
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Odegbesan [1976] NMLR 89, theSupreme Court held that a person cannot be held liable for
negligenceunless the damage is caused by the negligence or as a consequence of it.
3. 3 Volenti Non-Fit Injuria
This defence is founded on the principle of voluntary assumption of risk.
The essential features of this defence are;
1. That the plaintiff must have known of the risk or the harm.
2. He must have freely accepted that risk.
If these two essential features are present, then the defendant will beexculpated from
liability.An offshoot of this rule presupposes that an employer will notautomatically be free
of liability merely because a workman continueswith his duty with the knowledge of the risk
involved. To free thedefendant from liability, the plaintiff workman must voluntarily and
freely run the risk.See Smith v Baker {1891} A.C. 235 H.L. the House of Lords held that
the defence of violent; non fit injuria could not succeed because, although the plaintiff knew
of the risk, he had not freely accepted it.
3.4 Contributory Negligence
This is another defence, which can shield the employer from bearing thewhole liability
arising from the injury suffered by his workman. Atcommon law, contributory negligence is a
complete defence and noquestion of apportionment of liability arose. The party who had the
lastopportunity of avoiding the accident bares the whole responsibility; ifthis was the
plaintiff, and then he would lose his claim.When contributory negligence is offered as a
defence, all the defendantneed to prove is that the plaintiff failed to take reasonable care for
hisown safety. This is a defence both to negligence and breach of statutory duty, but the duty
of proving same is on the defendant.In Nigeria, the defence of contributory negligence is
regulated by thefollowing laws;
I. Civil Liability {Miscellaneous Provisions} Act, 1961.
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II. Fatal Accident Act 1961 {Lagos}
III. Section 8 of the Old Western Nigeria Torts Law 1958.
These laws and provisions are similar in content and application to theEnglish Law Reform
[Contributory Negligence] Act, 1945 whichprovides that where the faults of the person
injured and another contribute to an injury, the client claim shall not be defeated but
thedamages recoverable shall be reduced to “such extent as the court thinks just and
equitable having regard to the claimants share in theresponsibility for the damage.”
In Alidu Orekoya v University of Ife (1972) HIF/3/72 decided on 18September, 1972,
Thompson J., reduced by 50% damages awarded to atypist who scrambled to take a bus in the
university campus with theumbrella in his hand and thereby sustained injury resulting in
thedeformity in one of his legs. Forseeability is a relevant factor in this defence and according
to LordDenning in Jones v Lovox Quarries (1952) 2 Q.B. 608;“A person is guilty of
contributory negligence if he oughtreasonably to have foreseen that if he did not act as a
reasonableprudent man he might hurt himself; and in his reckoningshe must take into
account the possibility of others beingcareless.”The corpus of this doctrine therefore is that
the plaintiff, though in no way contributing to the accident, has by his negligence, contributed
tothe degree of injury.See FROOM V BUTCHER {1975} 3 ALL E.R. 520
3. 5 Limitation of Action
There is an absolute need for a plaintiff to bring his action within thetime allowed by law if
he does not want to lose his right.Limitation of Action is the principle of law which
establishes the rulethat a plaintiff must seek his remedy within a time limit stipulated by
law after which period his action will become statute barred. Thelimitation period can be
used as a defence to an action in tort and thedefendant can plead that the time within which
the plaintiff should havebrought his action had expired or that the action had become statute
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barred. This defence must be specifically pleaded as it may otherwise bedeemed to have been
waived.There are two basic reasons for evolving the principle of limitation:
1) It is a fact that it will be contrary to public policy for a potentialdefendant to have the
possibility of legal proceedings hanging like as word of Damocles over his head for an
indefinite period.
2) Where an action is moderately delayed for several years after theevent which gave rise to it
has occurred, memories of witness mighthave become hazy and, in some cases, vital witness
may have diedwith the result that the truth may get depreciated.
The limitation period starts to run;
I. The date on which the cause of action accrued; or
II. The date of knowledge.
Example of existing limitation laws in Nigeria are;
1. Limitation law of Lagos State {1994} cap 118.
2. Section 2 or the Public Officers Protection Act {POPA} cap 379,LFN, 1990.
Finally, it is apposite to state that any of these defences, if well articulated and pleaded will
avail a defendant a good defence.
SELF ASSESSMENT EXERCISE
Examine the various defences available to a defendant in action relating to injuries sustained
by a plaintiff {employee} under the Factories Act.
4.0 CONCLUSION
The discussion of defences made in this unit is not exhaustive andstudents are hereby advised
to embark on further reading to broadentheir knowledge of the topic. However, it is a good
starting point ofreference. It contains the basic and essential requirements and as such
will serve as a good and veritable pointer.
5.0 SUMMARY
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1. The defences recognized by the law and available to thedefendant {owner or employer].
2. The defence of volenti non-fit Injuria.
3. The defence of limitation of action
1. Enumerate and explain the various defences available to adefendant {employer] at the suit
of a plaintiff {employee} in acase of injuries sustained in the factory.
2. Explain the doctrine of limitation of action as it relates to theLimitation of action Law of
Lagos State.
Ogunniyi O., (2004). Nigerian Labour and Employment Law inPerspective, 2nd ed., Lagos.
UNIT 4 THE WORKMEN’S COMPENSATION ACT
CONTENTS
1.0 Introduction
2.0 Objectives
3.0 Main Content
3.1 Who is a Workman?
3.2 Who is an Employer?
3.3 When is a Workman Entitled to Compensation?
3.4 What is Accident?
3.5 Course of Employment
3.6 Categories of Compensation
3.7 Agreement as to Compensation
3.8 Closing Compensation
4.0. Conclusion
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5.0. Summary
6.0. Tutor Marked Assignment
1.0 INTRODUCTION
The Workmen’s Compensation Act, cap 470, laws of the Federation of Nigeria 1990
{hereinafter referred to as the Act} replaced theWorkmen’s Compensation Act of 1958 which
hitherto had been thesubject of severe criticism because of its narrowness of scope
andirrelevance to modern industrial needs.
2.0 OBJECTIVES
Unlike the Factories Act {already discussed} which was enacted toprotect employees and in
appropriate cases, other persons working infactories, from occupational accident and
diseases, this Act provides forthe payment of compensation to the workman for injuries
sustained inthe course of his employment.This unit is therefore going to show the various
conditions under whichan employee will be entitled to compensation from an employer. It
willalso reflect on the other conditions incidental to the promulgation of the Act. By this, the
student will learn the operation of the Act.
3.0 MAIN CONTENT
Under the Act, compensation does not depend on the negligence of theemployer but on
whether the injury or death was caused by an accident arising out of/and in the course of the
employment of the workman. In essence, the major consideration for the determination of
whether or notan employee is entitled to any compensation under the Act is whetherthe cause
of his injury occurred or arose out of and in the course of his employment. The second
consideration will be whether he is anemployee or not in the employment of the employee.
These are theissues for discussion in the main body of this unit.
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3.1 Who is a Workman?
Section 1 of the Workmen’s Compensation Act provides that’
“A person shall be deemed to be a workman if eitherbefore or after the commencement of the
Act he hasentered into or is working under a contract of service orapprenticeship with an
employer whether by way ofmanual labour, whether the contract is expressed orimplied, oral
or in writing.”
Certain categories are however excluded from the application of the Actby virtue of Section 2
(2) and 3 (2) (a) - (f) of the Act.Therefore, by necessary implication from the definition
provided by theAct, a workman now includes practically everybody from cleaner to the
Managing Director or the permanent secretary in the civil service, assection 2 (1) of the Act
states that it shall apply to a workman employedin the public service of the Federation and of
any state thereof; and inthe Nigeria Police.
3.2 Who is an Employer?
By the provisions of section 41(1) of the Act an employer includes;
a. The Government of the federation and of any state in Nigeria,
b. Anybody of persons corporate or unincorporated and the legal personal representative of a
deceased employer.
c. Where the services of the workman are temporarily lent on hire toanother person by the
person with whom the workman has enteredinto a contract of service or apprenticeship, the
original or permanentemployer would continue to be the employer of the workman whilehe is
temporarily working for that other person.
d. In relation to persons employed for the purposes of any game orrecreation and engaged or
paid through a club, the manager, or members of the managing committee of the club, shall
for purposesof the Act, be deemed to be an employer.
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Name the categories of people recognized as employers under the Act.
3.3 When is a Workman Entitled to Compensations?
For the purpose of entitlement to compensation under the Act, theworkman {or his
dependant, in fatal accident cases} must prove, exceptwhere the Act otherwise provides, that
he has suffered personal injuryby accident arising out of and in the course of the
employment.See section 3(3) (a) & (b) on many of “out of and in the course ofemployment”
The general rule is that an employer is not liable to pay compensation in respect of any injury
which does not incapacitate the workman for aperiod of at least three consecutive days from
earning full wages at thework at which he was engaged. Furthermore, no compensation
ispayable where the injury is attributable to the serious and wilfulmisconduct of the
workman.Where however an accident results in death permanent incapacity of theworkman,
the accident would be deemed to have arisen ‘out of and in the course of his employment, not
withstanding that the workman was at the time of the accident acting in contravention;
a) Of any statutory or other regulation applicable to his employment; or
b) Of any orders given by or on behalf of his employer, or
c) That he was acting without instructions from his employer, if suchact was done by the
workman for the purposes of and in connection with his employer’s trade or business.The
significant effect of the above instances is that misconduct of theworkman would not
disentitle him from claiming compensation, so longas he misconducts himself in the interest
of his employer’s trade orbusiness. The contrary would be the case where death or incapacity
was due to a deliberate self-injury.Similarly, no compensation is payable in respect of death
or incapacityresulting from personal injury, if the workman has at any timeknowingly
misrepresented to his employer that he was not suffering orhad not previously suffered from
that injury or similar one.
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Under what situation is an employee entitled to compensation?
3.4 What is an Accident?
The liability of an employer to pay compensation depends on theoccurrence of an accident in
the course of his workman’s employment.The word’ accident’ is not defined anywhere in the
Act. However, theword has been judicially contrived under the repealed
Workmen’sCompensation Act of England. So, in Fenton v Thorley {1903] A.C.443, the
House of Lords, in construing the word ”accident” undersection 1(1) of the Workman’s
Compensation Act, 1897 [section 1(1) isidentical to section 3(1) of the Nigeria Act], held that
“accident” should
be given its popular and ordinary meaning. That when so construed, itmeans any mishap or
unflawed event not expected or designed.The law in respect of an accident giving rise to a
disease which results toan injury is that the injury would be treated as arising from the
accident itself. In Brintons Ltd v Turvey {1905} A.C.200, a bacillus passed into the eyeof a
workman from the wool which he was sorting. He became infected with anthrax of which he
died. Lord McNaughton, while explaining thenature of the accident” in the case said; inter
alia;“-- -- --It was an accident that this noxious thing escaped.-- -- - It was an accident that
the thing struck the man on adelicate and tender spot in the corner of his eye- - -“
Describe what an accident is under the Workmen compensation Act
3.5 In the Course and Out of Employment
The general rule is that for an employer to be entitled to the insurancebenefit provided for the
injury suffered by him or her, he or she must prove that the injury, accident or death arose out
of and in the course of employment. This is the position of the provision of section 40 of
theAct.In the same vein, section 3(1) of the Act contains the criterion governing the payment
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of compensation. The basic fact however is that the injuryor death for which compensation is
being cleared must have been causedby an accident “arising out of and in the course of
employment”. It should be noted that this phrase is not defined in the Act.
In the absence of any clear statutory definition, it is possible to drawfrom case law three
considerations which may be relevant in determining whether an accident has arisen out of
and in the course ofemployment, to wit;
When did the workman employment begin and end?
Where did the accident occur?
What was the workman doing at the time of the accident?
In U.A.C (Nigeria) Ltd v. Joseph Orekyen, an employee of the companywas placed in charge
of a petrol station, which the company operated.One Morning, While he was checking the
overnight sales in the salesroom of the station, a stranger walked in and asked for change for
a onepoundnote.The stranger was told by one of the petrol attendants that there was no
change.The stranger, enraged by the reply, attempted to pick a fight with the attendant. The
plaintiff intervened and took a position between them inorder to prevent the fight. But the
stranger struck the plaintiff in the eyeand he lost that eye as a result.The plaintiff successfully
claimed compensation from his employers atthe magistrate’s court. Appeal to the High Court
was on the sole ground that the injury did not arise out of and in the course of the
workman’semployment.
The court dismissed the appeal and held that the act arose out of and inthe course of the
workman’s employment.
The view was different in Ade Smith v Elder Dempster Lines Ltd{1944} 17 N. L. R. in
M’Neice v Singer Sewing Machine [1911] S.C.12, driver overtook a salesman who was
cycling in the course of his duty in a public street. His employers were held liable because it
was part of the obligations ofthe workman that placed him within the zone of special danger.
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By the foregoing decision, it is clear that it is not enough that the workman was at his place of
work and within the duration of the day’semployment when the accident occurred. ‘It could
just be that ’’Theaccident arose because of something being done in the course of
myemployment or because the Workman was exposed by the nature of myemployment to
some peculiar risk”. The accident which befalls the workman must be “peculiar “or
“special”. In this sense, it could onlyarise out of the nature of his employment, i.e., as a
consequence of the plaintiff’s employment. At the time of an accident, for a workman to be
entitled to compensation, he must be discharging his contractual duties or doingsomething
incidental to his employment. A thing is said to be incidental to employment if it is either
causally connected to it or expressly orimpliedly permitted by the employer. Summarily, for
an accident to arise out of and in the course ofemployment, the employee must have gone
outside the sphere of his employment by either;
a. Doing a work he was not engaged to do or
b. Being in a territory in which he has nothing contractually to do.
What do you understand by the phrase;” Arisen out of and in course ofemployment”?
3.6 Categories of Compensation
The Act makes provisions for four categories of compensation; namely;
I. Compensation in Fatal Accident Cases:
These are the cases where death results from the injury. Section 4 of the Act provides, inter
alia, that a sum equal to the deceased workman’sforty –two month’s earning shall be paid to
the dependants.
II. Compensation in the Case of Total Permanent Incapacity:
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Incapacity is total and permanent where it completely disables theworkman for future
employment. Section 5 provides that the amount ofcompensation payable in such cases shall
be fifty-four month’s earningsof the workman.
III. Compensation in the Case of Partial incapacity:
This is an incapacity which reduces the workman’s pre-accident earning capacity. Section 7
provides inter alia, that the workman shall be entitledto a percentage of his fifty-four month’s
earnings as specified in thesecond schedule to the Act, being the percentage of the loss of
earningcapacity caused by that injury.
IV. Compensation in the Case of Temporary Incapacity:
In the case of temporary incapacity, the workman shall be paid ascompensation his basic pay
for the first six months of his incapacity.Thereafter, if the incapacity continues, he should be
paid half of hisbasic pay for an additional period of three months, and if the
incapacitythereafter still continues, he shall be entitled to a quarter of his monthly salary for a
succeeding period of fifteen months.Any such entitlement paid under this head shall be
deducted from any sums eventually paid to the workman as compensation. The provision of
section 12(1) and (3) of the Act are to the effect that compensation payable under the above
categories shall be paid to the court, and any sum so paid shall be paid to the person entitled
thereto orbe invested or otherwise be dealt with for his benefit in such manner asthe court
thinks fit. This is subject however, to the provision of section19 of the Act, which provides
that an employer is not entitled to end or diminish any payment which he is bound to pay
under the Act.
List and explain the various categories of compensation available to an injured employee
under the Act.
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3.7 Agreement as to Compensation
Within the purview of the labour law, compensation can be described asa monetary payment
made to an injured workman in respect of injury, which he has sustained in the course of
employment. Suchcompensation may be as agreed by the employer and the workman or as
may be approved by the court.Section 16(1) of the Act provides the situations and conditions
by whichthe employer and the employee may agree in writing as to thecompensation to be
paid by the employer. These include;
a. That the compensation agreed upon shall not be less than the amount payable under the
provisions of the Act.
b. That where the workman is an illiterate, the agreement shall not bebinding against him
unless;
I. It is endorsed by a certificate of an authorized labour officer to the effect that he read over
and explained to the workman the terms thereof {and that they were, in appropriate cases,
interpreted to him in a language which he understands} and
II. That the workman appeared fully to understand and;
III. Approved of the agreement.
However, any agreement as to compensation may be cancelled by the court on the application
of any for the party to it, if it is proved;
a) That the compensation agreed was not in accordance with theprovisions of the Act, or
b) That the agreement was entered into in quince or under a mistake as to the true nature of
the injury, or
c) That the agreement was obtained by fraud, undue influence, misrepresentation or other
improper means as would in law, besufficient ground for voiding it.
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Examine the various vitiating circumstances to an agreement reached under the provisions of
section 16(1) of the Act.
3.8 Claiming Compensation
The general position of the law going by the provision of section 13 of the Act is that no
proceedings for the recovery of compensation underthe act shall be maintainable unless;
a) Notice of the accident has been given to the employer, by or onbehalf of the workman,
b) The application for compensation with respect to that accident has been made within six
months from the occurrence of the accident causing the injury or in the case of death, within
six months from thetime of the death.The failure to give notice or to make an application
within six months would however not be a bar to any proceedings for compensation, if
thefailure to give notice did not prejudice the employer in his defence orthere were
reasonable ground for not making an application within six months.
Therefore, once an employer is in receipt of the notice of accident, it is obligatory on him to
arrange as soon as reasonably possible to have the workman medically examined free of
charge. The examination, under the law, is necessary in order to determine the degree of
incapacitysuffered and, consequently the liability of the employer. However, in fatal accident
cases, the Act imposes an obligation on the dependants of the deceased workman to give to
his employer a medical certificate as to the cause of death. In the event of any of the
foregoing, an employee has twenty-one days from the receipt of notice to reach an agreement
in writing with theinjured workman as to the amount payable as compensation. At the
expiration of that period, the workman may, in the prescribed manner, make an application
for enforcing his claim to compensation to the High Court having jurisdiction in the area in
which the accident giving rise tothe claim occurred.
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How is compensation claimed?
4.0 CONCLUSION
Apart from the major provisions of the Workmen’s Compensation Actrelating to the
compensation of an injured employee while in theemployment of the employer, the
provisions of the old Fatal Accidents Laws of the various states of the country, come to bear
on the overallinterest of the injured or deceased employee. This is aptly demonstrated in the
provision of section 13 of the Act already discussed. By and large, it is hoped that student
will now be better informed of theintent and purpose of the Act, particularly in the area of
categories of compensation payable, in case of death or injury.
5.0 SUMMARY
Through this unit students have been be able to
1) Define who a workman is
2) Define who an employer is
3) How and when an employee is entitled to compensation.
4) What act could be regarded as accident
5) When an accident arises out of and in the course of employment.
6) The various categories of compensation
7) When and how agreement as to compensation should be made.
8) How a claim for compensation is made
9) The nature of Fatal Accidents and
10) The meaning of compensation generally.
6.0 TUTOR-MARKED ASIGNMENT
1. What is the relationship between the Factories Act and theWorkmen’s Compensation Act,
if any?
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2. What categories of people are not regarded as workman under theAct?
3. Who are those regarded as employer by the Act?
4. Under what conditions will an employer or workman be deprived ordenied of his claim for
compensation under the Act?
5. When is an act regarded as an accident?
6. Explain the phrase “arisen out of and in the course or employment”.
7. Explain the various heads of compensation available to the families or dependants of a
deceased workman or an injured workman.
8. Differentiate between agreement as to compensation and claimingcompensation.
7. 0. REFERENCES/FURTHER READINGS
Fatal Accidents Act.
Workmen’s Compensation Act.
UNIT 5 EMPLOYER’S VICARIOUS LIABILITY
CONTENTS
1.0 Introduction
2.0 Objectives
3.0 Main Content
3.1 The Course of Employment
3.2 Employer and Independent Contractor
3.3 Vehicle Owners and Agent Drivers
3.4 Presumption in Road Accident Cases
3.5 The Permanent and the Temporary Employer
4.0 Conclusion
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5.0 Summary
1.0 INTRODUCTION
The doctrine of vicarious liability is one that fixes liability on theemployer for the tortuous
act of the employee committed in the courseof employment and causing injury to a third
party without any necessaryelement of fault on the part of the employer.
2.0 OBJECTIVES
The objective of the concept of vicarious liability in relation to labourlaw is the liability of A
to C for the damages caused to C by the negligence or other tort of B. The employer’s
vicarious liability for thetort of its employee arises out of the employment relationship. In
otherwords without this particular relationship there would be no basis for theemployer’s
vicarious liability.On the basis of the foregoing this unit will focus on such situations thatwill
naturally give rise to the vicarious liability of the employer towards the victims of the acts
and omissions of his employee and the exceptions thereto.
3.0 MAIN CONTENT
3.1 The Course of Employment
The basic statement of this doctrine is that the master will be vicariouslyliable for the
tortuous act of his servants committed in the course of employment. This phrase “course of
employment” is a legal term. The master will not be responsible unless the act complained of
was committed in the course of employment.Denny L.J. In YOUNG v. BOX & CO. LTD
(1951) T.L.R. 789 AT 793said as follows;“To make a master liable for the conduct of his
servant thefirst question is to see whether the servant is liable. If the answer is yes, the second
question is to see whether the employer must shoulder the servant’s liability”
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However, before the employer will be held liable for the torts committedby his employee, the
following conditions must be exist;
(i) The Plaintiff must prove that the tortfeasor is an employee.
(ii) Since the employee is the principal of the tortfeasor, to make his employer vicariously
liable for his tort, the employee must bejoined as a co-defendant; otherwise, the vicarious
liability of his employer will not arise. The following considerations may however be taken
into account indistinguishing an act which is, from one which is not, a test of vicarious
liability.
(a) The scope of employment
(b) Unauthorized manner of doing something authorized
(c) Express prohibitions
(d) Unauthorized delegation
(e) Implied authority
(1) Explain the concept of course of employment in vicarious liability of employers to
victims of employees’ acts and omissions
(2) Examine the various distinguishing factors responsible for the tort of vicarious liability to
be fully established.
3.2 Employer and Independent Contractor
The law is that an employer is not liable for the negligence of his independent contractor.
However, there are occasions when he will be so liable.
Firstly, the employer’s personal duty of care for the safety of hisworkman is non-delegable.
Thus, where an employer chooses to discharge the obligations thereby imposed on him
through a third party such as an independent contractor, he, nonetheless, remains fully liable
for the negligence of the contractor which results in an injury to his workman.
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Secondly, where a statute imposes an obligation on employers e.g. theduty of an employer or
occupier of a factory, under the Factories Act tohave certain machines securely fenced,
liability for non-performance of the obligation is not avoided by delegating its performance to
an independent contractor. There are however, certain activities such as setting fire on open
bushland, carrying out of construction work on the highway, which the law regards as extra
hazardous, and requires from those who engage in thema special standard of care.An
employer who employees a contractor to carry out such activities onhis behalf will be
responsible for any negligence of such a contractor,the only exception is when it stipulates in
their contract not only theproper precautions to be taken, but also sees that they are in fact
taken.
Examine the responsibilities of an employer and an independent contractor in a vicarious
liability situation.
3.3 Vehicle Owners and Agent Drivers
The general principal of law in relation to vehicle owners and Agent-Drivers in a vicarious
liability situation is that the mere ownership of a vehicle does not itself impose any liability
on the owner for the negligence of driving of others whom he permits the use of his
vehicle’sunder certain circumstances, the law imposes vicarious liability on suchan owner for
the negligent use of his vehicle, irrespective of the existence of any contract of service
between the owner and the driver. Generally, to make the vehicle-owner vicariously liable for
the
negligence use of his vehicle, two elements must be proved.
(a) That the authorized use, expressly or impliedly; and
(b) That the driving was either wholly or partly in the execution of atask or purpose on the
owner’s behalf.
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It was held in HIGBID v. R.C. HAMMERT (1932) 49T.L.R. 104. That the mere fact that a
man has the authority of a vehicle owner to drive his vehicle does not suffice to make the
owner liable for his negligentdriving, otherwise any man who allows another the use of his
vehicle stands in peril while the vehicle is being used. As a corollary to this, drivers on
unauthorised detour may not take an advantage of the doctrine of vicarious liability.
In what circumstances will the owner of a vehicle be held vicariously liable for the wrongs
committed by a user of his vehicle?
3.4 Presumption in Road Accident Cases
The general rule of law in relation to this point is that where the facts ofthe relationship
between the owner of a vehicle and the driver are notfully known, proof of ownership will
give rise to a presumption that thedriver was acting or driving as the owner’s agent or
employee.However, this presumption is rebuttable where the owner adduces evidence to
disprove any connection or relation between him and thedriver relevant to the tort of
vicarious liability. See ODEBUNMI v.ABDULLAHI (1997) 2 N.W.L.R. (PT. 489) 526.
OKEOWO v.SANYAOLU (1986) 2 N.W.L.R. (PT. 23) 471.
What is the basic element in the determination of the liability of owners
of vehicle in road accident cases?
3.5 The Permanent Employer and the Temporary Employer
Occasionally, there may be questions as to who of two possibleemployers is vicariously
liable. This difficulty often occurs where one employer (normally referred to as the
permanent employer) who employs “A” lends the services of ‘A’ to another employer, ‘B’
and “A”commits a tort while in the employment of ‘B’ to whom his services have been sent.
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In resolving this issue, what is considered is, “has the borrower placed himself in such a
position that he, instead of the permanent employer, would bear liability?”
In MERSEY DOCKS AND HABOUR BOARD V COGGINS ANDGRIFFTHS LIMITED
(1947) A.C.I, LORD UTHWATT said;
“The workman may remain the employee of his generalemployer, but at the same time, the
result of thearrangement may be that there is vested in the hirer apower of control over the
workman’s activities sufficient toattach to the hirer responsibility for the workman’s actsand
defaults and to exempt the general employer from thatresponsibility.
The above diction of the Learned Lord formed the bedrock of what istoday known and
referred to as “The Mersey Docks case” which wasquoted with approval in the Nigerian case
of ROTIMI v. ADEGUNLE 1N.S.C.C.14
What is the distinguishing factor between a permanent employer and atemporary employer?
4.0 CONCLUSION
The concept of vicarious liability in respect of labour law vis-à-viscontract of employment
has grown over the years, to the extent thatmost of the previous cases have been overruled
and replaced with moreprofound authorities. However, the basis of this concept is yet to be
eroded by the events of modern times. Like other concepts of law, thisprinciple continues to
grow through judicial activism and as a result ofthe overwhelming influx of exceptions.
5.0 SUMMARY
In this unit, we have learnt the following
(1) The meaning of the concept of vicarious liability
(2) The object of and aims of the proponents of this legal concept.
(3) The various grounds upon which an employer will be vicariouslyliable for the acts and
omissions of his employee.
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(4) The various exceptions to this principle.
(1) Examine the concept of vicarious liability, in respect of labourlaw and particularly
contract of employment
(2) Examine the various heads under which a master will be held
vicariously liable for the torts or defaults of his employeealongside the probable exceptions.
OGUNNIYI O., (2004). Nigeria Labour and Employment Law in
perspective, 2nd ed., Lagos.
The Workman’s Compensation Act, Cap 470 LFN 1990.
Wages Boards and Industrial Councils Act, Cap 466 LFN 1990.
Trade Disputes Act, Cap. 432 LFN 1990.
Trade Unions Act, Cap 437 LFN 1990.
Winfield and Jolowics on Torts (1984).
Munkman, Employer’s Liability (9th Ed).
MODULE 4 AGENCIES.
Unit 1 I.A.P
Unit 2 N.I.C
Unit 3Industrial Training Fund.
UNIT 1 I.A.P: Industrial Attachment Program.
CONTENTS
1.0 Introduction
2.0 Objectives
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3.0 Main Content
3.1 Procedure
3.2 SIWES
4.0 Conclusion
5.0 Summary
1.0 INTRODUCTION
An Industrial Attachment is a structured, credit-bearing work experience in a professional
work setting during which the student applies and acquires knowledge and skills. The student
is expected to apply learned skills in an organization related to the student’s major field of
study.
The purpose is to enable the student to examine the values of the organization involved in the
experience, and to assess the student's education as it relates to the Industrial Attachment.
Benefits of Industrial Attachment Program include:
Exploring career interests, Skill Acquisition, Work Experience, and Development of
Professional Network.
2.0 OBJECTIVES
In this unit we will explain the I.A.P, examine its relevance and its advantages. Students are
expected to familiarise themselves with the information herein.
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3.0 MAIN CONTENT
3.1 Procedure: At the end of their 3rd year of undergraduate study, students are expected to
participatein and complete a minimum requirement of 8 weeks at one service site. They must:
 Collect an Introduction Letter from their Faculty attachments coordinator.
 Fill in the both sides of the Details Form and present it to the Faculty attachments
coordinator prior to commencing their attachment using the available channels
indicated.
 Familiarise themselves with Report Guidelines
 Present the Attachment Report to the Faculty attachments coordinator 2 weeks into
their 4th year course work.
Students who have just completed their 2nd year are encouraged to participate for their
benefit, however, this will not count towards their Industrial Attachment to be undertaken at
the end of their 3rd year.
Maintaining the academic nature of the Industrial Attachment is essential because academic
credit is awarded for the experience (i.e. volunteering and work-for-pay, although worthwhile
experiences may not be academically sound). Industrial Attachments may be paid or unpaid.
3.2 SIWES:In most public organisations, the program is run under a department or unit
called the Student Industrial Work Experience Scheme (SIWES).
SIWES was established by ITF in 1973 to solve the problem of lack of adequate practical
skills preparatory for employment in industries by Nigerian graduates of tertiary institutions.
The Scheme exposes students to industry based skills necessary for a smooth transition from
the classroom to the world of work. It affords students of tertiary institutions the opportunity
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of being familiarized and exposed to the needed experience in handling machinery and
equipment which are usually not available in the educational institutions.
Participation in SIWES has become a necessary pre-condition for the award of Diploma and
Degree certificates in specific disciplines in most institutions of higher learning in the
country, in accordance with the education policy of government.
Operators - The ITF, the coordinating agencies (NUC, NCCE, NBTE), employers of labour
and the institutions. It is funded by The Federal Government of Nigeria and run for a duration
of four months for Polytechnics and Colleges of Education, and Six months for the
Universities. Its beneficiaries include:
1. Undergraduate students of the following: Agriculture, Engineering, Technology,
Environmental, Science, Education, Medical Science and Pure and Applied Sciences.
1. Explain themeaning of the I.A.P and describe its benefits if any. In most public
organisations, the program is run under a department or unit called
4.0 CONCLUSION
The submission made in this unit is not exhaustive and students areadvised to embark on
further readings to broaden their knowledge of thetopic.
5.0 SUMMARY
At the end of this unit you should know what the I.A.P is, its basic requirement and procedure
and its beneficiaries.
1. What is the relevance the I.A.P to management of labour relations.
SWIES operational guidelines.
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UNIT 2 NATIONAL INDUSTRIAL COURT (N.I.C)
CONTENTS
1.0 Introduction
2.0 Objectives
3.0 Main Content
3.1 Enactment
3.2 Powers
3.3 Operation of N.I.C
3.4 Courts with similar jurisdiction
3.5 Other means of resolving Labour Industry Disputes.
3.6 N.I.C A.D.R centre
3.7 Referring decisions from ADR centre to Court
3.8 Appeals from N.I.C.
4.0 Conclusion
5.0 Summary
1.0 INTRODUCTION
The court has exclusive jurisdiction 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, safety, welfare of labour, employee,
worker and matter incidental thereto or connected therewith. The court also has exclusive
jurisdiction in civil matters relating to, connected with or arising from Factories Act, Trade
Disputes Act, Trade Unions Act, Workmen’s Compensations Act or any other Act or Law
103
relating to labour, employment, industrial relations, workplace or any other enactment
replacing the Acts or Laws. Appeals also lie from the Court to the Court of Appeal as
contained in Chapter IV of the constitution of the Federal Republic of Nigeria, 1999. The
National Industrial Court consists of the President of the Court and not less than twelve
Judges. Presently the National Industrial Court is manned by the President and nine other
Judges.
2.0 OBJECTIVES
This unit deals with the National Industrial Court, its enactment, composition and authority. It
also deals with matters under its purview and the scope of its authority.
3.0 MAIN CONTENT
3.1 Enactment: Section 254C of the Constitution of the Federal Republic of Nigeria (Third
Alteration) Act 2010 provides as follows:
1. Notwithstanding the provisions of Section 251, 257, 272 and anything contained in
this Constitution and in addition to such other jurisdiction as may be conferred upon it
by an Act of the National Assembly, the National Industrial Court shall have and
exercise jurisdiction to the exclusion of any other court in civil causes and matters-
2. Relating to or connected with any labour, employment, trade unions, industrial
relations and matters arising from workplace, the conditions of service, including
health, safety, welfare of labour, employee, worker and matter incidental thereto or
connected therewith;
3. Relating to, connected with or arising from Factories Act, Trade Disputes Act, Trade
Unions Act, Workmen’s Compensations Act or any other Act or Law relating to
labour, employment, industrial relations, workplace or any other enactment replacing
the Acts or Laws;
104
4. Relating to or connected with the grant of any order restraining any person or body
from taking part in any strike, lockout or any industrial action, or any conduct in
contemplation or in furtherance of a strike, lock-out or any industrial action and
matter connected therewith or related thereto;
5. Relating to or connected with any dispute over the interpretation and application of
the provisions of Chapter IV of this Constitution as it relates to any employment,
labour, industrial relations, trade unionism, employers association or any other matter
which the court has jurisdiction to hear and determine;
6. Relating to or connected with any dispute arising from national minimum wage for
the Federation or any part thereof and matters connected therewith or arising there
from;
7. Relating to or connected with unfair labour practice or international best practices in
labour, employment and industrial relation matters;
8. Relating to or connected with any dispute arising from discrimination or sexual
harassment at the workplace;
9. Relating to, connected with or pertaining to the application or interpretation of
international labour standard;
10. Connected with or related to child labour, child abuse, human trafficking or any
matter connected therewith or related thereto;
11. Relating to the determination of any question as to the interpretation and application
of any-
(i) collective agreement;
(ii) award or order made by an arbitral tribunal in respect of a trade dispute or a trade union
dispute;
(iii) award or judgment of the court;
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(iv) term of settlement of any trade dispute;
(v) trade union dispute or employment dispute as may be recorded in a memorandum of
settlement;
(vi) trade union constitution, the constitution of an association of employers or any
association relating to employment, labour, industrial relations or work place;
(vii) dispute relating to or connected with any personnel matter arising from any free trade
zone in the Federation or any part thereof;
1. Relating to or connected with trade disputes arising from payment or non-payment of
salaries, wages, pensions, gratuities, allowances, benefits and any other entitlement of
any employee, worker, political or public office holder, judicial officer or any civil or
public servant in any part of the Federation and matters incidental thereto;
2. Relating to-
(i) appeals from the decisions of the Registrar of Trade Unions, or matters
relating thereto or connected therewith;
(ii) appeals from the decisions or recommendations of any administrative
body or commission of enquiry, arising from or connected with
employment, labour, trade unions or industrial relations; and
(iii) such other jurisdiction, civil or criminal and whether to the exclusion
of any other court or not, as may be conferred upon it by an Act of the
National Assembly;
(m) relating to or connected with the registration of collective agreements.
(2) Notwithstanding anything to the contrary in this Constitution, the
National Industrial Court shall have the jurisdiction and power to deal with
any matter connected with orpertaining to the application of any
international convention, treaty or protocol of which Nigeria has ratified
106
relating to labour, employment, workplace, industrial relations or matters
connected therewith.
(3) The National Industrial Court may establish an Alternative Dispute
Resolutions Centre within the Court premises on matters on which
jurisdictions are conferred on the Court by this Constitution or any other
Act or Law:
Provided that nothing in this subsection shall preclude the National
Industrial Court from entertaining and exercising appellate and supervisory
jurisdiction over an arbitral tribunal or commission, administrative body,
or board of inquiry in respect of any matter that the National Industrial
Court has jurisdiction to entertain or any other matter as may be prescribed
by an Act of the National Assembly or any Law in force in any part of the
Federation.
(4) The National Industrial Court shall have and exercise jurisdiction and
powers to entertain any application for the enforcement of the award,
decision, ruling or order made by any arbitral tribunal or commission,
administrative body, or board of inquiry relating to, connected with,
arising from or pertaining to any matter of which the National Industrial
Court has the jurisdiction to entertain.
(5) The National Industrial Court shall have and exercise jurisdiction and
powers in criminal causes and matters arising from any cause or matter of
which jurisdiction is conferred on the National Industrial Court by this
section or any Act of the National Assembly or by any other Law.
(6) Notwithstanding anything to the contrary in this constitution, appeal
shall lie from the decision of the National Industrial Court from matters in
107
sub-section 5 of this section to the Court of Appeal.
(ii) Section254D- (1) provides further thus:
For the purpose of exercising any jurisdiction conferred upon it by this
Constitution or as may be conferred by an Act of the National Assembly,
the National Industrial Court shall have all the powers of a High Court.
Sub-section (2) of section 254D provides:
Notwithstanding sub-section (1) of this section, the National Assembly
may by law, make provisions conferring upon the National Industrial
Court powers additional to those conferred by this section as may appear
necessary or desirable for enabling the court to be more effective in
exercising its jurisdiction”.
3.2: Powers of the National Industrial Court of Nigeria:The 1999 Constitution Third
Alteration Act, 2011 confers on the National Industrial Court all powers of a High Court. The
Court is empowered-
 To confirm a judgment, an award or order made by the Court, tribunal or body

mentioned in the matter before it;
 To vary a judgment, an award or order made by the Court, tribunal or body mentioned
therein;
 To set aside a judgment, an award or order made by the Court , tribunal or body
mentioned therein;
 To order a rehearing and determination on such terms as it thinks just;
 To order judgment to be entered for any party;
 To make a final order or other order on such terms as it may think fit to ensure the
determination on the merits of the matter in dispute between the parties;
Powers.
 To make an order of mandamus requiring any act to be done

 To make an order of prohibition prohibiting any proceedings cause or matter; and
 To make an order of certiorari removing any proceedings, cause or matter into the
Court for any purpose.
 To grant urgent interim reliefs;
 To make a declaratory order;
 To appoint a public trustee for the management of the affairs and finances of a trade
union or employees’ organization involved in any organizational disputes;
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 To make appropriate order for an award of compensation or damages in any
circumstance contemplated by the NICA, 2006 or any Act of the National Assembly
dealing with any matter that the Court has jurisdiction to hear ; and
 To make an order of compliance with any provision of any Act of the National
Assembly dealing with any matter that the Court has jurisdiction to hear.
3.3: Operations of the National Industrial Court: The Court combines the rule of law
applicable in conventional law courts with flexibility, expediency, reliability and affordability
often associated with specialised courts.
The Judges of the Court have considerable knowledge and experience in the law and practice
of industrial relations and employment conditions in Nigeria.
In all civil matters the Court is bound by the Evidence Act.
In exercising its criminal jurisdiction, the Court applies the Criminal Code, Penal Code,
Criminal Procedure Act, Criminal Procedure Code and Evidence Act in the determination of
criminal matters brought before it.
Procedure before the Court is regulated by the Constitution of the Federal Republic of
Nigeria 1999 (as amended) National Industrial Court Act, 2006 and the National Industrial
Court Rules, 2007, the Trades Disputes Act, 1990 (as. Amended)
3.4Courts with Similar Jurisdictions:There are similar Industrial/Labour Courts in other

jurisdictions such as Trinidad and Tobago, Ghana, Tanzania, India, Ireland, South Africa and
other countries.
3.5: Other means for resolving labour industrial relations matters outside the Court:
There are other means of resolving labour, employment and industrial relations disputes.
These include dialogue, arbitration, mediation and conciliation.
The Court encourages parties to exhaust reasonable avenues to resolve their disputes before
they recourse to litigation. The Court recognises the importance of tribunal, arbitration,
mediation and conciliation. When parties are not satisfied with the decisions from these
organs, they can then appeal the decision or bring it on as original application.
3.6: National Industrial Court Alternative Dispute Resolution Centre: The 1999
Constitution Third Alteration Act, 2011 provides for the establishment of an Alternative
Dispute Resolution Centre within the premises of the Court. The Centre offers varied
alternative means of disputes resolution on matters which jurisdiction is conferred on the
Court.
3.7 Referring Decision of Alternative Dispute Resolution Centre to Court.
By the operation of law, the Court has jurisdiction over ANY civil and criminal dispute on
matters which jurisdiction is conferred on the Court. As such any dispute could be referred to
or filed with the Court irrespective of the previous attempts at resolution.
3.8 Appeals from the National Industrial Court of Nigeria

Section 243(2) and (3) of the Constitution of the Federal Republic of Nigeria (Third
Alteration) Act 2010 provides as follows:
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1. An Appeal shall lie from the decision of the National Industrial Court as of right to
the Court of Appeal on questions of fundamental rights as contained in Chapter IV of
this Constitution as it relates to matters upon which the National Industrial Court has
jurisdiction.
2. An Appeal shall only lie from the decision of the National Industrial Court to the
Court of Appeal as may be prescribed by an Act of the National Assembly:
Provided that where an Act or Law prescribes that an appeal shall lie from the decisions of
the National Industrial Court to the Court of Appeal, such Appeal shall be with the leave of
the Court of Appeal.
1. Without prejudice to the provisions of Section254C (5) of this Act, the decision of the
Court of Appeal in respect of any Appeal arising from any civil jurisdiction of the
National Industrial Court shall be final.
3.9: Powers of the National Industrial Court of Nigeria

Section 254D of the Constitution of the Federal Republic of Nigeria (Third Alteration) Act
2010 provides as follows:
1. For the purpose of exercising any jurisdiction conferred upon it by this Constitution or
as may be conferred by an Act of the National Assembly, the National Industrial
Court shall have all the powers of a High Court.
2. Notwithstanding subsection (1) of this section, the National Assembly may by law,
make provisions conferring upon the National Industrial Court powers additional to
those conferred by this section as may appear necessary or desirable for enabling the
Court to be more effective in exercising its jurisdiction.
4.0 CONCLUSION
It is pertinent to familiarise oneself with the provisions above. This notes are in no way
exhaustive and student should familiarise themselves with the details and procedures herein.
5.0 SUMMARY
In this unit, students have been able to know the provisions of the N.I.C and its relevance in
practise to Nigerian labour relationship management.
6.0 TUTOR MARKED ASSIGNMENT
How have the N.I.C helped in dispatching labour matters.
Federal Republic Nigeria, 1999 Constitution.
110
UNIT 3Industrial Training Fund
CONTENTS
1.0 Introduction
2.0 Objectives
3.0 Main Content
3.1 Establishment of the Act and its purpose
3.2 Amendment to the Act
3.3 Variation of the rate of contribution and other variations
3.4 Penalty
4.0. Conclusion
5.0. Summary
6.0. Tutor Marked Assignment
1.0 INTRODUCTION
The Industrial Training Fund (ITF) was established in 1971 by decree 47 of 1971 and
amended by the Industrial Training Fund Act 2011. It is managed under a council and has its
presence in all the states of the Federation. Its headquarters are located in Jos, Plateau state
and corporate headquarters in the Federal Capital Territory, Abuja.
It was set up to encourage the acquisition of skills in industry or commercein Nigeria with a
view to generating a pool of indigenous trained manpower sufficient to meet the needs of the
economy.
2.0 OBJECTIVES
This unit will educate the student about the ITF, its enactment and application the benefits
and challenges thereof and its implementation.
111
3.0 MAIN CONTENT
3.1 Establishment of the Act and its purpose: The Council established under theAct is
required to provide or secure the provision of training for persons employed or intending to
be employed in industry or commerce in Nigeria as may be required periodically; approve
such courses and facilities provided by other persons; consider the employment in industry or
commerce as appears to require special consideration and publish recommendations in
respect of trainings to be undertaken. The Council is required to conduct research and/or or
assist othersto do so in matters of employment doing in industry or commerce.
Under the Act, employers are required to provide adequate training for indigenous staff to
improve their job skills. Organisations are mandated to forward the evidence of the above
training to the ITF for refunds.
3.2 Amendment to the Act: The Act was amended in 2011 by the Industrial Training Fund
(Amendment) Act 2011 was signed by the president on 3 June 2011 and gazetted on 22 June
2011.
The following important amendments were made:
1. The ITF is now empowered to appoint agents to assist in the performance its
functions.
2. The Minimum threshold for an employer to be liable for contribution under the
Act is now 5 employees rather than 25 or a turnover of N50m (Fifty million
naira) and above per annum.
3. Organisations are required to contribute 1% of payroll.
4. “Payroll” has been defined to mean the sum total of all basic pay allowances
and other entitlements payable within and outside Nigeria to any employee in
an establishment, public or private.
112
5. “Employees” means all persons whether or not they are Nigerians employed in
any establishment in return for salary, wages or other consideration, and
whether employed fulltime or part-time and includes temporary employees who
work for periods of not less than thirty days (previously 3 months in a year).
Organisations bidding or soliciting businesses from government and private entities are
now required to show evidence of compliance with their statutory obligations with respect to
payment of training contribution to the Fund.
All regulatory agencies of the Federal Government are required to ensure compliance with
this provision.
Entities in the free trade zone requiring approval for expatriate quota and/or utilizing custom
services in matters of export and import are to show proof of compliance with the Act
3.3 Variation of the rate of contribution is now to be by order published in the Gazette by the
Minister of Industry with the approval of the Federal Executive Council. Previously the
Minister, with the approval of the President by order was free to publish in the Federal
gazette, vary the rate of contribution
The maximum refund which employers can claim has been reduced from 60% to 50%
of the amount paid in respect of the training programme of the employer being in accordance
with the Fund’s reimbursement schemes.
3.4 Penalty for failure by an employer to provide adequate (documented) training for its
indigenous staff or to accept students for industrial attachment purposes or for providing false
113
returns or information is in the case of a body corporate a fine of N500,000 (previously
N5,000) for the first breach and N1,000,000 (previously N10,000) for each subsequent
breach. In the case of the Chief Executive, Secretary or other principal officer of the company
to a fine of N50,000 (previously N1,000) or two years imprisonment for a first breach and
two years imprisonment without option of fine for each subsequent breach.
The power to waive penalty in whole or in part is now vested in theDirectorGeneral of the
Fund (previously the Council).
Action for recovery of contributions under the Act may now be instituted by agents of the
Fund on behalf of the DirectorGeneral. Contributions for this purpose
include underpayment and any interest or penalty payable for late payment.
Any question or dispute relating to liability of an employer to pay contribution under the Act
is to be determined by the court (previously by the Minister of Industry).
SELF ASSESSMENT EXERCISE
Describe what you perceive as the benefits of the amendment of the ITFA 2011.
4.0 CONCLUSION
The submission made in this unit is not exhaustive and students are advised to embark on
further readings to broaden their knowledge of the topic containing the basic and essential
requirement which serves as a reference point for the unit.
5.0 SUMMARY
At the end of this unit you should have been familiar with the provisions of the Industrial
Training Fund and the current changes thereto.
1. What is the legalthe Industrial Training Fund in the management of labour relations?
114
1. Industrial Training Fund Act 1971 as amended by the Industrial Training Fund Act
2011.
2. Decree 47 of 1971.
Well Done! You have crossed the finished line remember to read over, reference, cross
reference and acquaint yourself with the position in recent judgements and enactments.
115

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NATIONAL OPEN UNIVERSITY OF NIGERIA

COURSE CODE: LAW 232

COURSE TITLE: LABOUR LAW II

NATIONAL OPEN UNIVERSITYOF NIGERIA

COURSE CODE: LAW 232

COURSE TITLE: LABOUR LAW II

Course Writer MRS. SOIBI GODWIN-CLARK

COURSE EDITOR: Dr. (Mrs.) Erimma Gloria Orie

DEAN: Prof. Justus. A. Sokefun

No. 5 Dares Salaam Street

OffAminu Kano Crescent

Wuse II, Abuja

Published by: National Open University of Nigeria

All Rights Reserved

Working through this Course……………………...................………………. 2

Course Materials ………………………………...................…...……………. 2

Text Books and References…………………...................……………………. 3

Final Examination and Grading…………....................………………………. 4

Course Score Distribution…………………...................………………….….. 4

How to Get the Most from this Course…………………………..................... 5

Facilitators/Tutors and Tutorials…………………………………....................6

LegalSystem by reason of our affiliation with Englandthrough the instrument of colonialism.

employee/employers relationship in Nigeria and ancillary issues. They most importantly,

workability in amodern democracy.

access to and knowledge of the following by the end of the course:

(iii) Determine the meaning of Collective Agreements

process in the age of Information Technology.

(vi) Know the basic operational structures of atrade union.

strike, picketing and lock-out.

(viii) Differentiate between TortuousLiability and Trade Dispute.

activities are settled.

(xi) Know the implication of the Workmen’sCompensation Act on the contract of

employment, particularly on an employee.

expected to attempt to enhance your knowledge. You may be required to submitassignments

complete thecourse successfully and on time.

The major components of the course are:

1. The Course guide

4. Referred Case Law

MODULE 1: COLLECTIVE BARGAINING AND AGREEMENT.

Unit 2 Collective Agreement

Unit 3 Frame work & Nature

Unit 4 Recognition of Trade Unions & Duty of Disclosure

MODULE 2: TRADE UNIONS.

Unit 2 Rights & Obligations:

Unit 3 Criminal Liability & Civil Liability (Tortuous Liability):

Unit 4 Settlement of Trade Dispute

MODULE 3: SAFETY AT WORK.

Unit 1 Employers Duty of Care: Protecting Health & Safety

Unit 2 Factories Act

Unit 4 Workmen’s Compensation Act

Unit 5 Employers Vicarious Liability

Unit 1 Agencies: I.A.P

Unit 3 Industrial Training Fund

are expected to study and come to terms with.

individual units and of the course.

Text Books and References

and critical understanding of issues !

written examination. In doing these assignmentsyou are expected to apply knowledge

marked assignment currently accounts for 30% of your total score.