that the Commonwealth and the States were each 'sovereign' within their respective fields and each was to be free to perform its functions "without interference, burden or hindrance from the other government" (Zines, 1987: 1).
For well over a decade this doctrine held sway (not without some limits, e.g. of "logical necessity") until it was overruled in the Engineers' C a s eThe question in that case was whether an award of the Commonwealth Court of Conciliation and Arbitration could be made arising out of an interstate dispute where certain of the respondents were State instrumentalities. The High Court decided in the affirmative and thus removed the limitations previously imposed on the scope of application of the Commonwealth conciliation and arbitration law. But then the High Court managed to construe "industrial dispute" to mean dispute "in an industry", so that significant sections of State governmental employment were excluded, notably school teachers, fire fighters and public servants (and by analogy, health and welfare workers). This view lasted from 1929 to 1983 when it was overturned in the Social Welfare Union case (1983) 57 ALJR 574.
The application of the means of compulsory conciliation and arbitration in the Nigerian law is also general. From the beginning of the system, the law applied to all workers, public and private, with the exception of the armed forces, the police, the prison and fire services (see s.21 of 1968). S.38 of the Trade Disputes Decree 1976 added Customs Preventive Services to the list of exemptions. Despite these exceptions, the law applies to all disputes involving "workers employed by or under the Government of the Federation or a State as it applies to persons employed by a private person" (Adeogun, 1987: 182-183). "In effect therefore", Adeogun continues, "save as provided by Section 38(2), trade disputes involving public sector employees are covered by the Act"* 9.
^ Amalgamated Society of Engineers v Adelaide Steamship Co. Ltd. (1920) 28 CLR 129. 9 Section 38(2) provides thus: "This Act shall not apply to-
(a) any member of the Nigerian Army, Navy or Air Force; (b) any member of the Nigeria Police Force;
The enactment of the Trade Disputes (Essential Services) Decree 1976 was not intended to exclude essential services disputes from the operation of the arbitration system. S.5 of the Decree which empowers the Commissioner/Minister to take action clearly indicates that these disputes are to be processed within one and the same system. It provides:
Where any trade dispute exists or is apprehended and it appears to the Minister that the dispute is one to which persons employed in any essential service are a party or might become a party, the Minister may ... refer the dispute for settlement to the Industrial Arbitration Panel established under section 7 of the principal Act , and the provisions of that section (as well as any other relevant provision of the principal Act) shall apply in respect of the dispute to the same extent as they apply to any trade dispute referred to the Industrial Arbitration Panel under the principal Act.
In contrast to the situation of Australia and Nigeria, the means of compulsory arbitration in other countries does not apply automatically to all disputes. For example, the Guatemalan Labour Code, the Jamaican Labour Relations and Industrial Disputes Act, the Kenyan Trade Disputes Act, the Pakistan Industrial Relations Act 1973, the Sri
Lankan Industrial Disputes Act, the Sudanese Regulation of Trade Disputes Act and the Thailand Labour Relations Act all provide for compulsory arbitration only in disputes either involving federations of trade unions as a party, or which are considered of national importance, i.e. in essential services (see Givry, 1978: 42-46).
In the United Kingdom, under the now repealed Industrial Relations Act 1971, the disputes had to be ones which "seriously threaten the national health, safety, economy or livelihood of a substantial proportion of the community" in order for them to attract government intervention in the form of limited compulsory arbitration. The means in the United States is limited to "public utility disputes". Likewise in Canada some employees are "governed by special labour relations legislation [compulsory arbitration
(c) any officer of whatever rank appointed to carry out duties in relation to any prison within the meaning of the Prisons Act 1972;
(d) any member of the Customs Preventive Service;
(e^ any member of any other service of the Federal or State Government authorised to bear arms." ^ This refers to the Trade Disputes Act 1976.
schemes] because they are seen as operating in sectors in which it is deemed unwise to give them unrestricted collective bargaining rights" (Glasbeek, 1976: 55).
4.2.5 Constitutional limitation on the purpose and means
The scope of the central purpose and means adopted in Australian and Nigerian law is also influenced by the constitutions under which both countries are governed. As federations, both countries have a division of constitutional powers between federal and state governments. In Australia, section 51 (xxxv) of the schedule to the
Commonwealth of Australia Constitution Act 1900 ^ allocates industrial power to the Commonwealth in the following words:
"51. The Parliament shall, subject to this Constitution, have power to make laws for the peace, order, and good government of the Commonwealth with respect to -
(xxxv) Conciliation and arbitration for the prevention and settlement of industrial disputes extending beyond the limits of any one State:"
Establishing the meaning of this placitum or head of power has been a major preoccupation of the Australian High Court. However it can be understood from the construction that: (1) read together with s.107 of the Constitution, this Commonwealth power is concurrent rather than exclusive vis-a-vis the powers of the States, although the inconsistency-of-laws provision in s.109 of the Constitution favours the Commonwealth's activity within the bounds of the placitum; and (2) the wording of this enumerated power precludes the Commonwealth Parliament from dealing with labour conditions in a general wav, except as they relate to "any department of the public service the control of which is by [the] Constitution transferred to the Executive Government of the Commonwealth" or in the Australian Capital Territory or the Northern Territory [ss.52(ii) and 122; for more details, see Macken, 1974; Lane, 1987].
11 This is an imperial Act, enacted by the Parliament of the United Kingdom and given royal assent in