The products of the arbitration stage in the process of dispute resolution in Australia and Nigeria are arbitral awards. Unlike the products of the other processes, the element of consensus is, technically speaking, absent in these awards. Once validly made, the awards are "binding and conclusive".
The Australian law provides directives for the subjects, framing and operations of this type of award. Those dealing with the subjects can be seen in ss.48, 51-55 of the 1904 Act and ss.94-97, 123 of the 1988 Act. The subjects covered include rates of wages, uniformity throughout an industry in relation to hours, holidays and general conditions, schemes of apprenticeship, safety, health and welfare of employees. The awards are to be framed in such a manner as to best express the decision of the Commission and to avoid unnecessary technicalities (s.56 of 1904 and 144 of 1988).
Furthermore, in terms of the operation, the awards are to specifiy the period during which they will continue in force. The periods nominated in s.58(l) of the 1904 Act (five years for arbitral awards and three years for certified agreements) have been left out in the 1988 Act. They are now replaced by the directive that the Commission have regard to the wishes of the parties to the industrial dispute and the desirability of stability in industrial relations. This new provision (i.e for the Commission's cognizance of the wishes of the parties) does not suggest that the consensus of the parties is now required for the making of awards.
In the Nigerian law, the making of arbitral awards is governed by ss.7, 9-12 of the 1976 Decree. When a dispute is referred to arbitration, the tribunal had, under paragraph s.9(l)(a), to make its awards within 42 days of its constitution or such longer period as the Minister may in any particular case allow. By the Decree No. 39 - Trade Disputes (Amendment) Decree 1988 [s.l(d)], the former period has been reduced from 42 to 21 days. This has restored the period which was stipulated in paragraph s.l2(l)(a) of the
1968 Decree.
Upon making the award, the tribunal is to send a copy thereof to the Minister. The Minister may refer the award back to the Tribunal for re-consideration (no grounds specified) or give/cause to be published a notice to the parties setting out the award and specifying the time and manner for a notice of objection to be lodged with her/him. Barring all this, the Minister is to publish in a Gazette a notice confirming the award, thus making it binding on the employers and workers to whom it relates.
Where an objection to the award is raised by the parties according to the Decree, the Minister shall refer the dispute to the NIC whose award shall be final and binding. If the terms and conditions of employment in this award are more favourable than any statutory provisions, i.e. "in any written law [and instruments made under them] in force in Nigeria”, the award shall prevail [see s. 10(3)].
Ubeku (1983: 174) has joined issue with the argument of Adeogun that "the awards of the IAP should, without more, become binding on the parties immediately upon publication, leaving it to the parties themselves to decide whether or not an appeal should be lodged with the National Industrial Court"^. This argument can be interpreted to have two parts: one, the provision that the award of the IAP should be confirmed by the Minister before it acquires a binding force is unnecessary and reduces the independent stature of the IAP; and two, the parties should have direct access to the NIC.
Ubeku's disagreement seems to be with the first part of the argument. He believes that "the IAP, sometimes out of enthusiasm, hands down decisions that are not in accord with practice in industry" or which offend "provisions of government's incomes policies". Therefore, "the involvement of the Minister of Labour is necessary to ensure that the award is not only fair and just but in accordance with government economic parameters and industrial practice generally".
Obviously there is the need for awards to be fair, just and in accordance with policies and practice. What is not clear is whether Adeogun's argument per se jettisons these virtues and how the involvement of the Minister by way of confirming awards necessarily guarantees such virtues. Ubeku talks of the need of opportunity for the Ministry of Labour to register awards for future experience and to be made aware of actions taken in law in the settlement of disputes. This objective can easily be accomplished through an administrative arrangement requesting the IAP to deposit their determinations with the Ministry on a regular basis. What this aspect of Ubeku's
argument seems to ignore is the fact that without the power to vary any award (see s.9 of 1976), the Commissioner/Minister could do very little to ensure fairness in awards. Regarding the need for harmony between awards and government incomes policies, Ubeku himself cited a case which, on the face of it, shows that the involvement of the Minister may not, in itself, guarantee harmony. The award of the IAP in the
Management of the Nigeria Airways Ltd. v Airline Pilots Association of Nigeria in
October 1975 was confirmed six months later by the Federal Commissioner of Labour (as the office was then called). The federal government considered the scale of salaries awarded too high, was apparently unhappy about this and, in the circumstances, passed the Industrial Arbitration Tribunal (Variation of Certain Award) Act 1979 to annul the award. Where does the "lapse" lie: with the enthusiasm of the IAP or the Commissioner who did not pick out the lack of harmony of the award with government incomes policy? In any case, the guidelines which are issued at the beginning of every financial year since 1977 by the Productivity, Prices and Incomes Board under the Productivity, Prices and Incomes Policy Act 1977 are meant to ensure harmony between awards on wages and government incomes policies.
It must be mentioned in passing that the power of intervention, as shown in action of the government in the above-cited case, is reminiscent of the power of the Australian Commonwealth Parliament over its public servants. As Higgins (1922: 36) has pointed out, although the Parliament entrusted the function of the settling of wages, hours and conditions of labour for Federal public servants to the Arbitration Court in 1911, the Parliament retained the final control. Until 1983, if an award was made on those issues, it would "not come into operation till the expiration of thirty days after it has been laid before both Houses, and Parliament [could], ... pass a resolution disapproving of the award".
It might appear from the foregoing discussion that the role of the government shows a significant difference between Australia and Nigeria with regard to the entire process of award-making. There is a view that apart from the National Wage Cases where the Industrial Relations Commission must consider macro-economic matters and the Commonwealth government is just one party making submissions, there is little political intervention in Australia as in Nigeria. This does not reflect the whole matter. In law and practice, significant political intervention exists in both countries. Beside the submissions by the government in wage cases in Australia, ss.36 and 106 of the 1904 Act or 44 and 60 of the 1988 Act give rights of intervention to the Minister in matters
before the Commission and Industrial Court. And, in addition to the clash between Hughes (the then Prime Minister) and Higgins (the then President of the Arbitration Court) summarised earlier in the thesis, there are other illustrations of the practice of political intervention in Australia (see Hancock, 1979: 15).