Notification as a procedure in dispute settlement occurs at different times in direct negotiation in Australia and Nigeria. Under the Australian law, except, perhaps, for the effect of s. 115 of the 1988 Act, notification occurs before the negotiation of substantive agreement begins; in Nigeria, it occurs after. However, the condition under which the procedure occurs and the character that it takes are similar in the two countries: once a point of impasse is reached, notification is mandatory. In this respect, both countries contrast with Britain where the compulsory arbitration system which operated between 1940 and 1959 (see Kahn-Freund, 1959) placed no obligation on the parties to a dispute to notify the relevant Minister, not even during the regime of the notorious Conditions of Employment and National Arbitration Order 1940 (Tumer-Samuels, 1951: 289).
At the start of the Commonwealth system in Australia, the law empowered the Arbitration Court to have cognizance of all industrial disputes which were certified by the Registrar as proper to be dealt with by the Court in the public interest, those which were submitted to the Court by an organisation (by plaint in the prescribed manner) and those which any State Industrial Authority or a State Governor-in-Council has requested the Court to deal with (s.19 of the original 1904 Act). In 1956, this procedure was changed to notification (see "s.l6M" as inserted by s.7 of No. 44 of 1956).
Section 25 of the 1904 Act (as amended) and s.99 of the 1988 Act provide that once an industrial dispute has occurred, the parties are (or any of them is) obliged to notify the tribunal forthwith, i.e. "as soon as an organisation or an employer becomes aware of an existence of an (alleged) industrial dispute affecting" them. The sections also permit the Minister who becomes aware of a dispute to notify the tribunal. The notification covers all such disputes except, as now provided in s.99(4) of 1988 Act, those relating to secondary boycotts.
Also, if it appears to the tribunal that an industrial dispute has occurred or is likely to occur, the tribunal shall, whether it has been notified or not, immediately ascertain the parties and the matters and shall take such steps as it thinks fit. The tribunal can do this because it is has been armed with a compulsory power of intervention (see s.21 of the 1904 Act; s.33 of the 1988 Act). In other words, in contrast to the United States and Britain where the existing procedure is basically contractual, i.e. based on consent of parties, the tribunals in Australia have power to take over dispute situations whether the parties like it or not. Thus the notification, howsoever made, obliges the parties to the dispute to answer to the tribunal.
The Hancock Committee (1985: 547) specifically supports the provision for the tribunal's intervention which, according to them, has "the effect of placing disputes before the Commission earlier than might otherwise occur". In fact they are in favour of the legislation making this power more explicit by requiring "the relevant member of the Commission to make himself aware of actual or impending disputes situations and to move quickly on his own motion ..." (p.548).
In the Nigerian law, either party to a dispute which has not been resolved by the collective bargaining machinery, where it exists, is obliged to report the dispute to the Minister of Labour, Employment and Productivity within a specified period after the failure of the direct negotiation and/or mediation (s.4 of 1976 Decree). Under s.4 of 1968 Decree, now superseded by the 1976 Decree, the party had to declare a dispute and then notify the Commissioner of the declaration accordingly; and failure to do so was an offence.
This statutory obligation to notify is similar to that which the Australian law has imposed upon parties to an industrial dispute. The opposite is the case in Britain where, as indicated earlier, parties are under no obligation to notify disputes either to the Advisory Conciliation and Arbitration Service or the Government. In the United States,
notification is required to the Federal Mediation and Conciliation Service only in certain types of disputes (see Blain, et. al., 1987: 185).
Section 5(2) of the Nigerian 1968 Decree empowered the Commissioner (as the official was then called) to apprehend disputes and take action. This provision was dropped in the 1976 Decree but restored by amendment No. 54 of 1977, inserting s.3A which says: "where a trade dispute is apprehended by the Minister he may in writing inform the parties or their representatives of his apprehension and of the steps he proposes to take for the purpose of resolving the dispute” (per sub-section 1).
This provision gives the Minister power of direct intervention, similar to the power which the Australian law has given to the Commission. For, as Adeogun (1972: 114) had observed with regard to the 1968 provision, "what is new is that the [Minister] can resort to [conciliation, formal inquiry and arbitration] without the consent of the parties to the dispute ...".
It is pertinent, at this juncture, to examine the question: when has a dispute occurred or when is there a dispute situation? It is the existence of such occurrence or situation that triggers the process of notification in Australia and Nigeria.
Brooks (1986: 157) has noted that originally the High Court in Australia looked to strikes and lock-outs as evidence for the existence of an industrial dispute; and that this approach changed in 1938 when the Court ruled that demands genuinely made in the interest of an organisation and not acceded to, so long as the geographic limits of one State are exceeded, bring into existence a dispute ^
The change in approach is a fact, but it would seem that it actually occurred much earlier than 1938. Before 1913 the judicial position was that "a process of written
^ See The Australian and Motor Omnibus Employees Association v Commr for Road Transport and
demand for the improved working conditions and refusal thereof had not brought into existence a 'dispute' within the meaning of section 51(xxxv) of the Constitution" However in the Merchant Service Guild Case^ this process was held to be sufficient to create a dispute. Also, in the Builders' Labourers' Case (1914) 18 CLR 224, the High Court decided that a formal demand for improved conditions of pay and work, if refused, affords a prima facie evidence of a dispute.
Plowman (1983: 13-15) makes a sociological point by attributing this change in approach to the appointment of Charles Powers, Frank Gavan Duffy and George Edward Rich to the High Court in 1913. He said, "one of the first industrial results of the new appointments was the acceptance of the 'paper' dispute as constituting a 'genuine' dispute". While the death of Justice O'Connor in 1912 and the enactment of the Judiciary Act 1912 which increased the size of the Court from five to seven were the immediate pretext for this appointment, what is significant is that the change in the personnel of the High Court brought with it a change in the dominant perspective of the Court.
In any case, it does not seem that there are, any longer, questions about the sufficiency of "paper disputes" for the purpose of notification, and ipso facto of setting the industrial machinery in motion. Sykes (1957: 471 footnote 36) characterises this as "merely a technique to justify the court, with the assistance of the parties, in writing a code for the industry". Typically, a union seeking an award draws up a "log of claims" which it sends to specific employers in at least two States. If the claims are refused, which is often likely since their ambit is usually wider than what the union expects to obtain at the time, a dispute has arisen and the union notifies the tribunal (the Registrar, a member or a Presidential Member of the Commission) accordingly, or it may be apprehended by the tribunal or the Minister who in turn may notify the tribunal.
^ See The King v. The Court of Conciliation and Arbitration and the Merchant Service Guild of Australasia (1912) 15 CLR 586.