There are four main stages in the processes of arbitration system in Australia and Nigeria: negotiation, notification, conciliation, and arbitration. In their initiation and conduct, it will be seen that the Executive arm of Government plays a more significant referral role in Nigeria than in Australia. Apart from this material difference, the processes in both countries are fundamentally similar in that they are automatic and mandatory.
5.2.1 Negotiation and the status of collective bargaining
In the Australian and Nigerian laws there are provisions which recognise collective agreements concluded by parties to an industrial dispute. The implication of this, regarding the status of direct negotiation or voluntary collective bargaining in systems
that are essentially compulsory and arbitral, has remained a question for debate. Nevertheless, the recognition of collective agreements underlines the importance that is attached to direct negotiation in the arbitration systems of both countries.
Part VI (ss.73-78) of the original Australian Act of 1904 provided that organizations may make industrial agreements with themselves "for the prevention and settlement of industrial disputes by conciliation and arbitration", a duplicate of which was to be filed in the office of the Industrial Registrar within 30 days of the making thereof. The Registrar was, if requested, to investigate and confirm with a certificate "that the fact is as stated". Upon this confirmation, the agreements would, during their continuance, be binding on all parties thereto and their breach was punishable by pecuniary penalty.
In 1972 there was an amendment to the law. In addition to the existing provision for industrial agreements (now Part X, ss. 172-180 of the Act), it was provided to the effect that the Commission, in dealing with an industrial dispute, should encourage the parties to agree on procedures for preventing or settling further disputes and this should be included in an award (s.20 of the Act 1904-1986). This amendment followed the publication by the National Labour Advisory Council of guidelines on "Procedures for Dealing with Industrial Disputes" which listed principles to guide parties seeking to incorporate grievance procedures in their awards or agreements.
Does this provision encourage negotiation for procedural agreements or for substantive agreements or for both*? At the early stages of the system, there was a judicial ruling on a question of this nature in Federated Engine Drivers and Firemen's Association of A'asian v Broken Hill Pty Co Ltd (No 3) (1913) 16 CLR 715. The parties had made an agreement purporting to settle the wages and working conditions of members of the workers organisation. They described the agreement as made pursuant to the Act and
* As defined in s. 167 of the English Industrial Relations Act 1971, these are key elements in collective bargaining, being "negotiations with respect to terms and conditions of employment, or with respect to the making, variation or recission of a procedure agreement, or with respect to any matter to which a procedure agreement can relate".
incorporated the provision for the reference of any dispute arising under the agreement to a conciliation board. The High Court, however, held that this was not an agreement within the meaning of Part X because it contained such substantive issues as wages and working conditions.
Mills and Sorrell (1975: 404) drew upon this judicial ruling in their comment that "the only industrial agreement contemplated by this part of the Act is one for the prevention and settlement of industrial disputes by conciliation and arbitration". In effect, the negotiation contemplated is one which would lead to an agreement only on procedures or methods for the prevention and settlement of industrial disputes. This understanding appears to be at variance with that submitted by the Hancock Committee (1985: 367) when they say
The provisions of Part X of the Act enable parties covered by a federal award to choose, by mutual consent, to enter into an industrial agreement for the prevention and settlement of disputes by conciliation and arbitration. Bv the use of such procedures, agreed terms and conditions of employment could be arrived at and provision made for the enforcement of those terms and conditions (emphasis, mine).
Even though this understanding appears, in the light of the existing judicial interpretation, to be stretching the construction of Part X too far, it is closer to the meaning which the framers of the law had put on Part X. In his explanatory speech in the House of Representatives Deakin referred to the agreements contemplated in Part X as voluntary industrial agreements between employers and employees made quite independently of the Arbitration Court "in regard to the conduct of the particular trade or business in which they are engaged" (CPD, 1903 vol. XV: 2861-2). McCallum (1986: 301) has a similar understanding of this Part as indicated by his view that the framers of the original 1904 Act made room for voluntary agreements by employers and employees on substantive issues such as wage rates and work rules.
However, the judicial interpretation shows that the provision would not meet a generally held definition of collective bargaining as "a method, or process, of
conducting negotiations about wages and working conditions and other terms of employment between an employer, or group of employers, or employers' associations on the one hand, and representatives of workers and their organizations on the other, with a view to arriving at collective agreements ..." (Marsh, 1979: 54). Neither does it accord with article 4 of Convention 98 (Concerning the Application of the Principles of the Right to Organise and to Bargain Collectively), adopted by the ILO in its 32nd session on 8 June 1949. This Convention provides that appropriate measures be taken "to encourage and promote the full development and utilisation of machinery for voluntary negotiation between employers or employers' organisations and workers' organisations, with a view to the regulation of the terms and conditions of employment by means of collective agreements". Nonetheless it can be suggested that the restriction on the Part X agreements was the creation of the High Court, not the Legislature.
Another provision in the Australian law recognising "collective agreements" is s.28 of the Conciliation and Arbitration Acfi. It provides that parties could make a memorandum of an agreement reached between themselves on terms for the settlement of all or any of the matters in dispute before this dispute is referred to arbitration in accordance with the Act, or during arbitration proceedings as per s.30(3). The parties could request the Commission to certify this memorandum which, when certified, would have "the same effect as, and shall be deemed to be, an award of the Commission for all purposes of this Act". Compared to the provision under Part X, the difference here is that this provision allows negotiation to reach agreements on substantive issues of industrial relations. That is, the negotiation can address issues which would normally be addressed in a conventional collective bargain.
Niland (1978: 82) is sceptical about this measure of negotiation as it is provided for in "the Australian approach to industrial regulation [which] is still dominated by the institutions and mental postures of compulsory arbitration". The negotiation is to be conducted under the shadow of arbitration. Nonetheless, drawing on the "Direct
Negotiation Survey" and the "Scott & Co Survey" conducted in 1975 and 1977 respectively, he attempts to demonstrate that the "incidence of collective bargaining", especially outside the tribunal structure, has been significant in Australia (see pp.83- 85).
Creighton, et. al. (1983: 510-513) share the view that "direct negotiation and collective bargaining play a more significant role in our industrial relations systems than is often supposed". In support of this position they then list a number of case studies which have focused upon "'conventional form' bargaining in Australia". They also highlight "one extremely important form of direct negotiation - namely, overaward bargaining" which Niland appears to have overlooked in his categorisation of bargaining proper in Australia.
The Industrial Relations Act 1988 seems to have given more recognition to substantive agreements than was previously the case. It strengthens the provisions in the old law and adds new ones. In addition to providing for the Commission to give greater "encouragement" to the parties to agree on grievance procedures (s.91), it enjoins the Commission, in exercising its powers in relation to an industrial dispute, to have regard to the extent to which the parties have complied with the procedures (s.92). The latter provision is entirely new in the law. It says:
Where the parties to an industrial dispute are bound by an award that provides for procedures for preventing or settling industrial disputes between them, the Commission shall, in considering whether or when it will exercise its powers in relation to the industrial dispute, have regard to the extent to which the procedures (if applicable to the industrial dispute) have been complied with by the parties and the circumstances of any compliance or non-compliance with the procedures.
It should be observed that this new statutory requirement reflects, to some extent, the [existing] practice of the Arbitration Commission.
Of more significance is the new provision in s. 115 which, in my view, contemplates negotiation in its own right and not as a stop-gap between conciliation and arbitration as was the case in s.28 of the 1904 Act. One is inclined to this view even though
s. 103(1 )(a) of 1988 describes the action in s. 115 as part of the completion of conciliation proceeding. Perhaps this unclear picture has arisen from the situation in which the provision "embraces but transforms two different types of agreement envisaged by [the 1904 Act] - s.28 (certified memorandum of agreement) and Part X (industrial agreement)" (Weeks, 1989: 2043)^.
In any case, the provision allows for the making of a memorandum of agreement on "terms for the settlement of all or any of the matters in dispute". Upon application by the parties and satisfying certain conditions, the memorandum shall be certified by the Commission. The certification gives the agreement the effect of an award and makes its terms prevail over any existing award or order of the Commission dealing with the same matters and binding on each of the parties to the agreement (s. 116). This provision is a clear indication that direct negotiation, leading to substantive agreements in their own right, is contemplated in these provisions and it reflects the recommendation which had been made on this issue by the Hancock Committee (1985: 369).
It may well be that the recommendation was part of the pressure under which the federal government had been "for some considerable time ... to enact legislation which would enable employers and employees within an enterprise to negotiate agreements relating to wages and conditions" of employment (Marks, 1989: 68-69). Whatever the motivation may have been, it is defensible, as Mitchell (1988: 493) has argued, to see this provision "as a contribution to the strategy aimed at enhancing the flexibility of the centralized system".
Obviously, the full impact of this new regime on conventional collective bargaining in Australia, in contrast to that of the old regime, cannot be ascertained as yet. Put differently, "it is still too early to pronounce upon its fate" vis-a-vis private negotiation.
3 Weeks' work under reference provides a very useful detailed comparison between the Industrial