Although there is a tendency to confuse conciliation as practised in Australia and Nigeria with the conventional collective bargaining in countries like Canada, the United States of America and Britain, the position is that conciliation in the laws of Australia and Nigeria appears peculiarly different.
Niland (1978: 16-19) has shown that conciliation in Australia breaches the five basic or necessary elements of conventional collective bargaining. The summary of his argument by Brooks (1988: 33) is apt:
[Conciliation] occurs only after legal procedural steps have been completed; it occurs under the supervision of permanent industrial tribunals which play an active part in the process; it is compulsory and the agreement which emerges conforms to a common pattem as the parties know with a high degree of precision the likely outcome if the dispute is unresolved at conciliation and goes to arbitration. This conformity and predictability is a contrast to unfettered collective bargaining which is characterised by general uncertainty as to the outcome of the final contract.
In Nigeria, conciliation is a legal requirement which is invoked at a certain stage in the settlement of trade dispute whether or not the parties have a "positive philosophical commitment to the process”; the conciliator is required to take an active part in the process; the parties know that the terms of settlement concluded under a third party not of their choice will be incorporated in the contracts of employment of their members; and they also know that failure to resolve the dispute at that stage will result in arbitration. As in Australia, this process can hardly be regarded as a conventional bargaining.
How is the process of conciliation provided for in the Australian and Nigerian laws? The Australian law makes conciliation one of its chief objects. S.2(III) of the original 1904 Act expressed this object as: "to provide for the exercise of the jurisdiction of the Court by conciliation with a view to amicable agreement between the parties". In subsequent amendments, the expression came to be: "to encourage, and provide means for, conciliation with a view to amicable agreement, thereby preventing and settling industrial disputes" [s.2(b) of 1904]. Although recast in different words, the same object is maintained in the 1988 Act [see s.3(b)].
The law goes further to set out how this object is to be achieved. Where an industrial dispute has been notified in accordance with the law or apprehended, the Presidential
Member shall, unless it would not assist the prevention or settlement of the dispute so to do, refer the dispute for conciliation by himself or another member of the Commission [s.25(4) of the 1904; s. 100(1) of the 1988 Act].
At this stage the law enjoins the Commission to do all such things, appearing to be right and proper, to assist the parties to reach an agreement on terms for the prevention or settlement of the dispute. Such things include arranging conferences for the parties or their representatives presided over by the member, or conferences at which the member is not present. These conferences, which can be called on the tribunal's own motion or upon application made by a party to, or intervener in, the dispute, are compulsory (see ss.26 & 27 of the 1904 and ss.102 & 119 of the 1988).
The conciliation process is considered complete when agreements settling the dispute have been reached or when the tribunal is satisfied that conciliation is not likely to be achieved within a reasonable time (s.29 of 1904 and s.103 of 1988).
Commentators on the Australian system have observed that there is a strong emphasis on conciliation in the process of dispute settlement. For instance, Kirby, C.J. once said: "we all rely heavily on the availability of Conciliators to bring about settlement of disputes by negotiation" (quoted in Sykes and Glasbeek, 1972: 505). This emphasis is also apparent in the remark by the Hancock Committee, after they had reviewed the conciliation procedures as set out in sections 25(4), 26, 27, 28, 29, 34 and 34A of the 1904 Act. They said: "Thus it is a feature of the present legislation that a priority is given to the conciliation phase in the dispute settling process" (see p.535).
It might be added that the observed emphasis on the process of conciliation can be traced to the inception of the system in one of Deakin's addresses to the House of Representatives in 1903 on the Conciliation and Arbitration Bill. There he referred to the Court which was being proposed as "first a committee of conciliation and then a court of arbitration" (CPD, 1904 vol.XVIII: 767). One of the early practitioners of the
system equally expressed this emphasis in the phrase "the process of conciliation, with arbitration in the background" (Higgins, 1922:2).
The process of conciliation in Nigeria begins upon notification or apprehension of a trade dispute, assuming that the authority before whom the dispute has come would not need to order compliance with the requirements of direct private negotiation. This is similar to the Australian process of conciliation. But, unlike in Australia, the authority empowered to initiate conciliation process in Nigeria is the Commissioner/Minister in the Ministry of Labour - an arm of the Executive Government as opposed to a separate tribunal.
The authority receives notification on, or apprehends, a dispute and may appoint a fit person to act as a conciliator. The practice seems to be that the person is appointed from among senior labour officers in the Ministry of Labour. This person shall inquire into the causes and circumstances of the dispute and by negotiation with the parties endeavour to bring about settlement.
The process is completed either when agreement is reached and a memorandum of the terms of the settlement is signed by the parties and forwarded to the authority or when the impasse is unresolved and the conciliator reports same to the authority (see ss.5 & 7 of 1968 and s.6 of 1976).
It has been observed that to ensure effective achievement of conciliation, the Ministry of Labour would send guides to professional officers in the Labour Division of the Ministry. These guides provide hints on the attitudes of conciliators, approaches to conciliation, etc (see Ubeku, 1983: 172-173 for summary of one of such guides). There is no indication that this course of action necessarily leads to an effective conciliation process in Nigeria.