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The Law & You: Collective Bargaining In Nigeria (Part A)

Collective bargaining in Nigeria evolved through government intervention unlike other countries where the concept evolved from the private industrial sector. The term ‘collective bargaining’ is made up of two words; ‘collective’ which means a group action through representation and ‘bargaining’ on the other hand means negotiating and it involves proposal and counter-offers. Thus, collective bargaining means group negotiations between the employer and the employee on issues relating to their work situation. Government, in its capacity as government, had long accepted the concept of collective bargaining as the best way of settling terms and conditions of employment.

Collective bargaining and collective agreement have been the product of government interventionist actions since the 1960s, which was affirmed by the government in 1963. Beyond this, Nigeria has had a plethora of legislations and statutes bordering on collective bargaining. They include; Trade Dispute Act, 2004; Trade Dispute (Essential Services) Act, 2005; The Labour Act, 2004 and the Trade Unions Act.


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Definition

The term collective bargaining is applied to those arrangements under which wages and conditions of employment are settled by bargain. It is in form of an agreement made between employers or associations of employers and workers’ organizations.

Collective bargaining is the process whereby the union and the employer negotiate a contract of employment that binds both sides. Unions are represented by negotiators of their own choosing. The company is typically represented by its management or its lawyers. Pay and fringe benefit are the most commonly negotiated issues. However, grievance procedures, hours, overtime, pension, healthcare, working conditions, and safety issues are also frequently negotiated. An employer is not required to bargain over issues such as; product prices or designs, plant location, or quality of products. These are strictly management matters even though they do affect the company’s ability to pay wages.

Collective Agreement is where parties to collective bargaining reach an agreement. Three copies of the collective agreement must be deposited with the Minister of Labour and Productivity within 14 days of reaching the agreement. However, failure to do so only attracts a fine of N100 upon conviction. The minister is empowered to make an order specifying that the provisions of the agreement or any part of it be binding on the employers and employees to whom they relate. Failure to comply with such binding order is an offence punishable, on conviction with a fine of N100 or imprisonment for six months.

Characteristics Of Collective Bargaining

  1. It is a group action
  2. It is a continuous process: Collective bargaining is a continuous process and does not end with one agreement. It provides a mechanism for continuing and organized relationship between management and trade union. It is a process that goes on for 365 days of the year.
  3. It is a bipartite process: Collective bargaining is a two party process. Both the parties; employers and employees collectively take some actions. There is no intervention of any third party. It is mutual give and take rather than take-it-or-leave-it method of arriving at the settlement of a dispute.
  4. It is an Art, not a Science. It is an advanced form of human relations.
  5. It is a complementary and not a competitive process
  6. It is an industrial democracy at Work: It is not a mere sitting around the table discussing grievances. Industrial democracy is where the labour union represents the workers in negotiation with the employer(s). Basically, it is the democratic joint formulation of “company policy” on all matters that directly affect the worker. Collective bargaining is self- government in operation.
  7. Collective Bargaining is Dynamic: It is relatively a new concept, and is growing, expanding and changing. In the past, it used to be emotional, turbulent and sentimental, but now it is scientific, factual and systematic.
  8. Modern Collective Bargaining is largely factual: bargaining today is based first of all upon facts. Both union and management have within their organisation or at their disposal experts on various phases of bargaining information. These may include accountants, economists, statisticians, lawyers and research personnel, who collect, interpret and analyze data and put them into the form most useful for bargaining purpose.
  9. It is flexible and mobile; it is not fixed or static: There is no hard and fast rule for reaching an agreement. There is ample scope for compromise. A spirit of give-and-take works unless final agreement acceptable to both the parties is reached.

Subject-Matter Of Collective Bargaining

The issues discussed in collective negotiations and included in collective agreements are known as the subject-matter of collective bargaining. Management representatives seek to define and limit the scope of collective bargaining in concrete terms. They want to draw a line between management functions or management rights and matters properly amenable to joint decision making. Union representatives on the other hand, have been arguing that collective bargaining must remain a fluid, and dynamic process. They contend that it is not only unwise but also in fact impossible to limit the scope of collective bargaining. For analytical purposes, we can examine the nature of negotiable and non-negotiable issues under three distinct categories viz; (1) Mandatory or negotiable issues; (2) Voluntary or discussion issues; and (3) Managerial issues.


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Mandatory Or Negotiable Issues

Issues that have become mandatory for negotiation include: Wages and salaries, pension and gratuity; hour of Work, disciplinary procedure, sick leave, annual cash payment, out of station allowance, extra duty allowance, shift and night allowance and car/motto-cycle award. Others include, leave allowance, overtime rates, annual leave, transport allowance, transfer leave, maternity leave, housing allowance, transport facilities, redundancy (principle), long service award and acting allowance.

Voluntary Or Discussion Issues

These are both middle-range issues which are neither mandatory nor exclusive to management, but upon which both parties can discuss. More importantly, neither party can compel the other either to negotiate or implement whatever decisions are reached at the discussion. The numbers of issues in this category are generally few. They are; shift work, long service awards, housing scheme, year-end gifts, medical scheme, and death benefit, payment for union officials during union meetings, car loans and pension scheme.

Managerial Issues

These are those issues on which management exercise full control in decision-making. While most procedural agreements recognize managerial exclusive right, the specific issues are usually not stated.

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Foluke Akinmoladun

Foluke Akinmoladun is the Managing Solicitor of Trizon Law Chambers. She has been a legal practitioner for 13 years and has experience in a wide range of commercial matters. She is a certified mediator, a member of the Chartered Institute of Arbitrators(UK), holds an Advanced Diploma in Accounting from the Association of Chartered Certified Accountants (UK) and is also a tax consultant. She is a dispute resolution expert, handling commercial disputes from negotiations all the way to litigation (if need be).

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