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PART XVIII-NATIONAL LABOUR COMMISSION

Sub-Part I Establishment and functions of the National Labour Commission

Establishment of Commission
There is establishment by the Act a National Labour Commission referred to in this Act as the “Commission”

Composition of the Commission
The Commission shall consist of the following persons:

• a chairperson who shall be nominated by the employers’ organization and organized labour except that where there is failure to nominate a chairperson within sixty days as provided, the employers’ organization in consultation with organized labour shall submit the matter to a mediator agreed on by them; and
• six representatives, two each nominated by the Government, employer’s organization and organized labour.

The chairperson and the other members of the Commission shall be appointed by the President acting in consultation with the Council of State.

Qualifications of chairperson and other members of the Commission

• A person is qualified to be appointed a member of the Commission if that person
• does not hold office in a political party; and
• has knowledge and expertise in labour relations and management,
• except that in the case of the chairperson, the person shall also be knowledgeable in industrial law.

Functions and independence of the Commission
The functions of the Commission are as follows:

• to facilitate the settlement of industrial disputes;
• to settle industrial disputes
• to investigate labour related complaints, in particular unfair labour practices and take such steps as it considers necessary to prevent labour disputes;
• to maintain a data base of qualified persons to serve as mediators and arbitrators;
• to promote effective labour co-operation between labour and management; and
• to perform any other function conferred on it under this Act or any other enactment.

In the exercise of its adjudicating and dispute settlement function, the Commission shall not be subject to the control or direction of any person or authority.

Powers of the Commission
The Commission shall exercise the following powers:

• Receive complaints from workers, trade unions, and employers, or employers’ organization
• On industrial disagreement; an
• Allegation of infringement of any requirements of this Act and Regulations made under this Act;
• Require an employer to furnish information and statistics concerning the employment of its workers and the terms and conditions of their employment in a form and manner the Commission considers necessary; and
• Require a trade union or any workers’ organization to provide such information as the Commission considers necessary’
• Notify employers and employers’ organizations or workers and trade unions in cases of contravention of this Act and Regulations made under this Act and direct them to rectify any default or irregularities.

Without prejudice to subsection (1), the Commission shall in settling an industrial dispute, have the powers of the High Court in respect of

• Enforcing the attendance of witness and examining them on oath, affirmation or otherwise.
• Compelling the production of documents; and the issue of a commission or request to examine witness abroad.
• The Commission shall in respect of its proceedings enjoy the same

Meeting of the Commission
The Commission shall meet to settle industrial disputes, but shall meet at least once in every two months to consider matters affecting its administration and the performance of its functions.
The Commission shall at its first meeting nominate one of its members as deputy chairperson.

• The quorum at a meeting of the Commission shall consist of the chairperson or in the absence of the chairperson the deputy chairperson and four other members of the Commission at least one person each representing Government, employers’ organization and organized Labour.
• The Commission may co-opt any person to attend meeting of the Commission as an adviser or a consultant.
• A person co-opted to attend a meeting of the Commission does not have the right to vote on a matter for determination or decision by the Commission
• The Commission may permit to be in attendance at its meetings such persons as the Commission may determine.
• Subject to subsection (2), the Commission shall regulate its own proceedings.

Committees of the Commission
The Commission may appoint:

• a standing committee consisting of members of the    Commission; or
• an adhoc committee consisting of non-members or both members and non-members of the Commission

The Commission shall assign to any of its committees such of its functions as it may determine

• Allowances for members of the Commission and its Committees
• The members of the Commission shall be paid allowances determine by the Minister in consultation with the Minister for Finance.

Tenure of office of members
The members of the Commission shall hold office for a period of four years and are eligible for re-appointment after the expiration of their tenure of office.

The chairperson or a member of the Commission may at any time resign his or her office by letter addressed to the President through the Minister.

A member of the Commission may be removed from the Commission by the President for inability to perform the functions of his or her office, for stated misbehaviour or for any just cause.

Regional and District Committee of the Commission
Notwithstanding section 141, the Commission may establish in such Regional and District capitals as it considers necessary, Regional and District Labour Committees.

The composition of a Regional or District Labour Committee shall be determined by the Commission except that there shall be equal representation of Government, organized labour and employers’ organization.

The members of a Regional or District Labour Committee shall be persons with knowledge in industrial relations.
 
A Regional or District Labour Committee shall elect from among its membership, a chairperson and a deputy chairperson.

Functions of a Regional or District Labour Committee
A Regional or District Labour Committee shall perform in the respective region or district such of the functions of the Commission as shall be assigned to it in writing by the Commission.

Meetings of a Regional or District Labour Committee
The provisions under sections 140 to 143 in respect of the Commission shall apply with such modifications as are necessary to the Regional and District Labour Committees provided for under the Act.
 
Secretariat for the Commission
The Commission, a Regional or District Labour Committee of the Commission shall be provided with such secretarial services and staff as may be necessary for the effective performance of its functions under this Act.

Expendture of the Commission
There shall be appropriated annually to the Commission by Parliament such funds as the Commission requires to meet the expenditure of the Commission in the performance of its functions including those for its Regional and District Committees.

Accounts and audit
The Commission shall keep books of account and proper records in relation to the books of account.

The books of account and the records shall be in such form as the Auditor-General shall approve.

 The Auditor-General or an auditor appointed by the Auditor-General shall, within three months after the expiration of each financial year, audit the books of accounts and records of the Commission in respect of the preceding year.  
 
The financial year of the Commission shall be the same as the financial year of the Government.

Reports form Regional and District Labour Committees
A Regional or District Labour Committee shall submit to the Commission annual reports within such period as the Commission may direct on its activities, and shall submit such other reports as the Commission may request.

Annual reports of the Commission
The Commission shall, within eight months after the end of each financial year, submit to the Minister an annual report on the activities of the Commission during that year.
The report shall include a copy of the audited accounts of the Commission in respect of the financial year and the report of the Auditor-General or the auditor appointed by the Auditor-General on the audited accounts.
The Minister shall within two months of the receipt of the annual report from the Commission submit the report to Parliament with such comments as the Minister considers necessary.

Regulations by the Commission
  the Commission may by legislative instrument make regulations providing for

• the procedure for negotiation, mediation and arbitration proceedings, under this Act.
• other matters necessary for the effective discharge of its functions under this Act.

Regulations made under subsection (1) shall be under the signature of the chairperson of the Commission or in that person’s absence under the signature of the deputy chairperson.

Sub-Part II - Settlement of industrial disputes

Settlement by negotiation
The parties to an industrial dispute are under an obligation to negotiate in good faith with a view to reaching a settlement of the dispute in accordance with the dispute settlement procedures established in the collective agreement or contract of employment.

Mediation
 Subject to the time limit in respect of essential services, if the parties fail to settle a dispute by negotiation within seven days after the occurrence of the dispute, either party or both parties by agreement may refer the dispute to the Commission and seek assistance of the Commission for the appointment of a mediator.

Where the Commission is satisfied that the parties have not exhausted the procedures established in the collective agreement or have not agreed to waive those procedures, the Commission shall order the parties to comply with those procedures within such time as the Commission may determine.

When the Commission is satisfied that

• the parties have exhausted the procedures established in the    collective agreement;
• the parties have failed to settle the dispute; and
• none of the parties has sought the assistance of the      Commission to appoint a mediator,
• the Commission shall request the parties to settle the dispute by mediation within three days of the Commission becoming aware of the non-resolution of the dispute.

Where the parties agree to mediate and at the end of the mediation proceedings there is settlement of the dispute, the agreement between the parties as regards the terms of the settlement shall be recorded in writing and signed by the mediator and the parties to the dispute.

The settlement agreement referred to in subsection (4) shall be binding on all the parties unless the agreement states otherwise.

When at the end of a mediation proceedings, no agreement is reached, the mediator shall immediately declare the dispute as unresolved and refer the dispute to the Commission.

List of mediators and arbitrators
The Commission shall maintain a list of qualified persons who are knowledgeable in industrial relations to serve as mediators or arbitrators for each group.

Appointments of mediators or arbitrators may be made from the list of mediators and arbitrators.

A person appointed an arbitrator or a member of an arbitration panel is not qualified to serve in    that capacity if the person has any financial or other interest in the undertaking or employers’ or workers’ organization involved in the dispute.

Appointment of arbitrators
Subject to the Arbitration Act, 1961 (Act 38), or any general enactment on dispute resolution in force, the parties to an industrial dispute shall agree on the method of appointment of  arbitrators or arbitration panel and in the absence of an agreement by the parties the Commission shall appoint an arbitrator or an arbitration panel.

Voluntary arbitration
When mediation fails under section 154 (6) and the dispute is referred to the Commission, the Commission shall with the consent of the parties refer the dispute to an arbitrator or an arbitration panel appointed under section 156.

The parties to an industrial dispute shall, within three days after the appointment of an arbitrator or an arbitration panel under section 156, submit to the arbitrator in writing a statement of the issues or questions in dispute signed by one or more of the parties or their representatives.

The Arbitrator shall as soon as possible appoint a time and place for the hearing and notify the parties.

If any party fails to appear before the arbitrator after the expiration of seven days after being so notified, the arbitrator shall proceed to hear and determine the dispute.

Arbitration award
The decision of the arbitrator or a majority of the arbitrators shall constitute the award and shall be binding on all the parties.

The arbitrator shall communicate the award in writing to the parties and the Commission within seventy-two hours after the award has been made except where the Commission is the arbitrator.

Notice of intention to resort to strike or lockout
Where

•  the parties fail to agree to refer the dispute to voluntary arbitration; or
•  the dispute remains unresolved at the end of the arbitration proceeding,
• either party intending to take strike action or institute lockout, shall give written notice of this to the other party and the Commission, with seven days after failure to agree to refer the dispute to voluntary arbitration or the termination of the proceedings

Strike and lockout
A party to an industrial dispute who has given notice of intention to resort to a strike or lockout under section 159 may do so only after the expiration of seven days from the date of the notice and not at any time before the expiration of that period.

If the dispute remains unresolved within seven days from the commencement of the strike or lockout, the dispute shall be settled by compulsory arbitration under section 164.

Cooling-off period
A party to an industrial dispute shall not resort to a strike or lockout during the period when negotiation, mediation or arbitration proceedings are in progress.

Any party who contravenes subsection (1) is liable for any damage, loss or injury suffered by any other party to the dispute.

Essential Services
 In any industrial dispute that affects workers engaged in an essential service, the parties to the dispute shall endeavour to settle the dispute within three days of the occurrence of the dispute by negotiation.

If after the expiration of the three days, the dispute remains unresolved, the parties shall within twenty-four hours of the expiry of the three days, refer the dispute to the Commission for settlement by compulsory arbitration under section 164.

The Commission shall take immediate steps, but not later than three days after the dispute has been referred to it, to settle the dispute by compulsory arbitration under section 164.

Prohibition of strike or lockout in respect of essential services. An employer carrying on or a worker engaged in, an essential service shall not resort to a lockout or strike in connection with or in furtherance of any industrial dispute involving the workers in the essential service.

Compulsory reference to arbitration
When a dispute is referred to compulsory arbitration in pursuance of section 160 or 162, the Commission shall be the arbitrators and shall serve on the parties a notice

• Stating what, in its opinion are the unresolved issues between the parties; and
• Asking the parties whether they agree to those issues.

The Commission shall, within fourteen days after service of the notice, determine the dispute by compulsory arbitration.

A compulsory arbitration shall be composed of three members of the Commission, one member each representing Government, organized labour and employers’ organization.
 In a compulsory arbitration, the decision of the majority of the arbitrators shall constitute the award and shall be binding on all the parties.

Powers of Arbitration
An arbitrator appointed under section 156 or 164 shall have the powers of the High Court in respect of enforcing attendance of persons before the arbitrator or examining such persons on oath or affirmation and compelling the production of documents.

Vacancy in Arbitration Panel
 In an arbitration composed of more than one arbitrator, where a vacancy occurs in their number, the arbitrators may with the consent of the parties, act notwithstanding the vacancy.

Where the parties fail to give their consent as required under sub-section (1), the party whose number of arbitrators is affected by the vacancy, shall appoint another arbitrator to fill the vacancy immediately; failing that the Commission shall appointIn a compulsory arbitration, where a vacancy occurs in the arbitration panel, the other member of the Commission representing the interest group of the absent arbitrator shall fill the vacancy.

Publication of compulsory arbitration award and effect of arbitration awards on existing employment contracts

The award of the Commission in a compulsory arbitration shall, immediately on completion be published under in the Gazette by the Commission.

An award published under subsection (1) shall be final and binding on the parties unless challenged in the Court of Appeal on questions of law within seven days after the publication of the award.

Subject to any appeal, an award arising from a voluntary or compulsory arbitration shall prevail over any contract of employment or collective agreement in force at the time of the award and the terms of the contract of employment or collect agreement shall be deemed to have been modified as far as may be necessary in order to conform to the award.