SIR:The Nigerian Labour Congress (NLC) and the Trade Union Congress (TUC) will not be lawfully justified to proceed on their planned industrial strike on Tuesday November 6, in defiance of the order of the National Industrial Court (NIC) handed down on Friday by Justice Sanusi Kado in a ruling on an ex parte application moved on behalf of the Federal Government (FGN) by the Solicitor-General of the Federation and Permanent Secretary, Federal Ministry of Justice, Mr. Dayo Apata.
Now the idea of placing restrictions on the right to embark on industrial strike by workers was first introduced by section 16 of Trade Disputes (Emergency Provisions) Decree No. 21 of 1968, which was amended in 1969 with the introduction of a total ban on strikes. In 2005, there was an amendment to the Trade Unions Act (TUA) which also introduced a new subsection 6 to section 30 of the principal Act (Trade Unions Act 2004). Section 30 (6) of TUA 2005 expressly bars persons (employees) and trade unions from embarking upon or taking part in any strike unless such persons or the trade unions are NOT engaged in ‘essential services’. Please note that service in the public service of a state or the federation is generally is regarded as part of ‘essential services’ under the Act. Section 30 (7) goes further to make contravention of provision of subsection 6 an offence punishable with a fine of N10,000.00 or six months imprisonment or to both the fine and imprisonment. By the way, I think it is abhorrent and stifling to industrial harmony to criminalise consequences (strikes) of industrial disputes without more. However, if a strike action resulted into criminality such as arson, theft or destruction of public property then culprit may be criminally held liable).
To complement the foregoing provisions of the TUA 2005, there is also the Trade Disputes Act (TDA) 2004 which regulates the resolution of industrial disputes between employers and employees, both public and private, in Nigeria. Section 18 TDA 2004 clearly provides that no worker shall take part in any strike in relation to any industrial disputes unless certain procedures and conditions stipulated under the Act have been complied with. These conditions and procedures include, amongst others, referral of industrial disputes to the National Industrial Court under section 14(1) or 17 of the Act or where the National Industrial Court has issued an award on the reference. Furthermore, by the provisions of section 254C of the Constitution (as amended) generally, the NIC has the exclusive jurisdiction to deal with any matter relating to the grant of any order to restrain any person or body from taking part in any strike or any industrial action, or any conduct in contemplation or in furtherance of a strike or any industrial action.
As can be seen from the present circumstance under review, the FGN has ‘cleverly’ submitted a dispute to the NIC and the NIC has made a lawful order, ex parte, stopping the planned industrial strike action of the labour unions. To that extent, it cannot be gainsaid that the planned industrial action of the labour unions will be a flagrant violation of the laws of Nigeria and, worse, a dangerous disobedience of a lawful order of the Court. To put differently, the planned strike by the NLC/TUC at this time will be illegal and whoever goes ahead with it may be liable for criminal prosecution under the law. Besides, government may also decide to invoke the sanction provided under section 43 of TDA on loss of wages (aka – no-work-no-pay rule) for the period of strike.
It is true that Nigeria is a signatory to several International Labour Organization (ILO) treaties and conventions, particularly the ILO Principles Concerning the Right to Strike (1998), the restrictions on right to strike in Nigeria or enforcement of the ‘no work, no pay’ rule under section 43 (1)(a) of TDA does not necessarily breach any of her commitments under International law. As a matter of fact, the ILO’s Committee of Experts on the Application of Conventions and Recommendations (CEACR) has consistently refrained from criticizing the legislations of member states which provide for wage deductions (no work, no pay rule) in the event of strike action and has indicated that, as regards strike-pay in general the parties should be free to determine the scope of negotiable issues. However, it is also not out of place or unlawful for an employer to choose to dispense with the no work, no pay rule under section 43 of TDA. After all, employments, whether in the private or public sector, is a contract.
- Misbau Alamu LATEEF, Ph.D. Obafemi Awolowo University, Ile-Ife.
Leave a Reply