Strike around the world has been a fundamental and inalienable right of workers in both our domestic and international laws. Without this undeniable right, there would not be freedom of association and workers will be more or less like slaves. The origin of strike in Nigeria could simply be traced back to 1945 when government failed to increase the salaries of workers as a result of high increase of cost of living. From that moment to date, strike has been the only language that Nigerian government understands. For proper perspective understanding of this piece, strike, as defined under Section 48 of the Trade Dispute Act, means:
The cessation of work by a body of persons employed acting in combination or a concerted to refusal under a common understanding of any number of persons employed to continue to work for an employer in consequence of a dispute, done as a means of compelling their employer or any person or body of persons employed, or to aid other workers in compelling their employer or any person or body of persons employed, to accept or not to accept terms of employment and physical conditions of work.
In view of the above definition, employees can embark on strike in solidarity to other employees so as to mount pressure on a particular employer to meet the demand of such employees. It is this legal principle that gives NLC the right to embark on solidary strike in favour of other employees in Nigeria.
It is worthy to note that Section 40 of the Constitution of the Federal Republic of Nigeria, 1999 and Sections 2 and 3 of the Trade Dispute Act, 2004 have clearly and unequivocally provide for freedom of Association and right to strike. Again, the combine effect of Article 80 of the ILO Convention and Article 11 of the African Charter on Human and Peoples Right (Ratification and Enforcement) Act is that “Every individual shall have the right to assemble freely with others and the right to strike without threat or coercion”
Interestingly, the ILO Convention has a specific declaration that all Members, even if they have not ratified the Conventions in question, have an obligation, arising from the very fact of membership in the Organization, to respect, to promote and to realize, in good faith and in accordance with the Constitution, the principles concerning the fundamental rights…”, which include freedom of association and right to strike.
Assuming but not conceding, that Nigerian is not a signatory to the ILO Convention (and of course she is), it is bound by the Customary Rule of International Law to conform and adhere to the principles of the right to strike. On this note, Article 10 of the Convention recognizes the right to strike to be one of the principal means by which workers and their associations may legitimately promote and defend their economic and social interests
It should be noted that both the Trade Dispute Act and the ILO Convention have provided for exceptions and conditions for strike Action and they include among other things: strikes that are legitimate in so far as they have economic and social objectives and not purely political ones; those that will not endanger human life, seeking for increase in wages which is necessitated as a result of inflation or change in economic policy, strike that is aimed at decrease in price of commodities or reduce unemployment, the obligation to give prior notice, the obligation to have recourse to conciliation, mediation and (voluntary) arbitration procedures in industrial disputes as a prior condition to declaring a strike, provided that the proceedings are adequate, impartial and speedy and that the parties concerned can take part at every stage, the obligation to observe a certain quorum and to obtain the agreement of a specified majority, the obligation to take strike decisions by secret ballot, the adoption of measures to comply with safety requirements and for the prevention of accidents etc.
Now bringing the discuss into ASUU as a Union, which of these conditions has it violated to qualify the strike as illegal which can result into the punishment of No work no pay? Any person who knows the principle of ASUU will surely answer in the negative as it has complied with all and many more conditions that have not been enumerated.
It is a fact that “No work no pay policy” has been provided for under Section 43 of the Trade Dispute Act which provides that:
Notwithstanding anything contained in this Act or in any other law-
where any worker takes part in a strike, he shall not be entitled to any wages or other remuneration for the period of the strike, and any such period shall not count for the purpose of reckoning the period of continuous employment and all rights dependent on continuity of employment shall be prejudicially affected
It is my humble submission that the provision of Section 43 of the Trade Dispute Act is not only outrageous but unconstitutional as the phrase “notwithstanding anything contained in this Act or in any other law” has by implication ousted the provision of Section 40 of the Constitution and to that extent null and void. Again, the provision has impaired with the general principle of collective bargaining which systematically made the employer to be a judge in its own case. This too, infringes the employees’ fundamental right to fair hearing as ASUU has countless explanation on how and why the strike became unavoidable at the instant of the government. I also submit that the Act can be viewed as anti-strike and anti-union and this is categorically prohibited by both the Trade Union Act, 2004 and the ILO convention. The Convention explicitly provided for the protection against acts of anti-union discrimination in connection with strikes when a conflict of interests between employers and workers is not resolved through bargaining or arbitration, the conflict between the parties may lead to collective action in efforts to ensure that their respective interests prevail. It is therefore my humble view that at best, what the government should do after a failure to reach a compromise between it and ASUU, is to approach a court of competent jurisdiction for redress or interpretation of application or otherwise of the policy but not to arrogate itself with the power of court by punishing ASUU members with holding their salaries. Consequently, in the case of Union Bank of Nigeria Plc v. Edet (1993), the Court of Appeal held on right to strike and ensuring that collective agreements are enforced that it appears that whenever an employer ignores or breaches a term of that agreement, resort could only be had, if at all, to negotiation between the union and the employer and ultimately to a strike should the need arise and it be appropriate. It is humbly submitted that ASUU strike is bone out of necessity as the government has been recklessly ignoring and breaching the terms of the agreement since after its execution in 2009.
It is for the above reason, the Convention under Article 87 provides for the protection afforded to workers and trade union officials against acts of anti-union discrimination which constitutes an essential aspect of freedom of association, since such acts may result in practice in denial of the guarantees laid down in the Convention. Articles 1 and 151 of the same ILO states, in categorical terms, that “workers shall enjoy adequate protection against acts of anti-union discrimination in respect of their employment” that: Workers’ representatives in the undertaking shall enjoy effective protection against any act prejudicial to them, including dismissal, based on their status or activities as a workers’ representative or on union membership or participation in union activities, in so far as they act in conformity with existing laws or collective agreements or other jointly agreed arrangements. The convention made it clear that it should also be irrelevant that the dismissal or anti-union takes place in advance of a strike, if the purpose of the dismissal or anti-union is to impede or penalize the exercise of the right to strike.
Finally, the Convention smartly prohibits enactments of legislation or practice by employers which subjects employees into any form of exploitations or which allows employers to recruit workers to replace their own employees who embark on legal strike. It is against this background that Article 8 of the United Nations International Covenant on Economic, Social and Cultural states that rights to strike not only an ordinary right but a fundamental right that is now recognized by a large majority of countries around the world. Hence, Nigeria as a signatory should not be an exception. On this note, the Supreme Court in Abacha v. Fawehinmi (2000), held that since the African Charter has been domesticated or has been incorporated into Nigerian Municipal Law by its ratification, it enjoys the status higher than a mere international Convention. It becomes part of Nigeria’s domestic or municipal law. The Supreme Court further held that a violation of these Conventions ratified by Nigeria may attract sanction from these international organizations.
Be that as it may, the attempt by the government to invoke no work, no pay policy against ASUU is not only outrageous but discriminately. In fact, the policy in my view is repugnant to natural justice equity and good conscience. It is also incompatible with the provisions of Sections 1 (3), 34 (1) (c), 36 and 40 of the Constitution of the Federal Republic of Nigeria, 1999 as amended. Any government that has conscience will not contemplate not to talk of withholding six months’ salaries of its intellectuals. To do that on such intelligentsias that have sacrificed their lives and future in order to save the children of the common people of our community is to invite anarchy and will no doubt amount to forced and compulsory labour as almost all of them will be forced to involve in litigations on various cases of debt recovery. Worse of all, the principle of collective bargaining and non-victimization policy as protected and guaranteed by all our extant laws will become history of the past. GOD FORBID.
BY DR. HASSAN BALA, LL.B, LLM, PhD, BL.
DEPARMENT OF PRIVATE LAW, FACULTY OF LAW, ABU, ZARIA