By Sylvester Udemezue
FCC Jones Onwuasoanya wrote on 23 August 2022, as follows, inter alia:
“The Federal Government has RIGHTLY refused to pay them for these months, while ASUU is insisting that they must be paid for not working”. According to Mr. Onwuasoanya, “If you must embark on strike action, you must be ready to forfeit your pay for the period the strike action lasted. If you have to be paid for the period you were on strike, then, you haven’t embarked on any strike, but you just took an unapproved holiday or leave and get a pat on the back for punishing innocent students”. See: “ASUU: why I support FG’s “no work, no pay” policy” ~ by FCC Jones Onwuasoanya (published in News.Band on 23 August 2022)
I’m disturbed by FCC JONES ONWUASOANYA’s statement, “The Federal Government has RIGHTLY refused to pay them for these months…”. I have been wondering on which authority support for this position of his comes from. I think there is need to have a brief look at the position of extant law on employer’s right to withhold employees’ salaries on grounds that employees declared and embarked upon an industrial action (strike). In my opinion, the relevant questions that should be asked if we sincerely want to get the right answers, necessary to get at the root of our present challenges, are:
(1). What’s strike?
(2). Is it lawful for Public University Lecturers in Nigeria to embark on strikes? and
(3) Are employers entitled to deny lawfully-striking workers their accrued salaries?
What’s strike?
In paper titled, “An Overview of the Right to Strike in Nigeria and Some Selected Jurisdictions” published by SCIRP, in the Beijing Law Review Vol.11 No.2, June 2020, Bokolo P. S. Giame et al., have this to say:
‘The Black’s Law Dictionary defines “strike” as “an organized cessation or slowdown of work by employees to compel the employer to meet the employee’s demands” (Garner, 2014) .Whereas the New Britannica-Webster Dictionary defines it as: (1) Work stoppage by a body of workers to force an employer to comply with demands.(2) A temporary stoppage of activities in protest against an act or condition (Webster, 1993). Section 48 (1) of the Trade Disputes Act (TDA) defines strike as follows:Strike means the cessation of work by a body of persons employed acting in combination or a concerted 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 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..And in this definition: (1) “Cessation of work” includes working at speed less than usual or with less than usual efficiency; and (2) “Refusal to continue to work” includes a refusal to work at usual speed or with usual efficiency… Lord Denning M.R. in tramp Shipping Corporation v. Greenwich Marine Inc. (1975) defined strike as follows: Strike is a concerted stoppage of work by men, done… with a view to improving their wages or condition of employment, or giving vent to a grievance or making a protest about something, or otherwise supporting or sympathizing with other workmen in such endeavour.
Now, as suggested by G.G. Otuturu, and I agree, the “ILO Convention 87 of 1948: Convention on Freedom of Association and Protection of the Right to Organize”, gives insights into international dimensions on the matter. The Convention (Nigeria is a signatory thereto) guarantees workers’ right to freely organise and associate. Let’s see also the TRADE UNIONS (AMENDMENT) ACT, 2005 on workers’ RIGHT TO STRIKE IN NIGERIA. It appears that under the Act,
Nigerian workers have right to embark upon strikes, provided relevant conditions precedent are fulfilled. See Section 31(6)(e). It appears also that right to strike is an integral part of the freedom of every citizen (including employees/workers) to associate. As G.G Otuturu put it, “The right to strike is an integral part of the freedom of every citizen to associate with others particularly to form or join a trade union of his choice for the protection of his interests, which is entrenched in section 40 of the Constitution of the Federal Republic of Nigeria 1999”.
In the case of Crofter Hand Woven Harris Tweed Co Ltd v Veitch [1941] UKHL 2, a landmark UK labour law case on the right to take part in collective bargaining, Lord Wright famously affirmed that: “Where the rights of labour are concerned, the rights of the employer are conditioned by the rights of the men to give or withhold their services. The right of workmen to strike is an essential element in the principle of collective bargaining”. In the Nigerian case of Union Bank of Nigeria Plc v. Edet (1993). 4 NWLR. (Pt. 287), 288., it was held that “right to strike is a collective weapon for enforcing collective agreements”. Hence, the court continued, “strike is appropriate if negotiation fails in situations of employer’s breach of terms of agreement with workers”
However, section 31 of the Trade Unions Act provides that workers involved in “essential services” are not entitled to get involved in strikes. Alternative procedures are available for resolving trade union and labour disputes in their own case. The First Schedule to the Trade Disputes Act defines essential services to include services in the armed forces and of persons employed in an industry or undertaking which manufactures materials for the armed forces; or any service for the supply of electricity, power or water, or of fuel or sound broadcasting or postal, telegraphic, cable, wireless or telephonic communications; or for maintaining ports, harbours, docks or aerodromes, or for, or in connection with, transportation of persons, goods or livestock by road, rail, sea, river or air or for, or in connection with, the burial of the dead, hospitals, the treatment of the sick, the prevention of disease, or any of the following public health matters, namely sanitation, road-cleaning and disposal of rubbish; or for dealing with outbreak of fire; or service in the CBN, Nig Security Printing and Minting Company Limited; any commercial bank. Services that are of fundamental importance to the community that their disruption will have harmful consequences.
In a paper titled, “TRADE UNIONS (AMENDMENT) ACT 2005 AND THE RIGHT TO STRIKE IN NIGERIA: AN INTERNATIONAL PERSPECTIVE”, published in the LABOUR LAW REVIEW
NJLIR VOL. 8 N0. 4, 2014, Otuturu drew attention also to ILO Convention 98 concerning the Right to Organize Collective Bargaining which excludes public servants engaged in the administration of the State. Further, he wrote, The Freedom of Association Committee of the Governing Body of the International Labour Organization” defines “essential services” thus: “services the interruption of which would endanger the life, personal safety or health of the whole or part of the population.” The Committee listed the following as essential services: the hospital sector; electricity services; water supply services; the telephone service; the police and armed forces; the fire-fighting services; the prison services; the provision of food for pupils of school age and the cleaning of schools; and the traffic control.
Nowhere in all of these are Lecturers in public universities prohibited from embarking on strike. So I don’t understand all this talk about their salaries won’t be paid neither do I find any legal bases for Mr. FCC JONES ONWUASOANYA’s support for no-work-no-pay policy. I really don’t. In the case of Eche v. State Education Commission, efforts at mediation had failed, whereupon public primary and post-primary school teachers in the affected State proceeded on a strike. The main issue for determination was whether the strike action was lawful under the Trade Disputes Act. The court held that it was lawful. the word “or” rather than “and” and stated that, in essence, where employees have complied with the provisions of any of the subsections, they may proceed on strike to press for their claims.
Conclusion :
If strike is based on no-work-no-pay, then workers may never embark on strikes. And if workers are not able to embark on strikes, employers of labor might feel free to violate (collective) labour agreements, knowing that workers won’t be able to anything other than whine and complain which achieve little or nothing. Strike action is accepted all over the world, and endorsed by international legal instruments, to most of which Nigeria is a signatory, as employees’ last resort towards pressing homes their legitimate demands and in getting defaulting employers to keep agreements freely entered into with employees. If Nigerian Governments are interested in salvaging whatever is left of (the carcass of) public university education in Nigeria, they should stay far away from anyone advising them to deny public university lecturers their accrued salaries for the period of the strike. If we agree the strike by public university lecturers in Nigeria, was lawfully called and embarked upon, about six months ago, if we agree, then there’s hardly any legal, moral, or other rational justification for saying suggesting that the governments shouldn’t pay public university lecturers their salaries for the period. By the way, a reasonable bystander might even look at it this way: if governments had fulfilled its own part of the agreements voluntarily SIGNED, SEALED AND DELIVERED with public university lecturers, there would have been little or no reason at all for public university lecturers to have embarked on this strike in the first place. I therefore respectfully suggest that the governments should immediately resume talks with ASUU, aimed at ironing out all outstanding grey areas so that our kids (and their daddies and mummies who are also university students) may return to school without any further delay.
Meanwhile, permit me to ask: do we realize the quantum of harm we’re imposing upon this country by our persistent neglect of public education? Nelson Mandela said, “education is the most powerful weapon you can use to change your country and the world”. As Benjamin Franklin put it, “an investment in education pays the greatest dividend”. William Butler Yeats warned that “education is not the filling of the pail; it is the lighting of a fire. Good and quality education replaces an empty mind with an open mind”. However, I consider John Dewey`s famous postulation the most apt: “A country without good and quality education is bereft of good life…education is not just a preparation for life; it is life itself. In effect, a nation without a good education possesses no soul!. Little wonder that a country like Nigeria, blessed with abundant natural and human resources, has nevertheless refused to grow, socio-economically mentally, and technologically. The level of progress of a country is best measured by how seriously it takes education. We may be heading nowhere until until education takes the driver’s seat on our scheme of affairs and table of preferences.
My name is Sylvester Udemezue (Udems).
mrudems@yahoo.com.
(23 August 2022)
