This write-up is a product of necessary shutdown of work which was directed by National Labour Congress on 26th September, 2018. As a student in the Nigerian University, I was negatively affected by it. For this reason, and for my being a student of law, I dedicated part of this forced holiday to look into the legal implications of strike in Nigeria.
The crisis in industrial relations is almost inevitable. Even the famous philosopher Karl Marx theorized his sociological conflict perspective to explain the crisis in the industry. And he concluded that “history of all hitherto existing societies is the history of class struggle.”
The irony is, both the management and the employees have certain rights and interest to protect. Employees want to have a good standard way of living, safety at work, Job security among others. On the other hand, Employers engage workers to realize their institutional goals. Therefore, they cling to whatever will help the process of realization of such goals. Consequently, tradeoff between these two distinct interest may arise which may lead to industrial crisis. The crisis in the industry include; high labour turnover, protest, absenteeism, strike etc.
Having considered itself a stronger force, management may want employees to always be at their mercy, dancing to their dictated tunes. The strongest armour cum weapon possessed by the employees to shield themselves from this and drive their rights and demands home is strike. Without it, sword of Damocles would be dangling over their rights.
Law functions to foster progress and justice in all sphere of human relation. It remains a bastion of justice and hope for everybody. Hence, it made provisions on strike. Therefore, the thrust of this wordings is to, with all economization of words, examine the legal implications of strike within the domain of Nigerian legal system.
WHAT IS STRIKE?
The Oxford dictionary of law (6th Edition) defined strike to mean ” A cessation of work or refusal to work by employees acting together in connection with a trade dispute to secure better terms and conditions of employment for themselves and/or other workers….”
The Trade Disputes Act – CAP. T8 L.F.N. 2004 (hereinafter referred as ‘The Act’) has also defined the term ” “strike” to mean the cessation of work by a body of persons employed acting in combination, or a concerted refusal or a 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 persons or body of persons employed, to accept or not to accept terms of employment and physical conditions of work; and in this definition-
(a) ” cessation of work” includes deliberately working at less than usual speed or with less than usual efficiency; and
(b) “refusal to continue to work” includes a refusal to work at usual speed or with usual efficiency;.”
Definition to the above effect was also given by Lord Denning in TRAM SHIPPNG CORPORATION V. GREENWICH MARRINE IN CORP (infra).
From the x-ray of the foregoing definitions some salient points about the strike seems to have surfaced. The first is, strike is not only stoppage of work as laymen may have taken it, it also includes “Go-slow” and “Work to rule”. See FEDERATED MOTORS INDUSTRIES (DIVISION OF UAC) V. AUTOMOBILE BOATYARD TRANSPORT EQUIPMENT AND ALLIED WORKERS UNION (1978-2006) DJNIC,48. Secondly, Strike resulted from an act of employees to compel their employers to accept or reject terms of an employment. Or, Thirdly, as a result of sympathizing with other work men. see TRAM SHIPPING CORPORATION V. GREENWICH MARINE IN CORP (1975) I C R 261. Finally, strike is an act of employees not employers.
The Siamese twin of strike is ‘lockout’ on the part of employers. The Act defined it to mean
“the closing of a place of employment, or the suspension of work, or the refusal by an employer to continue to employ any number of persons employed by him in consequence of a dispute, done with a view to compelling those persons, or to aid another employer in compelling persons employed by him, to accept terms of employment and physical conditions of work.”
The causes of strike were being described to include, conflict of interest, breach of collective agreement, breach of a promise (as was the case with first general strike in Nigeria in 1945) among others. Strike has negative effect to the employer. It hampers the growth of social and economic activities. It interrupt the economic progress.
Now, the question is what is the legality or otherwise of strike in the law of this part of the world (Nigeria)?
LEGALITY OR OTHERWISE OF STRIKE
Though the strike could be described as talisman to cure labour disputes, it is position under Nigerian Law have been heatedly debated by the people in academia. Some scholars have argued that it is not only lawful and permissible but correspondingly, a right enshrined in the grundnorm (I.e constitution)
Others counter this view. To them, it connotes a breach of contract and therefore the law outrightly banned it. For the purpose of briefness we conditioned in this write-up, I will discuss the view which I believe to be stronger.
Strike is neither prohibited nor a breach of contract under Nigerian law. It is considered to be not lawful alone, but also a right. To reiterate this position, I will give four reasons. S. 30(6) (a)-(e) of the Trade Union (Amendment) Act 2005 deny any worker or trade union to engage in a strike unless they satisfy four conditions vix:
(1) The workers and their union must not engage in ‘essential service’. The phrase ‘essential service’ has not been defined by the act but refer it to be any service contain in the first schedule to the act. It is worthy to note that, even these sort of workers are not completely banned from striking, for S. 41 of the Act has laid down the requirement for strike to the people mentioned herein.
(2) The causative dispute of strike must be a dispute of right (hence, dispute of interest is excluded). For example, the current NLC strike involve a dispute of right which is recognized by S. 54 & 55 of Labour Act.
(3) The provision for arbitration in the act must be complied with.
(4) And finally, the union must have conducted a ballot at which a simple majority of all registered members voted to go on strike. It has been said that, it is difficult to organize a strike action in the face of this provision.
Furthermore, S. 42 required Fifteen days’ notice to be given by workers before ceasing work in circumstances involving danger to persons or property.
The foregoing is the conditions put down by the Act for strike. As a result, it would not be acceptable to say that, the law that conditioned the strike has outrightly ban it. If the strike has been banned, why the conditions?
My second point is S. 18 (1) of the Act which prohibits strike in a situation where neither the provision of S. 4 nor S. 6 of the act have been complied with or where conciliator has been appointed or where the dispute has been referred to Arbitration Panel for settlement or where arbitration tribunal award become binding or Where dispute has been taken to the National Industrial Court.
Here also, the act prohibited strike only in some circumstances. This clearly shows that, the act only prohibited it, not in toto , but only in those above enumerated circumstances.
Thirdly, Strike has been crystalized in the constitutionally provided freedom of Association (S. 40 of Constitution of the Federal Republic of Nigeria, 1999) see also UNION BANK OF NIGERIA V. ELDER (1993) 3 NWLR, And the English case of CROFTER HANDWOVEN HARRIS TWEED & CO V. VEITCH (1942) 1 All ER, 142 at p. 159. See also Article 8 of the International Covenant on Economic and social Right of Workers.
Lastly, there have been a plethora of strikes in Nigeria since the dawn of civilian and military apparatchik rule, more than thirty-ten strikes were said to have occurred between 1974-75 and non of the strikers have been convicted.
Consequently, going by the above four reasons, we can conclude that strike a right legally recognized by the Nigerian law. However, this right is not absolute as there is difference between right and the exercise of right.
Finally under this heading, prohibition of strike would put the workers between the adagial devil and the deep sea. As their rights will be tortured on a side, and their action (strike) to protect their rights may attract the wrath of the law.
LEGAL CONSEQUENCES OF STRIKES
The strike is an interruption of economic process of an employer. And the aim of law is to serve as bastion of justice not only to less privileged persons but to everybody and therefore, some liabilities were put to protect the interest of the management.
(1) LOSS OF WAGES
The employer may decide not pay his employees during the strike. This has been codified in S. 43 (1) (a) of the Act. It says that
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 accordingly. (Italics is mine).
From the foregoing, the strike may make an employee lose his wages and other benefits. But however, court may order the employer to refrain from non- payment when such acts will worsen the dispute. See the authority of MANAGEMENT OF UNION BANK OF NIGERIA LIMITED V. NATIONAL UNION OF BANKS, INSURANCE AN FINANCIAL INSTITUTIONS, EMPLOYEES (1978-2006) DJNIC, 115.
(2) FINING OR IMPRISONING
S. 41 of the Act requires fifteen days notice to be given by the workers in essential service before embarking on strike, failure of which may attract the fine of NGN 100 or six months imprisonment. This is also the punishment where S. 42 of the Act has been breached.
So also whoever contravenes S. 18 (1) will be punished with an imprisonment for term of six months or NGN 100 fine, in the case of corporate body to a fine of NGN 1, 000.
DISMISSAL OF STRIKERS
In MORGAN V. FRY (1968) 3 All E.R, 452 Lord Denning considered the contract of employment to be suspended during strike “and it revives when the strike is over.” Therefore, it is illegal for the employers to scatter the strikers into the four wind.
This Denning theory of Suspension has been applied by so many legal luminaries to Nigerian law ( Like Prof. (Mrs.) J A M Audi) since both the Act and the Trade Unions Act are silent about it. And also critical analysis of S. 43 of the Act will make us to conclude that, the presumption of law is, the contract is not terminated rather, suspended. Therefore, it will not be appropriate for the employers to dismiss the strikers for their action. Such dismissal would be an encroachment over the employees fundamental rights.
In HEALTH V. J F LONGMAN (MEAT SALESMAN) LTD (1973) 2 ALL E.R Where strikers were dismissed. The Court considered such dismissal “unfair”. And where a worker was unfairly dismissed he should be re-engaged without loss of wages or benefits. See TRANS INTERNATIONAL BANK PLC V. NATIONAL UNION OF BANKS, INSURANCE AND FINANCIAL INSTITUTION EMPLOYEES (Unreported) Suit No. NIC/17/2000. See also MANAGEMENT OF DANGOTE INDUSTRIES LTD, PASTER PLANT, EBUTE IKORODU LAGOS V. NATIONAL UNION OF FOOD, BEVERAGE AND TOBACCO EMPLOYEES (Unreported) Suit No. NIC/ 12/ 2009.
I can remember during my secondary school days rumours were aired in the ancient Leddi Bubayero that some trade unions were going to various private institutions destroying their properties or assaulting the people that refused to comply with its order of strike. This is what is known as “picketing” in the trade dispute law. The Oxford Dictionary of Law (op. Cit.) Defined Picketing as ” Attendance by employees and their trade union representative at or near a place of work for the purpose of persuading others to work or not to work, or to exchange information, in contemplation or furtherance of a trade dispute.”(Italics is mine).
The S. 42 (1) (a) and (b) of the Labour Act 2005 made it an offence to engage in Picketing. Therefore, the freedom of Association or Assembly, does not become a leverage to organize Riots or disturb Public Peace. So also where any Labour Union tried to compel any individual or institution which is not its member, such action is unconstitutional and therefore, actionable. See CONCORDE HOTEL LIMITED V. NATIONAL UNION OF HOTEL AND PERSONAL SERVICES WORKERS (1978- 2006) DJNIC, 317 at 319. See also QUEEN V. IMOUDU & ORS ( 1961) 1 All N.L.R, 13.
Arriving at a conclusion after the comparative study of the various legal materials, strike in Nigeria could be termed as an unruly horse. Only good men in the saddle can keep it in control. But however, in this write up we have tried to establish that strike under the Nigerian Law is not only legal but also right which is enshrined under the Chapter IV of the Constitution of the federal republic of Nigeria (As amended) 1999. It should also be glued in mind that this right is not absolute. Employers (or government) have the right to declare ” No- Work- No- Pay”. Thirdly, Dismissal of strikers is inconsistent with the fundamental law (Constitution) and therefore null and void and court, where such act have occurred, can direct the workers to be re-engaged.
About the author
Ahmad Abubakar Dubagari Is an author, poet and writer. He Writes from Faculty of Law, Ahmadu Bello University, Zaria. He could be reached through [email protected] or +234 814 651 5644.
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