The Right To Strike Action In Nigeria: An Aspect Of Industrial Law.

By: T D. Alagor

Abstract:

This paper attempts to reflect the legal concept of strike action in Nigeria with bold effort to determine whether there is a right to strike bearing in mind its present technicalities, accordingly, in a way to facilitate learning.

Keywords: Right to strike, legal effect of strike, Trade Dispute Act, 1999 Constitution of Nigeria, Judicial Attitude.

Introduction:

The etymology of the term “strike” is considered from the standpoint of jurists, judicial decisions, as well as statutory provisions.

In  Tramp Shipping Corporation  V.  Greenwich Marine Inc.,[1] the indomitable Lord Denning stated that a strike is “a concerted stoppage of work by men, done with a view to improving their wages or conditions of employment, or giving vent to a grievance or making a protest about something or sympathising with other workmen in such endeavour. It is distinct from stoppage brought by an external event such as a bomb scare or by apprehension of danger.”

Strike is the commonest and most popular form of industrial action in Nigeria. Accordingly, Professor Rideout defined it to mean a deliberate and concerted withdrawal of labour.

Adopting the statutory meaning under S. 48 of the Trade Dispute Act[2], it means the  cessation of work by a body or persons employed acting in combination or a concerted refusal or a refusal under a common understanding of any number of persons employed, not to continue work for an employer in consequences of a dispute done as a means of compelling their employer to accept or not to accept terms and conditions of work[3].

Strike is different from the stoppage of work. One should therefore take note to avoid indiscriminate use of words.

Industrial disputes arise due to conflict or disagreement in industrial relations. The term “Industrial Relation” involves various aspects of interactions between the employer and the employees, in this relationship, whenever there is a collision of interest, it usually results in dissatisfaction of either of the parties involved and hence leads to Industrial disputes or conflicts. These disputes may take various forms, such as protests, strikes, demonstrations, lock-outs, etcetera. There are undoubtedly several reasons behind industrial conflicts. Some are related to the work environment while others are basically outside of the work environment.[4].   It is because of this that the International Labour Organization’s Committee on Freedom of Association argue that the right to strike is one of the potent means open to workers union for the promotion, protection and preservation of their economic and social interests within and outside the workplace.

The protection of these interests does not only have to do with ensuring better working conditions and aggressively pursuing collective demands of the Union but also with seeking solutions to economic and social policy questions and to labour problems of any kind which may directly affect the workers.

Generally, the inability of parties to settle their internal disputes or conflicts is the major cause of industrial strike. This may arise because of one or more of the reasons enumerated below:

(1.) First is the failure to honour Collective Agreements reached by the parties after negotiations.

(2.) Second is the demand for salary and wage increase.

(3.) Third is that obnoxious policies employer comes up with, which negatively affect the fundamental rights of the employees.

(4.) Fourth, the demand for improved labour welfare and other benefits such as health care, travelling allowances, accommodation facilities, rest and recreation, etcetera is another cause of strikes.

(5.) Fifth, the denial of opportunity to the worker to satisfy their basic right for self-expression, personal achievement and betterment may also result in labour problems.

Unfortunately, however,  there is in Nigeria at the present time no right to strike as a matter of law.  Nigeria lags far behind the rest of the world in this area. Nigeria clearly infringes its obligations under international law by failing to ensure a right to strike. Not only does Nigerian law not contain a positive  expression of the right to strike, it subjects participants to severe penal sanctions and other liabilities[5]. The existence of the vast array of legal constraints to the taking of strike action in Nigeria makes it clear that no one can speak truly of a right to strike.

Types of strike.

Two kinds of strike exists, namely, official and unofficial or wildcat strikes.

A strike is official when it is being organised by the workers’ union. This is the common and effective strike.

It becomes unofficial when it is being organised independently of the trade union.

Legal Effect Of Strike

On the precise legal effect of strike action, the question remains a controversial one. Many theories have been developed for help in order to aid discourse, however, I shall limit myself to the two most operative ones.

(1.) Suspension Theory.

This theory was enunciated in the case of Morgan v Fry.[6] According to this theory, a strike is a suspension of work. When a strike takes place, the contract of employment is not terminated but suspended, and long as the strike lasts, it revived again when the strike is over.

(2.) Breach of contract theory.

This theory is a creation of common law. At common law, the contract of employment requires the employee to offer service to his master faithfully and without any iota of disobedience. There is no doubt, therefore, at common law that an employee who goes on strike would have fundamentally breached his contract of employment. This principle of law was firmly established in Rookes v Bernard[7] by Donovan L. J. when he said that “there can be few strikes which do not involve a breach of contract by the strikers.”

At common law, an employee will therefore be in breach of his contract of employment if he refuses to work or carry out the legitimate instruction or order of his master.[8]

This theory therefore sees strike as a breach of contract. This is because withdrawal of service as a result of strike goes to the root of the contract, thus a worker who stays away from work unjustifiably, in law commits a fundamental breach of the contract, entitling the employer an option to dismiss such a worker. The case of Anene v Allen & Co Ltd[9]  supports this principle.

According to this theory, it makes the contract voidable at the instance of the employer, entitling him an option of waver to so ignore the breach and continue the performance of the contract of employment or treats the employee’s contract as repudiated, as an end, and no longer bound by it.

I must note with precision that these theories are not a statutory framework, it is actually a thinking by various academic authors.

Right to Strike

The point needs to be made that in Nigeria, there exists a contentious argument by two schools of thought on the issue of the right of the Nigerian worker to strike following the introduction of the statutory provisions of Section 17 (1) of the Trade Disputes Act of 1976 (now Section 18 (1) and (2) of the Trade Disputes Act.

It is contended by one school of thought that the introduction of Section 17 (1) and subsequent amendment of the section have utterly taken away the right of the Nigerian worker to embark on a lawful strike.

Other statutes that equally impinge on the right of the Nigerian worker to strike are Sections 31 (6) (e) of the Trade Union Act (TUA) 2005, 43 (1) Trade Disputes Act (TDA) and Section 1 Trade Disputes (Essential Services) Act (1976). This Act empowers the President and Commander-in-Chief to proscribe any trade union or association and the omnibus provisions of Section 45 of the 1999 Nigerian Constitution.

It is the contention of this school that with the introduction section 17 (1) of the Trade Disputes Act, 1976 (now Section 18 (1) a new vista of trade dispute resolution mechanism has been opened and the question is whether the Nigerian worker still has a right to embark on a lawful strike in the light of these provisions[10]. Many learned authors have submitted that with this new statute in force, the Nigerian worker has totally lost his right to strike.

Uvieghara,[11]one of the leading contenders of this school of thought argues that the introduction of Section 17 (1) now Section 18 (1) of the Trade Disputes Act, 2004, as amended prohibits the right of Nigerian workers to embark on a lawful strike. According to him, “the purpose of setting out Section 17 (1) now Section 18 (1) in full is to show that it does not leave any room for a lawful strike”. Its effect, he submitted, is to prohibit strikes completely.[12] 

Emiola[13] has also acceded to this line of thought, contending that Section 17 (1),

But there is nothing to suggest from the close reading of subsection 1, of Section 17 (1) (now Section 18 (1) that a strike can legally take place while one of the six processes is in progress, and Section 14 (2) now S. 13 (2) can have no other imputation than that no strike can also take place after the award under subsection 1 (f) of that section. The true construction of the new provisions, therefore, is that none of the parties to an industrial dispute can take industrial action while negotiations and other steps enumerated under section 18 (1) of the present Act were in progress. It will be a criminal offence to do so.[14] 

Imperatively, the main purpose of collective bargaining is to obtain a binding contract, an agreement between the Union and Management which may include a no-strike clause which prevents strikes, or penalises the union and/or the workers if they walk out while the negotiation is on and the contract is still in force.

Aligning with the position taken by Emiola and Uvieghara, Iduborhas also submitted that as long as Section 18 (1) is in force, any strike embarked on by workers is in the breach of the extant Act and therefore illegal. According to him, “on the true construction of this section, none of the parties to a trade dispute can take industrial action if the prohibition remains during the intervention of a mediator, if at the conciliation level the prohibition remains in force.”

Also, towing this line of thought, Abuza has submitted that there is no loophole in the strike law which workers can exploit to embark on a legal strike. Section 18 (1) TDA prohibits any strike in connection with any trade dispute where the procedure specified. In Section 4 or 6 of the TDA has not been complied with in relation to the dispute.

Recently, Erugo[15] corroborated the views of Emiola and Uviegahara when he said the process required by Section 18 (1) which makes reference to Sections 4, 6, 8, 9, 13 (3) and 14 (1) confirms that the disputing parties lose the right or freedom to bargain. The back-and-forth process of the negotiation in an attempt to satisfy the preconditions to embark on strike under the present law would be an exercise in futility.

 In fact, being a statutory inhibition, the sections appear to have buried whatever recognition of the right to strike. More so, subsection (2) is a manifest repression of the right to strike, having criminalised the circumvention of subsection (1) of the Act.[16] 

The other school of thought on the contrary, completely disagrees with these submissions. They hold the strong view that in spite of the introduction and amendment of Section 17, now Section 18 (1) of the Trade Disputes Act, the right of the Nigerian worker to strike has not been removed. They rely on statutory provisions and case law in asserting this view. 

The Court in Crofter Harris Tweed co Ltd v. Veitch[17] held that the right to strike is the essential element in the principle of collective bargaining. It is essential not only of the union’s bargaining itself, but of a necessary sanction for enforcing agreed rules.

In Union Bank of Nigeria Plc v. Edet,[18] Uwaifo JCA (as he then was) had this to say in regard to the right to strike and ensuring that collective agreements are enforced.

“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.”

More recently in Aero Contractors Co. Of Nigeria Limited v The National Association of Aircrafts pilots and Engineers, the air transport senior staff Association of Nigeria and the National Union of air transport Employees,[19] the National Industrial Court observing that section 245 (c) of the constitution granted the Court the Jurisdiction and power to apply any international convention ratified by Nigeria, referred to the work of the ILO Committee of experts on the Application of conventions and recommendations to hold that, “in general” “air transport” does not constitute essential services in the strict sense of the term, and therefore the prohibition to strike does not pertain to air transport generally. The court agreed thus, “… that the right to strike and organise union meetings are an essential aspect of trade union rights.”

By virtue of Section 40 of the 1999 Constitution, the right to peaceful assembly and association, and in particular to form or belong to any trade union, is protected. The section provides:

Every person shall be entitled to assemble freely and associate with other persons, and in particular he may form or belong to any political party, trade union or any other association for the protection of his interests.

It is emphasised by those of this liberalist school of thought that the constitutional provision guaranteeing the freedom of association, including the formation and joining of a trade union has the legal effect of legitimatising strike as the basis of the union negotiating and collectively bargaining on behalf of its members.

Supporting the connection between collective bargaining and the right to strike, Adeogun notes that:

The freedom to strike and lock-out is a concomitant of the collective bargaining process in that the system succeeds only to the extent that the two parties “collective” parties are unmistakably aware of the strength of either party to organise successful industrial action to make the other negotiate or to compel observance of the agreement reached.

Khan-Freund is also of the view that the ability of the trade union to embark on a lawful strike is the only way that their strength can match the supreme power of the employer to discipline and dismiss its employees. He went further to state that “in the context of the use of strike as a sanction in industrial relations, the equilibrium argument is the most important… the concentrated capital can only be matched by the concentrated power of the workers acting in solidarity.”[20]

Bellace[21] has also submitted that without the right to strike, without the ability to threaten economic loss to the employer, unions lack bargaining power.

Both Akpan and Nwabueze have submitted that Section 18 (1) of TDA is void of being inconsistent with Section 34 (1) (c) of the 1999 Constitution of the Federal Republic of Nigeria (as amended), which prohibits forced labour. They opined that the prescriptive implication of the statute is to force labour to bow at all times to the whims and caprices of the employer, thereby forcing an unwilling servant on a willing master.

They concluded that since the Constitution is the supreme law of the land; it supersedes the Trade Disputes Act and, therefore; they contemplated the right to form and join a trade union, guarantees the right to strike.

They summarised by saying that the right to collective bargaining cannot be separated from the right to press forward the demands of the union should the negotiation fail or break down.

Oshio,[22] has postulated that the right to strike survives in Nigeria by virtue of common law. According to him, at common law, an employee has a right to go on strike as long as they have given adequate notice to the employer of his or their intention to go on strike.

The right to strike is judicially recognised by common law. In Crofter Hand Woven Tweed Co. Ltd. V. Veitch [1942] AC 435. Lord Wright had this to say:

When 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 the workman to strike is an essential element in the principle of collective bargaining.

His argument was that Nigeria, being a Colony of Britain, operated the common law rule. Hence, to have a fair historical perspective on the right to strike in Nigeria, it is pertinent to consider the common law position with regard to the right to strike.

Supporting this line of argument, Ukhuegbe[23] submits that the compulsory process of Section 17 (1) now Section 18 (1) of the Trade Disputes Act violates Nigeria’s obligation under Article 4 of the International Labour Organization (ILO) Convention No. 98, which enjoins state parties to promote:

Voluntary negotiation between an employer and employer organisation and workers’ organisations, with a view to regulating the terms and conditions of employment by means of collective agreements.

The argument on whether the Nigerian worker in the face of Section 18 (1) of the Trade Disputes Act can embark on a lawful strike is very interesting.

The assertion of the proponents of strike prohibition appears to be true on the face of the literary meaning of the statutes. Subsection (1) of the section clearly outlined the condition precedent before a lawful strike could be carried out in Nigeria. Their argument is further sustained by the subsection (2) which criminalizes the act of any party who circumvents the subsection of the Act.

Candidly, both Emiola and Uvieghara admit that once a party has fulfilled one of the conditions specified in the subsection, the party can legitimately embark on a strike. They relied on the decision in Eche v. State Education Commission (1993) where the court held that it is only when one of the conditions enumerated in the subsection has been complied with that a strike action can be said to lawful. The stringent procedure to be followed before a strike could be deemed lawful or protected makes it near impossible to have a lawful strike.

On the other hand, Giame, Awhefeada, and Edu,[24] submitted that the contention of Emiola, Uvieghara and other proponents that with the introduction of Section 18 of the Trade Disputes Act, Nigerian workers have totally lost their right to strike based on the far-reaching effect of the provision is indeed unfounded. They maintained that having critically looked at relevant laws and submissions of various writers and judicial pronouncements on the foregoing issue, it could be safely asserted that though there appear to be some obvious limitations or restrictions to the exercise of the right to strike in Nigeria; according to them, these laws have not in any way totally banned or removed the use of strike as a means by which trade unions could press home their demands where negotiations fail.

They further maintained that the laws, especially Section 18 (1) TDA and Section 31 (6) TUA, are essentially formulated to curtail the rampant, unwarranted and indiscriminate use of strike as a means of coercion in Nigeria. Hence, the cumulative effects of Sections 18 (1) TDA, 31 (6) (a) & (b) and (7) and section 12 (4) TUA do not have the potency of banning the right of the Nigerian workers to strike. This is as a result of the provisions of Article 11 of the African Charter on Human and Peoples Rights (Ratification and Enforcement) Act,[25]
as well as Article 89 of the ILO Convention, which provides for freedom of association and freedom of the Union to bargain collectively. Nigeria as a member of these organisations and having ratified these Conventions cannot ban strike. Even where they have not ratified these conventions, the mere fact of their membership obligates them to honour the right to strike flowing from the freedom of association.

The constitutional provision of Section 40 of the 1999 Constitution of the Federal Republic of Nigeria which is in pari materia with Article 11 of the African Charter on Human and Peoples Rights (Ratification and Enforcement) Act, together with Article 8 (1) (a) of the International Covenant on Economic, Social and Cultural Rights guarantees the use of strike by the mere fact that people are free to join associations and trade unions of their choice for the defence of their interest and the interest of their organisation, making the right to strike a fundamental right, insofar as it is not inconsistent with the provisions of Section 45 of the 1999 Constitution of Nigeria. They concluded that the right of the Nigerian worker to go on lawful strike has not been removed. At best, one would say that the right has been curtailed but certainly not extinguished.

Whilst the position adopted by the writers may not appear to be wholly accurate, One would agree with me that under statutes, there appears to be no right to strike conferred expressly by any provision or section whatsoever. However, a critical view of S. 18, Trade Dispute Act does intend that there should be a right to strike action. 

A careful perusal of the purport of the above section appears that the Act recognises the presence of strike action, thereby stipulating preconditions to be met for a worker to take part in a strike action..

In other words, a compliance with the specified procedures and conditions should render the prohibition of strike inoperative.

However, under sections 4, 6, 8, 9, 13 (3), 14 (1) particularly S. 4, and its preceding subsections , parties loses the right to strike action. It’s possibility is removed by sections 4 & 6 respectively.

It suffice to state that an attempt to satisfy the preconditions to embark on strike under section 18 would  be an exercise in futility.

The implication is that at no point and under no circumstance can an employee legally employ strike as a bargaining or enforcement tool under the sections considered.

It’s my firm view that the legal framework for strike action in Nigeria amounts to giving Trade Union’s the right to strike with one hand, and withdrawing it with another hand. Hence, It’s therefore safe to conclude that no positive right to strike exist.

This may not augur well for industrial relations as in view of the latent capabilities of workers, the tendency may be to resort to other less volatile but inherently dangerous industrial actions.[26]

How well will parties to contract of employment enforce their rights and obligations under the contract? Where then is the strength of workers in their collective efforts and combination? And what extra-legal sanction exist to compel bargaining and to enforce agreed rules under the contract of employment?

The answer appears to be traceable to industrial actions and particularly through strikes.

Strike is a potent tool in the hands of the workers to collective bargaining and without this critical element, the workers’ union appears powerless.

Professor Freund in affirmative, rightly opined that “no country I know of, suppress the freedom to strike in peace time except dictatorships.”

Judicial Attitude

Judicial attitude to the statutory clogs on the workers’ perceived right to strike has towed the line of caution. Most times, courts make pronouncements in the spirit of industrial relations and in appreciation of international norms.

The effect is that striking workers shall not be entitled to remuneration during the currency of the strike. The employers usually adopt the principle of ‘no work, no pay rule’, thereby dis-entitling striking workers from wages and other benefits envisaged by section 42 (1) (a), Trade Dispute Act. See Abdulraheem v Olufeagha.[27]

Conclusion

The right to strike is a keystone of modern industrial society. No society which lacks that right can be democratic.  Any society which seeks to become democratic must sure that right.

The right to strike is clearly recognised in international law and in the laws and constitutions of many countries in the world from Europe to USA, Africa and elsewhere, thus making it legally available as a viable tool for labour in the inevitable conflict of interests between labour and capital.[28]

Unfortunately, however,  there is in Nigeria at the present time no right to strike as a matter of law.  Nigeria lags far behind the rest of the world in this area. Nigeria clearly infringes its obligations under international law by failing to ensure a right to strike. Not only does Nigerian law not contain a positive  expression of the right to strike, it subjects participants to severe penal sanctions and other liabilities.[29]The existence of the vast array of legal constraints to the taking of strike action in Nigeria makes it clear that no one can speak truly of a right to strike.


Law graduate, faculty of law,  Abia State University, Uturu. The Author has a great penchant for research, knowledge, legal writing & oratory. His areas of interest include Arbitration, Corporate practice and litigation.

[1] (1975) ICR 261, at 276. See also  Miles v  Wakefield  Metropolitan  District Council  (1987)2  ALL E.R 1081, at 1097.

[2] Trade Disputes Act, Cap. T8 LFN, 2004.

[3] The definition of strike under the section apparently included “go-slow” and “work to rule” by its meaning of “ cessation of work: and refusal to continue to work”.

[4] Otobo, Dafe. Role of trade unions in Nigerian industrial relations. ( Oxford : Malthouse,1987  OCLC 744495762)

[5] Otobo (n 4)

[6] (1908)3 All ER 452.

[7] [1964] AC 1129

[8] Canadian Pacific Railway Co. v. Zambin [1968] S.C.R. 609.

[9] (1975) UILR 404

[10]  Giame, B. , Awhefeada, U. and Edu, O. An Overview of the Right to Strike in Nigeria and Some Selected Jurisdictions.(2020) <https://www.scirp.org/journal/paperinformation.aspx?paperid=99995 >accessed 22 February, 2022

[11] Uvieghara, E. E. Labour Law in Nigeria (Lagos: Malthouse Press Ltd. 2001) 446

[12] Ibid

[13]  Emiola. A Nigeria Labour Law (4th ed. Benin-City: Amfitop 2008)

[14]  Ibid

[15] Erugo, S. Introduction to Nigerian Labour Law Contract of Employment and Labour Practice (2nd ed. Lagos: Princeton & Associates Publishing Co. Ltd. 2019)

[16] Erugo (n 15)

[17] (1942)1 All ER 142,at 159

[18] (1993) 4 NWLR (PT.287) 288 at 298.

[19] (Case No. As-106-01-2014, 2 October, 2014)

[20] Khan-Freund, O., & Hepple, B. A. Law against Strike. (Fabian Research Series 305, London: Fabian Research Services 1972)

[21]  Bellace, J. R. ‘Back to the Future: Freedom of Association, the Right to Strike and National Law’. (2016)  King’s Law Journal 27, 24-45.

[22] Oshio, P. E. ‘The Bank Customer, Bank Strikes and the Law in Nigeria.’ (1996) In E. Chianu (Ed.), Legal Essays in Honour of Professor Sagay.  (pp. 171-183). Benin: Department of Public Law, University of Benin.

[23] Ukhuegbe, S. O. ‘The Right to Strike in Nigeria: A Perspective from International and Comparative.’ (1996) A. Lawin Guobadia, & S. Ukhuegbe (Eds.), Selected Essays in Law, Faculty of Law (pp. 148-149). Benin-City: University of Benin.

[24] Giame, B. , Awhefeada, U. and Edu, O. ‘An Overview of the Right to Strike in Nigeria and Some Selected Jurisdictions.’ (2020) Beijing Law Review,

[25] African Charter on Human and Peoples Rights 1981. (Ratification and Enforcement) Act, Cap. 10 LFN, 1990.

[26] Erugo, S. Introduction to Nigerian Labour Law Contract of Employment and Labour Practice (2nd ed.Lagos: Princeton & Associates Publishing Co. Ltd.2019)

[27] (2006)17 NWLR (pt1008) 280 CA

[28] Okene, O. V. C. ‘The Right of Workers to Strike in a Democratic Society. The Case of Nigeria. Sri Lanka Journal of International Law,’ (2007) 17, 193-221.

[29] Ibid

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