By Olatunde Olayinka Damilola
Laws would not exist, if orderliness was bestowed on man by nature. In fact, the state of nature abinitio, was gifted to us with so much brute, individualism and social cannibalism, such that it avails all man to live by himself in a form structure of his own. A state Thomas Hobbes mirrored as “Solitary, short, poor, brutish and Nasty”. Therefore, the major essence of laws and rules to the humanity is to make up for what we lack in nature- Ordeliness. To this end, over the years, the law has continued to extend its horizons. Now just as the land has its laws, the things beneath the land their laws, so does even war, which inherently comes with a thirst for damages, and vengeful desires regulated by laws. More also, it is expected that for laws to achieve its full purpose on order, compliance and enforcement should adequately exist concurrently.
On February 14, 2022, the academic populace woke up to a “declaration of war” on the Federal Government by the Academic Staff Union of Universities- a warning strike which would see a large percentage of Nigerian Universities closed and academic activities interrupted. ASUU asserted and publicly advocated its good cause for the war, decrying the seeming abandonment of Public institutions by the Federal Government, the poor condition of learning in these institutions as an aftermath of the former, the inefficiency of IPPIS as a payment system as well as the lackadaisical approach of the government towards honoring an agreement it renegotiated a year before with the body- the 2009 Agreement- among others. While this happening was quite foreseeable as an unfortunate part of the stop-start Nigerian academic system, yes! ASUU was going on its sixteenth strike since its 23 years of creation, nevertheless there were prayers that the strike would not extend for too long. Six months and still counting, the strike action of the Academic Staff Union of Universities remains unresolved.
On the other hand, the Federal Government despite large outcries of the masses at the inception, greeted the strike action with levity and instead tried to coerce the union to resumption by retracting their salaries, a move which caused so much hardship to the workers but further bolstered their reluctance. ASUU and the Media created in the government an heartless villain until lately, when the latter showed it could really be having genuine financial problems in dealing with the request of the Academic staff Union of Universities, especially in relation to revitalization funds. Aside the problem of liquidation, the Minister of Labour, Chris Ngige, condemned the strike action of the Union abinitio for coming without adequate notice to his office and infact, flaunted his opened choice of having the Union sanctioned at the National Industrial court for flagrantly disregarding the law. Finally, the FG also considered the claim of a new payment system with so much insistence from the Union to its preferred payment system as an uncondonable excesses overlapping its role as the employer.
With negotiations failing and an end to the strike not in sight, the war which started on the table, got so much attention in the media, and caused so much damages to the Students, could end up at the National Industrial Court for resolution. Pursuant to the jurisdiction of the NIC to interprete the law vis-a-vis collective agreements and to determine rights and liabilities in a trade dispute, the court may also be forced to award punitive damages for” war crimes” committed in this elongated war. On this note, this work looks to objectively examine the provisions of the law in relation to the settlement of trade dispute in Nigeria, especially those guiding industrial action and negotiations between two “warring” parties in a trade dispute. On the broader objective, this work would juxtapose the actions of the Union and the Federal Government so far in this trade dispute with the points of law expoused to determine the level of compliance accorded to the Trade Dispute Act 1976.
EXPOSITION ON THE RULES OF WAR- THE TRADE DISPUTE ACT 1976
War is an inevitable phenomenon in human relations, such as disagreement is an inalienable part of industrial relations. Trade dispute could result between an employee and an employer on the terms of employment, the condition of work and things incidental to it, as well as between an employee and another employee on the exercise of their duties and functions within an organization. According to section 52 of the Trade Unions Act 1973 and section 47(1) of the Trade Disputes Act 1976 respectively, a “trade dispute” is defined as any dispute between an employer and a worker or between workers and employers, which is connected with the employment or nonemployment, or the terms of employment and physical conditions of work of any person. On this note, the writer submit that the subjects of dispute between ASUU and the FG, being one in relation to condition of work, constitutes a trade dispute.
In the resolution or furtherance of a trade dispute, two instruments are available to both parties they are collective bargaining such as negotiation, and industrial action such as strike action, picketing, work to rule for the employee or lock out for the employer.
According to the provisions of the Trade Dispute Act 1976, s.18 to be precise, the law creates an order in which these instruments are to be exercised. The white paper rule of this provision is that Industrial action should only be pursued where other means of dispute resolution, especially bargaining, has been employed and failed. Where there is a provision in the employment contract as to how a trade dispute is to be resolved, such provision must have been patronized before an industrial action can take place. As a matter of fact, if such medium also fails section 4(2) of the Trade Dispute Act 1976 makes further provision for a need to make recourse to Mediation. If mediation fails, the Minister of Labour, must be put on notice within 3 days in writing to apprehend the dispute via other options which include: Conciliation in section 8 of the Act, Industrial Arbitration Panel resolution in Section 9, a reference to a board of enquiry in section 33, and at the latter end, filing a suit at the National Industrial Court established in section 19 and section 20 of the Trade Dispute Act 1976. Of utmost importance in all these processes however, is the specific prohibition of a concurrent strike action. The Trade Dispute Act consider it unacceptable for a strike action to run concurrently with the above processes in section 18 and infact considers it a crime punishable by imprisonment with an option of a fine in section 18(2)- six month imprisonment or a fine of #100 for an individual as well as a fine of #1000 for a body corporate. The rationale behind this rule is not far fetched, as it is to allow both parties negotiate on a level playing ground without any form of economic duress.
Relating the provision of this Act to the current Asuu crisis, the Nimi Briggs committee was constituted by the Minister of Labour in March 2022, a month after the commencement of the ASUU strike to apprehend the dispute as a board of enquiry and a mediation team for the renegotiation of the 2009 Agreement. The committee was expected to run their enquiry and negotiations for a period of three month in which by law, ASUU is expected to suspend its strike action. However, ASUU refused to call off the strike while the negotiations were on, stating reasonably the government’s attitude to previous negotiation as an excuse for their action. In all fairness to the Union, FG has a reputation of not only reneging on promises with the body, but also loves to deploy delay tactics in their negotiation. However, from the point of law, the writer submits that ASUU regardless of its equitable motive, has contravened the provision of section 18 of the Trade Dispute Act 1976 prohibiting strike actions during the apprehension of a dispute by the Minister in Section 5 of the Act and could be liable for a “war crime” in this tussle. The writer also argues that ASUU could have proceeded to the National Industrial Court to enforce the collective agreement between them as provided in Section 3 of the Trade Dispute Act 1976 instead, provided all the requirements in the Act have been complied with during negotiation. The law frowns at intentional boycotting of a collective agreement which should grant sufficient right to the body rather than engage in self-help.
Furthermore, another salient issue of discourse in course of this trade dispute is the Federal Government Policy discontinuing the payment of salaries for the duration of the strike. The FG through the Ministry of Education stopped the payment of salaries and other eemployment benefits to the members of ASUU in a bid to coerce them away from the industrial action. In the court of public opinion, this seem quite unfair and looks like an act of bully. More inimical to negotiations, in recent weeks, is the fact that the ASUU are now requesting the payment of those arrears in recent weeks, if any agreement is to be reached for the suspension of the Industrial action. Certainly, ASUU sees this as the only way to compensate for the government delay in addressing their demands and most especially, a make-weight in their current negotiation. On this issue, the writer submits that while the Federal Government is at liberty to accede to this request, it is not an obligation by law to pay up forfeited salaries in course of a strike action. According to section 43 of the Trade Dispute Act 1976, 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. The only alternate to this rule could have been a situation of lock out where the employer would be obligated to pay his employees for the periods of the lock out, but this is in no way the case. The writer also submits that the payment retraction policy of the government, even though harsh is legal and therefore not an act of “war crime” in this instance.
Before summing up this work, the writer will like to make a brief evaluation on issues pertaining to the period of notice for an industrial action as well as the right of ASUU to challenge the FG payment system. On the period of notice before the commencement of an industrial action, the Trade Dispute Act does not specifically provide for a period of notice to be given before a strike action commences except in relation to workers of essential services in Section 41 of the TDA 1976 and workers who carry out duties related to life and securing of property in Section 43. Furthemore, workers of essential services are listed in the First Schedule of the Act to include workers in the supply of power, broadcasting, port maintenance, etc., with no mention on education which is the service offered by members of ASUU. Therefore on this note, the writer submits that ASUU is only required to give a notice of a reasonable period to their employer before cessation of work and therefore not guilty of a “war crime” in this instance. On the other hand, in the determination of payment system, while the employer is saddled with the responsibility of paying wages to the employee as provided in section 1 of the Labour Act 1971, and therefore incidentally obligated to determine the payment of system, the employee can propose a better payment system or object to the payment system where it is deemed prejudicial to the interest of the employee. After all, it is a condition of service and the major crux of defining a trade dispute in the first instance.
Following a critical evaluation of the industrial action carried out by the Academic Staff Union of Universities, as well as the response of the Federal Government to the trade dispute between both parties, the writer concludes that both parties are guilty of flouting certain provisions of the Trade Dispute Act 1976, regardless of their motive for such actions. As earlier mentioned, the sole purpose of the law is to instill order and avoid a brutish state, so does its compliance and enforcement. It is therefore expected that regardless of the circumstances and situations warranting a trade dispute, warring parties should endeavour to pursue their grievances within the purview of the labour laws available.
On this note, the writer recommends that the National Industrial Court, provided this dispute is brought before it, should not overlook the excesses of either parties in the violations of the Trade Dispute Act. Fines and punitive damages should be awarded where necessary to instill compliance in subsequent cases. If the labour laws are left to be flouted without proper checkmates, regardless of motive, and disputing party are allowed too much excesses outside the provisions of the Trade Dispute Act, the country economy and its labour administration could be in complete jeopardy. It is expedient that labour laws are not only put in place to guide trade dispute, but also enforced adequately against defaults.
Olatunde Olayinka Damilola is a student of Law at Adekunle Ajasin University and a researcher/content writer at SAN RESEARCH INSTITUTE. Contact: firstname.lastname@example.org Phone number: +2349060557789 (WhatsApp number).