Nigeria has been immensely blessed with a contagion of strikes during this season to the extent that even the dead bodies of deceased workers in their graves keep singing to the ears of the Nigerian government, “Strikes fall on you, more strikes fall on you!”.
The Academic Staff Union of Universities( ASUU) declared an indefinite strike over unresolved and contentious issues with the Federal Government on the 12th of August, 2017.
Vanguard Newspaper reported that the National President of ASUU, Prof. Biodun Ogunyemi in a text he read while briefing journalists said, “our members across the country were getting increasingly frustrated, distracted and disenchanted.
It became evident that their patience had been tasked beyond reasonable limits and government’s insensitivity imposed severe burden on the leadership of the union
“Consequently, based on a nationwide consultation with our members, an emergency meeting of the National Executive Council (NEC) of ASUU rose on Saturday, 12th August, 2017 with a resolution to embark on an indefinite strike action starting from Sunday, 13th August 2017.
“The nationwide action is total and comprehensive. During the strike there shall be no teaching, no examination and no attendance of statutory meetings of any kind in any of our branch”.
In the bulletin signed by Ogunyemi, it was recalled that ASUU had to embark on a six month strike between July and December 2013 and the strike was suspended when government signed an MoU with the union.
Hmmm…Hiroshima and Nagasaki should celebrate at the thoughts of the havoc the said six months strike wrecked to the career of some people. I won’t mention names. *coughs*
As Nigerian Students and other concerned Nigerians were celebrating the Almighty ASUU strike, the National Association of Resident Doctors (NARD) decided to join the queue on the 4th of September, 2017.
In a brief statement obtained from Vanguard Newspapers, Premium Times hinted that the President of the National Association of Resident Doctors, NARD, Onyebueze John, said, “Rising from our NEC meeting, which started by 7pm yesterday and ended 3am today. NARD has resolved to reject the promissory offer from Government, and proceed on total and indefinite strike action until all items in her demand list for strike action are resolved by Government.”
It is no gainsaying that the said strike action embarked upon by the NARD definitely opened the windows of death to many. At least, if I don’t know of any other case, the story of a man who was rushed down from Ifo to Sacred Heart Hospital, Lantoro, Abeokuta, Ogun State (The First Hospital in Nigeria) which is about 50kilometres apart if fresh in my memory.
Alas! The man struggled unsuccessfully for life; he passed on just few minutes after his arrival at the hospital perhaps because his condition aggravated while his relatives were trying to get a private hospital as an alternative.
While going through the news on the plan of the Non-Academic Staff Union of Universities(NASU), Senior Staff Association of Nigerian Universities (SSANU) amongst other trade unions to also embark on indefinite strikes, I was privileged to read the Gospel according to a friend of mine, Omolara Dada on Facebook.
In fairness, Omolara’s words of protest against the incessant strike actions that disrupts the academic calender of academic institutions stood firm like the rock of Gibraltar! In fact, I won’t be surprised if the President of ASUU reads the write-up and prevails on his colleagues to call off the strike. *smiles*
However, one important fact dropped in my mind while reading the said write-up and it echoes; “But they have the right to strike!”.
Points to Note:
1. Strike is simply an organized stopping of work by employees because of a disagreement.
2. Technically, it can be legally defined as a 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 persons or body of persons employed, to accept or not to accept terms of employment and physical conditions of work.
3. Note that the factor that distinguishes strike is the element of concerted action, which indicates that it has been planned, arranged, agreed on and settled between parties acting together pursuant to some design or scheme. In essence, the emphasis is on the workers acting together.
4. Other elements of strike includes the stoppage of work and the purpose of the cessation must be in connection with a dispute involving the terms of employment and physical conditions of work.
5. All strikes are industrial actions but not all industrial actions are in form of strikes. Other forms of industrial action includes work to rule/ go slow, ban on overtime, picketing amongst others.
6. Note that workers have a constitutional right to embark on strike! This right derives from the right to freedom of association and collective bargaining.
7. Therefore, strike can be seen as a weapon of last resort in the hands of trade unions which is used to drive home their points/demands when the employer fails to honour collective bargaining.
8. However, for the strikers to enjoy the protection of the state against criminal and civil liabilities which arises during the conduct of the strike, it must be a lawful industrial strike.
9. A lawful industrial strike must follow the statutory requirements which are stated below:
(i) The procedures specified Trade Dispute Act has been complied with in relation to the dispute i.e. parties must attempt a voluntary settlement of their dispute themselves;
(ii) A conciliator has been appointed under the Trade Dispute Act for the purpose of effecting a settlement of the dispute; or
(iii) The dispute has been referred for settlement to the Industrial Arbitration Panel as prescribed by the Trade Dispute Act; or
(iv) An award by an arbitration tribunal has become binding under the Act; or
(v) The dispute has subsequently been referred to the National Industrial Court ; or
(vi) The National Industrial Court has issued an award on the reference.
10. Trade Unions/Workers must follow the above procedures before they can be said to have embarked on a lawful industrial strike.
11. It is a criminal offence under the Trade Dispute Act for any worker or employee to engage in a strike action in connection with a trade dispute without first exhausting the procedures listed above.
12. Note however that some sets of workers are not allowed by the Constitution and other relevant Nigerian laws to embark on strike for the sake of public interest.
13. Therefore, no person, trade union or employee shall take part in a strike or lockout or engage in any conduct in contemplation or furtherance of a strike or lockout unless;
(i) The person, trade union or employee is not engaged in the provision of essential services e.g. members of Nigerian Army can’t go on strike;
(ii) The strike or lockout concerns a labour dispute that constitute a right;
(iii) The strike or lockout concerns a dispute arising from a collective and fundamental breach on the part of the employee, trade union or employer;
(iii) The provisions for arbitration in the Trade Dispute Act have first been complied with;
(iv) In the case of an employee or trade union, a ballot has been conducted in accordance with the rules and constitution of the trade union at which a simple majority of all registered members voted to go on strike.
13. However, the effectiveness of these restrictions and the compliance with these Laws is for the public or, more specifically, the court as their custodian, to examine.
In line with the foregoing statutory provisions, I would have said both the Academic Staff Union of Universities and the Nigerian Association of Resident Doctors have embarked on a legal industrial strike. However, since I cannot see beyond my nose, it would be unsafe to make such hasty conclusion considering that only an ‘internal person’ would be able to ascertain whether the trade unions have exhausted the internal remedies. Nonetheless, on point is constant, they have a right to strike!
THE LEGAL DIARY
Joseph Jagunmolu Ogunmodede
Joseph Jagunmolu Ogunmodede is the Founder/CEO of THE LEGAL DIARY.
He is a Double First Class lawyer from the prestigious University of Ibadan and the Nigerian Law School. Joseph is an Asaociate at Udo-Udoma and Belo-Osagie with interest in Corporate Law, Energy Law, Real Estate Law and Commercial Litigation.