Funmilayo Odude, Partner, Commercial and Energy Law Practice (CANDELP)

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Government-ASUU dispute requires new resolution toolkit 14 Dec 2022

Another round of bickering between the Federal Government (FG) and the Academic Staff Union of Universities (ASUU) has started. This follows the position of the FG on non-payment of the remuneration of the members of the union during the period of their last strike. The new face off is causing fresh fears of yet another strike. The last one lasted eight months and was called off in October only after the intervention of the courts.

Nigerian tertiary students remain the major victim of incessant ASUU strikes. Also, eight months of strike this calendar year has generated a negative ripple effect by affecting secondary school graduates who ought to have resumed into the universities for a new academic session that normally starts in September.

It is Nelson Mandela that is credited with the powerful quote said to be displayed at the entrance of the University of South Africa: “Destroying any nation does not require the use of atomic bombs or the use of long-range missiles. It only requires lowering the quality of education and allowing cheating in the examinations by the students. Patients die at the hands of such doctors. Buildings collapse at the hands of such engineers. Money is lost in the hands of such economists and accountants. Humanity dies at the hands of such religious scholars. Justice is lost at the hands of such judges…the collapse of education is the collapse of the nation.”

From the first recorded strike in Nigeria on the 21st of June 1945, no union has employed the use of strikes as much as ASUU. This undoubtedly is one of the factors that have led to the consistent decline in our tertiary educational system in the country. It is foolhardy to repeat the same actions, with all factors consistent, and expect different results. Like a hamster on its wheel, decades of industrial action by ASUU have not yielded the desired change. One or both sides in the recurring conflict must, thus, change tactics.

The right to strike is internationally recognized as a legitimate way of defending the economic and social interests of workers and or their organizations. Unlike many jurisdictions, the right to strike is not expressly provided for in Nigerian law. The diversity of provisions has made the legal regime on strikes fluid and subject to debate as regards its legality. For example, there are two schools of thought with respect to strikes in our jurisprudence. One school of thought holds that strikes are illegal based on the provisions of the Trades Union Act and the Trade Disputes Act. The other school of thought holds that the right to strike is an integral component of the right or freedom to form and or belong to a trade union enshrined in our Constitution.

Section 40 of the 1999 Constitution (as amended) guarantees the right to association. Every citizen has a right or freedom to form or join a trade union in order to protect his or her interest. This right is also entrenched in a number of international human rights codes, such as Article 20 of the Universal Declaration of Human Rights and Article 8(1) (a) of the International Covenant on Economic, Social and Cultural Rights.

However, Section 45 (1) of the same Nigerian constitution provides that: “Nothing in Sections 37, 38, 39, 40 and 41 of this Constitution shall invalidate any law that is reasonably justifiable in a democratic society – in the interest of defence, public safety, public order, public morality, or public health; or for the purpose of protecting the rights and freedom of other persons.” Thus, the expression of the rights guaranteed in those sections can validly be curtailed by legislation in the interest of defence, public safety, public order, public morality, or public health; or for the purpose of protecting the rights and freedom of other persons.

The right to form and or join a union is for the purpose of protecting the collective interests of the workers. Thus, Section 1(1) of the Trades Union Act recognises that the purpose of the combination of workers or employers into a trade union is for the regulation of the terms and conditions of their employment. There are few tools available to unions to match the power of their employers. Hence, the freedom to strike and lockout is considered a concomitant of the collective bargaining process. It is one of the greatest sources of bargaining power available to the unions. Thus, the International Labour Organization (ILO)’s Committee on Freedom of Association argues that the right to strike is one of the potent means open to unions to promote, protect, and preserve their economic and social interests.

Nigerian law, however, provides a structure to the exercise of that right in the Trade Unions Act (as amended) and the Trade Disputes Act. Section 31(6) of the Trade Unions Act, permits the engagement in a strike upon the fulfillment of five conditions as follows: the person, trade union or employer is not engaged in the provision of essential services; the strike or lockout concerns a labour dispute that constitutes a dispute of right; the strike or lockout concerns a dispute arising from a collective and fundamental breach of contract of employment or collective agreement on the part of the employee, trade union or employer; the provisions for arbitration in the Trade Disputes Act have been complied with; and 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.

Section 18 of the Trade Disputes Act also provides some conditions that must be met before an employer, or a worker, can validly take part in a strike. An employee cannot take part in a strike where the procedure for settlement of the dispute as provided under the Act has not been complied with. The Act mandates parties to give effect to any agreed means for the settlement of dispute as may be provided in any agreement between them. Where there is no agreed means for the settlement of disputes or where such agreed means fail, the Act then mandates parties to appoint a mediator for the purpose of amicable settlement of the dispute. The Minister of Labour may, on the apprehension of a trade dispute, appoint a conciliator for the parties. Where the conciliation fails, the Minister may then refer the dispute to the Industrial Arbitration Panel. Where the award of the Industrial Arbitration Panel is objected to, the Minister may then refer the dispute to the National Industrial Court (NIC).

The Trade Disputes Act creates a system of time-allocated alternative dispute resolution, to resolve industrial disputes before strikes or lockouts are engaged in. It does not make strikes or lockouts illegal in Nigeria; it merely creates an alternative dispute resolution mechanism that must be explored before resorting to strikes. The Act thus only penalizes partaking in strikes without reference to any of the mechanisms or during the pendency of any of the ADR mechanisms.

However, the draconian provisions of Section 43 of the Trade Disputes Act seem to be the most antithetical provisions against strikes. Section 43 is to the effect that where any worker takes part in a strike, he shall not be entitled to any wage or other remuneration for the period of the strike. The period of such strike shall not count for the purpose of reckoning the period of continuous employment, and all rights dependent on the continuity of employment shall be prejudicially affected accordingly. It is said that the government is relying on these provisions in its stance on the lecturers’ remuneration.

In view of the intrinsic value of strikes to the right to form and join unions, the provisions of Section 43 of the Trade Disputes Act ought to be challenged. Both the Trade Unions Act and the Trade Disputes Act create a system to be employed before the right to strike is invoked. If the provisions of Section 43 were made applicable to strikes carried out in contravention of the structure and mechanisms first to be employed under the Act, then it would have formed a more holistic reading to the intent of the Act. The current state of ‘no work, no pay’ with respect to strikes completely erodes the bargaining power of the unions and makes a mockery of the constitutional human right to form unions to protect economic interests.

While the alternative dispute resolution mechanisms established by the Trades Dispute Act is commendable and can be amended to bring it in line with current trends in ADR, penalizing strikes with ‘no work no pay’ would entrench the superior powers of the employer. Unions must be allowed options where negotiations/arbitrations fail or are done in bad faith. In recent years, the clamour of ASUU in their strikes is the breach of collective agreements by the government. The government cannot penalize the disputing party for opposing wrongful breach of agreements. Parties cannot be expected to continue in a mala fide cycle of ADR where collective agreements reached are not respected.

On the other hand, there must be new ways to enforce collective agreements apart from strikes. It is clear that the tool is no longer effective in the ASUU-FG dispute. With the upgrade of the National Industrial Court as a court of superior record pursuant to the third alteration to the Nigerian constitution, the intervention of the NIC in enforcing the terms of collective agreements would be welcome. Collective agreements ought to be enforceable and enforced in similar manner as regular contracts.

We cannot repeatedly do the same things and expect different results. We should consider retooling our kits for dispute resolution. Lest we underestimate the impact of this monstrous issue, as Nelson Mandela aptly stated: “the collapse of education is the collapse of the nation.”

Funmilayo Odude is a Partner at Commercial and Energy Law Practice (CANDELP).