Industrial Action: Has Section 18 Of Trade Disputes Act Stripped Workers Of Right To Strike? By Yejide Gbenga-Ogundare
Also, there had been strikes across polytechnics, power sector, maritime, health and even the aviation sector, crippling economic activities and adding to the already volatile economic situation of the nation.
Though strike is one of the ways that workers press home their demand to employers that refuse to hear their voices and meet their demands, the constant strikes bedeviling diverse sectors have raised the discourse on whether based on the provisions of the Trade Union Act, employees have the constitutional right to embark on industrial action.
Under the law and indeed globally, the right of employees to embark on industrial action is considered a universal democratic right of all employees. Regardless of where they are employed, the right to strike determines the prospects for enjoying improvements in working and living conditions of employees and it affects the society as a whole
The right to strike is governed by international legal instruments and conventions of the United Nations, the International Labour Organisation as well as provisions by bodies like the African Union.
However, despite the constitutional backing and the fact that strikes are a fundamental right, a school of thought has argued that under labour laws, the right of workers to strike has been restricted.
In Nigeria today, there exists a contentious argument by some schools of thought on whether the Nigerian worker has the constitutional right to strike following the introduction of the statutory provisions of Section 17 (1) of the Trade Disputes Act of 1976 which is now in Section 18 (1) and (2) of the Trade Disputes Act. There is a belief that the introduction of Section 17 (1) and subsequent amendment of the section has completely taken away the right of workers in Nigeria to constitutionally embark on industrial action.
It was argued that aside from Section 17 (1) of the Trade Disputes Act of 1976, other statutes that equally impinge on the right of the Nigerian worker to embark on strike are Sections 31 (6) (e) of the Trade Unions Act (TUA) 2005, Section 43 (1) of the Trade Disputes Act (TDA) and Section 1 of the Trade Disputes (Essential Services) Act (1976) which empowers the President and Commander-in-Chief to proscribe any trade union or association as well as provisions of Section 45 of the 1999 Constitution.
Some express the belief that with Section 18 (1) of the Trade Disputes Act, 1976 still in existence, Nigerian worker has totally lost his right to strike, arguing that its provision prohibits the right of Nigerian workers to embark on a lawful strike.
The argument 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 is still strong among some stakeholders, adding that under this section, none of the parties to a trade dispute can embark on industrial action if the prohibition remains during the intervention of a mediator.
Another school of thought, however, disagrees with this, arguing 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
Speaking on the constitutionality of the strike, former Nigerian Bar Association Chairman, Ikeja, Dave Ajetomobi, stated that “strike is regarded as a fundamental right in view of various provisions of ILO conventions such as Convention Nos. 87 of 1948 No. 98 of 1949, strikes had been employed in the course of the struggle for independence by Nigerian past labour leaders. Section 48 of Trade Dispute Act defines what strike is and defines a strike and a lockout.
“The rules governing strikes are found in Sections 4 and 6 of the TDA. The law requires notice of strike to be given to enable the authorities to make amends. If after the notice no redress is made, the workers can declare a strike for a period of time. In the case of ASUU, it has been on for more than a decade and the strike is not just for the welfare of the lecturers but to save the educational sector from collapse.
“The government is entitled to sue ASUU just as ASUU is also entitled to sue FG. It is a better way than taking the law into its own hands by banning ASUU or declaring its members wanted. Both parties will have opportunities to vent their grievances before the court of law. This is even better than Obasanjo time when Alabi J granted exparte injunction to restrain NLC from continuing with the strike and Oshiomhole then NLC president called it a black market injunction,” he said.
A former President of the Nigerian Bar Association (NBA), Dr Olisa Agbakoba (SAN), once argued that strike is not a constitutional issue but a labour-related one that is used to bring about change in the condition of employment and resolution of grievances. He stated that strike is less legal than is the power of the unionists to express themselves using their numbers.
“The only thing is that labour must follow the law and give the necessary notices. Apart from that, strike is purely a tool that workers use to express their grievances and achieve the desired results. People go to court to say that the manner at which the strike has been commenced is not lawful because the labour laws provide the legal framework for calling a strike.
“You have to give the relevant notice. A case where the relevant procedures have not been followed, the government will go to court to say this strike has not been called in accordance with the laws of the land,’ he stated.
Speaking during the judiciary workers’ strike, Ebun-Olu Adegboruwa (SAN) stated that strike is a by-product of human existence, especially on matters in which there is disagreement or for which some people are dissatisfied. He said it is intrinsic in human existence for people to have the opportunity to press home their demands where all other options of dissent have been exhausted, adding that in labour matters, strike is part of the modes allowed for collective bargaining.
“For totalitarian regimes that are not run on pure democratic principles, strike is a veritable tool in the hands of the employee to negotiate better deals either in relation to their employment or general welfare issues. This particular government has witnessed strikes because of the general perception that it is the best option to secure any deal from the leadership.
“The effect of strikes can be very colossal indeed, in losses in businesses, manpower and economic progress, but that is still better than a society where everybody resorts to self-help as in such a situation, life becomes brutish and short.
“In most cases, parties still have to come to the roundtable to discuss and agree, which means that the strike could have been avoided in the first place. This means then that the appeal should be to those in positions of authority to set up some mechanisms that will create effective channels of communication between the workers and government.
“From experience, the workers would give the government notice spanning over days and yet, nothing will be done until the actual strike has been declared or commenced. We will therefore have to deal with the situation as it is, given that it would seem that the strike option is the one that those who are in government prefer; which means they have to always contend with the consequences, since we cannot abrogate strike as it is allowed by law,” he said.
Also speaking to the Nigerian Tribune, Barrister Anthony Aladekomo stated that “the laws that guide strikes in Nigeria are many. They are both municipal and international. Just a few of them are the 1999 Nigeria Constitution, Trade Disputes Act, National Industrial Court of Nigeria Act and the International Labour Organisation Convention 87 on Freedom of Association and Protection of Right to Organise 1948.
“Government has the right to sue ASUU because not only individuals have the right to ventilate their grievances in the court of law; the government too has such a right under Section 6 of the 1999 Constitution. The government should even be commended for not resorting to self-help or jungle justice. This is better than the earlier rumour that the government planned to proscribe ASUU. The government should be commended for subscribing to due process, rule of law and constitutionalism.
“However, this does not mean that the government has all the moral rectitude or all the law behind it. Government is a continuum and should be responsible to be willing to abide by the agreements that it has signed with ASUU all these decades and years.
“Secondly, there is no justification for using an Abuja-based centralised payment system, the IPPIS, for the payment of the salaries of university lecturers and even non-teaching staff. It is retrogressive and abnormal. University education and system should be universal. Nigeria cannot afford to be an island unto itself.
“But ASUU too should have alternative intellectual means of ventilating its grievances in the interest of the students and the image of the Nigerian university system abroad. Perennial strikes affect the rating of our universities. There is also no moral or legal justification for making state universities to join a strike over the IPPIS, which concerns only federal universities. This appears to me to negate the true federalism and university autonomy that we all agitate for,’ he insisted.
On his part, Barrister Foluso Olapo stated that the government has the power to take striking unions to court and the applicable law is the Trade Disputes Act.
