On the 30th of May, 2023 (a day after the termination of former president Muhammadu Buhari’s administration) the National Industrial Court of Nigeria (NICN) in the Abuja Judicial Division gave its judgement over a case, with suit number NICN/ABJ/270/2022, before Justice B. B. Kanyip (President, NICN). This was a case between Federal Government/Federal Ministry of Education (as claimants) and Academic Staff Union of Universities (ASUU) as defendants. The case was a referral by Buhari’s one and only former Minister of Labour and Employment – who ‘understands’ law more than many lawyers – acting pursuant to section 17 of the Trade Disputes Act (TDA) Cap T8 LFN 2004 vide a referral instrument dated 7th of September, 2022 with a forwarding letter dated 8th of September, 2022. It will be cumbersome and space-consuming to detail our understanding of all aspects of the judgement here. Yet, it is noteworthy that this judgement, that is currently open to claimants’ appeal, gave credence to a Nigerian colloquialism: “no be person wey first go police station dey win case”. Some controversial issues, even among academics, have been settled through the judgement. The NICN was able to do justice to a case – using the words of the judge – [that] “…..remains undefended as far as the defendant is concerned…..”
Yes, the aspect of the judgement that hit newspapers’ headline and attracted public opinion is the one relating to the interpretation of the provisions of Section 43 of the TDA CAP T8 LFN 2004 titled “special provision with respect to payment of wages during strikes and lock-outs” specifically dealing with the rights of employers and employees/workers during the period of any strike or lock-out. The claimants in the case wanted the court to answer the question: can ASUU or any union that embarked on strike be asking to be paid salaries even with the clear provision of the law? The court was also asked to determine “whether ASUU members are entitled to emolument or “strike pay” during their period of…..strike which commenced on February 14, 2022 [and ended on the 14th of October, 2022], more so in view of our national law as provided in Section 43 of the TDA and the International Labour Principles on the Rights to Strike as well as the Decisions of the International Labour Organization [ILO] Committee on Freedom of Association on the subject. The TDA also has it that “if any question should arise as to whether there has been a lockout for the purposes of this section, the question shall on application to the Minister by the workers or their representatives be determined by the Minister [of Labour] whose decision shall be final.”
Quickly, on the issue of legality or otherwise of the…..strike by ASUU leadership and members, hear the judge: “…..And I must stress here, the legality or validity of a strike or industrial action is determined on a case by case basis. It is not carried over to another…..[since] the strike in issue had been called off while the matter was still pending before this Court…..It will, therefore, be academic to remark on the legality or otherwise of the strike…..This being so, I say no further…..” Let us also quote the judgement on finality of Minister of Labour’s decision (according to TDA) on questions arising from whether there has been a lockout. The judge ruled that this “…..falls foul of [ILO’s] Convention No. 87 when it [TDA] made the decision of the Minister to be final. In any event, the determination of the question whether there has been a lockout, is a question for the court to determine, not for the Executive arm of government. To that extent, section 43(2) of the TDA falls foul of section 6 of the 1999 Constitution, which places judicial power in the Judiciary, and not the Executive arm of government, which is what the Minister responsible for labour represents. Section 43(2)…..is accordingly unconstitutional, null and void.” Let us now look at the court judgement on the issue that mainly hit the newspapers’ headline. This has to do with the federal government’s invocation of its discriminatory “no work, no pay” rule against the then-striking lecturers.
Justice Kanyip, while quoting from an 8th of May, 2007 judgement in the same NICN, states that “…..a strike, whether legal or not, falls squarely within the ambit of [section 43(1)(a) of TDA] and for which the strikers are disentitled from wages and other benefits envisaged by the section…..” He further states emphatically that “…..given the self-executory nature of…..section…..43(1)(a) that it is perfectly lawful for an employer to choose to dispense with the ‘no work, no pay’ rule. In other words, strike pay [payment of wages or salaries for the period of a strike action] is lawful if an employer chooses to pay same and not to penalize the strikers in any other way for the strike. In the same vein, it is lawful for workers to agree with their employer that wages will be paid and no other detriment suffered even when strike actions are embarked on…..The bottom line is that an agreement between an employer and strikers to pay wages or salaries for the period of a strike action is legal as the agreement acquires a life of its own, and section 43(1)(a) of the TDA cannot be called to use in such a case…..” Considering the foregoing, it is important to note, here, that ASUU has never asked for payments for work not done and/or not intended to be done! The Union’s argument has always been that because teaching component of their work was suspended during strike does not mean that all their work ceased in/out of universities.
The suspended aspects of academic work during strike will be (and had currently been) done once the strike got suspended. For those who do not know – in line with the conditions surrounding their employment – lecturing/teaching is not the only job engaged in by academics in universities, worldwide! We stand to be corrected! Thus, in the real sense, “no work, no pay” is incongruous and unimplementable concerning striking university lecturers! Can this be a reason for the instruction, from the vindictive former Minister of Labour and Employment, to pay salaries to some ASUU members who also went on the 2022 strike? In determining whether ASUU has the right to embark on strike over disputes as [was] the case…..by compelling the Federal Government to deploy University Transparency and Accountability Solution (UTAS) developed by ASUU in payment of salaries and wages to academic staff of Universities as against the Integrated Payroll and Personnel Information System (IPPIS)…..the court ruled that the claimants were wrong to have imposed IPPIS on the defendant as “…..ASUU is the union for academic staff of Universities. Federal Government owned Universities are governed by their respective enabling statutes as well as the Universities (Miscellaneous Provisions) (Amendment) Act 2003…..[which] amended the Universities (Miscellaneous Provisions) Act No. 11 of 1993 and made new provisions, among other things, for the autonomy, management and re-organization of the Universities in Nigeria.”
According to Justice Kanyip, “autonomy…..does not mean that Government no longer has a say or stake in the Universities…..but section 2AA as inserted provide as follows: The powers of the Council shall be exercised, as in the Law and Statutes of each University and to that extent establishment circulars that are inconsistent with the Laws and Statutes of the University shall not apply to the Universities. Section 2AA dealing with independence of the Council in exercise of its functions, on its part, as inserted, provides [among others] thus: …..(2) The Council of a university in the discharge of its functions shall ensure that disbursement of funds of the University complies with the approved budgetary ratio for – (a) personnel cost; (b) overhead cost; (c) research and development; (d) library developments; and (e) the balance in expenditure between academic vis-a-vis non academic activities…..University autonomy would, therefore, mean the independence of the University from the State and other pressures of the society in order to make decisions regarding its self-governance, finance, administration and establish its policies……” Consequently, mediocrities (including the pretentious government agents and other clowning clowns) displaying unfathomable ridiculous ignorance anywhere and everywhere by shouting that “you cannot tell your employer how you are to be paid” should now know where ASUU’s argument on this is anchored.
*Andrew A. Erakhrumen currently teaches at the Department of Forest Resources and Wildlife Management, University of Benin, Benin City, Nigeria.