DO WORKERS' HAVE A RIGHT TO STRIKE IN NIGERIA?

One of the fundamentals of a democratic society is workers’ right to strike. Thus, it is important that this right is preserved and secured in any society. It is to be noted that the right to strike is readily available arsenal in the hand of workers during the collective bargaining process. The tool is usually implored by workers to compel compliance for the defence and promotion of their interest. It has been said that if the right to strike should be taken away from workers that their trade union will be a lame ducks. 

Strike has been defined as a deliberate stoppage of work by workers in order to put pressure on their employer to accede to their demands. In the notorious case of Tramp Shipping Corporation v. Greenwich Marine Incorp. (1975) ICR 261 at 276, the indomitable Lord Denning stated that a strike is “a concerted stoppage of work by men, done with a view to improving their wages or conditions of employment, or giving vent to a grievance or making a protest about something or sympathizing with other workmen in such endeavour. It is distinct from stoppage brought by an external event such as bomb scare or apprehension of danger”

More also, under the Nigeria Law, Section 47 of the Trade Dispute Act states that “strike means the 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 accept or not to accept terms of employment and physical conditions of work: and in this definition: a. cessation of work includes deliberately working at less than usual speed or with less than usual efficiency: and b. refusal to continue to work includes a refusal to work at usual speed or with usual efficiency.

The International Labour Organisation, an agency of United Nations, which is responsible for upholding global labour standards, despite it's numerous Labour Convention and Recommendation on general labour related issues has no single convention that expressly provided for the right to strike. It is important to state that this does not mean the international Labour Organisation is against the right to strike. 

However, there are two resolutions of International Labour conference which provided for guidelines for ILO policy on recognition of the right to strike in member states which are Resolution concerning the Abolition of Anti-Trade Union Legislation in the State Members of the International Organisation and Resolution Concerning Trade Union Rights and their Relation to Civil Liberties provided for the right to strike.

Furthermore, the following International and Regional Instruments also provided for the Right to Strike which are: 

1.The International Covenant on Economic, Social and Cultural Rights of 1996 provided for the right to strike in Article 8(1)  (d) of the Covenant. 

2.The  European Social Charter of 1961(revised 1996) 

3.European Union of Charter of Fundamental Rights of 2000 

4.The African Charter of Human and Peoples Rights which has been domesticated in Nigeria.

Do workers’ have a right to strike in Nigeria?

At this juncture, it is important to consider whether or not workers do have a right to strike in Nigeria. A glimpse at the Labour Legislations in Nigeria shows that there exist a number of constraints to the right to strike in Nigeria. Thus, it is needful to consider those constraints as spelt out in the existing labour legislation in Nigeria. For the purpose of this discourse, we shall focus mainly on the Trade Dispute Act 2004 and Trade Union Amendment Act 2005.

1. TRADE DISPUTE ACT

The Trade Dispute Act by virtue of its Section 18, provided for circumstances where a worker shall not take part in strike action with any trade dispute and more also instances where an employer shall not take part in a lock-out. For the purpose of clarity Section 18(1) provides as follows:

a.Where the procedure specified in section 4 and 6 of this act has not been seen to be complied with in relation to the dispute;

b.Where conciliator has been appointed under Section 8 of this Act for the purpose of effecting a settlement of the dispute;

c.Where the dispute has been referred for settlement to the Industrial Arbitration Panel under section 9 of this Act.

d.Where an award by arbitration tribunal has become binding under section 13(3) of this Act.

e.Where the dispute has subsequently been referred to the National Industrial Court under Section 14(1) or 17 of this Act.

f. The National Industrial Court has issued an award on the reference.

Furthermore, Section 18 (2) makes it an offence, for any person who contravenes subsection (1) of this section. To this end, if any worker or group of workers takes part in strike in contravention of section 18(1), the strike will be prima facie illegal and the strike will be visited with criminal sanctions.

Whereas, Section 4 of the Trade Dispute Act 2004 which was made reference in Section 18(1)(a) enjoins parties to a trade dispute to settle dispute amicably by any agreed means. It stipulates further that where settlement fails, the parties should within 7 days of the failure meet together by themselves or their representatives under the presidency of a mediator that is mutually agreed upon and appointed by or on behalf of the parties, with a view to the amicable settlement of the dispute.

Section 6 of the Trade Dispute Act further provides that if within seven days of the day on which a mediator is appointed in accordance with Section 4 (2) of the Act, the dispute is not settled, the dispute shall be reported to the minister by or on behalf of either of the parties within 3 days of the end of seven days. This is usually done after securing a majority votes of its members through a secret ballot authorizing the strike. 

2.TRADE UNIONS ACT (AMENDMENT) 2005

Meanwhile, under the Trade Unions Act (Amendment) 2005, certain conditions were also spelt out before strike can be organized in contemplation of a trade dispute, which are as follows:

a.That the strike or lock-out is in contemplation or furtherance of a trade dispute.

b.That the person, trade union or employer is not engaged in the provision of essential services.

c. That the strike or lock-out concerns a labour dispute that constitutes a dispute rights.

d.The strike or lock-out concerns a dispute arising from a collective and fundamental breach of conduct of employment or collective agreement on the part of employees, trade union or employer.

e. The provision for arbitration in trade disputes Act Cap 432 Laws of the Federation of Nigeria 1990 have been complied with, and

f. In the case of an employee or trade union a ballot have 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.

The Trade Union Amendment Act 2005 also prohibits pickets on premises of any kind and bans the blockade of airports and highways. It further prescribe a penalty of six months imprisonment or fine of N10,000 for illegal strike actions by Section 7 of the Trade Union Amendment Act 2005.

WHETHER OR NOT THE RIGHT TO STRIKE EXISTS BASED ON THE ABOVE PROVISIONS?

Premised on the above provisions, one could be tempted to conclude that workers’ right to strike in Nigeria is a mirage. O.V.C Okene has however noted that lawful industrial actions are difficult to obtain under these regulations. For instance, the Trade Dispute Act and Trade Union Act provided strict and stringent guidelines before strike can be carried out. What this means in essence is that workers cannot go on strike unless these conditions are met. 

It is important to note however that the condition spelt out for carrying out industrial action in the Trade Union Amendment Act 2005 in particular, was ambiguously construed. The Act created a caveat that those workers in ‘essentials services’ will not be allowed to go on strike without unequivocally stating the categories of work that fall under these essential services. However, one may be tempted to pre-empt that all categories of work fall under essential services. It would have been well defined if the term essential services are defined, if it were construed as contained in the South African labour Relations Act 1995, which defined essential services to mean parliamentary services, South African police services and services which if not rendered, endangers the life, personal safety of the populations. Unlike the Nigeria provisions that muddle up everything in the guise to restrict the right to strike in  Nigeria.

Another area that needs to be pointed out pertains to restricting industrial action to only matters that constitute dispute of right i.e labour dispute.  This in essence means that only labour dispute arising out of negotiation, application, interpretation or implementation of a contract of employment or collective agreement  or any other matter relating to terms and condition of employment. Thus, disputes of interest and disputes of recognition are no longer allowed as legitimate grounds for industrial actions. This was further given judicial approval in the case of Adams Oshimole & Anor v. Federal Government of Nigeria & Anor (2005) 1 NWLR (Pt. 907) 414 where the Court held that strike action cannot be used to protect interest outside the terms of employment. It is important to note that the Nigerian Labour Congress has been known for embarking on strike for national issues not particularly related to labour matters especially when there is increase in fuel price. By this provision, the Nigerian Labour Congress which is the Centralized Labour Organization has been tamed with respect to going outside labour disputes matters when embarking on industrial actions. In order to achieve this aim in totality, the Trade Dispute Act 2005 deleted the word Central Labour Organization and replaced it with Federation of Trade Union. The aim is to democratize the labour movement in Nigeria and weaken or completely remove the potency of the Nigeria Labour Congress as the only central labour organization in Nigeria. 

It is must be noted that strike cannot be ruled out in any democratic society and it does not matter whether the labour is centralized or not. The workers will have to go on strike whenever the need arises. Professor Kahn Frend Once Said, “Workers will go on strike, whatever the law says about it”. And this explains the reason why industrial actions have been organized and staged despites the strict and stringent conditions. It must be noted that despite the clause in Trade Union Act which forbids workers in presumed “essential services” not to go on strike, Medical Practitioner occasionally do embark on strike, Radio, Television and Theatre Art Workers RATTAWU still went on strike in 2005 and recently the Judiciary Staffs went on strike in 2015 throughout the federation which took the Federal Government intervention before it could be called off. The category of those mentioned earlier can be said to be within the context of essential services in Nigeria.

Another interesting point to note is that of the lingering tussle between the Academic Staff Union and the Federal Government. This has really been a bottleneck that has swept the Federal Government off their feet. These are few instances of strike which has come into play despite what the law has to say on strike.

Meanwhile, the ILO Committee of Experts on Freedom of Association at its meeting in 1996 has cautioned, that no employee should be dismissed or refused re-employment because they have participated in strike. This position has been given further judicial credence in the case of Mr. Charles Obazuaye v. First Bank of Nigeria Plc (2013) 38 NLLR (Pt 116) 28.

In conclusion, it is important to note that workers right to strike cannot be curtailed or restricted by any national law. This is premised on the fact that workers are entitled to better condition of service at each point in time by as guaranteed by International Labour Standards. Thus, the only way to compel an employer when negotiation and the tool of collective bargaining fails is by embarking on industrial action. It can be put thus, the law might have it way but the workers will always have their unfettered right to strike when the need arises provided it's employment related. It is important to point out, that the court in recent times has frowned at industrial actions that is not related or connected to employment issue. Thus, to qualify as industrial action within the context of the legislations, it has to be related to terms and conditions of employment to eschew criminal liability.

 Rufus Adeoluwa Olodude, Esq.
Lead Counsel, Achieversworld & Partners

International Labour Standards and Worker’s Right against Discrimination in Work Place

According Tarja Halonen, the former President of Finland, noted that the establishment of International Labour Organization in 1919 stemmed from the political desire to create common international rules for reducing unhealthy competition between Countries on working conditions and terms.

International Labour Standards otherwise known as International Labour Instrument for the purposes of this discourse, refers to conventions agreed upon by international actors resulting from series of value judgments, set forth to protect basic workers’ right, enhance workers’ job security and improve their terms of employment on a global scale. Thus, the intent of such standard is to establish a worldwide minimum level of production from inhuman labour practices through the adoption and implementation of said measure.

The International Labour Organisation has noted that millions of women and men around the world are denied access to jobs and training, receive low wages, or are restricted to certain occupations simply on the basis of their sex, skin colour, ethnicity or beliefs, without regard to their capabilities and skills.  The ILO has further noted that in some developed countries, women workers earn up to 25 percent less than their male colleagues performing equal work. Hence, it is important to note that in any organization, freedom from discrimination is a fundamental human right and it is very essential for both workers to choose their employment freely, to develop their potential to the full and reap economic rewards on the basis of merit.

It is important to note that employers who practice equality have access to larger and more diverse workforce. And more also, tend to enjoy greater access to training, often receive higher wages and improve the overall quality of workforce.

Premised on the above, we shall be highlighting few International Conventions which guarantees the equality of opportunity and treatment of worker’s at their place of work. The conventions are listed hereunder:

1. Equal Remuneration Convention, 1951 (No. 100)

This convention requires countries to ensure the application to all workers of the principle of equal remuneration for men and women for work of equal value.

2. Discrimination (Employment and Occupation) Convention 1958 (No. 111)

This fundamental convention defines discrimination as any distinction, exclusion or preference made on the basis of race, colour, sex, religion, political opinion, national extraction or social origin, which has the effect of nullifying or impairing equality of opportunity or treatment in employment or occupation. It is premised on the need for ratifying state to declare and pursue a national policy designed to promote, by methods appropriate to national condition and practice, equality of opportunity and treatment in respect of employment and occupation, with a view to eliminating any discrimination in these fields. These includes discrimination in relation to access to vocational training, access to employment and particular occupations, and terms and condition of employment. It is important to note that this beautiful convention has been ratified in Nigeria.

3. Workers with family Responsibilities Convention 1981 (No. 156)

This convention sets a standard on the need to create effective equality of opportunity and treatment for men and women workers. The convention further requires that, ratifying states should make it a goal of national policy to enable persons with family responsibilities who are engaged or wish to engage or wish to engage in employment to exercise their right to do so without being subject to discrimination and, to the extent possible, without conflict between their employment and family responsibilities. This particular convention also requires governments to take account of the needs of workers with family responsibilities in community planning and to develop or promote community services, public or private, such as childcare and family services and facilities.

Whether or not the Nigeria State has complied with International Labour Standards with respect to equality of opportunity and treatment?

Nigeria ratified Convention No. 100 on Equal Remuneration in 1974 and Convention No. 111 on Discrimination (Employment and Occupation) in 2002. Convention No. 156 on Workers with family responsibilities is yet to be ratified in Nigeria. As a means of observing international convention, the Federal Republic of Nigeria 1999 Constitution provided for equal pay for equal work without discrimination on account of sex, or any other ground whatsoever. However, the Committee of Experts on the Application of Conventions and Recommendations (CEACR)  in 2011, has challenged the government to give full expression to the Convention’s Provisions which provide for equal remuneration for men and women for work of equal value.

Also according to the US State Department Human Rights Report, it was noted that there are no laws in Nigeria that criminalizes gender-based violence, and it further noted that some federal laws condone such violence.

It is pertinent to note further that there are no specific law prohibiting sexual harassment at the workplace, except that it may be niche under violent harassments and may be punished under other provisions of the law. Yet, It is also disheartening to note that the Nigerian Minimum Wage Act excludes many workers, in particular those in companies with less than 50 employees, part-time workers, workers paid on Commission or on a piece rate basis and season agriculture workers in Agriculture. And to say the least, women are disproportionately represented among these groups of workers.

It is important to note that Sec 13 of HIV and Aids(Anti-Discrimination) Act which was passed into law in 2014 prohibit situations whereby a person is denied employment on the basis of his/her HIV/AIDs status and also set standard that real or perceived status shall not be used as a cause for terminator of employment. Yet so many organization still discriminates on the HIV status of an individual as a ground of denial of employment opportunities and more also as a premise for terminating employment.

It is important to point out that in the year 2014, the Human Right Risk Atlas Report prepared by Maplecroft, upon evaluating 197 countries on various human rights violations classified 34 countries as having extreme human right risk in 2014. It is disheartening to note that Nigeria was listed as the 10th Worst offender of Human Rights in the World.

Based on the above, the Nigeria state is yet to comply fully with international best practices in terms of equality of opportunity and treatment of workers. Eventhough the principle of equality of workers was enshrined in the 1999 Constitution, the issue of substantial compliance has been a mirage over the years.

Thus, there is the need for the worker’s to use their democratic tool to advance towards  a better working environment and see that discrimination in the work place is totally curbed through the medium of championing proactive legislations to remedy the defects and through suitable platform towards calling out the government for a meaningful dialogue towards substantial compliance.

Rufus Adeoluwa Olodude, Esq.

Legal Practitioner & International Labour Law Consultant