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[1] Cynthia Ekeka, Hussein Adebanwo, Associates, Punuka Attorney and Solicitors

OUTLINE

• Background Story
• The Concept of Strike
• Applicable Laws
• Right to Strike; the two schools of thoughts
• Conditions for a lawful strike
• Whether a court can declare a strike to be illegal or stop a strike action?
• Conclusion and Recommendations

Background Story

President Tinubu Asiwaju on his inauguration day, May 29, 2023, declared the removal of fuel subsidy. This saw the outrageous hike in price of petrol the following day, which prompted NLC on June 2, 2023, to issue a five-day ultimatum to the Federal Government of Nigeria (FGN) to revert to the old price of petrol or face a nationwide strike. Other worker unions including the National Union of Electricity Employees (NUEE), Judicial Staff Union of Nigeria (JUSUN), and Nigeria Union of Journalists, also asked their members to join the planned strike. Owing to this development, the FG approached the National Industrial Court (NIC) for an Order of Interim Injunction restraining the coalition of the workers unions from embarking on the strike until the determination of the Motion on Notice wherein the FGN was also seeking for an Order of Interlocutory Injunction restraining the unions from embarking on the strike. The court in its ruling granted the reliefs of the FGN and restrained the unions from embarking on the strike. The court stated that the in it is in the interest of the larger society to grant the Orders prayed as the strike will disrupt the economic activities in the country.

Applicable Laws

• The Constitution of Federal Republic of Nigeria 1999 (as amended)
• National Industrial Act, 2006
• The Labour Act, Cap L…. LFN 2004
• Trade Dispute Act, Cap T LFN 2004
• Trade Unions Act, 2005
• International Labour Organisation Conventions and Recommendations

INTRODUCTION

Strike is a means by which employees exert pressure on their employers to acceding to their demands has a long-standing history. It is on record that the first known strike or workers uprising was embarked by the Artisans of the Royal Necropolis at Deir el-Medina on November 14 1152 BC under the rule of Pharaoh Ramses III in ancient Egypt, with their core demand being an increase in wages and improvement on other working conditions^[1]. 

The right to strike consequently gained universal acknowledgement at the adoption of the Universal Declaration of Human Rights by the United Nations General Assembly in 1948, which saw the generic acceptance of freedom of association as a fundamental right under the international law[2]. The concept of this freedom of association in labor relations connotes that workers can form, join, or belong to a trade union and engage in collective bargaining. Members thus enjoy the right to associate for union purposes and the right to participate in all union activities. With regards to the right of workers to freely associate, several international Conventions, Covenants, Protocols and regional Charters have been adopted by States for the recognition and protection of workers’ and employers’ right of freedom of association. This article discusses the concept of strike, the workers’ right to strike that has raised some controversies, the conditions for a lawful strike, whether the court has the power to stop a strike or declare it illegal and whether the Nigerian Labour Congress, Trade Union Congress and Other Allied Trade Unions met the legal conditions before attempting to embark on a strike.

THE CONCEPT OF STRIKE

The Black’s Law Dictionary[3] defines “strike” as “an organized cessation or slowdown of work by employees to compel the employer to meet the employee’s demands”.

The indomitable Lord Denning in the case of Tramp Shipping Corporation V. Greenwich Marine Incorp., [4]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 endeavor. It is distinct from stoppage brought by an external even such as a bomb scare or by apprehension of danger.”

“On the other hand, under Nigerian Law, Section 48 of the Trade Disputes Act defined strike to mean:

“the cessation of 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 continue to work for an employer in consequence of a dispute, done as a means of compelling their employer or any person or body of persons employed, or to aid other workers in 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”.

In this definition,

• “cessation of work” includes deliberately working at less than usual speed or with less than usual efficiency; and
• “refusal to continue to work” includes a refusal to work at usual speed or with usual efficiency.
  
  

In the realm of labor relations, strike action stands as a powerful tool employed by workers to assert their rights and influence change within their workplaces. It is an expression of collective bargaining power that has played a pivotal role in the history of labor movements worldwide^[5]. It is a temporary work stoppage initiated by a group of employees to protest against unsatisfactory working conditions, unfair labour practices, or to demand improvements in wages, benefits, and other employment terms.

Strike is the best-known form of Industrial action. Throughout history, notable strikes, such as the Pullman Strike in the United States and the UK’s General Strike of 1926, have brought attention to workers’ rights and have contributed to the establishment of labor laws and regulations.

Workers’ Right to Strike

The right to strike is one of the fundamental human rights, derived from various sources, that workers are entitled to. It is so pivotal to the instrumentality of any workers’ union. The right to strike has become a veritable tool in industrial relations, and a collective weapon for enforcing collective agreements.  This right has been widely recognized and utilized by trade or workers’ union around the world. In fact, it has been provided that no court shall compel an employee to do any work or attend at any place for the doing of any work. 

Striking could be viewed in two different perspectives. It can be seen as a failure of Collective Bargaining, where a strike is the last means for a trade union to make demands from its employer(s) on a particular situation. On the other hand, a strike can be looked at as a part of the freedom of association where it is one of the forms of expressions of the unions.

The right to strike in Nigeria is a subject of debate and has been shaped by various legal provisions and schools of thought.

THE TWO SCHOOL OF THOUGHTS

One of the key provisions relevant to strike actions is Section 18(1) of the Trade Disputes Act 2004, which states that:

• An employer shall not declare or take part in a lock-out and a worker shall not take part in a strike in connection with any trade dispute where-
  • the procedure specified in section 4 or 6 of this Act has not been complied with in relation to the dispute; or
  • a conciliator has been appointed under section 8 of this Act for the purpose of effecting a settlement of the dispute; or
  • the dispute has been referred for settlement to the Industrial Arbitration Panel under section 9 of this Act; or
  • an award by an arbitration tribunal has become binding under section 13 (3) of this Act; or
  • the dispute has subsequently been referred to the National Industrial Court under section 14 (1) or 17 of this Act; or the National Industrial Court has issued an award on the reference.

One of the schools of thought argued that the introduction of Section 17 (1), now Section 18 (1) of the Trade Disputes Act, 2004, as amended prohibits the right of Nigerian workers to embark on a lawful strike. The purpose of setting out Section 17 (1) now Section 18 (1) in full is to show that it does not leave any room for a lawful strike and their submission is that the provisions is to prohibit strike completely^[6].

Therefore, their position is that the true interpretation of the new provisions is that neither party to an industrial dispute may engage in any form of industrial action while negotiations and other actions listed under Section 18 (1) of the Trade Dispute Act are ongoing. To do so will be against the law.

They further posited that the back and forth process of the negotiation in an attempt to satisfy the pre-conditions to embark on strike under the present law would be an exercise in futility. In fact, being a statutory inhibition, the sections appear to have buried whatever recognition of the right to strike. More so, subsection (2) is a manifest repression of the right to strike having criminalized the circumvention of subsection (1) of the Act^[7].

On the other hand, the liberalists fully reject these proposals. They firmly believe that the freedom of Nigerian workers to strike has not been curtailed notwithstanding the addition and revision of Section 17—now Section 18 (1) of the Trade Disputes Act. To support their position, they cite statutory provisions and case laws. The right to peaceful assembly and association, particularly the freedom to establish or be a member of any union, is protected under Section 40 of the 1999 Constitution.

This liberalist might have failed to advert their minds to the provisions of Section 45 of the CFRN 1999 as amended, that provides that the provisions of Section 40 shall not 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.

The debate over whether a Nigerian worker can engage in a lawful strike in the face of Section 18 (1) of the Trade Disputes Act is quite interesting.  Because of the variety of legislation, Nigeria’s legal framework on the right to strike is particularly flexible and unsettled.

Conditions for a Lawful Strike

There are vital conditions that must be met by workers before embarking on a lawful strike in Nigeria. They are as contained in section 31(6) of the Trade Unions Act LFN 2004 as amended by the Trade Unions (Amendment) Act 2005 and sections 4, 18 and 42 of the Trade Disputes Act LFN 2004 as amended.

Section 31(6) of the Trade Unions Act, as amended, provides as follows:

“No person, trade union or employer shall take part in a strike or lockout or engage in any conduct in contemplation or furtherance of a trade dispute unless-

• 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 Cap T8 Laws of the Federation of Nigeria 2004 have first been complied with; and
• in the case of an employee or a 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”

It can be deduced from the above provision, that there are four important conditions that workers in Nigeria must fulfill before they can embark on a lawful strike. These are:

1. The workers and their union must not be engaged in the provision of essential services;
2. The strike must be in contemplation or furtherance of a labour dispute that must constitute a dispute of right;
3. The provisions for arbitration in the Trade Disputes Act, Cap T8, LFN 2004 must be complied with;
4. The union must have conducted a ballot at which a simple majority of all registered members voted to go on strike.

It therefore becomes pertinent to adumbrate the 1^st and 2^nd conditions above due to their technicalities.

Strikes in Essential Services

The non-engagement in the provision of essential services by workers and their union remains one of the conditions for embarking on a lawful strike[8]. The effect of this is that workers engaged in the provision of essential services are restrained from organizing or participating in strikes.

Essential services have been defined by the First Schedule to the Trade Disputes Act, as amended, to the following:

1. The public service of the Federation or of a State which shall for the purpose of this Act include service in a civil capacity, of persons employed in the armed forces of the Federation or any part thereof, and also, of persons employed in an industry or undertaking (corporate or incorporate) which deals or is connected with the manufacture or production of materials for use in the armed forces of the Federation or any part thereof.

• Any service established, provided or maintained by the Government of the Federation or a State, by a Local Government Council, or any municipal or statutory authority, or by private enterprise –
• for, or in connection with, the supply of electricity, power or water, or of fuel of any kind;
• for, or in connection with, sound broadcasting or postal, telegraphic, cable, wireless or telephonic communications;
• for maintaining ports, harbours, docks or aerodromes, or for, or in connection with, transportation of persons, goods or livestock by road, rail, sea, river or air;
• for, or in connection with, the burial of the dead, hospitals, the treatment of the sick, the prevention of disease, or any of the following public health matters, namely sanitation, road-cleaning and disposal of nights oil and rubbish;
• for dealing with outbreak of fire.

3. Service in any capacity in any of the following organizations-

• the Central Bank of Nigeria;
• Nigeria Security Printing and Minting Company Limited;
• anybody corporate licensed to carry on banking business [9]

However, to compensate for the ban on strikes on essential services, there is an International recognized principle that the ban should go hand in hand with speedy conciliation and arbitration procedures as an alternative to protest action[10]. It is submitted that the absence of provisions for speedy conciliation and arbitration of trade disputes in essential services is most unsatisfactory. This procedure is effective in South Africa amongst other countries, but does not apply to Nigeria. It should be thus recommended that, by virtue of section 254C (2) of the Constitution of Federal Republic of Nigeria, 1999 (as amended), the National Industrial Court can apply the International Best Practice to cases of strike presented before it for adjudication.

Disputes of Rights versus Disputes of Interests

Trade Unions Act[11], also requires as a condition for a lawful strike that the strike must be in contemplation or furtherance of a labour dispute that must constitute a dispute of right. Labour dispute refers to disputes between[12] workers and employers both at the individual and collective level. This excludes disputes between workers and workers such as intra-union and inter-union disputes from been a lawful ground for industrial action as was the case when two factions of the National Union of Petroleum & Natural Gas workers (NUPENG) threw the oil and gas sector into a terrible industrial stalemate, which in[13] turn threw the entire national economy into a mess.

More so, there is an additional requirement that the labour dispute must constitute a dispute of right, and this has brought into sharp focus the dichotomy between disputes of right and disputes of interest. Apparently, the effect of section 31(6)(b) of the Trade Union Act is that disputes of interest are no longer recognized as legitimate grounds for strikes. Section 31(6)(c) reiterates the concept of a dispute of right as “a dispute arising from a collective and fundamental breach of a contract of employment or collective agreement on the part of the employee, trade union or employer.”

Disputes of right are generally distinguished from disputes of interest in the sense that disputes of right are concerned with the interpretation and implementation of existing rights arising from the individual contracts of employment or collective agreements or statutes. Disputes of interest, on the other hand, are concerned with the negotiation of new rights or the[14] variation of contracts of employment or collective agreements. Disputes of right are also known as grievance disputes, legal disputes or judicial disputes, while disputes of interest are also known as bargaining disputes, economic disputes or conflicts of interest. There is often a close affinity between disputes of interest and collective disputes on the one hand, and between disputes of right and individual disputes, on the other hand. A dispute of right, for example, involves the assertion by or on behalf of an aggrieved worker that he or she has suffered from a violation of a legally enforceable standard applicable to that worker.

WHETHER A COURT CAN DECLARE A STRIKE TO BE ILLEGAL OR STOP A STRIKE ACTION.

One of the issues that arose in the case instituted by the Obafemi Awolowo University against the members of Non-Academic Staff Union of Educational and Associated Institutions (NASU) and Senior Staff Association of Nigerian Universities (SSANU) is the legality of a strike action. The University sued the Union members claiming she had paid all that was due to the Union members and that there was no need for a strike. The University also sought a declaration that the strike action embarked upon by the Defendants and their union members is illegal, unjustifiable and contrary to the provisions of Trade Disputes Act. The Presiding Judge, Ibadan Judicial Division of the National Industrial Court, Hon. Justice Dele Peters held that;

1. “Usually strikes are actions to which trade unions or organized labour union is entitled for the purpose of pressing legitimate demands from their employers.”
2. “The demands must be legitimate otherwise such an industrial action will not find support of the Court. In the instant case, this court has found and held in this Judgment that there is no legal and legitimate basis for the Strike that led to the institution of this case. Accordingly, I declare that the strike action embarked upon by the Defendants and their union members is illegal and not justified. “
3. “I further declare that the continuous act of threats and intimidation continued by the Defendants and their Union members against the Claimant’s Administration to forcefully make the Claimant pay the alleged 2 steps/22% salary differentials under reference is illegal, unwarranted, unconstitutional and should be stopped immediately.”
4. “Accordingly, the Defendants and their Union members are here restrained from further acts of threat, intimidation or any other indiscriminate act capable of frustrating administration of the Claimant in pursuit of their demands. The Defendants and their members are further restrained from embarking on further Strike or any kind of industrial actions in connection with the claims contained in the letters dated 13 March, 2012 and 16 April, 2012^[15].”

Hence, the Court declared a strike action was illegal and restrained the Union members from asking for the benefits or embarking on a strike about it in the future. Therefore, the judgement condemned a past strike action and forbade a future strike based on the fact that there was no legitimate basis to embark on the strike.

From the foregoing, it is pertinent to consider whether the 5-day ultimatum given by NLC and TUC to the Federal Government was sufficient to embark on a lawful strike?

Based on the provisions of the Trade Dispute Act[16] which stipulates the conditions for embarking on a lawful strike, the answer would be ‘no’ on its surface. Removal of the fuel subsidy apparently does not fall under the purview of dispute of right. Assuming but not conceding that it does, the 5 days’ notice which served as an ultimatum to FG was quite short to have covered a compulsory arbitration and conduction of a ballot, which are also conditions precedent for embarking on a lawful strike.

As earlier mentioned, strike is not only deployed to show dismay at a failure of a collective bargain between employers and employees alone, it is also seen as part of the freedom of association where it is one of the forms of expression of the unions. Therefore, even if the conditions for a lawful strike were not met by the unions, it does not negate the fact that it is their fundamental rights to do so, as provided in the Constitution of the Federal Republic of Nigeria, which is the grundnorm and thus superior to every other law[17].

However, it is pertinent to also consider the provisions of section 45 of the Constitution of the Federal Republic of Nigeria, 1999 (as amended) to the effect that sections 39 and 40, amongst others shall not invalidate any law that is reasonably justifiable in a democratic society

(a) in the interest of defence, public safety, public order, public morality or public health; or

(b) for the purpose of protecting the rights and freedom or other persons.

The ultimate question is whether the Judicial pronouncement of the court on the Interim application satisfies the proviso contained under section 45 of the Constitution? This appears to be within the judicial discretion of the court to determine what is reasonably justifiable in a democratic society.

This discretionary power of the court coupled with the inherent powers of the court under Section 7(b) of the National Industrial Court Act 2006, which provides

 “this court is empowered and indeed is clothed with exclusive jurisdiction in matters relating to the grant of any order to restrain any person or body from taking part in any strike, lock out or any industrial action or any conduct in contemplation or in furtherance of strike, lock out or any industrial action.”

And, Sections 16 and 19(a) of the NIC Act 2006 also empower the National Industrial Court to make orders or grant urgent interim reliefs. It was on this basis the court held that the urgency enumerated in the affidavit of urgency and in counsel’s submission reveals a scenario that may gravely affect the larger society and indeed the well-being of the nation at large, considering that students of Secondary Schools nationwide, especially those writing WAEC exams will be affected; the Tertiary institutions who have only just resumed after a long ASUU strike will also be affected, not leaving the health sector, amongst other sectors; and above all, the economy of the nation. The court further held that the situation is of extreme urgency that will require the intervention of the court.

In light of the unsettled law regarding strike actions in Nigeria, the power to stop a strike action or declare a strike action to be illegal still resides within the inherent powers of the Court with Jurisdiction.

Conclusion and Recommendation

The right to strike is a keystone of modern industrial society. No society which lacks that right can be democratic. The stringent procedure to be followed before a strike could be deemed lawful or protected makes it nearly impossible to have a lawful strike. For instance, failure to comply with the conditions specified in Section 18 (1) of the Trade Disputes Act is deemed to be a crime and may result in the payment of fine or a term of imprisonment or both. More so, the provisions of Section 31 (6) (e) of the Trade Disputes Act which require a simple majority vote of all registered members of a trade union is also a clog in the wheel of industrial harmony and more particularly, the right to strike. Even more draconian is the power given to the President to proscribe any trade union or association of employee engaged in essential services, taking cognizance of the elaborate meaning of “essential services” in the Act.[18]

It is therefore submitted that:

1. We do not need the prohibition of strikes or the imposition of more stringent conditions for the exercise of the right of workers to organize their activities. What we need is a law that will strengthen the protection granted to trade unions and their members, particularly union officials.
2. We need a law in Nigeria that will protect workers from dismissal or criminal prosecution for organizing or participating in strikes and other forms of industrial action in contemplation of or in furtherance of a trade dispute, just like the Committee on Freedom of Association of the Governing Body of the ILO resolved that employees should not be dismissed or refused re-employment on account of their having participated in a strike.

• There is an urgent need for a relaxation of the type of labour dispute for which workers are allowed to embark on strikes. The Trade Dispute Act should be amended to capture dispute of interest as a labour dispute that could warrant workers to go on strike. This will bring the Trade Dispute Act in conformity with international best standards that ensure that disputes of right are subjected to arbitration and adjudication procedures, while disputes of interest are left to be resolved through collective bargaining and the respective powers of employers and employees, including strikes and lockouts.

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[1]Romer, J. (1984). Ancient Lives: The Story of the Pharaoh’s Tomb-Makers (pp. 116-123). London: Phoenix Press.

[2]https://www.academia.edu/35165245/FREEDOM_OF_ASSOCIATION_STATE_PRACTICES_AND_THE_IMPACT_OF_INTERNATIONAL_CONVENTIONS_BEING_A_SEMINAR_PAPER_PRESENTED_BY Temitope Kolawale

[3]Garner, B. A. (2004). Black’s Law Dictionary (9th ed.). Eagan, MN: West Publishing Co.

[4] (1975) ICR 261, at 276. See also Miles V. Wakefield Metropolitan District Council (1987)2ALL E.R 1081, at 1097

[5] International Labour Organisation – A Policy Guide [2015] https://www.ilo.org/wcmsp5/groups/public/—ed_protect/—protrav/—travail/documents/instructionalmaterial/wcms_425004.pdf last accessed 11th of July 2023

[6] Uvieghara, E. E. (2001). Labour Law in Nigeria 446. Lagos: Malthouse Press Limited

[7] Erugo, S. (2019). Introduction to Nigerian Labour Law Contract of Employment and Labour Practice (2nd ed.). Lagos: Princeton & Associates Publishing Co. Ltd.

[8] Section 31(6)(a) of the Trade Unions Act, as amended

[9] See also Trade Disputes (Essential Services) Act LFN 2004, s. 9(1) 5. See Gullian S. Morris, “The Regulation of Industrial Action in Essential Services” (1983) 12 ILJ 69- 83.

[10] . See Convention 98 on the Right to Organize and Collective Bargaining. See also M. Forde, “The European Convention on Human Rights and Labour Law” (1983) 31 Am. Journal of Comp. Law, p. 301.

[11] Section 31(6)(b) of the Trade Unions Act, as amended

[12] See Abel K. Ubeku, Industrial Relations in Developing Countries: The Case of Nigeria (London: MacMillan Press, 1983) pp. 157-158.

[13] See G. G. Otuturu, “The Right of Workers to Strike in Nigeria: ACritical Appraisal” Nigerian Journal of Labour Law and Industrial RelationsVol. 3 No. 2 (2009) pp. 37-48 at p. 43.

[14]See Van Jaarsveld and Van Eck, op. cit., at p. 341-342

[15] https://nairametrics.com/2022/09/21/can-a-court-declare-a-strike-to-be-illegal-in-nigeria/?amp=1 last accessed the 11^th of July, 2023.

[16] Section 31(6) of the Trade Unions Act, as amended

[17] Section 1(1) & (3) of the CFRN, 1999 as amended

[18] Otobo, D. (1987). Strikes and Lockouts in Nigeria: Some Theoretical Notes. In D. Otobo, & O. Omole (Eds.), Readings in Industrial Relations in Nigeria (pp. 229-231). Benin City: Malthouse Press.