Strike: The law and constitutionality of collective bargaining

Despite concerns by the government and other relevant stakeholders, courts across the country have remained shut since April 6, 2021, when Judiciary Staff Union of Nigeria (JUSUN) members began their strike to press for financial autonomy of the judiciary.

Similarly, members of the Parliamentary Staff Association of Nigeria (PASAN) in some state Houses of Assembly have been on strike over financial independence of the parliament at the state level.

Beyond JUSUN and PASAN, other sectors which members have had course to be on strike include; the National Association of Resident Doctors (NARD), health workers under the umbrella body of the Joint Health Sector Unions (JOHESU) and the Academic Staff Union of Universities (ASUU), among others.

For every time there is a strike action in Nigeria, there are real-life consequences for ordinary Nigerians, from those who remain detained because courts are closed, and young people who stay at home for months at a time when public schools embark on strike.

Also, those who are in need of urgent medical attention but cannot afford healthcare in private hospitals within or outside the country reportedly die whenever public hospitals go on strike.

Last week, the Minister of Labour and Employment, Dr. Chris Ngige hinted the possibility to end the JUSUN and PASAN strikes after meeting with their leaders.

Ngige, who spoke at the end of the conciliatory meeting between the government negotiating team and representatives of the unions, in Abuja, appealed to them to end their strike in view of steps being taken to meet their demand.

He also said government had made offers to the two unions, adding that the representatives of the unions would consult with their various National Executive Committees (NECs), and revert back.

Ngige added that a lot of work went into the government’s proposal to the two unions, which substantially addressed their demands for judicial and legislative autonomy.

But the strike has lingered, leaving at its trail sad tales. Strike as a means by which employees exert pressure on their employers to accede to their demands has a longstanding history.

Despite its incessancy, strike alone has been found not to address the contending issues.

In Nigeria, the first strike was recorded on June 21, 1945, after failure of protracted presentations to the government for salary increase.

About 150,000 clerical and non-clerical workers in the Nigeria civil service came together in a general strike of all government departments.

Since then, the incidence of strike in Nigeria has been on the increase and unabated with far reaching effect on the economy and other critic al sector.

Most strikes are undertaken by labour unions when there is a breakdown or deadlock of negotiations or collective bargaining between employees and employers.

The main purpose of collective bargaining is to obtain a binding contract, an agreement between the union and management, which may include a no-strike clause, which prevents strikes, or penalises the union and/or the workers if they walk out while the negotiation is on and the contract is still in force.

Strike is usually reserved as the last weapon during negotiations between management and the union, which may occur just before; or immediately after, the negotiation fails.

In Union Bank of Nigeria Plc v. Edet (1993), Uwaifo (JCA) as he was, had this to say with regards to the right to strike and ensuring that collective agreements are enforced.

“Collective Agreements, except where they have been adopted as forming part of the terms of employment, are not intended to give or capable of giving, individual employees a right to litigate over an alleged breach of their terms as may be conceived by them to have affected their interest nor are meant to supplant or even supplement their contract of service.”

In addition, Akintan JCA, in his concurring opinion stated;

“It is definitely necessary to expressly adopt the provisions of the document either in the letter of appointment or in a subsequent communication varying the terms of employment before the (employee can) enforce its contents against the (employer)”

Similarly, in Cooperative and Commerce Bank (Nig.) Ltd. v. Okonkwo (2001) 15 NWLR (pt. 735) 114, the employee’s appointment was terminated based on the provision of a CBA.

In challenging the termination of appointment in Court, the employee relied on the provision of the said CBA. The employer objected to it, contending that the CBA is not enforceable in law.

Discountenancing the objection, Akpabio JCA held that the employer is estopped from objecting to the enforceability of the collective agreement.

Industrial disputes arise due to conflict or disagreement in industrial relations. The term “Industrial Relations” involves various aspects of interactions between employer and the employees, in this relationship, whenever there is a collusion of interest; it usually results in dissatisfaction of either of the parties involved and hence lead to industrial disputes or conflicts. These disputes may take various forms such as protests, strikes, demonstrations, lockouts, etcetera. There are several reasons behind industrial conflicts. Some are related to the work environment, while others are basically outside of the work environment. It is because of this that the International Labour Organisation’s Committee on Freedom of Association argues that the right to strike is one of the potent means open to workers union for the promotion, protection and preservation of their economic and social interests within and outside the work place.

A former President of Nigerian Bar Association (NBA), Dr. Olisa Agbakoba (SAN) said, strike is not a constitutional issue but a labour related one used to bring about change in the condition of employment and resolution of grievances.

According to the human rights activist, strike is less legal than is the power of the unionists to express themselves using their numbers. He stressed that in the case of JUSUN, they felt that the state governors are not obeying the constitutional requirement on financial autonomy and they withdrew their labour.

“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 frame work for calling a strike.

“You have to give the relevant notice, a case where the relevant procedures have not been followed, government will go to court to say this strike has not been called in accordance to the laws of the land.

“To that extent, there is a little law involved but there are many cases where in spite of the courts granting an injunction, labour will still not obey the injunction, that is why I feel that law has little role to play in strikes because you cannot force a person to work,” he added.

To Agbakoba, what is more important is the skill of government or the workers to negotiate what is best for workers.

“That is what I think is the most effective way forward but labour is entitled to use the weapon of strike to call attention to problems they are facing.

“All kinds of associations have used the power of strike to bring the government to the table over grievances, the labour feel they have the right to go on strike and government has in turn responded in part or sometimes in full.

“For instance, the N30, 000 minimum wage, though many states are not paying it but it has been as a result of the power of labour that the position was arrived at,” he said.

The learned silk also want labour and government to hold an honest conversation to avert incessant strikes because they are called but they don’t resolve the problem.

“ The main problem for me is the need for government and labour to have an honest conversation on this issue of condition of service. One of the top issues is whether labour is a national subject in the context of a federal structure. Some body in Sokoto should not earn the same money with somebody in Lagos. So, there are all kind of things, I will hope both the government and labour can sit and have a conversation so that we have less strikes. “The fact that the civil service is over bloated is another problem because the Federal Government is unable to pay wages as a result of the fluctuations in the price of crude oil, which is just the truth.

“There are so many points that they need to put on the table beyond salary for labour and Federal or state governments to really thrash out which way will this economy go. Can the economy be sustained by paying three million public servants 80 per cent of our national income”?

According to him, if you have a restructured polity, many issues will be resolved by handling each matter at the regional level and not at the national level and each region or state will have its own determination of what it means.

“I think, restructuting will help to give us a new direction in terms of labour- government relations,” he added.
Ebun-Olu Adegboruwa, a Senior Advocate of Nigeria (SAN), said 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.

According to him, 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 strike actions 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 action 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.

On the JUSUN strike, Adegboruwa said the action is for the benefit of lawyers, Judges, litigants and indeed the legal profession at large, as a way of addressing the real issues once and for all, adding that the general thinking of most state governors is to cage the courts and starve the judiciary of funds as a means of rendering it ineffective, so that lawlessness can thrive unchallenged or where challenged, unchecked.

Also, a former president of Committee for the Defence of Human Rights (CDHR), Malachy Ugwummadu, said the JUSUN strike has very disturbing implication of a delayed dispensation of justice.

“In a particular 2013 case I have at the Federal High Court in Ikoyi, Lagos, we were ordered to file our final written addresses. As Counsel to the defendant, who led evidence, we filed ours first and within the allocated time, but were unable to serve within time. Although we had forwarded and mobilised the court bailiff for service, he couldn’t serve because they embarked on the strike on the same day the process was handed over to him.

“In that circumstance, we could also not effect personal service, because the rules require that such a counsel desiring to effect personal service must bring a written application to that effect. That we couldn’t also do, because such an application must be filed and initialed at the Court Registry. What’s more, the current trial Judge was amongst those transferred out of the Lagos Judicial Division.

“If the entire processes, including the Claimant’s address and our possible reply on points of law do not come in early enough, chances are that the matter could be started de novo.

“Already, we have seen the fate suffered by Section 396(7) of ACJA, which allows a transferred or elevated Judge to return to his earlier court to conclude a part-heard matter, this section applies only to criminal matters, as seen as the Supreme Court case of Ude Jones Ideogu vs. F.R.N & 2Ors (2020),” he added.

Ugwummadu said in two of their cases at Asaba, Delta State, and Lagos, they were literally hamstrung. “At Ogwashi-Uku, our client has been detained by NDLEA for over three weeks.

“They managed to file charges against him about two weeks ago. Our application for bail cannot be filed, even though the matter had been assigned to a court at the Federal High Court in Asaba and an earlier date given.

“Here in Lagos, a sick female client of ours was arrested by a special squad of police officers from IGP/IRT Abuja, who detained her at their office at Harold Osodipo, GRA Ikeja, three days ago over a purely (civil) commercial matter contrary to S.8 (2) of ACJA 2015.

“We’re unable to file a fundamental rights action to enforce her rights and seek redress forcing us to press for administrative bail

“Finally no one can discountenance the security implications of this strike, where citizens and even corporate bodies have resorted to self-help in seeking redress for perceived and alleged injustices. Similarly, the whole clamour for Foreign Direct Investment (FDI) suffers huge setbacks when prospective investors realise that it’s a country with a very weak Judicial system whose activities can be arbitrarily halted on account of perennial strike actions and in the absence of the independence of the judiciary particularly on their autonomy,” he added.

Speaking on the constitutionality of strikes, Convener, Access to Justice, Mr. Joseph Otteh, said strikes in critical government-run sectors by a number of unions – NARD, JUSUN, ASUP -show just how poorly government has fared and managed resource availability and policy making.

According to him, the irony is, of course, so starkly expressed, that while the President was away for medical treatment and consultation in a foreign land, his own frontline healthcare practitioners were protesting the sordid state of healthcare delivery in Nigeria.

Nigeria, he said, must be such a laughing stock. And it is not clear why it is constitutional for Nigeria’s funds to be used to underwrite the President’s foreign medical trips while it cannot pay for the common man’s dialysis treatment at home.

“It has been reported that standards of healthcare and education have been declining over a long time now, but the fall-rate under this government has been unparalleled.

“The JUSUN strike clearly reminds us that the oft-asserted independence of the Judiciary is nothing but on paper and that there is still a critical bridge to cross, which this government has not helped achieve.

“But more than that, it comes at a time the Buhari-led administration is getting its claws deep into the judiciary and manipulating how key positions within it are distributed, to secure strategic advantages for favoured ethic groups.

“Unfortunately, strike actions have become the only language that the Nigeria government understands when it comes to implementing agreements,” he added.

Founder of Crusade for Justice, a human rights advocacy group, Richard Nwankwo, charged political leaders to rise up and stop the incessant strikes in Nigeria because of the overwhelming impact on the already stressed Nigeria judicial system.

Nwankwo lamented that cases, which are supposed to be heard expeditiously because of their nature are stalled, as well as high profile cases and awaiting trial inmates, leading to congestions in Police stations and correction centres.