Abstract
Though the strike is accepted as an indispensable component of a democracy and a stimulus to social dialogue in industrial relations, strikes have remained controversial in many jurisdictions and are repressed by law in some legal systems. This paper examines the legal response to strikes in Nigeria and the implications for workers. It reviews the law over time and finds that it has remained repressive, based on the lopsided desire to protect general services and the business interests of the employer over and above the interests of the worker. In spite of these repressive laws, workers have continued to use strikes in expressing their grievances. The paper argues for legitimization of strikes in industrial relations in Nigeria. This is necessary if we are to encourage social dialogue and workers' participation in the democratic management of the enterprise and the economy as a whole. The paper posits that sustained social dialogue and workers' participation in the democratic management of the enterprise is a panacea for industrial peace and sustainable economic development.
Key words:
Notes
1 The 104 Federal Government Colleges (Unity Schools) in Nigeria could not resume for the 2008/2009 session after the Christmas and New Year break because of a teachers' strike. Similarly, courts in many states remained closed between December 2008 and January 2009 because of a court workers' strike. Doctors in Anambra state were on strike for four months over pay and dearth of facilities in hospitals in the state. See Vanguard, Friday 30 January 2009, p 7 on threat by Junior Police officers to embark on strike; see also The Nation, Friday 30 January 2009, p 10 on threat by NUT in the south‐eastern states to embark on a strike over non‐implementation of teachers' salary scale. The pages of the daily newspapers in Nigeria are replete with stories of strikes or threats to strike. The tertiary institutions in Nigeria have remained closed since June 2009 because of strike action embarked upon by staff unions in the tertiary institutions over government refusal to sign the collective agreements with the unions after two and half years of collective bargaining over conditions of service and adequate funding of education in Nigeria. See ‘The Season of strikes’, The Daily Sun, Tuesday 1 September 2009, p 41.
2 See Dafe Otobo, ‘Strikes and Lockouts in Nigeria: Some Theoretical Notes’, in D Otobo and O Omole (eds) Readings in Industrial Relations in Nigeria (Benin: Malthouse Press, 1987) pp 229–231; AK Ubeku, Industrial Relations in Developing Countries: The Case of Nigeria (London: Macmillan, 1983) pp 164–165; OA Orifowomo, ‘An Appraisal of the Right To Strike under Nigerian Labour Laws’ (2004) 1 (part 2) Ife Juris Review 380 at 390–391; Emeka Chianu, Employment Law (Akure: Bemicov Pub Ltd, 2004), chapter 14, p 277; A Emiola, ‘The Legal Approach to Industrial Relations in Nigeria’ (1998) 2 Cal Law Journal 1 at 35. See also PD Shenoy, Strikes: How to Avoid Them (New Delhi: Sterling Publishers, 1999) p 3. See also Peter Anosike, ‘Strikes and Their High Cost to the Economy’, The Daily Sun, Monday 10 August 2009, p 39.
3 See P Davies and M Freedland, Kahn‐Freund's Labour and Law (London: Stevens & Sons, 1983) p 293 where the learned authors maintained that there can be no equilibrium in industrial relations without the right to strike.
4 O Kahn‐Freund and BA Hepple, Law Against Strikes (London: Fabians Research Series, 1972) p 4.
5 O. Kahn‐Freund, Labour and the Law (London: Steven & Sons, 1972) p 234, see also L Macfarlane, The Right to Strike (London: Penguin Books, 1981) p 12.
6 See R Ben‐Israel, International Labour Standards; The Case of Freedom to Strike (Kluwer: Denventer, 1988) chapter 1, pp 13–33; VA Leary, ‘The Paradox of Workers Right as Human Rights’ in LA Company and SF Diamond (eds) Human Rights, Labour Rights and International Trade (Philadelphia: University of Pennsylvania Press, 1996) p 22; OVC Okene, ‘The Right of Workers to Strike in a Democratic Society. The Case of Nigeria’ (2007) 17, no 1 Sri Lanka Journal of International Law 193–221; George Akpan, ‘The Right of Workers to Strike in Nigeria’ (1996) 3, no 1 Lawyers Bi Annual 62–74; but see also Chianu (n 2) chapter 14, ‘Right to Strike: Opposing View Points’, pp 271–288.
7 See Wogu Ananaba, The Trade Union Movement in Nigeria (Benin: Ethiope Press, 1969) pp 1–9. See also AK Ubeku, Industrial Relations in Developing Countries: The Case of Nigeria (London: Macmillan, 1983) pp 41–54.
8 INE Worugji, Introduction to Individual Employment Law (Calabar: Adorable Press, 1999) p 33. See also A Emiola, Nigerian Labour Law (Ogbomoso: Emiola Publishers, 2000) p 12.
9 See generally Chianu (n 2), chapter 15, ‘Strikes and Employment Contract’, pp 229–306.
10 See AA Adeogun, ‘The Legal Framework of Industrial Relations in Nigeria’ (1969) 3 Nigerian Law Journal 13.
11 See generally Ananaba (n 7); Ubeku (n 7); D Otobo, The Role of Trade Unions in Nigerian Industrial Relations (Oxford: Malthouse, 1987); D Otobo, State and Industrial Relations in Nigeria (Lagos: Malthouse, 1988); D Otobo, The Trade Union Movement in Nigeria (Oxford: Malthouse, 1995). See also S Fachoyin, Industrial Relations in Nigeria (Ibadan: Longmans, 1969) pp 40–70; MA Tokunbo, Labour Movement in Nigeria Past and Present (Lagos: Lantern Books, 1985).
12 See Sections 11 and 12 of the Trade Union Act, Cap, T 14, Law of Federation of Nigeria, 2004.
13 Michael R Carrell and Christian Heavrin, Collective Bargaining and Labour Relations Cases, Practice and Law (Columbus, OH: Merril Publishing Co, Bell & Howell Co, 1985) pp 39–45; SC Srivastava, Industrial Relations and Labour Laws (New Delhi: Vikas Publishing House NUT, 2000) p 33.
14 Kahn‐Freund defines strike as ‘a concerted stoppage of work’: Otto Kahn‐Freund, Labour and The Law (London: Stevens & Sons, 1983) p 291; Rideout defines it as ‘a deliberate and concerted withdrawal of labour’: RW Rideout, Principles of Labour Law, 4th ed (London: Sweet & Maxwell, 1983) p 449; H Collins, KD Edwing and A McColgan, Labour Law, Text and Materials (Oxford, Portland, Oregon: Heart Publishing, 2001) p 881 defines strike as ‘a withdrawal of labour by group of workers who are in dispute with their employers or perhaps with another party’. Hitler defines strike as ‘the simultaneous and coordinated withdrawal of labour by workers’: ET Hitler, The Strike: A Study in Collective Action (Chicago: Chicago Press, 1982) p 12.
15 Tram Shipping Corporation v Greenwich Marine Incorporation (1975) All ER 898 at 990 per Denning LJ. See also Miles v Wakefield Metropolitan DC, (1987) 2 All ER 1081 at 1097.
16 See Chianu (n 2), p 286 where the learned author emphasized this when he maintained that where a strike is directed at government policies that have no direct or indirect impact on job regulation, the participants should be regarded as being on their frolic hence cannot be protected by the law.
17 Section 48 (1), Cap T 8, Laws of Federation of Nigeria, 2004.
18 GOS Amadi, A Legal Guide to Trade Unions (Nsukka: Afro‐orbis Publications, 1999) p 73.
19 See Anie de Roo and Rob Jagtenberg, Settling Labour Disputes in Europe (Deventer: Kluwer, 1994) p 21; INE Worugji, ‘Settlement of Labour Disputes under the Nigerian Labour Law; The Missing Links’ (2003) 6 The University of Maiduguri Law Journal 3. There have been mass labour protests in Nigeria to compel the Federal Government to implement Justice Uwais's report on electoral reforms in Nigeria.
20 Otobo (n 2) pp 223–224.
21 ILO Freedom Association 1985, Digest para 200.
22 Freedom of Association and Collective bargaining: General Survey by the Committee of Exports Report 111 (4b), International Labour Conference 69th Session, Geneva 1983, para 200.
23 See Worugji (n 19) p 3.
24 Amadi (n 18) pp 72–76.
25 Ibid, pp 75–76.
26 Cf Chianu (n 2) pp 286–287.
27 Amadi (n 24) p 1. For the history of early strikes in Nigeria see generally Ananaba (n 7). See also Chianu (n 2) pp 307–317. See also Tokunbo (n 11).
28 Ibid, p 2. See also Chianu (n 2) p 257.
29 See Chianu (n 2) pp 257–267.
30 See Amadi (n 24) p 3.
33 Ibid, p 538.
31 Simon Deakin and Gillian S Morris, Labour Law (London: Butterworth, 1995) p 757.
32 (1901) AC 495.
34 Mangul Steamship Co v Mcgregor Cow Co (1892) AC 125; Allen v Food (1894) 125; Reynolds v Shipping Federation (1924) 1 chapter 28, Crofter Hand‐Woven Harris Tweed Association v Veitch (1942) AC 435.
35 See Chianu (n 2) p 286.
36 Deakin and Morris (n 31) p 758.
37 Ibid, p 759.
38 Ibid.
39 (1964) AC 1129.
40 Ibid.
41 For the history of early strikes and political responses in Nigeria, see generally Ananaba (n 7); Tokunbo (n 11) pp 22–37, 107.
42 See footnote 6. See also Deakin and Morris (n 31) pp 752–756.
43 Article 8 (1)(d) of ICESCR.
44 Articles 10 (1) and 15 of the African Charter respectively.
45 Convention Concerning Freedom of Association and Protection of the Right to Organise adopted by General Conference of the ILO in 1948 which came into force in 1950.
46 Convention Concerning the Application of Right to Organise and Bargaining Collectively adopted by the ILO in 1949 which came into force in 1951.
47 ILO Freedom of Association Digest 1957, p 783.
48 ILO Freedom of Association Digest 1970, p 736; See also B Gesnigon, OO Dero and H Guilds, ‘ILO Principles Concerning the Right to Strike’ (1996) 126, no 5 International Labour Law Review 543, 545; N Valticos and G von Potobsky, International Labour Law (Deventer: Kluwer, 1995).
49 See ILO Report on Right to Strike 1996 d, paras 473–475, which declared it as a right not a social act.
50 The exceptional situations have been located in essential services. See Freedom of Association, Digest of Decisions of the Freedom of Association Committee of the Governing Body of the ILO, Geneva, 3rd ed 1985, paras 706 and 708. See also Gillian Morris, ‘The Resolution of Industrial Actions in Essential Services’ (1983) 12 Industrial Law Journal 69.
51 See T Novitz, International and European Protection of the Right to Strike (Oxford: Oxford University Press, 2003) p 1. See also Okene (n 6) pp 200–205.
52 The right to strike is constitutionally guaranteed in France, Germany, Greece, Italy, Portugal, Spain, South Africa, Ethiopia and Brazil. Through a constitutional right guaranteed to individuals, it is usually exercised on a collective basis.
53 The right to strike is also statutorily guaranteed in South Africa by Section 64(1) of Labour Relations Act 1965; in the United States by Sections 7 and 13 of the National Labour Relations Act 1935; and in Brazil by Clause 1 of Act no 7783 of 1989.
54 This is the case in the United Kingdom, Australia, Switzerland and India.
55 See Chianu (n 2); AB Ahmed, ‘The Legal Position of Strikes in Nigeria’ (2001) V Journal of General Studies 271–288. See also RW Rideout, ‘The Contract of Employment’ (1966) Current Legal Problems 111, 116. Cf KW Wedderburn, The Worker and the Law, 3rd ed (Harmondsworth: Penguin, 1986) p 731, and K Forster, ‘Strikes and Employment Contracts’ (1971) 34 MLR 275 where the learned authors expressed a contrary view.
56 See Secretary of State for Employment v ASLEF (no 2) (1972) 2 All ER 949. See also Miles v Wakefield Metropolitan District Council (1987) 1 AC 539 at 559, where the court opined that any form of industrial action by a worker is a breach of contract which entitles the employer at common law to dismiss the worker because no employer is contractually bound to retain a worker who is intentionally causing harm to the employer's business. See also Chianu (n 2) chapter 15, ‘Strike: Employment Contract’, pp 289–306; Deakin and Morris (n 31) pp 827–830.
57 The Trade Dispute (Emergency Provisions) Decree no 21, 1968 was amended because it could not prevent the massive wave of strikes which characterized the industrial relations at the period.
58 Ahmed (n 55) p 241.
59 EE Uvieghara, Trade Union Law in Nigeria (Benin: Ethiope Publishing Co, 1976) p 133; Ahmed (n 55).
60 Section 1(1) (a), (b) and (c) of Decree no 53 of 1969.
61 Ibid, Section 1 (1) (d) and (e).
62 Ibid, Section 2(1) and 2(3).
63 Ibid, Section 6(5) (b).
64 Ibid, Section 6(5)(a) and 6(5)(b)
65 Uvieghara (n 59) p 136.
66 TDA, Cap T8, Laws of Federation of Nigeria, 2004. This was originally Trade Disputes (Amendment) Act 1977 and as contained in Laws of the Federation 1990 Cap 437.
67 Ibid, Section 18(2) TDA, 2004.
68 CK Agomo, ‘Federal Republic of Nigeria’ in R Blanpain (ed) International Encyclopaedia of Labour Law and Industrial Relations (Deventer: Kluwer, 2000) para 270, commenting on Section 17(1) of TDA 1990 now Section 18(1) of the TDA, 2004.
69 Okene (n 6) pp 207–208.
70 Ben‐Israel commenting generally on the effect of these provisions of labour legislation opined that ‘A general prohibition of strike can be attained indirectly, as a result of the settlement of labour disputes by means of compulsory conciliation and arbitration procedures, the final award of which is binding upon the parties concerned. By such procedures it is possible in practice to put a stop to any strike.’ Ben‐Israel (n 6) p 98.
71 See Section 44 of TDA, 2004.
72 See EE Uvieghara, Labour Law in Nigeria (Lagos: Malthouse Press Ltd, 2001) p 446 and 354; Agomo (n 68) p 270; Okene (n 6) pp 207–208; Akpan (n 6) pp 64–69; Chianu (n 2) p 280; Emiola (n 2) p 355; O Amokaye, ‘The Legal Implications of Strike in Nigeria’ (1991) 2, no 7 Justice 35; R Idubor, ‘An Appraisal to the Right to Strike in Nigeria’ (2000) 3, no 2 Nigerian Education Law Journal 86. See also Amadi (n 18) pp 86–87.
73 See Chianu (n 2) chapter 14, ‘Right to Strike: Opposing Views’.
74 See Section 64 Labour Relation Act (South Africa) which made clear separation between protected and unprotected strikes for effective exercise of the right to strike under the Constitution.
75 See Freedom of Association and Collective Bargaining: 1994 Report, part 4b, para 159.
76 See ILO Digest 1996, paras 544 and 545.
77 Cap T9 Laws of Federation of Nigeria, 2004.
78 See Section 1 (1) (a) and (b) and Sub‐section (2) and (3) of the Trade Disputes (Essential Services) Act. This was used against National Union of Nigerian Bank Employees in 1976; Nigerian Medical and Dental Association, and Association of Resident Doctors in 1985. The Proscription of Academic Staff Union of Universities in 1992, 1994 and 1996 respectively under this Act are still fresh in the memories of many Nigerian academics.
79 PENGASSAN and NUPENG leaders were detained indefinitely without trial under this law.
80 Section 7 (a) (b) and (c) Trade Disputes (Essential Services) Act, 2004.
81 DA Otobo, ‘The Generals and Trade Union Bill’ cited in Okene (n 6) p 216.
82 See Ben‐Israel (n 6) pp 109–110. See also Okene (n 6) p 215; Adeogun (n 10) p 104; Akpan (n 6) p 71.
83 See Sections 43 (1) (a) and (b) TDA, 2004.
84 Section 2 (2) (b) Trade Dispute (Essential Services) Act, 2004.
85 See Chianu (n 2) pp 262–270, FO Anene v J Allen & Co Ltd (1975)5 UILR (pp i–ix) 404. See Section 9(7) of the Labour Acts, 2004.
86 AA Adeogun, ‘Strikes, the Law and the Unconstitutionality of Labour Protests in Nigeria’ (1980) 16, no 1 Indian Journal of Industrial Relation 1. See also Akpan (n 6) p 71; and footnote 1.
87 E Cordava, ‘Strikes in the Public Service: Some Determinants and Trends’ (1984) 124 International Labour Review 166–167. The ILO has also noted that bans and sanctions for strikes may well create more problems than they intend to resolve (see ILO Freedom of Association and Collective Bargaining: The Right to Strike, General Survey, 1994 Report 111, part 4b, para 177).
88 Kahn‐Freund and Hepple (n 4) p 4; Ben‐Israel (n 6) pp 13–33.
89 Kahn‐Freund (n 5) p 234. See also AB Aggarwal, ‘Strike by Government Employees: Law and Policy’ (1972) 14 Journal of Indian Law Institute 358 at 378, where the learned author maintains that the right to strike is the only democratic safety valve that can effectively eliminate the eventuality of a revolution.
90 See Shenoy (n 2) pp 135–152. It is this refusal to dialogue and/or consult that has led to strikes in many cases in the Nigerian public sector. The present staff unions strikes in Nigeria is as a result of the government's refusal to dialogue and conclude negotiation with the unions.
91 See Amadi (n 18) pp 86–88; Chianu (n 2) p 28; Okene (n 6) p 221.