[10] NO-WORK-NO-PAY RULE, AN APPRAISAL TO THE ASUU/FG DEBACLE
10.1. Introduction:
In totality, “it is clear that right now, sectional needs and the interests of individual unions are prevailing over a coordinated and consensual approach, on the part of the workers, to resolving their problems...[However] it should be the principle of aggrieved unions to aim at arriving at solutions, which would make everyone to the dispute a winner. This includes the State and the People, for it is the latter who suffer most from strike action... The absence of such a principle makes industrial action anti-national and callously indifferent to the needs of the people”. In about 6-7 months now, the Academic Staff Union of Universities (ASUU) and other University agencies have embarked on a gale of strike actions which the students have largely been the victims of this circumstance. It is therefore appalling that the said agency has shown a weakening will of curbing this brewing crisis with a counter policy of ‘no-pay-no-work’, instead of the constitutional 'no-work-no-pay’ rule. This academic literature would oversee this compelling rule in line with public opinion on this lingering industrial action (strike) of the academic workers.
Section 47(1) of the Trade Disputes Act, 1990 (as amended) has defined “Strike” to be: “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”. This statutory definition explains that strike is an act of bringing productive activity to a halt until certain issues of complaints are resolved by employers. Also, an individual worker cannot go on strike, it must be a group, it be or be not unionized, in so far they act in concert, such strike is valid. Also, an industrial action must be about terms of employment and physical conditions of work. This imperatively gives a melting point as to whether or not workers have the right to strike. Yes, it is a room to register their discountenance and dissatisfaction with the situation of the company or the said work.
10.2. ASUU/FG DEBACLE:
The impending action of the Academic Staff Union of Universities (ASUU) and the series of unending meetings always ending in deadlocks has awakening the concern of not only the students, the parents, artesians but also the lawyers all over the country. The driving spirit behind is not far-fetched but traced to the recent decision of the Federal Government to apply on the lingering ASUU strike, the no-work-no-pay rule of which ASUU gave a twist to be no-pay-no-work.
Glaringly, as awkward as this sounds that some sets of workers would be paid for works they didn't do, it is more awkward to have seen different reactions on several platforms supporting ASUU on such development and condemning lawyers who published an article on the side of the Federal Government. It is apposite at this juncture to mention that, sentiment is a foe to law, as whatever circumstances that warrant a decision is not all matters, rather, the law that guides such circumstances. Sitting on the students' fence on this matter, it is weakening that the academic life of students are wasting and at the same time, there's an undying zeal to resume (everyone's tired of home, and the general parlance, 'people are smelling house'). This may spike however unruly say on the lawyers' support on Federal Government rule. However, the effects of the strike shouldn't make us an enemy to our law.
Ordinarily, during strike, when workers ought to lose their pay, they are largely sustained by strike pay, alongside other benefits like casual work, tax rebates etc. For instance, in an article titled ‘Background to a simulated strike’, it was explained in there that union strikes are paid strikes. This depicts that a union member receives strike pay of 60-70% of normal wages in Germany. Thus, while not disputing the efficacy of the fact that unions are expected to have a strike fund, from which the income of striking workers could be augmented in the event of the employees invoking the sanction of no-work-no-pay, this article in totality supports the no-work-no-pay rule.
The International Labour Organizations (ILO) principles to work have made it known clear and cut, and to all and sundry that every worker has the right to strike, however, their employer also has the right to stop their salaries. It reads: “You have a right to strike, but the employer has a right to stop your remuneration and if possible, use it to keep his enterprise going by taking new hands, where possible, especially in essential services”. This appraises Khan-freud and Hepple’s axiom that: “workers will go strike, whatever the law may have to say about it”.
In any situation that workers go on strike and the productive activity of a work is halted, the provisions of the Section 43(1)(a), Trade Disputes Act comes to rescue where it staunchly provides that: “where any worker takes part in a strike, he shall not be entitled to any wages or other remuneration for the period of the strike, and any such period shall not count for the purpose of reckoning the period of continuous employment and all rights dependent on continuity of employment shall be prejudicially affected accordingly.” This provision of the law has been followed from the letters to the spirit in the case of ABDULRAHEEM ORS & v. OLUFEAGBA & ORS (2006) 17 NWLR (Pt. 1008) 280.
The facts of the case were, the Appellants terminated the appointments of the respondents, lecturers of Unilorin who were employed at different times and departments through a letter of cessation of appointment in May, 2001. The respondents sought relief at the Federal High Court, Ilorin, in order to be reinstated to their positions and get entitled to their rights and the salaries and allowances from February, 2001 till the day of the judgement thenceforth, in whose favour the judgement was given. The Appellants, dissatisfied by the trial Court’s decision appealed which was there, held that the lower court erred in law pursuant to S.42(1)(a), Trade Disputes Act, vol.15 cap T8, LFN, 2004 (in tandem with S.43(1)(a), Trade Disputes Act, 1967) to have upheld that decision. Abdullah JCA stated that “...the award of salaries and allowances to the respondents by the trial judge is not only illegal but also inequitable.” This is to say, the lecturers weren’t entitled to any payment of salaries or allowances for the period of the strike.
The contention here is strengthened by the imposition of punishment seen adequate or necessary on a striking worker (union) as an acquiescence in the right of a worker to strike. The law, under this provision is smart here as it allows workers to embark on strike, however spells out the punishments to such. That is to say, in so far as they can bear not to get paid without work, there is no problem as to the employees going on strike when they find it necessary, even though this may be a business setback for the employer.
To clear all doubts, this proviso is not prejudiced to the complaints or dissatisfaction of the workers, it is only against paying salaries where there's no cause for one. Until there's a work agreement between two parties, only then can there be remuneration. So, while ASUU registers their discountenance to the mode of payment and the ridiculous amount a Professor receives per annum, it is imperative, under this provision that, they deserve no remuneration as they have done no work to warrant such.
10.3. Conclusion:
In unmistakable terms, before any union embarks on strike, the interest and welfare of the nation should be projected beyond and above the section of it. Likewise, the employer (government) should always be abreast of the satisfaction of their employees and at best, in times of clash of interests, the parties involved should be ready to reach a compromise.
Hence, industrial action should generally not be encouraged due to the irreversible loss of time, irreparable loss, and the deleterious effects that come with it. Being a final resort to trade disputes, a curtain should be drawn!
Thank you for reading!
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