The fabric of any society rests on the interaction of people and the denomination of value exemplified in the exchange of goods and services. For various and obvious reasons, there is an alarming rise in trade dispute in Nigeria. The rise in trade dispute is responsible for the incessant industrial actions by trade unions and other affected associations in the country resulting to impediment of economic activities, standstill of progress in affected sectors and increase in unemployment rate. Most usually, trade disputes result in strike actions as internal mechanisms to resolve these disputes before strike actions are unproductive.
In Nigeria, the first nationwide strike was in 1945[ii]. Since then, major strike actions are fueled prominently by Nigerian Labour Congress (NLC), Academic Staff Union of Universities (ASUU), National Union of Teachers (NUT), Association of Resident Doctors (ARD), Nigerian Medical Association (NMA), Petroleum and Natural Gas Senior Staff Association of Nigeria (PENGASSAN), Nigerian Union of Petroleum and Natural Gas Workers (NUPENG), and now the Judiciary Staff Union of Nigeria (JUSUN).
On the 6th of April, 2021, judicial workers under the aegis of Judiciary Staff Union of Nigeria (JUSUN) embarked on an indefinite nationwide strike to push for the implementation of financial autonomy for the judiciary[iii]. Financial autonomy entails that the judiciary will no longer have to wait for state governors for funds as it will have a separate allocation of its own in the state appropriation laws in the annual budget of each state. The dependent nature of the judiciary which is even determined by the generosity of state governors on the amount it receives has dampened the effectiveness of the judiciary which makes the ongoing struggle long overdue.
As at 30th of April, 2021, courts across the country are under lock and key putting all court activities on a standstill. As the strike lingers, many legal issues have sprung up, one of which is the adverse effect it has on the justice system. A critical look on the legal issues that may have emanated from the on-going strike action of JUSUN will be examined in this piece
WHAT IS A TRADE DISPUTE?
In a layman’s term, trade dispute is any disagreement between an employer and workers.
However, trade dispute is defined in Section 47 (1) of the Trade Disputes Act (TDA), 2004 as “any dispute between employer and workers or between workers and workers which is connected with the employment or non-employment or the form of employment and physical condition of work of any person”.
Also, Section 54 (1) of the National Industrial Court Act (NICA) defines “trade dispute” to mean "any dispute between employer and employees including dispute between their respective organisations and federations which is connected with: the employment or non-employment of any person, terms of employment and physical conditions of work of any person, or the conclusion or variation of a collective agreement, and an alleged dispute".
Noteworthy is the fact that the Supreme Court in National Union of Electricity Employees v. Bureau for Public Enterprises[iv], following its earlier decision in National Union of Road Transport Workers v. Ogbodo[v] held that in determining the existence or otherwise of trade dispute, all the ingredients mentioned in Section 47(1) of TDA must be present.
The ongoing strike action of the JUSUN is due to the failure of Federal and State Governments to grant the judiciary the constitutionally enshrined financial autonomy[vi], one of major pillars needed to ensure effective dispensation of justice. It is a known fact that the Judiciary is the “last hope of the common man”. This presupposes that it is the only place the common man can get justice. And in ensuring this, the judiciary needs to be independent and free from unnecessary interference from the executive arm Also, by virtue of Nigeria's status as a democratic state, there exist a clear separation of powers between the three arms of government as enshrined in the Sections 4, 5 and 6 of the 1999 Constitution of the Federal Republic of Nigeria, (as amended).
Thus, the question that comes to the mind of readers is whether or not the reason for the ongoing strike of JUSUN constitute a trade dispute. By virtue of the statutory definitions of trade dispute present in the TDA, 2004 and the NICA, the demand for financial autonomy of the judiciary is a trade dispute because it concerns the condition of work needed by judicial workers and the Bench to effectively perform their duties and ensure that justice reigns at all times. We must bear in mind that, on May 22, 2020, President Muhammadu Buhari signed an executive order granting financial autonomy to the legislature and the judiciary across the 36 states of the federation[vii]. This requires all states to include the allocations of both the legislature and the judiciary in their budget which is yet to be implemented by state governments.
DOES JUSUN AS A TRADE UNION HAVE THE RIGHT TO EMBARK ON STRIKE?
In the occurrence of a trade dispute, parties including both the employee(s) or their organizations on one hand and employers or their respective organizations on the other hand employ different tools to ensure that the other party accede to its demands. One of these tools is strike action. Strike is an essential tool of trade unions all over the world for the defence and promotion of the rights and interests of their members and to further press home their demands. In the case of the employers wanting the employees to accede to their demands, lock-outs is one of the available tools to be used.
Section 48 of the TDA, defines strike “as a cessation of work by a body of persons in consequence of a dispute in a bid to compel their employers to accept or not to accept some terms and physical condition of work”. In Nigeria, the right of workers to embark on strike action is not expressly stated or provided for in any extant law. Different jurists in Nigeria have argued in support and against the existence of the right to embark on strike due to the ambiguous provision of Section 18 of the TDA, 2004.
On one hand, Nigeria being a country governed by common law, some are of the opinion that since the contract of employment is viewed from a master-servant perspective, embarking on strike action is a breach of the contract of employment as established by the House of Lords in the famous case of Rookes v Barnard[viii]. Also, it has been argued that the provision of section 18 of the TDA, 2004 bans trade unions from embarking on strike in a situation where trade disputes mechanism itemized in Section 18 (1) amongst other conditions have commenced.
However, since the constitution is the grundnorm, the writers of this piece argue vehemently in support of the point of view that the right to strike can be implied from the constitutional right to peaceful assembly and association provided in Section 40 of the 1999 Constitution of the Federal Republic of Nigeria, (as amended) which empowers workers to join any trade union of their choice to ensure their interests are protected. To further buttress this point of view, foremost Constitutional Law expert, Professor Ben O. Nwabueze opines that Section 18 (1) of TDA is void for being inconsistent with Section 34 (1) (c) of the 1999 Constitution of the Federal Republic of Nigeria (as amended), which prohibits forced labour. According to him, the right to collective bargaining cannot be separated from the right to press forward the demands of the union through strike should the negotiation fail or breakdown.
Judicially, the right of workers to embark on strike has been recognized. This was the decision of the court in Crofter Hand Woven Tweed Co. Ltd v Veitch. As well as in the Nigerian case of Union Bank of Nigeria V. Edet, the right to embark on strike has been judicially recognized which gives room for trade unions to embark on strike. Also, the Supreme Court of Ireland noted in Educational Co. v. Fitzpatrick that the right to embark on strike can be implied from the right to peaceful assembly and association. [ix][x][xi]
In light of the above arguments, it is safe to conclude the strike action embarked on JUSUN is legal and it’s not inconsistent with the provisions of the constitution.
THE WAY-FORWARD IN RESOLVING THE DISPUTE
The fact that the activities of an arm of government– Judiciary is on standstill should be a major concern for any responsible government because of the adverse consequences it has on the smooth running of any society. In the opinion of the writers of this piece, the Federal and State governments must as a matter of urgency take the bull by its horn by acceding to the justifiable demands of the JUSUN.
Accordingly, the trade dispute settlement mechanisms[xii] as outlined in the TDA, 2004 and other extant laws of the country must be employed in order for normalcy to return back to the judiciary. By virtue of the leading statue in Nigeria with regards to the settlement of trade dispute- Trade Disputes Act, 2004, the machinery for resolving trade disputes is founded on hierarchy which must be strictly followed. These stages are; by the parties; by conciliation; by arbitration and by the court.
As at 30th of Aril, 2021, the current stage with regards to resolving the dispute is the parties’ stage as both parties, the Federal and State governments on one hand and representatives of JUSUN on the other hand have met a number of times in a bid to resolve the dispute, though unproductive as to resolving the dispute. Under our current laws, JUSUN as a trade union is mandated to constitute an electoral college to elect members who will serve as their representatives in negotiations during this process. The meeting held by both parties is termed “collective bargaining” process as both parties are negotiating to end the dispute. The end product of this process is “collective agreement”.
Section 48 of the TDA defines collective agreement as any agreement in writing for the settlement of disputes and relating to terms of employment and physical conditions of work concluded between an employer, a group of employers or organisations representing workers, on the one hand; and one or more of trade unions or organisations representing workers, or the duly appointed representatives of any body of workers on the other hand”.
Taking into consideration the issues at hand, there is no prior agreement between the government and the employees’ association "JUSUN". It must be expressly stated that the Executive Order No. 10 of 2020 signed by President Muhammadu Buhari; granting financial autonomy to the legislature and the judiciary across the 36 states of the federation and also Sections 180 and 121 of the 1999 Constitution of the Federal Republic of Nigeria, (as amended) representing a binding agreement to the effect of being a social contract or agreement between the government and the people does not constitute a valid collective agreement according to the definition in Section 48 of the TDA.
Under common law, collective agreements are not legally binding. However, in Nigeria, by virtue of Section 3 of the TDA, 2004, collective agreements freely entered into by both parties may have the effect of law after being submitted to the Minister of Labour and Employment who has the discretion to make an order specifying the terms and portions of the agreement that shall be binding on the employers and workers.
In occurrence of a situation where both parties fail to reach a collective agreement, Section 4(2) of the Act provides that the parties should “meet together by themselves or their representatives, under the presidency of a mediator mutually agreed upon and appointed by or on behalf of the parties with a view to amicable settlement of the dispute”. This is the second of the two ways parties can resolve the dispute between each other.
If after such appointment, the parties are still unable to reach an agreement, the Minister of Labour and Employment may intervene through the appointment of a conciliator according to section 8 of the TDA, 2004. This is referred to as “apprehension of trade dispute” and it is the second stage referred to as the conciliation stage. Section 5 of the TDA, 2004 indeed grants the Minister of Labour and Employment power to apprehend any dispute at any stage. By virtue of Section 40, either of the parties is free to request for conciliation which must be agreed to by the other party. If agreed to, the dispute will then be referred to a conciliator(s).
If no agreement is reached at the conciliation stage, in a bid to bring an end to the dispute, the Minister may reference the dispute to an Industrial Arbitration Panel (IAP) in the Section 9(1) of the TDA, 2004. This is stage is referred to as the arbitration stage. Halsbury’s Laws of England defines arbitration “as the reference of a dispute or differences of a dispute between not less than two parties for determination, after hearing both sides in a judicial manner, by a person or persons other than a court of competent jurisdiction”. The decision gotten at this stage is referred to as “Award”. By virtue of section 12 (2) (c), the “Award” will be published in the Federal Gazette if there is no objection to it within 7 days.
After exhaustion of the means of settlement above, and an agreement has not been struck, the parties may then proceed to a court of competent jurisdiction on civil matters relating to trade disputes- the National Industrial Court (NIC) for final resolution of the dispute. This is the final stage in the resolution of trade dispute in Nigeria. However, the dispute must be resolved because workers of the National Industrial Court (NIC) are also out of work as they are part of a party involved in the dispute. Another striking issue to consider would be whether the National Industrial Court, being a party to the dispute would not be devoid of jurisdiction to adjudicate over the matter in the event that the ongoing strike gets to that stage on the basis of the principle of Nemo Judex In causa sua? The writers are of the view that the principle of Nemo Judex In causa sua won't be applicable since it is the members of the court and rightly not, the judges to adjudicate over the matter.
The writers agree that the judiciary is poorly underfunded coupled with unnecessary interference from the executive. Government at both state and federal levels must grant the judiciary the necessary autonomy and fund it properly to meet international standard. The courts should be equipped to aid the Bench in the smooth discharge of their duties. The government must put in place necessary machinery within the best possible time to ensure the judiciary gets it autonomy.
There is practically no country in the world that can exist without an arm or body responsible for adjudicating cases and resolving disputes, even though they are in their weakest form. Even during the darkest days of Military dictatorship in Nigeria, the judiciary adjudicated on disputes involving persons, authorities and governments. In any circumstance where courts are under lock and key, a common man cannot get justice and the society might degenerate into a lawless state. The absence of the judiciary in the country at this crucial point in the country’s history will to miscarriage of justice as justice delayed is justice denied.
[i] Victor Adegbite, Afolabi Alawode and Moses Alabi are 300 level students of Olabisi Onabanjo University. They are Employment law enthusiasts and can be reached be via email@example.com, firstname.lastname@example.org and email@example.com respectively.
[iii] “Why JUSUN strike cannot be faulted, by CJN” TheGuardian available at https://guardian.ng/news/why-jusun-strike-cannot-be-faulted-by-cjn/, (accessed 30 April, 2021)
[iv] (2010) 41 NSCQR (pt 1) 611
[v] (1998) 2 NWLR (pt 537) 189
[vi] Sections 80 and 121 of the 1999 Constitution of the Federal Republic of Nigeria, (as amended)
[vii] Executive Order No. 10 of 2020.
[viii] (1964) AC 1129
[ix] (1942) AC 435
[x] (1993) 4NWLR (Pt. 287) P.288
[xi] (No. 2) (1961). IR 345
[xii] O. A. Orifowomo, M. O. A. Ashiru, “Settlement of Trade Disputes: Nigeria’s Labour Court in Perspectives” available at https://www.iiste.org/Journals/index.php/JLPG/article/view/22559 (accessed 30 April 2021).
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