16th June, 2015
By Femi Bamisile
However, what was thought to be a temporary wartime measure was entrenched in the law by virtue of the Trade Disputes Act of 1976. The Act has severely circumscribed the workers right to strike and introduced both voluntary and compulsory settlement of disputes. The Act provides an elaborate procedure for the settlement of trade disputes, including the process of Mediation, Conciliation, Arbitration, and the National Industrial Court.
Section 17 of the Trade Disputes Act makes it an offence for an employer to declare or take part in a lock-out or for a worker to take part in a strike action or perform any act preparatory to organizing a strike. Any person who contravenes this provision is liable to a fine of N100.00 or to imprisonment for six months. In the case of a body corporate, a fine of N1,000.00 is prescribed. Accordingly, Section 17 seems to have completely impaired the right of workers to strike in Nigeria.
Looking at the marginal notes to section 17, which read ‘Prohibition of lock-outs and strike before issue of award of National Industrial Court’, one might argue that it is not the intention of the Legislature to ban strikes generally. There is no doubt that marginal notes do no not form part of a law, but one might be persuaded by the view of the Supreme Court in Olowo v. Alegbe (1983) 2 S.C.N.L.R.35where Kayode Eso, JSC observed as follows:
“Though in modern times marginal notes do not generally afford legitimate aid to the construction of a statute, at least it is permissible to consider the general purpose of a section…with the marginal notes in mind”
However, the effect of section 17 seems to be the complete prohibition of strikes. By virtue of section 17(1), workers cannot go on strikes unless they observe the dispute settlement procedures. If, at the end of the processes, workers are dissatisfied with the award of the National Industrial Court whose decision is final, then by virtue of section 17(3) they must go through the whole process of dispute settlement all over again. The law has apparently created a vicious circle of compulsory arbitration from which the workers cannot escape. By implication, the right to strike seems to have been smartly circumvented by the Legislature.
It is difficult to see how trade unions could sidestep the ingenious and well calculated obstacles placed in their way before embarking on strike actions. Consequently, it may not be far from the truth to conclude that strikes are banned by the Trade Disputes Act. Some writers on Labour Law (such as Ogunniyi and Emiola) have argued that the right to strike is explicitly abundant in Nigeria, but it is no clear how this is so.
The Right to Strike in the Trade Union (Amendment) Act 2005
The Trade Union (Amendment) Act 2005 contains further serious restrictions on the freedom to strike in Nigeria. Section 6(d) of the Act amended Section 30 of the Trade Unions Act 1990 by inserting new subsections (6), (7), (8) and (9) immediately after the existing subsection (5). The new section 30(6), (7), (8), and (9) now stipulate the conditions that must be satisfied before strikes and lock-outs can take place and would appear to have dealt a further blow to any trace of the right to strike in Nigeria, due to the following:
1) Workers in Essential Services
In Nigeria, the Trade Disputes (Essential Services) Act (Chapter 433, Laws of the Federation of Nigeria, 1990) prohibits workers in essential services from going on strike. The list of ‘essential service’ includes, inter alia, the public service of the Federation and the states, workers involved in health and sanitation, fire service, Central Bank of Nigeria and corporate bodies carrying on banking business. This prohibition is retained by the 2005 Act. Workers in “Essential Services” are expressly barred from embarking on strike actions by section 30 (6) (a).
Such workers include those in the education and health sectors, as well as public servants in Nigeria and all other sectors categorized as essential services. In any event, workers in essential services must go through arbitration and the determination of the National Industrial Court shall be final in such disputes. This clearly forecloses the possibility of a strike action by workers in essential services.
The Trade Disputes (Essential Services) Actprovides penalty by way of a fine of N10, 000.00 for employers and a fine of N200.00 and/or 6 months’ imprisonment for members and officials of trade unions who violate the law. Same is reinforced by the Trade Union (Amendment) Act 2005.
The only remarkable difference here is that whereas the former law provides for N10,000.00 for employers and N2,000.00 or six months’ imprisonment against members and officials of trade unions, the penalty in the new law penalty is applicable across the board to any person, trade union or employer who may violate the law.
2) Workers in Non-Essential Services
For other workers, the restrictions seem to be of the same effect. As with section 17 of the Trade Disputes Act, it will be difficult to embark on a legal strike, since the provisions for arbitration under section 17 of the Trade Disputes Act must be complied with before any strike action can take place.
3) Dispute Settlement Procedures
As already stated, the arbitration procedure is rather difficult and interminable and it must be taken to have been intended as a measure to forestall the possibility of legitimate industrial action by workers. This is rather made worse by the severity of sanctions attached to any breach of stipulated conditions. Since the law retains the compulsory and interminable arbitration procedure of section 17 of the Trade Disputes Act, it means that strike action is presumed to be prohibited in Nigeria.