8th July, 2015
The right to strike is also recognized by the ILO. The right to strike, though not expressly recognized or provided for in any of the numerous ILO Conventions and Recommendations, is provided for in two of the resolutions of the International Labour Conference. The first is the “Resolution concerning the Abolition of Anti-Trade Union Legislation in the States Members of the International Labour Organization”. This resolution called for the adoption of “laws…to ensure the effective and unrestricted exercise of trade union rights, including the right to strike by workers”.
The second is the“Resolution Concerning Trade Union Rights and their Relation to Civil Liberties”, which called for action in a number of ways “with a view to considering further measures to ensure full and universal respect for trade union rights in their broadest sense”, particularly the right to strike. The ILO acknowledges the existence of workers’ rights to industrial action.
This can be seen from the decisions of the ILO Supervisory bodies, especially those of the Committee on the Freedom of Association (CFA) and the Committee of Experts on the Application of Conventions and Recommendations (CEACR). The Committee on Freedom of Association has ruled that strikes are part and parcel of trade union activities.The ILO Supervisory bodies have always referred to the right to strike when they have considered applications of Articles 3 and 8 of the Freedom of Association and Protection of the Right to Organize Convention 1948 (No. 87) by the various member states.
Other pointers to the protection of the right to strike are the ILO guarantees extended to workers against acts of discrimination based on their trade union activities. These provisions undoubtedly confirm that the ILO recognizes the right to strike as a legitimate trade union activity.However, the ILO does not regard the right to strike as an absolute right and has created some exceptions. Outside these exceptions, a general prohibition or restriction of the right to strike is contrary to international labour law. There are three clear exceptions.
The first concerns the right of members of the police and armed forces to strike. The ILO accepts that the members of the police and armed forces can be denied the right to strike. They are thus excluded from the ambit of conventions No. 87 from which the right derives. The second exception is that certain employees in the public service may be prohibited or restricted from exercising the right to strike provided this only covers those public servants ‘exercising authority in the name of the state.’ The third exception relates to employees in ‘essential services’, which are restrictively defined as services ‘whose interruption would endanger the life, personal safety or health of the whole or part of the population’.
By comparison, the legal framework ofthe right to strike varies from one jurisdiction to another. In some jurisdictions, the right is enacted positively in the constitution as a fundamental right or enacted as a guaranteed right in labourlegislation, while in other jurisdictions, there is no explicit right to strike guaranteed as such. Instead, there are only immunities given to workers for engaging in industrial action.
Whilst the right is guaranteed in the United States’ law, by virtue of the National Labour Relations Act, 1935 (popularly called “the Wagner Act”); there is no positive right to participate in industrial action in the UK. However, the law does provide certain immunities from liability at common law for the civil wrong of ‘torts’ most frequently committed in the course of taking industrial action. The availability of these immunities is subject to a number of restrictions and mandatory rules, which are contained in the Trade Unions and Labour Relations (Consolidations) Act 1992. The right to strike exists in France,inits 1946 Constitution. In Germany, the right to strike is legalized and guaranteed under the Basic Law (i.e. Germany’s Constitution).
The right to strike is also recognized and protected in the constitutions of several other jurisdictions such as the Russian Federation, South Africa, Spain, etc.In summary, there seems to be almost a universal constitutional recognition of the right to strike and a global consensus on the importance of the right to strike in a democratic society.
PENAL SANCTIONS FOR STRIKES
The essence of a right to strike is that those exercising the right are protected against any prejudice or detriment as a result of embarking on a strike action. This is not the case under Nigerian law. Section 17(1) of the Trade Disputes Act (Cap. 432, Laws of the Federation of Nigeria, 1990) prevents workers from going on strike, and employers from imposing lock-outs. It is a criminal offence to embark on a strike or lock-out in contravention of the aforesaid section. Apart from being subjected to penal sanctions, striking workers in Nigeria are also liable to be dismissed from employment as a consequence of the common law position that is still applicable (an employee has the right to hire and fire at will and one cannot force a willing employee upon an unwilling employer). Besides, there is no guarantee of continuity in employment, and no salary or wages for the duration of strikes.
Has the ban on strikes been effective? The question may be asked at this stage as to how effective and realistic are the laws banning strikes in Nigeria. The penal sanctions attached to strikes and lock-outs were apparently introduced by government to deter workers and employers from embarking on strikes and lock-outs. But several years after the promulgation of all the aforementioned laws prohibiting strikes, strikes have continued unabated in Nigeria as trade unions and workers have continued to ignore the provisions. Rather than succeeding in stopping strikes, there has been an upsurge in strikes or at least the threat of strikes in one form or another. As such, the various penalties set out in the various laws have not been effective as evidence shows that strikes have continued unabated both in the public and private sectors, as well as essential and non-essential services of the economy, despite the ban. In fact, in recent times, these strikes seem to be at an all-time high in the health, education, and petroleum sectors.
The current stand of the law must be condemned whatever the intention of the government might be. Though workers still embark on strikes, it
must be noted that the right to strike is a legal and not a sociological concept, and where strikes are forbidden as in our present situation, there is no such right, however frequently they may occur. Criminal sanctions certainly cannot solve the magic of foreclosing strikes by workers when they are determined to do so all costs. A similar view was taken by the Committee of Experts of the ILO, which observed that:
“…the existence of heavy sanctions for strike action may well create more problems than they resolve… The application of penal sanctions does not favour the development of harmonious and stable industrial relations…”
CONCLUSION
The right to strike is a very important weapon in the armoury of organized labour in any democratic society. The function of a right to strike is to enhance justice in the workplace and society, and to protect the legitimate rights and interests of the workers.The right to strike may thus be regulated by law but not curbed, and still less destroyed as Nigerian law has sought to do. As Kahn-Freud noted in his book “Labour and the Law (London: Steven and Sons, 1972, p. 234):
“No country I know of suppresses the freedom to strike in peace time except dictatorships and countries practicing racial discrimination… A legal system which suppresses the freedom to strike plus the workers at the mercy of the employers”.
Nigeria has ratified the entire core ILO Conventions, particularly Nos. 87 and 98, and is a signatory to the International Covenant of Economic, Social and Cultural Rights and is therefore bound by Article 2(1) to provide for the positive right to strike as enshrined in Article 8(1) (d), through legislative measures or by other appropriate means. Note that Nigeria has to file a report on its observance of the provisions of the Conventions every five years. Government must adjust its approach to industrial disputes in Nigeria, and trade unions must also be ready to compromise when bargaining.
After all, the ultimate desire of both parties should be a win-win situation and a peaceful resolution of disputes. I daresay he that comes to equity must not only come with clean hands, he must come with an open heart.
•Concluded