-Voids SS. 7(1)(b)(vi) & 8(b) of the Trade Dispute Essential Services Act
-Collective agreements are no longer gentlemen agreements, but now enforceable in Court
The Presiding Judge, Enugu Judicial Division of the National Industrial Court, Hon. Justice Oluwakayode Arowosegbe has declared that teachers in Enugu State public primary schools who are members of the NUT are not in essential services, as classified by SS. 7(6)(a) and 8(2) of the TDESA and S. 48(1)(b) of the Trade Disputes Act, by virtue of S. 45(1)(a)&(b) of the Constitution and the ILO Convention and; are not bound by the provisions of the Trade Union Act that prohibit strikes in essential services.
Justice Arowosegbe held that teachers in Enugu State public primary schools, members of the NUT, are therefore free, by virtue of SS. 40&45(1)(a)&(b), 254C-(1)(f)-(h)&(2) of the Constitution and all other laws on that behalf and, particularly, the ILO Convention to exercise their labour rights, including the right to strike, through the NUT, once they comply with the issuances and services of the requisite notices.
Justice Arowosegbe held that the conducts of the Enugu State Government to the public primary school teachers in the State and the treatment meted out to them are clearly discriminatory in the extreme, unfair, and not in tune with the international best practices in labour relations, contrary to provisions of the Constitution and the ILO Convention.
The Court dismissed the case in its entirety for lacking merit and ordered parties to go back to the negotiation table in line with SS 14&20 of the National Industrial Court Act and the ILO Convention.
From facts, the claimant- Enugu State Government had deposed that the teachers are engaged in essential services and as such, prohibited from embarking on industrial actions and the Court must restrain them from embarking on strike. Enugu State Government deposed further that the government and the public who rely on their services would suffer irreparable damages if they were not restrained.
In defense, the defendant- Nigeria Union of Teachers Enugu State Wing deposed that, the reason for the threat of strike was the failure of the claimant to implement the collective agreement for the NUT State Wing since February 2020 and maintained that, they could go on strike once the issue involved dispute of right arising from collective bargaining agreements, no law prohibits those in essential services, ipso facto, teachers from proceeding on industrial actions. They deposed that the members of the public would not suffer irreparable damages by reason of the strike since, its essence was to compel the claimant to implement the collective agreement she signed and that, the strike was in good faith.
In reply, the erudite counsel to the State Government, Tochukwu Maduka SAN submitted that, whether or not the case relates to dispute of right or collective agreement, strike is totally prohibited without exception, and urged the court to grant the reliefs sought.
Delivering the judgment, the presiding Judge, Justice Oluwakayode Arowosegbe held that, collective agreements are no longer gentlemen agreements, as in the past but now, enforceable agreements, which give impetus for the right of workers to press for their implementations.
Justice Arowosegbe held that those working in the education sector of the economy in Nigeria are not in essential services and their right to strike is preserved and unrestricted and that, the unions in that sector can lawfully proceed on strikes and other forms of industrial actions, once the requisite notices are served.
The court continued that education, no doubt, is an essential service in the actual sense: for without education, it is impossible to live a meaningful life, but the adverse effects of strikes on its essentiality are not of immediacy, but futuristic, such that, industrial actions in the sector will not immediately portend danger of immediate extremity on the public order, morality and public safety or the rights and welfare of others or any of the circumstances listed in S. 45(1)(a)&(b) of the Constitution that only those services falling into those circumstances fall into essential services for the purposes of proscription of rights to industrial actions.
Justice Arowosegbe held that SS. 7(1)(b)(vi) & 8(b) of the TDESA are void to the extent of their conflict with SS. 40 and 45(1)(a)&(b) of the Constitution; and so, is S. 48(1)(b) of the TDA and Paragraph 1 of the First Schedule thereto, to the extent that, they classified public primary school teachers in Enugu State into essential services.
“With the voidance of these impinging provisions, workers in the education sector of Enugu State are not in essential services; and not being in essential services, are not prohibited by S. 31(6)(a) of the TUA and, are therefore at liberty to embark on industrial actions. And it is, therefore, not a crime for them to engage in strikes, provided all the necessary notices are served.
“When the doctrine of dispute of right was invented, collective agreement was not enforceable in Nigeria, but now that it has become enforceable, the situation cannot remain the same, particularly that, the Constitution made it enforceable. For inability to enforce them in courts, workers had had no alternative then, than to proceed on strikes to compel employers to honour their gentlemen pacts.
“Now that they are enforceable, it would appear that strikes ought no longer to be the preferred option but the courts, which have been added as additional option hitherto lacking. Since workers can now approach this Court for interpretation and application/enforcement of collective agreements, they have an option in this Court.
“Strike ought to be a last resort, but definitely, strike/industrial actions remain an option and, it may be for the unions to determine which suits them better in the peculiar circumstances of the cases. Maybe this would be an area where the distinction between essential services and non-essential services might tilt the pendulum to one option than the other, is a mute point for now.” Justice Arowosegbe ruled
