by M. Abiodun
The doctrine of “no-work-no-pay” is a popular axiom in industrial relations. The philosophy is very simple. When a person is employed, it is expected that the work assigned will be carried out. When this work is not done, the employee is not eligible for payment of any salary.
However, it is worthy of note that Section 40 of the Constitution of the Federal Republic of Nigeria 1999 as amended provides that Every person shall be entitled to assemble freely and associate with other persons, and in particular, he may form or belong to any political party, trade union or any other association for the protection of his interests, and Sections 2 and 3 of the Trade Dispute Act, 2004 have clearly and unequivocally provide for freedom of Association and right to strike.
Again, the combined effect of Article 80 of the ILO Convention and Article 11 of the African Charter on Human and Peoples Rights (Ratification and Enforcement) Act is that “Every individual shall have the right to assemble freely with others and the right to strike without threat or coercion”.
It is a fact that the “No work no pay policy” has been provided for under Section 43 of the Trade Dispute Act which provides that:
Notwithstanding anything contained in this Act or in any other law-
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.
It is my humble submission that the provision of Section 43 of the Trade Dispute Act is not only satanic but unconstitutional as the phrase “notwithstanding anything contained in this Act or in any other law” has by implication ousted the provision of Section 40 of the Constitution and any law that conflicts with the provision of the Constitution which is a ground norm would suffer null and void in its entirety.
From facts, it’s no longer news that the fracas between the Federal Government and Academic Staff Union of University-ASUU has lingered for more than 6 months and the Universities have been under lock and key.
In Nigeria, the strike is like a yearly ritual embarks upon by the Academic Staff Union, one can hardly imagine a year without a strike. Some schools of thought equate the letter ‘S’ in the ASUU acronym to Strike.
Nevertheless, both parties have agreed to sheath their sword and have agreed on a workable template for returning to school, but the only area remaining unresolved is the decision of the Buhari-led administration not to pay the Academic lecturers during the period they were on strike, laying claim to section 3 of the Trade Disputes Act that provides no work no pay policy.
It’s also important to restate that this is not the first time ASUU like other Unions would be going on strike and all their entitlements would be paid; only God knows why the federal government is refusing to do the needful this time.
The ASUU on her part had maintained that they won’t return to the classroom until every member of the union received their respective alert, and this decision made them declare a total and final strike and the ripple effect on the nation is not a good one.
As a law student, one desires to question whether the position of the Federal Government on No Work, No Pay is valid and backed by any valid law in Nigeria.
In answering this question, the first question that deserves an answer is to determine if the strike embarking upon by the academic union is legal and valid; relying on the provision of section 40 of the Nigeria Constitution, one can safely conclude that the strike has the legal endorsement of the constitution and the status of strike embarks upon by employees with statutory flavor is purely different from employment that is based on master/servant relationship.
The second question is can the present strike gives birth to the application of No Work, no Pay? The answer is NO!
The reason can be based on the premise that since the strike embarked upon by the Union is legitimate and it was reported that they had several meetings with the Federal Government which affirmed the position that there exist disputes that need to be resolved between them and it seems embarking on strike would put the federal government on the negotiation table.
Furthermore, without conceding to the valid provision of the Trade Dispute Act on no work, no pay; the said provision is not a blanket one and I believe the principle of equity on forfeiture as laid down in Daniel v Daniel would apply if there is any need for its implementation.
If the Federal Government wants the ASUU to forfeit their 6 months’ salary as a result of no work, no pay; such application must be brought to the industrial court that has the exclusive jurisdiction on employer/employee disputes as stipulated in section 251 of the 1999 Constitution as amended to rule on forfeiture, and anything less than that would surely amount to beer-parlor.
Irrespective of anyone advising the President, the purported principle of ‘No work, no Pay’ will not work as the courts have held in a plethora of cases that forfeiture is not automatic and can only be done through a court order.
Again, the provision of No work, no pay has impaired the general principle of collective bargaining which systematically made the employer a judge in its own case. It’s one of the famous equitable remedies that Equity would not suffer a wrong without a remedy; suffice to say where there is no wrong, there would be no need for remedy.
The Federal Government has not suffered any wrong as a result of the strike embarked upon by the Academic Union; if it were students that were demanding no work, no pay for ASUU, it’s understandable because they have suffered unmerited wrong and equity would not allow them to suffer without providing them a remedy.
