The position of the law on the NO WORK NO PAY RULE.
Ordinarily, the question in the title should not be necessary if not for the incessant, traditional and almost permanent strikes by the academic staff union of universities (ASUU). This obnoxious unending strike has made it pertinent to look at the position of the law on not only the payment of salary arrears but also on promotion/continuous employment during strikes.
Indeed, ASUU has succeeded in making strikes a permanent feature of the university system with alarming devastating effect on quality of education and the future of our dear country Nigeria.
The earlier a permanent solution to ASUU strikes is identified and applied, the better for both the present and future of Nigeria.
It should be recalled that ASUU is now in its sixth month on strike since February 2022 (and counting) just as the federal government has stopped the payment of salary to the striking university teachers .
It is not a palatable commentary that ASUU has embarked on strikes and boycotted classrooms for a total of almost 4 years since 1999 as a means to press for better conditions of service which are never met in most cases.
ASUU has embarked on strikes 9 TIMES In the last 13 years.
In the last 6 years, ASUU has used 1 in every 4 days for strikes. Since the latest Democratic dispensation beginning in 1999, ASUU has gone on strikes 16 times totalling a number of 1,476 days as at today (August 25 2022) and counting. As I write, our dear ASUU is on strikes which it commenced on Valentine’s Day 14 February 2022.
Many Nigerians do not believe that ASUU is fighting for the so-called ‘upgrade of universities’ or university autonomy but for upgrade of salary and allowances.
As a university lecturer and parent myself, I feel pained by the continuous ASUU strikes which the otherwise respected union has deployed as a weapon of choice to cajole or even intimidate the federal government into increasing their salaries and allowances. ASUU strikes seem to have no bounds.
All through these strikes, no appreciable university upgrade/autonomy has been achieved just as well as inflation continues to make unworthy, any salary increments recorded during the period. In all of these, innocent university students remain at the receiving end and continue to bear the brunt. These children are mostly from poor homes already stretched by the harsh economic realities of today. The children of those who sit on the table to ‘negotiate’ with ASUU on behalf of the federal government remain abroad, studying in the best universities in the U.K, U.S and other foreign universities. More disturbing is the fact that these government officials who normally use tax payers funds to sponsor their children to study and live abroad, usually send pictures of graduation ceremonies of their children to Nigerians while ASUU is on strike! They fly back to Nigeria and sit on the table to negotiate with ASUU on our behalf. Haba!
WHAT THE LAW SAYS ON NO WORK NO PAY RULE.
If the strike was a one-off, short term measure, it would have been of no essence to go into the debate of salary arrears. Now that ASUU has made strikes a tradition, it is better to look at what the law says regarding the ‘NO WORK NO PAY RULE.
The trade union act 2005 has reenforced the NO WORK NO PAY rule in section 42(1) (a). This relevant section is clear, explicit and unambiguous that a striking worker is NOT entitled to pay during the period of strikes.
The relevant section 42(1)(a) of the TUA 2005 reads:
‘Where any worker takes part in a strike, he shall not be entitled to any wage or other remunerations 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 the continuity of employment’
This relevant section of the act which is often referred to as the NO WORK NO PAY RULE, has also made it very clear that the period of strikes should automatically be deducted from the service years of the ‘striker’ which implies that during the cessation of work, qualification for promotion to the next level should be discountenanced and deductions for the period of promotion from the years of service or continuous employment should apply.
BREACHES OF CONTRACT
In fact, strikes are breaches of contract of employment which could lead to the termination of the contract and this has been echoed in several jurisdictions including Morgan v. Fry (1968) 2 Q.B. 710 where the learned judge Denning describes strikes as a notice for the cessation of the contract. In other words, the striker has given notice that he/she is no longer interested in the contract. You can’t give a notice for the cessation of the contract on one hand and turn back to ask for salary arrears on the other.
SUPREME COURT RULING & UNIVERSITY OF ILORIN LECTURERS
The Supreme Court has interpreted strikes as akin to withdrawal of services in Anene v. J. Allen & Co. Ltd (1975) 5 UILR 404 and ruled that the appellant cannot claim salary arrears after abandoning his contract of employment during the period of strike.
In Abdulraheem & Ors. v. Olufeagba & Ors. (2006) 17 NWLR (Pt. 1008) 280, the learned justice ruled that the striking university of Ilorih lecturers were not entitled to any salary arrears or allowances during the period of strike. In the suit, Justice Abdullahi of the court of appeal said “It is my considered view that in the light of the unambiguous provisions of the law stated supra, the award of the salaries and allowances to the respondents by the trial judge is not only illegal but also inequitable”
The NO WORK NO PAY rule has been applied in the private sector as well as in the public sector. In the case of Federated Motor Industries v. Automobile, Boatyard, Transport Equipment and Allied Workers’ Union (2008) 11 NLLR (Pt. 29) 196, the National Industrial Court ruled that striking workers are not entitled to salary arrears ‘The Tribunal finds evidence of the stoppage of work from 8th February by the workers and according award in accordance with the principle of “No work no pay” that all workers who took part in the said stoppage shall lose their wages for the period concerned.”
DOUBLE STANDARDS AND THE COPY CAT SYNDROME
Clearly, the selected jurisdictions in this article lend credence to the fact that a worker is not entitled to salary arrears while on strike. Indeed paying ASUU members any salary arrears will amount to double standards and potentially encourage other unions to do a copy cat and adopt strikes as a weapon of choice at the slightest opportunity. This can be attested to by the fact that whenever ASUU goes on strikes, other sister unions in the universities such as NASU, SSANU also declare their own version of strikes . The polytechnic unions ASUP and NASUP also follow suit. Unions in the colleges of education COEASU and NASUEAI usually follow the ASUU-way anytime the opportunity presents itself.
If workers in the federal, state and local governments civil services are threatened with sack if they dare go on strike, why should ASUU be paid huge amount of money as salary arrears after enjoying their time-off during strikes?
THE CHRONOLOGY OF ASUU STRIKES.
The following time line provides an insight into the itinerary of strikes by ASUU:
1999 – 90 days strike
2000- 90 days
2003 – 180 days
2007 – 90 days
2009 – 180 days
2010 – 180 days
2011 – 180 days
2013 – 165 days
2018 – 94 days
2020 – 275 days
2022 – 187 days (and counting).
THE NEED FOR ASUU TO PROVIDE BENCHMARKS FOR THE PURPORTED ‘UNIVERSITY UPGRADE,
The union lately included ‘upgrade of the university infrastructure’ as one of the reasons for its strikes but the people of Nigeria seen not to be convinced. This is because to date, ASUU has not issued any BENCHMARKS for upgrade of universities. If indeed the purported upgrade of universities is to be justified as a reason for the strikes, ASUU should give the irreducible minimums of the following in Nigerian universities:
– The minimum equipment and instruments in science laboratories
– The minimum ICT equipment in libraries
– The minimum equipment in lecture theatres such as visual aids and audios
– How ASUU wants students hostels/toilets to look like
– The minimum megawatts of electricity in every university campus
– How water supply in campuses should be
– The minimum number of seats for every classroom/theatre sizes
– Curent and Updated international journal papers required in university libraries and research collaboration.
– Any other relevant criteria that will aid learning and research
PRIVATISATION OF NIGERIAN UNIVERSITIES: HOW FEASIBLE?
The economic realities of today in Nigeria do not support the privatisation of universities. In fact, it is doubtful if public universities can stand if they are left to survive on their own. The disposable income of most parents in Nigeria will not be sufficient – not even close- to enable them sponsor their children to universities if public universities are to be privatised.
However, the federal government can do a ‘test run’ of privatising public universities by selecting ONE public university and privatising it. Let’s see how that will fan out before the government takes a final decision on privatisation of public universities.
THE FINAL SOLUTION TO ASUU STRIKES
The final solution to these incessant strikes is to apply the SACK AND REAPPLY model by DISENGAGING all striking university lecturers and giving them a new condition of service which inter alia, prohibits strikes. Any lecturer interested in the new condition of service can put pen to paper or look elsewhere.
