The Legal Framework Regarding Strikes In Nigeria

By Femi Bamisile

INTRODUCTION

One of the bedrocks of modern industrial and democratic society is the right to strike. No society can be truly democratic where the right to strike is absent. The right to strike has been described by a writer,L. MacFarlane, as “an indispensable component of a democratic society and fundamental human right” (The Right to Strike; London: Penguin Books, 1981, p.12). The right to strike is an essentialtool of trade unions all over the world for the defence and promotion of the rights and interests of their members, and is a necessary counter-veiling force to the power of capital. Kahn-Freund said “there can be no equilibrium in industrial relations without a right to strike – (P.Davies and M. Freedland, “Kahn-Freund Labour and the Law”). The need for stability is very crucial in order to promote collective bargaining which helps to achieve social justice in the workplace. The right to strike is thus so important to the functioning of a democratic society that its removal would be unjustified.

What is a Strike Action?

There are so many definitions of “Strike”. For example, Otto Kahn-Freund (Labour and the Law (London: Stevens and Sons, 1983),p.291) defines strike as “a concerted stoppage of work”. Lord Denning, in a decided case – Tram Shipping Corporation V. Greenwich Marine Incorp. (1975) ALL E.R. 898, p.990; (1975) ICR 261, p. 276, stated that a strike is:

“A concerted stoppage of work by men, done with a view to improving their wages or conditions of employment, or giving vent to a grievance or making a protest about something or sympathizing with other workmen in such endeavour. It is distinct from stoppage brought by an external event such as a bomb scare or by apprehension of danger”.

Broadly speaking, a strike is a deliberate stoppage of work by workers in order to put pressure on their employer(s) to accede to their demands. Under Nigerian Law, Section 47 of Trade Disputes Act (Chapter 432 Laws of the Federation of Nigeria 1990) defines a strike as follows:

“The cessation of work by a body of persons employed acting in combination, or a concerted refusal under a common understanding of any number of persons employed to continue to work for an employer in consequence of a dispute, done as a means of compelling their employer or any persons or body of persons employed, to accept or not to accept terms of employment and physical conditions of work; and in this definition –

a) “Cessation of work” includes deliberately working at less than usual speed or with less than usual efficiency; and

b) “refusal to continue to work” includes a refusal to work at usual speed or with usual efficiency.

Key Issues to Consider in the Definition of Strike

There are three key issues which clearly bring out the meaning and essence of a strike from the afore-stated definition. They are as follows:

1) There must be a cessation of work.

2) The cessation of work must be as a result of a concerted effort brought about by a combination of persons.

3) The purpose of the cessation must be in connection with a dispute involving the terms of employment and physical conditions of work with a common purpose by workers to withdraw their labour.

THE RIGHT TO STRIKE IN NIGERIA

There is no constitutional right to strike in Nigeria as there is in some other jurisdictions (as shall soon be discussed) such as the French, Russian, Italian and other national constitutions where this right is clearly and explicitly provided for in the constitution.

The right to strike in Nigeria, as in the UK, stems from the immunities granted to workers and trade unions against civil and criminal liabilities for engaging in industrial action. Sections 23 and 43 of the Trade Unions Act (Chapter 437, Laws of the Federation of Nigeria 1990) give legal immunity to workers both in their personal capacities and as trade unions for acts done in contemplation or furtherance of a trade dispute. Before 1968, it was generally assumed that there was a right to strike in Nigeria. The common law position was applicable in Nigeria.

The position was to the effect that, in Britain, trade unions and workers were protected from criminal and civil liabilities attendant upon strike actions. This became part of our legal system in Nigeria, but in 1968 and for the first time in Nigeria’s labour relations history, the government made a conscious attempt to curb the hitherto presumed right to strike. The government placed an outright ban on strikes by promulgating the Trade Disputes (Emergency Provisions) Act No. 21 of 1968.

The following year, the government reinforced the earlier Act by promulgating the Trade Disputes (emergency Provisions) (Amendment No. 2) Act No. 53 of 1969, as a result of the unbridled wave of strikes after the first Act. These laws were enacted in the wake of the Nigerian Civil War, which lasted from 1967 to 1970, and were thought to be justified, apparently to sustain production of goods and services and to ensure industrial peace to reinforce the war effort.

…to Be Continued