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Industrial Actions, Constitutionality and the Rule of Law

In what appears like a positive response by relevant stakeholders in the contentious issue of minimum wage which, at the beginning of the year, seemed to have cast a dark shadow over the Nigerian economic outlook for 2019 and the general elections in particular, the Nigeria Labour Congress (NLC) and her affiliates, have reached a truce with the federal government of Nigeria and, for now at least, the fear of an industrial action has been put at bay.
While commending both parties for their sensitivity and the concessions that must have gone into this obviously difficult process of engagement that has yielded this positive outcome, it is important to revisit the constitutional validity of industrial actions as a means of dispute resolution or as a means of ensuring policy or other governmental response or reaction to legitimate demands of labour unions.
In our humble view, a disagreement between labour unions, or any of her affiliates, and government, whether it is in terms of improvement of conditions of service or fulfilment of commitments reached on a particular issue, is a matter that is constitutionally justifiable. In other words, it is a dispute within the contemplation of s. 6(6)(b) of the Constitution of the Federal Republic of Nigeria 1999, as amended. This is what that section says: “The judicial powers vested in accordance with the foregoing provisions of this section – shall extend, to all matters between persons, or between government or authority and to any persons in Nigeria, and to all actions and proceedings relating thereto, for the determination of any question as to the civil rights and obligations of that person”.
What this means invariably, is that the courts, and only courts, have the constitutional powers and responsibility to determine disputes between persons and between persons and government. Here, we need to point out that the labour unions are persons within the contemplation of the law and is, consequently, covered by the provision of this section of the constitution. It is important to point out additionally, even though not specifically pointed out in this section, that the resort to self-help by any person or authority, including labour unions and their affiliates is, by virtue of this section of the constitution, illegal, unlawful and obviously unconstitutional.
Against the background that has been provided by the 1999 constitution we wish to point out here that the Trade Disputes Act proceeds, on the premise and strength of s.6 aforementioned, to specifically outlaw any industrial action that is embarked upon within the realm of self help or without availing the court an opportunity to intervene in the subject matter of industrial action, and hopefully resolve same. This is what that section of the law states:
(1) “an employer shall not declare or take part in a lock-out and a worker shall not take part in a strike in connection with a trade dispute where-
(a) the procedure specified in section 4 or 6 of this Act has not been complied with in relation to the dispute
(b) a conciliator has been appointed under section 8 of this Act for the purpose of effecting a settlement  of the dispute, or
(c) the dispute has been referred for settlement to the Industrial Arbitration Panel under section 9 of this Act, or
(d) an award by an arbitration tribunal has become binding under section 13 (3) of this Act; or
(e) the dispute has subsequently been referred to the National Industrial Court under section 14 (1) or 17 of this Act; or
(f) the National Industrial Court has issued an award on the reference”
What this means invariably is that once any employer or employee, obviously including labour unions, is dissatisfied about a state of affairs, whether it is poor conditions of service requiring improvement, modification or alteration, an industrial action is the last thing in the chain of reaction, and it may be embarked upon only after an elaborate procedure has been complied with, including the involvement of the Industrial Arbitration Panel and the National Industrial Court. Clearly, none of the strike actions that have been embarked upon recently, including the one that has just been averted at the last minute, has fulfilled this elaborate procedure laid down by s.18 of the Trade Disputes Act.
It is perhaps important to point out here, perhaps for the avoidance of any doubt whatsoever, firstly, that self-help has no place under any constitutional order that operates a system of rule of law, and secondly, that there is no doubt about what self-help is, since the supreme court has as far back as 1986 determined what this is in the case of MILITARY GOVERNOR OF LAGOS STATE vs. OJUKWU & ANOR. (1986) 1 NSCC 304 where His Lordship Justice Obaseki, JSC, as he then was, made reference to that same expression and used it to describe the now well-known reprehensible conduct of the then government of Lagos state. This is what His Lordship said: “in the area where the rule of law operates, the rule of self-help by force is abandoned. Nigeria being one of the countries in the world, even in the third world, which professes loudly to follow the rule of law, gives no room for the rule of self-help by force to operate”
We are not completely oblivious of our obligations as a sovereign state to international commitments and of course the international law principle of pacta sunt servanda, especially as it applies to our responsibility under series of International Labour Organisation (ILO) Conventions. One must however point out that, generally the position of the law is that international conventions to which we are signatory are not superior to our local legislation. Furthermore, such international conventions are applicable within the local context only in so far as the condition stipulated in section 12 of the constitution has been complied with, and we seriously doubt if these ILO Conventions have complied with the said section of the Constitution.
We like to conclude by stating emphatically that the time has come when we need to seriously rethink the use of industrial action as a catalytic instrument. This is particularly the case where within the last forty years, and more particularly within the last two years, there has been an upsurge in the use of industrial actions as a catalyst for action, often with devastating consequences on our fragile economy, characterised by significant loss of precious lives, loss of investor confidence and many more consequences that are beyond our capacity to recount here.
We very much look forward to a situation where government, or other aggrieved persons, will summon the courage to challenge this barefaced impunity on the part of labour unions, and provide an opportunity for the courts of the land to make a pronouncement on this issue. Indeed, we look forward to a situation where the courts will courageously wield the big stick on the labour unions for this palpable level of impunity. We look forward to a situation where justice will be done even if the heavens will fall.

 

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