The right to strike is one of the most cherished possessions of trade unions and they regard it as their powerful weapon and safeguard against low wages or poor working conditions which employers may seek to impose on them. A ready example of a strike action can be seen in the recent playout between the Academic Staff Union of Universities (ASUU) and the Federal Government of Nigeria. On Friday, October 14, 2022, ASUU announced the suspension of its eight-month strike. The strike, which commenced on Monday, February 14, 2022, led to a suspension of academic activities in both Federal and State Universities across the nation. The Federal Government had maintained its position that it will not make any payment of salaries to union members for the period marked by the strike action.
It is the position of the law and practice, as well as the duty and responsibility of an employer to provide work for his employees/workers. The work should be done by the employees in exchange for renumeration as per the terms and conditions of employment. What then happens, when employees by virtue of a strike action are unable to perform their duties?
This article analyses the legal consequences of strike actions on the entitlements to pay from employers to employees and the remedies available to all parties involved where in dispute.
POSITION OF THE LAW
It is a general position that a worker must be paid his wages in the manner agreed. Convention 95 on the Protection of Wages Convention, 19491, a ratified International Labor Convention, provides thus, in Article 3:
“Wages payable in money shall be paid only in legal tender, and payment in the form of promissory notes, vouchers or coupons, or in any other form alleged to represent legal tender, shall be prohibited”
On the other hand, the Trade Disputes Act2 which deals with labor disputes between employers and employees provides in Section 43(1)(a) that:
Notwithstanding anything contained in this Act or in any other law- (a) 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; accordingly,
There appears to be clarity on the entitlements of an employee and the obligations of an employer in the circumstances mentioned above. While the duty of an employer could be suspended during the period of strike embarked upon by the employee, it should be noted that the law does not necessarily prohibit an employer to pay such employee upon their absence from work. The law simply removes any compulsion on an employer to renumerate employees during periods of strike. In SSANU v. Federal Government of Nigeria3 the presiding judge of the National Industrial Court held that: “…It is in this light and given the self-executory nature of the said section 42(1)(a) (now section 43(1)(a)) that it is perfectly lawful for an employer to choose to dispense with the 'no work no pay' rule. In other words, strike pay is lawful if an employer chooses to pay same and not to penalize the strikers in any other way for the strike”.
The principle of ‘no work no pay' has been interpreted by the Judiciary in a myriad of labor cases. In the case of Abdulraheem v. Olufeagba4, the 1st - 44th respondents, who were engaged as lecturers at the University of Ilorin, brought an action against the appellants for wrongful termination of their employment. It was established that the respondents went on strike over their salary structure and subsequently unilaterally disengaged from their duties, whilst other members complied with the University's directives and signed the attendance registers, the Respondents neither signed the registers nor went back to work. This state of affairs continued until their appointments were terminated. The Court held whilst interpreting the provision of Section 43(1)(a) of the Trade Dispute Act, that the award by the trial court of salaries and allowances in favor of the respondents was not only illegal but also inequitable. The Appellants (as employers) were not obligated to make payment of salaries and allowances for the period of strike embarked upon by the Respondents.
The provision of Section 43 (1) makes another critical provision in relation to the “no work, no pay” rule. In paragraph B of subsection 1:
where any employer locks out his workers, the workers shall be entitled to wages and any other applicable remuneration for the period of lock-out and the period of the lock-out shall not prejudicially affect any rights of the workers being rights dependent on the continuity of period of employment.
Again, the law has provided clarity on the entitlements of an employee and the obligations of an employer in a situation where workers are unable to perform their part of the employment contract due to an action of the employer. The obligation of an employer remains unchanged where the circumstances fall within the provisions of Section 43(1)(b).
The doctrine of ‘no work, no pay' is a simple philosophy, and one backed by equity and natural justice principles. As indicated already, the concept of ‘no work, no pay' cannot exist in isolation. It is only when cessation of work or refusal of employees to work has occurred that the principle of no work, no pay can apply5.
It can be argued that the legal position of Section 43(1)(a) of the Trade Dispute Act, although bitter to one party exercising their constitutional right, lays a strong foundation to industrial peace and harmony as well as economic stability in the long run.
1. International Labor Convention
2. Trade Disputes Act Cap T8 Laws of the Federal Republic of Nigeria 2004
3. SSANU v. Federal Government of Nigeria (2008) 12 NLLR (Pt.33) P. 407
4. Abdulraheem v. Olufeagba (2006) 17 NWLR Pt. 1008 P. 332 par. E-H; P.333 par A-D
5. Hilary Ekpo, The ‘No work, No pay' Rule and Labour Relations in Nigerian Public Sector; Labour Law Review (Nigerian Journal of Labour Law & Industrial Relations) Vol. 9 No. 1
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.