NO-WORK, NO-PAY: You’ve forfeited right to salaries, Labour leaders, NECA, others tell ASUU

By Victor Ahiuma-Young

LEADERS of the Academic Staff Union of Universities, ASUU, have been complaining and protesting against the seizure of members salaries by the Federal Government since May over their ongoing industrial unrest that has shut the nation’s university system for close to seven months.

But ASUU’s outburst over the withheld salaries, is seen as out of place by the Director -General, DG, Nigeria Employers’ Consultative Association, NECA, Wale-Smatt Oyerinde, some Labour leaders and the DG/Chief Executive Officer, CEO, of Michael Imoudu National Institute of Labour Studies, MINILS, Issa Aremu.

Reacting, they insisted that the action of the government is in line with the extant laws, contending that ASUU’s complaint is like eating your cake and wanting to have it.

NECA
Speaking on “NO WORK NO PAY PRINCIPLE AND PRACTICE”, NECA’s DG, said “It should be noted that fundamentally, pay or wage is premised on work done, except if such payments are grants, loans or other payments done discretionally. It is the position of the law, practice, right and responsibilities of Employers to provide work for its employees/workers. The work should be done by the employees in exchange for renumeration as per the terms and conditions of employment.

“Internationally, strikes are recognized as almost sacred, inalienable rights of workers as enshrined in the International Labour Organisation Conventions 87 and 151. There is, however, nothing in the Conventions though that suggests that workers be paid for work they did not provide themselves for. It unequivocally supports Trade Unions organizing activities in furtherance and defense of the rights of the workers. Many would, therefore, assume that as long as workers are on strike, justifiably so, they are protected from any consequential action. This assumption is not true and could be misleading.

“Section one to four of the Labour Act made provisions for the payment and protection of the wages of employees in Nigeria. An employer is liable to pay salaries for work done at the agreed period. Section seven of the Labour Act requires an employer to inform his employee the exact amount he is entitled to as wages.

Therefore, an employee during the period of his employment is entitled to his wages, bonuses and other entitlements for the work done and as agreed by the parties. The principle of natural justice and equity implies that “a worker deserves his wages.” But the fact remains that, Section 43 of the Trade Disputes Act which, although, recognises the right of a worker to disengage from service where there is a breakdown in negotiation with his employer, also provides a corresponding right to the employer to withhold the employee’s wages for the said period. Judgements at the National Industrial Court also affirmed the principle of No-work-no pay.

“As the economy and business environment becomes more challenging, it has become imperative for actors in the Industrial Relations space to operate within the contexts provided by relevant laws and international Conventions. Adherence to the provisions will substantially reduce the incidence of strikes or other work disruptions, whether legally or illegally.

Corporate wealth and employee welfare can only be guaranteed in an atmosphere that is peaceful and devoid of work disruptions. Once work is disrupted in any form, it compromises the employer’s ability to generate revenue to pay wages and naturally calls into questions the employees’ demand for wages for work not done. Provisions of the Trade Disputes Act mandate parties in dispute to follow through with both the voluntary and compulsory dispute resolution mechanisms, which includes, seeking redress at the Court.”

MINILS
Similarly, a former Vice President of Nigeria Labour Congress, NLC, and the DG/CEO of MINILS, Issa Aremu, said “Of course the Labour law is clear: no work no pay. Last year President Buhari commendably gave waiver to health sector workers after protracted strikes in 2021 and ordered the payments of striking resident doctors. But ASUU months long strike has unfortunately reopened the no work no pay debate.

“All parties should embrace collective bargaining and avoid the pitfalls of no work no pay debacle . Strikes are not warfares. We should not weaponize industrial disputes. Once the parties are talking and committed to negotiation there should be cessation of hostility.

ASUU should suspend the strike that has proved too addictive and unhelpful to education sector while the government should pay the lecturers for work done. Most issues in ASUU are not about dispute of rights but dispute of interests such as new payment system which in the first instance should not have led to this unnecessary Industrial war fare. When strikes become the issues not the ISSUES strike has lost its relevance for the working people! This development calls for constant capacity building for all stakeholders in industrial relations. MINILS is planning a national conversation soon on “Rethinking Collective Bargaining Process and Strikes”

Labour leaders
Some Labour leaders who commented on the issue, warned that ASUU has taken the strike too far.

One of them who spoke on condition of anonymity, said “Trade Unions derives their powers from the extant laws that set them up in the first place . The ‘No work no pay’ clause is part of the extant laws and it is even inserted in most of our Collective Bargaining Agreements, CBAs, for emphasis sake.

“What most unions do is to appeal to management after an action to overlook this clause for relationship sake. The way ASUU is going about this particular clause is not correct as they are deceiving the gullible public and claiming it as a right.

“Furthermore, check off dues from members are supposed to take care of members during an action when salaries are frozen.”

In the same vein, another Labour leader, among others, said “The right to strike or withdraw services by a worker is a fundamental human right guaranteed by the Constitution of the Federal Republic of Nigeria 1999 (as amended) and the Trade Disputes Act, TDA. Section 42(1)(a) provides: 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; and with these clear provisions of the law, it is expected that trade unions that wish to go on strike to press home their demands for better or improved welfare must take into cognisance this aspect of the law and therefore prepare the minds of their members about the possibility of casualty in the course they are about to embark on. That is why a sort of “strike fund” is advocated for times like this.

“The National Industrial Court of Nigeria (NICN) – the Court granted exclusive jurisdiction in civil causes and matters relating to or connected with any labour, employment, trade unions, industrial relations and matters arising from the workplace, the conditions of service, etc by the Constitution has taken a stand on this matter.

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Justice Babatunde Adejumo, President of the National Industrial Court of Nigeria (NICN), in the case of SSANU v. Federal Government of Nigeria (2008) stated thus: Section 42(1)(a) of the TDA is self-executory. Its implementation, without more, does not depend on a further enquiry in the manner that the appellant canvasses. A strike, whether legal or not, falls squarely within the ambit of the said section and for which the strikers are disentitled from wages and other benefits envisaged by the section.

“This statement of principle accords with the International Labour Organisation (ILO) jurisprudence on the matter where at para. 588 of the Freedom of Association: Digest of decisions and principles of the Freedom of Association Committee of the Governing Body of the ILO, Fourth (revised) edition, Geneva, the norm is that ‘salary deductions for days of strike give rise to no objection from the point of view of freedom of association principles.”

According to the Labour leader, “Without trying to be insensitive based on my constituency, it is for the reasons above that the call by ASUU that the Federal Government should not impose the no-work-no-pay rule following the over six (6) months of strike which has left many students and parents frustrated, is unjust and wicked.

“Without taking away the rights of ASUU members to go on strike, the right of the Federal Government to also withhold remuneration should not be thrown away. The quote by Justice Oliver Wendell Holmes, Jr. comes into mind here.

“The choice, of whether or not, to enforce the no-work-no-pay rule is solely at the discretion of the employer who had suffered work stoppage. If it now becomes a right of workers to demand such, we should not be surprised if one day, employers decide to lock out workers and refuse to pay them even though the workers showed up for work.”

Aborisade
However, an activist, Femi Aborisade, while acknowledging the policy of no work, no pay, said “The law on no work no pay says that workers who go on strike and are not working as contractually agreed are not entitled to be paid agreed remuneration. But this is only a one-sided interpretation of the law. The law recognises strike action under certain conditions, particularly, strikes related to dispute of right or strikes caused by violation of collective agreements. Therefore, where workers are compelled to strike on account of non-observance of collective agreements, they would be justified to go on strike and be entitled to their pay. The law does not tolerate slavish conditions of work.

“In the final analysis, it is always balance of forces that determines whether striking workers are paid or not. Payment or non payment of salaries to striking workers is not determined by fine points of law but by the iron resolve and unity of the striking force, backed up by the overwhelming public opinion, which could lead to the political party in power being penalized by rejection at the polls.

“It is precisely for this reason that the Federal Government has never successfully enforced “no work no pay” against ASUU members. On each occasion, the “no victimisation” clause is always included in the agreement preceding strike call off, where the strikers are determined, and they enjoy overwhelming public support.”