NIC ruling on FG’s no work, no pay policy: End of ASUU strikes?

The National Industrial Court (NIC) recently upheld the federal government’s ‘no work, no pay’ policy in the suit filed against the Academic Staff Union of Universities (ASUU); BENJAMIN SAMSON in this report examines the implications of the judgement on ASUU’s incessant strikes. 

In a judgement delivered by the President of the Court, Justice Benedict Kanyip, the court held that it is within the right of the federal government to withhold the salaries of workers who embark on an industrial action.

 It held that the ‘no, work no pay’ rule enforced by the federal government against members of the ASUU who went on strike last year is legal. However, the court held that it is a violation of university autonomy for the federal government to impose the Integrated Payroll and Personnel Information System (IPPIS) platform on ASUU members who reserve the right to determine how their salaries should be paid.

 The federal government had dragged ASUU before the National Industrial Court over the Union’s demand for the payment of their salaries from February 14 to October 7, 2022, when the strike was called off.

ASUU had insisted on getting the salaries for all the months they embarked on strike, but the government under the former Muhammadu Buhari-led administration refused and insisted on enforcing its “no work, no pay” policy against the lecturers.

Experts react

In a chat with this reporter, a legal practitioner, Olakunle Azeez, said the judgement “could put an end to incessant and unnecessary strikes actions by ASUU.”

He said: “The decisions could potentially re-write labour law jurisprudence in Nigeria. Strikes and strives are indeed ill winds which do neither the employers nor workers any good. Strikes by the Academic Staff Union of Universities (ASUU) have over the years disrupted not only the education sector, but disorganised the economy of Nigeria and social order in some cases.

“The employer-employee relationship is built on the concept that an employee agrees to provide his service in return for which the employer agrees to compensate the employee with money and other considerations.

“As part of this arrangement the employee surrenders some of his personal preferences and agrees to come under the direction and control of the employer during the time he is so employed.
Where an employee refuses to work, due to absence, or dispute with employer, or other situations such as lack of work, the employer has no obligation, unless specifically bound by an employment contract, to provide compensation. This is the concept of ‘no work, no pay.’  So, ASUU cannot sit at home for eight months and still receive salaries because you can’t eat your cake and have it.

“The doctrine of ‘no work, no pay’ is a fundamental axiom in labour and industrial relations. The philosophy is simply that when a person is employed, it is expected that the work assigned will be carried out. “When this is not done, the employee is not eligible for payment of any salary. It is based on the principle of equity and natural justice. It lays a strong foundation to industrial peace and harmony in the long-run.”

Consequences

Similarly, the convener of Education As A Vaccine, a civil society organisation, Ijeoma Okeke, told Blueprint Weekend that lecturers who participated in the industrial action “do not deserve to be paid for doing nothing.”

She said: “The National Industrial Court of Nigeria categorically made it clear that such lecturers should not be paid their monthly remunerations for the eight months they have been out of the four walls of the classrooms.

“Lecturers must face the consequences of keeping students at home for over eight months. This would serve as a deterrent and it would avoid unnecessary strikes.

“Politicians and wealthy Nigerians are accused of sending their children abroad for schooling and when we asked our lecturers to go back to class so that children of the common people can equally obtain the education, they refused.”

 She said further that, “The National Industrial Court must be commended for using its powers to salvage tertiary education for total collapse due to incessant strikes action by ASUU. If ASUU wants to embark on strike in the future, they will properly weigh the consequences of their action before embarking on strike. The government cannot pay them for periods they were doing nothing.

“The National Industrial Court has been conferred with exclusive jurisdiction in civil cases and matters relating to or connected with any labour, employment, trade unions, industrial relations and matters arising from workplace, the conditions of service, etc, by virtue of both Sections 7 of the National Industrial Court Act 2006 and 254C-(1) of the Constitution of the Federal Republic of Nigeria (Third Alteration) Act, 2010.

“This means that the court has the mandate to make pronouncements on the issue of ‘no work, no pay’ where the need arises and interpreting the provisions of the law in this regard.”

 Justification

However, a lecturer in the department of History and International Studies, Nasarawa State University, Keffi, Dr. Hussaini Dakingari, accused the government of attempting to criminalise strikes by aggrieved employees.

He said: The right to strike is one of the most cherished possessions of trade unions and they regard it as their most powerful weapon and safeguard against low wages or poor conditions of work which employers may seek to impose on them. It is an integral part of the right to protect and defend their economic and social interests and wellbeing, which has long been recognized both at common law and under various provisions including the Constitution of the Federal Republic of Nigeria 1999.

“Thus, the strike option has become a veritable tool in the armament of trade unions like ASUU which has been used in defence of its members. It has equally been used in furtherance of the interest of those of the larger society in defence, protection and enhancement of civil liberties in Nigeria. Any attempt to criminalise strike must be rejected by well-meaning Nigerians.

“Strike option is often the last resort after all other means of dispute resolution have failed. Where the employer fails to concede to the demands of the workers, this could lead to strike action. Normally, negotiation within the framework of collective bargaining must be conducted with a view to reaching an agreement between trade union and management. ASUU don’t just go strike for strike sake. No one is happy when our universities are under lock and key. Most times these strikes are usually as a result of failure of the government to keep its own side of the bargain. I advise ASUU to appeal the ruling.”

In his view, a professor of Public Administration at National Open University of Nigeria (NOUN), Idemudia Iyorha, noted that even though the ‘no work, no pay’ policy is a valid labour policy, applying the policy against members of the ASUU who reluctantly suspended their eight-month strike and returned to classroom on the basis of trust is immoral and a bad omen for the system.

He said although Labour law is clear and nobody is contending with ‘no work, no pay’ policy, the peculiarity of the academic environment, particularly the university system, works against such policy.

“The academic calendar and coursework cannot be skipped.  When the lecturers resumed academic activities after the strike, they started from where they stopped before the strike, finished their coursework, conducted examinations and also marked scripts. When the industrial action was called off, the public universities adjusted their calendars to ensure that the 2021/2022 academic session is not cancelled.

“Since that is the way things are done in an academic environment, implementing a ‘no work, no pay’ policy would certainly be a difficult thing, and hence, the lecturers deserve their wages in full.

“The best way out was for the government to find an administrative solution around the policy and not be unnecessarily rigid about it so that our public university system will continue to run,” he said.

He added that, “It is public knowledge that the members of the Nigerian Association of Resident Doctors (NARD) embarked on a strike that lasted two months in 2022.

“The federal government dragged the striking doctors to the National Industrial Court (NICN) which ordered the NARD to call off the strike. As soon as the strike was called off, former President Muhammadu Buhari jettisoned the ‘no work, no pay’ principle and ordered the payment of the salaries for the two months that the strike lasted.

“In the same vein, when ASUU called off its eight-month old strike in compliance with the order of the NICN and the Court of Appeal. The federal government should have paid public universities lecturers their full salary from February to October 2022.  It appears the federal government is applying selective application of the ‘no work, no pay’ principle which is discriminatory.”

Agenda

Iyorha said the only way strike could be avoided during President Bola Tinubu’s administration was if he holistically looked into the nation’s education system without bias.

“The Buhari-led government set up a scheme for negotiation in 2017, but it didn’t finish it till 2023, does that sound right? This was the reason we had a crisis with the last regime.

“Tinubu should also ensure that we have in Nigeria what other countries have that make people troop into their countries for education. He should ensure that the budgetary allocation given to other countries that are doing well in terms of education should be allocated to ensure that the system becomes functional. Sincerely, there should be a designated meeting with ASUU and negotiations; that way, we will solve all these problems. Let universities operate according to their laws,” he said.

He said further that the only way Tinubu could win the hearts of university workers was for him to release the payment of illegally withheld salaries by the former President Muhammadu Buhari government.

He called for a departure from the past; “a departure here means that within the next few days, we expect to see consummation and proactiveness on promises made, and agreements signed with the government.”

“The first thing he will do to win the hearts of all Nigerian university staffers is to release the payment of withheld salaries of both teaching and non-teaching staff that have been illegally withheld by the government because they went on a legal strike. They went on strike because there was a breakdown in the negotiation with the government, and they followed all due processes.

 “We want to see that funding in education becomes a reality because, in Nigeria, the education sector is not funded properly. We are way behind the 26 per cent UNESCO standard, so they must as a matter of urgency in the next budget meet up with the UNESCO standards.”