…validated no work, no pay.

The Hon. President of the National Industrial Court, Hon. Justice Benedict Kanyip, PhD, OFR has declared that the Federal Government and Federal Ministry of Education are legally permitted, not just by the Trade Dispute Act, but by ILO Convention and its accompanying ILO jurisprudence, to withhold, and so not pay the salaries of members of the Academic Staff Union of Universities (ASUU) who partook in the strike that commenced on 14 February 2022 up to the date it was called off.

The Court further declared that the Federal Government and Federal Ministry of Education acted in error to impose IPPIS on ASUU, that the issue of which payment platform is to be used in paying the salaries or wages of staff of the Universities is one that is within the discretion of the individual Councils of the Universities in line with the autonomy granted them by the Universities Act 2003.

Justice Kanyip ruled that by the Universities Act 2003, a University is no longer bound by establishment circulars that are inconsistent with the enabling statutes and laws of the University, and the directive of the Federal Government and Federal Ministry of Education that Universities should fall within the dragnet of IPPIS as the platform for paying their staff salaries cannot be said to be in consonance with the Universities autonomy.

From facts, the Honourable Minister of Labour and Employment had submitted that having regard to the provision of the memorandum of action dated 23 December 2020 reached at the conciliation meeting between the representatives of the Federal Government of Nigeria and the leadership of ASUU held on 22 December 2020 at the instance of the Minister of Labour and Employment, and asked whether the continued indefinite strike by ASUU is fair and equitable considering the extent of the fulfilment by the Federal Government of Nigeria of the demands by ASUU.

They prayed amongst others for a declaration that having regard to the provisions of Sections 4, 5, 6, 8 and 18(1) of the Trade Disputes Act, Cap T8, Laws of the Federation of Nigeria, the ongoing prolonged and indefinite strike by the Academic Staff Union of Universities (ASUU) which started since 14 February 2022 is illegal after statutory apprehension by the Minister of Labour and Employment.

They averred that embarking on a roll-over strike and indefinite strike when the trade dispute had been statutorily apprehended by the Minister of Labour and Employment, a conciliator/ conciliation process set in motion in breach of the TDA is unlawful.

In opposition to the suit, the defendant- the Academic Staff Union of Universities (ASUU) filed a preliminary objection challenging the competence of the referral itself. In a considered ruling delivered on 28 March 2023, the Court held that the Minister of Labour and Employment appropriately referred the matter to the Court, and so the referral is competent and the Court has the jurisdiction to hear and determine it.

However, ASUU did not file any other defence process within the time allowed by the Court, and the application by the defendant for leave to extend the time was rejected by the Court since copies of the defence processes were not exhibited alongside the application for extension of time, and the court refused the defendant oral application to use its counter-affidavit to the motion of interlocutory orders as a defence for lacking merit.

The claimants’ learned counsel argued that the Federal Government will be in breach of the clear provisions of the law to pay wages or other remuneration to the academic workers of Universities in Nigeria who took part in the strike for the period of the strike beginning from 14 February 2022 to the day the strike ceased.

Counsel opined that it will accord with the law that the period from 14 February 2022 until the day the strike ceased shall not count for the purpose of reckoning the period of continuous employment and all rights dependent on continuity of employment are prejudicially affected accordingly.

In addition, counsel averred that aside from the discrimination of other workers that the ASUU-UTAS would introduce in Nigeria, the payment software failed the transparency, vulnerability and stress test by the appropriate agency of government, the National Information Technology Development Agency, that it will promote inefficiency and discrimination in the public service of Nigeria to adopt such a system.

Counsel submitted that it will be unfair and inequitable to continue to shut out innocent Nigerians from university education by the prolonged strike action of ASUU, and where the rights of innocent persons who are not parties to a dispute are grossly affected by the subject of the dispute between parties, the court ought in its equitable and inherent jurisdiction to hear in favour of the course that protects the rights of innocent third parties.

Delivering judgment after careful consideration of the processes and submissions before the Court, the Hon. President of the Court, Hon. Justice Benedict Kanyip held that it was on the basis that once any of the dispute resolution processes of the TDA is activated no employer shall take part in a lockout and no worker shall take part in a strike in connection with the trade dispute in issue that the court restrained ASUU and its members from continuing with the indefinite strike it embarked on, and the determination of the question whether there has been a lockout, is a question for the court to determine, not for the Executive arm of government.

The Court ruled that section 43(2) of the TDA is unconstitutional, null and void for falling foul of section 6 of the 1999 Constitution, which places judicial power in the Judiciary, and not the Executive arm of government, which is what the Minister responsible for labour represents.

On payment of wages during the strike, Justice Kanyip ruled that the Federal Government and Federal Ministry of Education are legally permitted, not just by section 43(1)(a) of the TDA, but by International Labour Organisation (ILO) Convention and its accompanying ILO jurisprudence, to withhold, and so not pay, the salaries of members of ASUU who partook in the strike that commenced on 14 February 2022 and was called off merely upon the order of the Court of Appeal.

However, the Court ruled that an agreement between an employer and strikers to pay wages or salaries for the period of strike action is legal as the agreement acquires a life of its own, and section 43(1)(a) of the TDA cannot be called to use in such a case.

Justice Kanyip refused and dismissed the submission and prayer of the claimants that the period from 14 February 2022 until the day the strike ceased shall not count for the purpose of reckoning the period of continuous employment for lacking merit.

On whether ASUU can go on strike over the kind of platform used to pay its members their salaries, the Court held that the proof of the failure of UTAS of the technical integrity, vulnerability and stress test made by NITDA was not exhibited, and the argument of the FG that to adopt UTAS will promote inefficiency and discrimination in the public service of Nigeria has not been shown by any evidence.

Justice Kanyip ruled that by the Universities Act 2003, a University is no longer bound by establishment circulars that are inconsistent with the enabling statutes and laws of the University, and the directive of the Federal Government and Federal Ministry of Education that Universities should fall within the dragnet of IPPIS as the platform for paying their staff salaries cannot be said to be in consonance with the Universities autonomy.

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