There is fear that strike, as a negotiation weapon in the
hands of the organised labour, may be facing the danger of being
outlawed, going by repeated court orders restraining labour unions
from going on strike, ADE ADESOMOJU
writes
In 2016, when President Muhammadu Buhari increased the pump
price of Premium Motor Spirit, popularly called petrol, from N87 to
N145 per litre, the organised labour, characteristically,
threatened to embark on strike.
Gripped by the fear of the implications of that threat if made
good, the Federal Government, through the Attorney General of the
Federation and Minister of Justice, Mr Abubakar Malami (SAN),
approached the National Industrial Court in Abuja to obtain an
order to restrain the labour union from carrying out its
threat.
Similarly, in January 2012, when the administration of then
President Goodluck Jonathan, on the New Year Day, announced the
removal of fuel subsidy which hiked the fuel pump price from N87 to
N143, the organised labour proceeded on an industrial action backed
by protests particularly in Lagos State for a period of eight
days.
A report later issued by the National Bureau of Statistics put
the economic loss suffered by the country as a result of the
eight-day strike at about N207.408bn.
Perhaps, to avert a repeat of such a loss in 2016, the AGF
rushed before the NIC to obtain a restraining order against the
organised labour.
The ex parte application, which Malami took before the court,
was anchored on the fear that the nation would suffer huge economic
loss, should the organised labour be allowed to proceed on its
planned strike.
While arguing the application before the President of the
National Industrial Court, Justice Babatunde Adejumo, in Abuja on
May, 2017, Malami said it was in the interest of the entire nation
that the court stop the strike, which, he argued, was capable of
shutting down the nation.
Malami said that the organised labour met on May 14, 2017 and
issued a communique wherein it threatened to shut down all
government offices, seaports, airports markets, and the entire
country if the increase was not reversed.
Malami contended that should the organised labour be allowed to
go on strike, ordinary and law-abiding citizens would be subjected
to hardship, adding that no amount of damages would be able to
compensante for the loss.
He said government had been left with no other option but to
seek the intervention of the court.
Delivering a bench ruling on the ex parte application, Justice
Adejumo granted the AGF’s prayer by restraining the labour from
embarking on the strike.
He ruled, “The defendants are hereby restrained from carrying
out the threat contained in their communique issued on May 14, 2016
pending the hearing and determination of the motion on notice filed
on May 16.
“It is the order of this court that status quo be maintained as
at May 17.”
Justice Adejumo anchored his decision on the AGF’s public
interest argument.
He said, “I decided to take this case this morning because it is
an issue that will affect everybody. I don’t want people to be
subjected to hardship.
“There will be scarcity of foods, people may die, students will
engage in all sorts of activities. This is why I have to grant this
order.”
About a year later, the nation was thrown into a round of
industrial action that crippled the nation’s public health
sector.
But this time, the government did not show any interest in
taking any legal action to stop the strike.
The strike had lasted one month when a civil society group,
Kingdom Human Rights Foundation International, approached the
National Industrial Court in Abuja to obtain an order to compel the
Joint Health Sector Unions to suspend the strike.
The group’s lawyer, Mr Okere Nnamdi, argued in his ex parte
motion that the JOHESU strike, which commenced on April 17, 2018,
had paralysed all public health institutions across the country,
leaving an estimated 1,210 persons dead as a result of lack of
access to health institutions.
Again, the President of the National Industrial Court, Justice
Adejumo, after hearing the motion ex parte on May 17, 2018, struck
down the strike.
Justice Adejumo ordered the principal officers and
representatives of JOHESU “to call back their members throughout
the federation to suspend the strike action that they embarked upon
on April 17, 2018 and report at their various duty post within the
next 24 hours.”
Again, Justice Adejumo said his ruling was “made in the overall
interest of the Nigerian citizenry”.
Justice Adejumo said, the court, in ordering JOHESU to suspend
its strike, had to “balance the convenience of the striking
employees and that of the innocent Nigerians who are now the
victims of the strike of which they knew nothing about”.
This month, faced with the threat of another crippling strike by
the organised labour, comprising the Nigeria Labour Congress, the
Trade Union Congress, and the United Labour Congress, who are
demanding an increase in the national minimum wage from the N18,000
to N30,000, the Federal Government rushed to court on November 2,
2018 to avert the industrial action scheduled to commence on
November 6.
The Solicitor-General of the Federation and Permanent Secretary,
Federal Ministry of Justice, Mr Dayo Apata, who argued the
government’s ex parte motion, also, characteristically, expressed
the sentiments of the negative implications of the scale of
hardship and economic loss that would be foisted on the citizens
and the Federal Government, should the strike not be stopped.
Apata argued that the threatened strike would take a toll on the
health sector, security, the economy and the people living in the
Internally Displaced Persons’ camp in different parts of the
country.
This time Justice Adejumo did not handle the case; the case was
handled by Justice Sanusi Kado.
However, as Justice Adejumo had done previously, Justice Kado
also agreed with the Federal Government that it was in the interest
of the public to stop the strike.
Agreeing with Apata, Justice Kado held, “The affidavit evidence
has equally stated that the people living in the IDPs will be
adversely affected by the strike as there will be no movement
during the strike due to the withdrawal of services, more
particularly in the petroleum sector.
“The impact of the strike will be too devastating to the economy
and thereby affect developmental goals.
“There is also the fear that the country may slump back to
recession if the strike occurs.”
Although, it has always been difficult to get the organised
labour to comply with court orders restraining them from going on
strike – because of the difficulty of serving the court orders on
the organised labour – government had always used court orders to
browbeat workers to either shelve their plans to go on strike or to
make them to suspend an ongoing strike.
In the three scenarios earlier highlighted, it was negotiation
between the government and the organised labour, rather than the
court orders, that resolved the impasse.
While the labour, earlier this week decided to suspend its
strike after reaching an agreement of N30,000 minimum wage with the
government, the nagging issue is that given the disposition of the
court to always stop labour’s planned or ongoing strike at every
prompting by the government, strike, as a negotiation tool in the
hands of labour providers, may be fast becoming endangered.
Going by the grounds adduced by the court for stopping
industrial actions, the organised labour may have to wait till a
time that its strike would not have any negative impact on the
economy, the health sector, the judiciary and other critical
sectors, before it can have a legitimate strike.
The immediate-past 2nd Vice-President of the Nigerian Bar
Association, Mr Monday Ubani, shared the view that the court might
have been gradually outlawing strike since the government could
almost always obtain a court order to restrain the organised labour
from going on strike.
Ubani said there was a need for the court to be more
conservative in the use of interim orders.
He, however, acknowledged that the government had the right to
seek to protect the economy and the interest of the general public,
hence the need for the court to balance the conflicting rights of
government and the labour.
He said, “We know that if labour goes on strike, there will be
irreparable damage on the economy, especially now that the economy
is very fragile. So, we should not in any way encourage strike.
“But we must also be careful because, if at every point in time
that labour wants to go on strike, the Federal Government goes to
court and gets an injunction through ex parte motion, we will more
or less, be outlawing strike.
“If the Federal Government can at every point in time rush to
court and get an ex parte order to stop strikes, that means that
strikes will never hold again.
“So, I think the courts must be very careful, by not always
granting all the ex parte applications made to stop strike, so that
they will not in any way outlaw strike through the back door.
“Remember that the labour has often argued that strike is the
only way to get the government to attend to their requests.
“The labour often says the only language government understands
is force and that force can only come when the labour resort to
strike.
“The judiciary too must be careful not to take away that right
of strike through ex parte application which we know involves
hearing a one-sided story. It is not a fair-hearing situation.”
A Lagos lawyer, Mr Ebun-Olu Adegboruwa, also called on judges to
be circumspect in issuing interim orders to stop labour’s
strike.
He said, “All men of conscience should be worried with the
avalanche of judicial orders being granted ex parte, to stop party
congresses, to stop submission of names of candidates for election,
and even to stop workers from embarking upon any strike to demand
for better wages.”
Like Ubani, Olu-Adegboruwa also called on judges to exercise
caution “when such is sought ex parte, especially in very
controversial matters”.
Also speaking with our correspondent, the President of the
Judiciary Staff Union of Nigeria, Mr Marwan Adamu, expressed
dissatisfaction with court orders being issued against plans by
labour unions to embark on strike.
“I am not against people or the government going to court to
seek redress on any issue. But I am not comfortable with orders
stopping strike which is a legitimate right of workers,” he
said.
However, other lawyers, Mr Olaniran Obele and Mr Tunde Falola,
disagreed with the insinuation that strike was being gradually
outlawed as the organised labour’s negotiation weapon.
Obele said, “I don’t agree that the judiciary is gradually
outlawing strike.
“Workers have a legitimate right to go on strike and government
too has the legitimate right to make sure that the economy is run
well and does not fail.
“The question of outlawing strike does not really arise; it
depends on the facts before the judge.”
On his part, Falola said, “The issue of the court granting an
interim order to stop or suspend strike embarked on by labour is a
constitutional one in the sense that the court only exercises its
judicial powers pursuant to the provisions of Section 6 of the 1999
Constitution as amended.
“What is more important is the fact that an interim order of
injunction is a temporary one pending the determination of a motion
on notice already filled in court.”
Also, Okere, the KHRI’s lawyer, who obtained the order
suspending the JOHESU strike, disagreed with the proposition that
the court might be on its way to outlawing strike.
He said, “It must be noted that the constitution has made
provisions where individual or entity’s right can be restricted in
the overall public and national interest.
“Why labour is entitled to embark on strike, they must exhaust
all available legal remedies, such as approach the industrial court
to look into and determine the areas of conflict.”
Culled from Punch