Renowned Human Rights Activist, Femi Falana, SAN has said ‘No Work No Pay’ Policy Is Not Applicable To ASUU.
He made this statement on sunday following the federal government’s directive to vice-chancellors of public universities and inter-varsity centres to enforce no-work-no-pay rule on the lecturers who are on strike. The directive was communicated to universities in a memo by the National Universities Commission to universities’ VCs.
According to him “The Academic Staff Union of Universities (ASUU) commenced an industrial action last month to compel the federal and state governments to implement the 2017 FG/ASUU Agreement on the funding of public universities. Apparently frustrated with the ongoing negotiations with ASUU over the strike the federal government has decided to wield the big stick. Thus, by a circular dated November 29, 2018 the Federal Government directed all Vice-Chancellors of federal universities to withhold the salaries and allowances of the members of the ASUU who are currently on strike. In the said circular the Federal Government threatened that “the payment of salaries and allowances to staff on strike from whatever source of funds shall be viewed as a violation of extant rules and directive of the Federal Government.”
Although the Federal Government referred to “extant rules” to justify the ‘no work, no pay’ policy the directive is anchored on section 43 (1) of the Trade Disputes Act which provides that “any worker who takes part in a strike shall not be entitled to any wages or other remuneration for the period of the strike…”. In resorting to the desperate measure the Federal Government was not properly advised. Otherwise, it would have realized that even under the defunct military junta the application of ‘no work no pay’ rule, threat to eject lectures living in official quarters, promulgation of a decree which made strike in schools a treasonable offence and the proscription of ASUU did not collapse any of the strikes called by ASUU.
It is submitted that the latest strike embarked upon by ASUU has complied with the provisions of section 31 (6) of the Trade Disputes (Amendment) Act, 2005. Since the law does not punish acts which are lawful in any democratic society section 43(1) of the Trade Disputes Act cannot be invoked to justify the seizure of the salaries and allowances of members of the ASUU who have decided to participate in an industrial action that is legal in every material particular. Under the current labour law regime only those who take part in illegal strikes are liable to be prosecuted and forfeit their salaries and allowances. For the avoidance of doubt, section 31 (7) of the Trade Disputes Amendment Act provides that anyone who takes part in an illegal strike commits and offence and is liable upon conviction to a fine of N10,000 or six months imprisonment or to both fine and imprisonment.
It is pertinent to draw the attention of the Federal Government to the case of Olufeagba & Ors v Abdul-Raheem &Ors (2010) 17 WRN 26 where the appointment of appellants (the Ilorin 49) was terminated on the grounds that they had taken part in the ASUU strike of 2001. In setting aside the termination of the appointments the federal high court held that the appellants were entitled to their salaries and allowances. Convinced that section 43 (1) of the Trade Disputes Act is self-executory the Court of Appeal held that the order for the reinstatement of the respondents and for payment of their salaries and allowances when they were on strike was not only illegal but inequitable. But the Supreme Court reversed the decision of the Court of Appeal and confirmed the order of the federal high court for the to reinstatement of the appellants and payment if their salaries and allowances.
It was the view of the apex court that the termination of the employment was illegal as the appellants were not given fair hearing by the Governing Council of the respondents. In fact, the porous defence of the respondents which influenced the decision of Court of Appeal was dismissed by the Supreme Court when it said that “The conclusion that the appellants were invited to come to a meeting to iron out things but they turned down the invitation for reasons best known to them cannot be justified in the face of overwhelming evidence of ASUU strike and that the lecturers were denied access to the university campus so as to prevent disruption of academic activities particularly end of semester activities”.
The implication of the judgment is that a university lecturer whose employment enjoys statutory favour cannot be disciplined or sanctioned without being afforded the right of fair hearing by the Governing Council. With respect to the current ASUU strike, no university governing council has accused any lecturer of misconduct to warrant the seizure of salaries and allowances. Therefore, the Federal Government, acting through the National Universities Commission, lacks the vires to direct Vice-Chancellors to seize the salaries and allowances of striking lecturers. That is a decision which can only be taken by the Governing Council of each university after due process must have been observed. If the Federal Government disagrees with our position it is at liberty to pray the National Industrial Court for an interpretaion of the application of the ‘no work no pay’ rule to lecturers for participating in the ASUU strike.
In Attorney-General of Lagos State v Attorney-General of the Federation (2005) 1 WRN 1 it was made abundantly clear by the Supreme Court that the Federal Government lacks the power to seize the funds accruing to the local government in Lagos state without an order of a court. Since the seizure of the salaries and allowances of academic staff of federal universities for participating in an industrial action called by the ASUU cannot be legally carried out by any Vice-Chancellor without a court order the Federal Government is advised to withdraw the illegal circular. In addition, the Federal Government should commit itself to the faithful implementation of the 2017 FG/ASUU Agreement to enable ASUU to call off the strike without any further delay.