Law  

‘Relevance of no work, no pay rule in curbing incessant labour unrest in Nigeria’s public Sector’

The President of the Nigerian Labour Congress, Ayuba Wabba PHOTO: NAN

The President of the Nigerian Labour Congress, Ayuba Wabba PHOTO: NAN

The employer-employee relationship is built on the concept that a person (the employee) agrees to provide his/her labour/ service/ skill/ other efforts to another (the employer) in return for which the employer agrees to compensate the employee with money/benefits/compensations and other considerations. 
As part of this arrangement the employee surrenders some of his/her personal preferences and agrees to come under the “direction and control” of the employer during the time he or she 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”.
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.

Rationale for the Doctrine:
The doctrine of ‘no work, no pay’ is a principle of equity and natural justice. It lays a strong foundation to industrial peace and harmony in the long run. It is equitable and sacred because it safeguards the bedrock of industrial peace, progress, and prosperity.
According to Krishan Kumar Tyagi, the doctrine of no work, no pay is not punitive. It is not a punishment when an employee expends his energy and effort in a productive task, a predetermined salary rewards his performance. The American usage, ‘compensation’, comes to our rescue in an admirable way. People are compensated for contributing their labour. When there is no contribution, there is no compensation in return. It is a covenant between two parties that provides for equal and reciprocal responsibility. Put in another way, no work, no pay is a principle adopted not to pay salaries to workmen when they are on strike.

The Principle as Consequence of Industrial Action:
The principle of no work, no pay is not a means or form of an industrial action by the employee or union but rather a consequence of an industrial action and a tool in the hands of employer adopted against employees who absent themselves from work as a result of labour disharmony in the form of strikes.

Strikes are the commonest form of industrial action by workers. They are the equivalent of lockouts by employers, all of which are only permissible in consequence of a trade dispute. A strike is the most common and popular form of industrial action by workers. The concept of ‘no work, no pay’ cannot exist in isolation. It is only when cessation of work or refusal of employees to work has occurred that the principle of no work, no pay can be referred to.

Definition of strike:
Lord Denning in Tram Shipping Corporation v. Greenwich Marine Inc. (1975) 2 All ER 989 defines strike as “a concerted stoppage of work by workmen done with a view to improving their wages or conditions of employment, or giving vent to a grievance or making a protest about something or other, or supporting or sympathizing with other workers in such endeavour. It is distinct from a stoppage which is brought about by an external event such as a bomb scare or by apprehension of danger” See Tram Shipping Corporation v. Greenwich Marine Inc. (1975) 2 All ER 989.

Strike is defined in section 47 (1) of the Trade Disputes Act Cap 432, Laws of the Federation of Nigeria, 1990 (now Cap. T-8, Laws of the Federation of Nigeria, 2004) as follows:
“Strike means the cessation of work by a body of persons employed acting in combination or a concerted refusal or a refusal under a common understanding of any number of persons employed to continue to work for an employer in consequence of a dispute, done as a means of compelling their employer or any person or body of persons employed, or to aid other workers or body or body of persons employed, to accept or not accept terms of employment and physical conditions of work…”

The section goes further to say that “cessation of work” includes deliberately working at less than usual speed or with less than usual efficiency and “ refusal to work” includes a refusal to work at usual speed or with usual efficiency.

The above definition recognizes that cessation of work or refusal to work may be either total or partial. A total strike is a complete cessation of work or refusal to work. A partial strike, on the other hand, is an action short of a total cessation of work or refusal to work which includes go-slow strike, work-to-rule strike, and sit-down strike.

A total strike may either be a particular strike which is limited to a particular plant or union or a general strike which is wider in coverage and involves workers in a wide range of trades or occupation and may cover all the industries and the entire country.

The law also recognizes sympathy strike which is embarked upon by a group of workers out of sympathy for another group of workers. The workers on sympathy strike have no grievance against their employer but aimed to strengthen the morale of their fellow-workers by expressing solidarity with their cause and to compel their employer to use his good office for the success of the cause of their fellow-workers. For the purposes of this presentation, what matters to us is a total strike which involves the cessation of work or refusal to work by the employees as ‘no work, no pay’ is not likely to apply to other varieties of strikes such as go-slow strike, work-to-rule strike, and sit-down strike.

Objectives of Strike:
Lord Denning set out the main objectives of a strike when he defined a strike as “a concerted stoppage of work by workmen done with a view to improving their wages or conditions of employment, or giving vent to a grievance or making a protest about something or other, or supporting or sympathizing with other workers in such endeavour.” See Tram Shipping Corporation v. Greenwich Marine Inc. (1975) 2 All ER 989.

This judicial definition is consistent with the statutory definition and has brought out the main objectives of a strike to include:
a. Improving their wages or conditions of employment; or
Giving vent to a grievance or making a protest about matters connected with terms of employment or conditions of work; or
Supporting or sympathizing with other workers in such endeavour.
Thus, a strike action by workers is only lawful if it is used for the furtherance of any of the above objectives. It would therefore be unlawful if the purpose of the strike by workers is based on any circumstance or consideration other than the terms of employment and physical conditions of work. This goes to emphasize that a strike is a phenomenon of employment relationship.

On Right to Strike:
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, strike option has become a veritable tool in the armament of trade unions which has been used in defence of workers. 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.

Strike option is often the last resort after all other means of disputes 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. The concept of ‘no work, no pay’ cannot exist in isolation. It is only when cessation of work or refusal of employees to work has occurred that the principle of no work, no pay can be referred to.

This background information will inevitably lead us to the examination of the concept of ‘no work, no pay’ as a consequence of strike action by workers.

Consequences of Strike Action and ‘No work, No pay’ Rule:
As indicated already, the concept of ‘no work, no pay’ cannot exist in isolation. It is only when cessation of work or refusal of employees to work has occurred that the principle of no work, no pay can apply. Trade unions exist to represent the interest of their members in negotiations with the employer in order to achieve the desired improvements in working conditions. The natural reaction is to resort to individual action to force the employer to accede to their demands. It is the failure of collective bargaining that justifies workers resort to industrial action.

Strikes and strives are indeed ill winds which blow neither the employers nor workers any good. Strikes disrupt not only the business of the employers. It causes the workers loss of wages. It invariably disorganizes the economy of the state and social order in some cases. Strike is a double edges industrial sword. Apart from its effect on the national economy, a great deal of wage earning man hours is lost, just as the employer loses its regular income.

Based on the decision in Morgan v. Fry (1968) 2 Q.B. 710, a strike may have one of the following consequences in relation to the contract of employment, viz:
It may cause a termination of the contract as soon as the strike begins, thus leaving the employer and the employee with no legal relationship thereafter;
It may suspend all or some of the mutual contractual obligations for the duration of the strike;
It may be a breach of the contract by the employee, thus giving the employer a right of action for damages.

On whether a strike notice is equivalent to a notice of termination and amount to a termination of the contract is a subject of scholarly brain storming and the courts have not pronounced on it for now. Lord Denning in the above cited case however thought that it operates as a notice of suspension of the contract. According to him, “it is an implication read into the contract by the modern law as to trade disputes. If a strike takes place, the contract of employment is not terminated. It is suspended during the strike and revives again when the strike is over.” Russell LJ thought that it was a notice of an intended breach of contract (that is to say a notice of an anticipatory breach). “It seems to me quite plain that this was a threat…to breach their contractual obligation.”

We have earlier on pointed out that ‘no work, no pay’ rule is a direct consequence of a strike action embarked upon by workers. It shows a failure to reconcile and agree with the employer. It means a cessation of work on the employee’s part. What happens to the employer? He of course, loses too. Therefore should the workers be paid their salaries to cover the period they were on strike when they resume from strike?

We do agree with the position of Denning LJ in the above cited case that strike amount to suspension of obligations on the parties for the duration of the strike. To do otherwise, in our humble opinion, will amount to inequality.

In the case of Anene v. J. Allen & Co. Ltd (1975) 5 UILR 404, the Supreme Court rejected the appellant’s contention in favour of the respondent’s contention that the application for re-engagement implied that when the workers went on strike the contract was repudiated and having withdrawn his services the appellant could not claim salary in lieu of notice. Briefly, the facts are that employees of the respondent company went on strike and, after the intervention of the Federal Ministry of Labour, it was agreed that the striking workers should apply for re-engagement. The appellant’s application for re-engagement was rejected and he sued inter alia for salary in lieu of notice. It was contended on behalf of the appellant that his contract of employment was terminated when his application for re-engagement was rejected by the respondent.

The Supreme Court refused to lay down any rule of universal application but stated that each case must depend on its own facts.
Brett JSC said: “Prima facie, a striker intends to return to work once the objects of the strike have been attained and although this may involve a fresh contract of service, an intention to repudiate the existing contract is not necessarily to be presumed; on the other hand, the whole of the circumstances, including the duration of the strike, may be such as to warrant the employer in treating the striker as having manifested an intention to repudiate. It is therefore impossible to lay any rule of universal application, and each case must depend on its own facts.”

From the facts of the above case, the parties agreed that the striking workers should apply for re-engagement meaning that when the workers went on strike the contract of service was repudiated. There was therefore no intention on the part of the strikers to return to work on the same terms of employment. The case was therefore decided on its peculiar facts.
On Principle of ‘No Work, No Pay’ and Suspension Theory:

The provisions of section 42(1) (a) of the Trade Disputes Act, popularly referred to as the ‘no work, no pay’ provision is in accord and quite consistent with the suspension theory. In other words, when workers are on strike, the obligations and responsibilities of both the workers and employers are suspended. This is in accord with the decision in Morgan v. Fry (supra).

Section 42(1)(a) of the Trade Dispute Act vol. 15 Cap. T8 Laws of the Federation of Nigeria, 2004 provides that; notwithstanding anything contained in the Act or any other law, 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 such period shall not count for the purpose of reckoning the period of employment and all rights dependent on continuity of employment shall be prejudicially affected accordingly.

The above provision was recently tested in the case of Abdulraheem & Ors. v. Olufeagba & Ors. (2006) 17 NWLR (Pt. 1008) 280. The respondents were employed, at different times in different departments, as lecturers of the University of Ilorin. The appellants, by letters of cessation of appointments dated 25/05/01, terminated the appointments of the respondents. Aggrieved by the action of the appellants, the respondents filed an action as plaintiffs at the Federal High Court, Ilorin, claiming inter alia an order compelling the defendants to reinstate the plaintiffs to their posts in the University with all their rights, entitlements and other prerequisites of their offices and an order compelling the defendants to pay all their salaries and allowances from February 2001 till the day of judgment and thenceforth. At the end of the trial, the trial Judge gave judgment in favour of the respondents. The appellants, being dissatisfied with the judgment, appealed to the Court of Appeal. Allowing the appeal and setting aside the judgment of the lower court, the court held that the order of the learned trial Judge was given in clear violation of the provisions of section 42(1)(a) of the Trade Disputes Act.

Abdullahi, JCA stated as follows:
“It is my considered view that in the light of the unambiguous provision of the law stated supra, the award of the salaries and allowances to the respondents by the trial Judge is not only illegal but also inequitable.”

In other words, the respondents were not entitled to payment of salaries and allowances for the period of the strike.

The National Industrial Court and the Principle of ‘No Work No Pay’:
The National Industrial Court has been conferred with exclusive jurisdiction in civil causes 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 of pronouncing on the issue of ‘no work, no pay’ where the need arises and interpreting the provisions of the law in this regards.

In the case of Federated Motor Industries v. Automobile, Boatyard, Transport Equipment and Allied Workers’ Union (2008) 11 NLLR (Pt. 29) 196, the National Industrial Court to which this matter was referred to from the Industrial Arbitration Panel (IAP) by the Honourable Commissioner of Labour,applied the rule. The I.A.P. had before now made an award and the second leg of the award was to the effect that:
“The Tribunal finds evidence of the stoppage of work from 8th February by the workers and according award in accordance with the principle of “No work no pay” that all workers who took part in the said stoppage shall lose their wages for the period concerned.”

The appellant were not comfortable with the first leg of the award, award dealing with reinstatement of the workers, and they therefore filed an objection at the NIC for further adjudication. The NICN found that by clause 12 of the Collective Agreement signed by the respondents and the appellants dated 15th November, 1972, the principle of “no work, no pay” was clearly set out to the appellants’ memo. Similarly, by virtue of  Section 32A (1)(a) of Trade Disputes (Amendment) Decree No. 54 of 1977, any worker who takes part in a strike shall not be paid for the period for which he did not work. The Court therefore ruled that the workers are not entitled to any pay for the period elapsing from 8th to 28th February, 1978, when they acted in breach of the terms of the Collective Agreement and the statutory provisions.

The award of the IAP as stated above and that of the NICN were in accordance with the Court of Appeal decision in Abdulraheem & Ors. v. Olufeagba & Ors. The NICN appear to have impliedly laid emphasis on the fact of the adoption of this principle in the collective agreement as the basis of the decision. It is respectfully submitted here that, whether the principle or rule is adopted or not by the parties it is of no moment since it is a statutory provision which does not need any adoption for it to be valid and applicable.
In the case of SSANU v. Federal Government of Nigeria (2008) 12 NLLR (Pt. 33) 407, a referred matter from the Hon. Minister of Labour and Productivity, Adejumo, PNIC had this to say at page 420-241:

“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’.

And the learned authors, Bernard Gernigon, Alberto Qdero and Horacio Guido-‘ILO principles concerning the right to strike’ (1998) International Labour Review Vol. 137 No. 4 at p. 471, the Committee of Experts on the Application of Conventions and Recommendation (CEACR) of the ILO has refrained from criticizing the legislation of member States which provide for wage deductions in the event of strike action and has indicated that, as regards strike pay, “in general the parties should be free to determine the scope of negotiable issues”. It is in this light and given the self-executory nature of the said section 42(1)(a) that it is perfectly lawful for an employer to choose to dispense with the ‘no work, no pay’ rule. In other words, strike pay is lawful if an employer chooses to pay same and not to penalize the strikers in any other way for the strike. In the same vein, it is lawful for workers to agree with their employer that wages will be paid and no other detriment suffered even when strike actions are embarked on. All of this will not be possible if the argument of the appellant, that before section 42(1)(a) of the TDA comes to play, a court order is required, is accepted. It will defeat the principle of harmonious labour relations upon which the ILO jurisprudence on the matter is hinged.”



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