‘No Work No Pay’ Policy Is Not Applicable To ASUU, Falana Tells FG

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.

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