Nigeria: ASUU Strike - Nigerian Govt Wrong On Application of 'No Work, No Pay Rule' - Falana

Photo: Vanguard
ASUU strike.
2 December 2018

A lawyer, Femi Falana, has said the "no work, no pay " policy by the federal government, is not applicable to members of the Academic Staff Union of Universities (ASUU) who are currently on strike.

Mr Falana said the federal government acting through the National Universities Commission (NUC) lacks the powers to direct vice-chancellors to seize the salaries and allowances of striking lecturers.

The union embarked on strike about a month ago over the poor funding of Nigerian universities, an alleged plan by the federal government to increase students' fees and introduce an education bank, as well as non-implementation of previous agreements.

The federal government on November 29 directed all vice-chancellors of federal universities to ensure that members of ASUU who are currently on strike are not paid their salaries.

The directive was contained in a letter issued by the NUC.

In the circular, 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"

But Mr Falana, a Senior Advocate of Nigeria, said the government was not properly advised for "resorting to a desperate measure of not paying the workers."

The lawyer stated this in a statement sent to PREMIUM TIMES titled: "No work no pay' policy is not applicable to ASUU" on Sunday.

According to Mr Falana, the federal government referred to "extant rules" to justify the 'no work, no pay' policy; a directive 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."

"Otherwise, it would have realised that even under the defunct military junta the application of 'no work no pay' rule, threat to eject lecturers 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," he said.

He said the latest strike has complied with the provisions of section 31 (6) of the Trade Disputes (Amendment) Act, 2005.

He said the law does not punish acts which are lawful in any democratic society.

He said 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.

"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 an offence and is liable upon conviction to a fine of N10,000 or six months imprisonment or to both fine and imprisonment," Mr Falana said further in his explanation.

He also cited the University of Ilorin case where the appointments of 49 lecturers were terminated on the grounds that they had taken part in the ASUU strike of 2001.

Mr Falana said: "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," he said.

But Mr Falana said the Supreme Court reversed the decision of the Court of Appeal and confirmed the order of the federal high court for the reinstatement of the appellants and payment of their salaries and allowances.

He said 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," he said.

He urged the government to commit itself to the faithful implementation of the 2017 FG/ASUU Agreement to enable ASUU call off the strike without any further delay.

When contacted Sunday evening for comments on the report, the spokesperson of the federal ministry, labour and employment, Samuel Olowookere, said he is "not aware of the development" and would only be able to speak on it on Monday.

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