Falana Disagrees with FG on ‘No Work No Pay’ Rule

Lagos-based activist and Senior Advocate of Nigeria (SAN), Femi Falana, has argued that the directive of ‘no work, no pay’ rule of the federal government against striking members of the Academic Staff Union of Universities (ASUU) cannot be justified in law on the grounds that only the Governing Councils of the affected institutions are empowered by the relevant laws to subject the academic staff to any form of disciplinary action.

He stated this in a statement made available to the media Sunday, adding that the salaries and allowances of striking lecturers cannot be seized without due process.

Last week, the federal government directed the Vice Chancellors of all federal universities in the country to apply Section 43 of the Trade Disputes Amendment Act by seizing the salaries and allowances of the striking members of ASUU.

Falana stated that based on his stance on the matter, the Minister of Labour and Productivity, Dr. Chris Ngige, has not challenged the decisions of the Supreme Court which he cited ‘that it is the exclusive powers of the Governing Council of every university to discipline lecturers whose employment enjoys statutory flavour’.

However, he said: “With magisterial authority, Ngige was reported to have said  that until section 43 of the Trade Disputes Amendment Act which disentitles employees to payment of salaries and allowances  during strikes ‘is expunged or repealed through legislative process by the National Assembly, it remains not just applicable but a point of law for compliance by all citizens of Nigeria’."

Falana further noted that: “It is curious to note that the minister did not disclose that the federal government has always put the law aside in a bit to end strikes embarked upon by workers in the public service. In other words, a clause is usually inserted in collective agreements that employees who had taken part in an industrial action would not be damnified in any manner whatsoever and howsoever.” 

He stated that the practice was judicially endorsed in the case of Senior Staff Association of Nigerian Universities v Federal Government of Nigeria (unreported suit no NIC/8/2004 whose judgment was delivered on May 8, 2007)  where the National Industrial Court held  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 penalise the strikers in any other way for the strike. It is lawful for employees to agree with their employer that wages will be paid and no other detriment suffered even if the strike embarked upon."

He said with particular reference to strikes by university lecturers, the government has always entered into Collective Agreements with ASUU to the effect that "nobody shall be victimised in any way whatsoever for his/her role in the process leading to these resolutions and Agreement." The clause was inserted in the 1992, 2009 and 2013 Collective Agreements, he added.

Falana, therefore, said since the federal government has endorsed the payment of salaries and allowances of striking lecturers, the ‘controversial’ directive to the vice chancellors ought to be immediately withdrawn. “More importantly, the federal and state governments should accelerate the ongoing negotiations between the authorities and the ASUU so that the striking lecturers can return to the classrooms as soon as possible,” he concluded.