Constitutional lawyer Femi Falana (SAN) has advised the Federal Government to rescind its directive stopping the salaries and allowances of the striking members of the Academic Staff Union of Universities (ASUU).
Falana said the directive was not justified in law.
The government, last week, directed the vice chancellors of federal universities to apply Section 43 of the Trade Disputes Amendment Act by seizing the salaries and allowances of the striking ASUU members.
But, Falana, in a statement issued in Lagos yesterday titled, “Why ‘no work no pay’ rule is never applied to striking employees, contended that the directive could not 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 also argued that the salaries and allowances of striking lecturers could not be seized without due process.
Rather, Falana advised the federal and state governments to accelerate the ongoing negotiations between the authorities and the ASUU so that the striking lecturers could return to the classrooms.
He disagreed with the claims of the Labour and Productivity minister Chris Ngige, who was reported to have said 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Amendment Act, which disentitles employees to payment of salaries and allowances during strikes “is expunged or repealed through legislative process by the National Assembly, it remains not just applicable but a point of law for compliance by all citizens”.
Falana wondered why the minister has not challenged the decisions of the Supreme Court, which he cited and which held that it is the exclusive powers of the Governing Council of every university to discipline lecturers whose employment enjoys statutory flavour.
He maintained that the “no work no pay” policy has always been put in abeyance to ensure the effective resolution of the subject matter of any industrial action.
“Therefore, since the government has endorsed the payment of salaries and allowances of striking lecturers, the controversial directive to the Vice Chancellors ought to be immediately withdrawn,” he said.
Falana said it was curious why the minister did not disclose that the government has always put the law aside in a move to end strikes embarked upon by workers.
According to him, “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.
“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 when strike actions are embarked upon,” he contended.
“With particular reference to strikes by university lecturers, the Federal 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, which were freely signed by the representatives of the federal and state governments as well as ASUU”, he recalled.