This was contained in rulings delivered by Justice B. B. Kanyip, President of the National Industrial Court in a matter between the Nigerian Government and the university lecturers under the aegis of the Academic Staff Union of Universities, to determine issues related to the eight-month strike embarked upon by ASUU in 2022.
The National Industrial Court has declared the statutory power given to the minister to determine which workers are entitled to be paid their salaries and entitlements during industrial actions.
This was contained in rulings delivered by Justice B. B. Kanyip, President of the National Industrial Court in a matter between the Nigerian Government and the university lecturers under the aegis of the Academic Staff Union of Universities, to determine issues related to the eight-month strike embarked upon by ASUU in 2022.
In his ruling, Justice Kanyip declared section 43(2) of the Trade Dispute Act as a violation of the constitutional provision which gives the judiciary the power to interpret law and statutes.
According to section 43(2) of the Act, "if any question arises as to whether there has been a lockout for the purposes of this section, the question shall be determined by the Minister on application by the workers or their representatives, whose decision shall be final."
As a result, Justice Kanyip stated that determining whether or not there has been a lockout is a matter for the court, not the executive branch of government.
The judge ruled: “I declare that the part of section 43(2) of the TDA, which provides that ‘if any question should arise as to whether there has been a lockout for the purposes of this section, the question shall on application to the Minister by the workers or their representatives be determined by the Minister whose decision shall be final’, falls foul of Convention No. 87 when it made the decision of the Minister to be final.
“The determination of the question whether there has been a lockout, is a question for the court to determine, not for the Executive arm of government. To that extent, section 43(2) of the TDA also falls foul of section 6 of the 1999 Constitution, which places judicial power in the Judiciary, and not the Executive arm of government, which is what the Minister 28 of 29 responsible for labour represents. That part of section 43(2) of the 1999 Constitution is accordingly unconstitutional, null and void.”
The upshot of this decision is that it invalidates the actions of an immediate former Labour Minister, Chris Ngige, who concluded that some groups of lecturers who were also on strike for eight months in 2022 deserved to be paid but others did not.
For instance, A Senior Advocate of Nigeria, Femi Falana, had said that Ngige contradicted the law by directing the payment of withheld salaries of some lecturers at the Nnamdi Azikiwe University (also called UNIZIK), Awka, in his home state who were also on strike with their colleagues in ASUU.
SaharaReporters had also reported that Ngige had directed salary payments to members of the faction of the lecturers’ union loyal to the Muhammadu Buhari-led government.
In a related incident, the court earlier upheld the Nigerian government’s “no work, no pay” policy in the suit filed against the ASUU following the university teaching staff union’s eight months of industrial action in 2022.
While the union insisted on getting their payment for all the months they embarked on strike, the Nigerian government under former President Muhammadu Buhari refused, insisting on implementing its “no work, no pay” policy against the lecturers.
The ruling on a suit filed against the union by the government, the industrial court held that the ‘no work, no pay’ rule enforced by the Nigerian government against members of ASUU who went on strike in 2022 is legal.