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IN THE NATIONAL INDUSTRIAL COURT HOLDEN AT LAGOS BEFORE THEIR LORDSHIPS Hon. Justice B. A. Adejumo President Hon. Justice B. B. Kanyip Judge Hon. Justice M. A. B. Atilola Judge DATE: MAY 8, 2007 SUIT NO. NIC/8/2004 BETWEEN Senior Staff Association of Nigerian Universities ……………… Appellant AND Federal Government of Nigeria ……………….……………….. Respondent REPRESENTATION Prof. Akintunde Emiola, and with him is Mr. Olakunle Obanewa, for the appellant. Mr. I. A. Bagni, Assistant Legal Adviser, for the respondent JUDGMENT This matter was referred to this court pursuant to section 13(1) of the Trade disputes Act (TDA) Cap. 432 LFN 1990 by the Honourable Minister of Labour and Productivity vide a letter dated October 14, 2004 with Ref. No. HE/8511CON.I/40 and a referral instrument simply dated August, 2004. By this letter and referral instrument, this court is asked to adjudicate on the following issues between the parties - 1. Withdrawal of service by [members of the appellant association] causing denial of rights of students to lecture rooms, laboratories and hostel services. 2. Demand for parity in basic salary scale with ASUU. 3. Increase in level of funding to implement the 2001 FGN/NASU Agreement. The Industrial Arbitration Panel (IAP) had earlier heard the matter and made its award. The appellant objected to the IAP award, hence the present referral to this court. The parties exchanged their respective memorandum, joined issues and agreed to argue the case on record by filling written briefs of arguments. In its submission, the appellant formulated, and led arguments on each of, the following four issues for the determination of this court - I) Breach of the August 4 Agreement of 2001 between the respondent and the appellant. II) Conflicting interpretations/approaches as to how the 22% presidential salary increase to all staff of the Nigerian universities is to be calculated. III) The constitutionality of section 42(1)(a) of the TDA and the manner of its application. IV) The retention of a single-structure salary scheme for the university system (otherwise termed 'parity'). Regarding the first issue i.e. the breach of the August 4 Agreement of 2001, which is Exhibit 1 tendered by the appellant, the appellant's argument is that the said agreement has not been implemented by the respondent particularly in relation to the issues of housing, career structure for HND holders, retirement age and SSANU representation on the Education Tax Fund provided respectively in paras. 4.2.17, 4.2.20, 4.2.21 and 4.2.23 of Exhibit 1. Additionally, that chapter 5 of Exhibit 1 which provides for a new salary scale to be known as University Senior Staff Salary Structure (U4S) at 22% higher than HA TISS IV and with ten grade levels has also not been implemented by the respondent despite the efforts of the appellant to ensure implementation. To the appellant, the non- implementation of Exhibit 1 by the respondent is deliberate given that the respondent had more zealously implemented the agreement with academic staff who have since been receiving their UASS since 2001. The appellant then dovetailed into the issue of the legality or otherwise of the strike it embarked on contending that there is no law in the country which places a blanket ban on strike. That section 17(1) of the TDA upon which the respondent relied is subject to six exceptions; and its application is conditioned on the existence of any of the factual situations listed in section 7(1)(a) - (f), none of which existed before the strike. That at both common law and under statute, a strike is legitimate if the conditions of such law are met, citing para. 14 of the First Schedule to the Trade Unions Act (TUA) Cap. 437 LFN 1990 and Crofter Handwoven Tweed Co. Ltd v. Vietch [1942] AC 435, per Lord Wright at p. 463. That the non-implementation of the salient items of the 2001 Agreement brings the appellant's strike squarely within the "dispute of right" categorisation as defined by section 30(9) of the TUA as amended by section 6 of the Trade Unions (Amendment) Act 2005, and was prejudicial to the interest of the appellant. That while the academic staff will be negotiating future review of their new UASS with its enhancement, there is nothing for members of the appellant union to "review". And that this was why the strike, earlier suspended, was resumed. We must at this juncture dismiss any argument hinged of the 2005 amendment to the TUA in this matter. The cause of action in this case arose long before the Trade Unions (Amendment) Act of 2005 was passed into law. Consequently, no party can claim its benefit or suffer from it in this matter. It is, therefore, wrong for the appellant to call in aid the provisions of the Trade Unions (Amendment) Act 2005. The appellant contended further that although the IAP "observed" at p. 16 of its award that "the extant agreement saw an [executive] fiat of January 2003 doing violence to the August 2001 Agreement duly agreed parity scale", it still made an Award in favour of the "guilty". That this is not the law. That the respondent should not be allowed to profit from its illegal act, citing Quo Vadis Hotel and Restaurants Ltd v. Nigeria Maritime Services Lid [1993] 6 NWLR (Pt. 250) 653, per Olatawura, JSC at p. 670D-E. We must state at this point that the appellant quoted the IAP out of context. At pp. 14 ~ 15 of its award, the IAP took pains to give a run-down of the parity problem within the contending stance of the academic and administrative sectors of the university system in the country. At pp. 16 - 17 of its award, the IAP traced the problem to the inadvertence of the Cookey Commission recommendation, which Report is Exhibit 3 tendered by the appellant, where 'relevant salary structure' was construed to imply same salary structure amongst academic and administrative staff. The IAP acknowledged that the issue is no longer the quantum of pay but its perceived inter professional fairness. So far, that the problem has been tackled by means of troubleshooting on a fire-brigade basis. That it is time to halt the piecemeal approach. The IAP then suggested at p.15 that the first and basic step is to acknowledge the obvious differences between the university teaching profession and the administration which acts in a supportive relationship to it. That there are differences in entry qualification requirements; one requires a higher academic degree than the other and/or even a higher class in the first degree obtained. That there are differences in work demands; one largely academic and, therefore, intellectual, the other mainly bureaucracy and, therefore, somewhat routine. That there are differences in career path and career destinations; one calls for more profound intellectual rigour and excellence necessitating many hours of work outside of official working time than the other. The IAP then went on to state at p. 16 that a uniform salary scale while gladly welcome by the administrative staff is demonstratively de-motivating as well as disincentive to the teaching. staff of universities. That the only lasting solution is to keep the salary of the faculty separate from that of the administration; and the faculty salary scale must reflect the differences as to job content and expectations highlighted earlier. That this ought to have been the line of action which the Cookey Commission of 1980 should have taken along with its other recommendations. For the appellant to, therefore, contend, as it did above, that the IAP made an award in favour of the "guilty" is merely to gloss over or belie the context in which the IAP came to the conclusion it reached. The statement by the IAP that an executive fiat did 'violence to the August 2001 duly agreed parity scale' cannot be read that IAP supported parity for which it came to a wrong conclusion. If anything, throughout the award, the IAP was emphatic about the fact that parity did not have any justification and so should be discarded. In concluding arguments here, the appellant prayed the court for the following reliefs: a) An order directing the respondent to complete the process of drawing up a just and equitable new U4S salary scheme for the members of the appellant union as contained in chapter 5 of the August 2001 Agreement. b) An order that whatever benefit that might have accrued to members of the appellant to be made effective from May 1, 2001 when the Agreement which expired in 2004 was to take effect. c) An order that whatever future negotiations, whenever it takes place, should be based on the outcome of relief a) above. Regarding the second issue i.e. the 22% increase on HATISS IV, the appellant contended that the 22% increase in salaries awarded by the President of the country to all members of the university staff was a grant to individual workers and not negotiated by any union or group. That the grant was an inducement to lower tension on university campuses pending negotiations and implementation of agreement with university unions. That this grant was to be calculated on HATISS IV for all university staff "across the board". That going by Annexure C and D and Exhibits 2 and 4, the Education Ministry, National Universities Commission (NUC) and Salaries, Income and Wages Commission are yet to agree on what the 22% increase should be based on regarding academic staff. To the appellant, HATISS IV simpliciter, and not the new salary scales later agreed, is the benchmark for the calculation of the 22% salary increase. But that in implementing the increase, the NUC misinterpreted para. 1 (ii) of Exhibit 2 and proceeded to carve out the new UASS and then based the increase on it. That Annexure C, the Minister's letter, has steps 1 and 2 based on HATISS IV, but Exhibit 2 erased steps 1 and 2 from all levels and calculated the 22% increase from step 3 of HATISS IV for academics. That the result was Annexure D, the doctored version of HATISS IV which was in breach of the spirit of the presidential grant. That this is wrong. That the increase should have been calculated on HA TISS IV first before slotting each employee into his/her appropriate position on the new UASS. To the appellant, the implementation of the award is discriminatory against the appellant and is in breach of the 1999 Constitution. That it is the desire to be equitable as to the presidential increase that Prof. Ayo Banjo, Chairman of both the Negotiating Committee and the Implementation Committee, had to clarify vide Exhibit 4 that it should be ensured that 'no member of staff in the universities is receiving more or less than 22% of what they had earned before the implementation of the 2001 agreement'. The third issue framed by the appellant for the determination of this court relates to the constitutionality and application of section 42(1)(a) of the TDA, which provides notwithstanding anything contained in [the TDA] or any other law, 'where any worker takes part in a strike he shall not be entitled to any wages or remuneration for the period of the strike and any such period shall not count for the purpose of reckoning the period of continuous employment and all rights dependent on continuity of employment shall be prejudicially affected accordingly' The appellant contended that although wages during the period of strike cannot be claimed as of right, it does not mean that it shall not be paid. The appellant then argued that the said provision, in being penal, it is not only bad but unconstitutional in that a) it deprives a worker wages and b) it expressly alters all rights dependent on continuity of employment prejudicially with regards to the worker's pension guaranteed by sections 173(2) and 210(2) of the 1999 Constitution. That taking account of sections 4(8) and 36 of the 1999 Constitution, it is the court of law that can exercise the powers conferred by section 42(1)(a) of the TDA. The appellant actually went into a lengthy diatribe as to the unfairness of the said section 42(1)(a) citing in the process a retinue of cases and concluding that the said provision cannot be enforced without breach of the Constitution. On the fourth issue, what the appellant termed 'equal pay for equal work' (otherwise called 'parity'), the appellant contended that section 17(3)( e) of the 1999 Constitution directs that the state shall ensure that there is equal pay for equal work without discrimination on account of sex or any other ground whatsoever. That this provision 'is reinforced by Art. 15 of the African Charter on Human Rights (Ratification and Enforcement) Act Cap. 10 LFN 1990, which provides that every individual shall have a right to work under equitable and satisfactory conditions and shall receive equal pay for equal work. That the Cookey Commission in coming up with the University Salary Scale (USS) used as underlying principle the need to group together jobs of substantially equal value within a salary bracket. The appellant then urged that this should continue as it is not possible to remove particular jobs out of any bracket without upsetting the status and wage equilibrium. That if the Grade Level (GL) applicable in the civil service has endured for this long with lawyers, engineers, accountants, technologists and administrators accommodated within the same job brackets, the same principle ought to be retained in the university system. That the main issue in dispute is not parity but maintenance of the principle of equal pay for equal work by which work of substantially equal value are evaluated and grouped together under GL, USS and HATISS IV. That the Cookey Commission 'reflects the differences as to job content and expectations' as stated at p. 16 of the IAP award by leap-frogging the salaries of academics from grades 9 to 11 and 11 to 13, thus skipping grades 10 and 12 in USS and HATISS. The appellant then submitted that there is no way the academics can be taken out of their classes (as has been done) without violating the relativity principle and creating disequilibrium. That it will be foolhardy to believe as the IAP seems to suggest at p. 16 of its award that separate salary structures for academics and non-academics are the only lasting solution to the crises in the university system. The appellant then urged that the principle of job relativity and classification should be maintained in any wage policy in the university system. In particular, that this court should rule that the single structure of HATISS IV and/or the relativity principle should be maintained in the university system. The appellant concluded by praying the court to set aside all the awards of the IAP and make new awards in favour of the appellant. The respondent on its part framed four issues for determination by this court. They are- 1) Whether the appellant being an unregistered trade union can engage in trade union activities, including collective bargaining and resolution of trade disputes. 2) Whether the IAP rightly affirmed the no-work-no-pay principle given the clear and unambiguous provision of section 42(1 )(a) of the TDA. 3) Whether the respondent is in breach of the 2001 Agreement when the appellant is receiving the agreed U4S which is 22% above HA TISS IV. 4) Whether increase in university funding being a policy of the respondent is subject to collective agreement. On the first issue, the respondent's contention is that the appellant is not a registered trade union and so should not be recognised by this court and given a hearing. We must at once reject this contention. By item 17 of Part C of the Third Schedule to the TUA, as amended, the Senior Staff Association of Universities, Teaching Hospitals, Research Institutes and Associated Institutions is recognised as a senior staff association and hence is a trade union. The appellant in this matter is a variant of that association. Since inception, this court has recognised the right of branch/unit unions to access this court in order to have their peculiar grievances redressed without the necessity of the parent unions dragged to court. A collective agreement was duly signed between the appellant and the respondent. That agreement is not being disputed. It is late in the day for the respondent to call to question the status of the appellant when it was with the same appellant that it signed an agreement, Exhibit 1, with in 2001. On the second issue, the respondent contended that there is privity of contract of employment between the parties governed by various labour regulations, which the appellant breached. That the strike action of the appellant did not follow due process and so the respondent was right to have stopped the wages of members of the appellant association in accordance with the provision of section 42(1)(a) of the TDA, which provision is not a penal one and is not unconstitutional as no hearing is required before. the said provision can be enforced. On the third issue, the respondent contended that it entered into three separate agreements with SSANU (the appellant), ASUU and NASU on 4th August 200l. That the appellant and the respondent agreed on a new salary scale known as U4S which is 22% higher than HATISS IV, which agreement was duly implemented with effect from May 2001 and in fact the terms of the agreement were duly observed. The respondent went on to argue that this agreement is, however, illegal, given that the appellant is not a registered union. We have, however, earlier dismissed this contention of the respondent as being erroneous. On the issue of university funding (the fourth issue), the appellant had in its submission argued that the effect of inadequate funding of universities has adversely affected the implementation of most of the items of the 2001 agreement. The respondent, however, argued that it gives priority to education and as such accords the sector better funding. That this aside, the issue of funding cannot be the subject of collective bargaining. The respondent accordingly urged the court to dismiss the present appeal. The appellant replied to the respondent's written address by filing a written submission wherein the four issues raised by the respondent were addressed. We have already disposed of the first contention of the respondent 'as to the legal status of the appellant and so there is no need for us to repeat the appellant's reaction to that argument here. We then will proceed to the second issue dealing with the question of the appellant's strike action. Here, the appellant's reaction is that the issue is not whether the appellant should be paid wages for the period of strike but who ought to determine the liability of the strikers. That the reliance of the respondent on section 5(1) of the Labour Act Cap. 198 LFN 1990 is erroneous as that Act does not apply to the category of staff which the appellant represents given the definition of the term "worker" in section 91 of the Labour Act. Furthermore, on the issue that section 42(1 )(a) of the TDA did not direct a hearing should be granted the appellant, the appellant contended that it is the constitution that confers the right to be heard; and so the issue is whether the affected workers ought to be heard. That where a statute is silent, the question is whether anyone is likely to be prejudiced if not heard. That it is necessary to then enquire as to who took part or did not take part in the strike or which the rule of audi alteram partem becomes obligatory. On the third issue i.e. whether the respondent is ,in breach of the 2001 Agreement when the appellant is receiving the agreed U4S which is 22% above HA TISS IV, all the appellant said was that the claim of the respondent 'is not rue'. That the respondent has mixed up the salary issue with the 22% general grant expected to be based on the then existing HATISS IV. There was no reaction on the part of the appellant regarding the fourth issue dealing with university funding… We have carefully considered all the submissions of both parties in this matter. We must state that both submissions were copious and laced with cases that were essentially not relevant to the labour issues raised for the determination of this case, hence our refusal to re-cite the cases in this judgment. In our opinion, the case of the appellant centres on two issues: whether the respondent breached the August 2001 Agreement and whether the appellant is entitled to wages for the period of the strike that it embarked on. We shall address the issue of the strike first. The appellant contended that the issue is not whether the appellant should be paid wages for the period of strike but who ought to determine the liability of the strikers. In this contention, the appellant seems to overlook the fact that section 42(1)(a) of the TDA is self-executory. Its implementation, without more, does not depend on a further enquiry in the manner that the appellant canvasses. A strike, whether legal or not, falls squarely within the ambit of the said section and for which the strikers are disentitled from wages and other benefits envisaged by the section. This statement of principle accords with the International Labour Organisation (ILO) jurisprudence on the matter where at para. 588 of the Freedom of Association: Digest of decisions and principles of the Freedom of Association Committee of the Governing Body of the ILO, Fourth (revised) edition, Geneva, the norm is that 'salary deductions for clays of strike give rise to no objection from the point of view of freedom of association principles'. And to the leamed authors, Bernard Gernigon, Albe110 Odero and Horacio Guido - 'ILO principles concerning the right to strike' [1998J International Labour review Vol. 137 No.4 at p. 471, the Committee of Experts on the Application of Conventions arid Recommendations (CEACR) of the ILO 'has refrained from criticizing the legislation of member States which provide for wage deductions in the event of strike action and has indicated that, as regards strike pay, "in general the parties should be free' to determine the scope of negotiable issues"'. It is in this light and given the self- executory nature of the said section 42(1)(a) 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 penalize the strikers in any other way for the strike. In the same vein, .it is lawful for workers to agree with their employer that wages will be paid and no other detriment suffered even when strike actions are embarked on. All of this will not be possible if the argument of the appellant, that before section 42(1)(a) of the TDA comes to play, a court order is required, is accepted. It will defeat the principle of harmonious labour relations upon which the ILO jurisprudence on the matter is hinged. We do not, therefore, agree with the submissions of the appellant regarding section 42(1)(a) of the TDA. On the issue whether the respondent breached the August 2001 Agreement, two issue arise, namely, the question of non-implementation of some of the provisions of the agreement, and the issue of parity and relativity ratio within the university system. Before addressing these issues, it is necessary to point out that, contrary to the submission of the appellant that only in the university system is there disparity in wages regarding the different categories of workers, the health sector of the country experiences a similar problem. Only recently, on March 30, 2006 to be specific, we delivered judgment in a matter where parity and relativity ratio, as they relate to the health sector of the country, were the contending issues. The case, involving the parent union of the present appellant, was Senior Staff Association of University Teaching Hospitals, Research Institutions and Associated Institutions (SSA UTHRIAI) and ors v. Federal Ministry of Health and anor, unreported Suit No. NICI1212000. In that case, we had this to say: ... the appellants are disputing circular 1 of 1996 in that they want it withdrawn by this court or its contents harmonized in a way that there will be no differential treatment in terms of allowances payable to health workers. The preferential treatment in terms of higher allowances given to medical/dental practitioners by circular 1 of 1996 is seriously contested by the appellants and their case is that there should be parity of allowances within the health sector. In all of this, the critical question which this court posed throughout the hearing of this matter and for which the appellants could not give a satisfactory answer is whether the appellants have an entitlement as to parity for which this court should intervene and enforce. Altematively put, what is the right of the appellants that the respondents infringed to warrant the intervention of this court. Labour/industrial relations is a function of conflicting interests which may remain mere interests or crystallize into rights depending on what can be agreed on through the process of collective bargaining. So long as an interest has not crystallized into a right, the' adjudicative process of the courts is hardly useful in the resolution of disputes that may arise in that regard. In arguing their case and to convince this court that what they are arguing for are entitlements, the appellants referred the court to its two previous decisions, Establishments Department Office of the Head of Civil Service v. Nigerian Union of Civil Service Typists, Stenographic and Allied Staff and Nigerian Bottling Co. Ltd v. National Union of Food, Beverage and Tobacco Employers. In the Nigerian Union of Civil Service Typists case, this court granted a new grading structure for typists ranging from GL 03 (step 4) to GL 08 and then created a new terminal post of Principal Personal Secretary on GL 12 for Secretarial cadre. And in the Nigerian Bottling Co. case, this court permitted the 2.5% increase in the appellant's pension contribution and thereby bringing the total to 15%, which was what the IAP awarded in the first place. To the appellants, these cases are authorities permitting this court to intervene and order parity in allowances within the health sector. We do not necessarily think so. In the first place, the Nigerian Union of Civil Service Typists case dealt with one union and one type of job. So the demand for parity within that union is perfectly understandable and accords with the equal work, equal pay principle enunciated by even the International Labour Organisation (ILO). This is not the case in the present suit where more than one union is involved. The parity sought by the appellants for present purposes is not within the same union but between different unions. Unless there is an instrument (a law, circular or collective agreement) that entrenches parity of treatment within the health sector as an entitlement, it is not for this court to decree it. The statement of principle from this quotation is as much valid in relation to the university system as it is to the health sector. A litigant, without more, cannot build a case on the right of another. The litigant must build the case on his/her own right. The appellant in this matter cannot hinge its case on the right of ASUU. A 22% pay rise was promised to all the unions in the university system which the respondent met. The respondent went on, for whatever reason best known to it, to increase the salary of members of ASUU beyond the 22% rise without a corresponding increase for other unions. This cannot, without more, be the basis for the claim of an entitlement by the appellant. Nowhere in the August 2001 Agreement is it provided that the claims of the appellant would be contingent upon whatever ASUU gets from the Federal Government. Letters, such as, that by Prof. Ayo Banjo (Exhibit 4) were tendered by the appellant to show that parity should be applied as a rule. But we must state that Exhibit 4 does not confer an entitlement on the appellant which this court will enforce. What confers entitlements on the appellant is the collective agreement of August 2001, Exhibit 1, and this document does not make parity an entitlement. The argument of the appellant regarding equal pay for equal work is not convincing. The IAP, in its award, clearly brought out the differences in terms of work demands and expectations within the university system which justify a differential wage package between academic and administrative staff. We are, therefore, not convinced by the argument of the appellant in that regard. In consequence, we agree with the findings of the IAP regarding the issue of parity and relativity ratio. We indicated that only Exhibit 1 confers entitlements on the appellant. But even at this, it is necessary to look at its respective provisions to see if they actually confer enforceable entitlements. The appellant complained that the provisions on housing loan, career structure for HND holders, retirement age and SSANU representation on the Education Tax Fund have not been implemented by the respondent. This may be true. But the real question is whether the said provisions are even enforceable as couched in the agreement. Para. 4.2.17 of Exhibit 1 dealing with housing loan states that the modalities for granting of the loan are to be determined by the University Governing Councils. So long as these modalities have not been determined and shown to this court to have been so determined, there is no way that an enforceable entitlement can be shown to exist for which the intervention of this court can be sought. Para. 4.2.20 dealing with career structure of HND holders simply states that it was 'agreed that HND holders who are very good should be allowed to progress to the highest level of their career'. How can a court of law enforce this sort of provision as an entitlement? Paras. 4.2.21 dealing with retirement age and 4.2.23 dealing with SSANU representation on the Education Tax Fund are only enforceable upon the amendment of the requisite statutory provisions dealing with those issues. This has not been done. The principle of separation of powers precludes this court from ordering that the necessary statutory amendment should be made as this is an issue that falls squarely within the purview of a separate arm of government, the legislature. It is not for this court to interfere with the mandate of the legislative arm of government. For all the reasons we have given, we do not find it tenable to interfere with the award of the IAP in the manner canvassed by the appellant. This appeal, therefore, fails. Judgment is entered accordingly. ……………………………….. Hon. Justice B.B. Kanyip Presiding Judge ……………………………. ………………………………. Hon. Justice M.B. Dadda Hon. Justice M.A.B. Atilola Judge Judge