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BETWEEN Attorney General, Osun State - Claimant AND 1. Nigeria Labour Congress (Osun State Council) 2. Trade Union Congress (Osun State Council) 3. Comrade Bayo Adejumo (Chairman, Osun State Joint Service Negotiating Councils 1, 11 & 111) - Defendants REPRESENTATION Chief Akin Olujinmi, SAN, and with him are Oloyede Oyediran Esq. and Bukola Omotoso Esq., for the claimant. Enobong Etteh, and with him are Hillary Ekpo, Aduojo Abah, Aigbovo Aghahowa and Miss Bolanle Fatile, for the defendants. JUDGMENT The claimant commenced an action by a complaint against the defendant dated 14th June 2012. The claimant is claiming for the following reliefs – 1. Declaration that the duty imposed on Osun State Government as an employer covered by the National Minimum Wage Act (as amended) is to pay a wage not less than the national minimum wage of N18,000 per month to every worker as defined in the principal Act under her establishment. 2. Declaration that the National Minimum Wage Act (as amended) places no obligation on Osun State Government to effect an increase of salaries 100% across board for all workers in the employ of Osun State Government, but rather to ensure that the least paid worker excluding persons occupying executive, administrative, technical or professional positions in the Osun State Public Service does not earn below N18,000 per month. 3. Declaration that Osun State Government has complied with the requirement of the National Minimum Wage Act (as amended) by approving and paying the minimum wage of N19,012.95 per month to every worker in the employ of Osun State Government that are covered by the Act. 4. Declaration that the defendants cannot lawfully call out workers in the service of Osun State Government to embark on any strike without complying with the procedure prescribed by the Trade Disputes Act Cap. T8 Laws of the Federation of Nigeria 2004. 5. Declaration that any strike action by workers of Osun State Government in respect of, on account of or in connection with the minimum wage which has already been implemented by Osun State Government, will be illegal. 6. Injunction restraining the defendants by themselves, their agents, servants and or privies or otherwise howsoever from mandating, calling out, directing and encouraging or in any other manner moving or instigating the workers in the employ of Osun State Government to embark on any strike action. 7. Injunction restraining workers in the employ of Osun State Government from embarking on any strike action. Accompanying the complaint is the claimant’s statement of facts (made up of 30 paragraphs) dated 13th June 2012 and certified true copies of 7 documents to be relied upon. In the statement of facts, the claimant pleads as follows – 1. The claimant is the Chief Law Officer of Osun State, and the nominal representative of the State government in all actions by or against the State. 2. The 1st defendant is the Nigeria Labour Congress, Osun State Council. 3. The 2nd defendant is the Osun State Council of the Trade Union Congress. 4. The 3rd defendant is the Chairman of the Osun State Joint Service Negotiating Councils I, II and III. 5. Following the enactment of The National Minimum Wage (Amendment) Act (hereinafter referred to as the Act), workers in the public sector of Osun State began to• agitate for the implementation of the Act by Osun State Government. 6. The government and representatives of the workers entered into negotiations with a view to work out the modalities for complying with the Act. 7. In the negotiations Government proposed that the salaries of all workers previously earning below N18,000 per month shall be increased such that no worker in the State’s employ will earn less than Nl8,000. 8. Contrary to the proposal, the defendants insisted that the State must increase the salaries of all other workers (including those hitherto earning more than Nl8,000 per month) and that the N18,000 minimum wage should be the baseline for increment of salaries for all Grade levels. 9. Towards an amicable resolution of the matter, Government, in addition to the directive that all workers from Level l to Level 17 would earn a salary not less than N18,000 per month, proposed a concessionary increment across all other levels as follows: (i) Grade Level 08 to Grade Level 10 - N6,249.50 (ii) Grade Level 12 to Grade Level 14 - N5,611.00 (iii) Grade Level l5 to Grade Level l7 - N4,096.40 10. Rather than appreciate the good gestures of Government as stated above, the defendants by letter dated 5th August 2011 gave a notice of strike action and commenced the strike the same day. 11. At the meeting held between Government and the defendants on Wednesday 17th August 2011, the Government, with available documentary evidence, showed that the average monthly revenue of the Government is N3,042,346,835.64 and the financial implication of the workers demand together with other fixed expenditure commitment of the Government is N3,173,891,851.76 which will put Government in deficit every month. 12. It was further shown at the meeting that the financial implication of the Government proposal together with other fixed expenditure commitment of the Government which was rejected by the defendants is N2,626,680,932.46. 13. As a result of further negotiations with the defendants and in the interest of industrial peace in the State, Government agreed to pay a minimum wage of N19,012.95 Naira per month and increase the other levels as follows: (i) Grade Level 08 to Grade Level 10 - N7,249.50 (ii) Grade level 12 to 14 - N6,611.00 (iii) Grade level 15 to Grade level 17 - N5,096.40 The salary table as finally agreed between Government and the defendants is Annex A herewith. 14. Based on these concessions by Government, the dispute was eventually resolved on 9th September 2011 and the parties signed an agreement to that effect which is attached herewith as Annex 1. 15. The defendants therefore called off their strike action on 9th September 2011. 16. Since the agreement, the Government has not paid less than the minimum wage of N19,012.95 agreed in Annex 1 apart from the additions to the salaries of those on Grade levels 8 to 17. 17. Surprisingly by letter dated 23rd January 2012, the defendants started again to agitate for what they call “FULL IMPLEMENTATION of the Minimum Wage in Osun State”. A copy of the letter is Annex 2 herewith. 18. Following Annex 2, Government held a meeting with the defendants on 13th February 2012 where efforts were made to convince the defendants that by paying N19,012.95 Government had complied with the Minimum Wage Act (as amended) but the defendants still maintained their position that there should be 100% salary increase across board for all categories of workers in the employ of the State government. 19. The defendants again by letter dated 29th February 2012 issued a threat to Government to fully implement the Minimum Wage failing which they would take any action they deemed fit. See Annex 3 herewith. 20. Still efforts by the Government to persuade the defendants to appreciate the untenability of their position on minimum wage proved abortive. 21. As a way out of the recurrent agitations by [the] defendants over the issue of wages Government set up Osun State Salaries and Wages Committee and by letter dated 3rd April 2012 invited the defendants to nominate a member to represent them on the Committee. A copy of the letter is Annex 4 herewith. 22. The defendants however in their letter of 11th April 2012 rejected the committee and still insisted on what they call full implementation of the new minimum wage. A copy of the letter is Annex 5 herewith. 23. All efforts made by Government to get the defendants to appreciate the position maintained by Government on the issue proved abortive. 24. By letter dated 4th June 2012, the defendants gave notice to embark on strike action after the expiry of 14 days from 6th June 2012. A copy of the letter together with all the attachments is Annex 6 herewith. 25. The claimant maintains that the defendants have not complied with the provisions of the Trade Disputes Act relating to declaration of a strike action and cannot therefore lawfully embark on any strike action. 26. It will be contended at the hearing that the minimum wage of N18,000 per month stipulated by the Act is not intended to be a benchmark to construct a new wage structure as is being canvassed by the defendants. 27. The claimant will further contend at the hearing that the Act was enacted to improve the lot of the vulnerable workers and was not intended to impose an obligation on the Government to accommodate arbitrary demand for general wage increase as the defendants are asking for. 28. The strike action embarked upon by the workers earlier paralysed the activities of Government and another strike by the workers will adversely irreparably affect the economic life of Osun State. 29. Government is therefore left with no alternative than to institute this action for the immediate intervention of this court. 30. Where for the claimant claims against the defendants jointly and severally the reliefs already enumerated above. The certified true copies of the documents to be relied upon by the claimant are – 1. Salary table implementing minimum wage as agreed between Government and the defendants (Annex A). 2. Agreement signed by Government and defendants on minimum wage (Annex 1). 3. Letter dated 23rd January 201l with Ref. No. JPSNC/WW/01/29 written by defendants titled, “Full Implementation of N18,000 New Minimum Wage to Osun State Workers” (Annex 2). 4. Letter dated 29th February 2012 with Ref. No. JPSNC/WW/01/38 written by defendants titled, “Re: Full Implementation of N18,000 New Minimum Wage to Osun State Workers” (Annex 3). 5. Letter dated 3rd April 2012 with Ref. No. S.21/1/44 written by Government of Osun State headed, “Composition of the Osun State Salaries and Wages Committee” (Annex 4). 6. Letter dated 11th April 2012 with Ref. No. JPSNC/WW/01/44 written by defendants titled, “Re: Full Implementation of New Minimum Wage to Osun State Workers” (Annex 5). 7. Letter dated 4th June 2012 with Ref. No. JPSNC/WW/01/48 written by defendants titled, “Re: Full Implementation of New Minimum Wage to Osun State Workers: Notice of Strike Action” (Annex 6). The defendants at first did not enter any memorandum of appearance, or show up, or were represented by counsel, or file any defence process in this matter; and this was despite the service of the respective hearing notices on them. Order 9 of the National Industrial Court Rules 2007 enjoins a party served with a complaint and the accompanying originating processes and who intends to defend the action to file defence processes as provided therein. Order 9, therefore, recognizes the right of a defendant not to defend an action filed against him/her. And by Order 19 Rule 2, where the defendant is absent at the trial and no good cause is shown for the absence, the claimant may prove the claim in so far as the burden of proof lies upon him or her. This Rule, of course, accords with the minimal evidential requirement, which is to the effect that a plaintiff cannot assume that he is entitled to automatic judgment just because the other party did not adduce evidence before the trial court as held in Mr. Lawrence Azenabor v. Bayero University, Kano [2011] 25 NLLR (Pt. 70) 45 CA at 69 and Ogunyade v. Oshunkeye [2007] 4 NWLR (Pt. 1057) 218 SC at 247. It was as a result of all of this that the Court then permitted the claimant to argue its case even in the absence of the defendants. It was when the matter was set for judgment that Mr. Enobong Etteh, as counsel for the Nigeria Labour Congress, applied for the certified true copy of all the processes and record of proceedings in the matter. He latter on filed a motion for extension of time within which to file and serve the defence processes of the 1st and 2nd defendants. In a considered ruling on 14th December 2012, this Court rejected the application essentially on the twin grounds of absence of unsatisfactory reasons on the part of the defendants for the remiss of not coming to court when hearing notices were served on them and the fact that the said motion was a guise to arrest the judgment of the Court which had been ready since 5th December 2012. Meanwhile, Mr. Etteh had also filed another motion, this time for joinder of the Nigeria Labour Congress (National Headquarters) and the Trade Union Congress (National Headquarters) as the 4th and 4th defendants in the case. This motion was moved today, the 19th of December 2012, and rejected by the Court on inter alia the ground that the reliefs prayed for by the claimant are localized reliefs that have no bearing on the National Headquarters of the Nigeria Labour Congress and the Trade Union Congress. The claimant had earlier filed its written address in support of its claims. The claimant’s written address is dated 25th July 2012. To the claimant in its written address, going by the statement of facts and the frontloaded documents, what is essentially in dispute in this case is the interpretation of the National Minimum Wage Act Cap. N61 LFN 2004, as amended by the National Minimum Wage (Amendment) Act 2011 and the Trade Disputes Act Cap. T8 LFN 2004. This being the case, the claimant the urged that with the documents referred to as Annexes above, the Court can determine this suit without the need for any oral evidence from the parties. That being certified true copies the documents will be tendered from the bar. This was, however, not necessary as the practice in this Court, going by sections 36 and 37 of the Trade Disputes Act 2004, section 12 of the National Industrial Court Act 2006 and Kurt Severinsen v. Emerging Markets Telecommunication Services Limited [2012] 27 NLLR (Pt. 78) 374 at 454, in allowing the frontloading of documents assumes them to be automatically admitted except specifically objected to by the opposing party. The question of the weight or probative value to be attached to the frontloaded documents is, however, separately and independently considered by the Court when evaluating the frontloaded documents. Since the issue in dispute centered on the interpretation of the National Minimum Wage Act, as amended, and the Trade Disputes Act, the claimant submitted that it would be necessary to start off with the approach a court should adopt when interpreting a statute. The claimant then referred the Court to Abioye v. Yakubu [1991] 5 NWLR (Pt. 190) 130 at 233 H where the Supreme Court held as follows – It is well settled that the purpose of the court in interpreting a statute is to discover the intention of the law maker. The most appropriate route to and the key to the intention of the law maker and therefore the purpose of the law is through the words used. See Ifezue v. Mbadugha [1984] 1 SCNLR 427; Estate of Soule v. Johnson [1974] 12 SC 121. Where the words of a statute are clear and unambiguous, they should be given their plain ordinary grammatical meaning – See Lawal v. G.B. Ollivant [1972] 2 SC 124; Aya v. Henshaw [1972] 5 SC 87. However, where the word to be construed has been assigned a meaning in the definition of the statute the intention of the law maker is that the meaning so assigned is to be given to that word in that statute, unless the subject or context renders the meaning repugnant. The claimant also referred the Court to Odubeko v. Fowler [1993] 7 NWLR (Pt. 308) 637 at 668 D – F and Balonwu v. Governor, Anambra State [2009] 18 NWLR (Pt. 1172) 13 at 43. Now, to the claimant, the National Minimum Wage (Amendment) Act 2011 provides in its section 1(1) as follows – (1) As from the commencement of this Act, it shall be the duty of every employer (except as provided for under the principal Act as amended) to pay a wage not less than the national minimum wage of N18,000.00 per month to every worker under his establishment. It is this provision that has become a subject of dispute between the Government of Osun State and the defendants. The claimant then contended that the position of the defendants on the Act is that it puts a duty on the State Government to increase the salaries of all workers (including those hitherto earning more than N18,000 per month) and that the N18/000 minimum wage should be the baseline for increment of salaries for all grade levels. The Government of Osun State on the contrary maintains that the Act was not intended to lay down a benchmark to construct a new wage structure for all Grade Levels from 1 to 17 but rather to improve the lot of the vulnerable workers such that no worker in the State’s employ within the contemplation of the Act should earn less than N18,000 per month. To the claimant, the pivotal issue then is which category of workers the Act is intended to benefit. That from Annex 1 signed by the parties on 9th September 2011, there had been an industrial crisis on the issue of minimum wage but the claimant and the defendants were able to reach an agreement over a minimum wage of N19,012.95, which is in excess of the N18,000 Naira prescribed in the Act. Based on the agreed new minimum wage of N19,012.95 a new salary table (Annex A) was prepared, which the Government of Osun State has been faithfully implementing. That, as indicated at paragraph 3 of Annex 1, the new salary table also benefited workers on Grade Levels GL 08 to GL 17. The claimant continued that notwithstanding its concession to pay a minimum wage of N19,012.95, the defendants have continued in Annexes 2, 3, 5, and 6 to press for what they call “full implementation of new minimum wage to Osun State Workers” and have given notice in Annex 6 to embark on a strike action within fourteen days from 6th June 2012 if their demand was not met. That it was the interim order of injunction granted by this court on 18th June 2012 that stopped the defendants from embarking on the threatened strike action. The claimant then reiterated that the pivotal issue giving rise to this case is to determine whether the Act was intended to increase the salary of workers generally with N18,000 being the benchmark on which to erect a new salary structure as the defendants are claiming or whether only a category of workers are intended to benefit from the minimum wage. To the claimant, since the Act provides for payment of N18,000 per month minimum wage to every worker it is, therefore, central to the resolution of the issue to determine who is a worker within the meaning of the National Minimum Wage Act. The word ‘worker’ is not defined in the National Minimum Wage (Amendment) Act, 2011 but the word is defined in the Principal Act as follows – “worker” means any employee, that is to say, any member of the civil service of the Federation or of a State or local government or any individual (other than persons occupying executive, administrative, technical or professional position in any such civil service) who has entered into or works under a contract with an employer, whether the contract is for manual labour, clerical work or otherwise, expressed or implied, oral or in writing and whether it is a contract personally to execute any work or labour. To the claimant, it is obvious from this definition that workers in the administrative, technical and professional categories are not within the contemplation of the National Minimum Wage Act. It is only workers who are not in the administrative, technical and professional categories who may benefit from the Act. That, as held in the passage quoted from the case of Abioye v. Yakubu (supra), when a word has been defined in the statute, it is that meaning that the court should give to the word. The claimant also referred the Court to Evans Brothers v. Falaiye [2003] 13 NWLR (Pt. 838) 564 in which the Court of Appeal had to construe the meaning of the word ‘worker’ under the Labour Act. Relying on the definition of the word in the Labour Act, the Court held that the word ‘worker’ does not include those who work in the administrative, technical or professional class. The claimant went on that the meaning assigned to the word ‘worker’ in the Labour Act is wider than the definition of the word in the National Minimum Wage Act (the principal Act) but it is significant that the Court of Appeal found that the definition of the word ‘worker’ in the Labour Act excluded those who work in the administrative, technical or professional class. That in the instant case, the word ‘worker’ in the National Minimum Wage (Amendment) Act 2011 can only bear the meaning assigned to the word in the principal Act and it is to the effect that it does not include those in the administrative, technical and professional classes. It is only those engaged on clerical work or manual labour that are the focus of the Act. To the claimant, therefore, the agitation of the defendants that the National Minimum Wage Act as amended was intended to benefit all categories of workers from GL l to GL 17 manifests a misconception of the true import of the Act. The Act, as amended, was not intended as a general salary increase for all categories of workers in the employ of the Government of Osun State but rather to institute a minimum wage of N18,000 per month for workers who are not in the administrative, technical and professional classes such that none of them shall earn below N18,000 per month, urging the court to so hold. The second issue addressed by the claimant was whether defendants can embark on strike action; and that the question for consideration here is whether, with the notice given by the defendants in Annex 6, they are entitled to call out workers of Osun State Government on strike to protest what they call non-implementation of full national minimum wage. It is the submission of the claimant that the defendants are not so entitled. That section 40 of the Trade Disputes Act makes the Act applicable to a State trade dispute as it applies to other trade disputes. In that sense, it means as provided in section 18 of the Act that no worker shall take part in a strike in connection with any trade dispute where the procedure specified in section 4 or 6 of the Act has not been complied with in relation to the dispute. Section 4 of the Act requires that parties to a dispute should first attempt to settle the dispute by any existing agreed means for settlement of disputes. If the agreed means of settlement fail to resolve the dispute or there is no existing agreed means of settlement the parties shall within seven days of the failure of the efforts to resolve the dispute or where no such agreed means of settlement exists, the parties shall within seven days of the date on which the dispute arises or is first apprehended meet together under the presidency of a mediator mutually agreed upon and appointed by the parties or on their behalf. That the failure of the efforts of the mediator to settle the dispute should lead to an engagement of section 6 of the Trade Disputes Act which requires a report to the appropriate State Commissioner within seven days of the failure of the efforts of the mediator. With such a report the State Commissioner is obliged to carry out the functions of the Minister under sections 7, 8 and 9 of the Act. While the State Commissioner is exercising the functions under sections 7, 8 and 9 of the Act, or after the dispute has been referred to the Industrial Arbitration Panel, or an award has been made, or the dispute has been referred to the National Industrial Court (NIC), or the NIC has issued an award on the reference, it is prohibited by section 18 of the Act for any worker to take part in a strike action in connection with the dispute. That, unless this elaborate procedure has been exhausted, it is illegal for any person to embark on a strike action. Section 18(2) of the Act stipulates punishment of fine or imprisonment for any contravention of the Act. To the claimant, within the context of the procedure stipulated in the Trade Disputes Act for a strike action, it is incontestable that the notice of strike action given by the defendants in Annex 6 is in contravention of the provision of section 18(1) of the Act and is, therefore, unlawful. That the defendants are, therefore, not entitled to embark on the threatened strike action or any other one except there has been compliance with the requirements of section 18 of the Act. In conclusion, the claimant urged the court to grant all the reliefs it claims. The matter at hand raises two issues, namely – 1. Whether the National minimum Wage Act was intended to increase the salary of workers generally with N18,000 being the benchmark on which to erect a new salary structure or whether only a category of workers are intended to benefit from the minimum wage. 2. Whether the defendants can embark on a strike action in the circumstances of the case. In considering the case at hand, I must state that I am conscious of the significance of this case. It must be noted that section 254C(1)(e) gives this Court exclusive jurisdiction over civil causes and matters relating to or connected with any dispute arising from national minimum wage for the Federation or any part thereof and matters connected therewith or arising there from. The matter at hand (especially the question whether the National Minimum Wage Act was intended to increase the salary of workers generally with N18,000 being the benchmark on which to erect a new salary structure or whether only a category of workers are intended to benefit from the minimum wage), therefore, comes within the jurisdictional competence of this Court. Annex 1 is an agreement on the implementation of the N18,000.00 new Minimum Act between Osun State Government; JNC I, II & III; NUT and NULGE. It is signed by two representatives of Osun State Government and 14 representatives of labour unions. It was agreed to and signed on 9th September 2011 by the 16 signatories who signed it. Clauses 1, 2 and 3 of this agreement are pertinent for present purposes. By those clauses, the parties agreed to – 1. Approve for implementation the signed new salary table based on the minimum wage of N19,012.95. 2. That the salary of Officers on GL08 to GL17 will further be upwardly reviewed as soon as the financial position of the Government improves. 3. The implementation of the signed new salary table takes effect from 1st of August, 2011 for officers on GL08 to GL17, while those of GL01 – GL07 takes effect 1st March, 2011. In Annex 2, representatives of labour wrote to the Osun State Government formally demanding for full implementation of the minimum wage as per clause 2 of the agreement of 9th September 2011 (Annex 1). Annex 3 reiterated the demand for the full implementation of the minimum wage and gave a 14-day ultimatum to that effect. The reaction of the claimant vide Annex 4 was to set up the State Salaries and Wages Committee with a call on the defendants to send in the name of a nominee to represent them on the Committee. The defendants rejected this offer vide Annex 5 arguing that the setting up of the Committee usurped the statutory functions of the Joint Public service Negotiating Council. They reiterated their demand for full implementation of the minimum wage and threatened industrial action. By Annex 6, the defendants felt their patience had waned and was exhausted, and gave a 14-day ultimatum for the full implementation of the minimum wage or workers would embark on an industrial action to press home their demand. What I can deduce from all of this is that by full implementation of the minimum wage, the defendants are essentially talking of clause 2 of the agreement of 9th September 2011 (Annex 1); and this relates to the full implementation of the minimum wage as it relates to the salary of officers on GL08 to GL17. This means that there is no dispute regarding officers on salary GL01 to GL07. The implementation of Clause 2 of the Annex 1, which is the upward review of the salaries of officers on GL08 to GL17, is, however, hinged on the financial position of the Government improving. Although Annex 2 in paragraph 3 states that the defendants “observe that the revenue of the State has not declined rather it has been improving since we signed the Agreement”, there is no evidence in the case file to support this assertion. The question which, therefore, yields for consideration here is whether there is an obligation to review upward the salaries of officers on GL08 to GL17 on the ground that an upward review of the minimum wage must necessarily imply that all other salary grades must also be upwardly reviewed. This is the crux of the first issue raised by the claimant. To be able to determine the first issue raised by the claimant, it would be necessary to consider the national minimum wage law. Section 2 of the National Minimum Wage (Amendment) Act 2011 provides that section 1 of the Principal Act [the Principal Act is the National Minimum Wage Act Cap. N61 LFN 2004] is amended in subsection (1) by substituting for the existing subsection (1) a new subsection (1) as follows – As from the commencement of this Act [the Act was assented to on 22nd March 2011], it shall be the duty of every employer (except as provided for under the principal Act as amended) to pay a wage not less than the national minimum wage of N18,000.00 per month to every worker under his establishment. By section 1(2) of the National Minimum Wage Act 2004, “any agreement for the payment of wages less than the national minimum wage as prescribed in subsection (1) of this section, shall be void and of no effect whatsoever”. Section 2 of the National Minimum Wage Act the provides for exemptions as follows – (1) The provisions of subsection (1) of section 1 shall not apply to – (a) an establishment in which less than fifty workers are employed; (b) an establishment in which workers are employed on part-time basis; (c) an establishment at which workers are paid on commission or on piece-rate basis; (d) workers in seasonal employment such as agriculture; (e) any person employed in a vessel or aircraft to which the laws regulating merchant shipping or civil aviation apply. Section 9 (the interpretation section) of the National Minimum Wage Act 2004 then goes on to provide that – “worker” means any employee, that is to say, any member of the civil service of the Federation or of a State or local government or any individual (other than persons occupying executive, administrative, technical or professional position in any such civil service) who has entered into or works under a contract with an employer, whether the contract is for manual labour, clerical work or otherwise, expressed or implied, oral or in writing, and whether it is a contract personally to execute any work or labour. The argument of the claimant (which I find tenable) is that in defining the word “workers”, the law itself has delimited the scope of workers that the minimum wage applies to. In line with the mandate of this Court (under section 7(6) of the National Industrial Court Act 2006) to apply international best practice when adjudicating, the question that arises is whether the delimitation of the scope of workers that are covered by the minimum wage provisions of the law as argued by the claimant accords with such international best practice. The duo of Hansjörg Herr and Milka Kazandziska in their study, Principles of Minimum Wage Policy – Economics, Institutions and Recommendations (International Labour Organization: Geneva), 2011 actually posed the questions: does minimum wage(s) have the function of changing the wage structure? Or does it have the broader objective or purpose of determining the general development of the wage level? In other words, should there be an automatic development of wages after minimum wages have been set? In answer, the duo generally made the distinction between minimum wage as it affects the lower rung of wage earners and a general or automatic development or increase in wage levels across the board; and then acknowledged that what policy option is adopted by a country would depend on its peculiarity in terms of the power and strategy of the trade unions and government alike, and the specific economic, social and political conditions in the country (like elections). For instance, the duo acknowledged that globally, there are differences between countries in terms of the number of minimum wages set for different regions and/or different occupations, age, qualifications, etc. within the same country. In the UK, Iran, Nigeria or Turkey, for example, there is one national minimum wage; but in India, Cambodia and Malaysia, there are multiple minimum wages depending on the regions, occupations, qualifications, etc. Another important aspect the duo considered is the minimum wage coverage, or who is covered by the minimum wage and if there are any sectors/groups which are exempted from minimum wages. Here they recommended that there should be no or there should only be minor exceptions from the minimum wage (as in Russia, Turkey or Malaysia). However, big exceptions can be found for example in China where the public sector and the agricultural sector are excluded and in Cambodia where the public sector and the domestic workers sector are excluded. They found that Nigeria is one example where companies with less than 50 employees are allowed to pay lower wages than the minimum wage, which also is the case for part-time employees, seasonal workers and companies where workers are paid on commission or piece-rate basis, which essentially means that the small enterprise sectors do not have to pay minimum wages. To the duo, statutory minimum wages are not a substitute for wage bargaining. The main purpose of minimum wages is to set a floor for wages in the whole economy. Unions can and whenever possible should increase the wages of the lowest paid above the minimum wage. The duo went on to state that, especially in some developing countries, minimum wage negotiations in tripartite bodies have become a substitute for wage bargaining. In these cases minimum wage development becomes the anchor for the determination of almost all wages in the economy which is why the process of setting the minimum wages plays a very significant role in the labour market. The wage round starts with the determination of the minimum wage; the other wages are then adjusted accordingly without usually changing the wage structure. That in Viet Nam, for instance, there is a minimum wage multiplier through which the wages of all workers in all sectors of the economy are automatically arranged. To the duo, when this type of linkage between minimum wages and wages in the economy exists, statutory minimum wages crowd out independent and additional collective bargaining. The duo, however, opined that in their judgment this model of wage bargaining is not ideal. It reflects that unions are unable to organise collective bargaining in firms or at the industry level. That this can result from a fundamental weakness of unions, and/or that unions are not allowed to bargain wages as in some former planned economies. What of all of this portends is that there is nothing fundamentally wrong with the National Minimum Wage Act 2004 and as amended in delimiting the scope of workers that it applies to. The National Minimum Wage Act only sets out the minimum benchmark of wages that those it defined as entitled beneficiaries cannot be made to earn anything lower. See section 1(2) of the National minimum Wage Act 2004. So when in Annex 1 (the agreement of 9th September 2011) the minimum wage was put at N19,012.95, the requirement of the National Minimum Wage Act as amended in 2011 was met; and I so hold. But the National Minimum Wage Act does not foreclose an increase over and above the minimum benchmark. Section 1(2) of the National Minimum Wage Act 2004, in providing that “any agreement for the payment of wages less than the national minimum wage as prescribed in subsection (1) of this section, shall be void and of no effect whatsoever” implicitly permits an amount over and above the N18,000 threshold (just as Annex 1 did) or even the class of workers covered. In other words, an employer is free to agree with its workers for the payment of more than N18,000 as minimum wage (as in Annex 1) or to agree there be an automatic and corresponding increase of wages across all grade levels after the minimum wage has been set (as clause 2 in Annex 1 sought to do). Where such an agreement exists, it is valid and will be binding as a collective agreement. That the parties in this suit entered into the agreement of 9th September 2011 (Annex 1) is perfectly legal. This agreement takes a life of its own and in its right creates rights and obligations independent of the National Minimum Wage Act, and which this Court under section 254C(1)(j)(i), (iv) and (v) of the 1999 Constitution, as amended, can interpret and apply as a collective agreement or as terms of settlement of a trade dispute or as a memorandum of settlement of an employment dispute, as the case may be. The only snag here is the enforceability of clause 2 of the said agreement given that there is no evidence before the Court to show that the financial position of the Osun State Government has improved since 9th September 2011 to warrant the upward review of the salaries of officers on GL08 to GL17 as demanded by the defendants; and I so hold. The second issue raised by the claimant is whether the defendants can embark on a strike action in the circumstances of the case. In arguing this issue, the claimant made submissions that seem to suggest that the resolution of this issue is regulated by the provisions of Part V of the Trade Disputes Act 2004, the Part dealing with State trade disputes. The argument of the claimant where references were made to actions that ought to pertain to the appropriate State Commissioner is a pointer to this. Yet the provisions of Part V of the Trade Disputes Act cannot apply unless the Minister of Labour under section 40(3) of the Trade Disputes Act by order published in the Federal Gazette delegates either generally or in respect of any particular State trade dispute, his powers under the Trade Disputes Act to the appropriate State Commissioner. Unless this delegation is appropriately made, the provisions of Part V of the Trade disputes Act cannot be used to resolve any State trade dispute. There is no evidence before this Court that such a delegation has been made to warrant calling in aid the provisions of Part V of the Trade Disputes Act. This means that the dispute in issue remains governed by the general law that regulates the carrying out of a strike action, which today consists essentially of the Trade Unions Act as amended in 2005 and the provisions of the Trade Disputes Act co-opted by the said Trade Unions Act, as amended. Section 31(6) of the Trade Unions Act Cap T14 LFN 2004, as amended by the 2005 Amendment, is the current law regulating the right to strike. It provides as follows – No person, trade union or employer shall take part in a strike or lockout or engage in any conduct in contemplation or furtherance of a strike or lockout unless – (a) the person, trade union or employer is not engaged in the provision of essential services; (b) the strike or lockout concerns a labour dispute that constitutes a dispute of right; (c) the strike or lockout concerns a dispute arising from a collective and fundamental breach of contract of employment or collective agreement on the part of the employee, trade union or employer; (d) the provisions for arbitration in the Trade Disputes Act, Cap. T8, Laws of the Federation of Nigeria, 2004 have first been complied with; and (e) in the case of an employee or a trade union, a ballot has been conducted in accordance with the rules and constitution of the trade union at which a simple majority of all registered members voted to go on strike. Given the facts and evidence available before me, there is nothing indicative that the defendants are engaged in or not engaged in the provision of essential services; there is nothing indicative that the provisions of the Trade Disputes Act for arbitration have been complied with; and there is nothing indicative that a ballot has been conducted in accordance with the respective rules and constitution of the defendants at which a simple majority of all registered members voted to go on strike. This means that there is no proof that the requirements of section 31(6)(a), (d) and (e) of the Trade Unions Act, as amended, have been met. However, to the extent that the dispute in issues concerns the implementation of minimum wage, already fixed and statutorily provided for, the dispute qualifies as one of right (thus meeting the requirement of section 31(6)(b) of the Trade Unions Act, as amended); and given that Annex 1 (the agreement of 9th September 2011) qualifies as a collective agreement (see section 48(1) of the Trade Disputes Act 2004 and section 54(1) of the National Industrial Court Act 2006,) and the issue in dispute relates to the implementation of clause 2 of Annex 1, the requirement of section 31(6)(c) of the Trade Unions Act, as amended, has been met. The manner in which the requirements of section 31(6) of the Trade Unions Act, as amended, are provided for suggests that all of them must be met before the right to strike can arise. The non-satisfaction of any of them necessarily means that the right to strike has not arisen and so cannot be exercised. Since there is no evidence before this Court that the requirements in section 31(6)(a), (d) and (e) of the Trade Unions Act, as amended have been met, the threatened strike action of the defendants cannot be legal and valid. On the whole and for the reasons given, I declare and hold as follows – 1. The duty imposed on Osun State Government as an employer covered by the National Minimum Wage Act (as amended) is to pay a wage not less than the national minimum wage of N18,000 per month to every worker as defined in the principal Act under its establishment. 2. The National Minimum Wage Act (as amended) places no obligation on Osun State Government to effect an increase of salaries 100% across board for all workers in the employ of Osun State Government, but rather to ensure that the least paid worker excluding persons occupying executive, administrative, technical or professional positions in the Osun State Public Service does not earn below N18,000 per month. 3. The National Minimum Wage Act (except as permitted by section 2(1) of the Act itself) forecloses the payment as minimum wage of an amount lower than the N18,000 benchmark it sets; but it does not foreclose an increase over and above N18,000. 4. The National Minimum Wage Act further forecloses the category of workers covered by the Act but this does not preclude parties entering into a separate agreement to widen the category of workers to be covered. 5. The agreement of 9th September 2011 is valid and binding as a collective agreement, and has a life of its own capable of generating rights and obligations independent of the National Minimum Wage Act. 6. Osun State Government has complied with the requirement of the National Minimum Wage Act (as amended) by approving and paying the minimum wage of N19,012.95 per month to every worker in the employ of Osun State Government that are covered by the Act. 7. The defendants cannot lawfully call out workers in the service of Osun State Government to embark on any strike without complying with the provisions of section 31(6) of the Trade Unions Act Cap. T14 LFN 2004, as amended. 8. The defendants by themselves, their agents, servants and or privies or otherwise howsoever are hereby restrained from mandating, calling out, directing and encouraging or in any other manner moving or instigating the workers in the employ of Osun State Government to embark on any strike action without first complying with the provisions of section 31(6) of the Trade Unions Act Cap. T14 LFN 2004, as amended. 9. I make no order as to cost. Judgment is entered accordingly. …………………………………… Hon. Justice B. B. Kanyip