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COLLECTIVE BARGAINING, STRIKES AND THE QUEST FOR INDUSTRIAL PEACE

COLLECTIVE BARGAINING, STRIKES AND THE QUEST FOR INDUSTRIAL PEACE IN NIGERIA

By O. V. C. Okene

1. Introduction
Nigeria has recently witnessed a huge increase in the number of industrial actions. No
day passes in Nigeria without strikes or threats of strikes in one form or another.1 What
was once thought to be a ‘British disease’2 seems to have become a Nigerian disease.
In fact, strikes have become so endemic in Nigeria that even our courts would be
prepared to take judicial notice of them.3 This development, however, is not very healthy.
In the first place, it destroys the desired growth and development in the economy and
secondly, Nigeria’s desire to encourage foreign investment will be hindered as no
serious foreign investor will be willing to put down investments in a country bedeviled by
bitter industrial disputes and strikes over wages and conditions of service. The
implication of withdrawal of foreign investments may appear as another indication of a
nose-diving economy.4
There is a firm international consensus that the right to freedom of association enables
the workers to aggregate, join and form trade unions for the protection of their economic
and other interests.5 Freedom of association is the key enabling right and the gateway to
the exercise of a range of other rights at work.6 When workers join and form trade unions
they are entitled to recognition for the purpose of collective bargaining with the employer
with a view to improving the terms and conditions of the employment of workers. Thus,
recognition of the workers right to freedom of association carries with it the recognition of
the right to collective bargaining, as one of its important components.
Collective bargaining constitutes an important means by which workers seek to satisfy
their economic and social interests. Successful collective bargaining is crucial to the
attainment of industrial peace in Nigeria. Nigerian labour law provides for automatic
recognition of trade unions for collective bargaining purposes. This means that the
employer must recognise registered trade unions in his establishment and bargain with
such unions in their bid to safeguard their economic interests in employment. The duty to
recognise a trade union is coterminous with the duty to negotiate with it and conclude
agreements. Thus, a refusal by an employer to recognise and bargain with a union or
adhere to the agreement arrived at could lead to strikes by the workers to realise such
improvements in working conditions.
Thus, while the constant strikes in Nigeria may affect growth and development in the
economy, the question here is why do workers go on strike? What is it that motivates
strikes? Or to put it another way, why is there lack of industrial peace in Nigeria? The
main justification for industrial action is the failure of collective bargaining. When workers
and employers engage in collective bargaining there is no guarantee that the outcome
will always be successful. Even where bargaining is successful there is similarly no
guarantee that the resulting agreement will be honoured. Consequently, unsuccessful
bargaining or failure to adhere to agreed terms naturally lead to industrial action and the
dislocation of industrial peace. Clearly the cause of the incessant strikes and lack of
industrial peace in Nigeria is the failure of collective bargaining.
The aim of this article is to consider the role of collective bargaining and strikes in the
quest for industrial peace in Nigeria. In the first part we shall examine the concept,
rationale and purposes of collective bargaining. The second part considers the link
between collective bargaining and the right to strike and the third part considers some of
the factors that provoke workers to undertake industrial action. This article argues and
demonstrates that collective is a veritable instrument of industrial peace but that the lack
of industrial peace in Nigeria is due to the aloof attitude of employers in Nigeria to
sincerely negotiate and implement concluded agreements. The article argues that such
behaviour is a violation of the principle of collective bargaining in international law and
this gives legitimacy to incessant strikes. The article further argues that if industrial
peace must be achieved in Nigeria then employers, including the government, must take
collective bargaining and the negotiation and implementation of agreements very
seriously.

2. CONCEPT OF COLLECTIVE BARGAINING
Collective bargaining involves a process of consultation and negotiation of terms and
conditions of employment between employers and workers, usually through their
representatives. It involves a situation where the workers union or representatives meet
with the employer or representatives of the employer in an atmosphere of mutual
cooperation and respect to deliberate and reach agreement on the demands of workers
concerning certain improvements in the terms and conditions of employment. Under
Nigerian law, Section 91 of the Labour Act7 defines collective bargaining as the process
of arriving or attempting to arrive at a collective agreement.8
Two essential conditions for collective bargaining to occur include the freedom to
associate and the recognition of trade unions by employers. This means that workers
must be at liberty to associate and to join or form trade unions in order to be able to
bargain collectively. There seems to be an established link between freedom of
association and collective bargaining, since there would be no point in giving workers
the right to organize if they could not bargain collectively. Collective bargaining is
recognised and protected by the ILO and generally in international law9.

2.1 The ILO and Collective Bargaining
The International Labour Organisation is the pre-eminent authority on international
labour standards. The ILO provides the major human rights instruments that guarantees
and advances the right to collective bargaining throughout the whole world. In the 1944
Declaration of Philadelphia which is now part of the ILO Constitution the role of the ILO
in the promotion of collective bargaining was acknowledged. The Declaration affirmed
“the solemn obligation of the international Labour Organisation to further among the
nations of the world programmes which will achieve…the effective recognition of the
right of collective bargaining.”10
The ILO Convention 98 on the Right to Organise and Collective Bargaining which was
adopted in 1949 is the main source of workers right to collective bargaining. Apart from
Convention 98, there are numerous other Conventions and Recommendations which
promotes collective bargaining between workers and their employers such as
Convention No. 154 Collective Bargaining Convention 1981, Convention No. 135
Workers’ Representative Convention 1971, and Convention No. 151 on the right of
public employees to organise.11
The ILO has consistently considered freedom of association and the right to collective
bargaining to be among the core rights that are at the heart of ILO’s mission. Outside
these Conventions and Recommendations, the significance of the right to collective
bargaining has severally been acknowledged by the ILO Committee on Freedom of
Association. Several years ago the Committee declared that:
The right to bargain freely with employees with respect to conditions of
work constitutes an essential element in freedom of association, and
trade unions should have the right, through collective bargaining or
other lawful means; to seek to improve the living and working
conditions of those whom the trade unions represent and public
authorities should refrain from any interference which would restrict
this right or impede the lawful exercise thereof.12
Recently, in June 1998, the ILO adopted the Declaration on Fundamental Principles
and Rights at Work. The Declaration embodies the principles of eight fundamental
Conventions and all member States are required to observe these principles
regardless of ratification, as a condition of membership. As stated in the Declaration:
“all Members, even if they have not ratified the [fundamental] Conventions, have an
obligation, arising from the very fact of membership in the Organisation, to respect, to
promote and to realise, in good faith and in accordance with the Constitution, the
principles concerning the fundamental rights which are the subject of those
[fundamental] Conventions.”13 The principles referred to in the Declaration include
freedom of association and the effective recognition of the right to collective
bargaining, the elimination of forced and compulsory labour, the effective abolition of
child labour and equal remuneration and elimination of discrimination in occupation
and employment.
There can be little doubt that the ILO has demonstrated its support for collective
bargaining as a means through which the protection of the economic and social
interests of workers can be achieved. Though not specifically mentioned in Convention
87 or 98, a long tradition of ILO jurisprudence has also established the right to strike as
an essential component of collective bargaining. We shall return to this link between
collective bargaining and the right to strike shortly.

2.2 Collective Bargaining Framework in Nigerian Law
As a former British colonial territory, Nigeria inherited certain socio-economic and
political values and institutions. Nigeria’s industrial relations system is one of such
British colonial legacies. It was fashioned in line with the British industrial relations
system whose “ main feature is the voluntary machinery which has grown up over a
wide area of employment from industry-wide collective bargaining and discussion
between employers’ associations and trade unions over terms and conditions of
employment.”14
It was this basic characteristic of the British industrial relations system that is, the
doctrine of voluntarism that was entrenched in Nigeria’s industrial relations. Okotie-
Eboh, Nigeria’s Minister of Labour in the First Republic, perhaps, puts the picture clearly
when he stated:
We have followed in Nigeria the voluntary principle which was so important
an element in industrial relations in United Kingdom…compulsory methods
might occasionally produce a better economic or political result, but labourmanagement
must, I think, find greater possibilities, mutual harmony where
results have been voluntarily arrived at by free discussion between two
parties. We in Nigeria, at any rate, are pinning our faith on voluntary
methods.15
It was against this background that the principle of free and voluntary collective
bargaining was pursued. Thus non-interventionism and voluntary collective bargaining
prevailed to a great extent as the main method of regulating labour relations in Nigeria.
However it must be noted that statutory intervention has taken place principally
designed to strengthen the process of collective bargaining and industrial relations or to
serve as substitutes for non-existent or non-functioning collective bargaining.16
Under Nigerian Labour Law, the most important step in the collective bargaining
procedure is for the employer or the employers’ association to recognise the trade union
as a bargaining agent for the employees within the bargaining unit, in relation to terms
and conditions of employment. Section 24 of the Trade Unions Act provides that for the
purposes of collective bargaining all registered Unions in the employment of an
employer shall constitute an electoral college to elect members who will represent them
in negotiations with the employer. Similarly, for the purpose of representation at
Tripartite Bodies or any other body the registered Federations of Trade Unions shall
constitute an electoral college taking into account the size of each registered
Federation, for the purpose of electing members who will represent them.17 Where a
trade union is recognised, the next step is for a recognition agreement to be drawn up to
determine how the negotiations will be conducted, the composition of the machinery and
other procedural matters.
Once a trade union has been recognised and a recognition agreement is drawn up
between the parties bargaining can then proceed as provided by the law. In this regard,
the Wages Board and Industrial Councils Act 199018 provides for three bargaining fora
in Nigeria. The three fora have appropriate wages and conditions of service as their
main objective. Bargaining can be effected by Industrial Wages Boards, National Wages
Board and Area Minimum Wages Committees or by Joint Industrial Councils.19

2.3 Purposes of Collective Bargaining
The principal purpose of collective bargaining is to settle and determine terms and
conditions of employment. Improvements in the terms and conditions of workers
employment is the chief task of trade unions and collective bargaining is the major
means whereby trade unions can ensure that the terms and conditions of employment
given to their members are adequate.20 The primary aim of workers engaging in
collective bargaining has been expressed thus:
By bargaining collectively with management, organised labour seeks to
give effect to its legitimate expectations that wages and other conditions
of work should be such as to guarantee a stable and adequate form of
existence and as to be compatible with the physical integrity and moral
dignity of the individual, and also that jobs should be reasonably
secure.21
It is because of the apparent imbalance of power between the employees and employer
that has necessitated the desire of workers to come together. Workers appreciate that
bargaining will give them near equal relationship with their employer. They realise that
against the power of employers, the individual worker has almost no bargaining power
and the chances of improving conditions of work is slim. Workers can best strengthen
their negotiating position by uniting and bargaining collectively with employers. Workers
have resorted to collective action because by banding together, they are able to
consolidate their strength far more effectively than they could as individuals.22 As the
Donovan Commission noted:
Properly conducted, collective bargaining is the most effective means of
giving workers the right to representation in decisions affecting their
working lives, a right which is or should be the prerogative of every
worker in a democratic society.23
More specifically, we can identify four broad objectives or functions of collective
bargaining to be the need for democracy in the workplace, redistribution, and the
maintenance of efficiency.24
.

2.3.1 Workplace Democracy
Perhaps the most important justification for collective bargaining lies in its democratic
attributes. It is understandable that the individual employee needs his job with an
employer more than the employer may need him. This is because the employer can
easily replace the employee with a substitute worker. The individual employee has no
guarantee of finding jobs if he decides to leave his employment. In any case, in the
event of conflicts the employer has more ability to sustain struggles than the individual
employee.25 This is why the employment relationship is often characterised by inequality
of bargaining power.26 This inequality means that individual employees are not able to
take part in decisions that affect their working lives. But by joining forces and acting in
concert, workers can be able to change this situation as the employer will certainly be
concerned about the possibility of losing all of his employees even if not permanently.
Besides, a trade union can also provide financial support to sustain the period of
struggle. Collectively bargaining therefore enables workers to acquire some bargaining
power-“countervailing power” to that of their employer.27 This is not to say however that
the employer and the employees now possess equal bargaining power, but the
imbalance of power can be expected to be highly reduced under a regime of collective
bargaining.28
More particularly, there are two separate attributes of collective bargaining that bring out
its democratic nature. One is that collective bargaining has a “civilizing impact upon the
working life and environment of employees” or subjects the employer to “a rule of law.”29
Employees are generally subject to the control and command of their supervisors and
managers. Their career prospects are in many cases dependent on decisions taken by
the managers in the workplace. Collective agreements set rules on how workers should
be treated. There are rules on promotion, increase in salary or wages, discipline, among
other. Without workplace rules being made through collective bargaining and enforced
through procedures for arbitration, managerial decisions concerning employees may not
meet the demands of justice and fairness. This transforms the situation of individual
employees, as they are no more subject to the whims and caprices of their employers.
With collective agreement, management decisions must comply with the rules set out in
the agreement. Collective bargaining therefore ensures that the employers do not act
like a dictator, but is subject to a ‘rule of law’. This makes the relationship between the
parties to be democratic.
The second attribute of collective bargaining is that it gives employees the ability to
voice their views and concerns and to generally participate in the self-government of the
workplace. When acting collectively employees have the opportunity to convey their
dissatisfaction and voice their concerns without fear of loosing their jobs30, unlike when
an employee is acting individually. Thus with a collective voice employees can bring
about changes in a broad range of issues in the workplace such as how the way they
are being treated, the way the workplace operates and the future and management of
the firm.31 Furthermore, by acting collectively employees can bring about joint
management by threatening the employer with the withdrawal of their services. Thus
corporate decisions on important issues are taken after negotiations with a compromise
struck between the interest of management and those of the employees. This gives the
workers the opportunity to actively participate in the formulation of decisions on matters
that affect their lives. This can be seen as a form of democratic self-government.

2.3.2 Redistribution of Power
A second function of collective bargaining is to redistribute power and resources from
employers to employees. This function is based on the fact that the employers, as we
have stated above, usually possess superior bargaining power as against individual
employees and because of this power imbalance the resulting terms and conditions of
employment are unfair and unjust. This assumption seems to be based on redistributive
justice and in fact underlies most regulations that allow and promote collective
bargaining.32 Through collective bargaining workers appear to improve their conditions
at the expense of the employer’s profits through redistribution from the employer’s
profits to the employees’ higher wages.33 Collective bargaining is also credited for
reducing inequalities by creating pay policies that limit managerial discretion.34 Also
collective bargaining has enabled unions to standardise wages across firms within the
same industry.35 On the whole, collective bargaining is acclaimed to be a useful
mechanism to reduce inequality by redistribution of power and resources.

2.3.3 Promotion of Efficiency
A third function of collective bargaining is that it helps to promote economic efficiency by
limiting industrial conflict in the workplace. As a matter of fact, most laws which promote
collective bargaining were designed to limit industrial conflict which is seen as inimical to
efficiency.36 Through collective bargaining there is an information flow between workers
and from workers to management, morale is higher, and firm-specific investments are
increased. This is because collective bargaining gives job security and there is every
motivation for labour and management to corporate to increase productivity.
Other efficiency attributes of collective bargaining can be seen in the fact that it can also
improve the administration and enforcement of workers rights, facilitate investment in
training of workers, restrict management from discriminating between workers or
opportunistic decisions such as firing some workers just before they become eligible for
pension rights. In fact, it is generally recognised that the ability of trade unions to
enforce collective agreements created the possibility of improved labour contracts and
arrangements and higher economic efficiency.37

2.3.4 Settlement of Trade Disputes
One of the several functions of collective bargaining is the settlement of trade disputes.
Collective bargaining is essentially a rule making process. It lays down rules to be
observed when labour is bought and sold, in the same way that the state by legislation
may regulate jobs. The parties to collective bargaining conclude procedural
arrangements which regulate their own relationship such as their behaviour in settling
disputes.
The major interest of trade unions is in winning wage concessions from employers
through collective action. Where the employer fails to accede to the demands of the
workers this could lead to strike action. Thus collective bargaining provides the
mechanism for dispute settlement by negotiation on working conditions and terms of
employment. Negotiation within the framework of collective bargaining must be
conducted with a view to reaching an agreement. Collective bargaining therefore
provides inducement by which union and management can accommodate each others
view through compromise and persuasion. This quality is an important aspect of the
system and provides the underlying basis for industrial peace, among its other several
functions.
Despite its acclaimed functions, the institution of collective bargaining has been
criticised for various reasons. Critical labour law theorists regard collective bargaining as
a tool by which capital continues to dominate labour. The lion continues to take the lion
share. According to them:
Collective bargaining law articulates an ideology that aims to
legitimate and justify unnecessary and destructive hierarchy and
domination in the workplace… [and] has evolved an institutional
architecture, a set of managerial and legal arrangements that
reinforces this hierarchy and domination.38
Another criticism against collective bargaining often advocated by developing countries
is that freedom of association for trade union purposes is a hindrance to economic
development. Such argument is usually put forward to justify restrictions on the right to
organize and the right to collective bargaining.39 However, this view may not be entirely
correct. In fact, an ILO sponsored study on the issue reveals that there is no
contradiction between the demands of economic development on the one hand, and
freedom of association for trade union purposes on the other. 40
However, notwithstanding these misgivings, collective bargaining seems to be the best
mechanism for attaining peace in the relationship between employers and employees
and is particularly an effective forum for adjustments and agreement on terms and
conditions of employment. Collective bargaining provides a measure to check the
concentrated power of capital and thus help to ensure equilibrium of forces in labour
management relationship to avoid exploitation. Collective bargaining is the most
consolidated and powerful institution contributing to bringing some equilibrium to
unbalanced economic situations.41
Collective bargaining is crucial in a very practical way. It makes real difference to the
experience of workers and is recognised as an instrument for social justice. On the
whole, it seems that the benefits of collective bargaining far outweigh the shortcomings.
Indeed a growing body of evidence suggests that freedom of association and the right to
collective bargaining contribute to improving economic and trade performance and do
not have the negative effects predicted by some economic theorists.42

3. COLLECTIVE BARGAINING AND STRIKE ACTION
The right to strike is essential to the process of collective
bargaining. It is what makes collective bargaining work. It is to the
process of collective bargaining what an engine is to a motor
vehicle.43
This part of the article seeks to establish the inter-link between collective bargaining and
the right to strike. The question may be asked whether there is indeed any connection
between collective bargaining and the right to take collective action. To put it another
way, what is the legitimacy of industrial action as a tool in collective bargaining? As we
have earlier stated, the right to collective bargaining is intimately related to and
dependent on the right to freedom of association and the right to strike. Strikes and
collective bargaining help to redistribute the grossly unequal power between the parties.
Workers exert economic pressure through industrial action in order to balance the
unequal bargaining powers between an employer and an employee and this enhances
social justice in the workplace. Collective bargaining will not be effective without a
credible threat of industrial action.
Furthermore, it is recognised that collective bargaining between the workers union and
the employer deals with the terms and conditions under which labour will be supplied by
employees and purchased by employers and the two parties have very different
perspectives on this subject. Since the employers have the rights of property and of
capital, they are able to propose the terms upon which they will purchase labour for its
operations. In turn, the employees have the collective right to withdraw their labour
rather than to accept the employer’s offer.
Without doubt, the stoppage of work initiated by the union will affect both sides. The
employers operation may be shut down with the attendant loss of revenue and the
employees will suffer hardship because they will be out of work and will be deprived of
their salaries and wages. Both sides will be naturally hurt economically. The question
may therefore arise as to: why do workers choose to bear the economic loss rather than
accept the offer of the employer? The workers resort to industrial action to force the
employer to reach a mutually acceptable agreement about the terms and conditions of
employment. In this sense the economic purpose of strike action plays an important role
in collective bargaining. Thus industrial action or the likelihood of its occurrence is seen
as one of the necessary conditions for collective bargaining to exist. The right to
industrial action is, as it were, built into the bargaining process.44 As has been noted:
The strike is itself a part of the bargaining process. It tests the economic
bargaining power of each side and forces each to face squarely the
need it has for the other’s contribution. As the strike progresses, the
worker’s savings disappear, the union treasury dwindles, and
management faces mounting losses. Demands are tempered, offers are
extended, and compromises previously unthinkable become acceptable.
The very economic pressure of the strike is the catalyst which makes
agreement possible. Even when no strike occurs, it plays its part in the
bargaining process, for the very prospect of the hardship which the strike
will bring provides a prod to compromise. Collective bargaining is a
process of reaching agreement, and strikes are an integral and
frequently necessary part of that process.45
The right to strike is not only a logical step in the collective bargaining system, but also
part of the price paid for industrial self-regulation of conditions of employment. It is a
necessary part of the process toward securing adjustment of expectations of economic
realities. This view was acknowledged by Lord Wright in his famous dictum in 1942. As
he put it for the House of Lords, “Where the rights of labour are concerned, the rights of
employers are conditioned by the right of men to give or withhold their services. The
right of the workmen to strike is an essential element in the principle of collective
bargaining. It is, in other words, an essential element not only of the unions bargaining
power, that is for he bargaining process itself, it is also a necessary sanction for
enforcing agreed rules”46. Supporting the connection between collective bargaining and
the right to strike Adeogun notes that:
The freedom to strike and lockout is a concomitant of the collective
bargaining process in that the system succeeds only to the extent that
the two parties ‘collective’ parties are unmistakably aware of the
strength of either party to organise successful industrial action to make
the other party negotiate or to compel observance of the agreements
reached.47
In Union Bank of Nigeria Ltd. V. Edet48 the court in confirming the link between the right
to strike and collective bargaining said that whenever an employer ignores or breaches
a term of that agreement resort could only be had, if at all, to negotiation between the
union and the employer and ultimately to a strike action should the need arise and it be
appropriate.49 There are numerous examples of the nexus between industrial action and
collective bargaining in Nigerian labour law. According to Emiola:
But it does happen on occasions that parties to collective
bargaining take positions which neither help the speed of
negotiations nor make agreement easily possible. Attitudes might
have hardened due to the historical antecedent of the disputes or to
the fundamental nature of the issues involved. In such cases,
strikes or lockouts are sometimes the inevitable consequence.50
Fashoyin submits that the right to strike is the ultimate weapon used by workers during
collective bargaining. As he stated:
Conceptually, the right to strike can be seen as an essential
characteristic of collective bargaining. This is so because the ability
of the union to bring direct economic pressure on the employer
depends largely on the availability or use of the strike weapon…the
presence or threat of a strike induces the parties to engage in
continuous dialogue for a search for an agreement. That is to say
when workers are certain that they can strike or employers are
conscious of its occurrence, the seriousness of the dispute is
intensified and, correspondingly, the bargaining power of the
employees is increased.51
There can be no doubt that the right to strike is very important instrument in the
collective bargaining in order to ensure the economic right of workers. A denial of the
right would lead to a massive deterioration of the bargaining power of workers as they
cannot equally match the strength of management in the inevitable conflict of interests
between the parties. The right to strike will give the workers more power to meet the
needs of maintaining equilibrium in industrial relations. Kahn-Freund has expressed a
similar view:
In the context of the use of the strike as a sanction in industrial
relations, the equilibrium argument is the most important… the
concentrated power of accumulated capital can only be matched by
the concentrated power of the workers acting in solidarity.52
However, the cardinal interest of unions is to win wage and other concessions from
employers through collective action. Collective bargaining ought to achieve this but
where, as it often happens, the employer fails or neglects to implement the terms of an
agreement commonly arrived at after negotiations between the parties, the union will be
left with the weapon of industrial action as an alternative. Industrial action or the threat
of it is therefore justified as a legitimate purpose and technique both for achieving an
agreement and for resolving disputes over the implementation of an agreement.
Without any doubt, collective bargaining will not be effective without a credible threat of
damaging industrial action. The right to industrial action is the only legitimate weapon
which strengthens the power of the workers at the bargaining table.53 Without it
organised labour is powerless to deal with management at arms length. Clearly if
workers could not, in the last resort, collectively refuse to work, they could not bargain
collectively.54 In the absence of such a right ‘collective bargaining’ would amount to
‘collective begging’.55

3.1 Weapon of Last Resort
It must be noted that the right to take industrial action is seen as only a weapon of last
resort (ultima ratio) which is to be employed when all other means of achieving an
agreement or resolving disputes over the implementation of an agreement has failed.
Thus, while strike is a legitimate and unavoidable weapon in the hands of labour, it is
equally important that indiscriminate and hasty use of this weapon should not be
encouraged. It will not be right for labour to think that any kind of demand for a ‘strike’
can be commenced without exhausting the available avenues for resolution of conflicts.
This is very important because the cessation or stoppage of work whether by the
employees or by the employer is detrimental to the production and the economy and to
the well being of the society as a whole. It is particularly for this reason that provision is
usually made for peaceful investigation, settlement arbitration and adjudication of
dispute between the employer and the employees. Strike or lockout is not to be resorted
to because the concerned party has a superior bargaining power or the requisite
economic muscle to compel the other party to accept its demands. In fact it has been
argued that strike is not a viable means of resolving labour disputes and should be
discarded:
A strike appears to be primitive or crude means. Resort to such crude
and primitive means and methods were necessary in the early stages
when better and refined means and methods were not made available to
labour statutorily or otherwise. In the context of availability of superior
and refined means of resolving employer-employee differences, resort
to strike … would appear to be a retrograde step, and to make such
resort compulsory in any industry makes it worse …The emphasis
should now be more on methods such as direct negotiations, arbitration
or adjudication.56
Strikes have also been attacked on the ground that it is unjust, in that it is an appeal to
force in a matter of disputed right; it is inhuman, because of the misery it causes to
workers; it is wasteful of the resources of capital and labour; it is wicked because it stirs
up hate; it is anti-social in that it denies and disrupts the solidarity of the community.57
These views cannot be overlooked. This is because strikes cause tremendous damage
to the economy of a country. Labour relations are vital to national prosperity in a period
when a small strike may dislocate industry over a vast area.58 To attain the smooth
running of industries which are the backbone of national economies, industrial peace
has to be maintained. It is important therefore for trade unions and workers to
endeavour to ensure that agreed methods of dealing with disputes are strictly complied
with and that statutory machinery are exhausted without interruption to production
before strike action is taken
Thus, initially, employees must resort to dispute settlement and alternative mechanisms
provided by law such as the requirement to give notice, cooling off periods, submission
to arbitration and conciliation or to an industrial court. In the case of Nigeria, an
elaborate provision is made for arbitration procedures under sections 1-18 of the Trade
Disputes Act.59 These requirements have already been discussed in chapter two of the
thesis. Before any strike action is taken workers must exhaust any procedures for
peaceful settlement of disputes. It is only when the alternative mechanisms have totally
failed to provide any amicable settlement, can employees resort to a strike as a last
resort.

4. SOME FACTORS THAT GIVE RISE TO STRIKES
The only man who desires a strike for fun is the man who wants to
go to hell for a pastime60
As noted above, the cardinal interest of unions is to win wage and other concessions
from the employer through collective bargaining, failing which strike action could ensue.
The question may be asked here as to what specific factors provoke workers to
undertake industrial action in collective bargaining. We have seen that the right to strike
is embedded into the collective bargaining process. Where the bargaining takes place
smoothly and the parties arrive at a mutual agreement, it may then be difficult for
workers to embark on industrial action. This part of the article seeks to specifically
identify and explain some of the factors which easily make recourse to industrial action
possible in the collective bargaining process. Several years ago Kahn-Freund noted
that:
Everyone, except those on lunatic fringe, wants to reduce their
number and magnitude. But people do not go on strike without a
grievance, real or imaginary…Sometimes they have ample
justification…sometimes they do so wantonly. The important thing
to do is to find out why strikes occur.61
Expressing a similar view on the rationale for strikes Adeogun stated that “they are
about grievances, actual or imagined, arising from industrial life.62 However, in an
unashamedly capitalist society like Nigeria, where there is ostentatious display of wealth
by the rich, where the majority of the workers eke a living out of their wages while their
employers live in absolute affluence with the widest ostentation, it is submitted that
workers’ grievances can hardly be described as “imagined.”63
Indeed, the Nigerian experience shows that the weapon of strike is often the only
instrument left in the hands of employees to compel a recalcitrant employer to recognise
and bargain with their union or representatives, to comply with the terms of a collective
agreement or to generally make improvements regarding the terms and conditions of
the employment of workers.

4.1 Refusal to recognise a union or workers group as a collective bargaining party
It is legitimate to have a strike in order to either achieve union recognition for collective
bargaining purposes within the workplace or improve collective bargaining
arrangements. The issue of recognition is crucial to the whole process of collective
bargaining. Freedom of association would be meaningless to workers if employers were
entitled to refuse to recognise their organisations for purposes of bargaining. This would
defeat the purpose of the existence of trade unions, which is the protection of their
members’ interest. Before bargaining can take place, the employer must have to
recognise the trade union or workers’ representatives as the sole bargaining agent for
the employees within the bargaining unit, in relation to terms and conditions of
employment. The ILO Committee on Freedom of Association has clearly declared that
recognition by an employer of the main unions represented in his undertaking, or the
most representative of these unions, is the very basis for any procedure for collective
bargaining on conditions of employment in the undertaking.64 Where there is no union
organisation in an industry, the representatives of the unorganised workers duly elected
and authorised by the workers will conduct bargaining on their behalf.65 More
importantly, the ILO has accepted that the fact that a strike is called for recognition of a
union is a legitimate interest which may be defended by workers and their
organisations.66
As we have discussed, recognition of a trade union or workers group is a sine qua non
in the procedure for collective bargaining. Once the trade union is recognised, a
recognition agreement will be drawn up and will address issues such as the negotiation
machinery, matters for negotiation, and those for consultation, which are nonnegotiable.
It seems that matters for negotiation must end up in an agreement between
the parties. In National Union of Gold, Silver and Allied Trade v. Albury Brothers Ltd67, It
was held that recognition entailed not merely a willingness to discuss but also to
negotiate. That is to negotiate with a view to striking a bargain. Section 18 of the Wages
Boards and Industrial Councils Act68 provide that employers and workers in an industry
may establish a joint industrial council for the purpose of negotiation and reaching
agreements relating to such matters as are considered by those employers and workers
to be matters for negotiations. Thus, where recognition is not given or is withdrawn, the
union will be unable to bargain on behalf of its members with the employer or
employers’ group and this often provoke the union to embark on industrial action.
This fact was confirmed by the National Industrial Court in Stadium Hotel v. National
Union of Hotels and Personal Services Workers69 where the Court found and held that
the main cause of the strike was non-recognition of the respondents by the appellants.
Similarly in Nigerian Sugar Company Limited v. National Union of Food, Beverages and
Tobacco Employees70 the National Industrial Court held that primary responsibility for
the strike action that took place rested with the first party who, for no cogent reasons,
bluntly refused to recognise the second party and imposed, contrary to the Union’s
Constitution, an executive or caretaker committee on the workers. The Court was of the
view that it is contrary to good union practice for management to get itself mixed-up in
its workers’ unions internal affairs in such a manner as to either subjugate the union to
its own whims and caprices or to frighten the workers from making what they consider to
be legitimate demands, whether or not such demands will be met.71 Naturally, therefore,
the exercise of economic power in the form of a strike is perceived as a union’s most
appropriate and powerful response to an employer who refuses to accord recognition to
the union for collective bargaining purposes. This position is also supported by the ILO
which has ruled that the fact that a strike is called for recognition of a union is a
legitimate interest which may be defended by workers and their organizations.72

4.2 Refusal to accede to unions demand/failure of negotiation
Workers or unions’ unaccepted demands for higher wages, benefits, or other contract
improvements tend to give rise to industrial action. Workers and trade unionists are
entitled to always demand and negotiate for the improvement of the terms and
conditions of their employment in a market economy like that of Nigeria.. Workers would
always demand for increases in their salaries and wages consistent with inflation trends.
As stated earlier, this is one of the chief roles of collective bargaining. Where the
employer fails to accept the unions demand or refuses to negotiate with them, workers
resort to industrial action would be inevitable to achieve that aim.
Recently, for example, the Non-Academic Staff Union of Educational and Associated
Institutions (NASU) was forced to embark on industrial action to demand for the
implementation of the nationally approved 12.5% salary increase and allowances in
Osun State owned tertiary institutions which the State government73 had failed to
implement. Before the strike, the NASU made efforts to request for negotiation with the
government but this was refused. As the General-Secretary of NASU noted:
NASU National Secretariat made a number of correspondences to
the government of Osun State, requesting for audience to meet and
resolve the issues in dispute. Surprisingly however, no single
response has come from the government till date. Consequently,
NASU members have been forced by the prolonged inaction of the
government to embark on the ongoing strike action in the four state
owned tertiary institutions to press home their demands.74
This instance demonstrates clearly that the blatant refusal of the employer to accede to
the demands of the workers or negotiate with them with a view to an amicable
settlement, is often the course of industrial actions. Despite the workers’ strike action
they still conveyed their preparedness to negotiate with their employers to resolve the
strike at the earliest opportunity. This intention was emphasised by the General-
Secretary of NASU when he said “The governor should shelve unnecessary protocol
and meet with NASU for a dialogue aimed at resolving the issue in dispute amicably, in
the interest of industrial peace, harmony, good governance and fair labour
practices…we are confident that His Excellency will lend his listening ears to good
spirited individuals and groups, and tackle this problem once and for all.”75
It seems a sad reflection that workers will very often have to practically beg their
employers to negotiate and/or accede to their legitimate claim to improvements in their
welfare. In the NASU case here, for example, it was obvious that their counterparts in
similar establishments were already freely enjoying the nationally approved wage
increase. Why does it have to depend on the Governor’s “listening ears to good spirited
individuals and groups” to give the workers what apparently is their entitlement, in this
case, the 12.5% salary increase already being enjoyed by workers in other states. It will
be difficult to deny the action taken by the workers here as been legitimate.
An employer who refuses to bargain must accept the fact that it may be faced with the
threat of a strike. Strikes are ultimate weapons, which are only resorted to by workers
when all other means of struggle and negotiation have failed completely. This often
happens when employers appear to show complete insensitivity to the genuine
demands of workers. In 1993, for instance, when the employers refused to negotiate the
demand by junior workers in the public services for a 45% increase in wages the
workers were forced to embark on industrial action. It was after the industrial action
commenced that the employers became compelled to revert back to collective
bargaining and after six days, a mutually acceptable agreement was reached and the
strike was called off.76
The right to strike is indeed a potent weapon in the armoury of workers against an
arrogant and intransigent employer. Without the right to strike workers and their unions
will be lame ducks. One of the most famous and successful industrial actions was
staged by the Nigerian Labour Congress (NLC) in 2000 which sought for better wages
for workers in the public service. The government had promised to bargain with the NLC
with a view to arriving at an agreement on the issue but had vacillated on the issue. It
took the strike action by NLC for government to negotiate and arrive at a National
Minimum Wage of N7, 500 (Seven thousand five hundred naira).77
Another example of the potency of industrial action in improving the terms and
conditions of employment of workers was the face-off between the management and the
journalists of the Guardian Newspapers. The Nigerian Union of Journalists had been
battling the management of the Newspaper house for improved conditions of service for
its workers and the recognition of all labour unions operating in the Newspaper house
which were banned by the management, all to no avail. This forced the Nigerian Labour
Congress (NLC) to instruct the workers to embark on strike action on September 4,
2000. The NLC President also directed the National Union of Petroleum and Natural
Gas Workers (NUPENG) to stop the supply of diesel and petroleum products to the
paper house.78 This was apparently done in a bid to make the strike effective and arm
twist the management of the Newspaper house to accede to the demands of the
workers. And it succeeded. The management had no choice but to listen to their
workers and implement their demands.
Again, in 2002, the Nigerian Labour Congress (NLC) put up a demand for 25% pay rise
for workers in public services in Nigeria from the Federal Government, as employer.
Rather than negotiate with the union as promised, the Government tried to adopt
numerous delay tactics in the hope of frustrating the unions demand. The union was not
happy over the employer’s recalcitrance to dialogue, and threatened to embark on
industrial action. The union gave the employer 14 days notice of its intention to
commence industrial action if nothing was done to address its demands. As the Acting –
President of the NLC said:
If the federal government continues to decline to negotiate and to
give a chance for a peaceful resolution of this matter within the next
three weeks (14 days from now), all workers in the country are
directed to embark on a total one-day warning strike on Wednesday
July 10, 2002.79
Apart from the refusal by the employer to negotiate or accede to the demands of the
workers, other instances of refusal to bargain can take the form of disputes about
appropriate bargaining levels and bargaining units, or even disputes about issues on
which the parties are to negotiate.
Without any doubt refusal to bargain with the workers by the employers relating to their
terms and conditions of employment is a veritable ground for much industrial tension
and action in Nigeria. It is has led to a “strike now, negotiate later” situation in labour
relations in Nigeria. As Roper80 once noted “at a certain stage, it became evident that
strike action was the only method available to establish the right to negotiate, or to bring
in a conciliation officer in order to ensure a discussion of grievances” Recourse to
industrial action is therefore justified to compel employers to discuss and settle workers
grievances. Even the current ASUU strike is predicated on the failure of the employer
(Federal government) to negotiate and accede to the demands of university lecturers.
4.3 Failure to Implement Collective Agreement
There can be no doubt that the real cause of most strikes in Nigeria is either the nonpayment
of wages or non-enforcement of collective agreements to inter alia pay wages.
Even where an agreement has been duly entered between the workers and employers
after bargaining, the workers may be constrained to embark on industrial action by the
very fact of the failure on the part of the employer to honour and keep to the terms of the
agreement. Thus the strike to compel an employer or employee to accept or not to
accept terms of employment and physical conditions of work is a strike used as an
instrument of collective bargaining. In apparent recognition of this fact the court in the
recent case of Union Bank of Nigeria Ltd. v. Edet81noted that “whenever an employer
ignores or breaches a term of that agreement resort could only be had, if at all, to
negotiation between the union and the employer and ultimately to a strike action should
the need arise and it be appropriate”82
Clearly the failure of the employer to honour agreements has led to industrial action. For
example, the Senior Staff Association of Utilities, Statutory Corporations and
Government Companies (SSAUSCGOC) and National Union of Postal and
Telecommunications Employees (NUPTE) embarked on industrial action to demand the
payment of outstanding arrears of four months salaries and allowances owed to them by
their employer. The workers were not happy that even after an agreement was entered
into, the employer to pay their wages following negotiations the employer has failed to
keep to it.83 The workers were thus forced to embark on strike action as they had no
other alternative by which to press home their legitimate claims. In their view, the
employer had “exhausted their patience and abused offers of responsible
negotiations.”84 As the Secretary-General of the SSAUSGOC union lamented:
Since December 2005 till date, the management of NITEL has
reached various agreements with our unions on how to alleviate the
problems in NITEL and pay all outstanding debts to the workers.
Unfortunately the management reneged on all these…the workers
had been groping under the deluge of rhetoric and delays from the
authorities.85
It is hardly to be expected that workers will fold their hands and suffer in silence when
they have negotiated and had been promised of the due payment of their entitlements
by the employer to no avail. Industrial action in such a situation will therefore be justified
to enforce the agreement earlier concluded between the parties. As the Secretary-
General of SSAUCGOC further bemoaned:
All we hear from our members are stories of unpaid debts, hunger,
and death, ejection from apartments, sickness and children being
sent out of schools. These are enough to task the toughest of
men…hence the resort to industrial action86
There are indeed many examples in Nigerian labour law where workers have used
industrial action to compel observance of the agreement reached between them and the
employers. In 1964, for example, there was a General Strike by the entire body of
Nigerian workers over the refusal of the Government to publish the Report of the
Morgan Commission on the Review of wages and salaries as requested by the
workers.87 The workers had waited for nine months for the report to be published to no
avail. The strike lasted for thirteen days and was called off when the Government
yielded to the demands of the workers.88
Recently, following the demand for increase in salary and wages by workers in the
Federal Civil Service, the Federal Government set up a Presidential Panel on Wage
Review headed by Chief Ernest Shonekan which has recommended that the National
minimum be raised from the present N7,500 (Seven thousand five hundred naira) to
N75,000 (Seventy-five thousand naira). As the Presidential Panel explained “it was
necessary to scale up the minimum wage in view of the prevailing economic realities
which has incapacitated the purchasing power of workers.89 Will industrial action by
workers to demand for this payment be legitimate? There can be no doubt that workers
will eagerly be expecting prompt implementation of this negotiated wage review and any
undue delay will precipitate into industrial action to realise the same. It is submitted that
industrial action to demand for the implementation of this wage review will be justified
because it is a result of collective bargaining between the employers’ representative and
the workers unions. The employers cannot renege on it. It is similar to the Morgan
Commission Report where worker were able to successfully carry out industrial action to
implement the review of their wages. So if the employers refuse to pay the new salary,
industrial action will definitely force them to succumb.
Industrial action no doubt has become a crucial means of conducting industrial relations
in Nigeria. It seems that only the presence of industrial action can force most employers
to respond to the needs of the workers. Again in 1982, for example, there was a nationwide strike by workers in the National Electric Power Authority (NEPA) over the refusal of the management to honour the agreement reached between the former and the employees’ union. The resort to industrial action by the employees forced the
management to respond quickly to the agreement.90
Another clear example was the industrial action embarked upon by the Academic Staff
Union of Universities (ASUU) in 1992 to press for the implementation of the Collective
agreement it had entered with the Government as employer, for improved conditions of
service, increased funding and autonomy of the university system in Nigeria. The
Government reneged on the said collective agreement for no apparent justification and
ASUU embarked on industrial action which lasted for over six months. Frantic attempts
by the Government to proscribe ASUU and frustrate the industrial action did not
succeed. The strike only came to an end when the Government called for fresh
negotiations whereby they complied with most of ASUU demands.91 Furthermore, The
Academic Staff Union of Polytechnics (ASSUP) recently felt compelled to embark on
strike action over the non-implementation of the agreements the federal Government
had with it since 2001. The ASSUP is embittered by the fact that the government had
continued to dribble the union on the agreements and can no longer tolerate the state of
affairs.92
Clearly therefore resort to industrial action seems to be the most effective and justifiable
means available to the workers to enforce concluded agreements with the employers if
they continue to dribble the workers and fail to honour agreements entered with them. It
is difficult to explain why employers treat workers in such manner. One wonders the
justification for this kind of behaviour on the part of employers. Could it be because they
are required to pay more money? Workers deserve to be paid their due remuneration to
be able to meet up with the challenges of life as human beings with some dignity. This
point has been re-emphasised by the African Commission on Human and Peoples’
Rights which has ruled that unremunerated work is tantamount to a violation of the right
to respect for the dignity inherent in the human being.93 Numerous other instances can
be given94 but suffice it to say that failure to honour collective agreements by the
employer is definitely an invitation to industrial action by workers.

Conclusion
This paper has examined the role and functions of collective bargaining and strikes in
the quest for industrial peace in Nigeria. Workers all over the world desire recognition,
better salaries and wages and great improvements in the terms and conditions of work.
Workers have formed associations for the purpose of realizing this main objective. By
forming associations and banding together workers have a more effective basis to
realise improvements in working conditions.
Both Nigerian Labour law and International law recognise the right of workers to bargain
collectively for the protection of the legitimate interests of workers. Indeed, that the ILO
has declared its support for collective bargaining as a means through which the
protection of the economic and social interests of workers can be achieved.
The main duty of trade unions is to represent the interest of their members in
negotiations with the employer in order to achieve the desired improvements in working
conditions. But this aim is sometimes frustrated by the employer. What can unions do in
such a situation? As we have seen, the natural reaction is to resort to industrial action to
force the employer to accede to their demands. It is the failure of collective bargaining
that justifies workers resort to industrial action.
But strike and strife are indeed ill winds which blow neither the employers nor workers
any good. Strikes disrupt not only the business of the employers and cause the workers
loss of wages but also invariably disorganises the economy of the state and social order
in some cases. Moreover, strike is a double edged industrial sword; apart from its effect
on the national economy, a great deal of wage earning man hours is lost, just as the
employer loses its regular income. In the process, the state sustains loss of national
revenue in the form of tax or profit.95 In our view, the only way to achieve industrial
peace in Nigeria is for the employers to always promptly review, negotiate and
implement collective agreements entered with workers concerning improvements in
wages and general working conditions. The employers must accept and respect the fact
that collective bargaining is the only viable and practical means of ensuring peace in the
industry. Otherwise we will continue to exercise fears over the continuous state of a
prostrate industrial sector as workers will continue to use strike as a weapon of last
resort in collective bargaining.

* O. V. C. Okene, PhD Candidate, Department of Law, University of Essex, United Kingdom; LL.M. (Ife); LL.B. (Rivers
State); Barrister and Solicitor of the Supreme Court of Nigeria, and Senior Lecturer in Law at the Faculty of Law of
the Rivers State University of Science and Technology, Port Harcourt, Nigeria. From 2001-2004 the author was the
Head of Department of Business Law of the same university. Emailovcoke@essex.ac.uk or ovcokene@yahoo.com
I would like to thank Professor P. Ehi Oshio for his kind assistance.
1 See for example, ‘Nigeria Faces General Strike’
<http://www.chinadaily.com.cn/english/doc/2004-10/11/content_381370.htm Strikes threatens Nigeria’s oil
production 10 June, 2007; General
Strike Stops Nigeria 10 June, 2007; Nigeria: ‘A
Strike For Democracy’ 10 June, 1007; Nigeria:
‘ASUU strike continues’ 10 June 2007.
2 The widespread perception was that Britain compared with other countries had a particularly high level of strikes,
such that industrial action came to be known as the ‘British disease’. See S. Honeyball and J. Bowers, Textbook on
Labour Law (Oxford: Oxford University Press, 2004), p. 389. Indeed, as far back as 1880 at the beginning of his
learned lecture on Strikes to the Royal Statistical Society in Britain, George Phillips intoned, “Striking has become a
disease, and a very grave disease, in the body social”. See L. H. Itaimson and C. Tilly., (eds.) Strikes, Wars and
Revolutions in an International Perspective (Cambridge: Cambridge University Press, 1989), p. 81.
3 See P. Ehi Oshio, “Bank Strikes and the Law in Nigeria”, in E. Chianu (ed.) Legal Essays in Honour of Professor
Sagay (Benin City: Dept of Public Law, University of Benin), p. 171.
4 See S. O. Koyonda, “Enforcement of Collective Agreements in Nigeria: Need for Legislative Intervention” (1999) 3: 2
Nigerian Law and Practice Journal, p. 37
5 For detailed discussion, see L. Swepston, “Human Rights and Freedom of Association: Development Through ILO
Supervision,” 137:2 International Labour Review 169-194 (1998); Gillian Morris, “Freedom of Association and the
Interests of the State,” in K.D. Ewing, C.A. Gearty, and B.A Hepple, (eds. ), Human Rights and Labour Law: Essays
for Paul O’Higgins (London and New York: Mansell Publishing Limited, 1994), p. 2; Sheldon Leader, Freedom of
Association: A Study in Labor Law and Political Theory (New Haven and London: Yale University Press, 1992), pp.
123-265;; W.B. Creighton, “Freedom of Association,” in R. Blanpain, (ed.), Comparative Labour Law and Industrial
Relations (Deventer: Kluwer, 1990), Chapter 17; R. Ben-Israel, International Labour Standards: The Case of the
Freedom to Strike (Deventer: Kluwer, 1988 C.W. Jenks, “International Protection of Freedom of Association For
Trade Union Purposes,” 87:1 International Labour Review 1-115 (1955).
6 Press Release (ILO/00/17): Pioneering ILO Global report calls for more widespread respect for rights at work Last accessed 10 June 2007. See also, “Your Voice at Work:
First global report on Freedom of Association and Collective Bargaining”
Last accessed 10 2007
7 Chapter L.1 Laws of the Federation of Nigeria 2004. In the same Act, a collective agreement is described as an
agreement in writing regarding working conditions and terms of employment concluded between (a) an organisation
of workers or an organisation representing workers or an association of such organizations of the one part; and (b)
an organisation representing employers or an association of such organization of the other part. See ibid.
8 Collective bargaining has also been defined as those arrangements under which wages and conditions of
employment are settled by a bargain in the form of an agreement made between employers or associations of
employers and workers organisations. See Ministry of Labour (UK) Industrial Relations Handbook revised edition
HMSO, 1961, at P.18; See also section 178(1) of the Trade Unions and Labour Relations (Consolidation) Act, 1992.
ILO Collective Bargaining Convention No. 154, adopted in 1981, defines collective bargaining in Article 2 as follows:
“The term collective bargaining extends to all negotiations which take place between an employer, a group of
employers or one or more employers’ organisations, on the one hand, and one or more workers’ organisations, on
the other, for: (a) determining working conditions and terms of employment; and/or (b) regulating relations between
employer or their organisations and a workers’ organisation or workers’ organisations.” See ILO: International Labour
Conventions and Recommendations, 1977-1995 (Geneva, 1996d), p.93. For further definitions of collective
bargaining, see Ogunnniyi, O., Nigerian Labour and Employment Law in Perspective (Lagos: Folio Publishers,
1991), p. 276; T. Fashoyin, Industrial Relations in Nigeria (Nigeria: Longman Nigeria Limited, 1992), p. 103; E.E.
Uvieghara, Labour Law in Nigeria (Lagos and Oxford: Malthouse Press Ltd, 2001), p. 388; H. Arthurs,
“Understanding Labour Law: The Debate on Industrial Pluralism” (1985) 1 Current Legal Problems 83; E. Cordova,
“Collective Bargaining” in Blanpain, R., (ed.) Comparative Labour Law and Industrial Relations, 2nd ed., (Deventer:
Kluwer, 1985), p. 308. ‘Bargaining’ as a term has been defined as the process by which the antithetical interests of
supply and demand of buyer and seller are finally adjusted so as to end in the act of exchange. See R.H. Macwer,
and C.H. Page, Society (London: Macmillan Press 1953), p. 5.
9 See for example, Article 6(1) – (3) of the European Social Charter 1964 (Revised 1996). The African Charter on
Human and Peoples’ Right 1981 does not specifically provide for the right to collective bargaining or for trade union
rights for that matter, it is submitted that a conjoint reading of Articles 10, 5, and 15 of the Charter provides support
and basis for collective bargaining. Notwithstanding the absence of direct provision on trade union rights in the
African Charter of Human and Peoples’ Rights, the Commission has provided detailed guidance on trade union
rights in its Guidelines for the Submission of State Reports. Under the Guidelines, States are obliged to provide
information on laws, regulations and court decisions that are designated to promote, regulate or safeguard trade
union rights, which include the right of trade unions to function freely, collective bargaining and the right to strike. See
Promotion, Protection and Restoration of Human Rights (Guidelines for National Periodic Reports) ACHPR DOC.
AFR/COM/HRP.5 (IV) (Oct. 1988), Section 11 (10) – (16), reprinted in African Commission on Human and Peoples
Rights, Documentation No. 1: Activity Reports (1988-1990), p. 45. See also V.O. Nmehielle, The African Human
Rights System: Its Laws, Practice, and Institutions, (Kluwer: Martinus Nijoff Publishers, 2001), p. 36. For more
discussion, see generally R. Murray and M. Evans, Documents of the African Commission on Human and Peoples’
Rights, (London: Hart Publishing, 2001), pp. 127-204.
10 ILO: Constitution of the International Labour Organisation and Standing Orders of the International Labour
Conference (Geneva, 1998), pp. 23-24.
11 See also Recommendation 91: Collective Agreements Recommendation 1951, Recommendation 92: Voluntary
Conciliation and Arbitration Recommendation 1951, Recommendation 94: Co-operation at the Level of the
Undertaking Recommendation 1952, Recommendation 113: Consultation (Industrial and National Levels)
Recommendation 1960, Recommendation 130: Examination of Grievances Recommendation 1967,
Recommendation 143: Workers’ Representatives Recommendation 1971, Recommendation 163: Collective
Bargaining Recommendation 1981, Recommendation 129: Communication within the Undertaking Recommendation
1967 and OECD Guidelines for Multinational Enterprises 1976; revised in 2000.
12 ILO Report No. 44, Case No. 202, Para. 137 (1960)
13 ILO 1999a Freedom of Association: An Annotated Bibliography (Geneva 1999), p. 51; see also H. Kellerson, “The
ILO Declaration on Fundamental Principles and Rights: A Challenge for the Future” (1998) 137:2 International
Labour Review pp. 223-227; B. Gernigon, A. Odero, and H. Guido, “ILO Principles Concerning Collective Bargaining”
(2000) 139:1 International Labour Review pp. 33-55
14 Clegg, H., The System of Industrial Relations in Great Britain, (Oxford: Basil Blackwell, 1976), p.20
15 International Labour Office Ministerial Conference Record of Proceedings, 38th Session, Geneva (1955), p.33;
Similar views were expressed by Prime Minister Tafawa Balewa. See Annual Report of the Department of Labour
1954 -5, Para. 20.
16 See O. Ogunniyi, Nigerian Labour and Employment Law in Perspective (Lagos: Folio Publishers, 1991), p. 277.
17 Section 24(1) and (2) These new provisions are by virtue of section 5 of the Trade Union (Amendment) Act 2005.
18 Chapter 466, Laws of the Federation of Nigeria, 1990
19 Sections 16, 18 and 27 of the Wages Board and Industrial Councils Act, 1990
20 As Lord Donovan put it for the Privy Council “it is of course true that the main purpose of most trade unions of
employees is the improvement of wages and conditions. See Collymore v. Attorney-General of Trinidad and Tobago
(1970) A.C. 538, 547. It is true that trade unions may have other purposes, powers and functions but the main
purpose for their existence is workers welfare based primarily on terms and conditions of employment. Other
purposes and powers are merely ancillary or complementary to the main purpose. See also Udoh v. Orthopaedic
Hospitals Management Board (1990) 4 NWLR (Pt. 142) 53.
21 P. Davies, and M. Freedland, Kahn-Freund’s Labour and the Law, (London: Sweet and Maxwell 1983), p. 69.
Thompson writes that the primary aim is “To serve as a means of institutionalising the inevitable clashes of interests
that arises between capital and labour” See Thompson, C., Industrial Law, (Juta & Co. Ltd 1989), p. 281. According
to Arthurs “The world of work was historically characterised by domination and exploitation. The practice of collective
bargaining was therefore introduced to correct these defects” see H. Arthurs, “Understanding Labour Law: The
Debate on Industrial Pluralism” (1985) 1 Current Legal Problems 84
22 Oslon, M., The Logic of Collective Action (Harvard: Harvard Press, 1905), P.20 As Sir John Wood put it “Their
fundamental existence, their very purpose expressed in the phrase “Unity is strength” depends on the right to act
collectively- in the ultimate the right to strike”22.See Wood, J., Sir, “The Collective Will and The Law” (1988) Vol. 17
Industrial Law Journal, P.6. See also Weiler, P., Reconcilable Differences: New Directions in Canadian Labour Law
(Cassel: Toronto, 1980), p. 25; Pencavel, J., “The Legal Framework for Collective Bargaining in Developing
Economies (1996), P. 10
Last accessed 20 June 2006.
23 Royal Commission on Trade Unions and Employers’ Associations, Cmnd 3623, 1968
24 The International Labour Organization has declared that trade unions “fulfil three important functions. The first is a
democratic function: allowing all those who have work or want to work to have a say in their working life. The second
is of course an economic function: helping to find he best possible balance in the production and distribution of the
fruits of growth. The third which derives from the first two is a social function: ensuring that all those who would like to
work find their place in society; these organizations can certainly help to eradicate poverty, as well as combat the
social exclusion of the most vulnerable, inner-city violence, social tensions and unrest, and indeed be a contributing
factor to social stability.” See ILO, World Labour Report 1997-98: Industrial Relations, Democracy and Social
Stability (Geneva: International Labour Office, 1997), p. 27
25 See A. Smith, The Wealth of Nations (Harmondsworth: Penguin 1970), p. 169.
26 See, for example, P. Davies and M. Freedland, Kahn-Freunds Labour and the Law (London: Steven and Sons,
1983), p. 18
27 See J.K. Galbraith, American Capitalism: The Concept of Countervailing Power (Boston: Houghton Mifflin, 1956),
chapter 9.
28 See K. Klare, “Countervailing Workers Power as a Regulatory Strategy”, in H. Collins et al. (eds.) Legal Regulation of
the Employment Relation (London: Kluwer, 2000), pp. 63-70.
29 See A. Flanders., Management and Unions: The Theory and Reform of Industrial Relations (London: Faber and
Faber, 1970), pp. 41-42; P. Weiler, Reconcilable differences: New Directions in Canadian Labour Law (Toronto:
Carsell, 1980), pp. 30-31; A. Cox, Law and the National Labor Policy (Westport: Greenwood, 1983), p. 12.
30 See R.B. Freeman and J.L. Medoff, What Do Unions Do? (New York: Basic Books, 1984), chapter 5 See also P.C.
Weiler, Governing the Workplace: The Future of Labour and Employment Law (Cambridge: Harvard, 1990), p. 181.

31 See S. Webb and B. Webb, Industrial Democracy (London: Longmans Green and CO., 1926), Chapter IV.
32 See, for example, the U.S. National Labor Relations Act 1935 S. 1 U.S.C 151 which declares that the Act is intended
to redress the inequality of bargaining power.
33 See D. Belman, “Unions, The Quality of Labour Relations, and Firm Performance”, in L. Mishel and P.B. Voos (ed),
Unions and Economic Competitiveness (Armonk, M.E, Sharp 1992), p. 41; K.G. Dau-Schmidt, “A Bargaining
Analysis of American Labor Law and the Search for Bargaining Equity and Industrial Peace” (1992) 91 Michigan Law
Review, p. 419
34 See R.B. Freeman and J.L. Medoff, What Do Unions Do? (New York: Basic Books, 1984), chapter 5
35 Ibid.
36 See, for example, the U. S. National Labor Relations Act s.1 29 U.S.C. s 151 which states that “the refusal by some
employers to accept the procedures for collective bargaining leads to strikes and other forms of industrial strife and
unrest, which…impair the efficiency…of commerce”.
37 See R.B. Freeman and J.L. Medoff, What Do Unions Do? (New York: Basic Books, 1984), p. 11 chapter 5; J.
Stiglitz, “Democratic Development as the Fruits of the Labor” Keynote Address, Industrial Relations Research
Association, Boston, January 2000) (available at Accessed 20 September, 2006; See also, ILO:
Your Voice at Work 2000, Part I Last visited 20
September 2006
38 See Karl E. Klare, “Labour Law as Ideology: Toward a New Historiography of Collective Bargaining Law” (1981) 4
Industrial Relations Law Journal 450. See D.M. Beatty, “Ideology, Politics and Unionism”, in K.P. Swan and K.E.
Swinton, Studies in Labour law, (Toronto: Butterworth 1983), p. 299, pp. 325 ff.
39 See, for example, S. Kuruvila, and C.S. Venkataratnam “Economic Development and Industrial Relations: the case
of South and Southeast Asia” (1996) 27 Industrial Relations Journal, 14
40 G. Caire, Guy Freedom of Association and Economic Development (Geneva: ILO, 1977) (Preface by Valticos
affirming that “there can be no justification for sacrificing either economic development or freedom of association”)
41 B. Hepple, Social and Labour Rights in a Globalised Economy (Oxford: Oxford University Press, 2002), p. 645.
42 See ILO: Report of the Director-General, Organizing for Social Justice, 2004, para. 50. See also Toke Aidt and
Zafiris Tzannatos, Unions and Collective Bargaining (World Bank, 2002), p. 4 (the authors have noted that
comparative studies reveal little systematic difference in economic performance between countries that provide for
freedom of association and the right to collective bargaining, and those that do not.)
43 NUMSA & Others v. Bader Bop (Pty) Ltd & Others (2003) 24 ILJ (CC) 305 at 367, per Ngcobo, J.
41 B. Hepple, Social and Labour Rights in a Globalised Economy (Oxford: Oxford University Press, 2002), p. 645.
42 See ILO: Report of the Director-General, Organizing for Social Justice, 2004, para. 50. See also Toke Aidt and
Zafiris Tzannatos, Unions and Collective Bargaining (World Bank, 2002), p. 4 (the authors have noted that
comparative studies reveal little systematic difference in economic performance between countries that provide for
freedom of association and the right to collective bargaining, and those that do not.)
43 NUMSA & Others v. Bader Bop (Pty) Ltd & Others (2003) 24 ILJ (CC) 305 at 367, per Ngcobo, J.
44 It is one of the ironies of collective bargaining that the attainment of the object of industrial peace should depend on
the threat of conflict. The reason for this dependence is a functional one. The freedom to threaten strike action and, if
needs be, to carry out the threat, is protected because, in an imperfect world, the system of collective bargaining
requires it. See Myburg, J.F., “100 Years of Strike Law” (2004) 25 Industrial Law Journal, p. 966
45 Sykes, E.I., Strike Law in Australia (London: Sweet and Maxwell, 1982), p. 3.
46 Crofter Hand Woven Harris Tweed Co. Ltd v. Veitch (19420 A.C. 435, 463 This view was also re-echoed by the
Constitutional Court of South Africa recently in NUMSA V Bader Bop (Pty) Ltd 2003 (3) SA 513. As the Court stated
“[The right to strike] is of both historical and contemporary significance. In the first place, it is of importance for the
dignity of workers who in our constitutional order may not be treated as coerced employees. Secondly, it is through
industrial action that workers are able to assert bargaining power in industrial relations. The right to strike is an
important component of a successful bargaining system.” Justifying workers resort to industrial action to protect their
interests, Klare also argues that “so long as massive inequalities of power in the workplace exist, employees will
have a need for autonomous organisation to aggregate their interest and voices, and to identify and articulate their
collective needs independent of employer domination. Autonomous organisation is needed to maximise employees’
collective strength, and to allow pursuit of independent, concerted action to protect their interests.” See Klare, K.E.,
“Workplace Democracy & Market Reconstruction: An Agenda for Legal Reform” (1988) 38(1) Catholic University Law
Review, p. 4; See also William B. Gould IV, “Reflections on Workers’ Participation, Influence and Power Sharing: The
Future of Industrial Relations” (1989) 58 Cincinnati Law Review pp. 381-395
47 A. A. Adeogun, “Industrial Relations and the Law”, in T.O. Elias, (ed.) Law and Development (Lagos: University of
Lagos Press, 1972), p. 122
48 (1993) 4 NWLR (Pt 287) 288 at 291
49 Ibid.
50 A. Emiola, Public Servant and the Law (Ile-Ife: University of Ife Press, 1985), p. 67
51 T. Fashoyin, “Collective Bargaining in the Public Sector: Retrospect and Prospects” in T. Fashoyin (ed.) Collective
Bargaining in the Public Sector in Nigeria (Lagos: Macmillan Nigeria Publishers, 1987), p.12. Overall, there can be
little doubt as to the link between collective bargaining and industrial action. As the US Supreme Court also noted in
NLRB v. Insurance Agent’s Int’l Union, 361 U.S. 477, 489 (1960): “the presence of economic weapons in reserve,
and their actual exercise on occasion by the parties is part and parcel of the collective bargaining system.” See also
K. Block, “The Legal Status of Strikes in the U.S.S.R.” (1991) 12:133 Comparative Labor Law Journal, 133 at p. 143;
G. England, “Some Thoughts on Constitutionalizing the Right to Strike” (1988) 13 Queen’s Law Journal, p. 177
52 O. Kahn-Freud and B. A. Hepple, Laws Against Strikes (London: Fabian Research Services 305, 1972), p. 5. As
Grunfeld noted “…if one set of human beings is placed in a position of unchecked industrial authority over another
set, to expect the former to keep the interest of the latter constantly in mind and, for example, to increase the latter’s
earnings as soon as the surplus income is available…is to place on human nature a strain it was never designed to
bear.”52 See C. Grunfeld, Modern Trade Union Law (London: Sweet and Maxwell, 1966), p. 33
53 Lending support to necessity of the right to strike in collective bargaining, Lord Wedderburn of Charlton further
rationalised: “To protect such a right is not to approve or disapprove of its exercise in any particular withdrawal of
labour, it is to recognise the fact that the limits set to the right to strike and to lockout are one measure of the strength
which each party can in the last resort bring to bear at the bargaining table. The strength of a union is bound to be
related to its power and its right to call out its members, so long as any semblance of collective bargaining survives.”
See Wedderburn, K.W., The Worker and the Law (London: Penguin Books, 1986), p. 245.
54 O. Kahn-Freud, Labour and the Law, (London Stevens and Sons, 1983), p. 292
55 A.J.M. Jacobs, ‘The Law of Strikes and Lock-outs’ in R. Blanpain and C. Engels (eds.), Comparative Labour Law and
Industrial Relations in Industrialized Market Economies (5th edn., Deventer: Kluwer, 1993), P.423) Perrins asserts
that it is an arguable question whether industrial action should be allowed only as a last resort and whether collective
bargaining is the best means of settling terms and conditions of employment. He however agrees that collective
bargaining necessarily involves the freedom to take industrial action, see B. Perrins, Trade Union Law (London:
Butterworth 1985), p. 22
56 Indian National Trade Union Congress, Conclusions and Recommendations of National Commission on Labour: A
Digest with Minutes of Dissent, August 1969 p. 77-78; quoted in B.W. Wolkinson and S. Dayal, “Strikes in India’s
Industrial Relations System: INTUC’s Policy and Practice,” (1972) 8 Indian Journal of Industrial Relations, p. 431,
446 n. 12
57 R. Hobson, “The Conditions of Industrial Peace” cited in S. Cockar, “The Industrial Court and Labour Relations in
Kenya” (1996) 2 East African Law Journal, pp. 257 and 258. As H. M. Hyndman also enthused, “Can anything be
more foolish, more harmful, more, in the widest sense of the word, unsocial than a strike—? I have never yet
advocated a strike” See Margaret Morris, The British General Strike 1926, p. 15.
58 See E. Chianu, Employment Law (Bemicov Publishers Nig. Ltd, 2004), p. 277.
59 Chapter T.8 Laws of the Federation of Nigeria 2004. See also Section 6 of the Trade Union (Amendment) Act 2005.
60 W. Payne, Leader of busmen’s rank and file movement in 1936-7, as quoted in Knowles, K.G.J.C., Strikes: A Study
in Industrial Conflict (New York: Philosophical Library, 1952), p. 30
61 O. Kahn-Freund, Labour and the Law (London: Stevens and Sons, 1972), p. 227. See also P. Davies and M.
Freedland, Kahn-Freund’s Labour and the Law (London: Stevens and Sons, 1983), p. 291
62 A. A. Adeogun “Strikes- The Law and the Institutionalization of Labour Protests in Nigeria”, (1980) 16:1 Indian
Journal of Industrial Relations, p. 1.
63 Aguda has expressed a similar view. See T.A. Aguda, Nigeria in Search of Social Justice through the Law (Lagos:
Nigerian Institute of Advanced Legal Studies, Occasional Paper No. I, 1994)
64 Committee on Freedom of Association: Digest of Decisions 1996, para 822; see also Committee on Freedom of
Association: Digest of Decisions 1985, para. 618
65 Ibid, paras. 785 and 786
66 Committee on Freedom of Association: 2006 Digest of Decisions, para 535
67 (1979) ICR 84
68 Chapter 466 Laws of the Federation of Nigeria 1990
69 (1978/79) NICLR 18
70 (1978/79) NICLR 12-13
71 Ibid., p. 13
72 Committee on Freedom of Association: 2006 Digest, para. 535.
73 The government is the employer here.
74 See V. Ahiuma-Young, “NASU seeks end to industrial crisis in Osun”, Vanguard (Nigeria) 01 June 2006.
75 Ibid.
76 J. B. Oladokun, “Strike and the Trade Union”, Daily Times (Nigeria) March 2 1993, p. 15
77 See “Two sides of the same coin”, News watch,(Nigeria) September 18, 2000, p. 21
78 See “Guardian without angels”, ibid., p. 27
79 V. Ahiuma-Young, “14 Days to National Strike on 25% Pay Rise”, Vanguard, (Nigeria) June 27, 2002.
80 J. I. Roper, Labour Problems in West Africa (England: Penguin Books, 1958), p. 71
81 (1993) 4 NWLR (Pt 287) 288 at 29107/06/2006
82 Ibid.
83 See A. Ogidan, “NITEL Workers Begin Strike over Unpaid Salaries”, Guardian (Nigeria), 5 June 2006
85 Ibid.
86 Ibid.
87 Annual Report of the Federal Ministry of Labour 1964-5, Para. 159
88 Ibid, See also H. Abdulram, “Government and Workers Strike” Daily Times (Nigeria) 9 February 1994; A. A.
Adeogun, “Industrial Relations and the Law” in T. O. Elias, (ed.) Law and Development (Lagos: University of Lagos
Press 1972), p. 125; A. Ahiauzu, The African Industrial Man (Port Harcourt: CIMRAT Publications 1999), p. 144-145.
89 G. Timothy, “Shonekan Panel Recommends N 75,000 Minimum Wage”, Leadership (Nigeria) Thursday, 8 June
2006.
90 Similarly in May1981, it was the two day nation-wide strike instigated by the Nigeria Labour Congress that induced
the Federal Government to enact the National Minimum Wage Act 1981, Chapter 267 Laws of the Federation of
Nigeria 1990.
91 See P.C. Ugochukwu, and N. O. Obiareri, “The Socio-Legal Implications of the Academic Staff Union of Universities
(Proscription and Prohibition from Participation in Trade Union Activities) Decree, 1992”, Justice Journal (1992) Vol.
3 No. 4 &5, pp. 63-68
92 See Y. Kolawole, “Nigeria: Poly Lecturers May Embark on Strike” This Day (Nigeria) May 28, 2006.
93 See Communications 54/91, 61/91, 98/93, 164/97- 196/97 and 210/98, Malawi African Association, Amnesty
International, Ms Sarr Diop, Union interafricaine des Droits de l’Homme and RADDHO, Collectif des veuves et
Ayants-droit, Association Mauritanienneddes Droits de I’Homme v. Mauritania, Thirteenth Activity Report 1999-2000,
Annex V, Para. 135. See generally R. Murray and M.D. Evans, (eds.) The African Charter on Human and Peoples’
Rights (Cambridge: Cambridge University Press, 2002). See also V. O. Nmehielle, The African Human Rights
System: Its Laws, Practice and Institutions (Kluwer: Martinus Nijhoff Publishers, 2001)
94 See, for instance, “Nigeria Strike call targets shell” Accessed 11 June
2006. See also M. E. Aluko, “Two Strikes against Halliburton in Nigeria”
Accessed 11 June, 2006.
95 See A. Emiola, “The Legal Approach to Industrial Relations in Nigeria” (1998) 2 Cal L.J., 1 at p. 35. See also S.
42(10 Trade Disputes Act which declares ‘No work No pay’ and a break in continuity of employment.

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