The Nigerian Labour Congress (NLC) and its President, Joe Ajaero, have been dangling the threat of a national strike like a sword of Damocles over the President’s head. This same weapon has been used to thwart past efforts to remove petrol subsidy, but what is the position of the law?
To answer the question, it is important to borrow a leaf from a past scenario. Recall that in December 2001, the Nigerian Union of Electricity Employers (NUEE) threatened a strike action to stop the privatisation of NEPA. The BPE then sued NUEE in January 2002 to kill the action.
The prayer of the BPE is that NUEE as a registered trade union within the meaning of the Trade Unions Act cannot embark on a strike action without exhausting all avenues for dialogue. They also prayed to the court to restrain the NUEE President from embarking on strike.
The matter got to the Supreme Court and in SC/62/2004 reported in NUEE v. BPE (2010) 7 NWLR 539, decided on 24th May 2010. The Court found that the BPE was right in seeking, and had locus standi to seek, the declaration and injunction sought.
The Court also held that the right of the members of a trade union to assemble together and act as a trade union is not absolute and must be exercised within the ambit of Section 45, of the 1999 Constitution, which says that none of the fundamental rights guaranteed under the Constitution shall invalidate “any law that is reasonably justifiable in a democratic society in the interest of defence, public safety, public order, public morality or public health.”
The Court then held further that it was in this light that the Trade Disputes (Essential Services) Act empowers the President to proscribe any trade union or association whose members have embarked on threatening industrial unrest or strike action that would otherwise tend to disrupt the running of any essential service defined in the said Act.
Above all, the Supreme Court, held that the facts pleaded by BPE (especially the averment that the NUEE was philosophically against reforming/privatising NEPA and in order to agitate for this position had threatened a national strike action) showed that what was at stake was not a trade dispute; and therefore there was no basis for a trade union to declare an industrial or strike action.
So what precedent was established in this case and how does it relate to subsidy removal?
The point, in this case, is that the removal of the PMS is a matter of Federal Government policy. It does not in any way concern the basis for the existence of a trade union in Nigeria. It does not constitute a trade dispute in the definition that allows labour’s use of strike action as a threat.
President Bola Tinubu as well as other candidates in the Presidential election campaigned on removing subsidies and on this basis, he was elected.
Having won the election and been sworn in, his popular, national mandate is clear. The counterparts in any discussion on policy at this level are the State Governors and the National Assembly, particularly the former in their capacity as members of the National Executive Council, which met last year to say clearly that the PMS subsidy is harmful and unsustainable and proposed ways and means for dealing with it and it’s after effects.
Therefore, the NLC cannot be at the forefront of discussions with the Federal Government as to how to manage the implementation of subsidy removal. While the interests and positions of various stakeholders must be taken into account (including the NLC and its members), the proper parties to engage in dialogue around subsidy removal are the NEC and the National Assembly.
By beginning a dialogue with the Labour groups, this government is according to it a privilege they do not enjoy in law. The Federal Government’s dialogue with labour seems to support the notion that the NLC “represents the people of Nigeria”. Labour unions, in reality, speak for a segment of society – their members.
The removal of subsidy is a matter of public policy and is not a basis for a trade union to go on strike. The NLC is a creature of statute and can only act according to the laws establishing it. In this light, what it calls “withdrawal of services” is in fact and law a strike or industrial action. Strikes can only be called in a certain manner for clearly stated reasons after a trade dispute is declared. None of these are present to warrant this circular.
Some legal analysts agree with legal arguments in the ruling but contend that the practical reality of the hardship it will inflict trumps the argument. Chibuike Ananaba SAN, said: “The matter is beyond an issue about trade dispute or public policy, it is about the survival of the Nigerian worker” and human rights which takes precedence over policy argument.”
However, certain trade unions under the NLC are in sectors that perform what are defined as “Essential Services” and they cannot for reasons of public health, public safety, and others go on strike.
The NLC also has become a wing of a political party, the Labour Party, officially marking it as an opposition party. This blurs the line between labour as a movement and an official party. There are now some concessions that would translate to according undue political advantage to the opposition.
More so, the LP has also adopted the position that the petrol subsidy should be removed, this could give the impression that this agitation is designed to sabotage the government.
Some experts say the preoccupation of labour is to fight that the government cut its cost and be made to share in the pain.
“My single argument for subsidy removal is that the Nigerian Government can no longer afford it from a fiscal perspective. We have used Federation receipts, Excess Crude account, Eurobonds, NLNG dividends etc. to pay for subsidy and the whole inefficient arrangement needs to stop,” Oluseun Onigbinde, co-founder and CEO of BudgIT, a Nigerian civic startup said in a Twitter post.
Onigbinde called for a reduction in governance costs to engender trust and make civil service more efficient. “This is also a time for fiscal reforms and contracting efficiency. The burden can’t be on Nigerians alone. It must be shared,” he said.