CHAPTER FOUR

INDUSTRIAL ACTIONS AND TRADE UNIONS

STRIKE ACTIONS

The right to strike is considered nationally and internationally as a

fundamental right. The ILO considers the right to strike as the most
visible form of collective action that workers employ to force employers
to listen to their grievance and to force employers to the bargaining
table.1 The consideration of the fundamental rights to freedom of
expression and of movement and the rights to peaceful assembly and
association cannot be exhaustive without a thorough insight into the
right of organized labour to picket or mount pressure with a view to
currying favours. This is because the right to strike is perhaps next in
importance to the right to life. The right to strike has great influence on
the balance of relations, not only as between employers and
employees and their organizations in the various sectors of the
economy but also the capacity of the civil society, which includes trade
unions, in acting as a counter power to likely excesses that the state
may display in the governance process. Thus, the right to strike
determines not just the prospects for enjoying improvements in
working and living conditions of employees but it is also a precondition
for the sustenance of society on a just and democratic basis and
enjoyment of other fundamental socio-economic and political rights.
Despite the strategic nexus between the right to strike and the
attainment of a just society, the right to strike tends to be restricted in
labour laws and practically suppressed in the course of actual strike
actions in Nigeria2

The right to strike is essential to the process of collective bargaining as

it is regarded as what makes collective bargaining work. It is to the
process of collective bargaining what an engine is to a motor vehicle 3.
The right to strike is an integral part of workers right to protect and
defend their social and economic rights which are incidental in
1

Supra
The Extent of the Right to Strike in Nigerian Labour Law, January 2014 Selected
Works of Dr. Chris C Wigwe
2

NUMSA & Others v. Bader Bop (Pty) Ltd & Others (2003) 24 ILJ (CC) 305 at 367, per Ngcobo, J.

employment relationship. Strike is thus regarded as one of the most

cherished instruments of trade unionism in Nigeria and workers in
Nigeria view strike as the most powerful safeguard against the unjust
treatment of their employers. Without right to strike workers in Nigeria
will be at the mercy of the employers who may impose low wages or
poor condition of work in utter disregard to the terms of the parties
contract of employment.4
Labour movements, the world over, aim at addressing the needs of the
working class, while employers of labour are primarily concerned with
maximising profits. The existence of these two interest groups in an
industrial establishment has often resulted in trade disputes. Quite
often, the disputes are resolved on the basis of compromise, while
many others end in lock-outs and strikes The Nigeria Labour Congress
(NLC) and the Trade Union Congress (TUC), the two main central labour
organisations in the country, had in the past organised and led
Nigerian workers on strikes over issues they claimed were of public
interest. But recent strikes by workers in some sectors of the economy
have raised the question over the rationale of using strike as an
instrument for settling industrial dispute5
Strike as a right is a very important weapon in the armoury of
organized labour. The right was acquired as a result of so many years
of class struggle by the working class. The origin of this struggle is one
of perennial class battles, fierce reprisals by the management and the
concerned authorities against those embarking on strike and selfsacrifice by the working class. The right to strike has now been
accepted as an indispensable part of a democratic society and a
fundamental human right6.
STRIKES AND OTHER FORMS OF INDUSTRIAL ACTIONS
Strike and Lock-out
Section 48 of the Trade Disputes Act defines lock-out to mean the
closing of a place of employment, or the suspension of work, or the
refusal by an employer to continue to employ any number of persons
4

5
6

Anushiem, Matthew Izuchukwu, Strike, An Instrument For Compelling Enforcement Of

Agreed Terms In Nigeria Industrial Relation
Ibid
O. Kahn-Freund, & B. A. Hepple, Laws Against Strikes, Fabian Research Series, 1972 p. 4;
V. A. Leary, The Paradox of Workers Rights as Human Rightsin the Human Rights, Labour
Rights and International Trade ,Compa, L. A. & Diamond, S. F. (eds) (1996);

employed by him in consequence of a dispute, done with a view too

compelling those persons, or to aid another employer in compelling
persons employed by him, to accept terms of employment and
physical conditions of work.
On Meaning of lock-out7 By virtue of Section 37(1) of the Trade Disputes Act, 1976 "lock-out"
means closing of a place of employment, or the suspension of work, or
the refusal by employer to continue to employ any number of persons
employed by him consequence of a dispute, done with a view to
compelling those persons, or to another employer in compelling
persons employed by him, to accept terms employment and physical
conditions of work.
It may also means the temporary refusal of an employer to furnish
work as a result of an industrial or labor dispute between the employer
and the workers.

From the above, it can be deduced that lock out is an industrial action
adopted by the employer, the management or employer locks out
workers from access to work premises again as an expression of
grievance against the workers. This is a collective agreement weapon.
it can be distinguished from strikes in that strikes is when employees
or workers disengage their services from their employment in order to
protest or agitate against some real or perceived grievance against
their employer.8

Peaceful Picketing
This is the right of workers during strikes consisting of the marching to
and fro before the premises of an establishment involved in a labor
dispute, generally accompanied by the carrying and display of signs,
placards or banners with statements relating to the dispute.
7

In the National Industrial Court Of Nigeria Suit No: Nic/1/81 Petitioner: The Austrian - Nigerian
Lace Manufacturing Company Limited Vs National Union Of Textile, Garment And Tailoring
Workers Of Nigeria Date Delivered: 1982-07-01
8
Supra at note 1

It is defined as the physical means employed by employees either to

intensify the economic pressure meted on the employer in the hope of
achieving the desired goals or to ensure that the concerted stoppage
of work is not undermined.
The right to picket is closely knitted with such issues as the freedom of
assembly and expression, the right to privacy, the rights of individuals
to the highway and the duty of the state to maintain law and order. See
generally chapter 4 of the 1999 constitution of the Federal Republic of
Nigeria. The law regulating picketing is contained in section 42 of the
Trade Union Act, 1990.

One of the major reasons why strikers picket is to solicit public

attention and support for their cause.
The amendment of Section 42 of the Principal Act by the Trade Unions
(Amendment) Act 2005 seeks to curtail the right of picketing. The
Trade Unions Act now provides as follows:
(1) (A) No person shall subject any other person to any kind
of constraint or restriction of his personal freedom in the
course of persuasion;
(1)(B) No trade union or registered Federation of Trade Unions
or any member thereof shall in the course of any strike action
compel any person who is not a member of its union to join
any strike or in any manner whatsoever, prevent aircrafts
from flying or obstruct public highways, institutions or
premises of any kind for the purposes of giving effect to the
strike.

The above provisions in section 42(1)(A) and (B) breach the right of
picketing guaranteed under the previous Sections 42 and 43, which
was even safeguarded under military dictatorship. The protection of
the right to picket in the Act before the 2005 amendment simply meant
a safeguard of the democratic principle of the minority in an
organisation having a right to a say while the majority have their way.
In other words, it is a democratic practice for the minority to abide by
the decision supported by the majority; otherwise appropriate social

sanctions are usually adopted as penalties on those who go against

organizational decision, if they still intend to retain membership of the
organisation. Therefore, it is a democratic practice for unions to
enforce the decision for a strike action for example, against
strikebreakers. The provision is therefore undemocratic. 9 The issue of
lawful picketing was dealt with in the case of National Union Of
Paper And Paper Products Worker V. The Management Of
Wahum Packages Nigeria Ltd10 where the National Industrial Court
held that the attempt of a trade union official to enter the premises of
the respondent without permission, in the absence of a trade dispute,
did not constitute peaceful picketing as envisaged by the Trade
Disputes Act.
THE LEGALITY OF STRIKE IN NIGERIA
In Nigeria, the law on strikes can be found in the Trade Disputes Act,
Trade Disputes (Essential Services) and the Trade Unions Act as
amended
Under Nigerian Law, Section 48 of the Trade Disputes Act11 states that:
Strike means the cessation of work by a body of persons
employed acting in combination, or a concerted refusal or
a refusal under a common understanding of any number
of persons employed to continue to work for an employer
in consequence of a dispute, done as a means of
compelling their employer or any persons or body of
persons employed, to accept or not to accept terms of
employment and physical conditions of work; and in this
definition:-

(a) Cessation of work includes deliberately working

at less than usual speed or with less than usual
efficiency; and

Femi Aborishade, The Right to Strike in Nigeria and ILO Principles on the Right to Strike,
2012, Online and available at http://femiaborisade.blogspot.com/2012/10/the-right-to-strikein-nigeria-and-ilo.html Assessed on 07/07/2013 at 4pm

10

(1978-2006) DJNIC 121

11

Chapter 432, Laws of the Federation of Nigeria 1990.

(b) Refusal to continue to work includes a refusal to

work at usual speed or with usual efficiency.
The following can be drawn out of the definition:
1. Strikers are persons employed in any industry to do work
2. A strike is called against an employer of labour.
3. Strike is a concerted action under common understanding by
the strikers to refuse to work or accept employment
4. The concerted action may be pre-planned or spontaneous
5. The action resulted in physical cessation of work whose
duration is immaterial.

There are three elements in the definition of a strike that are deemed
to be essential. One is the element of concerted action. The second is
the stoppage of work. The third is that that the purpose of the
cessation must be in connection with a dispute involving the terms of
employment and physical conditions of work.12
In the case of Tramp Shipping Corporation V. Greenwich Marine
Incorp.,13 Lord Denning stated that a strike is
a concerted stoppage of work by men, done with a
view to improving their wages or conditions of
employment, or giving vent to a grievance or
making a protest about something or sympathising
with other workmen in such endeavour. It is distinct
from stoppage brought by an external even such as
a bomb scare or by apprehension of danger
In the broadest sense, a strike is a deliberate concerted work stoppage.
To constitute a strike in this sense, there must be a common cessation
of work and the work stoppage must be deliberate. It follows that a
cessation of work by a single worker cannot be a strike, nor does it
12

O.V.C Okene, The Status of the Right to Strike in Nigeria: A perspective From International
and Comparative Law; African Journal of International and Comparative Law , Volume 15 (1):
29
Edinburgh University Press Mar 1, 2007

13

(1975) ICR 261, at 276. See also Miles V. Wakefield Metropolitan District Council (1987)2
ALL E.R 1081, at 1097.

amount to a strike if a group of employees stopped working due to an

external event, such as a bomb scare or apprehension of danger 14.A
work-to-rule or the so called go slow or work to contract will not
qualify as a strike generally since it does not amount to stoppage of
work. However, a politically induced protest15 or sympathy strike still
qualifies as a strike.
Under our statute, any strike which is not a fall-out of a trade dispute
may not be called strike within the contemplation of the Act and
becomes illegal to that extent within the contemplation of the Act. A
Trade Dispute means any dispute between employers and workers or
between workers and workers, which is connected with the
employment or non-employment, or the terms of employment and
physical conditions of work of any person16
The world over, strike is a very important tool for the defence and
promotion of the rights and interests
Section 18 of the Trade Disputes Act, provides that:
Prohibition of lock-outs and strikes before issue of award
of National Industrial Court
(1) An employer shall not declare or take part in a lockout and a worker shall not take part in a strike in
connection with any trade dispute where(a) The procedure specified in section 4 or 6 of this Act
has not been complied with in relation to the dispute; or

14

P. E. Oshio, Bank Strikes and the Law in Nigeria Edo State University Law Journal 5, No.
1(1993/94) 83 95
15
For instance, strike embarked upon by various trade unions against the removal of fuel
subsidy in January, 2012 in Nigeria
16
Without prejudice to the rights of individuals who are also Nigerian citizens to protest on
government policy, the oil subsidy removal is certainly not connected with the terms of
workers employment. No doubt, this same reasoning informed the judgment of the Federal
High Court on the 21st September 2004.30It also played a part for the injunctive order
of the Court of Appeal made in Oshiomole v. F.G.N ((2005) 1 NWLR (pt. 907) 414 at
436)It was the same principles that underlined the injunctive order of the National Industrial
Court (NIC) granted on the 6thof January, 2012. In an interesting twist to the issue, Labour in
reaction to that order, stated that the dispute between it and the federal government was
not that of employee and employer and that the National Industrial Court which is a
specialized court handling labour related matters, lacked the jurisdiction to make the order.
The question that has remained unanswered is that if the dispute was not that of employee
and employer why then did labour resort to a purely labour-related line of action, i.e. strike,
to press home its demands

(b) A conciliator has been appointed under section 8 of

this Act for the purpose of effecting a settlement of the
dispute; or
(c) The dispute has been referred for settlement to the
Industrial Arbitration Panel under section 9 of this Act; or
(d) An award by an arbitration tribunal has become
binding under section 13 (3) of this Act; or
(e) The dispute has subsequently been referred to the
National Industrial Court under section 14 (1) or 17 of
this Act; or
(f) The National Industrial Court has issued an award on
the reference.
The Act further makes it a crime for any worker or employee to engage
in a strike action in connection with a trade dispute without first
exhausting the procedures listed above pursuant to the provisions of
Section 18 (3) which provides that:

"It is hereby declared that where a dispute is settled

under foregoing provisions of this Act either by
agreement or by the acceptance of an award made by
an arbitration tribunal under Section 13 of this Act,
that dispute shall be deemed for the purposes of this
Act to have ended; and accordingly any further trade
dispute involving the same matters (including a trade
dispute as to the interpretation of an award made
aforesaid by which the original dispute was settled)
shall be treated for the purposes of this section as a
different dispute."
From the foregoing provisions, there is recognition of the right to strike,
however, it is severely restricted and limited, and according to
Professor Agomo17 it leads to the conclusion that there can never be a
lawful exercise of any right to strike in Nigeria as long as Section 18
remains ridden in our law. The system is a merry-go-round where one
can never differentiate which must continue in motion until the
17

Supra note 1

programmed time is exhausted. It can therefore be said that, in effect,

Section 18 constitute a total ban on the right to strike in Nigeria.18
The Trade Unions (Amendment) Act, 2005 is another important
legislation that recognises the right to strike. Stemming from the
provision contained in the Trade Disputes Act, Section 6 of the Trade
Unions Act provides as follows:
"No person, trade union or employee shall take part in a
strike or lock-out or engage in any conduct in
contemplation or furtherance of a strike or lock-out
unless:
A. The person, trade union or employer is
engaged in the provision of essential services;

not

B. The strike or lock-out concerns a labour dispute

that constitutes a dispute of right;
C. the strike or lock-out concerns a dispute arising
from a collective and fundamental breach of
contract of employment or collective agreement on
the part of the employee, trade union or employer.
D. the provisions for arbitration in the Trade Disputes
Act Cap. 432, Laws of Federation of Nigeria, 1990
have first been complied with; and
E. in the case of an employee or a trade union, a
ballot has been conducted in accordance with the
rules and constitution of the trade union at which a
simple majority of all registered members voted to
go to strike.
Furthermore, other sources of the right to strike can also be referred to.
For example, a conjoint reading of section 4(1) and paragraph of the
first schedule of the Trade Unions Act impliedly recognises the right to
strike in Nigeria. First, section 4(1) of the Act provides that every trade
union must have registered rules which must contain provisions with
respect to matters mentioned in the first schedule of the Act. And
paragraph 14 of the first schedule provides that the Rules Book of
trade unions must contain a provision that no member of a trade union
18

Ibid

shall take part in a strike unless a majority of the members has in a

secret ballot voted in favour of the strike. One wonders what this rule
would be doing in the Rules Book of trade unions if workers have no
right to strike!19
STRIKE AND ESSENTIAL SERVICES
Workers in essential services are under the Trade Disputes Act required
to give 15 days' notice before embarking on any strike action 20. As
understandable as the restriction specified by this Act may sound for
workers in essential services, there is an outright prohibition by the
Section 30 of the Trade Unions (Amendment) Act 2005:
30 (6)
No person, trade union or employer shall take part in
a strike or lock out or engage in any conduct in contemplation
or furtherance of a strike or lock out unless:
(a)
The person, trade union or employer is not engaged
in the provision of essential services;
(b)
The strike or lock out concerns a labour dispute that
constitutes a dispute or right.
(c)
The strike or lock out concerns a dispute arising
from a collective and fundamental breach of contract of
employment or collective agreement on the part of the
employee, trade union or employer,
(d)
The provisions for arbitration in the Trade Disputes
Act Cap. 432, Laws of the Federation of Nigeria, 1990
have first been complied with; and

(e)
In the case of an employee or a trade union, a ballot has been
conducted in accordance with the rules and constitution of the trade
union at which a simple majority of all registered members voted to go
on strike.
The term essential services is defined in section 48 of Trade Disputes
Act to mean any service mentioned in the First schedule to this Act.
The services mentioned in the First schedule are:
19

Supra note 6 at page 41

20

Section 42 of Trade Dispute Act

1) The Public Service of the Federation or of a State..(2) Any

service established, provided or maintained by the Government
of the Federation or oaf a State by a Local Government Council 21
or any municipal or statutory authourity or by private enterprisea. For or in connection with the supply of electricity, power or water
or of fuel of any kind
b. For or in connection with, sound broadcasting or postal,
telegraphic cable, woreless or telephonic cable, wireless or
telephonic communications
c. For maintaining ports, harbours, docks, or aerodromes or for or in
connection with transportation of persons, goods or livestock by
road, rail, sea, river or air
d. For or in connection with the burial of the dead, hospital,
te=reatment of the sick, the prevention of disease or any of the
following public health matters, namely sanitation, road
cleansing and the disposal of night soil and rubbish
e. For dealing with outbreaks of fire
It is also service in any capacity in any of the following organizations

The Central Bank of Nigeria

The Nigerian Security Printing and Minting Company Limited

Any body corporate licensed to carry on banking business under

the Banking Act.

It can be seen that the definition ascribed to the term (essential

services) insinuates a "catch-all phrase" which muzzles the entire civil
and public servants, among others from exercising their right to
strike.22The definition is too wide and goes far beyond what an ordinary
person on the street would consider to be an essential service. The
whole public service and parastatals fall within the concept of essential
service, regardless of their job description. The main purport of the
concept is to stifling of activities of trade unions within the public
21

22

The teaching etc (Essential Services) Decree No. 30 of 1993, made in the wake of the
trade dispute between the Academic Staff Union of Universities (ASUU) and the government
added teaching to the list of essential services
Supra Note 1

sector in particular, although, as the First Schedule shows, some

services within the private service also fall within the definition.
The provisions above capture and reflect the draconic nature of our law
with regards to the right to strike. The right to strike has been
ostracised by these provisions. It is obvious that these provisions
clearly preclude the employer from taking legal action for damages or
an injunction against those individuals or trade unions that commit the
tort or crime and therefore contemplates a right to strike. That the
right to strike exists in Nigeria is beyond doubt. Evidence shows that
Nigerian trade unions have made ample use of the right to strike at
several points in time.
There can be little doubt therefore that the Nigerian worker does not
possess the fundamental right to strike. Although he is free to strike,
the law only protects him or his trade union against action in certain
torts. This means that any person affected by a strike is free to take
legal action against the striker in contract or in tort not protected by
trade union legislation. The striker may also be pursued under the law
of crime if he has done something that warrants criminal prosecution. 23

PROTECTION OF STRIKING EMPLOYEES

Under the common law, which is basically case-law developed by the
courts 24as opposed to statute law passed by Parliament 25, it is unlawful
to induce people to break a contract or to interfere with the
performance of a contract, or to threaten to do either of these things.
This means, for example, that without some special protection, trade
unions or trade union officials would face the possibility of legal action
being taken against them for inducing breaches of contract every time
they called a strike

Liability of Persons Engaged in a Strike

Criminal Liability
23

OHiggins has expressed a similar view. See P. OHiggins, The Right to Strike-Some
International Reflections, in J.R. Carby-Hall, (ed.) Studies in Labour Law (1976), p. 112.
24
R v Bunn (1871-74) 12 Cox CC 316.
25
Conspiracy and Protection of Property Act, 1875, Trade Union Act 1871, Trade Disputes Act
1906

Undoubtedly, no sane society will permit organized labour or any group

of persons, masquerading under the guise of exerting group pressure,
to press home some point or gain advantage, to infringe on its criminal
or penal laws without the necessary sanctions. In Mogul Steamship Co.
Ltd. v. McGregor, Gow & Company26, Lord Halsbury aptly summed up
the position thus:
Intimidation, violence, molestation, or the procurement of people to
break their contracts, are all of them unlawful acts; and I entertain no
doubt that a combination to procure people to do such acts is a
conspiracy and unlawful.
In Nigeria, the statutes governing the subject matter include: the
Criminal Code,50Penal Code,51the Trade Unions Act,52the Trade
Dispute Act53and the Public Order Act.54
It is apposite to reproduce section 43 of the Trade Unions Act. It is to
the effect that: 43(1) It shall be lawful for one or more persons, acting
on their own behalf or on behalf of a trade union or of an individual
employer or firm in contemplation or furtherance of a trade dispute, to
attend at or near a house or place where a person resides or works or
carries on business or happens to be, if they so attend merely for the
purpose of peacefully obtaining or communicating information or of
peacefully persuading any person to work or abstain from working.
(2) Accordingly, the doing of anything declared by subsection (1) of
this section to be lawful shall not constitute an offence under any law
in force in Nigeria or any part thereof and in particular shall not
constitute an offence under section 366 of the Criminal Code or any
corresponding enactment in force in any part of Nigeria.
From the above, the two conditions that must be satisfied to make
picketing lawful are that it must be done: (1) in contemplation or
furtherance of a trade dispute (2) merely for the purpose of peacefully
obtaining information or peacefully persuading any person to work or
abstain from work. It is submitted that subsection (2) is therefore, only
designed to amplify the operative words in subsection (1). It is
imperative to state that under section 43(1) of the Trade Unions Act,
the right to picket must be based on a trade dispute and must be
peaceful.
26

Supra

From the above, it is safe to generally conclude that organized labour

has no right to picket on an organization if its demands are not based
on a trade dispute. Secondly, the activities of the picketers must be
within the confines of the law. In Piddington v. Bates 27members of a
particular union had gathered in a place for a peaceful picket over a
trade dispute. The respondent, a police officer, directed that only two
picketers should picket per each door of the premises picketed. The
appellant, who disagreed, gently pushed aside the policeman and went
about his picketing activities. On a charge of obstructing a police
officer in the lawful discharge of his duties, court convicted the
appellant, saying that what he did came under the contemplation of
the definition of obstructing a police officer. On appeal, the appellate
court held that the respondent police officer was perfectly doing his
lawful duties when he directed that only two persons should picket per
door, because the officer had suspected a likely breach of the peace if
many persons were allowed to picket per door. In Nigeria, Garba & ors.
v University of Maiduguri28 is an authority that students should not
come together under the cover of unionism to engage in criminal acts
of arson, looting and assault. The Supreme Court allowed the appeal of
the students on the ground that the disciplinary board that tried and
convicted them was incompetent in law to do so, since those acts
committed by the students were criminal in nature, hence ought to
have been tried by a regular court or tribunal established by law
Civil Liability
In addition apart from government control through the use of the
instrumentality of penal laws, government also has the right to use the
civil law to control excesses in this regard. Comparatively, civil law is
more lenient than criminal or penal law.
From the provisions of Section 24 and 44(1) of the Trade Unions Act
What is clear from the provisions are: first the word peacefully used
in subsection (1) of section 44. This means that no action will accrue to
an aggrieved person in the instances cited in paragraph (a) (d) of
that subsection even if the picketing acts consist of the use of force.
Secondly, only those acts mentioned in paragraphs (a) (d) are not
actionable; any other unlawful act is actionable against the picketers.
Flowing from this, if the acts are not one in contemplation or
27
28

(1960) 3 All E. R. 60
(1986) 1 NSCC 245

furtherance of a trade dispute, then the exclusionary provisions of

paragraphs (a) (d) of section 44(1) would be inapplicable.
State Control/Regulation of Strike
The 1999 Constitution29 provides that the government can through a
law, impugn on the rights to privacy, freedom of association/assembly
and freedom of movement :in the interest of defence, public safety,
public order, public morality or public health or for the purpose of
protecting the rights and freedom of other persons. This constitutional
provision, in our view, accords with all democratic ideals all over the
world30.

29
30

Section 45 (1) (a) and (b) of the 1999 Constitution (as amended)
Okene, Current Issues and Developments in Workers Freedom of Association in Nigeria
Journal of Commonwealth Law and Legal Education 5.1 (2007): 49-68. Available at:
http://works.bepress.com/ovunda_v_c_okene/16