FEMI Aborisade (Esq.), the Executive Director of the Center for Labour Studies (CLS) the strike by the Nigerian Association of Resident Doctors (NARD) is legal contrary to threats by federal government to invoke a no-pay-no-work clause.
Aborisade, who is also a frontline human rights lawyer and activist, said in a statement on Tuesday that the threats “have no basis in law within the context of holistic interpretation of Section 41(1), Trade Disputes Act (TDA) and Section 30(6)(b) & (c) of the Trade Unions Act (TUA).”
According to him, “[t]he threats being issued to the striking doctors are therefore mere products of impunity, abuse of office and insensitivity to the plight of the poor and the sick who are bearing the brunt of the strike forced on the doctors” and as a result, the CLS unequivocally declares support for the striking medical doctors.
The statement reads:
“The threats of ‘no work, no pay’ and dismissals (being issued to the striking conscientious medical doctors), have no basis in law within the context of holistic interpretation of Section 41(1), Trade Disputes Act (TDA) and Section 30(6)(b) & (c) of the Trade Unions Act, TUA. The law as established by the apex Court is that statutes should be given holistic interpretation, not subjective, one sided interpretation, to achieve a purposeful end (See NURTW & Anor v. RTEAN & Ors (2012) LPELR-7840 (SC).
“Section 41(1) of the TDA only requires workers in essential services to give 15 days’ notice
before strike. It does not absolutely prohibit strikes by workers in essential services. The NARD gave more than 15 days’ strike notice. The demands are not new.
“Section 30(6)(b) & (c) of the TUA allow strikes within the context of the NARD Strike. The Section provides as follows:
“(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:
“(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”
“The provisions of Section 30(6)(b) & (c), TUA, may be put simply, as follows: no person or trade union may embark on strike unless the strike involves dispute of right. The provisions of Section 30(6)(b) & 30(6)(c) reproduced above reinforce the right to strike over dispute of rights.
“According to the ILO, in its publications, dispute of rights “is a dispute concerning the violation of or interpretation of an existing right (or obligation) embodied in a law, collective agreement or individual contract of employment. At its core is an allegation that a worker, or group of workers, have not been afforded their proper entitlement(s).”
“The demands of the NARD are essentially over violation of existing rights to pay, poor pay, non-payment of salaries and allowances, violation of fundamental contractual terms and existing collective agreements, including threats of removal of some category from the payroll.
“Within the provisions of the law which allow strikes over dispute of rights, provided 15 days’ notice is given, it would be unjust, inequitable and unsustainable for the law to allow application of Section 43, TDA on “no work, no pay”.
“The settled position of the law is that the law presumes that the legislature does not intend what is unjust. The law cannot permit the right to strike (Section 30(6)(b) & (c) of the Trade Unions Act) and deprive it at the same time without allowing room for its enjoyment.
“In the words of Lord Watson in Barraclough v. Beown (1897) AC 622, “the right and the remedy are given uno flatu and one cannot be dissociated from the other” (Cited in Olowu & Ors v. Abolore & Anor (1993) LPELR-2603 (SC).
“Within the context of the fact that Mr. President regularly receives medical treatment abroad on account of collapsed healthcare system which the doctors are striving to salvage, the NARD strike enjoys the overwhelming support of the downtrodden Nigerian people.
“The threats being issued to the striking doctors are therefore mere products of impunity, abuse of office and insensitivity to the plight of the poor and the sick who are bearing the brunt of the strike forced on the doctors.
“We call on the medical doctors to continue their strike, which is aimed at salvaging the collapsed healthcare system for the benefit of the masses. We equally call on the NLC, TUC, workers and their organisations, and the downtrodden Nigerian people to support the NARD strike.”
