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FG /ASUU collective bargaining agreement & federalism in Nigeria: What conflict?

The lingering crisis between  the Federal Government and Academic Staff Union of Universities (ASUU), has led to the closure of universities in the country for two months now, following ASUU strike, which has entered its third month.

While ASUU says that the Federal Government should be held responsible for the impasse, for failing to implement an already reached agreement, which both parties signed voluntarily, government on its part, claimed that it was constrained by opposition from the state governments, who insist that they were in a better position to fix the salaries of their lecturers in state universities, hence it (FG) would  not want to enter into any agreement that the states would say was forced on them, under the principles of collective bargaining.

Edoba Omoregie,  in this piece, however, questions the rationale of this assertion in the light of international instruments to which Nigeria is a signatory and its municipal legislations on labour matters and concludes that collective bargaining is not only a normative mechanism for harmonious labour relations, but that its adoption in the FG/ASUU renegotiation process is consistent with the country’s international obligations and its extant municipal legal regime.
Excerpt:

The meaning, purpose and relevance of collective bargaining as an effective tool of harmonious labour relation have been subjects of extensive discussion since the first comprehensive international instrument on collective bargaining came into being in 1948. Article 2 of The Right to Organise and Collective Bargaining Convention of 1948 which defines collective bargaining is virtually replicated in the Trade Disputes Act of Nigeria.

The Act provides as follows in s. 48: “Collective agreement” means any agreement in writing  for the settlement of dispute relative to terms of employment and physical condition of work concluded between-(a) an employer, a group of employers or organizations representing workers, or the duly appointed representative of any body of workers, on the one hand; and (b) one or more trade unions or organizations representing workers, or the duly appointed representative of any body of workers on the other hand.

Nigeria ratified this Convention on October 17, 1960. It has also ratified the Collective Bargaining Convention of 1981 (and its Recommendations), the most recent international instruments on this subject. On its part, despite continuing debate about its conceptual meaning, there is general agreement that federalism presupposes constitutional division of powers between a national (or federal) government and the government of the constituent units (or states) in a sovereign political entity.

Essential to all federal systems is the notion of distribution of powers between the federal government on the one hand and the states’ government on the other. However, the scheme of distribution of powers varies from one federal country to the other. Here in Nigeria, under the 1999 constitution (where the powers are clearly set out) three methods of distribution of powers are adopted: The Exclusive Legislative List contains 68 items which only the federal government can competently legislate upon.

The Concurrent Legislative List contains 30 items in which both the federal and state governments can exercise legislative competence. However, following the doctrine of Covering the Field, where the federal Government has legislated in any item on the Concurrent List this prevails over any previous or subsequent state law which is inconsistent with the federal Act on the matter.

The states alone are empowered to exercise Residuary Powers over such matters not included in the exclusive or the concurrent legislative list. Five items of legislative competence are relevant for this commentary.  The first category is contained in item 34 of the Exclusive Legislative List and the second category are set out in items 27, 28, 29, and 30 of the Concurrent Legislative List in the 1999 Constitution. Item 34 lists labour, trade unions, industrial relations, industrial disputes, conditions and welfare of labour, etc, for the federation and any part thereof as exclusive legislative competence of the federal government.

In pursuance of this power, the federal government has enacted at least four different legislations seeking to cover the full amplitude of the item. These are: the Trade Disputes Act, the Trade Unions Act, the Labour Act and the National Industrial Court Act. It is important to emphasize that these legislations have binding effect not only on federal government employees but also on state government and private sector employees throughout Nigeria.

Indeed, one of the statutes, the Trade Unions Act, forms the statutory basis for the existence of ASUU. To this end, the union is listed in item 4 of Part C in the Third Schedule to the Act as the only recognised umbrella trade union for academic staff of universities across the country whether in federal or state institutions. This also applies to private universities where the academic staff chooses to join ASUU. No state government is competent to legislate on such matters in any manner whatsoever.

Importantly, the same Act (the Trade Unions Act) in section 23 emphatically recognises collective agreement as one of the benefits which can inure to a trade union (and by necessary implication, its members) as a result of registration. The section in fact categorically prohibits any steps, which seeks to render such an agreement unlawful.

From a careful perusal of items 27, 28, 29 and 30 of the Concurrent Legislative List, the following purposive meaning can be extrapolated:  i. The federal government alone has general powers to legislate on  university and professional education including but not limited to such matters as setting standards, entrance examination, wage structure of university employees and employees of professional institutions, etc (item 27).

This power justifies the establishment of the National Universities Commission charged with the responsibility of regulating university education in the country. It also justifies the powers of the federal government to recognise professional bodies and institutions such as the Council of Legal Education, Institute of Chartered Accountants of Nigeria and other similar professional bodies.

This legislative power can be exercised so as to bind even the states. Indeed, the item is framed in such a way as to prohibit the states from legislating on the matters contained therein. The technique of legal draughtsmanship used here is fairly familiar to lawyers: the express mention of one thing excludes all others not mentioned.

Thus, since only the federal government is expressly mentioned as competent to legislate on matters in item 27, the states are excluded from doing so.  ii. The federal government has power to establish its universities (item 28).iii. The state governments have specific power only to establish their own universities, without federal government infringement (items 29 and 30).

iv. The state governments cannot legislate on any other matter relating to university education other than to legislate for the establishment of state universities. Any law purporting to set standards, conduct entrance examination into such universities, even the wage structure of employees in state universities, will be void if it is inconsistent with any federal government legislation on the matter(s) (section 4(5), 1999 constitution).

In the light of our foregoing disquisition, it is indeed strange and tendentious for both the federal and state governments to posit that a re-negotiated collective agreement between the federal government and ASUU will offend the operation of federalism in Nigeria.

Evidently, this is not borne out by any law, be it constitutional or statutory. On the contrary, such a view offends the extant law in the country and its international obligations. To be sure, the dispute between ASUU and the federal government is a labour dispute which only the latter can deal with pursuant to its exclusive power over labour matters in item 34 of the Exclusive Legislative List of the 1999 Constitution.

This power can be exercised to impact all categories of academic staff whether in federal or state universities. Rather than offend federalism, this power underscores the nature of distribution of powers as enshrined in our country’s extant constitution.

Indeed, this is what might have weighed on the mind of Justice Niki Tobi of the Supreme Court of Nigeria when in Chief Adebiyi Olafisoye v. Federal Republic of Nigeria he opined that each country’s constitution will ultimately determine the ambit of its practice of federalism. Needless to say that in spite of genuine misgivings about the somewhat skewed nature of distribution of powers in our constitution, we are all (governments inclusive) obliged to comply with its provisions until amended.

In any event, throughout the re-negotiation of the 2001 Collective Agreement, the states were fully and adequately represented through accredited Vice Chancellors and Pro-Chancellors of selected state universities. This is a prerogative of the federal government which it has been exercising for a long time in deference to the recommendations of the Presidential Commission on Salary and Conditions of Service of University Staff, 1981 (otherwise known as the Cookey Commission).

The Cookey Commission also acknowledged the sacrosanct status of the principle of collective bargaining as a veritable mechanism for resolving trade disputes and maintaining employers’/employees’ harmony within the university environment.

The Commission’s report has been the template for all collective agreements between ASUU and the federal government before the current government came into being on May 29, 2007. It is therefore clear that government’s current posture is not for want of knowledge of the true legal position. While the ostensible reason(s) remains to be seen, the current impasse further underscores the duplicity of the current government on this otherwise avoidable crisis.


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