INDUSTRIAL ACTION

The expression "industrial action" is used to describe the various actions and steps that the
parties to industrial conflict may resort to in expressing their grievances, pursuing their claims
and asserting perceived rights.
The major
forms of industrial action are strikes, lockouts, work to rule, go-slow, overtime ban, work-in,
picketing etc.
STRIKE
Strike is the commonest and most popular form of industrial action. Professor Rideout described
it as " a deliberate and concerted withdrawal of labour" It is usually done in furtherance or
prosecution of a trade dispute. By S. 47 TDA strike is defined as " the ceasation 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, or to aid other workers in
compelling their employer or any person or body of persons employed to accept or not to accept
terms of employment or physical conditions of work.
According to Lord Denning in Tramp Shipping Corporation v. Greenwich Marine Inc (1975) 2 All
ER 989 at 990 strike is "a concerted stoppage of work by men ... with a view to improving their
wages or conditions of employment, or giving vent to a grievance or making a protest about
something or other or supporting or sympathizing with other workmen in such endeavour"
.
The Act explains that "cessation of work" includes deliberately working at less than usual speed
or with less than usual efficiency. This explanation is intended to include go-slow and work-to-
rule in the statutory definition of a strike.
Strike is a potent tool of the workers in collective bargaining without which the efficacy of their
bargaining would reduce. Lord Wright had said in Crofter Harris Tweed Co. Ltd v. Veitch (1942) 1
All ER 142 at 159 that the right to strike is the essential element in the principle of collective
bargaining. It is an essential element not only of the unions' bargaining itself, it is also a
necessary sanction for enforcing agreed rules". Following in the same line, Uwaifo JCA in Union
Bank of Nig. Ltd v. Edet (supra) held that " it appears that whenever an employer ignores a
breaches a term of that agreement, resort could be had, if at all, to negotiation between the
union and the employer, and ultimately to a (trike action should the need arise for enforcing
agreed rules". See also Young
4. Canadian Northern Railway Corp. (1931) AC 83.
The combination and concert required in strike actions make for efficacy and potency of strike as
a powerful tool at the disposal of strong unions and indeed brings to bear the unity of the forces
of the individual members, which had been pooled together for the purposes of bargain.
However, the combination and concerted cessation of work or refusal to continue though with a
view to compelling acceptance of terms and conditions of work is a direct assault on the
contract of employment between the employer and the individual workers. The question
therefore is; is strike action a breach of the contract and putting an end to the contract of
employment or what is the effect of strike on the contract? Three theories exist at common law.
One is that a strike has the effect of suspending the contract of employment for as long as the
strike lasts and is revived again when the strike is over. This is the suspension theory as
enunciated by Lord Denning in Morgan v. Fry (1966)
3 WLR 516. The theory was noted by the Supreme Court in Anene v. Allen &
Co. Ltd (unrep.) Suit No. SC/88/64 and it was observed;
" Prima facie, a striker intends to return to work once the obiect of the strike has been obtained
and although this may involve a fresh contract of service, an intention to repudiate the existing
contract is not necessarily to e presumed.
On the other hand, the whole of the circumstances,
including the duration o the strike may be such as to warrant the employer in treating the striker
as having manifested an intention to repudiate. It is therefore impossible to lay down any rule of
universal application, and each case must depend on its own facts"
The second theory is that refusal to work in consequence of a strike could be treated as a breach
of contract of employment which makes the contract voidable at the instance of the employer.
The employer then has the option either to ignore the breach or to accept such breach as a
repudiation of the workers obligation under the contract. The case of Anene v. Allen (supra)
equally support this trite principle of law as Brett J,SC had held that a servant who deliberately
absents himself from work commits a breach of contract sufficient to justify his dismissal and
does not necessarily by so doing terminate the contract. See also J.T. Stratford & Sons Ltd v.
Lindley (19640 2 All ER 209 at 217 where Lord Denning had held " the strike notice is nothing
more or less than a notice that the men will not come to work or as in this case that they will not
do their work as they should, in short, that they will breach their contracts". This was no doubt an
acceptance that a strike meant a breach of
contract
The third theory is that a notice to strike amount to a notice to terminate the contract and it will
be for the employer to accept or negotiate.
There is however no apreement among the theories as to the legal effect of strike on the
contract of employment
Any Right to Strike?
It has been noted that the right to strike is an essential element in the principle of collective
bargaining to enable the workers to negotiate forcefully and compel performance. But, do
workers in Nigeria have a right to strike? Right to strike must be distinguished from freedom to
workers in Nigeria have a right to strike? Right to strike must be distinguished from freedom to
strike.
Right presupposes something more fundamental than freedom, It is a just claim to something.
Freedom is no more than being free from physical or moral
restraint but freedom is subject to legal restraint i.e, doing something one likes provided it is
within the confine of the law.
A right to strike would mean that neither statute nor case law nor contract of employment could
legitimately deny the worker this right.
The right would
form part of the workers contract of employment.
However, freedom to strike implies that the worker is free to go on strike whenever the need
arises but he must do so within the bounds of the law. It is only a privilege and statute can deny
him this privilege.
At common law, the right to strike, which existed to a workers' combine, was an expression of the
freedom of the workers to act protective of their interests and strike subiect to the reaction of
the employer. The different theories on the effect of strike show the position of strikes at
common law.
Under Statute, there appears to be no right to strike conferred by any law.
Infact, S. 17 of the Trade Disputes Act is regarded as a bar. It provides inter alia:
(1) A worker shall not take part in a strike in connection with any trade dispute where:

● The procedure specified in S. 3 or 5 of this Act has not been complied with in relation to
the dispute; or
● A Conciliator has not been appointed under S. 7 of this Act;
● The dispute has been referred for settlement to the IAP under S. 8
● An award by an arbitration tribunal has become binding under S.
12 (3);
● The dispute has been referred to the NIC under S. 13 (1) or 16;
● The NIC has issued an award on the reference.
A contravention is an offence under sub. Section 2.
Sub. Section (1) on the face can be seen as stipulating preconditions for a worker to take part in
a strike. Compliance should ordinarily render the ban inoperative. However, a careful
consideration of S. 17 would reveal that the parties lose the right (otherwise apparently
recognized therein) completely once the procedure is commenced. Therefore, an attempt to
embark on a strike under the preconditions under S. 17 would be an exercise in futility.
Further, S. 5 of the Trade Unions (Amendment) (No.2) Decree 26 of 1998 added a proviso to S.
16A of the principal Act to the effect that the deduction by the employers of check off dues from
the wages of eligible members of the Trade Union employed by them and disbursement of the
same to the Trade Unions and the central labour organisation shall be subject to the insertion of
"no strike" clause in the relevant collective bargaining agreement.
Apart from the repressive no strike clause, another clog in the wheels of unionists pertaining
strikes is the ever-increasing horizon of essential services within which strike is completely
expressly prohibited with threat of criminal sanctions. Essential services defined by S. 9 of the
Trade Disputes (Essential Services) Act Cap 433 are very wide and has continued to widen.
LOCKOUT
Lockout means * 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 employed by him in consequence
of a dispute, done with a view to compelling those persons, or to aid another employer in
compelling persons employed by him to accept terms of employment and physical conditions of
work - S. 47 TDA. Lockout is supposedly a power available to the employer in a trade dispute and
represents the converse of strike. It is to the employer what strike is to the employee and is
similarly subject to the S. 17 TDA
preconditions.
WORK - IN OR SIT - IN
This is a situation where workers not only lay down their tools but also remain at their place of
work. Here, the workers go to their place of work but they do nothing. They may also take steps
to interfere with the employers business by seizing control of either a whole or part of the
premises.
OVERTIME BAN
Overtime ban involves the refusal of workers to work overtime even if overtime work is
compulsory. Overtime is work done after contractual hours.
WORKING TO CONTRACT
This may entail withdrawal of enthusiasm and cooperation or goodwill. It generally involves
refusal to continue to provide services outside the contract.
GO- SLOW
This is covered by the definition in S. 47. It suggests working at less than the usual or normal
speed.
WORK TO RULE
This refers to deliberately paying exaggerated attention to rules and regulations and so slow
down output.
PICKETING
Picketing is another aspect of industrial action. It is employed by workers on strike to persuade
non-strikers to join the strike. Simply put, picketing involves a situation where a worker or a
group of workers, stationed at the gate(s) of a factory or any other place of work during a strike,
tries to persuade others not to go to work.
The TUA provides for peaceful picketing. It says that it shall be lawful for one or more persons,
acting on their own behalf or on behalf of a trade union or a registered federation of trade unions
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 peacefully persuading any person to work or abstain from working - S. 42 (1).
Picketing under the TUA is a peaceful demonstration involving workers. At times, it may affect
both private and public law. In the former, picketing may result in the commission of economic
torts, while in the latter; picketing may conflict with public order.
Picketing and Economic Torts: - Picketing interferes with the employers business. The pickets
may be accused of conspiracy to induce a breach of contract, or inducing a breach of contract
or intimidation of workers and customers alike, trespass to property or nuisance. Any of these
torts taken singly or collectively injures the employers' enterprise and as a result may suffer
economic damage.
However, the law is aware of the likelihood of such economic torts and still it allows for peaceful
picketing. Therefore, so long as picketing is peaceful, it is immaterial that the employer suffers
economic torts and their attendant consequential losses. Also, under S. 43 (1) of the TUA trade
unions and unionists acting in contemplation or furtherance of a trade dispute are immune from
certain torts. However, these immunities will be lost if unionists are involved in violent picketing.
The problem of picketing and public order lies in the adjustment of conflicts or interests between
the various parties affected.
These include the pickets
themselves, non-strikers, employers and customers. Every one of them has his fundamental right
to be protected. In the process of maintaining law and order, the law enforcement agencies may
investigate, arrest and prosecute those involved in the breach of the peace.
Therefore, even though S. 42 (2) of the TUA provides that peaceful picketing shall not constitute
an offence under any law in force in Nigeria or any part thereof - See S. 366 Criminal Code. This
protection is broken if the picketing is not peaceful. A non-peaceful picketing can always be
ascertained from the circumstances of each case.
In Tynan v. Balmer (1967) 1 QB 91 the defendant, a union official was in charge of a group of forty
pickets assembled on an access road to a factory during a strike. He had organized the pickets
into a continually moving circle to prevent traffic from entering. A constable who thought that
people wishing to pass along the highway would be obstructed from doing so, ordered the
defendant to stop the moving circle, which he refused. He was held to have willfully obstructed
the constable in the execution of his duty and the action of the pickets constituted an
obstruction of the highway and nuisance. Also in Piddington v. Bates (1960) 3 All ER 660 a
policeman wished to restrict the number of pickets who were outside a factory. When a striker
tried to join the picket line, he was arrested and charged with obstructing the policeman in the
course of his duty. His conviction was upheld for the policeman had acted on reasonable
grounds that a breach of the peace might have occurred.
It has also been held under a similar section that pickets do not have power to stop vehicles or
persons and that if the pickets attended in such large number so as to prevent the free passage
of others, then their purpose would not be protected under the section- see Broome v. DPP
(1974) 1 All ER 314; Hunt v.
Broom (1974) 2 WLR 58.
The pickets may only "attend at or near and not in a house or place". Therefore, the pickets may
not attend into and inside the house or place where it is intended to obtain or communicate the
information or persuade persons as that would amount to invasion against the will of an occupier.
But they may stand by or move to and fro along the road in close proximity to the relevant house
or place and can enter only if permitted. The use of the highway poses some problem.
In Ferguson v. O' Gorman the Irish S. C. stated that to attend at or near a house or place cannot
be one situated in a wasteland or no-man's land and the usual approach to any such place is a
public highway. But the use of the highway must be reasonable. In Thomas v. National Union of
Mineworkers (South Wales Area) (1985) 2 All ER1 it was held that mass picketing constituted a
common law nuisance for all citizens had the right to use the highway without harassment or
unreasonable interference. Such an unreasonable user may also be an offence under S. 234 of
the Criminal Code.

LIABILITIES, IMMUNITIES AND PROTECTIONS

Most times, the collective actions of trade unions and their numbers, like in strike, constitute
breaches of the law in one form or the other. Therefore, in recognition of the need or the union to
possess vital powers, immunities and privileges are afforded for trade unions within a legal
framework that enable unionists operate effectively without let or hindrance.

Liabilities - The liabilities could be criminal or civil, for e.g. criminal

public peace, rioting, nuisance, etc.
conspiracy, unlawful assembly (in non peaceful picketing), disturbance of
Inducing or procuring a breach of contract - The violation of economic interest without
justification is a tortuous breach and the leading case of Lumley
v. Gye (1843-60) All ER 208 is reputed as having began the development of a separate tort of
interference with contracts. In the absence of statutory intervention, the union and its officials
who called out members to strike would be liable. In Tor' quay Hotel v. Cousins (1969) 1 AER 522
a trade union was in dispute with a hotel. A union official informed a company which was
supplying oil to the hotel of the existence of the dispute and instructed its members not to
deliver oil supplies. It was held that an injunction would lie to restrain the union officials from
causing any fuel supplier to break its contract to supply oil.
Conspiracy - Conspiracy entails the combination of two or more persons to do an unlawful act or
a lawful act by unlawful means. Where the acts of the conspirators tend towards criminal objects,
it is a crime, but where the acts are merely tortuous, they are civil wrongs.
Trade unions are by nature
combinations and so vulnerable to liabilities for conspiracy; civil and criminal See Quinn v.
Leathem (1901) AC 595. There, a butcher employed non-union labour. The union called upon him
to dismiss them, but he refused to do so.
Instead he offered to pay the men's arrears of subscriptions if the union admitted them. The
offer was rejected by the union officials who wanted to teach the non-unionists a lesson. Munce
supplied meat to Leathem and the union threatened to call a strike of Munce's me unless
supplies of meat to Leathem were cut off and Munce complied with the request. It was held that
the union officials had conspired together to cause harm to Leathem without lawful justification
as their conduct had been motivated by vindictiveness.
Therefore, the exercise of a union's lawful obiects does not amount to conspiracy merely
because there is a combination e.g. a strike action for higher wages even though it will cause
harm to the employer. In Scalla Ballroom (Wolverhampton) Ltd v. Ratcliffe (1958) 3 AER 220, the
plaintiffs operated a colour bar at their dance hall. Officials of the musician union placed a
boycott on the premises in protest. This was held to be a combination in legitimate furtherance
of the union's interest.
For intimidation see Rookes v. Barnard (1964) 1 AER 367.
In view of the fore going and other liabilities and sanctions hanging in waiting for trade unions
and their members in effective industrial relations, statutory immunities and protections were
developed to set a clear ambit for legitimate exercise of the objectives of the unions. These
protections shall lie only for
"acts done in contemplation or furtherance of a trade dispute: See NWL v.
Woods (1979) 3 AER 614.
S. 23 TRADE UNIONS ACT - S. 23 (1) provides inter alia" an action against a Trade Union .... in
respect of any tortious act alleged to have been committed by or on behalf of the trade union in
contemplation of or in furtherance of a trade dispute shall not be entertained by any court in
Nigeria." And, by subsection 2, it applies to both an action against a trade union in its registered
name and to an action against one or more persons as representatives of a trade union.
In Jeje v. Kadiri & Ors (1987) 4 NWLR (pt. 65) 460 Nnaemeka Agu JCA held the section
constitutes a complete ouster of jurisdiction.
The section does not protect officials and members even though acting on behalf of the union
but are sued in their individual or official capacity. This distinction came up in Ademola v.
Babayemi (unrep. Suit No. JD/12/63/Jos).
The defendant, a branch official of a union of which the plaintiff was a general secretary, at a
union meeting accused the plaintiff of "introducing politics into Nigerian trade unionism", of
misuse of union funds and of being the "good boy" of the government. In an action for slander,
S. 23 immunity was cited. Reed J held that S. 23 gave no protection in a tort action to individual
members of the union.
In Momodu v. Municipal and Local Authority Workers' Union (Unrep. S. No.
B/57/68/Benin) an action for libel against the defendant union was struck out as the Judge found
the alleged publication was done in contemplation or furtherance of a trade dispute.
S. 43 T.U.A - S. 43 provides inter alia:
(1) An act done by a person in contemplation or furtherance of a trade dispute shall not be
actionable in tort on any one or more of the following grounds only, that is to say

1 that it induces some other person to break a contract of employment; or

2 that it is an interference with the trade, business or employment of some other person or with
the right of some other person to dispose of his capital or his labour as he wishes: or
3 that it consists in his threatening that*a. contract. of employment (whether one to which he is a
party. or not) will be broken; or
4 that it consists in his threatening that he will induce some other person to brenk a contract of
employment to which chat other person is a party.
2) Nothing in subsection (1) of this section shall prevent any act done in contemplation or
furtherance of a trade dispute from being actionable in tort on any ground not mentioned in that
subsection.
These provisiong would protect workers from such actions as were in Tor'ynny.
¡otel r. Consines (supra) and Rookies v. Barnard (supra).
S
12 T.U.A. - See peaceful picketng.