Sunday, August 8, 2021 12:00 pm
By Salihu Moh. Lukman
On August 2, 2021, the National Association of Resident Doctors (NARD) began indefinite nationwide strike over demands for improved conditions, payment of salaries ranging between two to nineteen months by some state governments, failure to domesticate Medical Residency Training (MRT) Act 2017 in states, among others. Less than four months back, between April 1 and 10, 2021, the Resident Doctors were on strike over the same issues and the strike was called off following a memorandum of understanding signed by the Federal Government and the leadership of the NARD led by Dr. Uyilawa Okhuaihesuyi.
Resident Doctors are supposedly doctors in training, if you like interns, who provide direct care to patients covering diagnosis, management and treatment. They work in intensive care units, emergency departments, operating rooms and general patient wards supervised by senior residents and specialists. There are estimated 16,800 resident doctors in Nigeria, which represent about 40% of the total (42,000) registered doctors in the country. Without any doubt, they are a very critical pillar of healthcare delivery services in hospitals whose absence always result in shutting down hospitals across the country.
The frequent strikes by Resident Doctors and health workers generally are unfortunate and avoidable and always lead to preventable deaths of patients in the country. Given the cost to human life from strikes by health workers, it is quite alarming that strikes actions in a sector as important as health would be taking place at all. This is a sector that by every standard should be classified as essential, based on which there should be special legal restrictions regarding labour actions such as strikes. Healthcare, utility services such as electricity and water supply, law enforcement, firefighting and food services are all categorised both by the International Labour Organisation (ILO) and United Nations (UN) as essential services.
Being categorised as essential services does not prevent workers in the sector from being organised under a trade union. The existence of a union should be mainly for the purpose of collective bargaining to improve the working conditions of workers and negotiate higher wages. In addition, the existence of trade unions in these sectors would also ensure that collective bargaining promote the growth and competitiveness in the sector, so that they can expand employment opportunities, productivity and wages.
Part of the questions that cannot be ignored, will be the issue of both the legal and institutional frameworks for collective bargaining in Nigeria. Is it a case of gaps in Nigeria’s labour laws such that operations of essential service sectors could be reduced to normal operations associated with other lesser sectors whose activities doesn’t pose any direct threat to human life? Or is it a case that there is the necessary legal framework but weak institutional capacity for both enforcement of the laws and regulations of the conducts of both employers and employees in sectors classified as essential services?
One of the things that must be acknowledged is that Nigeria has all the needed laws and perhaps the most progressive labour laws in the world. These are provided under the 1999 Nigerian Constitution as amended, Trade Union Act, Labour (Employment) Act, Factory Act, Workmen’s Compensation Act, Trade Disputes (Essential Services) Act, etc. Procedural rules and regulations governing workplaces, including negotiations between employers and employees are provided. Specifically, ILO Convention 98, which guarantees the right to organise and bargain collectively is ratified under the Trade Unions Act. Provisions of the Act, Cap 437 Section 24:l, guarantees unconditional recognition of trade unions by employers. One of the things that can be deduced is that practice of collective bargaining between workers’ and employers’ organisations is not restricted to unions registered under the law, which is why professional organisation such as NARD could negotiate and enter into agreements that are binding on work organisations where their members are employed.
A major challenge of Nigeria’s labour relations may have to do with issues of over centralisation and institutional capacity to manage, regulate and facilitate negotiations and agreements. The issue of over centralisation will continue to create challenges largely because the negotiation between workers’ and employers’ organisations are no longer informed by empirical reality of resources available. There is a mindset in the country that government has all the resources required to implement agreements. Most Nigerians, including leaders of workers’ organisations and their members believe that the problem is that the resources are being diverted by political leaders. The consequence is that almost all collective bargaining negotiation end up as power contest between workers’ and employers’ organisation.
Because of being power contests, conditions of indeterminateness as propounded by the late English Economist, W. H. Hutt in the book The Theory of Collective Bargaining, is created. According to him, conditions of indeterminateness make “sharing of gross returns of industry between capital and labour … in perpetual flux and never have time to settle into a state of stable equilibrium. … to a very considerable extent … determined by circumstances which may fairly be called fortuitous, and may be greatly influenced by a bargain between the employer and the employed. Consequently, almost every negotiation and agreement produce new sets of disagreements and disputes between workers and their organisations. This is largely where Nigeria found itself.
Although under the law, provision of dispute settlement is required to go through processes of mediation, conciliation and compulsory adjudication through the Industrial Arbitration Panel (IAP) and National Industrial Court (NIC), the reality is the almost complete absence of any mechanism to negotiate resolution or at the least implement agreement. Over the years however, conciliation and mediation, as functions of labour administration, have greatly declined due to lethargic factors largely because of indecisiveness of Ministry of Labour. For instance, the processes for access to both the IAP and NIC, being the two legal bodies with the primary responsibility of dispute settlement that are legally binding are mainly through the Minister of Labour. It is curious to ask, out of all the plethora of industrial disputes leading to strikes, how many have been filed before the IAP and NIC to pre-empt strikes?
In addition, given that awards by both IAP and NIC are not made directly to the parties but through the Minister, who has the right to refer the parties back to both the IAP and NIC, how many judgements have been obtained and to what extend has the Minister or his representatives taken actions to refer parties back to IAP and NIC to enforce existing judgements and therefore avoid strikes? Without going into all the legal technicalities, which are the vocation of lawyers, in several cases the Ministry of Labour is laid back and hardly intervene to prevent strikes from taking place through brokering negotiations between workers’ and employers’ organisation until strike commences.
Two of the most recently celebrated strike actions in the country may have been averted had the Ministry of Labour enforced provisions of the relevant laws in the country to compel resumption of negotiations between unions and employers, including government in the country. The first celebrated case was the ‘five-day warning strike’ by Nigeria Labour Congress (NLC) against Kaduna State Government of May 16, 2021, over allegations of wrongful dismissals of employees of the state government. The second is the current indefinite strike by the NARD. In both the two cases, there is hardly any reported meeting between the Ministry of Labour and parties to the disputes before the expiration of the ultimatum given by representatives of workers – NLC and NARD. In the case of the ‘five-day warning strike’ by NLC against Kaduna State Government, the intervention by Ministry of Labour came only after the strike commences and a meeting eventually held in Abuja on Wednesday, May 18 when the strike was already three days old. Good enough, following the intervention by the Ministry of Labour, the strike was suspended on Thursday, May 19, 2021, by which time so much damage had already been caused, including disruption of essential services by health, electricity, water services workers in the state.
It is possible that the Ministry has had some consultations and initiated processes of dispute settlement that are not reported. Be that as it may, to the extent that they were unable to pre-empt the strikes, they were ineffective. Being ineffective also made it possible for leaders of unions and workers to organisation to concentrate more in terms of power struggles between them and government than engage in collective bargaining negotiations. As a result, disputes between states governments and their workers are made disputes involving federal government and citizens, which also cover employees in private sector. In the case of NLC versus Kaduna State Government, although the strike was scheduled to commence on May 16, electricity workers who are not employed by the state government commenced the strike action on May 15 ahead of even the aggrieved employees of the state government. Aviation workers who are also not part of the state government employees and therefore not having any legitimate grievances against the state government, stopped all flights into Kaduna on May 16.
Similarly, in the case of the current indefinite strike by NARD, the dispute is largely with state governments and specifically, Abia, Imo, Ondo and Ekiti States have been identified as the states with poor conditions. States that are yet to domesticate the MRT Act 2017 are also known. Of course, there are also issues between members of NARD employed in Federal Governments. But those issues could hardly justify why the NARD should lump every all states and federal establishments in a single basket of dispute. Part of what is clearly a major crisis is the fact that although in most cases, disputes between workers and employers are limited mainly to some few state governments, somehow, in complete violation of legal provisions or industrial relations practices and conventions, wildcat national strikes beyond the organisations affected are declared. Even when strikes produce human casualties, including deaths, both leaders of unions and employers, including governments behave as if it is normal. It is difficult to avoid the question, why should demands for job protection, better conditions of service and higher remuneration become more important than human life in Nigeria?
Above all, the Code of Medical Ethics in Nigeria provided by the Medical and Dental Council of Nigeria, under Part B (Professional Conduct) defined professional negligence to include ‘Failure to attend promptly to a patient requiring urgent attention when the practitioner was in a position to do so.’ How can this important ethical requirement be reconciled with the whimsical disposition of Resident Doctors in Nigeria to go on strike, including what is clearly a solidarity strike? It is very easy to put all the blame on government and political leaders in the country. There is every reason to recognise the challenge that always come with the reality of governments operating both as a sovereign authority as well as employer of labour. Being sovereign authority, makes it easy to associate governments with repressive practices, which in the context of management of labour relations result in violations or refusals to implement agreements.
The reality is that, increasingly, recognising that government and political leaders in Nigeria would have taken wrong steps that breached conditions of employment, does that then become the licence to sacrifice the lives of innocent Nigerians by withdrawing services in Nigerian hospitals? No doubt, Medical Doctors, and health workers generally, require special attention. It is very demeaning that the required special attention is being reduced to languages of industrial relations bordering on cheap demands for so-called improved working conditions and higher wages. That Resident Doctors and health workers in Nigeria are being discussed in very elementary vocabulary reflects the endemic empirical and conceptual crisis the country is facing. As a nation, we must elevate the status of Resident Doctors and health workers in the country. This goes beyond the realm of any institutional arrangement for the practice of collective bargaining. It is more about political decisions based on which special status and privileges are provided for special category of workers.
It is in fact, the privilege of enjoying those special status that justify placing the sector as an essential service sector. No doubt, provisions of the Trade Dispute (Essential Services) Act would make some of those provisions, which may need periodic review. It is scandalous that the agitation by the leaders of NARD is not about qualitatively reviewing those conditions that goes beyond cheap Naira and Kobo negotiations. Eventually, no doubt, everything comes down to Naira and Kobo. But there are provisions with very high monetary value, which may not cost a dime to government. For instance, assuming that being a Resident Doctor or a health worker in a state government establishment qualifies one to be on priority list for land allocation for the purpose of building personal accommodation. Also, assuming state governments can facilitate financing arrangement with banks to NARD and other organisations of health workers for their members with valid Certificate of Occupancy to build personal accommodations. There are so many non-monetary incentives, which have very high monetary value to the beneficiaries that can be arranged.
Sadly, both governments and leaders of workers organisations in these essential service sectors are locked in the limited negotiations of monetary awards, which at best whittled down the profile of a very special category of an important sector such as health, which is required to provide uninterrupted services dearly needed by all citizens for our survival and wellbeing. To be endowed by God Almighty with the intelligence to become a medical doctor or health worker must not be devalued in anyway. Not devaluing these category of personnel means there are superior demands being negotiated, which may mean zero costs to employers but higher value to workers beyond wages and current conditions of services. This is what should be on the table for negotiation, which an agreement should make it easy for all state governments to implement, based on which every worker in the health sector is proud to provide uninterrupted services, no matter what.
The challenge before the nation is not about lamentation. It is more about creatively finding solutions. It is worrisome, that Nigerians could easily justify why strike actions are taking place in essential service sectors such as health. There is the need to appeal to all Nigerians, not just political leaders, we need to all take steps to stop the current madness in the country whereby we can resort to actions that consume human lives. If the argument is that we have problems created by our political leaders, we should ask the question, is our actions solving the problem or creating new ones? In most cases, it is more likely that we adopt actions which basically transform us into the status of our political leaders as excellently argued by the Brazilian educator, Paulo Freire in the classic book Pedagogy of the Oppressed, when he argued that “The oppressed, instead of striving for liberation, tend themselves to become oppressors. Liberation is thus a childbirth, and a painful one. The oppressed want at any cost to resemble the oppressor.”
When one listen to arguments canvassed by leaders of workers’ organisation in Nigeria, including NLC and NARD, all that one hears is the display of raw power with hardly any empirical or conceptual evidence highlighting a vision of how the problems we face as a nation can be solved. Rather than providing a roadmap of how problems can be solved, ego and loud voices of people who can best qualify for some physical contests with supposed opponnents have become the main attributes. Any opinion to the contrary is condemned and dismissed. This is the new face of leaders’ workers organisations in Nigeria. Street protests and strikes ahead of any negotiations are now very common. There is the need to reorient the practice of labour relations in Nigeria. A situation whereby because citizens are angry with government and political leaders, essential services are withdrawn, and lives of citizens cheaply sacrificed must stop.
It is quite frustrating, when political appointees, such as Ministers of Labour and Health are unable to proactively pre-empt strikes of health workers in the country. As loyal members of APC, being the governing party, we must appeal to our Ministers of Labour and Health to wake up to their responsibility and end this political embarrassment coming with huge cost to lives to citizens. Ministers of Labour, Health and all stakeholders must as a matter of urgency lock themselves in the most qualitative form of negotiations with all workers in the health sector to restore some minimum standards in the sector. This is not simply about negotiating terms and conditions of services of health workers in the country. It more about creatively ensuring that these are sectors that are essential services sectors with commensurate benefits that is beyond monetary provisions.
Similarly, Nigerians must appeal to the Medical and Dental Council of Nigeria to take all the necessary measures to restore ethical conducts of all its registered members. A situation where conducts of medical practitioners, being also members of trade unions, conflict with the Code of Ethics they subscribed to must be resolved in favour of protecting the lives of Nigerians. Under no circumstance should a registered medical doctor who is a member of the Medical and Dental Council conduct himself or herself in manners that neglect the primary responsibility of attending to sick persons in Nigerian hospitals.
In the end, priority attention must be given to the issue of redefining Nigerian federalism to ensure that labour issues, including negotiations for wages and terms of conditions of services and resolving all challenges that come with it are moved to the concurrent list of the 1999 Nigerian Constitution as amended. A situation whereby terms agreed with Federal Government are used for state government employees will always create problems of implementation. State governments need to be more creative to introduce new incentives, which are not monetary but perhaps having higher monetary values than what obtains in federal establishments. There is a wide scope for initiatives beyond the question of monetary value of employment.
Salihu Moh. Lukman, Progressive Governors Forum, Abuja. This position does not represent the view of any APC Governor or the Progressive Governors Forum