Petitioner: Trade union members of the Joint Health Sector Unions (JOHESU) And
Respondent: Federal Ministry of Health
Date Delivered: 2013-07-27
Suit No: NICN/ABJ/238/2012
IN THE MATER OF SECTION 17 OF THE TRADE DISPUTES ACT CAP. T8 LAWS OF THE FEDERATION OF NIGERIA 2004 AND IN THE MATTER OF THE TRADE DISPUTE BETWEEN
The trade union members of the Joint Health Sector Unions (JOHESU), namely –
1. Medical and Health Workers Union of Nigeria
2. National Association of Nigeria Nurses and Midwives
3. Senior Staff Association of Universities Teaching Hospitals, Research Institutes and Associated Institutions
4. Nigerian Union of Pharmacists, Medical Technologists andProfessions Allied to Medicine
5. Non-Academic Staff Union of Educational and Associated Institutions - Complainants
AND
Federal Ministry of Health - Respondent
JUDGMENT
This matter is a direct reference to this Court by the Honourable Minister of Labour and Productivity acting pursuant to
his power under section 17 of the Trade Disputes Act, Cap. T8, LFN 2004. The letter forwarding the referral instrumentis dated June 17, 2012 with Ref. No. ML.IB/1B/8/461. The dispute is between the Joint Health Sector Unions (JOHESU)
and the Federal Ministry of Health. The JOHESU is a conglomeration of trade unions in the health sector comprising five
(5) trade unions, namely: Medical and Health Workers Union of Nigeria; National Association of Nigeria Nurses and
Midwives; Senior Staff Association of Universities Teaching Hospitals, Research Institutes and Associated Institutions;
Nigerian Union of Pharmacists, Medical Technologists and Professions Allied to Medicine; and Non-Academic Staff
Union of Educational and Associated Institutions.
The issues in dispute, which this Court has been asked to adjudicate on, are –
a) Non-Skipping of salary CONHESS 10.
b) National Health Bill.
c) Consultancy & Specialist Allowance.
d) Call/Shift and other professional allowances.
The Court, given the agreement of the parties, asked them to join issues. The complainants were asked to file and serve
their affidavit in support together with supporting documents and written address; and upon service of these processes,
the respondent was to file and serve its reply affidavit together with supporting defence documents and written address.
The complainants were then to file and serve their reply on points of law, if any. This the parties did. The complainants’
written address is dated 22nd October 2012 but filed on 29th October 2012 and the 54-paragraphed affidavit in
verification of the complaint (together with the accompanying documents – Exhibits FOF 1 – FOF 21-21A) was deposed
to on “30th day of October 2012” but was filed on “29th Oct, 2012”. The respondent’s counter-affidavit (together with the
accompanying documents – Exhibits FMOH 1 to FMOH 17) and written address are both dated and filed on 13th March
2013. On 4th April 2013, the respondent filed a further and better counter-affidavit with one Annexure (Exhibit FMOH 18)
attached. The complainants’ reply on points of law is dated and filed on 22nd May 2013.
COMPLAINANTS’ SUBMISSIONS
The case of the complainants is that they, as trade unions operating under the coalition name of Joint Health Sector
Unions (JOHESU), declared series of trade disputes against the Federal Government represented by the respondent
hereof over a number of issues. On each of the occasions the trade dispute was declared, the Minister of Labour and
Productivity apprehended the dispute and facilitated negotiation between the parties. The outcome of the first
negotiation was a Collective Bargaining Agreement dated December 2, 2009, Exhibit FOF.2 attached to the Affidavit in
Verification of the Complaint.
That because of the failure, refusal and/or neglect of the Federal Government to implement some terms of the
agreement reached in Exhibit FOF.2, and the refusal to resume negotiation on the outstanding issues as agreed, the
complainants declared a fresh trade dispute in October 2011 and this was followed by industrial action embarked upon
by members of JOHESU in December 2011 and May 2012 respectively. The Hon. Minister of Labour and Productivity
again apprehended the dispute and facilitated further negotiation between the parties between May 10, 2012 and July
16, 2012. The Communiqué and the Resolution issued at the end of the negotiation meetings are annexed to the
Affidavit in verification of the Complaint as Exhibit FOF.6-6A. In accordance with the resolution of the parties on July 16,
2012 and pursuant to the powers conferred on the Minister of Labour and Productivity under section 17 of the Trade
Disputes Act Cap. T8 LFN 2004, the Minister referred this matter (over the issues enumerated above) to this Court for
resolution.
The complainants then went on to frame four issues for the determination of the Court, namely –
1. Whether the directive of the respondent Federal Ministry of Health and the Office of the Head of the Civil Service of
the Federation, evidenced by Exhibits FOF 13-13A, FOF 14, FOF 15 and FOF 16 that, in the implementation of
CONTISS and later CONHESS salary structures, step 10 of the said salary structure should not be skipped contrary to
the entrenched practice in the entire public service (exemplified by Exhibits FOF 7A-F, FOF 8, FOF 9, FOF 10(A-G),
FOF 11 and FOF 12) without due process of negotiation is not irregular and, therefore, a nullity as it amounts to a
deprivation of the accrued right of the affected health professionals/staff and discriminatory amounting thereby to unfair
labour practice.
2. Whether the directive of the respondent Federal Ministry of Health that non-medically qualified health professionals
with requisite post-graduate qualifications and experience should not be appointed as Consultants in FederalGovernment Health institutions and that any such appointment previously made should be reverted immediately, is not
in contravention of existing regulation and international practice and also a withdrawal of accrued rights of the affected
staff and discriminatory.'
3. Whether the denial of the payment of specialist allowance to qualified and eligible health professionals on the ground that they are not medically qualified, is not a denial of their right to enjoy negotiated conditions of service, discriminatory and unconscionable.
4. Whether eligible health professionals who are members of JOHESU who are invariably clinical staff are not entitled to
be paid Call Duty Allowance, Shift Duty Allowance, Administrative Non-Clinical Allowance, Hazard Allowance and
Administrative Allowance, as the case may be, in the same way and at the appropriate rate as their medical practitioner
counterparts, who are also clinical staff, are being paid under their own salary structure, and whether the refusal of the
respondent to pay the said allowances to the affected health professionals either at all or at rates different from their
other clinical staff counterparts, is not discriminatory and, therefore, unconstitutional and offending against international
best practice.
In all, for the reasons given and for the avoidance of doubt, it is hereby declared, held and ordered as follows –
1. Clause 3.0(ii) of Exhibit FOF 2, the collective agreement, has agreed on shift duty allowance. Parties are enjoined to apply the clause to the letter.
2. Clause 3.0(x) of Exhibit FOF 2, the collective agreement, has agreed on administrative allowance. The claim of the
complainants for 10% of CONHESS for all eligible health professionals as administrative allowance is, therefore,
uncalled for and so fails. It is accordingly dismissed.
3. Clause 3.0(xi) of Exhibit FOF 2 has agreed on administrative non-clinical allowance. Parties are enjoined to apply the clause to the letter.
4. Clause 3.0(ix) of Exhibit FOF 2 has agreed on increase in call duty allowance. The claim for equality of treatment as
regards call duty allowance is unfounded and so dismissed.
5. As per clause 3.0(vii) of Exhibit FOF 2, the respondent has the right to direct that non-medically qualified health
professional should not be appointed as Consultants in Federal Government Institutions.
6. However, the directive that any such appointment previously made should be reverted immediately is invalid and
hence unlawful because clause 3.0(vii) of Exhibit FOF 2 permits such an appointment. In consequence, all members of
the complainant unions who were appointed previously as Consultants but whose appointment have now been reverted,
the reversion of such appointment is hereby declared null and void and of no effect. They are thereby entitled to the
payment of specialist allowance as per clause 3.0(vii) of Exhibit FOF 2.
7. The directive as per Exhibit FOF 16 that CONHESS 10 should not be skipped is declared null and void, and of no
effect. The status quo prior to Exhibit FOF 16 which permitted skipping of CONHESS 10 shall accordingly remain the
norm unless it is appropriately negotiated by the parties.
Judgment is entered accordingly. We make no award as to cost.
………..………………………..
Hon. Justice B. A. Adejumo
Presiding Judge
………………………………… ………………………………..
Hon. Justice B. B. Kanyip Hon. Justice M. N. Esowe
Judge Judge
Complainants’ issue 1
Regarding issue 1, the complainants submitted that an examination of Exhibit 13-13A, the ministerial circular directing
non-skipping of CONTISS dated 8th June 2009 reveals that it was initiated by the Minister. Following protests by the
unions and the generality of workers, it was withdrawn by Exhibit FOF 13A. That there is a correlation between Exhibit
FOF 13 issued by the Minister of Health and Exhibit FOF 14 subsequently issued by the Head of the Civil Service on the
same subject. It is clear on the face of both Exhibits FOF 13 and FOF 14 that the two circulars did not result from any
previous negotiation or consultation with JOHESU or any other representatives of the employees in the health sector. It
was purely at the initiative of the Minister of Health. That this is so is further buttressed by Exhibit FOF 15 with which the Minister of Health again stopped the implementation of Exhibit 14 in the health sector.
In any case, that CONTISS, implementation of which Exhibits FOF 13 and Cl4 complained was itself a salary structure
imposed on workers by Government without any negotiation or consultation with the workers. Its introduction
precipitated an industrial crisis in the health sector, referring to paragraph 3 of their Affidavit. It was eventually abrogated
in the health sector, and replaced by the Consolidated Health Sector Salary Structure CONHESS (Exhibit 3), which is
the product of the Collective Bargaining Agreement (Exhibit 2) and the Report of the Technical Sub-Committee (Exhibit
1). That a perusal of Exhibit 1 (the Report of the Technical Sub-Committee) and Exhibit 2 (the Collective Bargaining
Agreement) both of which produced CONHESS (Exhibit 3), shows clearly that at no stage of the negotiation or the
formulation of the applicable Salary Tables was the issue of non-skipping of any grade level discussed. There was no
discussion and, therefore, no agreement on non-skipping. The Technical Sub-Committee produced five Tables of
Allowances which were attached to its Report, Exhibit FOF 1. Exhibit FOF 2, the Collective Bargaining Agreement,
records under Areas of Agreement as follows –
Salary Structure - It was agreed that there shall be a separate salary structure for all health professionals and staff to be
called Consolidated Health Salary Structure (CONHESS) shown as Annex I attached. The CONHESS table now consolidates Rent Subsidy.
That there was no suggestion that the agreement included skipping or non-skipping of any salary grade. The Circular
however concluded that “the government shall release an enabling circular not later than seven (7) days from the date
the Agreement is signed”.
The complainants continued that in line with the agreement, the National Salaries, Incomes and Wages Commission
issued the Circular of CONHESS dated 8th December 2009. CONHESS Table was Annexure I to the Circular. The
CONVERSION TABLE FROM CONPSS OR CONTISS TO CONHESS is Annexure II to the Circular. That curiously,
however, the Conversion Table shows that whereas CONPSS 10 is equivalent to CONTISS 09 or CONHESS 09,
CONPSS 12 would be equivalent to CONTISS 10 or CONHESS 10, and CONPSS 13 would be equivalent to CONTISS
11 or CONHESS 11. This suggests that whereas a civil servant on CONPSS 10 would move to CONPSS 12 and skip,
CONPSS 11, other public servants like health professionals on CONTISS or CONHESS would not skip CONTISS 10 or
CONHESS 10 before moving to CONTISS 11 or CONHESS 11. To the complainants then, that formula or interpretation
was not negotiated and, therefore, did not form part of the agreement of the parties when negotiating CONHESS.Besides it is discriminatory.
That apparently, to actualise the plan of the Federal Ministry of Health and also the unsolicited Annexure II to the
CONHESS Circular, the Head of the Civil Service of the Federation by another circular dated February 10, 2011, Exhibit
FOF 16, reiterated the earlier circular banning non-skipping in the implementation of the CONHESS.
In arguing this issue, the complainants drew the attention of the Court to paragraphs 24, 25, 26, 27 and 28 of the
Affidavit in Verification of the complaint and Exhibits FOF 7(A-E), FOF 8(A-G), FOF.9 and FOF1O attached to the
affidavit. That it would be seen from these documents that right from the inception of the Unified Grade Salary Structure,
skipping of some grade levels when advancing from one to the next is recognised and practiced. Exhibit 7(A-E), which is
an excerpt from the earliest Federal Scheme of Service after the Udoji unification exercise of 1974, shows that middle
level officers were promoted from GL. 10 to GL. 12. That the practice has been consistently applied up to the latest
Federal Scheme of Service, 2003 edition, Exhibit FOF.8(A-G). The complainants went on that the fact that the skipping
rule and practice is still in vogue in the public service till the present is evident from Annexure II to Exhibit FOF.3, the
CONHESS official circular, which shows that in the application of CONPSS, which succeeds the GL structure in the civil
service, civil servants who are on that salary structure still move from CONPSS 10 to CONPSS 12 thus skipping
CONPESS 11.
To the complainants, even moving away from the mainstream civil service, by the recommendation of the Cookey
Presidential Commission of 1981, which was accepted by Government, University staff were moved away from the
unified GL salary structure to the University Salary Structure (USS). After that movement, University staff on USS 9 still
moved to USS 11, thus skipping USS 10, as exemplified in Exhibit FOF 8. Referring to Exhibit FOF 9, the complainants
argued that the Onosode Presidential Commission also of 1981 on the other hand made recommendation which was
accepted by Government to the effect that staff of University Teaching Hospitals and Research Institutions should enjoy
similar conditions of service and salary in the following words –
We have recommended that University Teaching Hospitals and Research Institutes should be in Category ‘B’ of our
Classification of Parastatals. Although the terms of reference of our Commission specifically excluded the Universities,
we have shown them in the same category because we believe that their functions and objectives are similar to those of
these other institutions. We know that decisions have been taken on the conditions of service of university employees
based upon the work of another Commission. The true import of our recommendation, therefore, is that we believe that
the staff of University Teaching Hospitals and Research Institutes should enjoy essentially the same conditions of
service as those applicable to University staff.
The complainants went on that the precursor to CONTISS or CONHESS is the Harmonised Tertiary Institutions Salary
Structure (HATTIS). The application of that salary structure also recognized the principle and practice of skipping, in that
officers on that salary structure moved from HATTIS 09 to HATTIS. 11, and skipped HATTIS 10, referring to Exhibit FOF
12. That the clear inference to be drawn from all the above analysis is that the principle of skipping of salary grade 10 or
11 as the case may be, in the entire public service, and in particular as it affects health professionals and staff in health
institutions, like the University Teaching and Specialist Hospitals, is an entrenched part of the conditions of service of the affected staff.
The complainants then submitted that such an important and entrenched term and condition of their service which they
or their preceding generations have enjoyed for over 30 years cannot be wished and taken away from them without
negotiation and any specific agreement to the contrary. The complainants then referred the Court to Severinsen v.
Emerging Markets Telecommunication Services Ltd [2012] 27 NLLR (Pt. 78) 374, where this Court held that the
employer cannot, by unilaterally determining the appointment of the employee before the expiration of the fixed term of
the contract of employment, deny the employee his right to earn bonus which is deemed to have accrued to the
employee before the unilateral determination of his employment; and also Anzaku & ors v. Governor of Nassarawa State
& ors [2005] 5 NWLR (Pt. 919) 448.
The complainants continued that it would be an unfair labour practice to discriminate against health professionals by
denying their lower level management staff moving to the middle level management category the right to skip a grade
level when their peers in the civil service, University and research institutes enjoy that right, referring to Mix & Bake v.NUFBTE [2004] 1 NLLR (Pt. 2) 247 at 282 – 283; Maiya v. The Incorporated Trustees of Clinton Health Access Initiative
in Nigeria & ors [2012] 27 NLLR (Pt.76) 110 at 157 – 159, and 170. That it would amount to a denial of the right of the
complainants to be heard and, therefore, unconstitutional, not to have raised the issue of non-skipping of salary any
grade level, advance their argument on the point at the time of negotiation and afford the Unions an opportunity to be
heard in response, before imposing the policy, referring to Ogundoyin v. Adeyemi [2001] 13 NWLR (Pt.730) 403 at 423.
Complainants’ issues 2 and 3
The complainants then argued issue 2 and 3 together because the denial of payment of specialist allowance to health
professionals is a fall-out from the decision to stop the appointment of health professionals other than medical
practitioners as Consultants. That a convenient starting point in the argument of these issues is paragraph 40 of the
Affidavit in Verification and Exhibit FOF 11, a circular issued by the Federal Ministry of Health to, inter alia, lay down the criteria for the appointment of Consultants for University Teaching Hospitals. The complainants then submitted that
criteria (a) and (d) in paragraph 2 of the Circular permit clinicians other than medical practitioners to be appointed as
Consultants in University Teaching Hospitals. Whilst criterion (a) relates to the clinicians who have attained the status of
Professors, criterion (b) relates to other clinical teachers provided they have had at least five years in the specialty and
also possess post-graduate academic/professional qualifications.
To the complainants, it is instructive that over a period spanning some 35 years from 1976 when the circular was first
issued, University Teaching Hospitals have relied on this policy circular to appoint health professionals other than
medical practitioners as Consultants, as evidenced by various appointment letters bundled together and marked Exhibit
FOF 17. That this policy and practice has crystallised into the status of condition of service and has conferred a right to
eligible health professionals to be so appointed, once there are vacancies in the establishment of each University
Teaching Hospital, referring to Lipede v. Sonekan [1995] 1 SCNJ 174 at 203 (line 27); [1995] 1 NWLR (Pt. 378) 668.
The complainants went on that in spite of this already accrued right by health professionals who have been appointed as
Consultants in University Teaching Hospitals and also other eligible health professionals who aspire to such
appointment, the respondent herein, Federal Ministry of Health, issued Exhibit FOF 18 dated 15th December 2012,
barring the University Teaching Hospitals from further appointment of health professionals other than medically qualified
personnel as Consultants, and also directing the Hospitals to revert any such previous appointment made by them. The
circular further stipulated that the designation of consultants should only be used for medically qualified personnel “as
stipulated in extant circulars. That in issuing the Circular, the respondent Ministry did not refer to any circular that has
superseded Exhibit FOF 11.
The complainants continued that in compliance with the Exhibit FOF 18, the University Teaching/Specialist Hospitals
have been revoking the appointments of health professionals already appointed as Consultants and stepping down the
decisions to appoint others as exemplified by Exhibit FOF 19. In effect, Exhibit FOF 18 has by fiat taken away from
eligible health professionals’ rights that had accrued to them, and have foreclosed their legitimate aspiration to any such
future appointments.
To the complainants, it is most irregular and indeed unconstitutional for the respondent Ministry to withdraw from eligible
health professionals the right to be appointed Consultants in the Hospitals which has already accrued to them, and
without affording them or their representatives such as the Complainant hereof the right to be heard, Oyeyemi v.
Commissioner for Local Government [1992] 2 NWLR (Pt. 226) 661 at 684, Ojo v. Governor of Oyo State [1989] 1 NWLR
(Pt. 95) 1 and Udoh v. Orthopaedic Hospital Management Board [1993] 7 NWLR (Pt. 304) 139 at 149. On that score, the
complainants urged the Court to annul the letter from the Federal Ministry of Health dated 15th December 2011, Exhibit
FOF 18, and all actions taken based on that circular by all health institutions under the Ministry.
To the complainants, quite apart from Exhibit FOF 18 being irregular and unconstitutional, it is necessary to examine the
basis of the said Circular. That the first reason given for issuing the circular is that appointment of non-medically
qualified health professionals as Consultants is in contravention of existing Scheme of Service and that the title
‘Consultant’ is the exclusive preserve of medically-qualified personnel. That in paragraph 45 of the complainant’s
Verification Affidavit, the allegation that the appointment of health professionals as Consultants contravenes extant
Scheme of Service is denied. The onus is cast on the respondent Ministry to establish the contrary, referring to section
131 of the Evidence Act 2011 and Archibong v. Ita [2004] 2 NWLR (Pt. 858) 590 at 618 – 619. In any case, that theMinistry has the duty to prove that the Ministry’s Circular of 1976 (Exhibit FOF 11) has been superseded by another
circular over the last 35 years, before the respondent Ministry issued its offending Circular Exhibit FOF 18.
Incidentally, that Exhibit FOF 2, the Collective Bargaining Agreement listed the payment of Specialist Allowance to
health professionals as one of the areas of agreement reached in the course of the collective bargaining as follows –
Specialist Allowance
It was agreed that Specialist Allowance shall be at the rate of 45% of Consolidated Salary and shall be payable to
Health Professionals employed as consultants in line with Scheme of Service used in the Public Service of the
Federation. The resultant specialist Allowance table at the rate of 45% of the consolidated salary is attached as Annex
V.
That it is clear from this agreement that health professionals other than medical practitioners have indeed been
appointed as Consultants in accordance with the Scheme of Service used in the Public Service of the Federation.
On the contention that the title ‘Consultant’ is the exclusive preserve of medical practitioners, the complainants drew the
Court’s attention to paragraph 46 of the verifying affidavit and Exhibit FOF 20(A-C) attached thereto, evidencing the fact
that advertisements are placed and appointments made internationally of non-medical practitioners like Radiographers,
Pharmacists, and Physiotherapists as Consultants. That the decision that appropriately qualified health professionals
who are not medical practitioners should no longer be appointed as Consultants and that those already so appointed
should be reverted offends against international best practice, which this Court is constitutionally enjoined to adopt and
uphold, referring to section 254C(1)(f) of the 1999 Constitution, as amended, and Mix. & Bake v. NUFBTE (supra) at
page 282. That it is clear in this case that there is nothing in international practice that forbids appointment of
non-medical practitioners health professionals as Consultants in their respective specialty in health institutions. Indeed,
that the contrary is the case.
The complainants further submitted that the contention that the title Consultant is reserved for or should be the exclusive
preserve of medical practitioners overlooks the fact that health-care delivery is a multi-professional and multi-disciplinary
team work, among medical practitioners and other professionals within the health sector. Whereas it could be conceded
that the medical practitioner is invariably the head of the team with regard to patient-care, that fact by itself does not and cannot translate to the fact that other professionals with whom the medical practitioner has to work or collaborate cannot
or do not acquire or possess such expertise to make them appointable as Consultants.
As to who is a consultant, the complainant contended that he/she is a professional who is retained for consultation with
respect to any aspect of the subject for which he professes some expertise. That Denning, LJ (as he then was) in the
English Court of Appeal case of Razell v. Snowball [1954] 3 All ER 429 at 432 had this to say –
Counsel for the plaintiff pressed us with some observations in the cases concerning consultants. He said that the
defendant was a part-time consultant, and that a consultant was in a different position from other staff of the hospital. I
think that counsel for the defendant gave the correct answer when he said that, whatever may have been the position of
a consultant in former times, nowadays, since he National Health Service Act 1946, the term “consultant” does not
denote a particular relationship between a doctor and a hospital. It is simply a title denoting his place in the hierarchy of
the hospital staff. He is a senior member of the staff, and is just as much a member of the staff as the house surgeon is.
Whether he is called specialist or consultant makes no difference.
That this statement is as valid in 1954 as it is today.
To the complainants, the position of the medical practitioner Consultant in the health team is akin to that of the
Consultant Architect in a construction project. The Consultant Architect designs the structure. Although he invariably
leads the team, other consultants like structural engineers, electrical engineers, mechanical engineers and even quantity
surveyors are involved in the process of designing and supervising the construction process. That the recognition of
these other professionals as consultants does not take away the leadership position of the Architect who is responsible
for designing the project, and quite often supervises the construction project as Consultant Architect. Furthermore, that
the appointment and recognition of suitably qualified health professionals as Consultants to work with Consultant
medical practitioners does not detract from the medical practitioner’s leadership in the patient-care process, urging the
Court to so hold.The complainants went on that payment of Specialist Allowance has been agreed to in the course of collective
bargaining and has been incorporated into the Collective Agreement, it has formed part of the conditions of service of
the affected workers, and it is not open to the respondent to refuse to pay it to all eligible employees. They then urged
the Court to order the payment of the allowance to all eligible health professionals forthwith. That the refusal of the
respondent to pay specialist allowance to health professionals is a direct fallout of the directive of the respondent to all
tertiary health institutions not to appoint non-medical practitioner health professionals as consultants and to revert the
appointment of those already occupying the posts. Once the Court agrees that the directive of the respondent on the
appointment of Non-Medical Practitioner Consultant is wrong, the refusal of the Ministry to pay specialist allowance
ought to be annulled. That it is not open to the respondent Ministry to unilaterally abrogate an agreement jointly and
voluntarily entered into by the Government and the unions. The complainants then urged the Court to overrule the
unilateral decision of the respondent Ministry in this regard.
Complainants’ issue 4
Regarding issue 4, the complainants reiterated that one of the issues referred to this Court for resolution is the dispute
over Call/Shift Duty and other Professional Allowances. That each of the allowances in question has its antecedents in
different stages of the negotiation process.
Call Duty Allowance
To the complainants, under the Collective Bargaining Agreement, Exhibit FOF 2, “it was agreed that Call Duty Allowance
shall be increased at the rate of 56.6%. That this does not foreclose future renegotiation on the existing relativity ratio....”
In conclusion, the negotiating team agreed “that discussion shall commence between the parties on item above (ix) [i.e.
Call Duty Allowance] on a future date that would be collectively agreed to both parties”. That the respondent practically
made it impossible for the further discussion which was agreed to take place on this issue, to be held until another trade
dispute was declared by the complainants in May 2012. Because the parties were unable to reach an agreement on this
issue at the renewed negotiation, the Hon. Minister of Labour & Productivity included this item on those referred to this
Court for resolution.
That the debate that preceded the deadlock in the negotiation for payment of Call Duty Allowance can be found on page
4 of the Outcome of the Meeting of the Technical Sub-Committee set up by the Inter-Agency Committee to prepare the
Table of Agreed Allowances, Exhibit FOF 1 herein. That the point to note in all the debate is that Call Duty Allowance is
not synonymous with Overtime allowance. Rather it is payment for the apprehension of the time of the professional, who
must, while on call, place himself on stand-by to attend to any emergency at any time of the day or night, and the
stand-by can be anything up to 16 hours of a Call day, after the normal working time of eight hours. The inconvenience
to all cadres or professionals on call being the same and ‘since each must make him/herself available when on call, it is
only fair that the rate of the allowance should be the same percentage of the basic salary of each individual professional.
Any disparity in the hierarchical seniority or level of professional contribution to patient-care is invariably already
reflected in the salary or grade level of the individual professional. That payment of call duty allowance should, therefore,
be at a flat percentage rate to all affected professional/worker without discrimination. That the complainants have
suggested 5% of the Consolidated salary per unit call, as fair.
Shift Duty Allowance
To the complainants, it would appear that disagreement in respect of this Allowance has been narrowed down, if not
already removed, as it is stated in the body of the Collective Bargaining Agreement, Exhibit FOF 2 that “it was agreed
that Shift Duty Allowance shall be increased at the rate of the average increase granted to the Consolidated Health
Salary Structure (CONHESS). This amounted to 53% increase”. That the only point to add is that the application and
payment of the allowance should continue to be the same for all eligible health professionals and workers. Indeed, that
the uniform application of the percentage rate of this allowance to all beneficiaries irrespective of cadre or professional
calling or status, has made it rancour-free, unlike other allowances like call duty allowance.
Administrative Non-Clinical Allowance
Here, the complainants contended that this is the allowance payable to health professionals posted to perform
administrative duties in the Federal Ministry of Health or other departments or agencies of the government other than
hospitals and other health institutions and who are, therefore, not on call or shift duty and are not eligible to earn call orshift duty allowance. That the argument on both sides as to whether the rate of the allowance payable to health
professionals other than medical/dental practitioners deployed to MDAs should be a percentage of call duty allowance
only or on either call duty allowance or shift duty allowance, depending on whether the health professional in question
would ordinarily be entitled to call duty or shift duty allowance if he/she were working in a hospital or other health
institution, is to be found in paragraphs 3.1.1 to 3.1.4 on pages 3 and 4 of Exhibit FOF l. To the complainants, since the
Technical Sub-Committee was unable to agree on the point, it was referred to the Inter-Agency Committee, which was
also unable to agree.
That there is agreement in principle that health professionals on posting to MDAs apart from hospitals and other health
institutions should draw Administrative Non-Clinical Allowance at the rate of 75% of the allowance paid to those posted
to hospitals and other health-care delivery institutions. That the only disagreement is the basis of the payment. The
complainants then commended the argument from both sides to the Court for resolution.
Administrative Allowance
To the complainants, argument on the propriety or otherwise of paying this allowance in addition to the Consolidated
Salary is to be found on paragraphs 3.3.1 – 3.3.4, page 5 of Exhibit FOF 1. The argument of the NSWIC is that it would
amount to double compensation to pay administrative allowance to top management staff charged with administrative
responsibilities in addition to the Consolidated Salary already fixed. The argument of the complainant on the other hand
is that the allowance had existed and was being paid to eligible management staff side by side in previous salary
structures before CONTISS and CONHESS, and that there is, therefore, no justification for cancelling or attempting to
cancel it. The complainants ask for 10% of the Consolidated Salary for all eligible health professionals who, in addition
to their normal professional duties, also carry administrative responsibilities which make considerable demand on their
spare time, which perhaps would have been available for leisure or some other productive activities. That payment of
such allowance would encourage such officers to discharge the additional administrative duties without grudge and
without shirking their normal professional duties.
In Senior Staff Association of Universities, Teaching Hospitals Research Institutions and Allied Institutions & ors v.
Federal Ministry of Health & anor [2008] 10 NLLR (Pt. 26) 212 this Court declined to adjudicate the dispute over
payment of allowances demanded by the appellants and encouraged the parties to proceed to further negotiation on the
subject, because the interests sought to be protected by the appellants at that time had not yet crystallized into right,
over which the Court could adjudicate. To the complainants, that case, which was an appeal from the award of the
Industrial Arbitration Panel (IAP), is different from the present case in the sense that in the first place, this case is a
direct reference by the Hon. Minister of Labour and Productivity because of its obvious impact on industrial peace in the
nation’s health sector. Secondly, the parties have undergone series of negotiations. Secondly, that the parties have
reached basic agreement on almost all the allowances being sought. The question whether health professionals and
staff are entitled to be paid the allowances is, therefore, no more in dispute. The point of disagreement is the rate of
payment of some of the allowances. That the demand of the complainants at this instance has shifted away from mere
interest to a claim of right.
The complainants then submitted that if there is a dispute between the parties as to the applicable rate, even after series
of negotiation and industrial action, it is only right for the Court to assume jurisdiction and resolve the dispute once and
for all, lest the spirit of the provision of section 18(l)(e) and (f) of the Trade Disputes Act shall be abused.
The complainants went on that the argument regarding issues 1, 2 and 3 on the principle against discrimination and
unfair labour practice is adopted mutatis mutandis under issue 4. Accordingly, that the Court should take a holistic view
of the dispute between the parties and come to a decision which will be binding on the parties.
In conclusion, the complainants urged the Court to decide all the issues in their favour.
RESPONDENT’S SUBMISSIONS
In reaction, the respondent prefaced its written address with an introduction. To the respondent, the Federal
Government of Nigeria operates a Unified Service Scheme in the entire Federal Public Service. That sometime in 1974,
the Udoji Commission which was set up by the Federal Military Government created the Unified Grading SalaryStructure (hereinafter referred as the UGSS) for the entire Federal Public Service. That since the Udoji Commission of
1974 there has not been any other comprehensive job evaluation conducted or carried out in the Federal Public
Services. That it is, therefore, safe to conclude that, in practice there is only one comprehensive schemes of service that
deal with the career progression of officers in each of the various occupational groups in the entire Federal Public
Service. That the Udoji recommendation abolished the occupational or professional classes and considered all
employees in the public service as members of a single service. Sometimes in 1981, due to the high inflation, as well as
the complexity of jobs in different sectors of the Federal Public Service, the Federal Government accepted a
recommendation by the Cookey Committee which recommended that there should be a 20% leverage over the Unified
Grading Salary Structure (UGSS) for Universities, Teaching Hospitals, Research and Allied Institutions. It was as a
result of this recommendation that the salary structure for Universities, Teaching Hospitals, Research and Allied
Institutions was revised that the Revised Universities Salary System became the salary structure for Universities,
Teaching Hospitals, Research and Allied Institutions.
To the respondent, in view of the complex nature of jobs in different sectors of the Federal Public Service, several salary
structures were at one time or the other introduced to address the peculiarities of each occupational groups. That the
Consolidated Health Sector Salary Structure (CONHESS) sprang from the various attempts at making sure that the
Health Sector Workers were placed at an advantage within the Public Service taking into account the complex nature
and peculiarities of their jobs. Furthermore, that the various salary structures i.e. the Revised University Salary System
(RUSS) which later gave rise to the Harmonised Tertiary Institutions Salary Structure (HATISS) and Consolidated
Tertiary Institutions Salary Structure (CONTISS) are the sources from where the Consolidated Health Sector Salary
Structure was derived. That the Unified Grading Salary Structure (UGSS) has also moved from being the Harmonised
Public Service Salary Structure (HAPSS) to Consolidated Public Service Salary Structure (CONPSS).
To the complainants, there is no difference between these latter salary structures and the Unified Grading Salary
structures (UGSS) as they all follow the same conversion from UGSS to RUSS and the conversion tables are provided
in line with the provisions of the scheme of service for a smooth and proper application of the new structures (i.e. the
CONTISS, CONHESS, etc); appropriate conversion tables were provided for a proper implementation, referring to
Exhibit FMOH1.
Also, that when CONHESS was introduced through Exhibit FMOH7, the National Salaries Income and Wages
Commission provided the appropriate conversion table as can been seen from Annexure II to Exhibit FMOH7. According
to Exhibit FMOH2, the conversion from the UGSS to RUSS is as shown in Exhibit FMOH1 reproduced hereunder for
ease of reference
UGSS
RUSS/HSS
GL.O1
GL.02
RUSS.01
GL.03
RUSS.02
GL.04 RUSS.03
GL.05
RUSS.04
GL.06
RUSS.05
GL.07 RUSS.06
GL.08
RUSS.07
GL.09
RUSS.08
GL.10
RUSS.09
GL.12
RUSS.10
GL.13
RUSS.11
GL.14
RUSS.12
GL.15
RUSS.13
GL.16
RUSS. 14
GL.17 RUSS.15
That it was when it came to the knowledge of the office of the Head of Civil Service of the Federation and National
Salaries Incomes and Wages Commission that this table was flagrantly and unabashedly violated by the Teaching
Hospitals, Universities, Research and Allied Institutions operating the CONTISS, CONHESS and related salary
structures that Exhibit FMOH8 was issued by the office of the Head of Civil Service directing that “Agencies which have
placed their staff inappropriately after promotion by skipping any grade level should reverse to the appropriate grade”.
The defendant continued that when the circular i.e. Exhibit FMOH8 was issued, the complainants inter alia, made
various representations to the Government craving and begging for soft landings for officers who have benefited from
this unauthorized skipping of grade levels as a result of which Exhibit FMOH9 was issued. That according to Exhibit
FMOH9, the skipping of any grade level is illegal. Exhibit FMOH9 also directed that officers who have in the past
exceeded their terminal grade levels due to skipping be brought back to the appropriate terminal grade and salary with
effect from 1st January 2011, while for those officer who have earlier skipped grade levels but have not exceeded their
terminal grades are to retain their grades and salaries but further promotions shall be according to the schemes of
service.
The respondent then contended that it is these circulars i.e. Exhibits FMOH8 and FMOH9 that the complainants
objected to amongst others that led to the referral before this Court.
The respondent then framed three issues for the determination of the Court, namely –
a) Whether having regard to the schemes of service and all relevant extant circulars and policies on grading, the
skipping of CONHESS 10 or any other grade or step by the complainants is not illegal.
b) Whether having regards to the provision of the schemes of service applicable to the health sector, can other health
professionals aside of medical and dental practitioners be appointed as Consultants as to entitle them to be paid
specialist allowances.
c) Whether members of the complainant unions are eligible to be paid call duty allowance, shift duty allowance,
administrative non-clinical allowance and administrative allowance at the same time as their medical practitionercounterpart.
To the respondent, issue a) is tied to the first point of referral while issues b) and c) are married to points three and fourof the referral respectively.
The respondent, however, noted that point two of the referral has been abandoned by the complainants as according to
paragraph 52 of their verifying affidavit, they “have been advised however and” they “have accepted the advice that
since the draft Bill has now left the domain of the Federal Ministry of Health and indeed the Federal Executive Council to
the National Assembly, JOHESU will follow all constitutional means to pursue its interest concerning the passage of the
Bill in its present form elsewhere”.
Respondent’s issue a)
Regarding issue a), the respondent submitted that “the schemes of service represents one of the terms and the career
opportunities available to an officer on appointment into Public Service”. That the professional/career progression of the
complainants and their grading salary structure is already contained in the scheme of service. For a proper appreciation
of this issue, that it is necessary to point out the fact that all the salary structures that are currently in operation in the Federal Public Service were derived from the Unified Grading and Salary Structure (UGSS) put in place in 1974 by the
Udoji Commission flowing from their various schemes of service. The defendant then reiterated that since there has not
been any other comprehensive job evaluation conducted in the Federal Public service to radically change the schemes
put in place since the Udoji Commission, it implies that in practice there is only “ONE COMPREHENSIVE schemes of
service that deals with the career progression of officers in every occupation cadre in the entire public service”.
That when it comes to the salary structure, due to the variation in jobs complexity and peculiarities in the different
sectors of the Federal Public Service, “there have been several salary structures which has been introduced”. As it has
been listed out in the statement of relevant fact, these salary structures adopted the same conversion from the UGSS as
provided in the conversion table.
The respondent continued that the complainants have argued that a look at the UGSS will show that there is nothing like
GL 11, consequently there is a skipping of GL 11. That this opinion is not only fallacious but incredulous; the approved
schemes of service of the career officers in the Federal Public vis-à-vis the conversion table provided by the National
Salaries Income and Wages Commission did not create room for skipping of any grade level. The defendant then invited
the Court to take a critical look at Exhibit FMOH2. That from this exhibit, it is glaring that CONHESS 10 or RUSS 10
which the complainants are insisting on skipping is the equivalent of GL. 12 which is the grade level for principal officers
in the Federal Public Service and this post is still an extant one in the Federal Public Service.
At this juncture, that it is appropriate to state that officers are promoted on the basis of the provisions of the schemes of
service, the scheme of service in use in the Federal Public Service as of today did not provide for the skipping of any
Grade whether in GL or CONHESS. The defendant then submitted that on promotion, it is only when the appropriate
grade level or post and career progression of an officer had been determined in line with the provisions of the schemes
of service that the appropriate compensation or remuneration for the post or grade level will be sought in the salary
table. That it is the schemes of service and not the salary structure or table that determines the career progression of
officers in the Federal Public Service.
The respondent went on that apart from the skipping of CONHESS 10 which they posited is the equivalent of GL. 12,
there is also a skipping from CONHESS 13 which is the equivalent of GL 15 to CONHESS 15 which is the equivalent of
GL 17. That in the operation of the UGSS structure, it was noted that the figures on GL 11 and GL 12 were not in any
meaningful way different as to confer any reasonable advantage on the holder and that it was best to remove it totally
from the UGSS table by merging same into GL 12. When this was done the schemes of service was AMENDED to
accord with this change. This is a development that took place long before the emergence of other salary structures
such as CONHESS. That it must also be noted that this was done as at the time the UGSS was the only salary structure
in force in the entire Public Service.
The respondent continued that as is evident from Exhibit FMOH14, the terminal point for, say, a Chief Matron in thehospital setting is expected, from the scheme of service, to be CONHESS 12 which is the equivalent of GL 14 but is
placed on CONHESS 13 i.e. GL 15 due to skipping. That it is the prerogative of the employer to determine the wages of
his employees based in the parameters of ability to pay and the extant Government Policies like the National Minimum
Wage. That the documents the Court can look at this stage is the scheme of service as well as respondent’s Exhibit
FMOH1 to FMOH7. The Court was then referred to International drilling Co. (Nig) Ltd v. Ajijola [1976] 1 All NLR 117 at
130 and section 3 of the National Salaries, Incomes and Wages Act Cap. N72 LFN 2004.
To the respondent, where the skipping of CONHESS 10 is allowed, it will amount to double advantage to the
complainants who already have the benefits and advantages of GL 11 worked into their salary system. Whereas under
CONPSS, or the UGSS, it is possible for an employee to start his progression from GL 01, this is not the case under
RUSS or CONHESS. An examination of Exhibit FMOH1 will show that, for example, the entry point for a staff
Nurse/Staff Midwife is Grade Level 07 which is the equivalent of RUSS/CONHESS 06 and the scheme of service
already pegged their terminal point as Chief Matron/Chief Nursing superintendent at Grade Level 14 or
RUSS/CONHESS 12. But with skipping of CONHESS 10 which is Grade level 12, a person who ordinarily ought to have
progressed from “Matron Grade 1/Principal Nursing Superintendent Grade 11” on Grade Level 10 being Nursing
Superintendent Grade 1 on Grade level 12 will now progress from RUSS/CONHESS 09 to RUSS/CONHESS 11 i.e.
from Senior Nursing Sister/Senior Nursing Superintendent Grade 1 thereby omitting the active level of Matron Grade
1/Principal Nursing Superintendent Grade 11. With this practice of skipping, unnecessary distortions in the career
progression of officers in the whole Federal Public Service has been introduced because of the similarities in the public
service job thereby occasioning an undue advantage to these cadre of professional.
That for example, the job of an administrative officer in the core civil service is similar to that of an administrative officer in any of the teaching hospitals or universities and are also subject to the same guidelines provided in the schemes of service. Ordinarily it may, in the normal scheme of things, take an administrative officer in the core civil service, an
average of some good twenty-seven years to move from Grade level 08 to Grade level 17, but with the distortion created
by the skipping of CONHESS 10, and other levels, it will take an administrative officer in the Health sector a mere
average of just seventeen years to progress from Grade level 08 to Grade level 17, as a result of the undue advantage
they had derived from the skipping of CONHESS 10 and other levels. That this is preposterous! Different people working
for the same employer doing the same job but being subjected to different rules in terms of career progression! That this
is illegal and the Court should condemn totally the skipping of CONHESS 10 or any other Grade Level in the CONHESS
salary structure.
Furthermore, that skipping of Grade Levels in the Health sector has led to a situation where officers on the Executive
Cadre, Nursing Cadre, Technologist Cadre have been promoted to CONHESS 13 which is the equivalent of Grade level
15 even though their terminal point is actually Grade Level 14 or CONHESS 12 as per their approved scheme of
service. To the defendant, it would appear that what the complainants are asking for is that they should be promoted
beyond their competencies. This should not be allowed as it would not only introduce chaos in the entire Federal Public
Service, but it would amount to a judgment given against all known public policies and against the generality of the
Nigeria Public.
The respondent continued that the complainants have argued that skipping of grade levels had been recognised in other
sectors of the public service such as the Universities and allied institution. But to the defendant, the skipping was
introduced illegally and when it came to the knowledge of the Head of Service and National Salaries, Income and
Wages Commission, Exhibits FMOH 8 and 9 were issued. That since any circular issued by the office of the Head of
Service of the Federation has service-wide implications binding on all agencies, some agencies in the educational sector
such as the Joint Admission and Matriculation Board (JAMB), Nigerian College of Aviation Technology (NCAT),
Teachers Registration Council (TRC), etc, have fully implemented the directives of Exhibits FMOH 8 and 9.
The respondent then asked whether the health sector should be allowed to single itself out to disobey extant circulars
from constituted authorities such as the Head of Service that is a creation of the Constitution charged with regulating
and planning of the service. The defendants answered in the negative, as this would introduce chaos.
Still on the issue of competence, the defendant went on that a Chief Matron whose terminal point is Grade level 14 orCONHESS 12 will, by this skipping arrangement, be promoted to, say, Grade Level 15 or CONHESS 13 which is the
post of an Assistant Director and one of the duties as spelt out in the scheme of service for a Chief Matron is that she
takes charge of a section. While, one of the duties spelt out for an Assistant Director in the schemes of service is that he
takes charge of a Branch. That what the complainants are saying here is that it does not really matter whether they are
competent, just give them the post.
That it was also submitted by the complainants that even though the act of skipping may be illegal, they should be
allowed to enjoy it since their predecessors in office had enjoyed it. Here the defendants reacted that this position is not
only spurious but laughable as the law is now settled that a party is not allowed to benefit from any act of illegality (Saleh v. Monguno [2006] 15 NWLR (Pt. 1001) 316 and Nwakwoba v. Dumez (Nig) Ltd [2004] 3 NWLR (Pt. 861) 461 at 484) or
that the Court should be friendly with or countenance illegality (Sodipo v. Lemninkainam & anor [1986] 1 NWLR (Pt. 15)
220 and Alao v. African Continental Bank Ltd [1998] 3 NWLR (Pt. 542) 339). That this Court should not shut its eyes to
the fact that what the complainants are asking is not only illegal but it is against all known public policy and law. That it is trite principle of law that Courts are not to sanction what is injurious to public welfare or against the public good, referring to Total (Nig) Plc v. Ajayi [2004] (Pt. 860) 270 – incomplete citation, and Okonkwo v. Okagbue [1994] 9 NWLR (Pt. 368) 301. That this Court should not lend its weight to chaos and segregation in our public service as the complainants are
inviting the Court to do.
The respondent continued that the complainants have not submitted before this Court that, assuming without conceding,
Exhibit FOF 13 emanated from the office of the Honourable Minister, Federal Ministry of Health, that he lacked the
power to issue such a circular; or that there is a law stopping the Head of the Civil Service of the Federation from issuing
similar circular on the same subject matter. That the complainants have not shown that the office of the Head of Civil
Service of the Federation lacked the jurisdiction to issue such a circular; what they are complaining about is that there
ought to have been negotiation. To the defendant, there was no need for any negotiation as the so called practice of
skipping was illegal and a decisive step had to be taken to curb same. That illegality is not negotiated in order to restore
legality, nor can illegality (no matter how long it has been in existence) transform to legality; it is dealt with drastically and decisively. To show that this was a rule that was illegally introduced by some misguided administrators to their advantage, some Agencies such as Joint Admissions and Matriculation Board (JAMB), National College of Aviation
Technology (NCAT) and the rest have complied with the no “skipping circular”, referring to paragraph 52 of the
counter-affidavit.
To the respondent, the authority of Severinsen v. Emerging Markets Telecommunications Services Ltd (supra) cited by
the complainants is not relevant here as what was decided therein was determination of an appointment before the
expiration of a contract of employment that has a fixed time.
That in this case, the complainant has failed to show this Court the fixed time for the illegality to stop or how long they
intend to continue in the illegality.
To the respondent, the submission that it would be unfair labour practice to discriminate against health professionals in
the skipping of grade levels is equally untenable as other institutions and agencies that were wallowing in this illegality
had since reversed their steps. It rather would be unfair labour practice to allow the health professionals to continue to
dwell in illegality when other agencies or sectors have since reversed in compliance with the circulars Exhibits FMOH 8
and 9. That discrimination and unfair labour practice is not an empty slogan to be brandished with magical efficacy to
mesmerize the Court into a state of delirium or unreasoning credulity, referring to Nwafor v. Nwangiri [2000] 7 NCLR 153
at 167.
The respondent then urged the Court to answer this issue in favour of the defendant as to do otherwise would be
tantamount to lending credence to illegally and promoting chaos in the Federal Public Service.
Respondent’s issue b)
To the respondent, this issue covers what may be termed a two-way demand by the complainants: appointment as
consultants; and payment of consultancy and specialist allowance. That every profession has its qualifying scheme built
in its curriculum. That the medical profession which includes veterinary medicine has in its curriculum certainrequirements to be fulfilled before becoming a Consultant. That the extant scheme of service for the Federal Public
Service as approved by the National Council on establishment and the office of the Head of the Civil Service of the
Federation for now recognizes only Medical Doctors and Veterinary Doctors in the Public Service who have acquired
prescribed additional specialist training as Consultants and thus has created a Cadre for them. This is what entitles them
to be called Consultants and be paid specialist allowance when such allowances have been earned. That the other
professional groups in the public service in the health sector that desire to be called Consultants have to follow due
process and forward their requests for recognition as Consultants to the office of the Head of the Civil Service of the
Federation.
To the respondent, the requirements for the “consultancy” Cadre are –
1. A report by a committee of Experts/Assessors of the Curriculum and Facilities setup by the Federal Ministry of
Education, and approval of the Honourable Minister of Education.
2. The report of the Experts/Assessor’s and the approval of the Minister of Education will then be presented to the
National Council on Establishment (NCE) for its consideration.
3. The recommendation of the (NCE) National Council on Establishment will then be presented to the Federal Executive
Council (FEC) for approval at the Federal Level or the Executive Council at the State Level.
That these laid down criteria are yet to be met by the complainants to warrant their being placed on the consultancy
cadre. Rather than take steps to ensure compliance with this laid down procedures they prefer to cling fast to the
specification of duties in the schemes of service which used the word “consultants”.
That other professional groups in the public service who are desirous of having consultancy cadre in their profession
recognized in the schemes of service have forwarded their requests to the office of the Head of the Civil Service of the
Federation. A very good example of those that have complied is the pharmacist cadre and their application is currently
receiving appropriate attention.
The respondent continued that Exhibit FMOH7 made provision for payment of specialist allowance to only Consultants
who are employed as Consultants in line with the approved schemes of service. That other than the medical and dental
practitioners, there are no other cadres in the Health sector that are employed and designated Consultants in line with
the extant scheme of service. That given Exhibit FMOH7, specialist allowance is only applicable to those Health
professionals, other than medical and dental practitioners, on the condition that, according to the schemes of service,
they are employed and designated as Consultants. That the complainants should, therefore, toe the path of the
pharmacist by exploring the procedures of amending the schemes of service to enable them to be employed or
appointed as Consultants to qualify for specialist allowance.
The respondent continued that Exhibit FOF 11 being relied upon by the complainants did not emanate from the
defendant Ministry and so it is not genuine.
That the submission that the supposed circular of 1976 has crystallized into the status of condition of service though
credulous is impalpable as it runs contrary to all legal norms and principles. That nowhere in the verifying affidavit did
the complainants aver that it was stated in their condition of service that they are Consultants; yet in their written
address they are urging this Court to hold that since a purported circular has been in existence for a long time it should
be allowed to continue even when it violates all known law and ethics. The defendant then urged the Court to take
judicial notice of the extant Schemes of Service 2003 and the extant Civil Service Rules. Citing section 137 of the
Evidence Act, the defendant submitted that the onus is on the complainants to prove this assertion and in order to do so
they have to exhibit before this Court a copy of the terms and conditions of service or the white paper that introduced it
into the terms and conditions of service. The defendants referred the Court to Evans Brothers (Nig) Publishers Ltd v. A.
S. Falaiye [2002] 47 WRN 74, Nwavu v. Okoye [2008] 18 NWLR (Pt. 1118) 29 at 61 and Agbakoba v. INEC [2008] 18
NWLR (Pt. 1119) 489 at 558.
To the respondent, assuming without conceding that Exhibit FOF 11 emanated from the respondent, Government, like
law, is dynamic and not static. That a cursory look at the document will show that the government of the day in 1976 was
the Military Government but today we have in place a democratically elected Government. That another glaring fact fromthis document will show that all public servants where graded in the Grade Level or Unified Grading Salary Structure
including the complainant unions but today the complainant unions are graded under the Consolidated Health Salary
Structure (CONHESS). Furthermore, Doctors in Government Hospitals who engaged in part-time teaching in the
University were entitled to honorarium placed at between N1,000 and N1,500. But today this has greatly improved. The
defendant then asked why the complainant is not asking to go back to the salaries they were earning in 1976 since
government had paid that sum for some time and should be viewed as part of the terms of the condition of service; and
why they would agitate for an increase in their salaries.
The respondent continued that the scheme of service in operation in 1976 was the 1974 Udoji Commission report but
today we have a 2003 scheme of service. That the complainants had posited that in issuing Exhibit FOF 18, the
defendant did not refer to any circular that has superseded Exhibit FOF 11 in the verifying affidavit and address of the
counsel. To this, the defendant submitted that this position is fatuous. That Exhibit FOF 18 having been issued and
being the latest in time has superseded and overtaken Exhibit FOF 11.
Regarding issues 2 and 3 by the complainants which were argued together in their address, the respondent submitted
that qualifications for appointments as Consultants are not usually made vide a circular. That there is the curricular
qualification, and also the schemes of service applicable in the Federal Public Service. Consultant is a career
progression found only in the medical profession which has two cadres i.e. General Practitioners (medical officers) and
Consultant cadres. And to attain the consultancy status apart from the educational qualification i.e. the MBSS, the
residency aspect has to be supervised either by the West African Post Graduate College that will eventually certify the
individual as a specialist in a particular field e.g. gynecology or oncology.
Furthermore, that even if the circular relied upon by the complainants existed, of which the respondent denied, with the
changes, new developments, new discoveries and the breaking of new frontiers in the field of medicine and invariably
science too, there is need to expand the schemes and scope of study thus necessitating a review of the criteria for the
qualification of a professional as a consultant. The defendant then reiterated that governance is dynamic and not static,
referring to Okonkwo v. Okagbue (supra) and Oyewunmi v. Ogunesan [1990] 2 NWLR (Pt. 137) 82. To the defendant,
the authority of Oyewunmi v. Commissioner for Local Government relied on by the complainants is not applicable here
as there is no accrued right in this case, citing Adesanoye v. Adewole [2006] 14 NWLR (Pt. 1000) 242 at 277 – 278 SC.
On the argument of the complainants that a Consultant in a hospital is no different from a Consultant Architect, the
respondent differed arguing that they are world apart. The defendant then asked: who is a Consultant? That this noun,
which was first used in 1697, derived its origin from the French/Latin word “consult”. According to the Oxford Advanced
Learner’s Dictionary 6th Edition, a Consultant is a person who knows a lot about a particular subject and is employed to
give advice about it to other people. “…a hospital doctor of the highest rank who is a specialist in a particular area of
medicine....” A medical doctor qualifies to be a Consultant by virtue of their training and specialization in certain or
special fields of medicine which curricular has been so designed and recognised by appropriate bodies and
consequently built into the schemes of service. And until the curriculum of other Health Professionals is reviewed and
submitted to a Committee of Expert Assessors and built into the schemes of Service, it may not be right to assume that
every carpenter in the health sector be regarded as a Consultant. The respondent the urged the Court to resolve this
issue in their favour.
Respondent’s issue c)
Here the respondent started off with the assertion that series of meetings were held with the complainants; and amongst
those that were present apart from the defendant are, the office of the Head of the Civil Service of the Federation, the
National Salaries, Incomes and Wages Commission as well as the Ministry of Labour and Productivity. That at the
negotiation between the parties, the position of the National Salaries, Incomes and Wages Commission was that it is
true that shift allowance was pegged at 30% of basic salary; and this was in 2001. In 2007, however, when emoluments
were consolidated and the basic salary was phased out, the allowance was computed in absolute terms and provided
for in a table which has continued to be increased in line with the increases granted to the consolidated salary.
That from the discussion, there would appear to be no disagreement with the rate and the application of shift duty
allowance. That in the case of call duty allowance, “the National Salaries, Incomes and Wages Commission said it wascomputed at the ratio of 4:2; 1.72 in line with Exhibit FMOH 10 with 4% being for medical and dental practitioner, 2% for
the pharmacist, medical Lab. Scientist etc while 1.72% was for Nurses and other health professional. This ratio was
arrived at based on the rate of call duty allowance provided in Exhibit FMOH2”.
The respondent went on that in Exhibit FMOH2, call duty allowance was provided in absolute terms. In 2001 it was
reasoned that this allowance should be made a percentage of the basic salary, so that whenever the salary is increased,
the allowance will automatically be increased so as to avoid renegotiating the rate any time there is salary increment.
That the complainants are, however, of the view that the ratio of 4:2; 1.72 which formed the basis for computing the call
duty allowance table should be abolished and a unified rate applicable to all professionals in the health sector to be
agreed upon by the parties. That the National salaries, Incomes and Wages Commission has not totally disagreed with
this position, but they rather advised that in order to provide an objective basis for changing the ratio, it may be
necessary to conduct a job evaluation to determine the relativity among the jobs in the health sector. Consequently, that
the complainants were advised to exercise some patience and await the outcome of the comprehensive job evaluation
which the Commission is preparing to conduct in the Federal Public Service. It is the outcome of the job evaluation to be
conducted in the health sector as part of the larger Federal Public Service that would provide the rationale whether to
still continue with the present rate or alter the ratio currently in use in computing the rate of call duty allowance. That,
until there is a further directive from the National Salaries, Incomes and Wages Commission to the contrary on this
issue, it may be difficult for the defendant to suo motu alter the current ratio without any basis for so doing.
Regarding administrative non-clinical allowance and administrative allowance, the respondent asserted that in all the
deliberations, the complainants had insisted that there was an ongoing negotiation on this issue with the National
Salaries Incomes and Wages Commission which was truncated. That the position of the defendant was that a man who
is employed to do a particular job for which he earns salaries at the end of every month and other perquisites should not
in addition enjoy any other allowance for this same job. However, that the complainants were advised to resubmit their
request with a different name which will enable it (defendant) to take it up with other relevant bodies like the office of the Head of the Civil Service of the Federation and the National Salaries, Incomes and Wages Commission, as these are
the agencies that will okay the allowances and key it into the payment table before it can be implemented by the
respondent. The respondent then urged the Court to resolve this issue in their favour.
In conclusion, the respondent summarized its argument in the following words –
1. Career progression is governed by the scheme of service and there is no skipping of any Grade level in any of the
Cadres in the Public Service.
2. Most of the Agencies that practiced skipping erroneously have complied with the directive in Exhibits FMOH 8 & 9 and
the complainants cannot be an exception.
3. With the changes, new development, new discoveries in science world, and breath through in the field of medicine
there’s the need to expand the scope and schemes of study to qualify as a consultant issued.
4. There were in 1976 fewer Teaching Hospitals as compared to today where each state of the Federation and the
Federation and the Federal Capital Territory has one each thus expanding the horizon of medicine.
5. The call/shift duty allowances relate to scope, quantum and nature of duties performed and that only be properly
evaluated and reviewed after a comprehensive job evaluation to be carried out and an invitation has been extended to
the complainants to actively participate in same.
6. Administrative/Administrative non-clinical allowance: complainants were advised to resubmit this issue with different
name and it shall be take up fully and they have refused to resubmit.
Finally, the respondent urged that all the issues referred to this Court by the Honourable Minister for Labour and
Productivity be resolved in favour of the respondent.
COMPLAINANTS’ REPLY ON POINTS OF LAW
In reply to the respondent’s written address, the complainants submitted follows –
1. That it is incorrect that there had been no job evaluation for all public servants since the Udoji Review of 1974. The
respondent had admitted that the Federal Government accepted the Report of the Cookey Commission which carried
out job evaluation in the University system, although they wrongly stated that the salary structure that emanated from
that exercise was RUSS and that it included the structure for health and research institutions.2. The attention of the Court is drawn once again to paragraphs 25, 26 and 27 of the Verifying Affidavit as well as
Exhibits FOF 8 and FOF 9 attached thereto which show the progressive movement of University staff and later the
health sector staff away from the UGSS which was applicable to the entire public service to USS (not RUSS) as wrongly
stated by the defendant. Exhibit FOF 8 shows that even at that early stage of the sectoral departure from UGSS to USS,
the principle of skipping was recognised and accepted. For example, a Medical Officer I converted from GL 10 to USS 9,
and upon being promoted to Senior Medical Officer II was placed on USS 11, thus skipping USS 10 which was
equivalent to GL. 11.
3. The contention of the respondent that the Federal Scheme of Service in use today does not recognise skipping is
untrue. Firstly, the respondent failed to exhibit the Federal Scheme of Service in use today. However, attention of this
Court is drawn to paragraph 28 of the complainants’ Verifying Affidavit and Exhibit FOF 10 attached thereto which is an
excerpt from the SCHEMES OF SERVICE FOR USE IN THE CIVIL SERVICE OF THE FEDERATION. This is obviously
one of the latest published Scheme of Service in the Federal Civil Service and it recognized and adapted the principle of
skipping.
4. Another point that arises from this is that whereas the Schemes of Service for use in the Federal Civil Service is the binding progression structure for Federal Civil Servants, it is only a guide for other public servants apart from civil
servants. In the first place, the Scheme adopts the UGSS salary structure (or any modified version thereof) which
essentially is applicable in the core Civil Service i.e. the Ministries and Departments of Government. Secondly, in other
public service institutions outside the core Civil Service, most of which are statutorily established, the power to manage
and control their staff is usually vested in their management boards, although they are guided by the general policy of
the Government in their activities. The applicable statute in the case of University Teaching Hospitals, for example, is
the University Teaching Hospitals (Reconstitution of Boards, etc) Act, Cap. U15 LFN 2004. Sections 5 and 9 thereof are
relevant.
5. The prerogative of the employer to determine the wages to be paid to his employee is not absolute. Where, therefore,
an employer intends to reduce the remuneration due to, or take away a right which had vested in the employee in the
course of his employment and has, therefore, formed part of his contract of employment, without the process of
negotiation and agreement – this sentence appears incomplete.
6. The submission about the entry point and terminal grade for Nurses does not represent the present reality. This is
because the scheme contained in the 2003 Schemes of Service has been overridden by the judgment of this Court in
Suit No. NIC/ABJ/16/2010 – National Association of Nigerian Nurses and Midwives v. 1. Federal Ministry of Health and
2. Head of Civil Service of the Federation delivered on 27th January 2012. The Certified True Copy of the said judgment
is attached.
7. The illustration given by the respondent as to similarity in the job of an administrative officer in the core civil service
and in any of the teaching hospitals or Universities is speculative and not backed by any empirical evidence. On the
contrary, it is in public knowledge and the Court may take judicial notice of the fact that the Federal Government recently
decided to fix a tenure of maximum of eight years for officers in the public service in the status of Directors and above.
One of the reasons given for this policy shift is that many officers especially in the Federal Civil Service, and particularly
in the administrative cadre rise too rapidly to the post of director and sometimes remain in the post for upwards of 15 to
20 years before attaining the mandatory retirement age of 60 years, if he did not get promoted. For an administrative
officer to attain the post of Director and above and remain in that post for about 20 years, such an officer, depending
upon when he graduated, would either have joined the service at a tender age or must have had an exceptionally rapid
promotion in the course of his career in the service.
8. The description by the respondent of the practice of skipping as illegal is absurd. The word ‘illegal’ is defined in
Black’s Law Dictionary, 8th edition, at page 673 as “forbidden by law; unlawful”. There is clear evidence before the Court
that “the practice of skipping of grade levels in the public service is as old the introduction of the unified grade salary
structure” and is still adapted in practically all sectors of the public service till today. If the argument of illegality is to be
taken to its logical conclusion, perhaps all human resource administrators and members of management of every
institution in the service must be due for prosecution. But the issue is: what law have they contravened? None.
9. Furthermore, the argument and all the authorities in support thereof are not apt to the issue before the Court. This is
because the practice of skipping a grade level in the progression of an employee and which in any case is allowed on
the face of the salary structure regimes and is widely practised and accepted in the service cannot by any stretch of
imagination be described as an illegal act. In any case, the Scheme of Service or salary structure applicable to any
cadre of employee in the public service is not law. It is not an enactment duly passed by the legislature and assented to
by the President. It does not even qualify to be described as a subsidiary legislation because it was made or publishedpursuant to the provision of any known law. How then can its contravention, if a contravention indeed it is, amount to an
illegal act?
10. The issue of public policy over which the respondent dwelt is irrelevant to the question before the Court. What is
public policy after all? It is defined in Black’s Law Dictionary, 8th edition, at page 1267 as meaning “broadly as principles
and standards regarded by the legislature or by the courts are being of fundamental concern to the State and the whole
of society… More narrowly, the principle that a person should not be allowed to do anything that would tend to injure the
public at large”. It is submitted that viewed either broadly or narrowly, the administration action of skipping one grade
level in the promotion of an employee or a group of employees, cannot be described as an act against public policy.
11. It is wrong to treat health professionals as executive or technical cadre staff. They are mostly clinical staff and
recognised professionals in their own right.
12. Quite apart from this, the submission in paragraph 2.26 of the respondent’s written address is an admission that the
practice of skipping is widespread within the service. Indeed, the sectoral salary structures confirm this. It is submitted
that the office of the Head of the Civil Service, even if is a creation of the Constitution, cannot, by a stroke of the pen,
attempt to take away vested rights of public servants without their concurrence after consultation or negotiation with the
affected parties. No law gives him the power to so act. Any act of a public officer or authority which is unsupported by
the law will be annulled. See Stitch v. Attorney-General of the Federation [1986] 5 NWLR (Pt. 46) 1007.
13. The question of competence of staff, particularly of nurses raised by the defendant is not apt to the argument on
skipping of grade levels. The competence of a nurse or any other worker or professional for that matter is not
determined by whether or not he skips a grade level in his progression. Competence is determined by the knowledge
and skill possessed by the staff in question. This is usually subject of evaluation by his superiors through the process of
Performance Evaluation Report. Indeed, the morale of an otherwise competent professional or worker could be
dampened and his proficiency and efficiency affected if he is denied his due unjustifiably.
14. The authority for the procedure stated in paragraph 3.6 for approving any professional group for elevation to the
status of consultant is not stated. If this were so, it is submitted that process lacks any credible basis and the Court
cannot place any reliance on it.
15. The respondent denied the authorship and genuineness of Exhibit FOF 11. The attention of the Court is, however,
drawn to paragraph 53 of the Verifying Affidavit and Exhibits FOF 21-21A attached thereto. These are applications made
to the defendant and the Office of the Head of the Civil Service for certified true copies of the public documents the
complainants intended to rely upon during hearing and which obviously emanated from their respective offices. The
defendant did not upon receipt of the application respond to say that any of the listed documents and in particular Exhibit
FOF 11 did not emanate from its office.
16. The respondent’s denial is an after-thought and should therefore not be accepted. This Court is further urged to
invoke the provision of section 12(2)(b) of National Industrial Court Act 2006, not only to admit the document, but rely
upon it for its full term and effect.
17. With reference to the respondent’s argument on allowances, particularly on call duty allowances, the logic in
advocating for uniform rate for all health professionals including medical and dental practitioners, is that in fixing the
salaries for each of these professionals the issue of relativity has already been factored in. So that a uniform percentage
of allowance will simply result in a percentage of the relative salary each professional earns. On the other hand, giving a
higher percentage allowance to a professional who already earns a higher salary will result in double advantage and
double disadvantage to the professional earning a lower salary.
18. With respect to the view that other rates of allowances would be subject to further negotiation at some future date by
the parties, the experience of the complainants in the past, even when this Court so ordered, was that the defendant had
always either refused to further negotiate or frustrated any attempt at such negotiation.
19. This Court is, therefore, most humbly and passionately urged to take all the issues before it and take a decision on
each of them, once and for all.
COURT’S DECISION
After a careful consideration of all the processes and submissions of the parties in this matter, we agree with the
defendant that point two of the referral has been abandoned by the complainants given the averment in paragraph 52 of
their verifying affidavit and the fact that no arguments were led in that regard in their written address. In consequence,
point b) in the referral instrument dealing with National Health Bill is accordingly dismissed.
This leaves out points a), c) and d) in the referral instrument. Here, three issues are for the determination of this Court,namely –
1. Whether it is legal and hence valid not to skip CONHESS 10 when members of the complainant unions are being
promoted.
2. Whether members of the complainant unions can be appointed as Consultants in order to enjoy specialist allowance.
3. Whether members of the complainant unions are entitled to be paid the following allowances –
i. call duty allowance;
ii. shift duty allowance;
iii. administrative non-clinical allowance; and
iv. administrative allowance.
In all of these issues one legal issue runs through all of them, namely, whether members of the complainant unions have
an entitlement in all the claims as to entitle them to a verdict from Court.
Before, however, going into the merit of the claims, there is the need to remark on a thing or two regarding some of the
exhibits frontloaded and some of the assumptions underlying the submissions of the parties in this case. Exhibits FOF 7,
FOF 8, FOF 9, FOF 10, FOF 11 (paged as 25 and 26) and FOF 12 are all excerpts of documents, the complete set of
which were not shown to the Court in order to ascertain that they are indeed part of the documents they profess to be, or
to enable the Court ascertain whether there are any other provisions of the complete documents that go contrary to the
positions canvassed by the party relying on them.
Exhibit FOF 15, supposedly coming from “Dalhatu Sule, mni, Director, Human Resources Mgt” and acting for
Honourable Minister, is unsigned but appears to be electronically generated from a yahoo address. Which Ministry this
“Honourable Minister” (for which Dalhatu Sule, mni acts for) oversees, is not indicated given that the exhibit is not on a
headed paper. As an electronically generated document, the exhibit does not even indicate that it is comes from the
originator of the document, namely, Dalhatu Sule, mni.
On the part of the respondent, Exhibits FMOH 1, FMOH 3, FMOH 4, FMOH 5 and FMOH 6 are annexes; and the
documents that they are annexes to were not shown to the Court to see in order to verify that they are indeed annexes
to those documents. Exhibit FMOH 9 is merely the address page of a circular; and so it is incomplete. Exhibits FMOH 11
and FMOH 14 are summaries of decisions reached at meetings, but are not signed or endorsed by anyone. And Exhibits
FMOH 12 and FMOH 13 are minutes of meetings, but are unsigned.
In all, therefore, and for the reasons stated against them, these enumerated documents of both the complainants and
the respondent have no probative value and weight and so are discountenanced for purposes of this judgment. The call
by the complainants that Exhibit FOF 11, for instance, should be accepted by this Court in virtue of section 12(2)(b) of
the NIC Act 2006 cannot be tenable given the reasons we have adduced.
Next, paragraphs 3.6, 3.7 and 3.8 of the respondent’s written address contain facts that are not substantiated or backed
by any requisite evidence. They are accordingly discountenanced for purposes of this judgment.
The analogy to fashion and style in paragraph 3.10, the conferment of the rank of Senior Advocate of Nigeria (SAN) in
paragraph 3.11, the non-consultation of students in the design or review of educational curricula in paragraph 3.16 and
the contrast between the Military Government of yore and the current democratic dispensation in paragraphs 3.20 and
3.23 of the defendant’s written address is certainly not apt or helpful to the labour issues before the Court. In any event,
the defendant may wish to note that the bulk of the labour laws applicable in the country today are a product of the
military dispensation that the defendant seems not to be comfortable with.
In point 7 of the reply on points of law, the complainants called on the Court to “take judicial notice of the fact that the
Federal Government recently decided to fix a tenure of maximum of eight years for officers in the public service in the
status of Directors and above”. This issue is currently the subject of litigation before this Court in two separate suits; and
so the call of the claimants cannot be heeded to by the Court. Arguments in that regard are consequently
discountenanced given that the 8-year tenure of Directors and above is not even an issue before the Court in the instant
case.The cases of Severinsen v. Emerging Markets Telecommunication Services Ltd [2012] 27 NLLR (Pt. 78) 374, Anzaku &
ors v. Governor of Nassarawa State & ors [2005] 5 NWLR (Pt. 919) 448, Mix & Bake v. NUFBTE [2004] 1 NLLR (Pt. 2)
247 at 282 – 283 and Maiya v. The Incorporated Trustees of Clinton Health Access Initiative in Nigeria & ors [2012] 27
NLLR (Pt.76) 110 at 157 – 159, and 170 cited by the complainants in paragraphs 3.1.11 and 3.1.12 of their written
address do not seem to be helpful as authorities for the propositions enunciated by counsel in these paragraphs. In fact
learned counsel made no attempt to state how the cases are illustrative of the submissions made therein.
The complainants had argued in paragraph 3.1.13 of their written address that “it would amount to a denial of the right of
the complainants to be heard and, therefore, unconstitutional, not to have raised the issue of non-skipping of salary any
grade level, advance their argument on the point at the time of negotiation and afford the Unions an opportunity to be
heard in response, before imposing the policy”. They had also argued in paragraph 3.2.8 that “it is most irregular and
indeed unconstitutional for the respondent Ministry to withdraw from eligible health professionals the right to be
appointed Consultants in the Hospitals which has already accrued to them, and without affording them or their
representatives such as the complainants hereof the right to be heard”. These arguments cannot be tenable. In Basil
Ositadinma Mbanefo & ors v. Judicial Service Commission of Anambra State unreported Suit No. NIC/EN/07/2009 the
judgment of which was delivered on June 30, 2011 this Court was asked to pronounce on whether there was a denial of
fair hearing where a meeting was held and a decision taken that affected the claimants but for which the claimants were
not invited. This is what the Court said –
A person is entitled to fair hearing only when there is a hearing by a court or tribunal. The meeting that gave rise to the
4th May 2009 letter was not a hearing by a court or tribunal to warrant the activation of the right to fair hearing under
section 36 of the 1999 Constitution.
In the instant case, the negotiation talked of by the complainants or the withdrawal “from eligible health professionals the
right to be appointed Consultants in the Hospitals which has already accrued to them” are not “hearings by a court or
tribunal” as envisaged by section 36(1) of the 1999 Constitution, as amended, so as to warrant the application of the fair
hearing principle. That argument of the complainants, therefore, is not tenable and so has no place in this case. It is
accordingly of no consequence.
There’s been a history of disputes between the trade unions in the health sector and especially the Federal Government.
As can be seen from the case of National Association of Nigerian Nurses and Midwives v. Federal Ministry of Health and
Head of Civil Service of the Federation (supra) referred to by the complainants in point 6 of the reply on points of law, an
award of the Industrial Arbitration Panel (IAP) made on 24th April 1980 could still be the subject of a dispute in 2010, the
decision of which was given by this Court on 27th January 2012. Other instances of disputes that came to this Court
equally exist especially regarding the issue of relativity/parity of entitlements of workers in the health sector. In the
instant case, for instance, the complainants had argued that the logic in advocating for uniform rate of allowances for all
health professionals including medical and dental practitioners is that in fixing the salaries for each of these
professionals the issue of relativity has already been factored in. So, that a uniform percentage of allowance will simply
result in a percentage of the relative salary each professional earns. On the other hand, giving a higher percentage
allowance to a professional who already earns a higher salary will result in double advantage and double disadvantage
to the professional earning a lower salary.
This Court in earlier decisions had tried to chart the way for workers in the health sector in the quest to resolve the
disputes that plague the sector. For instance, in Senior Staff Association of University Teaching Hospitals, Research
Institutions and Associated Institutions (SSAUTHRIAI) and ors v. Federal Ministry of Health and anor [2008] 10 NLLR
(Pt. 26) 222 (the judgment was actually delivered on March 30, 2006), this Court held as follows –
In all of this, the critical question which this court posed throughout the hearing of this matter and for which the
appellants could not give a satisfactory answer is whether the appellants have an entitlement as to parity for which this
court should intervene and enforce. Alternatively put, what is the right of the appellants that the respondents infringed to
warrant the intervention of this court. Labour/industrial relations is a function of conflicting interests which may remain
mere interests or crystallize into rights depending on what can be agreed on through the process of collective
bargaining. So long as an interest has not crystallized into a right, the adjudicative process of the courts is hardly useful
in the resolution of disputes that may arise in that regard….
The point must be made that negotiations between the parties were never concluded and so no enforceable agreement
was reached. These negotiations, of course, did not yield any entitlements for this court to enforce. This can be seen
even in the submissions of the appellants where their prayers were essentially couched in terms of accepting or
rejecting the recommendations of the Inter-Ministerial Committee set to look into the various issues in dispute. The
appellants argued that what the IAP did was simply to accede to government’s position on the issues in dispute without
due regard to their own position. But if this court is to rule as prayed by the appellants, it will be tantamount to doing the
same, only that in this case it will be to accede to the appellants’ position. What this presupposes is that all the parties
must go back to the negotiating table and come to agreement on the issues in dispute. If the appellants’ desire is that
there should be parity of treatment within the health sector, then they will have to make that an item for negotiation and
agreement reached on it one way or the other. Until that issue is an entitlement, this court may not be able to adjudicate
on it even though the learned SAN argued that this court must rule on it one way or the other. Adjudication deals with
rights. And until an interest crystallizes into a right, the court is not the ideal forum to go to. All the parties are hereby
enjoined to go back to the negotiation table.
This reasoning was also applied in the case of Senior Staff Association of Nigerian Universities v. Federal Government
of Nigeria [2008] 12 NLLR (Pt. 33) 407 where the attempt was to get the court to apply parity of salary within the
University system as between administrative and academic staff.
Furthermore, in the case of Ondo State Government v. National Association of Nigeria Nurses and Midwives and anor
unreported Suit No. NIC/1/2007 the judgment of which was delivered on July 4, 2007, this Court was called upon to
consider the validity of the non-implementation by the Ondo State Government of the 22% increase in the basic salary
granted Federal Medical and Health Workers in Federal Tertiary Institutions. This Court held that the Ondo State Health
Workers would only be entitled to the 22% salary increase if they show an entitlement to it. And because they could not
establish this entitlement, the Court held that there is no enforceable obligation on the part of the Ondo State
Government to pay to the respondents the said 22% increase in basic salary.
And in Oyo State Government v. Alhaji Bashir Apapa and ors [2008] 11 NLLR (Pt. 29) 284 (the judgment was delivered
on July 15, 2008), this Court went on to hold as follows –
In the case at hand, the plethora of agreements exhibited culminating in Annexure I attached to the defence of the
respondents are proof enough of the entitlement of the respondents to the salary increase agreed upon between the
parties. While generally a Federal Government circular meant for Federal workers will not bind the States, it is perfectly
lawful if, by negotiation and collective bargaining, it is agreed that its contents would apply mutatis mutandi or in
whatever modified form to a State. Indeed, it is equally lawful for the State to on its own adopt, in whole or in part, the
Federal circular for implementation to its workers. Where any of this is the case, the salary increase at the State takes its
validity, not from the Federal circular, but from the agreement entered into between the State and its workers or from the
instrument of the State adopting the Federal circular. Once again, in the instant case, the agreements entered into
between the parties and Annexure I exhibited by the respondents all give validity to the salary increase agreed upon by
the parties
Why have we taken the trouble to review all these cases? It is to show that they provide the signposts that disputants in
the labour sector (the health sector in the instant case) need to follow when faced with the kind of disputes that often
plague the sector. Given these signposts then, the path to determining the issues in the instant case is the question
whether the complainants have made out as entitlements the reliefs they claim. The starting point then must be the
collective agreement between the parties, which is Exhibit FOF 2. The relevant provision is clause 3.0 dealing with areas
of agreement. Clause 3.0 has several sub-clauses, the relevant ones for purposes of the instant case being:
sub-clauses(i) – dealing with salary structure, (ii) – dealing with shift duty allowance, (vii) – dealing with specialist
allowance, (ix) – dealing with call duty allowance, (x) – dealing with administrative allowance and (xi) – dealing with
administrative non-clinical allowance.
These sub-clauses provide as follows –
(i) Salary StructureIt was agreed that there shall be a separate salary structure for all Health Professionals and Staff to be called
Consolidated Health Salary Structure (CONHESS) shown as Annex 1 attached. The CONHESS table now consolidates
Rent Subsidy.
(ii) Shift Duty Allowance
It was agreed that Shift Duty Allowance shall be increased at the rate of the average increase granted to the
Consolidated Health Salary Structure (CONHESS). This amounted to 53% increase. The resultant Shift Duty Allowance
table with 53% increase is attached as Annex II.
(vii) Specialist allowance
It was agreed that Specialist Allowance shall be at the rate of 45% of Consolidated Salary and shall be payable to
Health Professionals employed as consultants in line with the Scheme of service used in the Public Service of the
Federation. The resultant Specialist Allowance table at the rate of 45% of the consolidated salary is attached as Annex
V.
(ix) Call Duty Allowance
It was agreed that Call Duty Allowance shall be increased at the rate of 56.8%. This does not foreclose future
renegotiation on the existing relativity ratio. The resultant Call Duty tables for Health Professionals and Staff are
attached as Annex VII and VIII.
(x) Administrative Allowance
It was agreed that Administrative Allowance which is applicable to Officers on CONTISS 13 to 15 in the Health
Institutions is already consolidated.
(xi) Administrative Non-Clinical Allowance
It was agreed that Administrative Non-Clinical Allowance shall be worked out in two tables, at the rate of 75% of Call
Duty and Shift Duty Allowances respectively. This is to enable Health Professionals deployed to render health related
services in the Federal Ministry of Health and other Health Institutions whose colleagues in the hospitals take either Call
duty Allowance or Shift Duty Allowance to be appropriately remunerated. The resultant Administrative Non-Clinical
Allowance tables are attached as Annexes ix – xi.
Exhibit FOF 2 then ends with the Government side and JOHESU further agreeing on the following: that discussions shall
commence between the parties on item (ix), dealing with call duty allowance, on a future date that would be collectively
agreed to both parties; that the government shall release an enabling circular not later than seven days from the date
the agreement is signed; and the implementation date for CONHESS and allowances shall be 1st January 2010.
Do these provisions create entitlements in the manner canvassed by the complainants? This remains the question. We
intend to address the issues covered by Exhibit FOF 2 before going into the issue of the validity or otherwise of
non-skipping of CONHESS 10 when members of the complainant unions are being promoted. We note in this regard
that Exhibit FOF 2 is an agreement between the Federal Government of Nigeria and the complainant unions who are the
complainants in the instant case. This means that the collective agreement is binding on only the members of the
complainant unions. Exhibit FOF 1 consists of the discussions amongst the representatives of the parties in this suit as
to the issues covered by Exhibit FOF 2. FOF 1 is, therefore, useful in throwing light at the positions of the parties on the
respective contending issues.
The complainants couched their issue 4 as follows –
Whether eligible health professionals who are members of JOHESU who are invariably clinical staff are not entitled to be
paid Call Duty Allowance, Shift Duty Allowance, Administrative Non-Clinical Allowance, Hazard Allowance and
Administrative Allowance, as the case may be, in the same way and at the appropriate rate as their medical practitioner
counterparts, who are also clinical staff, are being paid under their own salary structure, and whether the refusal of the
respondent to pay the said allowances to the affected health professionals either at all or at rates different from their
other clinical staff counterparts, is not discriminatory and, therefore, unconstitutional and offending against international
best practice.
In framing issue 4 as they did, the complainants are trying to get this Court to grant them parity of allowances with
medical practitioner counterparts even when this Court has clearly indicated in Senior Staff Association of University
Teaching Hospitals, Research Institutions and Associated Institutions (SSAUTHRIAI) and ors v. Federal Ministry of
Health and anor (supra) that this will be possible only if parity was first agreed on in the collective agreement. Nowhere
in Exhibit FOF 2 is parity agreed on. Claims in that regard must, therefore, be discountenanced.The complainants in issue 4 alluded to the refusal for parity in allowances as claimed is discriminatory and
unconstitutional, but did not actually pursue this argument in its submission. That part of issue 4 must be deemed
abandoned; and we so find and hold. Suffice it however to state that in the world of work, the jurisprudence surrounding
discrimination at the workplace particularly as it relates to issues of pay and allowance is aptly captured by the equal pay
for work of equal value principle, which principle itself is conceptually relative. Equality of treatment at the workplace is
generally based on equal work and equal opportunity. In principle, therefore, unless parity is an agreed item of the
collective agreement, relativity or lack of parity in itself is not discriminatory, without more.
The complainants also alluded in issue 4 to hazard allowance as one of the allowances in contention but did not pursue
it in their submissions. The claim for hazard allowance in issue 4 must, therefore, be deemed abandoned; and we so
find and hold.
We now turn to the other allowances listed in issue 4. Here it is only call duty allowance that there seems to be some
kind of disagreement acknowledged as such by Exhibit FOF 2. In paragraph 3.36 of their written address, the
complainants asserted that it “would appear that the disagreement in respect of [shift duty] allowance has been
narrowed down, if not already removed” as can be seen in the collective agreement. We agree with this submission that
the collective agreement, Exhibit FOF 2, in clause 3.0(ii) has agreed on this allowance. The order of the Court, therefore,
is that the parties are enjoined to apply that clause to the letter.
This is also true of administrative allowance. Exhibit FOF 2 is pretty clear in providing that it was agreed that this
allowance, applicable to officers on CONTISS 13 to 15 in Health Institutions, is already consolidated; and we so find.
The claim of the complainants for 10% of CONHESS for all eligible health professionals as administrative allowance is,
therefore, uncalled for and so fails. It is accordingly denied; and we so hold.
As regards administrative non-clinical allowance, the complainants commended the arguments of the parties in Exhibit
FOF 1 in that regard in resolving the dispute. But is there even a dispute on it? Clause 3.0(xi) of Exhibit FOF 2 once
again states that the parties agreed that this allowance shall be worked out in two tables at the rate of 75% of call duty
and shift duty allowances respectively. Since there is an agreement reached as per Exhibit FOF 2, parties are simply
and accordingly enjoined to implement it to the letter, and we so find and hold.
This leaves out the only head of disagreement, call duty allowance. Even here, clause 3.0(ix) has it that parties agreed
that call duty allowance shall be increased at the rate of 56%. However, parties agreed that this does not fore close
future negotiation on the existing relativity ratio. The grouse of the complainants is that the ensuing negotiations
between the parties did not yield to any result. The argument of the claimant here is that the rate of the allowance should
be the same percentage of the basic salary of each individual professional. That any disparity in the hierarchical
seniority or level of professional contribution to patient-care is invariably already reflected in the salary or grade level of
the individual professional. The complainants then claimed that payment of call duty allowance should, therefore, be at a
flat rate to all affected professional/ worker without discrimination, suggesting 5% of the consolidated salary per unit call.
Here, we must reiterate what we said earlier, namely –
…in the world of work, the jurisprudence surrounding discrimination at the workplace particularly as it relates to issues of
pay and allowance is aptly captured by the equal pay for work of equal value principle, which principle itself is
conceptually relative. Equality of treatment at the workplace is generally based on equal work and equal opportunity. In
principle, therefore, unless parity is an agreed item of the collective agreement, relativity or lack of parity in itself is not
discriminatory, without more, and whether constitutionally or not.
The complainants are here introducing issues of parity in the health sector. Equality in the workplace as we indicated
rests on equal pay for work of equal value. The complainants have not indicated to this Court the equality in value of the
work their members do to necessitate parity with their other counterparts in the health sector. Until they do this, they do
not have a claim that can be enforced beyond the 56% increase in call duty allowance already agreed upon by the
parties as per Exhibit FOF 2; and we so find and hold.
We now turn to the complainants’ issues 2 and 3 i.e. whether members of the complainant unions can be appointed as
Consultants in order to enjoy specialist allowance. Clause 3.0(vii) provides that –It was agreed that Specialist Allowance shall be at the rate of 45% of Consolidated Salary and shall be payable to
Health Professionals employed as consultants in line with the Scheme of service used in the Public Service of the
Federation.
From this agreement, it can be gleaned that health professionals who are members of the complainant unions and who
can be appointed as Consultants; and if so appointed are entitled to enjoy specialist allowance which shall be at the rate
of 45% of the consolidated salary. But a number of things must be stressed. This Court cannot, however, compel the
appointment of any member of the complainant unions as, or to the position of, a Consultant. The respondent has the
discretion to make the appointment (see The Shell Petroleum Development & 5 ors v. E. N. Nwawka & anor [2001] 10
NWLR Pt. 720 64 at 84, per Pats-Acholonu, JCA (as he then was) and Abenga v. Benue State Judicial Service
Commission [2006] 14 NWLR (Pt. 1000) 610), although in cases of proven mala fide or victimization, the Court may
intervene (see Mrs. Abdulrahaman Yetunde Mariam v. University of Ilorin Teaching Hospital Management Board & anor
unreported Suit No. NICN/LA/359/2012 the judgment of which was delivered on June 19, 2013). This means that for
present purposes, members of the complainant unions have first to be appointed as Consultants before they can enjoy
specialist allowance. In this regard, therefore, the respondent can direct that non-medically qualified health professional
should not be appointed as Consultants in Federal Government Institutions; such a directive will be valid and legal.
However, the directive that any such appointment previously made should be reverted immediately is invalid and hence
unlawful because clause 3.0(vii) of Exhibit FOF 2 permits such an appointment; for if made, it creates an entitlement to it
by the holder of such appointment. In consequence, all members of the complainant unions who were appointed
previously as Consultants but whose appointment have now been reverted, the reversion of such appointment is hereby
declared null and void and of no effect. They are thereby entitled to the payment of specialist allowance as per clause
3.0(vii) of Exhibit FOF 2. This is because by Ekunola v. ACBN [2006] 14 NWLR (Pt. 1000) 292, where benefits have
accrued under a contract of employment, any clause in the conditions of service which seeks to take away that benefit
must be strictly interpreted.
We now turn to the last issue, the complainants’ issue 1 i.e. the validity or otherwise of the directive to skip CONHESS
10. Clause 3.0(i) of Exhibit FOF 2 dealing with the salary structure simply provides that –
It was agreed that there shall be a separate salary structure for all Health Professionals and Staff to be called
Consolidated Health Salary Structure (CONHESS) shown as Annex 1 attached. The CONHESS table now consolidates
Rent Subsidy.
It says nothing about skipping or non-skipping of salary CONHESS 10. The argument of the complainants here is that
skipping of certain salary grade levels has been with the Public Service in general and with the health sector thus
creating a right to it; and that its unilateral stoppage by the Federal Government without negotiation with the
complainants should not be permitted.
The argument of the respondent, on the other hand, is that to skip CONHESS 10 will confer a double advantage to the
complainants; and would be too expensive for Government. This argument of the respondent is on slippery ground. We
know of no rule which bars an employer from conferring a dual advantage on his employee(s); and the respondent cited
none. We agree with the complainants that skipping of salary grade levels is and has been practiced by Government.
We agree with the complainants that thereby an entitlement or vested right has been created in favour of the
complainants who have all this while been beneficiaries of the practice. To simply, by the fiat of a circular, stop it without
any input by the complainants is not good industrial relations practice and so is wrong. While an employer reserves the
right to change the conditions of service (Mbachu v. AIRBDA [2006] 14 NWLR (Pt. 1000) 691 SC held that an employer
can at his discretion prune the schedule of duties of an employee; and the employee cannot preclude the employer from
doing so), good industrial relations practice demands that the employee be taken into confidence.
This Court in days of yore had made diverse nature of the awards even when they were not based on the kind of
entitlement that the complainants presently claim. See, for instance, Establishments Department Office of the Head of
Civil Service v. Nigerian Union of Civil Service Typists, Stenographic and Allied Staff [1980 – 81] NICLR 34 and Nigerian
Bottling Co. Ltd v. National Union of Food, Beverage and Tobacco Employers [1992] NICLR 1. In the Nigerian Union of
Civil Service Typists case, this Court granted a new grading structure for typists ranging from GL 03 (step 4) to GL 08
and then created a new terminal post of Principal Personal Secretary on GL 12 for Secretarial cadre. And in the Nigerian
Bottling Co. case, this Court permitted the 2.5% increase in the appellant’s pension contribution, thereby bringing thetotal to 15%, which was what the IAP awarded in the first place. And because of section 14(3) of the Trade Disputes Act
Cap. T8 LFN 2004, such awards were sacrosanct. Section 14(3) of the TDA provides that –
In so far as the terms and conditions of employment to be observed by an employer in accordance with any award made
by the National Industrial Court under this section are more favourable than any statutory provisions affecting the terms
and conditions of employment of the workers concerned, the award shall prevail.
In consequence, the directive as per Exhibit FOF 16 is hereby declared null and void, and of no effect. The status quo
prior to Exhibit FOF 16 which permitted skipping of CONHESS 10 shall accordingly remain the norm unless it is
appropriately negotiated by the parties.
In all, for the reasons given and for the avoidance of doubt, it is hereby declared, held and ordered as follows –
1. Clause 3.0(ii) of Exhibit FOF 2, the collective agreement, has agreed on shift duty allowance. Parties are enjoined to apply the clause to the letter.
2. Clause 3.0(x) of Exhibit FOF 2, the collective agreement, has agreed on administrative allowance. The claim of the
complainants for 10% of CONHESS for all eligible health professionals as administrative allowance is, therefore,
uncalled for and so fails. It is accordingly dismissed.
3. Clause 3.0(xi) of Exhibit FOF 2 has agreed on administrative non-clinical allowance. Parties are enjoined to apply the clause to the letter.
4. Clause 3.0(ix) of Exhibit FOF 2 has agreed on increase in call duty allowance. The claim for equality of treatment as
regards call duty allowance is unfounded and so dismissed.
5. As per clause 3.0(vii) of Exhibit FOF 2, the respondent has the right to direct that non-medically qualified health
professional should not be appointed as Consultants in Federal Government Institutions.
6. However, the directive that any such appointment previously made should be reverted immediately is invalid and
hence unlawful because clause 3.0(vii) of Exhibit FOF 2 permits such an appointment. In consequence, all members of
the complainant unions who were appointed previously as Consultants but whose appointment have now been reverted,
the reversion of such appointment is hereby declared null and void and of no effect. They are thereby entitled to the
payment of specialist allowance as per clause 3.0(vii) of Exhibit FOF 2.
7. The directive as per Exhibit FOF 16 that CONHESS 10 should not be skipped is declared null and void, and of no
effect. The status quo prior to Exhibit FOF 16 which permitted skipping of CONHESS 10 shall accordingly remain the
norm unless it is appropriately negotiated by the parties.
Judgment is entered accordingly. We make no award as to cost.
………..………………………..
Hon. Justice B. A. Adejumo
Presiding Judge
………………………………… ………………………………..
Hon. Justice B. B. Kanyip Hon. Justice M. N. Esowe
Judge Judge
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