INTRODUCTION
Typical of all human undertaking, every occupation, work or employment carries with it, hazards which expose employees to certain risk factors. Depending on the sector, the dangers associated with employment and its attendant consequences present themselves either within or out of the workplace albeit, in the course of employment.
It is in realization of the prevalence of unpalatable factors associated with the workplace that labour laws have evolved overtime to regulate relations in the workplace and set up minimum standards aimed at ensuring that employees whilst utilizing their skill and industry in the course of their employers business are treated fairly and within the ambits of law and respect for their fundamental rights.
In light of the above, the recent report by the Federal Government on the commencement of review of Labour Bills may not have come as a surprise to many – especially stakeholders in the labour and employment sector as there have been persistent calls for reform of the extant Labour laws; many of which provisions have become outdated and inconsistent with global ILO minimum standards and best practices.
This article aims at critically reviewing the current legal framework on labour and employment in Nigeria with a view to making a case for the elimination of common labour and employment related problems as well asensuring occupational health and safety in the workplace; whilst creating an environment that fosters sustainable economic development and guarantees job security and stability. In order to achieve this aim, a comparative analysis of labour laws of select foreign jurisdictions will be considered.
Employment Law in Nigeria
The main sources of employment law in Nigeria are the Constitution of the Federal Republic of Nigeria 1999 (As Amended), Labour Act Cap L1, LFN 2004, Factories Act Cap F1 LFN 2004, Industrial Training Fund Cap 19 LFN 2004 (As Amended), National Health Insurance Scheme Act, Cap N42, LFN 2004, National Housing Fund Act, Cap N45 LFN 2004, Pension Reform Act 2014, Personal Income Tax Act Cap P8 LFN 2004, Trade Dispute Act Cap T8 LFN 2004, Trade Unions Act Cap T14 LFN 2004, Nigeria Data Protection Regulation 2019, amongst other relevant legislations as well as decisions of the court otherwise known as case law. Particular focus will be on the Labour Act which provisions cover employees engaged in both white collar jobs as well as menial jobs.
1. Employment Contract
Provisions regarding the substratum of any employment relationship is as enshrined in section 7 of the Labour Act which provides that an employer must give an employee a written contract of employment within 3 months of the commencement of the employment.[1] The penalty for default prescribed under the Act is a fine of N2,000 (Two Thousand Naira) for each passing day of default[2]. Unfortunately, this provision of the law is not being strictly adhered to in Nigeria as there are often cases where employers deliberately delay or refuse to give employees contract of employment in order to avoid being bound by sacrosanct provisions of the law as it relates to their employees. Despite the wanton disregard for the instant provision of the Labour Act in Nigeria, there is paucity of reported cases regarding enforcement action based on mere refusal to issue employment contract. This may however not be unconnected with the fact that many employees are ignorant of their rights under the respective labour laws.
In some other jurisdictions like China, employers are required to sign a written contract with their employees within one month starting from the employee’s first day of work at the company else the employer must pay the worker double wages for each month.[3]
Having stated the above, there is a need for a review of the above provision of the Labour Act in other to protect employees. The law should impose more stringent sanctions on employers who fail to issue contract of employment to their employees.
2. Work Hours and Overtime
Section 7 (1) (g) of the Labour Act provides that the contract of employment should include details of the employees work hours. The labour Act provisions on working overtime is grossly inadequate as S13 (7) (b) of the Labour Act merely mentions “payment of wages at overtime in lieu of failure to provide the employee consecutive 24 hours of rest in every 7 days thereof without any guide on payment applicable for overtime.” The Act leaves it subject to agreement between the employer and the employee. However, the position in other more advanced jurisdictions seem to be different. In the European Union for instance, Directives[4] have been issued to this effect which apply to both public and private sectors and must be incorporated into the law by member states. Other jurisdictions such as Japan, United States, United Kingdom etc also have similar provision regulating overtime work.
It must be stated that one of the major challenges being faced by employees in Nigeria is the employers’ abuse of working hours whether or not mutually agreed by both parties in an employment contract and/or the sneaking in of unpaid overtime working hours in employment contracts. The issue of overtime is considered to be outdated in Nigeria as many companies went under in terms of accruing huge extra wage bills far above the set budget for the year, some rightly incurred ,but often overtime is exaggerated or employees deliberately slow down on work during the official working hours so as to earn overtime. Also, this issue on the part of the employer could arise due to the incompetence of some employees owing ro the diminished level of education in Nigeria, which sometimes result in poor labour quality and therefore deliverables take too long a time. There is also reluctance and or failure on the part of the employees to embrace technology in order to make work easier and faster, while in some cases the employer refuses to invest in technology and thus stretches the employee unduly particularly the ununionized employees. Equally worthy of mention is the unprecedented exodus of employees to other countries in search of greener pastures, which often leaves vacant positions for the employers to fill, and leaves negative impacts on the existing employees who in somecases would be required to combine the volume of their work with that of the exiting employees (pending when the vacancies are filled) which most times result in working overtime. The hapless employee who is more often than not at the mercy of the employer is left with no option but to accept such terms as the employer deems fit for fear of loss of employment. Consequently, there must be adequate provisions in our labour legislations aimed at protecting the interest of the employees and promoting equity and fairness in labour relations. The government must be seen to prioritize the welfare of its citizenry, education, healthcare and provision of basic infrastructure to ensure improvement in the quality of labour and retention of indigenous talents.
3. Occupational Health & Safety
Labour Act takes into cognisance the mental and physical wellbeing of employees. It further provides penalties for erring employers who contravene sections 6(2), 7, 13(3), 13(5) and 13(7) of the Labour Act, albeit, penalty of a fine not exceeding N800 (for a first offender) or N1500 (for a second offender)[5] is to say the least paltry and grossly inadequate to remedy the injury that might have been caused to the employee in the cause of his employment.
The question therefore is, where lies the remedy for the injury suffered by the employee as a result of the hazardous working environment? Even where enforced, occupational health and safety laws in Nigeria do not guarantee total compliance. As these penalties stipulated in the Act do not serve as a deterrent to offenders due to their insignificance and hence making a mockery of the legal process.
Unhealthy or unsafe working conditions is prevalent in Nigeria; this scourge is not limited to factories alone as it spreads across the formal and informal sector. The Nigerian State and her agencies must stop further abuse of her citizens; they must also guarantee their fundamental human rights as enshrined in the 1999 Constitution. There must be constant checks on the working environments that are associated with gross abuse of their employee’s right to health and safety.
We note however that attempts were made in 2012 to amend the Factories Act by the Labour Safety, Health and Welfare Bill 2012(“LSHWB 2012”) which, to our knowledge did not receive the required Presidential Assent. However, the provisions of the LSHWB 2012 were of significant interest because it compelled an employer to provide preventive mechanism and measures for occupational safety and health with much emphasis on the prevention of injuries, accidents and elimination of hazards at workplace. The LSHWB 2012 also imposed stiffer sanctions for offenders.[6]
Also, towards the last quarter of 2016, the Nigerian Senate introduced the Occupational Safety and Health Bill, 2016 (“OSHB”), which seeks to repeal the Factories Act, 1987 and set up a comprehensive framework for all health and safety related issues at the workplace. The Bill was on 9 March 2017 referred to the Committee on Labour and Productivity for further deliberations and the Committee is to report back in the Senate in 4 weeks (precisely, 6 April 2017) albeit, there is no indication that the Bill has scaled through the legislative passage process till date. [7][EI1] .
4. Redundancy & Severance Pay
Under the Nigerian law redundancy is defined by section 20(3) Labour Act as an involuntary and permanent loss of employment caused by an excess of manpower. The Labour Act does not however provide a detailed procedure to be adopted by employers in cases of redundancy/ calculation of severance benefits. It however provides in S20 (2) of the Act that the Minister of Works and Labour shall make general regulation on redundancy payment albeit, there is no record suggesting that the Minister has made any general regulation which regulates or gives a guide on redundancy process and the calculation of redundancy sum in Nigeria pursuant to the provision of S20 (2) of the Labour Act[8].
In the United Kingdom, the Employment Rights Act 1996, makes clear and predictable provisions on calculation for statutory redundancy payment. Section 135 of the Act gives an employee a right to compensation if his or her job becomes obsolete provided, he or she has worked under the employer for a specified duration to become an established employee, amongst other provisions thereof.
With the current economic situation in Nigeria, redundancies are becoming frequent as many companies are struggling to maintain their workforce. It is recommended that the Labour Act be amended to make clear provisions regarding calculation of severance payment especially where the affected employee(s) are not members of a recognised trade union as provided in the Act. A predefined payment scheme should be stipulated in order to cushion the effect of loss of employment.
5. Leave Period
By virtue of section 18(1) of the Labour Act, every staff is entitled to a holiday period of at least 6 working days[9] or for persons under the age of 16, at least twelve working days. However, this provision is not mandatory as the Act in S18(2) provides that the leave period can be deferred by agreement between the worker and the employer. The present position of the Labour Act is unhealthy for the employee as the employee who works continuously over 12 months without rest stands the risk of facing severe health challenges.
The Labour Act also makes mention of sick leave[10], annual leave[11] and maternity leave[12], but makes no provision for paternity leave. However, some state governments offer paternity leave to male employees in their civil service. In Enugu for instance, paternity leave is 3 weeks for civil servants[13] while in Lagos state, paternity leave is for just 10 days. [14]
In the United Kingdom, Section 5 of the Work and Families Act 2006 is the regulatory legislation for paternity leave and provides that a male employee can either choose to take one or two weeks leave in one go. Leave must be taken only after the birth of the child and must end with 56 days of the birth of the child. The employee must give 28 days’ notice. Finally, the pay structure is 90% of the average weekly earnings or 146.68 pounds, whichever is lower.
Child-care in Nigeria is generally seen as the sole responsibility of mothers. The world is moving at a very fast pace and the idea that child-care is the sole responsibility of mothers is dwindling. Research shows that fathers who interact more with their children in their first few months of life, can have a positive impact on their baby’s cognitive development. Moreover, more women are fast becoming the bread winners of their families or even earn higher pay than their spouses due to the skilled and or managerial roles they perform at the workplace hence, it may be more prudent that the early period of taking care of the child be shared by both parties. Consequently,, fathers should be entitled to a significant length of time with their new-borns just as the mothers. It is recommended that the Labour Act be reviewed in this regards to include paternity leave like in many other jurisdictions of the world[EI2] [EI3] .
6. Trainings and the Use of Information Technology;
Due to the degenerating quality of education, employers are more often than not, faced with the headache of hiring incompetent, inept or inexperienced staff who are unfit for the work hence requiring the employer to invest in skill acquisition and trainings in order to bring the employee up to speed. This is however without prejudice to an eligible employers’ obligation under the Industrial Training Fund Act of 2011 as amended to contribute to the fund and also train their employees.[15]
In some other jurisdictions like the United Kingdom, there are no specific obligations on employers to train employees save for health and safety trainings.[16] Nevertheless, many employers recognize the importance of trainings and therefore encourage and fund trainings on behalf of their employees especially as they may be able to recover costs if employees leave after completing their training course. However in China, employees have a right to receive training in vocational skills and an obligation to improve such skills.[17] The enabling Chinese statute allows parties to sign an agreement where the employer would provide or arrange professional technical training for the employee, at the employer’s expense, and, in return, the employee would commit to remaining in the employer’s employment for a certain period[18], failing which the employee shall be liable to pay the agreed penalty to the employer which sum may not exceed the cost incurred by the employer in providing the training.
In Nigeria, many employers are discouraged by the relative restlessness of employees especially the millennials, and consequently unwilling to commit to investing in skill acquisition and trainings notwithstanding the provisions of the ITF Amendment Act. This is understandably so, to the extent that an employer would ordinarily commit resources in training employees who will in turn add value to the employer’s business. Perhaps one way of addressing the concerns of employers and balancing competing interest would be by legislative intervention as in the case of China. It is impossible to address the need for continues skill acquisition and trainings for employees without mentioning the impact of information technology. This is because the work place has in recent times experienced a global shift from the conventional skill and labour requirement to a more sophisticated and technologically driven orientation. Nigeria is not an exception as many employers are beginning to embrace various technological solutions aimed at reducing the workload of employees and at the same time ensuring efficiency and overall business prosperity. On the flip side, it is not uncommon to find stiff-necked employees who resist change and are reluctant to embrace modern technology that more often than not, cost employers a fortune to provide in the workplace.
Whilst it is doubtful that legislation can be used to enforce a paradigm shift towards individual acceptance of technology, it will go a long way in redefining the status quo, such that employees who are averse to technology will be left behind and constrained to step up. In this respect, advances in fields such as artificial intelligence and robotics are making it increasingly possible for machines to perform not only physical but also cognitive tasks currently performed by humans. These developments have led to widespread interest in the future of work as several countries have responded by putting in place policies and programmes to aid seamless technological transition[19] . there is currently no legal regime mandating the use of technology in employment relations although we note that the Nigerian National Policy for Information Technology was released which aims to amongst other things, empower the labour force with IT skills and improving the productivity of Small & Medium Enterprises (SMEs) [20]and also, the National Information Technology Development Agency Act of 2007 which establishes the body that make policies and guidelines to foster the development of technology in Nigeria. So far, he National Information Technology Development Agency has issued several guidelines and regulations such as the Nigeria Data Protection Regulation 2019 which seeks to protect data of citizens of Nigeria.. The world is evolving technologically and countries all over the world have embraced various technological advancements to simplify and ease ways people work and go about their business. Nigeria should not be left out but be must be seen to take the initiative.
7. Dispute Resolution
In Nigeria, the National Industrial Court of Nigeria (NICN) has the exclusive jurisdiction to the exclusion of all other courts in matters connected with labour and employment relations, trade unions and workplace related issues such as conditions of service, health, safety and welfare of employees amongst other[21].
The National Industrial Court Civil Procedure Rules 2017 provides for the practice and procedure to be adopted in proceedings before the National Industrial Court. The Rules also allow for Alternative Dispute Resolution upon such dispute being referred by a judge to the Alternative Dispute Resolution Centre for amicable settlement through mediation or conciliation to be completed within 21 days from commencement with an extension of not more than 10 working days. Where parties are unable to settle the dispute, then the matter shall proceed in court[22].
On the other hand, the procedure provided for dispute resolution under the Trade Dispute Act is for parties to attempt to amicably resolve the dispute[23]failing which parties can explore mediation,[24]and when parties are unable to settle the dispute by mediation, the dispute is referred to the Industrial Arbitration Panel (IAP) established by the Act to adjudicate on industrial disputes between employers and employees, inter and intra union disputes upon referral by the Minister.[25] Where there is an objection to the award of the Arbitral panel, the dispute is then referred to the National Industrial Court whose judgement shall be final and binding on all parties.[26]
The Nigerian position seems slightly different from what is obtainable in foreign jurisdictions. In China for instance, an employment related dispute must first be submitted to arbitration by an arbitral tribunal composed of 3 arbitrators with one serving as chief labour arbitrator. Simple cases may be arbitrated by a sole arbitrator who shall finish making the award within 45 days from the date the Dispute Arbitration Commission accepts the arbitration application. If either party is dissatisfied with the arbitral award or the Arbitration Commission does not give the award in due time, he shall file for litigation within 15 days failing which the award takes effect. The People’s Court of First Instance has jurisdiction to entertain the matter and the court is expected to deliver a judgment on the award within 6 months of its acceptance or 3 months if the complaint applies to summary procedure. An appeal against the judgment of the court shall be filed within 15 days of the delivery of the judgment.[27]
The efficiency of the Nigerian labour jurisprudence is generally not a far cry to what is obtainable in other jurisdictions. The NIC, being a specialized labour and employment court is able to focus on its constitutional mandate and ensure that labour cases are dispensed without much delay[28]. Nonetheless, many contracts of employments signed by the respective parties have in them provisions on alternative dispute resolution which in most cases are not regarded by the parties in the event of a dispute. Consequently, it is unsurprising to find that many of the cases filed at the NIC ought not to be brought to the Court if the extant labour legislation provides for an obligation on the parties to resort to alternative means for resolving their disputes before proceeding to Court, or at the very least, show evidence of attempt made towards amicably resolving the employment dispute.
Whilst it’s undeniable that the employer enjoys a stronger position in an employment relationship and the employee may have little or no respite where the employer is unwilling to consider amicable settlement, the review of extant labour legislation to put in place an institutional ADR framework for labour and employment disputes with specific timelines for the achievement of ADR milestones before filing an action in court, similar to the position in China as well directive imposing litigation cost on a party unwilling to participate in the ADR process may provide a viable alternative geared towards decongesting the courts and increasing acceptance of the ADR process.
CONCLUSION
Reforms to the labour laws must be seen to address the core inadequacies of existing legislations whilst also looking into the future. The Nigerian legislature must be proactive and up to date. Bills that have been forgotten on the floor of the National Assembly must be dusted and revisited while fresh bills must also be given dispassionate consideration with a view to passage in line with international standards and global trends
The
Nigerian legislature must ensure that bills are drafted and speedily passed
into law without delay or political maneuvering as “for every minute the
workplace remain subjected to unenforceable legislations or insignificant
penalties for violation, employees become victims of more injuries,
dehumanizing treatment and loss of livelihood”.
AUTHORS
[1] Section 7 of the Labour Act 2004
[2] Section 7(2) of the Labour Act, 2004
[3] Article 10 of Labor Contract Law of the People’s Republic of China
[4] Directives 93/104/EC (1993), 2000/34/EC (2000) for instance require a maximum average working week (including overtime) of 48 hours over a 17- week reference period; minimum daily rest period of 11 consecutive hours in every 24 hours; breaks when the working day exceeds 6 hours; minimum weekly rest period of 24 hours plus the 11 hours daily rest period in every 7-day period; minimum of 4 weeks paid annual leave night work restricted to an average of 8 hours in any 24-hour period. Please see https://en.wikipedia.org/wiki/Overtime assessed March 20, 2020.
[5] Section 21(1) (c) of the Labour Act.
[6] Henry Umoru and Inalegwu Shaibu, “Senate passes Labour Safety Act”, Vanguard Newspaper, 28 September 2012: http://www.vanguardngr.com/2012/09/senate-passes-labour-safety-act/ accessed on 27 February 2017. ; For or instance, an offending employer was liable to imprisonment of not less than one year or an option of fine of not less than N500 million. The State was also empowered under the LSHWB 2012 to charge corporate organisations and the firm’s directors for criminal offences where the organisations’ actions or inactions result in the loss of lives and property
[7] https://www.hse.co.ke/articles/occupational-health-safety/nigeria-occupational-safety-and-health-bill-on-course/ accessed on December 20, 2020
[8] However, guidelines and circulars on redundancy have been issued in respect of employees in the oil and gas industry in Nigeria.
[9] Section 18(1) Labour Act
[10] Section 16 of the Labour Act
[11] Section 18 of the Labour Act
[12] Section 54 of the Labour Act
[13] https://www.vanguardngr.com/2015/08/jubilation-greets-introduction-of-paternity-leave-for-enugu-male-civil-servants/ accessed March 20, 2020
[14]https://www.vanguardngr.com/2014/07/lagos-approves-10-day-paternity-leave-civil-servants/ accessed March 20, 2020
[15] Section 6 and 8 of the Industrial Training Fund Act, 2011 as amended
[16] https://www.xperthr.co.uk/employment-law-manual/training-obligations/20390/ accessed 2/4/2020
[17] Article 4 and 62 of the Labor Contract Law of the People’s Republic of China, 2008
[18] Article 22 of the Labor Contract Law of the People’s Republic of China,2008
[19] https://www.researchgate.net/publication/261775511_Technological_Change_Employment_Relations_in_India access on April 3, 2020.
[20] Chapter 5 (viii) of the Nigerian National Policy for Information Technology.
[21] Section 254C-(1) – (6) of the 1999 Constitution as amended by the Third Alteration Act 2010
[22] Order 24 of the National Industrial Court Rules 2017
[23] Section 4(1) of the Trade Dispute Act Cap T8 LFN 2004
[24] Section 4(2) 6 of the Trade Dispute Act Cap T8 LFN 2004
[25] Section 5, 9 of the Trade Dispute Act Cap T8 LFN 2004
[26] Section 14 of the Trade Dispute Act Cap T8 LFN 2004
[27] https://iclg.com/practice-areas/employment-and-labour-laws-and-regulations/china accessed 2/4/20
[28] Please see Order 4 Rule 1 of the Rules of the NIC which has as part of its objectives – to establish an enduring, equitable, just, fair, speedy and efficient fasttrack case management system for all civil matters within the jurisdiction of the Court.
[EI1]What is the current position ?
[EI2]Address the issue of training under the ITF and make it both sided . the relative restlessness of the millennials make a few employers who would have invested heavily in training discouraged. Compare it to that in other jurisdictions.
The issue of information technology has it helps the ease the burden on employees how does this play out in Nigeria and are there any laws to enforce this and reduce manual applications as much as possible?
[EI3]The issue of dispute resolution the NIC as compared to what operates in other jurisdictions
