Ethical considerations

The Constitution of the Federal Republic of Nigeria³³⁰

The Constitution contains some laudable provisions which when applied to labour generally reveals some protections for all classes of workers including economically dependent workers. Section 40 of the Constitution guarantees the right of a worker to freedom of association and in particular, the right to belong to any trade union or any association for the protection of his interest. This provision is the bedrock for the right of economically dependent workers to form or join any trade union of their choice. Section 36 of the Constitution³³¹ also embodies the principle of fair hearing. This provision would be useful and applicable in cases where the contract of an economically dependent worker is terminated without notice and/or where an economically dependent worker is accused of any allegation by the employer. This research does not also lose sight of Section 42 the constitution which prohibits all forms of discrimination. Where this provision is applied to labour, it would imply that unfair practices such as unequal treatment of workers by employers constitute a gross violation of the constitution. The scope of application of the Constitution is not questionable as it does not draw any line between different types of workers. In other words, it has a general application to all persons. Therefore an economically dependent worker who approaches the NICN on the strength of these provisions may obtain some redress whether or not distinct from basic labour remedies.³³²

3301999 as amended.

331Ibid.

332 See section 46 of the Constitution which enables any person who feels his constitutional rights have been violated to approach the court redress.

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A cursory look at order II of the Fundamental Rights (Enforcement Procedure Rules)³³³ shows clearly that the Court can in such cases, make orders such as declaration, injunction, damages, etc.

Ruling on the provision, the court in the case of Minister of Internal Affairs v. Shugaba³³⁴ held that the orders which the court will make in such circumstances would be such ―requisite and relevant to redress the infraction of the fundamental right‖ which was violated.

Labour Act

This is the major law regulating employment and labour in Nigeria. Unfortunately, it does not contain the definition of an ‗economically dependent worker‘. Section 91 of Labour Act defines a worker to mean:

any person who entered into or works under a contract with an employer, whether the contract is for manual labour or clerical work or is expressed or implied or oral or written, and whether it is a contract of service or a contract generally to execute any work or labour.

It can be gleaned from this provision that the lawmakers probably intended to cover virtually all types of worker in one definition. This attempt has proven so far to be rather counter- productive.

The definition is extremely complex and confusing. It does not cover recent work relationships includingeconomically dependent workers. It is submitted that this is a clear case of legislative ineptitude and nonchalance as no effort has been made since 1971 when the Act was enacted to make the law amenable to current labour situations. In the United Kingdom, for instance, the Employment Relation Act, carefully and extensively defined terms such as ―employee,‖ ―worker‖,―Contractor of employment‖,etc. to avoid or reduce confusion.³³⁵

333 2009

334(1982) 3 NCLR 915 at 994.

335 See chapter III of the Employment Relations Act, UK 1996.

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However, there are some provisions of the Labour Act which appear to be of some protection and importance to economically dependent workers in relation to written term and conditionsof work and outsourcing, etc. Section 7(1) of the Labour Act provides that not later than three months after the beginning of a worker‘s periodof employment with an employer, the employer shall give to the worker a written statement specifying among other things, the nature of the employment, the special condition of the contract, etc. This provision captures the importance of having the terms and conditions of work put in a written form and therefore make it mandatory for the employer to present same to the worker not later than three months of resumption of work. The importance of the provision to all workers cannot be over-emphasized so that the non -compliance with it practically proves to be heavily visited on the worker. In the case of FaccoWest Africa Limited v.

OluwatosinMuyiwaOjewusin and Anor,³³⁶ the claimant‘s case failed woefully as the NICN refused to venture into the ascertainment of the rights, privileges and obligation of the parties because the claimants had failed to provide evidence of his terms and conditions of work. Another area which the Labour Act extensively dealt with is that of outsourcing. Most of the economically dependent workers acquire their precarious status through the practice of outsourcing. Employers engage them through a third party whose major task is to pay salaries. They are technically termed ―contract staff‖

and as such, denied the benefits accruing to their counterpartpermanent employees. Their employers continue to use them but immediately disown them when disputes arise. Therefore, section 23 of the Labour Act³³⁷ specifically requires a recruiting agent not only to obtain a formal letter from a company commissioning him/her to recruit for it, but also a written permit/license by a serving Minister of labour. Section 24 of the Act further requires the intending employer to formally apply to the Minister in writing stating among other particulars, the place where the work is to be performed, the nature of the work, the wages to be paid, the duration of the proposed contract, etc. Subsection 6 of section 24 further compels the recruiters to ensure that the environments where those recruited are

336 Suit No: NICN/LA/534/2014 delivered on 13/12/2017.

337Op.cit

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to work with ethical standards. Unfortunately, no matter how beautiful and beneficial these provisions of the Labour Act appear, economically dependent workers have not been able to benefit from them. This is basically owing to the uncertainty pertaining to its scope of application and the poor implementation of the law.

The Act³³⁸ defines a Trade union as any combination of workers or employers whether temporary or permanent, the purpose of which is to regulate the terms and conditions of employment of workers.³³⁹ The above definition indicates that workers no matter their status have the right to join or form a trade union. An employer is mandated by section 24 of the Act to automatically recognize a trade union on registration and this recognition is interpreted to be for the purpose of collective bargaining. This implies that a trade union can bargain collectively on behalf of members whether temporary or permanent and that any collective agreement reached should be applicable to every category of workers. This position is not challengeable as it is supported by section 40 of the Constitution and Article 10 of the African Charter on Human and People‘s Rights (Ratification and Enforcement) Act³⁴⁰which frown at any restriction whatsoever to the right to freedom of association.

Furthermore, by Section 24 (2) of the Trade Unions Act³⁴¹, an employer who deliberately fails to recognize any such registered trade union shall be guilty of an offence and be liable on summary conviction to a fine of N100. It is humbly submitted that in as much as conviction in this case will leave the employer with an indelible mark of an ex-convict, the penalty should be increased to a reasonable extent that can constitute deterrence to employer.

338Op.cit.

339Op. cit.

340 Cap A 9 LFN, 2004.

341Op.cit.

120 Employees Compensation Act³⁴²

The law makes comprehensive provision for the payment of compensation to employees who suffer from occupational disease or sustain injuries arising from accident at work place or in the course of employment.³⁴³ The law extends its application to any person employed by an employer under oral or written contract of employment, whether on continuous, part time, temporary, apprenticeship or casual basis and includes a domestic servant who is not a member of the employers family or any person employed in the federal, state and local government, and any of the government agencies and in the formal and informal sectors of the economy.³⁴⁴ Many writers have commended this provision as being laudable and wide enough to encompass all classes of workers.³⁴⁵ On the strength of the provision, the court in the case of Abel v. Trevi FoundationNigeriaLtd³⁴⁶ held that a contract staff was an employee and thus entitled to compensation under the Act. In as much as the law did not expressly mention economically dependent workers, it is submitted that its scope is arguably wide enough to cover those workers unlike the Labour Act whose scope is tainted with uncertainty. Based on the analysis of the various Nigerian laws above, it appears in principle that economically dependent workers in Nigeria should be entitled to the following rights:

1. right to form or join a trade union;

2. right to enforce their fundamental human rights in relation to labour such as discrimination, unfair treatment, fair hearing etc.

3. right to have their terms and conditions of employment carefully put in writing and given to them;

4. right to a danger-free work environment;

5. right to a reasonable pay for work;

342Employees compensation Act, 2010.

343Ibid, parts III & IV.

344Ibid,Section 73.

345A G, Eze and T C, Eze, ‗A Cross National Survey of the Legal Framework for the Protection of Casual Work Arrangements in Some Selected Countries’ Nnamdi Azikiwe University Journal of International Law and Jurisprudence, vol. 4, No. 1 (2013) p. 57

346 Suit No: NIC/PHC/55/2013 delivered on 2014-06-03.

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6. right to compensation for injuries incurred in the course of employment;

Unfortunately, it is practically difficult to understand how enforceable these rights are made available to these classes of workers due to the following reasons:

1. our laws do not define who economically dependent workers are neither do they prescribe any criteria for identifying them;

2. the institutions responsible for the enforcement the rights are not effectively carrying out their duties.

3. these workers do not fully appreciate their right under the law.