Chapter 5: The professionals’ conceptions of the Libyan homes
5.3 The role of government as an obstacle to the housing innovation
5.3.1 Implications: tensions between modernisation and westernisation
141
contract with statutory flavour. To appreciate the legal status of economically dependent workers otherwise known as non-standard form contract of employment, the nature and status of standard form contract of employment needs to be appraised in this work. This will enable a prospective reader of this work decipher the difference between the legal status of these different categories of work relationships. The aim of this chapter of the work therefore, is to appraise the nature of a standard form contract of employment in contradistinction with the concept of economically defendant workers.
142
agencies and user firms to be joint employers for the purpose of the National Labour Relations Act.409 It is submitted that this approach is commendable because it will reduce casualization as it relates to outsourcing. That is, although the remuneration and discipline of the workers is done by the temporary work agency, where it is found that the worker is under the control of the user firm the court should hold both bodies as co-employers of the workers. The implication is that the workers would be allowed to enforce their labour rights and benefits under the law from either of the bodies.
In this connection, the user firms will be prevented from casualizing the rights of the workers knowing fully well that the latter may enforce their rights against them.
In Nigeria, although there is no clarity as regards the regulation of outsourcing under the labour law, most academic and judicial authorities agree that the element of control cannot be dispensed with for instance in the case of Francis Dila v Cecilia John410, the court laid down the rule that an employee is a person who is under the control of an employers as to what he does, when, where and to whom.411 In the Nigeria labour realm, it is clear that the labour contractors only control the payment, discipline and may be, disengagement of the workers while the user firms actually control the workers on not just what to do but also how to do. The whole idea of outsourcing is a deliberate attempt by these user firms to avoid legal liabilities by purportedly shifting them to the labour contractors.
Canada
In Canada, the determination is generally made on a case by case basis. User firms economically attempt to avoid a ―joint employer‘ status by minimizing their control over agency workers, or at least creating the appearance that these workers are being solely controlled by the agency412 in some areas in Canada, The joint responsibility, is presented in the legislation or part of licensing
409 See for example Holyoke Visiting Nurses Association v. NLRB, (2000). NLRB No. 173.
410(1973) 1 NMLR 58.
411 D T, Eyongndi,Op.cit.p 110.
412 L F, Vosko, Temporary Work: The Gendered Rise of a Precarious Relationship, (Toronto: University of Toronto press, 2000) p 716.
143
requirements but such regulations are defined to include only on-going, indefinite arrangements, explicitly excluding temporary ones.413 What this implies is that Canadian labour regime recognizes the user firm as a joint employer with the labour contract only in cases where the worker is to be used indefinitely or for a long term by the user firm. The position is not absolutely fair given that most of these outsourced workers are employed on a temporary basis.
Britain
In England, the legal status of the outsourced worker is neither here nor there. While based on a formalistic contextual analysis, British courts maintain that the user firm cannot be the employer,414 in practice, based on the dubious is mutuality of obligation and the lack of significant control, the courts also deny the existence of an employment relationship between the agency and the worker.415 Workers through temporary work agencies in Britain are thus neither employees of the agency nor employees of the firm. However, this failing has been corrected in some specific instances by the legislature, to ensure minimal protection for those workers. Agency workers are explicitly included within the scope of the following pieces of legislation: Employment Rights Act416 (for the purpose of protecting whistle blowers), Public Interest Disclosure Act,417 (for the same purpose of protecting whistle blowers) and the Employment Relations Act,418 (for the purpose of the right to be accompanied at a disciplinary or grievance hearing.
China
In China, the temporary staffing industry is on the rise due to its economic reform and opening up of its economy to the outside world. Those who support the practice see it as cost cutting measure and a means to reduce unemployment. Although the Chinese government supports and encourages flexible
413 G, Magnum, D, Mayall& K, Nelson, ‗The Temporary Help Industry: A Report to the Annual Internal Labour op cit, p.
604.
414Montgonomery v. OVK, Ovenstein and Kopple Ltd. (2000) WL. 491 412 (ETA)
415 See for example Wickens v. Champion Employment (1984) I.C.R. 365 (EAT); Constain Building and Civil Engineering Ltd. v Smith (2000) I.C.R. 215 (EAT)
416 1996, Section 43.
417 1998, Section 1.
418 1999, Section 13
144
work force, it must be noted that the system is much more organized and less informal with more government intervention than equivalent employment in many other developing countries.419The recent intervention of the Chinese government for the regulation of the temporary staffing industry has provided the following:
1. It makes provisions for the staffing industry and as such gives it legitimacy.
2. It has increased the protection of worker‘s right in the workplace.
3. It also provides more detailed and enforceable regulations to protect worker‘s right, and entitlements.420
Casual workers are hired for user firms through labour dispatch firms and are engaged under fixed term contracts for duration of not less than two years. The labour dispatch firm remains the employer of the dispatched worker and shall pay the worker the remuneration due to him/her. The user company is bound by law to ensure that the dispatched worker‘s remuneration and working conditions should be of the same standards of the location where it is situated.421 The dispatched worker must be paid overtime, performance bonuses and benefits relevant to the post irrespective of employment status and must earn the some pay as that received by workers of the accepting entity.422 The law also provides that they have the right to join or form a trade union while in employment to safeguard their lawful sights and interest.423
This intervention by the Chinese government through legislation is a laudable development and implemented property will go a long way in protecting the rights of outsourced workers in the workplace as well as protecting them from exploitation. It will also become less attractive in the long run to employers who have previously before the law used labour dispatched workers as a substitute for their regular workforce. This may eventually faze out the growth of labour dispatch firms.
419F, Xu ‗The Emergence of Temporary Staffing Agencies in China‘, Labour Law & Policy Journal.Vol 30, (2012) p.
440.
420 The Labour Contract Law was enacted on 29 June 2007 and came into effect on 1 January, 2008.
421Labour Contract Law (China), Article 61.
422Ibid, Articles 62 & 63.
423Ibid, Article 64.
145
Without much ado, I posit that based on the cross national comparative analysis above, the position in China is more preferable and should be followed by the Nigerian legislature.
146
CHAPTER FIVE
INTERNATIONAL LABOUR STANDARDS ON THE LEGAL STATUS OF ECONOMICALLY DEPENDENT WORKERS