LEGALITY OF CASUAL AND CONTRACT LABOUR

LEGALITY OF CASUAL & CONTRACT LABOUR IN NIGERIA

By Denja Yaqub

ABSTRACT

This contribution attempts to provide background information on the resolve of the Nigerian Trade Unions, led by the Nigeria Labour Congress, to confront the business community, particularly, multi nationals in their obvious disdain for the rights and dignity of Nigerian workers even as promoted and protected by the nation’s labour laws, Constitution of the Federal Republic, and conventions of the International Labour Organisation (ILO).

A closer study of the operations and objectives of Globalisation, touted as the pivot of the so called New World Economic Order, but clearly the contemporary global politico – economic ideology of capitalism, and obviously a step higher than the well known, well studied antics of imperialism, show clearly that capital is united all over the world against labour in every facet.

There are all kinds of abuse of workers rights here in Nigeria, ranging from denial of union rights, disrespect for occupational safety and health standards, and disdain for employment standards and procedures in accordance with local and international legal instruments.

The forms and method of these abuses are the same all over the world, in both poor and rich countries.

In line with the underlining principles of globalization, and for globalised exploitation to flourish, workers’ rights to decent and fair treatment must be denied globally. Jobs have been reduced to goods that can be exported, sold out, given out on credit, or destroyed to avoid decay, when not in use. The dignity of the worker has come under heavy attack, even against local and international norms and laws. Workers have been categorized in different terms to decimate the role of the worker in production, management of resources, and benefits of the entire production process.

Undocumented employment, otherwise known in Nigeria, as Casual labour has become the main type of employment. In so many other cases, particularly in multinationals, jobs are outsourced, a situation where workers are deliberately orphaned. In deed, whether as a casual worker, or contract staff, or as outsourced staff, the ultimate goal is to take away the usual responsibilities of the employer to his worker, and still use him for production.

This contribution takes the reader to various provisions in Nigeria’s labour laws that expose the clear disobedience of these laws, without any check by the Government or its enforcement agencies, such as the Factory and Inspectorate Division of the Federal Ministry of Labour and Productivity.

The paper also traced the historical and legal background to the resolve of the Nigerian trade unions to pickup the battle against these contemporary slave drivers, and their new tricks.

We also provided information on some of the successes of the battle, which is still on going. We hope this article will attract the readers’ qualitative, critical and objective reading, so that together, we should be able to expose the ideological and universal content of the attack on workers rights in Nigeria.

The truth is that, this is one battle that should attract the attention of not just trade unions, but also human rights organisations, the media and legislators, at all levels, because there is an obvious, not surprising, collaboration between our government and employers to massively dehumanize workers.

The article also commented briefly on the recent amendment to our labour Act, which we concluded to be one law that was amended out of malice and primitive political ego, but which in the long run, may not stand the test of time and space.     

INTRODUCTION

Since 2000 when the Nigerian trade unions started the campaign against casual/contract labour, first through persuasion by way of letter writing¹ and later through picketing of companies, there have been a lot of misunderstanding of the reasons for labour’s actions by not a few employers, on the justification for the open campaigns by the unions led by the Nigeria Labour Congress (NLC).

Before the commencement of picketing activities, meetings were held with the employers through their central organisation, the Nigeria Employers’ Consultative Association (NECA) to clarify and share opinions on the illegality of casual labour and why they must regularize the employment status of such category of workers in their employment.

In fact, an interactive session was held sometime in 2002 with ILO facilitating the process. Agreements were reached between the unions (NLC) and the employers (NECA). ² Apart from agreements between the NLC and NECA, there were agreements between employers and their industrial unions while in some cases, plant level unions had written agreements with their managements.

The meeting between the NLC and NECA, which was held at the instance of NECA on 2^nd May 2002, produced an agreement as follows:

S Employers who still have casuals will regularize their employment.

S In regularizing their employment, the rates to be paid will be in accordance with prevailing procedural and substantive collective agreements in the industry, which will also be taken into account in protecting the rights of the workers.

S It is expected that any current arrangement, in respect of regularized, which does not conform with [b] above, will also be regularized with immediate effect.

S These conclusions will be extended to all employers who would, otherwise, have been picketed by the NLC but for the intervention of NECA, which led to this conclusion.

A joint committee of NECA and NLC was eventually set up to verify the claims by some NECA member companies on the regularization of casuals, which the NLC had valid reasons not to believe.

Despite all these, some employers, even those who are signatories to the various agreements still engage in this illegality, in total disregard for Nigeria’s national laws, Conventions of the International Labour Organisation ³ and the Constitution of the Federal Republic ⁴.

Indeed, employers, through NECA attempted to get President Obasanjo to approve their unfair labour practices without success. At least the President swore to protect Nigeria’s laws and the generality of the Nigerian people.

However, the employers got executive support when in 2005, a bill was hurriedly sent to the National Assembly by the President, to reform Labour laws in Nigeria even when a tripartite process, funded by the ILO was in progress. This process involved NECA, NLC, and Government.

The eventual outcome of this hasty, malicious effort by the Obasanjo regime, tinkered with section 42 CAP 437 of the former Trade Union Act ⁵ in favour of the employers and all those who wish to continue the massive enslavement of Nigerian workers through casualisation, contract Labour, abuse of occupational health and safety and indeed all forms of anti – workers actions in Nigeria.

The original bill that was sent to the National Assembly by the Presidency was a shortsighted one and with political intent, aimed primarily at destroying the trade union movement and the capacity of Nigerians to resist dictatorship ⁶. The final act as harmonized by a joint committee of both the Senate and the House of Representatives is indeed just a little different.

This contribution will attempt to expose the extent of the illegality of casual or contract labour which no one have yet said is not permitted by law but that our employers in Nigeria engage in these practices against the provisions of the law, unchecked, by those saddled with the responsibility of enforcing our National labour laws, is left to everyone’s curiosity.

The ordinary Nigerian worker have been made to suffer the brunt of these illegalities without a check by the Federal Ministry of Labour & Productivity, whose inspectorate division is empowered by law to use the provisions of the law which enormously empowers them to close down factories found to be operating against standards specified by Nigeria’s laws. ⁷

The NLC and its affiliates chose to utilize to its fullest, section 42 of the old Trade Union Act, to massively picket those companies where it discovered people have been engaged to work for years without the coverage and protection clearly enshrined in the Labour Act. ⁸

In this contribution, we will look at the provisions of the law on casual and/ contract labour and find out in conclusion whether or not labour’s campaign against these forms of employment is justifiable.

CASUAL LABOUR

Some definitions of casual labour identified it to mean a situation involving the engagement of someone or a group of people in order to carry out jobs that are not of permanent nature.⁹

In some countries, it is called temporary job. In some others, they call it undocumented employment.

It is a very popular type of employment in highly industrialized countries. Some people work in several places and get adequately paid, hourly, and not less than the minimum hourly wage stipulated by laws of those countries.

Quite a number of sections in the Labour Act specify not just the types of these temporary jobs, but also the persons to be engaged to perform such jobs and the location as well as duration of the jobs.¹⁰

Section 74, subsection 3, CAP 198 of the Labour Act specifically restricts casual jobs to a village or town for the purpose of:

1.     The construction and maintenance of buildings used for communal purposes, including markets, but excluding juju houses and places of worship;

2.     Sanitary measures;

3.     The construction and maintenance of local roads and paths;

4.     The construction and maintenance of town or village fences;

5.     The construction and maintenance of communal wells; and

6.     Other communal services of a similar kind in the direct interest of the inhabitants of the town or village.

None of the jobs described above will take upward of ten years to complete.

Employers in Nigeria engage casuals for periods ranging from 5 to 10 years, not in a village or town but in cities like Lagos, Kano, Port Harcourt, Ibadan etc.

Perhaps, they could find shelter in another section of the same Act to justify the engagement of casuals in places other than villages or towns.

Section 5 of the Act empowers the Minister of Labour to declare anywhere else a village or town for the purpose of that section.

Section 7 did not cover them when they keep casuals for periods longer than three months. Subsection 1 of this section categorically states that:

not later than three months after the beginning of a worker’s period of employment with an employer, the employer shall give to the worker a written statement specifying:

1.     `1The name of the employer or group of employers, and where appropriate, of the undertaking by which the worker is employed;

2.     The name and address of the worker and the place and date of his engagement;

3.     The nature of the employment;

4.     If the contract is for a fixed term, the date when the contract expires;

5.     The appropriate period of notice to be given by the party wishing to terminate the contract…

6.     The rates of wages and method of calculation thereof and the manner and periodicity of payment of wages;

7.     Any term and conditions relating to:

(i)                Hours of work, or

(ii)             Holidays and holiday pay, or

(iii)           Incapacity for work due to sickness or injury, including any provision for sick pay; and

8.     Any special conditions for the contract.

Should there be any alteration to any part of these statements; the employer is required by subsection 2A-B of section 7 of the Act to inform the worker in writing.

In contemporary Nigeria, there are employers, including government and its parastatals, which engage people to work for them for upwards of ten to fifteen years without any document or record as required by Section 7 subsection 1 as quoted above.¹¹

The law conceded three months for employers to engage people without formalizing their relationship, but no part of the Labour Act permit any employer to engage anybody beyond that period without regularizing his/her status.

From the provisions of the existing Labour Act in Nigeria, casual labour, if it means those categories of workers engaged by employers to work for them without formal engagement notices for periods exceeding three months, is illegal.

Below are the lists of organizations and agreements reached with them on casual workers and organising when picketing of employers who engage in unfair labour by the NLC commenced in 2002. ¹²

April

S/No.	Name of Organisation	No. Of Regularized staff	Month
1.	PZ Industries PLC	495-247 [REG] x	8th April 2002
2.	WAHUM group of Co.	556-278 [REG]	9th April 2002
3.	Assometal Ltd	60-27 [REG]	19th April 2002
4.	Wempco Group of Co.	1004-654 [REG] 350 casual workers were regularized within 2 weeks	29th April 2002
5.	Homan Industries Ltd.	All 42 regularised x	23rd April 2002

May

S/No.	Name of Organisation	No. Of Regularized staff	Month
6.	Universal Steels Ltd. Enamelware Division	159-159 Confirmation of the regularisation within 2 weeks	3rd May 2002
7.	Federated Steel Mills	41-23  [23 casual workers will be regularized within 2 weeks]	10th May 2002
8.	Industrial Mineral Products Otta	52-30 [30 casual workers were regularized within two weeks while	16th May 2002
9.	Merchant Investors Ltd.	168-101 [101 casual workers were regularized within 2 weeks while remaining 67 were regularised overtime.	17th May 2002
10.	Avon Crown Caps and Containers Nig. Plc./Fine Chemical Ltd.	141-85 [85 were immediately regularised, 85 others had their status regularised overtime.	18th May 2002
11.	Veepee Group of Companies	229-120 [120 casual workers were regularised immediately and verified within two weeks while the regularization of the other 109 were put on hold.	18th May 2002
12.	Homus Industries Ltd	Unionisation xx The problem here is about the right of employees to belong to the union.	18th May 2002
13.	Vegoplast Nig. Ltd.	24-14 [14 workers confirmed within two weeks 10 others were considered later that year	20th May 2002
14.	Sona Breweries PLC.	227-136 [136 confirmed within two weeks and verified, while 91 others were later regularized]	20th May 2002
15.	Shongai Packaging Industries Ltd.	14-14 [14 Casual workers regularised immediately]	20th May 2002
16.	Leady Pharma Industries Ltd.	All casual workers were confirmed immediately.  No actual figure given	20th May 2002
17.	DrugField Pharmaceuticals	Unionisation	20th May 2002
18.	Purechem Industries Ltd	58-58 [43 in Purechem Ind. Ltd., 15 in Purechem Cement Div. Verification was carried out in two weeks. Casual labour and other unfair labour practices sill exist in the place.]	21st May 2002
19.	Unique Pharmaceuticals Ltd.	25-25. All 25 were immediately regularised, and compliance was verified in 2 weeks.	21st May 2002
20.	Jerry Foam Industries Ltd.	Unionisation	21st May 2002
21.	Odin Metal & Plastic Products Company Ltd.	30-15 [15 confirmed within two weeks.  15 others were subsequently regularised.	28th May 2002

June

22.	Universal Furniture Ltd. Moudaco Ltd.	60-44 [44 casual workers had their status regularised within two weeks, while 16 were later regularized.	25th June 2002
23.	Royal Plastics & Metal Works Ltd.	Right to belong to the union was recognised, while all casual workers were regularised.	26th June 2002
24.	Sunplast Industries Ltd.	Unionisation	28th June 2002
25.	Ayman Enterprises	300 Casuals regularised	29th June 2002
26.	Taju Industries Ltd. Lagos	Unionisation	29th May 2002

July

27.	GeoKev Industries	46 Casuals regularised	4th July 2002
28.	Michelin Ltd. Port-Harcourt	460 casual workers were regularised within one month	29th July 2002

August

29.	Air Liquid Nig. PLC.	11- 9 were regularised	2nd August 2002
30.	Mayfair Agro-Allied Nig. Ltd.	Unionisation	15th August 2002

^{X: By regularized staff, we mean a casual, undocumented worker whose employment status got documented and he got recognized as a full staff of the company.}

^{XX: By unionization or unionized, we mean organizing or organized. There are companies whose management out rightly disallowed their workers from belonging to the union.}

^{SOURCE: Organisation Department, Nigeria Labour Congress} 

CONTRACT EMPLOYMENT

Another form of casual labour in Nigeria is contract employment. In fact, when trade unionists tell some employers that they engage casual workers against the provision of the law, they simply reply out of ignorance that they do not have casual workers, but contract workers.¹³

 But on investigation unionists found out that those they referred to as contract workers are workers recruited for them by some employment “agencies” whose operations contradicts Section 23 - 27, part 2, CAP 198 of the Labour Act.

Section 23 specifically required a recruiting agent not only to obtain a formal letter from the company commissioning him/her to recruit for them, but also a written permit/license by a serving Minister of Labour; and anyone convicted of any offence under Nigeria’s laws can not be issued such permit/license.

As of today, no agency, company or individual have been granted such license or permit by any serving or former Nigerian Minister of Labour. The Corporate Affairs Commission (CAC) may have registered such agencies, but the law required them to obtain permit from a serving Minister of Labour in Nigeria. There are specified conditions they must meet before such permit can be issued.

Section 24, subsections 1-2 require an intending recruiter to formally apply to the Minister in writing (subsection 1) stating the particulars as specified in subsection 2 as follows:

1.     The number of workers required;

2.     The place where the work is to be performed;

3.     The nature of the work;

4.     The wages to be paid;

5.     The duration of the proposed contract; and

6.     Whether or not it is desirable to obtain the workers through a recruiter 16

Subsection 6 of section 24 went a step further to compel the recruiters to ensure that the environment where those recruited   work meet ethical standards.

Section 26, subsection 2a-c prohibits any recruiter from operating without a permit from the Minister; and even when a permit is granted, a recruiter must not engage more than the number of persons stated in his application, or engage them in places not specified in the permit.

Many of those called contract staff by employers in Nigeria today are legally not contract staff basically because the method of their recruitment as well as status, contravenes Nigeria’s labour laws.

Many of these so called contract staff have no records with the company or the recruiter or the Minister as required by law in section 27 subsection 6 where a recruiter is required to document the particulars of the worker containing the following information:

1.     The identity of the worker;

2.     The prospective conditions of employment; and

3.     Any advance of wages made to the worker, as well as any other information the Minster may require.

Employers in Nigeria resorted to the use of contract/casual labour not just to cut cost and maximize profit at the expense of the workers, and the national economy, but also to deny their workers the right to belong to trade unions since they would be compelled to implement collective agreements, subject their condition of service to the process of collective bargaining, which employers are not comfortable with for egoistic reasons or more importantly, assist employers in their search for escapist route away from workplace democracy, which globalization have so far demonstrated to hate.¹⁴

It is important however to point their attention to Section 9, subsection 6 of the Labour Act, which prohibits any contract from making as precondition for, contract employment:

 ‘that a worker shall or shall not join a trade union or shall or shall not relinquish membership of a trade union’ (subsection 6a). Or ‘cause the dismissal of a worker, or otherwise prejudice, a worker:

(i)                By reason of trade union membership, or

(ii)             Because of trade union activities outside working hours or, with the consent of the employer, within working hours, or

(iii)           By reason of the fact that he has lost or been deprived of membership of a trade union or has refused or been unable to become, or for any other reason is not, a member of a trade union.’ (Subsection 6b)

How many of those engaged as contract staff is disengaged through the process specified by law?

Some employers simply inform those they found no longer useful to them verbally when they resume work in the morning, of the termination of their contract. Whereas section 11 specified that either party to a contract before termination should give enough notice. Subsection 2 of the section spelt out the categories and the periods of the notices as follows:

(a)  One day, where the contract has continued for a period of three months or less;

(b) One week, where the contract has continued for more than three months but less than two years;

(c)   Two weeks, where the contract has continued for a period of two years but less than five years; and

(d) One month, where the contract has continued for five years or more.

All notices must be in writing (Subsection 3) and not verbal and sudden as it is the conventional practice by employers in Nigeria.

CONCLUSION

We submit therefore that the practice of casual or contract labour in Nigeria has not been in conformity with the provisions of the country’s Labour Act and no one can defend the legality of what is clearly at variance with the provisions of the law.

Since the new Labour Act (2005) which though slightly amended the previous Section 42 which gave stronger legal backing to picketing, still provide that trade unions or federation of trade unions (NLC) can peacefully picket the premises of any employer with whom unions have established disagreements or disputes on the status of workers, the NLC and indeed the entire labour movement must continue to do this until such a time employers learn to respect the national laws.

This new Act which was passed in 2005 by the National Assembly on the promptings of the Obasanjo Presidency should however be seen as not only an attack on the trade union movement, but essentially a license for employers to unleash various degrees of abuse, denials, intimidation, and eventual extermination of Nigerian workers.

The Act did not stop at expanding the scope of trade union activism by allowing more trade union centers, which no one will oppose, it went further to establish protection for employers who engage in casual labour, denial of occupational health and safety rights, and indeed all those rights enshrined and conferred on workers by conventions 87 and 98 of the International Labour Organisation (ILO) by rubbishing section 42 of the former Labour Act.

Whereas in the previous Act, section 42 subsections 1 & 2, it is:

‘lawful for one or more persons, acting on their own behalf or on behalf of a trade union or registered federation of trade unions or of an individual employer or firm in contemplation or furtherance of a trade dispute, to attend at or near a house or place where a person resides or works or carries on business or happens to be, if they so attend merely for the purpose of obtaining or communicating information or of peacefully persuading any person to work or abstain from working’.

The new (2005) Act tampered with that section. The new section 42 declared: 

‘unlawful for anyone or more persons acting as aforesaid to subject any other person to any kind of constraint or restriction of his personal freedom in the cause of persuasion’ (subsection A).

Subsection B of the same Act went further to declare that:

‘no trade union or registered federation of trade unions or any member thereof shall in the cause of any strike action compel any person who is not a member of its union to join any strike or in any manner whatsoever, prevent aircrafts from flying or obstruct public highways, institutions or premises of any kind for the purpose of giving effect to the strike’

This new section, particularly its subsection B is obviously emotional, vicious and clearly an attack on the rights of not just Nigerian workers, but all Nigerians in the face of regular attack on the individual and collective social, economic, political and cultural rights of Nigerians by the state, a state that has completely ignored the majority and the attendant abject poverty in favour of the minority who continue to shortchange the poor to get richer.

The challenge however is that nobody, no state; no matter how powerful can outlaw protests. No one can stop any one from refusing to be oppressed. Therefore, this is one section that must be ignored.

If employers think they now have cover to continue the process the unions have resolved to fight, they should be told that nowhere in history could forms of protest depend on law.

This also applies to the other sections that outlaw strike and picketing in industries like aviation, education, and health, which were mischievously categorized as ‘essential services’. Even the police, which hitherto was considered too essential a service that even when its men are not well paid, live and work in circumstances that leave much to be desired, not too long ago went on strike.

What all these mean is that we are all challenged to redouble our organizing capacity with increased zeal, commitment, and focus to ensure that workplace oppression, like we should of all forms of oppressions, become part of history as urgent as we need to survive as a people, and as a nation. 

Notes and References:

1.     After the Central Working Committee set up the Anti – Casualisation Committee, as it was then called, the committee wrote letters to about 67 companies where it got report of heavy presence of casual workers. The letters warned them of the consequences, and expressed the resolve of the NLC to confront them through picketing, and gave up to 15^th January 2002 for the employers to regularize the status of those workers in conformity with the provisions of the law.

2.    To forestall picketing, NECA initiated a joint meeting, which was held May 2^nd 2002, which culminated in a joint agreement that NECA would prevail on its members to respect the law and regularize casuals in their services. A joint sub committee of NLC and NECA was also established to monitor compliance.

3.     On the 18^th of June 1998, the 86^th session of the conference of the International Labour Organisation (ILO) adopted a declaration on Fundamental Principles and Rights at work, which abolished all forms of forced, and discriminatory labour all over the world. This gave stronger teeth to the earlier Conventions 87 and 98.

4.    While Section 40 of the Constitution established the rights of every Nigerian to associate freely, which include freedom to form and belong to trade unions and associations, Section 34 established the right of all Nigerians to good employment, free from slavery, compulsory labour and all forms of unfair labour practices.

5.    See Aturu, Bamidele (ed): A Handbook of Nigerian Labour Laws (Friedrich Ebert Stiftung, Lagos 2001)

6.    The original bill was sent by the President in anger against the consistent mobilization of Nigerians and strikes by the NLC against the regular, mindless, and unnecessary increases in prices of petroleum products by the Obasanjo regime.

7.    See the Factories Act of 11^th June 1987. Also, Aturu (2005)- Nigerian Labour Laws, Principles, Cases, Commentaries and Materials. Friedrich Ebert Stiftung, 2005

8.    See Trade Union Act CAP 437 of 1973

9.    Yaqub, Denja (2002) – Basic Issues In Contemporary Collective Bargaining In Nigeria – Paper presented to a workshop organized by the National Union of Chemical, Footwear, Rubber, Leather and Non – Metallic Products Employees, Port – Harcourt, Nigeria.

10. See CAP 198, Section 74 of the Labour Act of 1973.

11.  See Section 7 CAP 198 of the Labour Act of 1973.

12. This table was made by the Organisation Committee (formerly known as Anti – casualisation Committee) of the NLC. It’s a compilation of companies that were picketed as well as those who agreed to the demands of the unions without picketing.

13.                In July 2002, the NLC picketed Chinese Company named Zenith Plastic located along Port Harcourt – Aba Road where its Personnel Manager couldn’t understand what casual or contract labour meant. After he was told, he discovered that he, in fact was a casual haven been recruited verbally in front of the gate and told he would be paid daily.

14.                See Faux, Jeff –“The Global Class War”, John Wiley and sons, New Jersey 2006