Examination of the Duties of the Employer N Employee Under the Nigerian Employment Law
CHAPTER ONE
Objectives of The Study
- This study has the primary objective of revealing and bringing to the fore to any prospective employee and employer respectively, in the first place, that there is a duty imposed by law on all employers to diligently obey the terms of the contract entered into with his employee.
- Secondly, as a morale booster for employees, on the need to seek redress once there is/are perception(s) of breach of the terms and obligations, for it will go a long way in making our labour system and employers more responsive and obliged to discharge the duties imposed on them by law to their employees.
- It will also develop and strengthen our current case laws and legislations on labour and employment law, and to provide ready and handy material on what the law had said, is saying and likely to say by precedent on any suit predicated on labour law and practice in Nigeria.
CHAPTER TWO
LITERATURE REVIEW
History of Labour Law in Nigeria
The history of labour law concerns the development of labour law as a way of regulating and improving the life of people at work. In the civilisations of ancient times, the use of slave labour was widespread. Some of the problems associated with unregulated labour were identified by Pliny as diseases of slaves. Labour laws have been viewed as “the rules of human effort” it is legal frameworks that guide the activities of human beings in their daily attempt at making ends meet. Srivasta (2007) opined that labour laws seek to regulate the relations between an employer or a class of employers and their workmen. Labour laws are again used as an instrument by government to regulate and guide employment relations.
LABOUR LAWS PRIOR TO 1938: Although the 1938 trade union ordinance gained much recognition and thus, regarded as the landmark of labour laws in Nigeria, the antecedent to the advent of labour laws can be traced to 1880s. the legislation then was called “workers chapter” extracted from the “master and servant ordinance for the gold coast”. It has its long little as “an ordinance for the regulation of the relations between employers and employees”. This master and servant ordinance was amended in 1885 and in 1900; the ordinance was made for the whole country in 1917. The master and servant ordinance of 1917 was re-amended in 1929 and were called “Labour Code Ordinance of 1929. After the First World War workers started agitating against poor condition of work, these agitations constituted much embarrassment to the employers and the then colonialist and thus, they promulgated the 1938 trade Union Ordinance which is now widely accepted as the landmark of labour laws in Nigeria. Their intension was to use this law as a way of regulating the affairs of these hitherto illegal unions. The law legalized trade unionism and provided that 5 members can form unions.
LABOUR LAWS AFTER 1938: After the 1938 ordinance, two ordinances were promulgated in 1941; the workmen compensation ordinance of 1941 was meant to make it imperative for employers to compensate any of his employees who sustain injuries in the course of his work. The law also stated the categories of those injured workers which may or may not be catered for. The second law in 1941 was the trade dispute ordinance of 1941 enacted for conflict resolution when the joint machinery for conflict resolution failed.
In 1945, labour code ordinance of 1929 was amended and was referred to as 1945 Labour Code Ordinance. In 1958 another two laws were introduced by government. One is the Factory ordinance chapter 66 enacted to ensure register his factory and provide security, safety and welfare for occupants (workers) in his factory premises. The second law in 1958 is Wages Board Ordinance of 1958 through which government intervene in the review of workers‟ wages structure. In July 29th 1966, General Yakubu Gowon (a military leader) through military coup took over the government of Aguiyi Ironsi. This military government promulgated several decrees. The first one is Trade disputes (emergency provision) decree, 1968 enacted for settlement of disputes in industrial set up. This decree was ineffective as there were still several industrial crises in Nigeria. Thus, the federal military government in the following year introduced another Trade dispute, decree, 1969. This was the decree that banned strike and look out, it provided that no employer should increase the salary of any worker without the approval of the military government. Between 1970 and 1975, two great events took place in Nigeria, first was the civil war that ended in 1970 and the overthrow of Gowon‟s administration in 1975. The aftermath of the civil war had effect on workers‟ salaries and affected their standard of living. The government then introduces Wages Board and Industrial council decree in 1973 to review the salary structure of workers. It was this decree that established the Wages Advisory Council. In the same 1973 another crucial law was promulgated called Trade Union Act 1973 which increased the number of members to form union from 5 to 50. It repeals the 1938 ordinance. It also banned workers under essential services from unionizing.
CHAPTER THREE
WORKERS’ RIGHTS
Introduction: Since the inception of paid/wage employment, a combination of sustained struggles and appeals to the conscience of the rest of society workers, using the platform provided by their organisations(trade unions), have been able to secure for themselves a number of rights. These rights are predicated on, and complemented by, some constitutional provisions which confer certain rights on workers as citizens of their countries. In a most general sense workers and trade union rights are those legal provisions which are meant to protect workers in the course of employment and as producers of national wealth.
Meaning: According to Greven (2001) “workers’ rights (or labor rights) refer to the core rights of freedom association, collective bargaining, and prohibition of forced labor, child labour and discrimination in employment”. Such rights are conferred on workers and their organisations taking into consideration their special role and the need to protect them from extreme abuse and exploitation in the hands of profit-conscious employers often backed by a collaborative state. These rights are embedded in Conventions and Recommendations of the ILO as well as national legislation.
Basic concept of Workers right
Wages: The Labour Act of 2004 set the standard for the minimum amount of Naira a worker in Nigeria is supposed to make. In 2004 the minimum wage was set to ₦5,500.00 per month. In 2011, the National Minimum Wage Act of 2011 set the minimum wage to ₦18,000.00 per month. The Labour Act of 2004 also has an exception that states that any establishment, which employs less than 50 workers do not have to abide to the Nigerian minimum wage.
Pensions: The Pension Act of 2004 established a contributory pension scheme for people employed in the public and private sector of Nigeria. The amount that has to be contributed towards the pension is 7% of an employee‟s pay check. It also states that in the event of an employee‟s death that the next-of-kin is to receive their pension and any benefits from their life insurance policy. In the act, it allows retired employees to receive retirement benefits.
Night work: no woman shall be employed on night work in a public or private industrial undertaking or in any branch thereof, or in any agricultural undertaking or any branch thereof., this section shall not apply to women employed as nurses in any public or private industrial undertaking or in any agricultural undertaking, nor to women holding responsible positions of management who are not ordinarily engaged in manual labour; and in any proceedings brought under or in connection with the said subsections. It is prohibited for an employer to require or permit – pregnant employees to work at night – two months before the expected date of confinement; or before that date if the employee produces a medical certificate that she is no longer fit to perform night work; mothers to work at night – for a period of 2 months after the date of birth; children under 18 years of age; an employee who is medically certified as unfit to do night work.
CHAPTER FOUR
DUTIES OF THE EMPLOYER AND EMPLOYEE
Duties of the Employer
Duty to Pay Wages
The wages or salary which an employer is obliged to pay will normally be the subject-matter of an express term of the contract. But where an agreement for employment leaves out the matter of payment there might arise the question whether there is a contract of employment. However, at common law, a contract may be implied from the conduct of the parties. Where one party does work on the order of another under such circumstances as that it must be presumed that he looks to be paid as a matter of right. then a contract should be implied Higgins v Hopkins (1848). A term to pay will be implied in circumstances which clearly indicate that employment was not to be gratuitous Way v Latilla [1937]. Where there is an implied contract or term of a contract to pay, payment is quantum meruit Bryant v Flight (1839). In certain circumstances nothing less than the national minimum wage may be payable. Note that section 3 (1) of the National Minimum Wage Act,2019 stipulates that it shall be the duty of every employer to pay a wage not less than the national minimum wage of N30,000.00 per month to every worker under his establishment”. By section 3 (3) of the National Minimum Wage Act 2019, “any agreement for the payment of wages less than the national minimum wage shall be void and of no effect whatsoever”. Section 4(1) of the National Minimum Wage Act 2019 provides for exemptions as follows: The provisions of section 3(1) of the National Minimum Wage Act does not apply to 1) an establishment in which less than fifty workers are employed; 2) an establishment in which workers are employed on casual basis; 3) an enterprise where workers are rewarded on piece-rate or commission basis; 4) workers in periodic engagement such as farming; 5) worker engaged in a ship or aircraft regulated by shipping or aviation law Attorney General, Osun State v Nigeria Labour Congress (Osun State Council) ors (2012). An employee who takes part in a strike is not legally entitled to any wages or salary or any other remuneration for the period of the strike. See section 43(1)(a) of the Trade Dispute Act but, where there is a lock-out by an employer, the employees are entitled to be paid their wages or salary for the period of the lock out. See section 43 (1) (b) of the Trade Dispute Act.
Duty to Provide Work
Generally, an employer is not under a duty to provide work for his employees to do; he fulfils his duty by paying wages Turner v Sawdon & Co [1901]. It is true, “said Asquith J in Collier v Sunday Referee Publishing Co. [1940]” that a contract of employment does not necessarily, or perhaps normally, oblige the master to provide the servant with work. Provided I pay my cook her wages regularly she cannot complain if I choose to take any provide work. There are three categories of such contracts. In the contract of employment of actors and actress the need to gain publicity and enhance reputation requires that work be provided. Similarly, in contract of employment in which work done is necessary and essential for the determination of wages payable, the employer is obliged to provide work. These include a contract of employment on a piece-rate or commission basis. At common law an apprentice must also be provided with work to do in order that he may be able to learn his trade and acquire the necessary skills. Section 49(1) Labour Act (2004) now provides that any person may be apprenticed to an employer for him to be trained by him or have him trained systematically for a trade or employment in which art or skill is required.
CHAPTER FIVE
FINDINGS AND CONCLUSION
Findings
The research shows that the duties imposed on the employer in the employment relationship are more than that of the employee. This is so both under the common law and statutes. Although the reasons why more duties are imposed on an employer in the employment relationship are not usually stated in court decisions and labour statutes, scholars and judges of labour courts understand the reasons to include the following:
1) advancement of industrial peace between employees and employers, in the work place, the labour courts being aware that dispute between them can undermine the economic stability of a nation Adejumo (2007).
2) “… to counteract the inequality of bargaining power which is inherent … in the employment relationship.” Kahn Freund (1972). The principal purpose of labour law, then, is to regulate, to support, and to restrain the power of management and the power of organized labour. Kahn Freund (1972).
With these reasons in view both statutes and court decisions relating to labour and employment will usually impose more duties on the employer.
Conclusion
The paper examined the duties of both employer and employee in the employment relationship. The duties are both at common law and statutes. The duties of the employer include: to pay wages, to provide work and to take reasonable care of employee against workplace injury. The wages or salary which an employer is obliged to pay will normally be the subject-matter of an express term of the contract. But where an agreement for employment leaves out the matter of payment there might arise the question whether there is a contract of employment. However, at common law, a contract may be implied from the conduct of the parties. Where one party does work on the order of another under such circumstances as that it must be presumed that he looks to be paid as a matter of right, then a contract should be implied. The employee’s duties are: obedience and faithfulness.
Conflicts of Interest
The author declares no conflicts of interest regarding the publication of this paper.
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