“Decent work” means many things to many people. According to ILO Decent Work Agenda, it is the sum of the aspirations of people in their working lives. “It involves opportunities for work that is productive and delivers a fair income, security in the workplace and social protection for families, better prospects for personal development and social integration, freedom for people to express their concerns, organize and participate in the decisions that affect their lives and equality of opportunity and treatment for all women and men.” As we celebrate workers in every walk of life, this month, BusinessDay’s Onyinye Ukegbu sits with Ose Okpeku, Partner, The Law Crest LLP, and Chairman, Nigerian Bar Association, Section on Business Law, Employment Labour and Industrial Relations Committee to take a look at the Nigerian labour market, employment laws and the hope of decent work for all.
What does “decent work” translate to in the Nigerian context?
The Decent Work Agenda (“DWA”) in Nigeria cannot be different from the global standard as encapsulated in the framework definition of DWA by the ILO. Within that context, it means that the work that people do should be commensurate with their skill levels so they are not underemployed. DWA means employees are able to work in a psychologically and physically safe work environment. The opportunity to grow and develop must not be hindered by ethnic, religious, age or gender biases or discrimination and the right to freedom of association is guaranteed. More importantly, the wages must be fair. The overall primary goal of the DWA is to promote opportunities for women and men to obtain decent and productive work in conditions of freedom, equity and human dignity. DWA is promoted through four critical pillars: standards, fundamental rights, and principles at work; promotion of employment and enterprise; social protection, and social dialogue.
I believe that the law is a framework that helps guide a nation into the type of society it desires, in this case, labour laws exist to bring about a particular standard of living. Is our employment and labour law framework optimised for the society we want?
It depends on how you want to look at it. From a narrow point of view of the principal labour legislation, I would say that it is not sufficient. As most people who practice in this space are aware, this piece of legislation is over 40 years old and only covers blue-collar workers.
However, if you look at it, holistically, it can be argued that the other pieces of legislation have created a legal framework that if implemented properly, provides a very robust system that can deliver on the DWA. I think that the third alteration to the constitution S254 (C) [granting the National Industrial Court primary jurisdiction over most employment and labour issues], remains the most significant quantum leap in our employment jurisprudence.
We have another piece of legislation known as the Employee Compensation Act. This, for me, is one of the better employment legislation that sets up a well-being fund for employees to be managed by the Nigeria Social Insurance Trust Fund (NSITF). However, as important, and as well thought out as it is, the implementation has been poor in terms of penetration, reach, awareness and advocacy.
Looking at the Labour Act itself, the Minister has wide powers under S88 to make regulations, but, I am not certain of the number of regulations that have been made by ministers of labour, past and present.
Recent analyses of the minimum wage vis-a-vis living costs reveal that the cost of basic food items, for an adult, is at least 30% over the minimum wage of N30,000. Shouldn’t the minimum wage cover basic living costs?
It is difficult to say but what is certain is no one survives on minimum wage because it is unrealistic. Perhaps, what we need to do is to create a safety nest quite apart from black tax. So, if in line with the DWA, there are social security measures in place like free health care, a benefit scheme for the unemployed or underemployed, and social housing, perhaps then, the concept of a minimum wage will work.
Employment contacts typically stipulate working hours, however, most include this clause “you may be required to work outside these hours …”, usually without extra pay. Given the concept of overtime, how does this work?
I am a bit flexible when it comes to this. For junior workers who work longer than their contracted hours, yes, I am of the view that they should be compensated, for many reasons, chief of which, is that they will normally earn less than management trainees and other senior members of staff.
For entry-level upwards, working more than contracted hours now and again is expected as you have to deliver on your targets. Also, it is a give-and-take thing. There are times when an employee may need to come in late, or not come in, at all. In some of these cases, the employee has used up all their leave allocation. So, as long as it is not a habit or excessive, then it is fine.
We know of organisations that shirk their workplace obligations to the employees. In your experience what are the top 3 employer-employee relationship issues?
The first is issues with the contributory pension scheme and taxes – the PITA and Pension Reform Act (PRA) are very clear on the punishment for failure to deduct and remit, so it is still a mystery why employers fail to do this. The major excuse I come across, with respect to pension, is that the employee did not provide a Retirement Savings Account (RSA). However, S(11)5 of the PRA is very clear on this, that if an employee fails to provide an RSA after 6 months, the employer should open a “nominal’’ RSA for the employee and deposit the contribution into the RSA.
Secondly, maternity leave and termination during maternity leave – the law is clear that an employee on maternity leave cannot have her employment terminated whilst on leave. In addition, maternity leave is not granted based on confirmation. It is an automatic right that imbues upon employment. However, maternity pay is subject to qualification based on time spent, as stipulated in S54 Labour Act. A lot of employers fail to draw this distinction.
Thirdly, we have had to deal with a lot of issues around suspension without pay. According to the law, if you do not expressly provide for such powers in the terms and conditions of employment, then you cannot suspend without pay.
Harassment, bullying and incivility in the workplace were major complaints during the time #horrible bosses trended. Are there remedies under Nigerian law for a toxic workplace environment?
This is one area where the third alteration and the expanded powers of the National Industrial Court, as well as, the activist and forward-thinking approach of the NIC have filled the gap. There are many options. The employee can come under unfair labour practices, which the NIC has powers under S254 (C ) of the constitution to look into. The employee can also bring a case for constructive dismissal meaning that the toxic condition has led to a breakdown of the implied terms of trust and confidence resulting in the employee’s inability to work or function under the circumstances. There have been constructive dismissals. Modilim Vs UBA is very clear on this principle.
Mental health is in the foreground now. Various labour laws including the Labour Safety Health and Welfare bill require an employer to provide preventive measures and mechanisms to ensure a healthy, safe, and non-hazardous workplace environment. Can these provisions be interpreted to address mental health issues arising from a toxic workplace environment?
Definitely yes! There is a duty now to provide a psychological and physically safe and healthy work environment. Section 8 of the Employee Compensation Act recognises mental illness caused by events in the workplace and this suffices to create an obligation on the employer.
Read also: Young Business Lawyer Spotlight
Does the government have an obligation to provide jobs for the residents of the country?
The government has a role to play in creating jobs and that is by creating the right environment through policies and legislation. This can lead to job creation directly and indirectly. If Government creates and funds public schools, they will create jobs directly and indirectly. So yes, the Government can and should.
According to the Nigerian Bureau of Statistics, youth unemployment as of Q4 2020 for people aged 15 to 24 stood at 53.4 percent and at 37.2 percent for people aged 25 to 34. Do you think the Nigerian Youth Empowerment Action Plan has adequately catered to this?
No, I do not think so. Like with most things in Nigeria, they are always well thought out but we lack the discipline and political will to implement them.
Some say there is an “imagination gap” between the future that policymakers desire for youth and what the youth desire for themselves. Do you agree with this?
Yes, I agree absolutely. From the EndSars protest, what became clear was that there is a disconnect between the youths and the policymakers.
Youth unemployment is a vicious cycle. Those who remain unemployed for extended periods can’t acquire the skills necessary to become employed and as such are unlikely to remain unemployable. How can public-private alliances alleviate this?
Public-private alliances are very critical for human capital development and skills acquisition. Lagos state Skills Acquisition Programme, as well as the Employment Trust Programme, are examples of some initiatives that have been very successful.
Also, EDOJOBS in Edo state is a very good example of how such initiatives can drive skill acquisition and employment. I am of the firm belief that such templates should be replicated across the country.
Many are predicting a recession. What is the obligation of the government in a recession as it relates to job security?
The government will have to look at its fiscal policy framework and perhaps, look at reducing taxes to create more spending power for the populace. In addition, the government may take the option of spending on infrastructure to create jobs as another option of exiting a recession.
During the pandemic, there was an increase in the likelihood of 1.6 billion informal sector workers slipping into poverty, globally. Over 60% of Nigeria’s economy is in the informal sector, what can be done to cushion this, in the event of a recession?
I had mentioned social safety nest earlier as a form of social protection. This is a veritable model for cushioning the effect. In this area, I think that the recent policy and regulations issued by PENCOM on micro pension scheme for the informal sector is very critical. However, it would seem that there is not enough advocacy and therefore, the rate of penetration has been very slow. I am of the view that a lot of enlightenment and engagement of the informal sector need to be done to get buy-in.
What loopholes in our labour laws can we address to improve the labour climate in Nigeria?
The majority of the labour legislations are well thought out bar the principal legislation which is the Labour Act. The biggest challenge is that the Act creates a dual application model, as it would seem that based on the definition, some of the provisions of the Act do not apply to white-collar employees. For instance, where the Act mentions ‘Worker’, it only applies to workers as defined under section 88 of the Act but where it mentions ‘’Person’, it applies to everyone. A simple solution would be to use the word ‘employee’ as opposed to “worker” or to amend the Act to state that where the word “worker” is used, it covers both workers and employees alike, thus mirroring the definition of employee in the Employee Compensation Act.
In general, Nigerians have little faith in legal remedies, and thus gross violations of labour and employment laws remain unaddressed. What remedies can they pursue, successfully?
What people need to understand is that there is a new Sheriff in town and the Sheriff (NIC) is not taking prisoners. With the regular courts, they were bogged down by common law principles of master-servant relationships. Such principles include that the employer could terminate for any reason or no reason. However, the NIC has powers to apply not only ratified and domesticated conventions but can also apply undomesticated conventions and treaties by treating them as international best practices, as long as they are pleaded. In addition, the Court has also elevated the concept of compensation from the common law principle of a one-month salary as compensation for unfair and unlawful termination. Of recent, the NIC has awarded compensation of two years’ salary in NICN/LA/90/2014 between Abdul-Hakeem A. Olasewere (“Claimant”) v. Airtel Networks Limited ( decided on the 7th of April 2022). With the NIC, the timeframe for concluding matters has drastically reduced and the court is not bogged down by technicalities.
You are the Chairman of the NBA-SBL ELIR Committee. Is it part of the mandate of your committee to educate the people on their rights? In what ways do you execute this?
Advocacy and education. For us, in NBA-SBL ELIR these two pillars are very critical. We have partnered with Businessday using the Digital Conversations platform to organise webinars that deal with everything employment law. We also organise free training for lawyers and non-lawyers as a way of building capacity, as some lawyers are still stuck in the time warp of common law when it comes to employment law.
We are currently having discussions with the hierarchy of the National Industrial Court on setting up a bar and bench forum strictly for employment law. The idea is for all stakeholders to come together and discuss some of the far-reaching decisions of the NIC and how these decisions impact the various stakeholders.
