Jamiu Akolade
The recognition of casual employment by the law is not a validation of the practice of casualisation which appears to be tolerated due to socio-economic considerations.
Casual employment (also known as Non-Standard Work Arrangement (NSWA) is a term commonly associated with employment relationships characterised by non-permanent status of the employee or successive term contract arrangements such as fixed contract, contract work, on-call work, part-time and temporary work.
One of the defining features of such work arrangements is the deprivation of job security and other social security in the form of pensions, health and life insurance, etc. which would normally accrue to a permanent employee.
Although there is no statutory definition of ‘casualisation’ or ‘casual work’ under the Labour Act, the Act provides that a worker should not be employed for more than three months without the formal recognition of such employment evidenced by a written statement stating the terms and conditions of employment by the employer.
However, in Owena Mass Transportation Co. Ltd v. Okonogbo , the Court of Appeal defined a casual employee as a worker engaged for a period of less than 6 months and who is paid at the end of each day.
With regard to compensation for death, accidents and injuries arising from the workplace, the Employees Compensation Act (ECA) defines an employee as:
“…a person employed by an employer under [an] oral or written contract of employment whether on a continuous, part-time, temporary, apprenticeship or casual basis and includes a domestic servant who is not a member of the family of the employer including any person employed in the Federal, State, and Local Governments, and any of the government agencies and in the formal and informal sectors of the economy”.
What the definition above suggests is that the definition of worker in the Labour Act has been expanded to include casual employment in the limited instance of entitlement for the protections afforded employees under the ECA.
To that extent, casual work appears to be recognised under Nigerian law and casual workers are guaranteed compensation for any death, accidents or injuries occurring in the workplace. In Abel v. Trevi Foundation Nigeria Limited , the Court held that a contract staff was entitled to compensation for injuries he sustained in the course of his employment with the defendant company by relying on the definition of employee under section 73 of the ECA.
The National Industrial Court of Nigeria has also upheld the right of casual workers to form and join trade unions. In Patovilki Industrial Planners Limited v National Union of Hotels and Personal Services Workers, the Court was faced with a case where a trade union sought to unionise the casual workers of the defendant company. The company opposed the unionization on the ground that they were casual workers.
The trade union declared a trade dispute which went to the Industrial Arbitration Panel. The Industrial Arbitration Panel gave a ruling which was upheld by the NIC to the effect that the definition of workers under section 1 (1) of the Trade Unions Act accommodates both permanent and temporary workers and that casual workers being in the nature of temporary workers, they cannot be deprived of their statutory and constitutional right to join a trade union of their choice.
In Fatai Oyekunle v Abel Sell Ltd , the National Industrial Court of Nigeria branded an arrangement where a worker is not given a contract of employment and treating such worker as a casual worker as ‘demeaning, otiose and no longer an acceptable terminology of description of any Nigerian worker no matter how lowly placed within the current Nigerian Labour and Employment legal regime’.
The National Assembly is close to passing a bill to amend the extant Labour Act to prohibit and criminalise the casualisation of workers after six months of engagement. The bill, when assented to, would mandate the regularisation of employees after six months of employment.
The use of fixed term or successive contracts by employers to avoid granting casual workers permanent status has also come under scrutiny by regulators. In certain industries, measures are being taken to stem the exploitation of casual workers.
For instance, in the oil and gas industry, the Ministry of Labour and Productivity has issued Guidelines on Labour Administration Issues in Contract Staffing/Outsourcing in the Oil and Gas Sector 2011 (the Guidelines) which restricts outsourcing to non-core business of the company except for short term projects and grants a right of first refusal to contract staff to fill vacancies for permanent positions before such vacant positions are advertised, where they meet the recruitment requirements.
It also grants contract staff the right to unionise and bars employers from hindering such workers from joining trade unions.
Similar Guidelines exist for workers in banks, insurance and other financial institutions. The Guidelines require that every category of employees should be given opportunities for self-development and growth in their career path including annual salary increments for all categories of employees, opportunity for career advancement/promotion not later than three years and an opportunity for regular employment where vacancies exist in line with the end user company’s recruitment standard.
It also provides for unionisation, disciplinary procedures, compliance with standards and labour requirement, exit procedure, and benefits.
Jamiu Akolade, MCIArb, is the Founder of The Employment and Labour Lawyers Association of Nigeria (ELLAN), Member Management Commitee of the African Labour Law Society and the Author of The Employment Law Handbook.
Source: Businessday.ng | Read the Full Story…
