Entorno educativo, la comunidad educativa

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6. right to compensation for injuries incurred in the course of employment;

Unfortunately, it is practically difficult to understand how enforceable these rights are made available to these classes of workers due to the following reasons:

1. our laws do not define who economically dependent workers are neither do they prescribe any criteria for identifying them;

2. the institutions responsible for the enforcement the rights are not effectively carrying out their duties.

3. these workers do not fully appreciate their right under the law.

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Workers³⁴⁸ the court held that the dismissal of the chairman of the workers union, because of his union activities violated his right to freedom of association.

However, it is unfortunate to underscore that this constitutional status has been denied casual workers in Nigeria. Employers have continued to violate this constitutional right with impunity because there are no provisions for sanctions by the state against erring employers. In fact, attempts by unions in the industry to organize contract workers and negotiate on their behalf are sometimes met with sack threat and police violence.³⁴⁹

The Nigerian Labour Act does not define what casualisation is and does not provide a legal framework for the regulation of the terms and conditions for this arrangement. This is a motivating factor for the increasing use of casualisation by employers.³⁵⁰ The Act defines a worker to mean ‗any person who has entered into or works under a contract with an employer, whether the contract is for manual labour or clerical work or is expressed or implied or oral or written and whether it is a contract personally to execute any work or labour.

Many writers agree that this definition is rather narrow as it does not recognize workers in non-standard work arrangements.³⁵¹ This is more so because the Labour Act was enacted in an era when non-standard work was unknown to the Nigerian labour relations. However, over the years, several calls on the legislature for the amendment of the Act have fallen on deaf ears. Section 7 (1) of the labour Act provides that:

348NIC/3/86; Digest of Judgments of National Industrial Courts (NIC) 1978 – 2006, p 187.

349‗The Degradation of work: Oil and Casualisation of Labour in the Niger Delta‘ (A Report by the Solidarity Center Washington, DC 2016) p. 14, http://www.solidaritycentre.org, accessed 20/09/2017.

350D T, Eyongndi, ‗An Analysis of Labour under Nigerian Law‘ (2016)7.Grantas Review of Business & Property Law, No.4, p 108.

351Ibid see also C S, Ibekwe Op.cit,p. 83, see also P S, Christopher, O B, Ifeanyichukwu & D T O, Kizito ‗Casualisation of Labour Laws: A Critical Appraisal‘, International Journal of Innovative Research in Social Sciences &

Strategic Management Techniques, vol.4 No.1 (2017) p 43.

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1. 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

(a) the name of the employer or group of employers, and whereappropriate of the undertaking by which the worker is employed?

(b) the name and address of the worker and the place and date ofhis engagement;

(c) the nature of the employment;

(d) if the contract is for a fixed term, the date when the contractexpires;

(e) the appropriate period of notice to be given by the party wishingto terminate the contract due regards being had to section 11 ofthis Act.

(f) the rates of wages and method of calculation thereof and the manner and periodicity of payment of wages.

(g) any terms 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 provisions for sick pay; and (h) any special conditions of the contract.

2. If after the date to which the said statement relates there is a change in the terms to be included or referred to in the statement, the employer -

(a) shall, not more than one month after the change, inform theworker of the nature of the change by a written statement; and

(b) if he does not leave a copy of the statement with the worker,shall preserve the statement and ensure that the worker hasreasonable opportunities of reading it in the course of hisemployment, or that it is made reasonably accessible to theworker in some other way.

3. A statement under subsection (1) or (2) of this section may, for all or any of the particulars to be given by the statement, refer the worker to some other document which the worker has reasonable

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opportunities of reading in the course of his employment or which is made reasonablyaccessible to the worker in some other way.

4. If the employer, in referring in the said statement to any such document, indicates to the worker that future changes in the terms particularized in the document will be entered in the document or recorded by some other means for the information of persons referred to in the document, the employer need not under subsection (2) of this section inform the worker of any such change which is duly entered or recorded not more than one month after the change is made.

5. If not more than six months after the termination of a worker's period of employment, a further period of employment is begun with the same employer and the terms of employment are the same, no statement need be given under subsection (1) of this section in respect of the second period of employment, so however that this subsection shall be without prejudice to the operation of subsection (2) of this section if there is a change in the terms of employment

The provisions of this section in respect of written statementsshall not apply if-

(a) a worker has a written contract of employment which coverseach of the particulars mentioned in subsection (1) of this section;and

(b) he has a copy of that written contract.

This shows that a worker should not be employed for more than three months without a formal recognition of such employment. Every worker must be given a written statement stating the terms and conditions of his employment within 3 months of being employed. This was upheld in the case of Management of Harmony House Furniture Company ltd v. National Union of Furniture, Fixture and Wood Workers.³⁵² Some companies have devised means to undermine this provision by employing casual workers for three months or less, dismissing them, requesting new applications and

352Supra

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re-employing them again.³⁵³ Most legal scholars³⁵⁴ agree that section 7(1) of the labour Act does not apply to non-standard employment. Trade unions, on their own part, interpret the section to mean that if workers are employed for over three months, then they cease to be casual or contract workers and should be made permanent employees.³⁵⁵ While the researchers appreciate the plight of trade unions,³⁵⁶ the writers distance themselves from their conclusion that the labour Act in section 7 envisages casual labour. However, where workers have been in the employment of their employer for a continuous period of time, it will be wrong to tag them as casual workers so as to deny them their workplace rights. This view was upheld by the National Industrial Court Nigeria in the case of OlabodeOgunyale& 64 Ors v. Globacom Nigeria Ltd³⁵⁷. The claimants were employed as drivers by the defendant in 2003. Five years later, they were suddenly informed that they have been outsourced to another company. They claimed that the defendant also denied them their labour benefits such as sick leave, annual leave, etc. They prayed the court to declare the outsourcing as unjust and illegal and to recover all their labour benefits from the employer. This was substantially granted by the NICN. According to the court:

The point is that there is no legislation in place in Nigeria recognizing, regulating or protecting casual workers. The evidence before the court indicates that the claimants had worked continuously for the respondent as employer and the respondent made varying statutory deductions including PAYE, NSITF, etc. when all these are added to the fact that the labour Act is silent on the issue of casual workers, the claimants, in our opinion, qualify as permanent employees, not as

353 C S, Ibekwe, Op.cit, p

354Ibid, see also P S, Christopher et al, Op.cit, p 110.

355Ibid.

356 A, Alfred ‗Casualisation of Work: How Nigerians are being Enslaved‘ The Independent, 15^th June, 2015 available at http://independent.ng/casualisation-nigeria-enslaved-3/accessed on 20/09/2017, see also T, Agboola ‗Union Decries High Rate of Casualisation‘ The Nation August 11, 2017 available at http//thenationonlineng.net/ union-decries-high-rate-casualisation/ accessed on 20/09/2017.

357 Suit No: NICN /30/ 2008 delivered 2012/12/13

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casual workers and so should be accorded all the workplace rights envisaged by the labour Act and we so hold.

The period of time within which a worker needs to spend in the employment to qualify him as a permanent worker is not certain. It depends on the circumstances of each case. Thus, there is need still for a legislative intervention. This uncertainly is absent in some jurisdictions. In some jurisdictions, there are guides for determination of casualisation of work.

In Ghana, a casual worker is defined as a worker engaged on a work which is seasonal or intermittent and not for a continuous period of more than six months and whose remuneration is calculated on a daily basis.³⁵⁸ The Act also provides that the contract of a casual worker need not be in writing³⁵⁹ and he must be employed continuously or intermittently for less than 6 months per year.³⁶⁰ A casual worker must be given equal pay for equal work.³⁶¹ It is submitted that although the problem of the Ghanaian casual workers lies with the poor enforcement of the Labour Act, their legal status is comparably defined than the casual workers in Nigeria.

By virtue of section 73 of the Employees Compensation Act, an employee means ‗a person employed by an employer under oral or written contract of employment whether on continuous, part-time, temporary, apprenticeship or casual basis‘. Happily, it is clear from the above definition that casual labour has received some sort of statutory recognition. In the case of Abel v. Trevi Foundation Nigeria Limited,³⁶²the NICN relied on the above definition to hold that the claimant who was employed by the defendant as a contract staff is an employee of the defendant and therefore entitled to compensation for injuries sustained in the course of employment with the defendant. It was in

358Labour Act, No.651, 2003, (Ghana) section 77.

359Ibid, Section 74 (1).

360J, Barrientos, N, Anarfi, A, Lamhange, N, Castaldo& N A, Anyidoho, ‗Social Protection for Migrant Labour in the Ghanaian Pineapple Sector‘, Working Paper. Published by Development Research Centre on Migration September 2009, p. 30 available at http://www.migration,globalisation Arts C-226 University of Sussex Brighton BNIGSJ accessed 20/09/2017.

361Op cit, Section 74 (2)(a)

362 Unreported Suit No: NIC/PHC/55/2013 delivered on 26^th June, 2014.

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relation to this that a learned writer³⁶³ thought that the Nigerian labour regime has adequately covered casualisation of labour. Similarly, another writer³⁶⁴ suggests that even though there is no statutory protection for casual workers under the Nigerian Labour Act, the Employees Compensation Act should be relied upon to furnish a more encompassing definition of employees to as to protect them.

However, with due respect, the researchers disagree with both writers. First, a particular labour statute does not apply to every employee at common law. Each statute determines the employees to whom it may apply. An employee who does not fall within a given definition in a statute or who is expressly excluded by a statute cannot claim a benefit under a statute nor be made liable there under.³⁶⁵ Secondly, a perusal of sections 1 and 2 of the Employees Compensation Act reveals that the scope of the Act basically deals with compensation for any death, injury, disease or disability arising out of and in the course of employment. This is comparably narrow in relation to the scope of the labour Act. Thus, the interpretation of the labour Act must be guided by the spirit and letters of its own scope otherwise it can be challenged by any person whose interest is at stake.³⁶⁶ Thirdly, a careful study of the case³⁶⁷ cited by the two writers in support of their views reveals that the claim was basically for compensation for injuries sustained in the course of employment so that the ECA rightly applied to interpret the contract staff as employee of the defendant company. This is because the scope and application of the Act as provided in section2 and 3 of the E.C.A is very clear.

Therefore, it is submitted that while the definition of an employee under the ECA is commendable, its application is limited to the scope of the Act. For a casual worker to enjoy this definition in cases other than compensation for injuries, etc., the labour Act must be amended.

363 D T, Eyongndi, Op.cit pp 109, 110, see also Oserogho& Associates ‗Casual Contract Employees in Nigeria-Any Legal Rights?‘ September, 2016 available at

https://www.humanresourcemag.com/news/417/casual-contract-employees-en-nigeria-any-legal-rights, accessed 20/09/2017.

364 C S, Ibekwe, Op.cit, p 83

365 E E, Uvieghara, Labour Law in Nigeria (Ikeja: Malthouse Press Limited, Ikeja, 2011) p 11.

366 See A-G, Ondo v. A-G, Federation (2002)9 NWLR (Pt.772)241.

367Abel v. Trevi Foundation, Supra

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Section 1 of the Trade Unions Act guarantees the right to freedom of association through the formation or joining of trade unions. This is in line with the constitution and the African Charter on Human and people‘s rights.³⁶⁸ The right is available to both casual and permanent workers in Nigeria. This was upheld in Patovilki Industrial Planners Limited v. National Union of Hotels and Personal Services Workers.³⁶⁹ In practice, however, workers in casual employment are not usually permitted to unionise, hence, they lose their rights to collective bargaining.³⁷⁰ Absence of right to unionise has a consequence of depriving causal workers the benefits of collective agreements.