By: Yomi Fawehinmi

May 1st is Workers’ Day in Nigeria. This day is to recognize workers and focus attention on workplace issues. Congratulations to all workers, and I wish you well on a day like this.

As we celebrate Workers’ Day in Nigeria, it is essential to reflect on the status of workers and their rights in the country. One of the critical factors that can affect workers’ treatment and benefits is their employment status. Are you sure that you are classified correctly as an employee in the eyes of the law?

This post will explore why understanding your work status is crucial and how to determine it. We must all ask ourselves if we are indeed workers, employees or contractors in the eye of the law. You may be going to work, but you are not a worker based on our laws. So let me help to define a few things.

Are you a worker?

Section 91(1) of the Labour Act in defining “worker” provides thus:

“worker” means 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 of service or a contract personally to execute any work or labour, but does not include-

(a) any person employed otherwise than for the purposes of the Employer’s business; or

(b) persons exercising administrative, executive, technical or professional functions as public officers or otherwise; or

© members of the Employer’s family; or

(d) representatives, agents and commercial travellers in so far as their work is carried on outside the permanent workplace of the Employer’s establishment; or

(e) any person to whom articles or materials are given out to be made up, cleaned, washed, altered, ornamented, finished, repaired or adapted for sale in his own home or on other premises not under the control or management of the person who gave out the articles or the material; or

(f) any person employed in a vessel or aircraft to which the laws regulating merchant shipping or civil aviation apply.

So, you may be working but you are not a worker. This law excludes based on the following,

· You may not be a worker based on the relationship you have with the employer. For example, the “members of the Employer’s family”

· The type of job you do.

· Where the job is performed.

Are you really an employee?

Section 91 of the Labour Act Cap L1 LFN 2004 (the “Labour Act”) defines a “worker,” for purposes of the Labour Act, as:

“… 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 of service or a contract personally to execute any work or labour ….”

But while the Labour Act, is the principal legislation governing employment issues in Nigeria, it doesn’t define an employee but defines a worker. I wonder why this is the case.

Section 91 of the Labour Act makes matters worse by excluding some categories of persons from provisions of the Labour Act. So, “persons exercising administrative, executive, technical or professional functions as public officers or otherwise”, are not covered by the Labour Act.

Section 54(1) of the National Industrial Court Act defines an employee as: “a person employed by another under oral or written contract of employment whether on a continuous part-time, temporal or casual basis and includes a domestic servant who is not a member of the family of the employer”.

This definition expands an employee’s meaning and protects part-time, temporary and casual workers. In addition, under this law, the definition of “employee” includes domestic staff and household employees.

Working in an organization does not make you an employee because you can have an employment relationship but not be an employee. There are several distinctions that you should have in mind. Are you in a

· contract of service, which makes you an employee. That is, you are hired as an individual to work.

· Contract for service makes you an independent contractor. In this case, you are not employed as an individual but as a service provider. For example, you can be employed to provide cleaning or laboratory service.

The Supreme Court in Shena Security Co. Ltd v. Afropak (Nig.) Ltd & ors [2008] 4–5 SC (Pt. II) 117 showed that there are grey areas (borderline cases) between employees and independent contractors. Thankfully, on pages 128 to 130, the Supreme Court lays down the factors that should guide courts in determining which kind of contract the parties entered. The factors are:

(a) If payments are made by way of “wages” or “salaries” this is indicative that the contract is one of service. If it is a contract for service, the independent contractor gets his payment by way of “fees”. In like manner, where payment is by way of commission only or on the completion of the job, that indicates that the contract is for service.

(b) Where the Employer supplies the tools and other capital equipment there is a strong likelihood that the contract is that of employment or of service. But where the person engaged has to invest and provide capital for the work to progress, that indicates that it is a contract for service.

© In a contract of service/employment, it is inconsistent for an employer to delegate his duties under the contract. Thus, where a contract allows a person to delegate his duties there under, it becomes a contract for services.

(d) Where the hours of work are not fixed it is not a contract of employment/of service. See Milway (Southern) Ltd v. Willshire [1978] 1 RLR 322.

(e) It is not fatal to the existence of a contract of employment/of service that the work is not carried out on the Employer’s premises. However, a contract which allows the work to be carried on outside the Employer’s premises is more likely to be a contract for service.

(f) Where an office accommodation and a secretary are provided by the Employer, it is a contract of service/of employment.

Justice Kanyip addressed this, “The point is that section 91(1) defines a worker only for the purposes of the Labour Act; as such, not all employees are workers for purposes of the Labour Act. The category of persons under paragraphs (a) to (f) of the definition of a worker may thus be employees but not workers for purposes of the Labour Act. Section 91(1) of the Labour Act defines a worker by reference to an employer i.e., as one who entered into or works under a contract with an employer.

Who is an employer?

The law in section 91(1) defines an “employer “ to mean “any person who has entered into a contract of employment to employ any other person as a worker either for himself or for the service of any other person, and includes the agent, manager or factor of the first-mentioned person and the personal representatives of a deceased employer”.

Section 91(1) defined a “contract of employment to mean “any agreement, whether oral or written, express or implied, whereby one person agrees to employ another as a worker and that other person agrees to serve the employer as a worker.”

So, an employer can employ you for someone else. For example, if a man employs a driver for his mother, then the man is the employer and not the mother. So, who is your employe?

Can an employer deny an employee?

There have also been cases where employers have denied their employees like in the popular case about the nature of employment of Supernumerary Policemen and other matters. The case, Mobil Producing Nigeria Unlimited v Okon Johnson & Ors. Appeal No. SC/33/2010 on Friday, 20th day of April 2018, was a contest between the Mobil and its employees who were Supernumerary Policemen.

The court held that the Supernumerary Policemen were employees of Mobil and not of the Police Service commission. “As was observed by the court below at page 953 of the record of appeal: “undoubtedly, the hood does not make the monk. The fact that the appellants were described as Spy Police Mobil Producing Nigeria and were adorned with the Nigeria Police uniforms and other paraphernalia cannot make them Nigerian policemen.” They (Mobil) ought to know that what confers the status of supernumerary police officer on a person is not the wearing of uniform or being called policemen, it is in the process of his recruitment, whether same was done in line with the provision of statute establishing or creating the force. (Page69–70)

Justice Inyang Okoro, JSC expressing his disappointment with both Mobil and the Police said in page 68 of the judgement : “the appellant is a big company with one of the best legal departments available. The Nigeria police also has a robust legal department. Why was it not necessary for the two organizations to consult their legal departments before messing up the entire process?”. He went on and said, that Mobil and the Inspector General of Police, “ In other climes, they would bury their head in shame and allow sleeping dogs lie.”

Is an Uber Driver an employee of Uber in Nigeria?

Gig workers like the drivers of e-hailing taxis like Uber have approached the courts to determine their status. In some countries, they have been accorded the status of employees but have yet to be in NIGERIA. HON. JUSTICE B. B. KANYIP, PHD in the case between Oladapo Olatunji, Daniel John ((Representing themselves and otherUber and Taxify Drivers in Nigeria in a Class Action) AND Uber Technologies System Nigeria Limited, Uber B. & Taxify Technology Nigeria Limited held the drivers “did not prove their case. What the claimants put before the Court as their case is nothing but one that is in the main speculative, conjecture, academic and hypothetical. “

However, in 2022, a significant step was taken as Nigeria officially unionized the Amalgamated Union of App-Based Transport Workers of Nigeria (AUATWON) and presented a letter of approval of registration to them. This is noteworthy because the Unionization of the informal sector in Nigeria s new and the same as the unionization of self-employed workers. With this registration, these drivers can enjoy trade union rights, defend their interests, including collective bargaining, and likely make more court cases.

So, if I am not covered by the Labour Act Cap L1 LFN 2004 (the “Labour Act”), what protection do I have?

You are principally guided by the terms of your employment contract including collective agreement in your industry. However, you are still provided protection based on the Constitution, the NIC law and other labour related laws.

What protection does an Employee have?

Several laws and conventions are available to protect an employee. They include the 1999 Constitution, the Universal Declaration of Human Rights, the International Covenant on Civil and Political Rights, the International Covenant on Economic and Cultural Rights, the Convention on the Elimination of all Discrimination Against Women and the African Charter on Human and Peoples’ Rights. The National Industrial Court of Nigeria (NICN) can apply these rules and laws.

Let me state the key ones.

Section 17(3) in Chapter II of the 1999 Constitution:

The State shall direct its policy towards ensuring that —

(a) all citizens, without discrimination on any group whatsoever, have the opportunity for securing adequate means of livelihood as well as adequate opportunity to secure suitable employment;

(b) conditions of work are just and humane, and that there are adequate facilities for leisure and for social, religious and cultural life;

© the health, safety and welfare of all persons in employment are safeguarded and not endangered or abused;

(d) there are adequate medical and health facilities for all persons;

(e) there is equal pay for equal work without discrimination on account of sex, or on any other ground whatsoever;

(f) children, young persons and the age are protected against any exploitation whatsoever, and against moral and material neglect…

The Universal Declaration of Human Rights:

Article 23

(1) Everyone has the right to work, to free choice of employment, to just and favourable conditions of work and to protection against unemployment.

(2) Everyone, without any discrimination, has the right to equal pay for equal work.

(3) Everyone who works has the right to just and favourable remuneration ensuring for himself and his family an existence worthy of human dignity, and supplemented, if necessary, by other means of social protection.

(4) Everyone has the right to form and to join trade unions for the protection of his interests.

Article 24

Everyone has the right to rest and leisure, including reasonable limitation of working hours and periodic holidays with pay.

Article 25

(1) Everyone has the right to a standard of living adequate for the health and well-being of himself and of his family, including food, clothing, housing and medical care and necessary social services, and the right to security in the event of unemployment, sickness, disability, widowhood, old age or other lack of livelihood in circumstances beyond his control.

What are Workplace rights?

Workplace rights include the right to work and be paid fair wages. Section 17(3) in Chapter II of the 1999 Constitution list other rights, including the right to safety at work ad not to be discriminated against. It also includes the right to be provided work and treated with respect. In Adesanya Adeyemi Joachim v. Union Registrars Limited (unreported Suit No. NICN/LA/139/2014), the judgment of which was delivered on December 17th, 2019, at, the NIC recognized the right to be given work once employed in these words:

“…employee rights are not just about salary alone but include the right to work itself. The International Labour Organization’s (ILO’s) concept of decent work is not just about salary but includes the content and decency of the work itself. It is from this that the notion of dignity of labour derives. An employer cannot treat an employee shabbily and turn around to justify same by merely arguing that salary was not thereby stopped. Such an employer should not expect a pat on the back from this Court. Accordingly, the submission of the defendant in this regard is unsustainable. It reveals the defendant’s ignorance, as an employer, of what today’s labour law is all about.”

Is there a court dedicated for labour and Employment issues?

The National Industrial Court of Nigeria (“NICN”) has jurisdiction over labour and employment disputes. On March 4th, 2011, the President of the Federal Republic of Nigeria assented to the Constitution (Third Alteration) Bill, 2010, which amended the 1999 Constitution to include the NIC in the relevant sections of the Constitution.

A new section 254A was inserted into the Constitution, and it reads thus:

254A-(1) there shall be a National Industrial Court of Nigeria.

(2) The National Industrial Court shall consist of:

(a) President of the National Industrial Court; and

(b) such number of judges of the National Industrial Court as may be prescribed by an Act of the National Assembly.

By the provision of section 254 A (1) & (2) a new court called the National Industrial Court of Nigeria (NICN) is created to replace the former National Industrial Court.

This unique Court has some peculiarities.

1. The NIC is a creation of the Constitution in section 6 of the Constitution, which lists the NIC as one of the superior courts of record (sub-section 5 (cc), 84(4), 240,243, 287, 289, 292, 294, 295, 316, 318, the Third Schedule to the Constitution and the Seventh Schedule to the Constitution).

1. The Court can only hear questions as to what amounts to labour and employment disputes; the claim must directly relate to, arise from, or be connected with, labour and/or employment.
2. Employment/labour law is not the same as commercial law. According to Arturo Bronstein in International and Comparative Labour Law: Current Challenges (Palgrave Macmillan 2009 at pages 1–2):” …the goal of labour law is to ensure that no employer can be allowed to impose — and no worker can be allowed to accept — conditions of work which fall below what is understood to be a decent threshold in a given society at a given time. Thus, labour law is…the principal means to operationalize… ‘decent work’, which, in addition to protecting the worker, calls for the respect of democracy in overall labour relations, including at the workplace.”
3. This court operates faster then other courts in Nigeria. The President said, “As a specialized Court, so long as justice is not sacrificed, the dictates of labour justice requires that we be guided by principles of flexibility and speed when adjudicating. Statutory provisions have been made to ensure this as can be seen in section 37(3) of the TDA and province 12 of the NIC Act 2006. The slogan, “it is better to get a bad judgment quickly than a good one too late”, a variant of the adage, “justice delayed is justice denied”, typifies the basis upon which we adjudicate labour disputes. … In labour adjudication, speed may kill hopes/expectations, but it allows for a quick readajustment to the new reality. Belated legal expectations, even if are expressive of the litigant’s rights, may in practice be insignificant and meaningless. A litigant in a labour dispute can easily readjust to a bad decision. A good decision coming years after makes little meaning to him. And cases such as Obiuweubi v. CBN [2011] 7 NWLR (Pt. 1247) 465 SC, where it took 23 years to resolve the issue of jurisdiction between the Federal High Court and the State High Court over an employment dispute, are a case in point. A dispute resolution system typified by this sort of justice system cannot be effective or mean much.”
4. The Court cannot hear any other cases, even of close to employment issues. For example, in Cornelia Marsh-Okoro v. Swiss Pharma Nigeria Limited (NICN/LA/205/2021), the Court declined jurisdiction for unpaid commissions based on a distributorship relationship between an employer and a former employee, which amounts to a labour and/or employment dispute. Also, in Akpan v. University of Calabar (2016) LPELR-41242(CA), the Court of Appeal affirmed the decision of the NICN, which declined to entertain a claim for defamation on the basis that a defamation claim, “stands on its own” and “cannot be considered as being ancillary to a claim for wrongful dismissal”.
5. The Court can sit on issues that are not justiciable as in Chapter II of the Constitution 1999 Constitution because S 254C(1)(f), (h) and (2) of the 1999 Constitution permits the NICN to apply international best practices in labour, and Conventions, Treaties, Recommendations and Protocols ratified by Nigeria when adjudicating. So, workplace rights enshrined in Chapter II of the 1999 Constitution can be justiciable at only the NICN in virtue of the Nigerian ratified Conventions.
6. Section 254C (3) of the 1999 Constitution permits the NIC to establish an Alternative Dispute Resolution Centre within the Court premises on matters which jurisdiction is conferred on the court by this Constitution or any Act or Law. So that can be a faster way to get justice in this Court.

What are unfair labour practices in Nigeria?

Hon. Justice Benedict Kanyip and other justices of the National Industrial Court of Nigeria have expanded the Nigerian labour law jurisprudence significantly by relying on section 7(6) of the NIC Act 2006 and section 254C(1)(f) and (h), and (2) of the 1999 Constitution which empowered the NIC to apply international best practice in labour, and conventions, treaties, recommendations and protocols ratified by Nigeria. Hon. Justice Benedict Kanyip says the Court have held the following to be an unfair labour practice:

– for an employer to compel an employee to bank with a specified bank chosen by the Employer (Mr. Olabode Ogunyale & ors v. Globacom Nigeria Ltd unreported Suit No. NIC/LA30/2008 the judgment of which was delivered on December 13th 2012);

– for an employer to dictate to an employee where to invest his/her computed gratuity benefit (Aghata N. Onuorah v. Access Bank Plc [2015] 55 NLLR (Pt. 186) 17);

– an employer holding the certificates of an employee as security for the employment of the employee on terms that it will not be released until the Employer no longer desires the services of the em-ployee; a vindictive suspension and/or vindictive denial of promotion (Mrs. Abdulrahaman Yetunde Mariam v. University of Ilorin Teaching Hospital Management Board & anor [2013] 35 NLLR (Pt. 103) 40 NIC); etc,”

What are Statutory Contributions in Nigeria?

Statutory contributions refer to the amount mandated by law to be made by both employers and employees, failure to make these payments before deadlines would incur fines and penalties. These contributions are made to bodies like the National Pension Commission, the National Health Insurance Scheme, and the Industrial Training Fund. Employers must deduct and remit different amounts to the relevant agency.

There are three major types in Nigeria.

1. Statutory contributions to be made by both employees and employers in Nigeria.
2. Statutory contributions to be made by employers alone.

– Personal Income Tax: Personal Income Tax involves the charge on the income of individuals, trustees, and executors. In Nigeria, the two key legislations are the Personal Income Tax Amendment Act 2011 and the different Finance Acts. The Employer deducts the tax under the PAYE Scheme.

– National Health Insurance Scheme (NHIS): An employer and employee pay on behalf of the employee for his health.

– National Housing Fund (NHF): The Employer is to deduct the NHF contribution at a 2.5% rate of employees’ monthly basic salary and remit it to the Federal Mortgage Bank of Nigeria (FMBN). This changed in 2023.

– Pension Fund: The Pension Reform Act established a scheme where the Employer and employee contribute a minimum of 10% and 8%, respectively, of the employee’s monthly Compensation. An employer can decide to bear the full responsibility of contributing the entire amount and has to pay at least 20% of the employee’s monthly pay.

– Industrial Training Fund: The Employer pays alone and can claim a refund of up to 50% of the amount contributed if employees receive appropriate training.

– Nigeria Social Insurance Trust Fund: Employers contribute 1% of employees’ monthly payroll to the NSITF in line with the Employees’ Compensation Act (ECA) 2010. This is to provide Compensation for workers or their dependents in the event of death, injury, disease, or disability arising out of or during employment.

What are the sources of employment law in Nigeria?

Nigeria has an array of international conventions, treaties, agreements and protocols relating to labour, employment, workplace, industrial relations etc. There are also different laws about the workplace. Some of these laws are focused on employment and labour issues alone while others have implication for employment.

Some of the major ones are.

1. Employees’ Compensation Act 2010, which regulates the payment of Compensation to employees who suffer occupational diseases or sustain injuries arising from accidents in the workplace or during employment.
2. Factories Act, Chapter F1, LFN 2004
3. Finance Act 2020 · National Housing Fund Act, Chapter N45, LFN 2004
4. Guidelines for the Release of Staff in the Nigerian Oil and Gas Industry, 2019
5. Immigration Act 2015, which regulates the employment of foreign nationals.
6. Industrial Training Fund Act which requires employers to contribute 1% of their annual payroll to the Industrial Training Fund created by the act.
7. Immigration Act 2015, which regulates the employment of foreign nationals ·
8. National Health Insurance Scheme Act, which established the national health insurance scheme ·
9. National Housing Fund Act, Chapter N45, LFN 2004
10. Nigeria Data Protection Regulation 2019, issued by the National Information Technology Development Agency
11. Nigerian Oil and Gas Industry Content Development Act 2010
12. Pension Reform Act 2014, which regulates the contributory pension scheme.
13. Pension Reform Act 2014, which regulates the contributory pension scheme ·
14. Personal Income Tax Act, which regulates the taxation of employees’ remuneration ·
15. Personal Income Tax Act, which regulates the taxation of employees’ remuneration.
16. the Constitution of the Federal Republic of Nigeria 1999 (as amended) (the “Constitution”)
17. The Labour Act Laws of the Federation of Nigeria 2004 is Nigeria’s principal legislation governing employment relations. Its application is limited to employees engaged under a contract of manual labour or clerical work in private and public sectors.
18. Trade Disputes Act, Chapter T8, LFN 2004
19. The Trade Unions Act regulates the organization of trade unions and their activities.

Conclusion:

As we conclude this post on Workers Day in Nigeria, we hope you now understand why knowing your work status is essential. You can ensure fair treatment, benefits, and protections by determining whether you are classified correctly as an employee or an independent contractor. Whether you are a freelancer, a full-time employee, or somewhere in between, it’s crucial to know your work status and rights. So, let’s continue to celebrate Nigerian workers’ hard work and contributions and strive for fair and just treatment for all. Happy Workers Day!