In relation to the workplace, the term refers to those workers who are likely to experience marginalization, or exclusion, or exploitation, or poor productivity because of their age, sex or status, unless brought into the mainstream of the labor force through deliberate laws and policies by government and employers. Examples include children and young persons, women, the physically challenged, HIV/AIDS persons, internally displaced persons and refugees.
Children and Young Persons
Children and Young Persons
There are detailed provisions in sections 49 to 53 of the Labour Act regulating the employment of apprentices. S. 49 provides that the parent or guardian of a person between 12 and 16 may apprentice that person to an employer to be trained systematically for a trade or employment in which art or skill is required, or as a domestic servant, for a term of not more than five years. A young person above the age of 16 may also apprentice himself…for not more than 5 years. The contract of apprenticeship shall be in writing, attested to and made with the approval (in writing) of an authorized labor officer (see s. 50 LA). S. 91 defines a ‘young person’ as a person under the age of 18.
The above provision has been described as a paper law with no enforcement because the majority of these apprenticeship trainees are found in the informal sector of the labour force where there exists no legal protection and flexible + conducive environment for training, learning and socialization.
Apart from the Labour Act, there also exists labour conventions with regard to children and young persons. The ILO and the Minimum & Maximum Age Conventions are notable in this regard. The question is whether the relevant provisions of the ILO comply with international labour standards. The case of RTNA v MHWUN is to the effect that these international conventions have no force of law in Nigeria and can’t possibly apply until the National Assembly enacts them into law (see s. 12, 1999 Constitution).
We now turn to consider whether the provisions of our Labour Act meet the international standard stated in Conventions. The first thing to note is that unlike the international conventions which prescribe 15 years as the minimum age for employment of young persons, the Labour Act stipulates different ages for different types of employment thereby making it confusing. For example, while s. 59(2) provides against employing persons under 15 years in any industrial undertaking except where such work is done by such a person in a technical school or similar institution, s. 59(2) prohibits the employment of persons under 14 years on daily wage and on a day-to-day basis. It has been suggested that there should be one standard as this will make administration easy. However, we must point out that despite the existence of these provisions, it is not uncommon to see children of various ages (male and female) in the informal and unorganised sector.
It is no news that there is no equal playing field between men and women in practice. Women are expected to jump hurdles before getting employment and when this employment is got, they face restrictions (e.g. restrictions on marriage and pregnancy) which men are not subjected to.
The Labour Act contains a number of provisions which deal with the protection of women. S. 54 LA deals with maternity protection. The section is to the effect that a pregnant woman may leave her work where she can prove via a certificate by a registered medical practitioner that her confinement will take place within six weeks (this leaves it optional as the pregnant woman may decide not to exercise this right) but she shall not be permitted to work during the six weeks following her confinement (compulsory). In practice, many women work up to the time of confinement and then take the twelve weeks in one stretch.
Where she is absent in consequence of the above provision, she is entitled to nothing less than 50% (the employer can pay more) of her wages provided she has been in the continuous employment of her employer for a minimum period of six months prior to her maternity leave.
A nursing mother shall be entitled to half an hour twice a day for the purpose of nursing her baby. In practice, the two breaks are usually consolidated into one and the woman may decide to take the break one hour before close-time….
Subsection (3) provides that the employer shall not be liable to pay medical expenses incurred by a woman during or on account of her pregnancy or confinement. It has been submitted that this provision is contrary to international labour standards and best practices.
Subsection (4) gives her a right not to be dismissed while absent on account of maternity leave or maternity-related issue except where her absence has exceeded the prescribed period. In Lilian Ajiboye v Dresser, the plaintiff’s appointment was terminated during maternity leave. The court’s decision that her employment was properly terminated was probably because no reference was made to the provisions of the Labour Act instead she relied on the temporary nature of her appointment. In Okunbowa v Group Consultants Nigeria, the plaintiff’s employment was also terminated while she was on maternity leave and the court held that this was a breach of the provisions of the Labour Act.
Female workers in the Public Service of the Federation are entitled to sixteen (16) weeks maternity leave with full pay provided they have not taken their annual leave before the commencement of the maternity leave. Where the annual leave has been taken before the commencement of the maternity leave, part of the maternity leave that correspond with the annual leave would be without pay.
We now turn to s. 55 LA which deals with night work. S. 55(1) LA protects women against employment on night work in public and private industrial undertakings; and also I n agricultural undertakings. Even at that, it is not a blanket prohibition as the provision does not apply to nurses and women holding responsible positions of management not ordinarily engaged in mutual labour [s. 55(2) LA]. Night covers the period between 9:00pm and 5:00am (industrial undertakings) or 9:00pm and 4:00am (agricultural undertakings). However, it has been argued that although the provision with regard to night work can be understood on the basis that it was made at a time when there was a dire need to protect women, the choice of whether or not to work at night should be left to the individual to decide especially in this new age and time.
S. 56 LA provides that no woman shall be employed on underground work in any mine. The section is not without some exceptions. For example, women who are employed in health and welfare services are exempted.
Unlike the above provisions which the LA has in a way protected women against, there exists other gender issues in the workplace which make the workplace emotionally and psychologically hostile. Sexual harassment and bullying are good examples. In Mrs Ejike Maduka v Microsoft Nigeria, the plaintiff alleged that the termination of her employment was based on her refusal to succumb to sexual harassment (tickling and touching against her will) by the defendant’s country manager. The National Industrial Court (acting pursuant to powers conferred on it by the Third Alteration Act 2010, an amendment to the Constitution of the Federal Republic of Nigeria, 1999), first acknowledged the lack of precedent case law on the subject of “sexual harassment”. The Court relying on both constitutional provisions (sections 34 and 42) and International Conventions (the ACHPR) held the Respondent manager to have breached the Applicant’s Fundamental Rights to Human Dignity and Freedom from Discrimination. The employer was held vicariously liable for the acts of sexual harassment carried out by its Country Manager and for breaching the duty of care it owed the plaintiff.
In Nigeria, child-care is a huge problem especially in labour matters. Women are unable to maximise their potential in the workplace due to inflexible working hours which contribute to harsh working conditions and poor quality of life for working women. Absence of institutional structures for child care during working hours is another contributory factor. As far as this writer can tell, there exists no articulated child care policy under Nigerian Law but regard may be had to the most recent ILO publication WORKPLACE SOLUTIONS FOR CHILD CARE which posit that the way out is through workplace partnerships. The publication shows that partnership is the only realistic way to achieve decent work environment for all working mothers.
We now turn to people living with HIV/AIDS. The Protection of Persons Living with HIV and Affected by AIDS Law” 2007 (a Lagos State legislation) accords the affected persons with rights at the Workplace. Since such persons are entitled to means of livelihood, the law guarantees their rights at work places. These rights include: Right to gainful employment in private/public establishment, if qualified and provided vacancy exists; freedom from unlawful termination of employment because of HIV status; non-discrimination/segregation in workplace as well as Right to non-compulsory HIV test. The HIV and AIDS Anti-Discrimination Act 2014 is another legislation relevant at the federal level.
With regard to workers with disabilities, the Special Peoples Law 2011 (Lagos) is the only enactment protecting workers with disabilities in Nigeria.
It is important to reiterate that the ILO convention as far as S. 12 of the Constitution is concerned, has no force of law until it has been domesticated by enacting a law to that effect in the National Assembly. The question is: is there no other way the provisions of the ILO can be enforced? The argument is that the provisions of ILO can be applied without domestication and S. 7(6), NIC Act gives credence to this argument but it must be pleaded (Oyo State Government v Alhaji Bashir Apap).