Sunday, July
26, 2020 06:00PM / by Sinmiloluwa Lala, Associate, Aelex / Header Image Credit: Aelex
Introduction
Casual work arrangement (also known as Non-Standard Work Arrangement (NSWA)) is generally used to describe work arrangements which do not fall within the traditional definition of employment. The term may also refer to fixed contract, contract work, on-call work, part-time, and temporary work.1 Generally, there are four dimensions when determining whether an employment is casual. These include:
While casualisation of employment may be considered as an appropriate strategy for cost reduction, it is often temporary and characterised by uncertain wages, long hours, and a lack of job security.
Casual Employment in Nigeria
In
Nigeria, a casual employee is defined as a worker engaged for a period of less
than 6 months and who is paid at the end of each day.3 This is however not the practice
presently as casual workers may be engaged for as long as one or two years.
There is currently a Bill to amend the extant Labour Act4, which has been passed by the House of
Representatives, 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.5
Employers in Nigeria are
increasingly filling positions in their organisations, which ought to be
permanent, with casual employees. In the past, casual work arrangement was
predominantly for unskilled workers especially in the construction industry.
However, at present, both skilled and unskilled persons are engaged as casual
workers in the informal sector and even the organised private and public
sectors of the economy. This trend has largely been attributed to the
increasing attempt of employers to cut down the organisational costs of the
employers. While favouring the employer, casualisation in many Nigerian
organisations presents a range of problems for the employees. In fact, it is
considered an affront on the employees right to form and belong to trade
unions, a right which anchored on the constitutionally guaranteed right to
freedom of association.6
Challenges of Casual
Employment in Nigeria
A report7 by the National Bureau of Statistics
in the 3rd quarter of 2018 showed that there are about 20.9 million
unemployed Nigerians. It is evident that casual work may be enabled by the
widespread unemployment in Nigeria. Considering the high unemployment rate in
Nigeria, some individuals are willing to work under any condition despite being
deprived of certain benefits which they will ordinarily be entitled to if they
were permanent workers.
Consequently,
with the employees being stripped of the right to join trade unions, they may
not be able to effectively negotiate with employers for better working conditions
and even pay. They may also not be in a position to access or secure other
rights. Furthermore, although many employees rely on their employment to get
benefits like health insurance, casual workers may not enjoy any form of social
protection, either from their employers or the state.
The
Nigeria Labour Congress ("NLC"), the umbrella organisation
for trade unions, has continued to express its aversion to
casualisation of employment particularly because of the disregard for the
dignity, integrity and rights of workers which are protected by the nations
labour laws, constitution and International Labour Organisation's ("ILO")
conventions by employers. The most prominent characteristic of this category of
workers is that their employment is not permanent, hence, they can oftentimes
be retrenched without prior notification.8
Trade unionism
The Trade Union Act9
defines a trade union as "any combination of workers or employers, whether
temporary or permanent the purpose of which is to regulate the terms and
conditions of employment of workers..."
Section 40 of the Constitution of the Federal Republic
of Nigeria As Amended10
(the Constitution) guarantees the right to freedom of association to all
citizens in Nigeria.
The inference drawn from the foregoing legislation is
that all workers - casual or permanent - have the freedom to belong to, join
and constitute any trade union of their choice in accordance with the laws.
Consequently, in Patovilki Industrial Planners Limited v. National Union
of Hotels and Personal Services Workers,11
the National Industrial Court ("NIC") in determining the right of both
permanent and temporary or casual workers to form a trade union, made reference
to section 1(1) of the Trade Union Decree12
and held that a relevant trade union can unionise
workers who are casual daily paid workers.
Workplace discrimination
The Constitution13 prohibits
discrimination in the work place and provides that the state shall direct its
policy towards ensuring that 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. Section 42 (1) and
(2) of the Constitution also guarantee a right to freedom from discrimination.
The ILO Equal Remuneration Convention, 1951 and the Discrimination (Employment
and Occupation) Convention, 1958, which Nigeria has
ratified, equally frown against any form of labour discrimination. Sadly, in
comparison with other employees, the trend now is that casual workers work for
many years without promotion and necessary entitlements. The casual
worker in the Nigerian labour market may thus suffer a lot of discrimination,
particularly as regards wages and other employment benefits.
Redundancy and casual work
The Labour Act14
provides the procedure for an employer declaring redundancy, which is an
involuntary and permanent loss of employment caused by excessive manpower15. In the event of redundancy, an
employer is mandated to inform the trade union or
workers' representative concerned of the reasons for and the extent of the
anticipated redundancy. The
essence of this notification requirement is to afford the relevant party an
opportunity to ascertain the authenticity of the employer's intention. This is
because the law forbids the employer from hiding under a fictitious redundancy
situation to unscrupulously terminate the employment of an employee.16 The
employer is also expected to use all endeavours to negotiate redundancy
payments to discharged workers that are not protected by regulations.
In essence, where employees are to be
declared redundant, the employer must take all measures to ensure that under
the guise of redundancy, employers do not terminate the employment of their
employers for any flimsy reason. However, casual workers, who ordinarily should
be able to unionise if they were permanent workers, are not allowed to belong
to unions and have no collective body to advocate for their rights. The
implication is that they can be retrenched on the basis of redundancy at any
time without being notified of the reason or the extent of the intended redundancy. The
workers are sometimes not even given any redundancy payments before they are
laid off. This bizarre practice continues to
characterise casual work in Nigeria.
Recommendation
With the increasing demand for decent work17 in
organisations in Nigeria, the manner in which NSWA operates in Nigeria
especially in the area of unskilled labour proves as a threat to ensuring
decent work to all employees in Nigeria. Other than the Employee Compensation
Act18, no other legislation envisions a casual
employee as a worker within the Act. The legal status a casual worker and the
extent of the right of such worker must be clearly defined. The degradation of
work and the unfair restriction of activities of casual workers ought to be
stopped to promote healthy working environment for all employees.
Conclusion
Although casualisation of employment is
supposed to be a flexible work arrangement for the benefit of those who cannot
engage in full time employment, it has been reduced to slave-like labour with
all kinds of ugly practices. It is recommended that casual work be clearly
defined in the labour laws and guidance for engaging in an NSWA be provided in
the laws.
Footnotes
1.
Francoise
J. Carre, 'Temporary and Contracted Work in the United States: Policy Issues
and Innovative Responses in Changing Labour Market and Gender Equality: The
Role of Policy' (High level Conference organised jointly by the Organisation
for Economic Co-operation and Development (OECD), the Ministry of Children and
Family Affairs and the Ministry of Labour and Government Administration, Oslo,
Norway, 12 and 13 October 1998) p. 3
2.
Susan
Durbin and Jennifer Tomlinson 'Female part-time managers and career mobility.
Work, Employment and Society' (2010) 24(4) Sage Journal < https://doi.org/10.1177%2F0950017010380631
> accessed 25 April 2020. See also: Michael Gebel 'Early Career consequences
of temporary employment in Germany and UK' (2010) 24(4) < https://doi.org/10.1177%2F0950017010380645
> accessed 25 April 2020
Sandra
Richardson and Jan Allen 'Casualisation of the nursing workforce: A New
Zealand
perspective on an international phenomenon' (2001) 7(2) IJNP < https://doi.org/10.1046/j.1440-172X.2001.00266.x
> accessed 27 April 2020
3. Owena Mass Transportation
Co. Ltd v. Okonogbo (2018) LPELR-45221 (CA)
4.
Cap
L1, Laws of the Federation of Nigeria 2004. The provisions of the Labour Act
primarily applies to the employment of 'workers', defined as unskilled persons
who perform non-administrative, non-executive or non-technical work (in many
cases, manual labour or clerical work)
5. Leke Baiyewu 'Reps
to criminalise workers' casualisation' Punch (Abuja, 18 February 2020)
<https://punchng.com/reps-to-criminalise-workers-casualisation/> accessed 25 April 2020
6. Section 40, Constitution
of the Federal Republic of Nigeria 1999 (as amended)
7. Labour Force Statistics -
Volume I: Unemployment and Underemployment Report' National Bureau of
Statistics, 2018. p. 1 <https://nigerianstat.gov.ng/download/856>
8. Emeka E. Okafor and
Bamidele Rasak 'Casual Employment-A Nostrum to Unemployment in Nigeria'(2015)
4(2) FJMSS < https://pdfs.semanticscholar.org/5030/d0013cc31e1f03b14db0e1bf5637381487fe.pdf
> accessed 27 April 2020
9. Cap T14, Laws of the
Federation of Nigeria 2004
10. Constitution of the
Federal Republic of Nigeria 1999 (as amended)
11. Suit No. NIC/12/89
12. Decree No.22 of the
Federal Republic of Nigeria 1978
13. Section 17 (3) (a).
14. Labour Act, Section 20
15. Union Bank v. Salaudeen
(2017) LPELR-43415 (CA)
16. David T. Eyongndi 'Casual Employees under Nigerian Law: Matters Arising' Academia (2017) < https://www.academia.edu/33313972/CASUAL_EMPLOYEES_UNDER_NIGERIAN_LAW_MATTERS_ARISING_2_0_F_0> accessed 27 April 2020
17. Decent work 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, organise and participate in the decisions that affect their
lives and equality of opportunity. Decent Work. Available at (International
Labour Organisation) < https://www.ilo.org/global/topics/decent-work/lang--en/index.html
> accessed 12 July 2020
18. Section 73
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